Family Law

The new era of no fault divorce: does that mean I don’t need a lawyer?

An article by Kate Barnett, Partner

The new era of no fault divorce: does that mean I don’t need a lawyer?

Divorce law as we know it in this country changed in April this year.  Gone are the days where you had to lay blame at someone’s door (if you hadn’t been separated for two years) to start divorce proceedings and the law change was very much welcomed by all family lawyers.  A thought behind the change was to try and take the animosity out of the start of proceedings and to simplify the divorce process, but has the change had this effect?

The divorce itself is, usually, only one piece of the jigsaw to deal with when a marriage breaks down.  Yes, the process is now (arguably) more straightforward but, in some cases, longer (due to the compulsory 20 week time period between issuing the application and applying for the first stage of the divorce process – known as the conditional order).  However, in all divorce cases, it is still imperative that a separate order addressing financial claims upon divorce is prepared and lodged with the court.  If it is not, then the parties will be divorced in law but their financial claims against one another (for capital provision, pension sharing and maintenance)will remain open even after the final dissolution order of divorce.  This means that, in theory, your ex spouse could bring a claim against you 5/10/20 years after you have divorced.  

There may also be disagreements or matters to be resolved in respect of any children: how the children’s time is to be divided between their parents, what school they should attend, Christmas or birthday arrangements and the like.  Again, these issues are not dealt with under the online divorce process.  Although the courts adopt a no order principle on issues relating to children of separating parents (meaning the court will only make an order in respect of them if the parents are in disagreement), it is important for separating couples to understand the rights of their children on divorce.

In summary therefore, yes, no fault divorce can and hopefully will smooth the way a little for separating parties however other issues arising from their separation will still need to be dealt with and, in practice, these issues are more likely to require legal advice and assistance through the various ADR options (for example, mediation or arbitration) as well as court proceedings to resolve any disagreements.  It is essential that parties obtain specialist advice on all issues at the point of separation so to ensure that their interests are protected and all matters resolved at the same time as the divorce.