News focus: Has no-fault divorce ended the 'blame game'?

Following years of campaigning by family lawyers, legislation removing the need for couples to assign blame for the breakdown of their marriage came into force on 6 April 2022. Lord chancellor Dominic Raab said the government wanted couples to move on with their lives ‘without the bitter wrangling of an adversarial divorce process’.

A year on, has the so-called ‘blame game’ ended?

‘Previously, clients had to turn their attention to the reasons why the marriage had broken down, often focusing on each other’s behaviour and on who was to blame and why,’ Clizia Motterle, a senior associate in the family team at RWK Goodman, said.

‘While we endeavoured to draft divorce petitions in the most anodyne and non-inflammatory way, the very process of turning their mind to the exercise risked falling into a less than constructive frame of mind.’

Now? ‘I have noticed a significant shift now that citing blame is no longer a requirement,’ Motterle said. ‘The divorce application is generally a less emotionally charged step with clients able to focus on the future, rather than on what went wrong in their relationship, and look at addressing the financial settlement and/or arrangement for their children in a more constructive and amicable way.’

Couples can apply jointly for divorce – which, says Birkett Long partner Lisa Collins, ensures they are on an equal footing when starting proceedings.

Government statistics show that, from April to December 2022, 22% of the 89,123 divorce applications under the new law were made by joint parties. Tony Roe, solicitor and family law arbitrator at Dexter Montague in Reading, suggested that a reduced fee for joint applications could increase numbers.

Last year’s reforms also simplified the language of divorce. ‘Decree nisi’ became ‘conditional order’, ‘decree absolute’ became ‘final order’ and ‘petitioner’ became ‘applicant’.

However concerned practitioners say reform of the language should go further. Workshops hosted by the Family Solutions Group this year with family law professionals found ‘applicant’ to be one of several words considered harmful to separating families.

Custody, versus, battle, opponent, rights, parties and dispute were also considered harmful. The alternative? First names, as well as words such as co-parenting, together and collaboration, were considered helpful.

'Divorce practitioners like me make a fortune in arguing, because the guidelines are 50 years out of date'

Fiona Shackleton

Sir Andrew McFarlane, president of the Family Division, said: ‘It’s blindingly obvious that the language we have been using is not appropriate and only goes to stoke the minds of those in a combative mindset, rather than direct them in a different way. The real change will come by each one of us thinking about it, and then changing practice.’

The Family Solutions Group has called for change on court forms, case headings and in the language used by legal professionals.

Then there’s the issue of money. ‘There is no use in having a divorce if the money is not sorted out; the house has to be sold and the children are caught in conflict,’ Baroness Shackleton (solicitor Fiona Shackleton) told a Lords debate last month. ‘Divorce practitioners like me make a fortune in arguing, because the guidelines are 50 years out of date.’

Simplification may be coming – slowly. At the request of the Ministry of Justice, the Law Commission has begun preliminary work reviewing the laws which determine how finances are divided after divorce. It will explore issues such as the need for a clear set of principles enshrined in law, how maintenance payments for a former spouse or civil partner should work, and orders relating to pensions.

‘The laws governing financial provision on divorce or the ending of a civil partnership should be as fair and simple as possible, minimising the risk of conflict, uncertainty or financial strain,’ law commissioner Professor Nicholas Hopkins said.

However, the commission aims to publish a ‘scoping paper’ (part of the pre-consultation phase of a law reform project) in September 2024 – meaning that reform may not arrive for years.

So what now? Have the reforms so far, as well as the ongoing focus on language and finances, covered everything that can be done to improve the divorce process? Not quite.

‘Given the ease of the online divorce process and the huge swathes of unrepresented parties 10 years after LASPO [Legal Aid, Sentencing and Punishment of Offenders Act], many people may be divorcing ignorant of their financial rights and therefore bringing no claims,’ said Jo Edwards, partner and head of family at Forsters.

‘It is high time that the government looked at some targeted financial support for initial legal advice, to bring down family court case numbers and ensure people are able to pursue financial claims/time with their children.’