No-fault divorce online – what your clients need to know
It has recently been reported that, perhaps unsurprisingly, there has been a rise in the number of divorce applications filed since “no-fault” divorce came into force on 6 April 2022.
Many people are likely to have waited for the change in law to take effect rather than issue under the old fault-based provisions and risk getting their divorce off to an unnecessarily difficult start. Who was at fault made little to no difference under the old regime in any event, particularly with regard to the arrangements for any children and dealing with the financial aspects of the relationship breakdown.
Some couples will have been waiting to proceed under the previously available no-fault provisions which required a separation for two years and the consent of the other party, or a separation for five years without consent.
Those individuals will have been able to move forward sooner than they may have initially anticipated. The new process does not require consent and, save for very limited circumstances, it is no longer possible to contest a divorce.
Have the changes made divorce easier?
Despite many media reports, the changes have not made divorce “easier”. There is still no such thing as a “quickie divorce”, and the minimum time frame in which the process can be completed is longer under the new law. The changes have, however, removed unnecessary acrimony from the process at the outset in circumstances where one or both parties wanted to proceed immediately. Previously they would have had to attribute blame to do so.
The arrangements for any children and dealing with the financial aspects of the divorce are of far greater importance under the new process, and with the advent of online divorce, it may now be easier for key steps to be overlooked.
Parents are expected to exercise their parental responsibility and make decisions that are in the best interests of their children without recourse to the court. Many parents will be able to resolve these matters themselves and, in those circumstances, there may be no need for legal support, unless one or both parties want the arrangements to be recorded by way of a parenting agreement. Where parents are unable to agree the arrangements for their children on a separation, legal advice will help in resolving these matters.
Financial matters and a potential sting in the tail
The necessity for legal advice might not seem so obvious where the parties have been able to agree what should happen in respect of their financial arrangements, particularly where the parties have dealt with the divorce proceedings themselves online. Unlike child arrangements where the court does not need to get involved if there is an agreement, the court’s involvement in respect of finances is vital if the parties wish to be held to any terms they have agreed.
An agreement reached between the parties as to their financial circumstances is not legally binding on either of them, even if they have fully implemented their agreement and gone their separate ways having obtained what is now known in the divorce proceedings as a final order (previously, the decree absolute).
The only way to ensure an agreement is legally binding, and to secure financial protection, is to obtain a consent order dealing with the finances. Like the divorce process, this can also be done electronically online without the need to attend at court and a solicitor can prepare the necessary paperwork.
For those who do not take this step, it may be possible for someone to renege on the agreement, months or even years later, when financial circumstances may have changed dramatically for both parties. Without tying up any loose ends, they would be able to do so, however unfair this may seem.
Divorce may not have become “easier” under the new law, but it may have become easier for your client to be exposed financially without proper advice and support.