CHAPTER ONE – WHY, WHAT AND WHEN? THE IMPACT OF THE NEW DIVORCE LEGISLATION
6th April 2022 saw the implementation of the biggest change to divorce process in the practicing lives of us all. After decades of campaigning, “no fault” divorce finally became a reality. Either party, or the couple jointly, can issue an application for divorce with no “grounds” being cited. There follows the statutory 20-week period before application for “Conditional Order” (formerly Decree Nisi), after pronouncement of which the Court has jurisdiction to regulate financial matters by agreement or adjudication. Final Order – applied for at least six weeks and one day after the Condition Order date – brings the marriage to an end (formerly Decree Absolute).
The new process lends itself to being used by the couple alone, without recourse to the legal profession. The application is made online, the forms are relatively straightforward. The cost has reduced to just the Court fee as legal fees alongside are not really required.
The stark reality of this new process is that separating couples have no need to make a family law professional their first “port of call” when their relationship is floundering/over. The gatekeeping has radically changed. Never has it been more important for separating couples to have access to information about how to best deal with issues which will almost certainly arise. Perhaps frighteningly, an element of divorce applicants believe that the new law means they have no right to deal with financial or child arrangements except between themselves – with potentially disastrous outcomes, including no resolution or termination of financial rights and obligations.
Another concern is the impact upon the recipient of a divorce application without warning, who had no real conception of their marriage being in difficulty. Perhaps they thought they were just experiencing the “ups and downs” of married life without any grasp of the fact that their life was about to come crashing down around them.
As family law professionals, we need to create a “new normal” – making it clear that the online divorce process – now streamlined and simple – is entirely separate to resolving financial or child related issues. We need to show that those other issues can be resolved via a number of methods and that family law professionals are available to guide separating couples through the options available; to help them select the option(s) which best meets their needs and circumstances.
Of course, there will remain those individuals who need the protection of a Court ordered remedy with appropriate enforcement. Those clients need to know that family law professionals are available to help and guide them too. If those who do not need to be in the Court arena are removed from it, the Court service will be far better placed to provide those vulnerable individuals with the instant access to justice which they so desperately require.
Notwithstanding “no fault” divorce, the majority of separations will have the capacity to be fraught with emotion, to be acrimonious, to be driven by conflict and dissatisfaction. The public perception of “Court” remains that it is a place from which to obtain “justice” and “retribution”. Of course, we know that neither is true. Yet our clients who find their way to us in their quest for the “clout” of the Court, have preconceived ideas of what they want and what they need. These people doubtless fall into the category described by many non-DR trained family law practitioners as “unsuitable” for anything other than an application to Court.
Those without the resources for legal advice, but with the same mindset, form the ever-growing number of litigants in person who now fill the Court lists and appear in front of the judiciary unprepared and with limited understanding of the process they have activated – thereby placing even greater pressure upon a Court service already in crisis.
Part of your role in this new “no fault” world is to create new practices so that through use, word of mouth, existing clients and social media, a message dispelling the expectation of Court and providing alternative options becomes the recognised landscape of separation for the future. It will not happen overnight. Any change which is so fundamental must be gradual and clear. You can be a fundamental part of that change.
Why is this so important? Separating couples need affordable access to information about their rights and obligations when a relationship comes to an end. Information about how to achieve an outcome which meets the needs of their family, and which is reasonable for them both. The rules governing financial outcomes are at best vague and discretionary, or at worst, incomprehensible. How do separating couples ensure that they understand what their claims are and how they can be appropriately met? In a world where their marriage can be ended with ease online, what is going to draw them to getting proper advice and information?
What information needs to be available? The MIAMS (Mediation Information and Assessment Meeting) – now expected to be more than an hour in duration – may be the best and most cost-effective way to provide the range of information required. Those meetings are conducted by accredited mediators. Might they have an inevitable leaning towards the mediation process within which they personally work – even if they additionally wear other “hats” such as “family lawyer”? Might a more streamline service be a meeting first with someone able to provide the separating person with “advice” as opposed to “information” so that they are ready to consider options with the support of someone they see as being on their side – yet still committed to finding the right out of Court method – reducing inevitable feelings of acrimony and disappointment – avoiding the idea that Court is “normal” or will be their route to “justice”?
And When do they need that information? Ideally at as early a stage as possible – before misconception is already causing problems – before unrealistic or unreasonable positions are maintained which become difficult to retract from.
A combination of advice aligned with neutral information is probably the ideal. The key is to marketing this service. As the family practitioner your role is vital. You might be:-
i. Advising on disclosure/valuations.
ii. Negotiating a settlement.
iii. Setting up neutral evaluation.
iv. Supporting/attending (hybrid) mediation.
v. Setting up and supporting pFDR Arbitration.
Remember also that Arbitration can be an excellent dispute resolution method for couples with limited resources. We know that those who have insufficient to meet the needs of both find division extremely difficult. These are exactly the cases which become cost disproportionate but could be resolved by the right arbitrator – even perhaps with the couple being litigants in person. Once disclosure has been provided the issue is simply how should the limited resources be divided as fairly as possible.
Think about how you can best communicate the service which you seek to offer in a manner which is clear and comprehensible. You need to demonstrate the value which a consultation with you will add – and what the initial cost is likely to be. The public are bombarded with confusing options. There is a natural scepticism of the legal profession – commonly seen as hoping to take a significant share of the separating couples’ limited resources without the value or benefit being clearly outlined or indeed comprehensible. This needs to change. You can be part of that change – making you relevant and affordable. The establishment of that role will promote recommendations. As people take up your service and clearly understand the benefit, those recommendations will snowball – and also attract the vast number of separating couples who currently do not seek legal advice at all.
I sense you feeling concerned that this work does not have the “fee price tag” which you might ordinarily attract. Your long- term objective is to have a greater number of clients who will require your service for a shorter period and consequentially will have a smaller bill. But you are generating a more sustainable way of working which is therefore necessarily just as lucrative and probably more so. Makes sense? Read on.