What ‘no fault divorce’ law change will mean for families and children caught up in tug-of-love between parents – David Lister

DUBBED the “biggest shake-up in divorce law for 50 years”, the introduction of “no fault” divorce from April 6 has been widely welcomed as a positive step in removing much of the animosity traditionally associated with the process – and helping to alleviate some of the pressure on the family courts.
How will 'no fault' divorce laws protect the interests of children?How will 'no fault' divorce laws protect the interests of children?
How will 'no fault' divorce laws protect the interests of children?

In fact, those of us at the coalface of proceedings suspect that the new legislation goes some way to explaining why the latest Office of National Statistics (ONS) data shows that the number of divorces in 2020 dropped quite significantly in comparison with 2019.

The family law team at Simpson Millar has witnessed this first-hand, having worked with quite a few clients who are holding back filing their petition until no fault divorce comes into force.

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However, while no fault divorce certainly removes the initial hammer blow that comes with apportioning blame to one or other party – let’s face it, no one likes to be told their behaviour has been unreasonable – is it really the silver bullet everyone thinks it is? I have my doubts.

What will be the impact of 'no fault' divorce laws?What will be the impact of 'no fault' divorce laws?
What will be the impact of 'no fault' divorce laws?

In my experience, most people can live with being the baddie, if it’s on paper and doesn’t affect the outcome of any associated proceedings. In reality, however, the initial petition doesn’t actually do anything to the take the heat out of associated proceedings, such as the splitting of finances, the separation of assets, the selling of the family home and agreeing where the children will live.

So few divorces are contested these days that part of me thinks that instead of just focusing on ending the blame game, time might have been better spent instead, for example, considering how to stop warring parents making false allegations against each other in children cases.

This would have freed up the courts to focus on cases where children are actually at risk, more than just their parents looking to have the final say.

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Even with no fault, the financial implications arising from separation are still going to be there and the most precious things in the world, children, will still need to navigate having two homes, and in my experience that’s when the heat gets turned up. Traditionally, at this stage, negotiations happened in the boardroom of a law firm, both parties sitting at opposite ends of the table with their respective lawyers “fighting their corners”.

Will 'no fault' divorce laws make it easier for couples who split?Will 'no fault' divorce laws make it easier for couples who split?
Will 'no fault' divorce laws make it easier for couples who split?

It’s an outdated approach that is totally out of touch with the growing demand for a more amicable solution, which is backed up by a recent poll that we did which showed three-quarters (74 per cent) of divorcing couples want to “keep things civil”.

The figures speak for themselves. We can’t wait another 50 years for things to improve again, and the onus falls on the legal profession to better meet the changing needs of consumers.

We need to ask what we can 
do to help our clients navigate what are inevitably highly emotive, difficult conversations in the most balanced way possible.

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Not only will that help speed up the process and keep costs down, it will also help with ongoing relationships, which is vitally important, especially where children are concerned.

The benefits of that are likely to be far reaching, with evidence to suggest that divorces or separations fuelled by conflict can impact on children’s mental and physical health and wellbeing, which subsequently impacts their education and puts additional pressure on wider social and healthcare services.

Of course, there are always going to be those people who want to “take their ex for all they’re worth”, but what many people entering into proceedings don’t realise is that as part of a divorce settlement you are entitled to what you need, not what you want, and rarely will a person’s behaviour affect how assets are divided.

Once people understand that to be the case, they tend to be far less combative throughout the process, and many clients are now even opting to use a same lawyer service such as Separating Together, which is a relatively new and quite revolutionary offering that keeps cost and conflict down, and helps to speed things up.

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Family lawyers are in a very unique and privileged position to be able to do something about these issues that are not only affecting our clients directly, but also society as a whole.

All it takes is a few brave firms to challenge the status quo and introduce new options for couples in conflict and the landscape of divorce in England and Wales could genuinely change for the better – once and for all.

David Lister is a partner and head of family law at Simpson Millar.

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