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The process of divorce and potential upcoming reform

01 April

The process of divorce and potential upcoming reform

Following a report by the Nuffield Foundation published last week, the Ministry of Justice plans to put forward potential reforms for the divorce process imminently.

The Current Divorce Process 

At present, the divorce process itself is considered to be straight forward if no issues arise, however in practice it can be time consuming due to delays with the Court. Consisting of three main stages, the divorce process can be completed by parties acting with or without solicitor representation. 

Firstly, there is the application for divorce, which is known as the divorce petition. The party who takes this step, and begins the process, is known as the Petitioner. 

Once this application has been made at Court and has been acknowledged by the other party, the Petitioner can proceed to the next step (providing the application is undefended). This step will be the Petitioner requesting that the Court grant the decree nisi. This is again done using specific forms. 

On receipt of this, the Court will proceed to set a date to grant the decree nisi. Once this has been granted, the Petitioner must wait at least six weeks until they can apply for the final stage of the process. 

As soon as six weeks have passed since obtaining the decree nisi, the Petitioner can apply for decree absolute, again by completing a specified form and sending this to the Court. The Court can then issue the decree absolute, providing there are no outstanding issues. 

Potential Upcoming Reforms 

The Nuffield Foundation’s report, ‘Reforming the Ground for Divorce: Experiences from other Jurisdictions’, has considered the process in different jurisdictions and compared it to the current procedures in place in England and Wales. 

The report says that in other jurisdictions, the procedure is “typically very simple,” only requiring one or two mandatory steps. Interim decrees, such as our decree nisi, are much less common in other jurisdictions and in fact “largely unknown.” There is concern that these interim decrees complicate the divorce process for litigants-in-person. Evidently, California actually abolished interim decrees in the 1980s, partly because their existence may mean that unrepresented parties are unaware of the need to apply for the final decree. 

England and Wales are unusual as the Petitioner is required to make at least three applications to ensure that the divorce starts, continues and can be completed. The process is less complex elsewhere, with only one or two procedural steps being required. Unlike England and Wales, in Australia and New Zealand for example, a divorce becomes final automatically, without the need for the parties to make any further application. 

Additional steps to the process are only required in other jurisdictions when needed in order to deal with arrangements for children or financial matters. However, in England and Wales, these matters would be dealt with separately to the divorce and only a small number of divorcing couples proceed to make these applications. 

As a result of the criticism of these multiple mandatory stages, the report suggests that the divorce process in England and Wales “appears to be rooted in a very different approach to divorce, with an emphasis on the parties having to repeatedly prove to the state their entitlement to divorce, a concern about collusion between the parties and seemingly less confidence in the capacity of the parties to make their own decisions.” 

The report highlights that “every additional stage is likely to frustrate the divorce.” The Ministry of Justice is therefore advised to consider the merit of following the Swedish/Finnish approach of reducing the number of required steps from three to two. Not only would this reduce the administrative burdens on the Court and could potentially reduce the subsequent delays which are currently experienced, but it may also assist unrepresented parties who, as mentioned, may not realise that they have to apply for the interim decree nisi. 

It is noted also that if concern exists about marriage stability, altering England and Wales’ approach to two stages would still require more active and ongoing consideration than the one step approach offered by other jurisdictions. 

During discussions on plans for reforming the legal requirements of the divorce process, Lord Chancellor has already stated that he would like to remove what he considers ‘archaic requirements’ to allege fault. 

Challenges for Litigants in Person? 

As discussed, amid possible concerns that the current divorce process is too complex for litigants in person, it is not uncommon for parties to attempt the process without representation. It could be a good idea to use solicitors for the process where the situation is particularly acrimonious, and perhaps more complex with the need for help with children arrangements or financial matters. 

Many of our clients find the involvement of solicitors helps in terms of lessening the need for fractious communication between the parties themselves, which can enable them to consider the situation practically and calm their emotions. 

If you require advice or have any queries regarding the divorce process, please contact the family team on 0114 249 5969.