divorce reform

Divorce reform and litigants in person

Another week, another divorce reform announcement. Not unlike the mythical and long-awaited bus, one doesn’t appear to for ages and then there’s a number in close succession, first the promised and long overdue “No-Fault” divorce changes on the back of the Owens’ Supreme Court decision, and for Litigants-in-Person (LiP) at least, this time it is intended to bring welcome relief to the overwhelming prospect of LiPs facing the family law divorce system alone and bring the United Kingdom more in line with other legal jurisdictions.

The reforms brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and implemented in 2013 at the height of austerity, fundamentally changed and removed legal aid for most private family law cases, despite warnings from many family law commentators that the much needed support and advice would be removed for a large proportion of the population unable to afford to pay for legal advice themselves, in the face of a complicated family court system, often criticised for its supposed lack of transparency.

Warnings of advice deserts, and courts becoming overwhelmed with unrepresented litigants, were ignored at the time but have sadly come to pass, perhaps even worse than anticipated, the government’s own recently completed review having acknowledged their own reforms were overdone and that costs “saved” were simply being moved to other over-burdened department budgets.

Such reforms have also had unintended consequences, with anecdotal evidence pointing to individuals perhaps not pursuing cases they might have otherwise done. This could be given as evidence for justification of previous reforms but, in the family law context, it means children not spending time with both parents, or someone not pursuing an application for a financial order, with obvious consequences for the individual’s own financial position  – and possibly being forced into claiming welfare benefits, something they may not have needed to do otherwise.

“Emotions make separation difficult enough; why should the state compound that situation by maintaining a process that prevents individuals, having entered the marriage willingly, part in the same way, and with dignity?”

Chris Fairhurst, partner

Another perverse outcome has been the general increase in private law children cases – notwithstanding many not bothering at all – from 34,000 in the first full year after the reforms were implemented, to nearly 42,000 in the financial year to 2018; a full 23% increase and perhaps evidence of the benefits of early advice to avoid going to court. As a result, factors of reduced resources needing to deal with increased demand, whilst the number of unrepresented litigants increases, means the family court is overwhelmed.  This situation has been cknowledged in recent comments by Sir Andrew McFarlane, referencing a “crisis” in the family court, was “entirely justified”.

What has this all got to do with the recent announcement from the Ministry of Justice that, following research into how other legal jurisdictions deal with such matters, it intends to reform divorce requirements?

In short, the Nuffield Foundations report, “Reforming the Ground for Divorce: Experiences of Other Jurisdictions” by the University of Cambridge’ Jens M Scherpe, director of Cambridge Family Law, and Liz Trinder, a professor of socio-legal studies at the University of Exeter Law School, has highlighted the overcomplication nature of our current legislation in England and Wales: a number of different stages to divorce, including the initial petition, an interim “Decree Nisi” before final “Decree Absolute”, a barrier for LiPs when representing themselves, as opposed to a one or two step procedure in other countries.

The reality is that a divorce is a simple procedure, intended to bring a marriage to an end. No one I’ve ever represented has ever got married with the intention of later divorcing. I would therefore advise you ignore those misguided comments that suggest reform somehow makes divorce “easier”. The government, online processes included, is moving with increasing pace in the direction of enabling self-help in dealing with a previously difficult process. Emotions make separation difficult enough; why should the state compound that situation by maintaining a process that prevents individuals, having entered the marriage willingly, part in the same way, and with dignity?

Recent evidence of ongoing delays in the family court dealing with divorce cases are also likely to be playing a large part in the government’s decision-making: consider the multiple papers applications requiring numerous interventions at different stages, all of which add to the time required for a court to deal with a divorce from start to finish. Previous estimates of four to six months to obtain a Decree Absolute have long since gone out of the window in several of the centralised divorce centres. It is now accepted that a shorter procedure will require less court time and will assist individuals who might not realise the interim decree alone means they’re still married.

Although making any of the “archaic” procedures easier for unrepresented individuals is to be welcomed – such that a person can understand what is necessary without the need for formal legal training – any reforms need to be accompanied with assurances that the consequences, financial and otherwise, of divorce are fully and clearly explained, and understood, at all stages. There is a very real risk that if financial claims are not considered at the outset, followed by re-marriage, then a party to a divorce might find themselves losing the ability to make financial claims and therefore the right to apply in respect of assets including pensions.

The government needs to ensure that as and when it does progress reforms to make procedures easier, individuals have sufficient information so that they have “informed consent” before proceeding, or at least understand that it does not negate the need to obtain legal advice about consequences for their personal circumstances, before doing so.


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