New divorce rules – trouble by another name?

​Whilst it is true that on the one hand, the new Divorce, Dissolution & Separation Act 2020 – up and working from 6^th April – should remove animosity from the equation owing to the fact that the divorce can be achieved without having to allocate blame for the break-up, the rules which aim to facilitate this new legal spirit of amity still allow for foul play.  I’d like to think  this was not the deliberate intention of those responsible for the drafting as the whole point of the new law was/is to try to avoid contentious issues and its consequent expense and complexity.  So, whether the rather loose drafting is down to haste, lack of thought follow-through or sheer mischief remains a matter for speculation. 

When an application for divorce is issued (note that after 6^th April it is not a petition, but an application), the court dealing with an application must take the statement that the marriage has broken down irretrievably to be conclusive evidence that that is so and make a divorce order.   The person wanting the divorce can apply first for the conditional divorce order at the end of a period of 20 weeks from the start of proceedings and then apply for the final divorce order 6 weeks after that.

Aside from the fact that there are few remaining circumstances where the breakdown can be disputed, the main problem is this ‘start of proceedings’.  It is not 20 weeks from service of the divorce application on the other party to the marriage, it is 20 weeks from the start of proceedings, which is presumably the submission of the application.

Best practice is for the person wanting the divorce to send the application to the other party within 28 days of issue so that the other party has plenty of time to think about what is happening.   But what if they don’t?  The potential exists within the rules as drafted for a married couple to go about their lives as usual whilst all the time, one of them has issued a divorce application but has not yet told the other about it and doesn’t intend doing so until just two weeks before the conditional order is due to be declared.  That leaves very little time for that other party to take advice and act on that advice.

This is particularly concerning where the ending of the marriage may have significant financial consequences for either party – say, termination of matrimonial home rights and widows pensions – and I foresee a situation where swift action will be required in order to prevent loss of said housing rights, or pensions.

It will be interesting to see if, how and when, the rules may be amended or what guidance is given to the judiciary to cope with this very situation.

So, as ever, the moral of the story is seek advice from a solicitor as soon as possible!

Our Family Team are available for appointments so please do give us a call 01206 577676.

Any email enquiries can be sent to [email protected]

The slap, no not the book, but possibly the most memorable event in Oscars history. Presenter and comedian Chris Rock cracked a lighted hearted joke at the expense of Jada Pinkett-Smith, wife of the famous Will.

Whilst she didn’t seem overly amused, Smith certainly took exception as he stormed the stage and gave the bewildered Rock a right hander followed by a few expletives.  Rock recovered and carried on like a true professional.  Smith won an Oscar to a standing ovation.

Of course, these circumstances are exceptional. However, should you or someone you care about find yourselves the victims of violence, or even threats of violence, there are options available.

You can apply for a non-molestation order providing you are an ‘associated person’ of the perpetrator in the eyes of the court. This is wide ranging and covers spouses, civil partners, cohabitees, co-parents and relatives.

The court will take into account all of the circumstances of the case including the need to secure the health, safety and well-being of the applicant and any child in their care.

Anyone in breach of a non-molestation order commits a criminal offence and risks up to 5 years imprisonment.

You can also apply for an occupation order which prohibits the perpetrator from entering your home and its surrounding area, should it prove necessary.

For only £99 plus VAT, we offer an hour-long initial consultation to provide preliminary guidance on your next step forward.   We’re here to make life easier for you.  We can be your Rock ……… pun intended.

Any email enquiries can be sent to [email protected]

I want to take legal action but can’t afford to pay expensive fees …

“A grave and widespread problem….” is how Wilson J (as he then was) referred to the question of how can a spouse, usually the wife, who is not entitled to legal aid but has few assets, secure legal advice and representation in order to pursue her rights against her husband.

Sometimes, life leaves you no option but to think about going to court.  Perhaps you’ve tried talking, tried Mediation, or are in a situation where you are afraid and need help.   Legal Aid may be available for some types of application if you can prove you or your child are victims of domestic abuse but if you are not or you have no proof, what can you do?

The first thing to do is research: find out what options are available.  This could be:

1. Making an application yourself to the court.  This means completing the application forms and sending them or taking them to the court yourself.  You will be a ‘Litigant in Person’ ie, representing yourself.

2. Applying for a litigation loan. There are numerous financial organisations that will loan you money specifically to fund your court case.  You – or more likely a solicitor on your behalf –  have to provide a lot of information about your claim and the prospects of success but if you are reasonably certain of recovering assets so as to be able to repay the loan at some point, this might be worth considering

3. You could consider making an application to the court for a Legal Services Order. Under s 22ZA of the Matrimonial Causes Act 1973, the court will be able to order your spouse to pay you an amount for the purpose of enabling you to obtain legal services. This requires very careful assessment before any application is made.

4. Speak to a solicitor to find out if you can set up an arrangement to pay in regular monthly instalments rather than have to pay in one lump sum. Some solicitors may agree to take their fees only once you have recovered assets with which to pay.  This is called  a ’Sears Tooth’ agreement, named after the firm which created the notion.

Before taking legal action, be realistic about whether you can get what you want if you take a case to court. If your dispute is about a misunderstanding or communication breakdown, court is usually not the best place to sort it out. It’s usually better to try other options first.

Taking a case to court can be stressful. It can take a lot of time and money – for example, if you lose and you have to pay the other side’s costs.

At this point, you may benefit from some advice or representation from a solicitor. It is possible to instruct a solicitor to represent you at any point in the proceedings, even if you originally made the application yourself.  This would still mean that you save the costs of the initial steps and making the application, but it may be more costly for a solicitor to repair any errors made in the early stages.

It is always worth considering an initial session with a solicitor prior to making an application, so that we can advise you on your case.   Every case is different therefore fact-specific.   You will find an early meeting with a solicitor  to be more cost effective in the long run and it should ensure your application starts on the right track

For more advice please contact Sue, our Family Solicitor on 01206 577676 or email [email protected]

The new ‘No-Fault Divorce’

Currently, in order to divorce in England and Wales, couples are either required to show that there has been a period of separation or to use the ‘blame game’ by making accusations regarding one party’s conduct such as adultery or unreasonable behaviour.  The new Divorce, Dissolution and Separation Act 2020, which is set to become law on 6^th April 2022, will introduce the concept of ‘No Fault Divorce’ which will mean that couples will no longer need to apportion blame.   All these changes will also apply to the dissolution of civil partnerships.

What changes will the ‘No Fault Divorce’ bring?

1. The biggest change to the current procedure is the removal of blame. All a couple will need to do is to produce a joint statement stating that the marriage has broken down irretrievably. However, given that the ‘fault’ element has been removed, parties will no longer be able to defend the divorce.
2. Currently, to initiate divorce, one spouse needs to issue the proceedings against the other and they therefore become ‘the Petitioner’ and ‘the Respondent’. The new ‘No Fault Divorce’ procedure will mean that parties can make a joint application.
3. There will also be a change in the language that is used. Currently, the key stages for divorce are known as ‘Decree Nisi’ and ‘Decree Absolute’. The new procedure will remove this legal jargon and will replace it with the terms ‘Conditional Order’ (Decree Nisi) and ‘Final Order’ (Decree Absolute).
4. There will be a new minimum timeframe of 20 weeks from when the divorce application is created to when the Conditional Order is granted. This will allow a ‘cooling off’ period so that a couple can be sure that they are making the right decision.

It is hoped that these changes will create a more amicable process for divorce and will therefore help to reduce conflict during what can be a very stressful time.  Furthermore, given that this is a  simpler process, the ‘No Fault Divorce’ should provide an easier, less expensive and quicker divorce. 

Olivia Horseman – Paralegal

Self-help yourself to some documents……..

You are involved in court proceedings to resolve financial issues between you & your ex-wife/husband.  You suspect that s/he is not being honest about the value and quantity of assets which could be shared.   You open the photocopier one day and s/he just happens to have left on top a copy of a statement relating to a bank account which s/he hasn’t disclosed.    What should you do?  You’d probably give them to your solicitor for use in the case, not only to prove the existence of other assets but also to evidence your contention that the ex-w/h was not to be trusted.

So what are the risks being taken by spouses who take, copy, keep, or supply to third parties documents or information without the authorisation of the other spouse?

In the 2009 case of Imerman the Court of Appeal reviewed the law relating to the unauthorised taking of documents or information in the matrimonial context. In this case, the wife had been given a great deal of documentation downloaded from her ex-husband’s computer.  She gave them to her solicitor.  The Court of Appeal held:

• • the wife was not to have the documents in question returned to her and was not entitled to use any of the information she’d gained through their improper acquisition
• • the documents must be retained by the husband’s solicitors until further order or agreement

Does this mean that the bank statement found in the photocopier cannot be used?

While the court can admit such evidence, it has power to exclude it, if unlawfully obtained. In exercising that power, the court will be guided by what is ‘necessary for disposing fairly of the application for ancillary relief or for saving costs’, and will take into account the importance of the evidence, ‘the conduct of the parties’, and any other relevant factors, including the normal case management aspects.  Ultimately, this requires the court to carry out a balancing exercise, something which is easy to say but is often very difficult to effect and is even more difficult to explain.

This decision was criticised as being a ‘cheats’ charter’. Subsequent cases have been presented to the courts which have clarified (some would say ‘confused`) the subject further.

The first proper post-Imerman guidance came in UL v BK [2013] . Mr Justice Mostyn provided the following guidance to managing Imerman issues in practice:

“i) Whatever the historic practice (and however alluring the arguments for pragmatism and practicality) it is simply and categorically unlawful for a wife (for it usually is she) to breach her husband’s privacy by furtively copying his documents whether they exist in hard copy or electronically. There may be factual issues about whether the documents are actually in the husband’s private domain; but if they are (and they almost always are) then it is wholly impermissible for the wife to access and copy them.

ii) If a wife does access such private documents she is not only in jeopardy of criminal penalties but also risks being civilly sued by the husband for breach of confidence and misuse of his private material.

iii) If a wife supplies such documents to her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the wife and must return them, and all copies (both hard and soft), to the husband’s solicitor (if he has one). The husband’s solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the wife’s claim, pursuant to the husband’s duty of full and frank disclosure. If before that exercise has taken place the husband’s solicitor is dis-instructed, the solicitor must retain those documents pending a further order of the court.

iv) If the husband does not have a solicitor the wife’s solicitor must retain the documents, unread, and in sealed files, and must approach the court for directions. 

v) The wife is permitted to rely on her knowledge of the documents to challenge the veracity of the husband’s disclosure in the proceedings. Her knowledge is admissible evidence. For this purpose she can express her recollection to her solicitor, and the solicitor can advise on it. However, if the expression of that recollection involves the revelation of clearly privileged matters then the solicitor must stop the conversation immediately. If things have gone too far, the solicitor will have to consider carefully whether (s)he can continue acting for the wife. It is open to the husband to apply to the court, in the interests of justice, for an order barring the wife from relying on her knowledge in this way.

vi) By the same token, if the wife’s recollection is that the documents clearly show that the husband is unjustifiably dealing with his assets and that there is therefore a clear risk of dissipation to her prejudice then she can inform her solicitor of this. Subject to the point about privilege mentioned above, the solicitor is entitled to give advice on her recollection and can draft an affidavit in support of a freezing application. But if the wife elects to go down this route, she is bound in that affidavit candidly to reveal that her knowledge derives from illegitimately obtained documents, and must explain how she got them. She must do this even if this leads to a civil suit or criminal proceedings. That is the price that she will (potentially) have to pay for making an application based on illegitimately obtained knowledge. Of course, there is no question of the wife being forced to incriminate herself as she has a free choice whether to go down this route.”

In Arbili in 2015, further practical guidance was given:

• • the documents must be returned to their owner
• • the owner’s obligation to then disclose those documents is triggered by that return
• • the spouse who wrongly obtained the documents is entitled to rely on their recollection of their contents.

So start doing that ‘brain training’ now!

If our Family Department can help you, please feel free to call 01206 577676 or email us [email protected]