Resolution started a campaign for the introduction of a no-fault divorce law more than 30 years ago and many involved in the family justice system have been fighting for it ever since. The successful end of the campaign last year meant 2021 was a big year for family law practitioners.

The current law dates back to 1973 and the main argument was that it was outdated, a point of view which has finally been listened to.

Everything will change on April 6 when the new legislation comes into force, incorporating Section 1 of the Divorce, Dissolution and Separation Act 2020 into the current law.

Up until now, couples have had to be separated for two years with each other’s consent, or five years without, failing which they would need to blame the other in order to apply for a divorce. The blame could be assigned through adultery, unreasonable behaviour or desertion.

Now, we have a situation where a couple can approach a court on a joint basis and not blame each other, which will remove the position of Petitioner/Respondent. The intention is that it will assign no blame on either party, with both parties being referred to as the applicants and on an equal footing. Equally, one party to the marriage only can apply for a ‘Divorce Order without blaming the other party, on the basis that the marriage has broken down irretrievably, removing this culture of blame.

The response to the change in the law has really surprised and puzzled me so far this year.

Indeed, we always see a wave of new divorce applications in January. People often think ‘This is it. I am going to do it now’. They may have put it off, perhaps if there are children involved or if there are considerable financial implications, and they eventually take the plunge in the new year.

I expected to see lots of people wait until April but I’ve found the opposite – we are still seeing that the January wave and trends haven’t changed. Most of my clients have said they want to do it now. Only two or three were happy to postpone it until April.

When the change does come in, I think it will be easier for both clients and family law practitioners. We’re not going to need to think about blame and fighting for costs. And from a practical perspective, it’s going to allow clients and practitioners alike to focus on the important issues: the welfare of the children of the family and a fair division of the assets.

Legal professionals are really welcoming the change for the reason that couples will no longer be fighting for no real benefit. This will enable us to focus on the important issues and deal with them as amicably and cost-effectively as possible.

When it comes to issues such as children and money, people find it hard to separate the divorce process from the other issues, for example if one party is accusing the other of unreasonable behaviour. Emotions run high, making it difficult for them to focus on what is important.

Now, we should have a situation where no party is blaming the other and we are all working together. There should be fewer disputes and costs in respect of the divorce are likely to be equal on both sides, so it’s much easier on a human level.

Historically, the party making the application also faces the burden of legal costs, although a claim for costs is available within the divorce suit. So, removing that issue benefits everyone. What is really important in a divorce, in my view, is the wellbeing of a couple’s children and resolving their financial issues.

As legal practitioners, we are so used to dealing with the law as it is. I have been practicing family law since 2007 and campaigners have been trying to change the legislation before I even started practicing. It will be a big change for me, like everyone else, but I don’t anticipate that it will make our practice too different. The main thing will be focusing more energy on children and financial remedies and less energy on the actual basis for the divorce.

I think with less litigation and removing the ‘s/he said, s/he said’ element of the process, we are much more likely to achieve a positive result. I hope that it will result in a less negative experience overall, and I think it should be good for practitioners because, hopefully, when people see a family solicitor, they will associate less negativity with this part of the process.

Sophia Mellor, Prinicpal Associate in the Family Department.

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