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Coming up: No-fault divorce and decision on domestic abuse

Posted on 3 February 2021

Although the Divorce Dissolution and Separation Act 2020 received Royal Assent in June 2020, couples won't be able to benefit from its provisions until it is implemented, likely to be in autumn 2021. Once implemented, the current regime of needing to prove one of five "facts", effectively meaning that parties have to either attribute blame for the breakdown of the marriage, or to wait a minimum of two years, will fall away. Instead, an applicant for divorce will simply be able to submit a statement that the marriage has irretrievably broken down. Proposals for implementation of the new scheme also indicate a more modern approach, with suggested provision for service of a petition to include service by email (alongside a postal notice), something which is likely to be welcomed, given the way people live and communicate today.

 Judgment from the Court of Appeal is also imminently expected in the conjoined appeals of T, B-B, H and H-N, heard by the Court of Appeal over three days from 19 – 21 January 2021. These appeals arose from the treatment by Judges at first instance of allegations of domestic abuse in private law children cases. The abuse complained of ranged from coercive control to marital rape, and in addition to the parties, the court heard submissions from Cafcass, the Association of Lawyers for Children, Families Need Fathers and a number of Women's Groups. The appeals follow the report of the expert panel, Assessing risk of harm to children and parents in private law children cases (the "Harm Panel Report"), published in June 2020, which expressed concern that allegations of abuse raised in children proceedings were being minimised for a number of reasons, including the "pro-contact culture" of the courts.

Barbara Reeves says:

"The provisions of the Divorce, Dissolution and Separation Act 2020, removing the requirement for parties to either attribute blame for the breakdown of the marriage, or wait a minimum of two years, are long overdue. The need to "blame" one party for the breakdown of the marriage risks starting the divorce process on an acrimonious note, which is never helpful in coming to an amicable resolution. Although the Family Court has recognised this for years, encouraging anodyne allegations, there were still instances where parties used the petition as a way of raising grievances. This should shortly be a thing of the past. The proposals to permit service by email are also helpful – particularly in cases involving internationally mobile clients, the most efficient and cost effective way of bringing proceedings to a party's attention is likely to be electronically.

"While the reduction of acrimonious recriminations in divorce proceedings is to be welcomed, where a party's behaviour creates risk to the other party or a child, safety must be a primary consideration. The Harm Panel Report highlighted concerns that, eager to ensure that children maintain a relationship with both of the parents after separation, courts and practitioners have not necessarily taken allegations or findings of domestic abuse seriously enough. Although the Ministry of Justice has announced reforms in light of that report, the appeals in T, B-B, H and H-N will be the first time that guidance has been given by the Court of Appeal on the treatment of allegations of domestic abuse since the appeals in L, V, M and H, decided 20 years ago. Whilst L, V, M and H remains relevant today, it is notable that it refers only to "domestic violence" and does not delve into the nuances of abuse and coercive control that we are much more alive to today. It is hoped that the Court of Appeal will provide guidance on how such allegations should be dealt with, both in terms of ensuring that the court takes a proper approach to any fact-finding exercise, but also in terms of how any further orders or arrangements for children should be dealt with, should abuse be found to have occurred."

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