The author talks about developments in the no-fault divorce process, such as how alternatives such as arbitration, non-court dispute resolution and other channels can be used.

Philippa Dolan (pictured), one of the partners at Collyer Bristow, takes a look at developments in no-fault divorce cases in England and Wales (a different situation applies in Scotland and Northern Ireland.) Divorce is often a subject that those advising HNW individuals must consider, given the sums involved and the potential to destroy years of hard-earned wealth because of a lack of foresight and preparation. 

The editors are pleased to share these insights and invite readers to respond. Remember, these articles are designed to inspire conversations. The usual editorial disclaimers apply. Email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

Before 6 April 2022 the process of securing a divorce in this country was out of step with the real world and often resulted in family solicitors dancing around the truth like Regency couples in a Jane Austen novel. 

By the 2020s it was just a question of going through the motions. If a couple didn’t want to wait two years from separation before getting divorced, the solicitors had to rely on desertion, adultery or, usually, “unreasonable behaviour.” We used bland concepts such as “he didn’t respect my interests” or “she didn’t like my mother.” We encouraged clients to remove references to bad behaviour because it wasn’t going to make any difference to the approach the court adopted when considering money or, probably, children’s arrangements. And it would just have made the negotiations that bit more difficult.  

I don’t think I ever had a desertion petition that was contested (where one of the couple had to leave their door open for two years in the pathetic hope that the other would return). And adultery is…adultery. Gay couples couldn’t even rely on adultery, so had to use unreasonable behaviour if one of them had been unfaithful. It was all very confusing, antiquated and dishonest.

So family lawyers could not have given a warmer welcome to the no-fault legislation. And we are still pleased not to have to jump through all those mad hoops. But the change needs to be kept in perspective. By 2022 contested petitions were virtually a thing of the past anyway and couples getting divorced were arguing about money and children, just as they are today.  

The no-fault process is marginally easier, and more clients are managing to do this themselves. Predictably, the court’s IT has left much to be desired but at last it’s becoming a little more user friendly. And there has been a slight reduction in bitter recriminations with the introduction of the new process. But that’s about it.  

So what are the tips for keeping out of court? Certainly, the court itself provides plenty of incentives as the service is in a very poor state, and that includes some of the court buildings. The High Court is more efficient, and the calibre of the judges is generally higher so, for rich clients, the process may be less grim. Even then, the journey is usually beset with adjournments and no-show judges and it is simply impossible to speak to court staff along the way. A call centre has been set up, but no one can see your case on the screen and your emails get no response. It is time-consuming, and very expensive.

We regularly suggest alternatives to our clients (known in the trade as Non-Court Dispute Resolution). The main options are arbitration, the collaborative process, private Family Dispute Resolutions (FDRs) and mediation.  

Arbitration is a form of private judging. The couple choose the arbitrator (typically a senior barrister or retired judge) and they have the power to make decisions and impose them. Arbitration is the only non-court process that has the power to impose decisions on bullying, dishonest participants and it is growing in popularity. And, importantly, the file won’t be lost and the judge will turn up. 

Another non-court alternative is the collaborative process (the clue’s in the name) and then there are private FDRs. In the latter case, a private judge is chosen by the parties to give an indication as to what they would order if they were dealing with the case at court. The couple can still ignore the views expressed if they don’t like them. These non-court alternatives generally “work” but often because we’re shouting at our clients from the sidelines “Don’t Go to Court. “It’s awful.”  

The most popular is mediation where a trained mediator helps the couple to reach an agreement after employing a range of techniques such as reality testing proposals and providing some carefully crafted information about the approach the court would adopt if the process failed. Information, not advice, is the key.

Finally, there’s a new powerful incentive to avoid court. In their wisdom, the judiciary has decided to allow reporters and legal bloggers into the family court. The names of the cases are published in the court list so the reporters can work out whether it’s worth their while attending. They’re looking for a billionaire, aristocrat or reality TV star whose personal life can be picked over by a prurient public. The names are anonymised in the reporting, but they often leak out. Judges can refuse their attendance but there has to be a good reason (aside from common sense) and the direction of travel is very much open court.  

So calling it “no fault divorce” is all very well but the betrayals, anger, jealousy and heartbreak don’t go away just because the label has changed – and now there’s a risk that it won’t just be the lawyers who get to know your most personal secrets.