17 August 2023

No-fault, digital divorce – has it helped or hindered?

No-fault, digital divorce – has it helped or hindered?

Divorce applications have risen by 20% since the change in legislation which introduced the no-fault divorce, according to figures from the Ministry for Justice. Howell Jones’ Katy Osborne, Partner and Head of the Family Team, explores whether the change has been a help or hinder.

Despite the new name suggesting that the process may be easier, many issues continue to arise.

When announced, the Divorce, Dissolution and Separation Act 2020 was viewed as a new era for those wishing to part ways by removing the element of blame. The goal of such legislation was to streamline the process and reduce the conflict whereby previously, the marriage had to have broken down irretrievably and this was to be supported by an accusatory statement or a period of separation.

The updated legislation also introduced the ability to submit a joint divorce application which demonstrates their mutual decision to end their marriage.

The most important changes came to those who experiencing abuse at the hands of their spouse as now victims of such domestic abuse can make an application without concern that it can be formally contested and without the trauma of providing supporting evidence.

Whilst the reforms presented a huge milestone for family law by reducing the emotional burden of the divorce process, one year on the response by those impacted is mixed.

New wave of complication

The other initial benefit of the ‘No Fault Divorce’ is that it is a predominately digital service whereby applications are submitted via an online portal, resulting in a blame-free, cheaper alternative to a previously complicated process.

Obtaining a divorce encompasses more than just formalising the end of the marriage via the Courts, it requires in-depth negotiation about finances, properties, pensions, living arrangements and care of any children.

Without a doubt, the new process provides a much easier route for couples to end the actual marriage but serious issues can arise if the divorce is concluded and the financial elements are ignored. Whilst reaching an agreement between yourselves is a positive step and all may seem amicable, finances cannot be resolved by personal agreement only and as such a Court approved Financial Remedy Order is vital. Failure to obtain such an Order means that both parties can make claims on each other after the marriage itself has ended.

Lack of legal representation may result in one party being left vulnerable and having advantage taken of them because they do not fully comprehend the asset the other person has, or their entitlement to a fair split of these assets. Rushing to finalise a divorce is never recommended and full and frank disclosure of finances throughout the divorce process, appropriate independent legal advice and even Court intervention can help prevent one party being exploited.

One would think that if professional help is sought, that clear and appropriate advice would be given but a recent uptake in online operators with no real expertise in divorce or family matters has resulted in even those with advice being lost in the process. A review of these online legal services is being conducted by The Competition and Markets Authority (CMA) due to a lack of clear regulation. The term ‘quickie’ divorce has been banded around by these digital services since the change in the law, but no such route exists. A divorce will take as long as it takes to complete fully and completely, including the division of finances and the formal ending of the marriage.

The CMA has found that while alternative providers can be innovative and sometimes more cost-effective, it found “misleading claims about both the simplicity of the process and prices” from those offering divorce, leaving consumers “unclear about what they can be helped with or what they are paying for”.  The CMA highlighted “inadequate quality of service, including firms using the wrong forms, entering incorrect details, sending papers to the court late”.

New Deal Breaker

The main focus nowadays during financial negotiations is the value of the matrimonial home as with the rise in house prices, providing funds to ensure each party is housed suitably with sufficient room for them and any children, is an enormous challenge.

Given the change in the financial climate, mortgage rates have become an interesting bargaining chip in reaching a financial conclusion. As interest rates have skyrocketed, the party that may be leaving a long-term low-interest property is left vulnerable and may be able to only afford a property that is not comparable to the others. As such, this party can sometimes negotiate compensation for the higher cost and therefore be awarded a larger part of the overall marital ‘pot’.

Tax relief providing breathing space

In the midst of all the challenges, there is a positive. Since April 2023, there has been a change in the timetable when it comes to Capital Gains Tax for separating couples.

While a couple is together, any transfer or disposal of property can be done with

no loss or gain considered and before the new laws, this relief extended to the first tax year of any separation. Now, parting couples have up to three years from the date they stop cohabiting to make a transfer with no loss or gain and benefit from there being no time limit when the transfer is included in the Court as part of the divorce.

Increasing complexity in financial matters, court delays, and an uncertain financial market means that more often than not, divorces are taking longer to complete despite the ability to formalise the separation more easily online so whilst there is some relief, it is best to enlist professional support from a legitimate firm to ensure the process runs as smoothly as possible.

Howell Jones is an expert divorce solicitor in Surrey. For more information and legal advice, get in contact with our team today

Website content note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

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