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‘Unnecessary’ delay in no fault divorces

The 20-week minimum period for handling new no fault divorces risks slowing the process “unnecessarily”, a law firm has said.

But it added the minimum time rule seemed contrary to that idea.

The Divorce, Dissolution and Separation Act, which received Royal Assent in June, introduced a minimum period of six months from the initial application stage to the granting of a divorce. This includes a minimum period of 20 weeks from the start of proceedings to confirmation to the court that a conditional order of divorce may be made.

According to the Ministry of Justice, the six-month period will offer couples the time to “reflect and turn back, or where reconciliation is not possible agree important arrangements for the future”.

But Katie O’Callaghan, partner at Boodle Hatfield, said: “Most, if not all, divorce lawyers welcome the fact that the ‘no-fault’ element is being introduced but the imposed 20-week delay that comes with it almost flies in the face of that principle, because people have made the difficult decision already to divorce.

“That’s not a decision that, in our experience, clients take lightly. And so to have this 20-week period of so-called ‘reflection’ is almost a stringing out what’s already an unpleasant process, and having that period of reflection once the process is underway - that’s not when people reflect.

“People have already reflected before they come to see a divorce lawyer or before they issue that petition. Most people don’t make that decision lightly.”

Changes under the new law will not come into effect until 2021 to allow “careful implementation of the necessary changes to court, online and paper processes”.

Boodle Hatfield’s warning of unnecessary delays came as its research found a paper-based divorce application took an average of 66 and a half weeks to complete in the first quarter of the year, up from an average of 59.6 weeks last year.

Emily Brand, partner at Boodle Hatfield, said: “For the average divorce, outside of the digital route, to take more than 15 months is staggering”.

The firm said it expected the speed of divorce cases outside the online application system to “slow even further” as a result of lockdown affecting Q2 activity in the Family Courts.

Family court statistics for England and Wales showed 39 per cent of divorce petitions made during the first quarter of this year were made through the digital system.

But Boodle Hatfield said it was “disappointing” that the growing use of the digital system had not in turn resulted in shortening the time taken to complete paper-based divorces.

It said online filing systems should mean judges and lawyers have more time to focus on contested or “otherwise more complex work in this sensitive area of law”.

Ms O’Callaghan added: “The use of the new online divorce portal has definitely helped the current process in speeding up the start to finish time of any divorce.

“We’ve just moved from a paper-based system which is taking, if you’re still in that system, an extremely long time from start to finish, and progress and improvement is being made in terms of speeding up the divorce because the online portal is much more efficient.

“And the worry is that we’re going to almost be taking a retrospective step backwards when this new law comes in.”

This article first appeared in the FT Adviser on 26th August 2020.

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