Divorce Law - Consideration of the New Act

Mhm Hello and welcome everybody. Nice to welcome you to today's session through Data Law. My name's after Mahmoud. I'm a solicitor and the lecturer and author and today I'm going to be speaking to about the new divorce law and particularly consideration of the new act. So as many of you will know this new legislation Got rollers sent. This is a new divorce dissolution of separation after 2020. It got rollers sent in June 2020. and even though the new legislation was due to be implemented by around September or October 2021, uh recently HMT Cts have confirmed that given the need to ensure that all the regulations and the guidance are together as well as the new forms. They are now looking to implement this On six April 2022. So we've got a little bit of time to get our heads around this and I was of course to get to grips with somebody forthcoming regulations and the guidance as well as the new forms. So what I'm going to be doing is talking to you today over the hour that I've got on going through the act. In terms of the differences between what this act will be providing and what we've currently got. Uh so how will it impact on the current law on divorce? And as you can appreciate this is a must for all family law practitioners, because you need to know about the advice he should be giving. Now, you need to know about the changes, the proposed changes that are coming in and how that will change your practice going forward. I'm also going to be spending some time looking at the development of the online divorce pilot, which of course doesn't tie in uh alongside the proposed changes to the law on divorce. So, we're looking at this as of early July 2021. Okay, Right, so first and foremost, as you'll appreciate, here we Are, in early July 2021, it's now some six months after we finally had Brexit. So we finally left europe, and hence we need to know about what impact that has had in relation to running uh amongst other things, divorce and financial remedy cases. So, you remember last year, when we had the european Union withdrawal Agreement Act, which was passed uh as of 31st of january last year, and that provided for this transitional period. You remember up until 31st of december 2020. So, the effect of that was that there was a transitional period was, we then were able to get to grips with the forthcoming changes as a result of Brexit. Mhm. What it means for us in running divorce cases is that for cases then leading to divorce, dissolution of civil partnership and also financial remedy cases for all new cases lodged on or after one January 2021. There is now the replacement of the references to Brussels to revised with the various existing hague conventions. So there is that variation now to cater for the year. The fact that we've got the references to hate conventions, certainly for Children cases in particular, but also in so far as finance and marital and civil partnership breakdown is concerned. There is now the specific reference to the domicile and much more persons act of 1973 as amended. So just to put this into context, if any of you have still got divorced cases, violence cases that you're dealt with which were lodged Before one January 2021. Then in terms of jurisdiction, the court would have probably had jurisdiction based on either domicile or habitual residents. And this is where if there was that connection with another member state, for example, or it was a case where the parties concerned, we're not domiciled in in Wales, but they were then lodging their case in England Wales and we were commencing the divorce on that basis, then the court would have jurisdiction based on habitual residence or as opposed to dom is on. So this is where we used to rely upon the old section five, subsection two of the domicile and much more obscene exact, which for cases before the turn of this year, were reliant on the brussels to revise the B I R I. E. The european community's matrimonial jurisdiction and Jergments Figures of 2001. Mhm. So what it would mean is that english and welsh court would have jurisdiction either on the basis of them having jurisdiction under cancer regulations. So you're relying upon habitual residents are of either the applicant order respondent or no court of a contracting state or jurisdiction under regulation. And either of them were domiciled in there. I was on a date when the proceedings began. So putting it simply, it would mean that if you've got a wife who is Spanish citizen, she's national of Spain as his husband, they've been in England now for say, yeah, they're quite a perpetual residency. As long as they were habitually resident here for 12 months or more, we would then have jurisdiction. Okay, So what happens then for new cases and large? Well first and foremost, you'll have noticed that there is the new paper divorce application which was amended On 31 December 2020. So those of you who have lodged a paper divorce will have noticed that there was that change some six months ago. And in particular all references to Brussels to revised with an uh deleted and instead of his reference to the 73 act as amended by the European Union regulations. And I put a link here for you which sets out this provision so you can have a look at that in more detail. But also the other provisions is that for cases starting out at the end of the transition period, and therefore for one January 2021, there's now of course, the new jurisdictional views for courts in England and Wales. Uh so that now it's based still on the 73 Act iii section five, Subsection two of the domicile and much more Proceedings Act of 73. But now the amendments to that act by the jurisdiction and judgments, family amendment, etcetera. Eu eggs. Okay, so it's those amendments which for all intents and purposes are very similar to what we had under the old brussels too. But there are some differences. So we can still assume jurisdiction based upon domicile sort of petitioners. Domicile in Wales. The respondents domiciled in Wales or the court has jurisdiction on a residual basis in the case of same sex couples. So we can now rely upon soul domicile divided her husband or the wife, which previously we couldn't do so. Okay. Right, let's now, just before we look at the new act less than see what other developments that have been in so far as the position with the online divorce and also the development in so far as the practice directions are concerned. So you'll be familiar with the fact that uh we we've had certainly for the last three years now, almost for four years actually, the position with the online pilots with a view to then moving towards online divorce and dissolution of civil partnership. And even though at first as you know that the online system was only available for litigants in person. Over the last few years, we've slowly but steadily seen that there's been uh the slow migration of being able to deal with online divorce by professionals as well. And initially for those lawyers acting for the applicant, but now also lawyers also being able to act for a respondent as well and following the case right through through to decree absolute or final order. So one of the key practice directions we had previously, some of you will remember was practice direction 36 E. And this was the next stage of the pilot for the online divorce service. And this enabled applications to be completed submitted online by litigants in person. The forms could be uploaded and as far as lawyers were concerned, there were various certainly pilots attempts at trying to enable this facility for lawyers also. So p. G 36 C was replaced. It was then replaced by Practice direction 36 hour, which was the next stage of the development of the online system. So this then replaced P. G 36 C as we knew it and dis contained four new features firstly to enable to respond to correspondent to a divorce to finally acknowledge even a service online. So that became available, secondly, to allow the applicant to apply for decree Nisei online, so that became available then to enable the applicant to give notice for the decree Nice, I'd be made absolute online. So therefore that was provisions. And finally, to allow for the service of the orders under documents via the online system rather than hard copies. So you can see slowly but steadily. The aim was to move more gradually towards the online system and hence the current pilot pd 36 L. Provides for a lot of that going forward Now. With that in mind. Where then are we now currently as of the position went online, divorce and how list and time with the new act? Well, the current pilots can allow legal professionals of course to make applications for divorce online and progressed that through to decree absolute on behalf of clients. So those of you who have done this, as you know, you will have already progressed that process. You will have active for the applicant in progress in the divorce through online from beginning to end. And also some of you will have been acting for the respondent as well in assisting them. There are of course more changes coming out. There are still some glitches in the system which some of you will have noticed. Uh Sometimes for example, some of you may have found that when you have submitted information um it's um it's not necessarily going to enable all information to be um inserted the way it should end a different populated categories. So sometimes you may have to repeat information. Sometimes you may have to put it again from scratch. So there are some issues still being dealt with of course. But the important thing is we're getting there, this this has been something that's been in the pipeline for some years and slowly over the last three years or so. The online system has progressively managed to remedy a lot of the issues that we were facing. The online system. Then effectively allows law firms to then managed the account on the system. It allows you to view all your divorce applications that you're acting for the client on in a single dashboard, which is fantastic because it avoids you having to contact hmm cts directly for an update. You can actually view The progress of the divorce is online in that way. And as you know, other areas of family law, moving very much towards digitalization as well as some of you will be familiar with the C- 100 in Children cases to see one or no in public law cases as you know, the financial remedy proceedings, Those are also now being piloted online as well, aren't they? Some of you who do other areas of law. Probate applications for example, you know that since november 2020 many probate applications are now expect to be done online as well. So we're definitely moving towards greater digitalization in all areas of law in that regard. And if you're acting for the respondent on a case for marital breakdown or dissolution of a civil partnership, uh for case that's been initiated digitally, then the lawyer would need to email the divorce service at H. M. C. T. S. And they will then enable you to complete the acknowledgment on behalf to respondent online as well. So again, you can see the the facility that's available for that. So just somebody particular aspects of dealing with online divorce, some of you will have noticed that there are obvious advantages, you know, having to send in the documents in the way we used to. So when it comes to marriage or civil partnership certificate respectively, what you're doing is scanning that in all four corners of the document would have to be scanned in and then you're submitting that online. So you're not actually having to do away with having to submit the original certified copy. Of course you are recommended to keep the original certified copy. Should the court have queries? Should I need you to send it in in in in a case where they perhaps need to see the original or certified copy? For example the online version is not as clear as it should be or there are issues with it. Um So for most cases you wouldn't need to submit a paper copy of the divorce, sorry, of the marriage or civil partnership certificate or indeed of the of the other documents in that regard. It's also possible for you to complete the form E X 1 60. That's the application fees exemption remission online. So again, no need for you to send in the hard copy of that and when you have completed The X 160 and if your client his fees exempt, then of course that will give you then a code which that enables you to import that for when you're submitting your online application. So again, it's really doing away with a lot of the paper that we were previously accustomed to using, so you'll get a cold to then confirm that inclined his figures exempt when you're submitting the application online. Now this is where if you want to get an up to date account of where we currently are in so far as online divorce services, then the one place to obviously look at is the H M C T. S website. So I put a link there for you and the last update Was as of 8th of June 2021, I think the prior to that it was in May and in prior to that I think it was eight February if I remember so as as updates are being handled and as key changes are being introduced then obviously this website will then continue to be updated and applauded with that. And this sets out very very comprehensively the guides which will help you then in terms of the steps that are needed to use the online services for divorce on my H. M. C. T. S. So it covers amongst other things submitting the case. I had a submit a divorce application literally goes through one slide after another on what you should be doing. It sets out information about how you're going to be requesting personal service online and what if you need to amend your divorce application online. And it provides you with some guidance on that and it goes further. It even looks at the position with deems and dispensation of service applications as well. So deemed and dispensation dispensation as you know where you may want to use that say on five year separation where you're have used extensive efforts to try and trace identified to respond and have not been able to do so when you're applying to according to dispense with service of the divorce documentation upon them. So that's where that may well be relevant. And also you're looking at alternative service journey and general applications that may be needed in that regard. If you're fully respondent then the guidance helps you would completely acknowledgement service responding to it for represented respondents. And also if you're fully applicant applying for ni side to be made absolute uh and also clarification and amending any of the petitions there. So it's given you all of these various user guides insofar as these different stages of concerns are very, very useful to have a look at that. And some of the aspects then, are these when you are accessing Mendy online platform is necessary to use a solicitor portal as opposed to cities import or given that you're applying as a professional and accessing this as a profession on behalf of the client, you'll be able to manage your organization from the decide here and you'll be able to access the online divorce applications like say, you'll see all of these on that single dashboard to see what progress has been made and where, where that particular cases. So in turn, then you can keep your client fully appraised of the progress made in so far as the online divorce. And some of the other practical things to bear in mind is this if if you are pursuing a divorce A based on behavior, so you're using section 12 B. Of M. C. A. Then when you are importing the behavioral difficulties, as you know on the paper application, you would have been inserting on the in the box, which is about a third of a box on the paper format. Or you can expand that if dad needs being gone to a second sheet. But for the purposes of the online divorce, this information should be entered into the main body of the divorce application and not uploaded as a separate document. So that's one of the things that the core service have noticed that some lawyers actually sending in the particulars as a separate document but actually got to be typing it into the main body of the divorce application. Otherwise the respondents simply can't see what you've sent there because that bit there won't have been sent to. So of course the respondent needs to see what you've typed there and then to be able to respond to the allegations in that regard when they are completing the acknowledgement of service. Uh If there are documents associated with a case then you are asked to then upload those directly to the online platform and you've got the email there where that needs to be done. So there's that provision there as well and the former needs to be used using the correct PBA number associated with a firm and you will need to be registered with the with my H. M. C. T. S when you do wish to use the system when you've got the the link there which allows you to become registered with the account. So bear that in mind also. Now in terms of the documents then, so as I mentioned, the online system does allow you to upload a copy of marriage or civil partnerships, difficult to avoid delay. So that's very good and therefore avoids having to send in the original or certified copy. one of the aspects of the online system which has been a problem, uh and it appears that this may have resolved itself now to extend. Is this as you know on the paper checks, paper applications? Sometimes if you're safe for the applicant, you may sometimes wish to divorce somebody say on the your client may wish to divorce the other party based on Sadie adultery behavior. But your client may take the view. Look, I only want them to pay the costs should they defend the application? If they don't, I'm happy to pay the costs of the divorce sort of court fee, My lawyer's fees, I'm prepared to pay that. Um So we would often put that on the paper application would say on the end of the form would say that the respondent to pay the cost of this application should the respondent defend the application or dispute. Uh The application we may put that sometimes but the pilot hasn't quite allowed for this to be done in the same way on it because it's still uh one of the matters which the technology hasn't allowed for us to vary the provision for costs. So it's only kind of allowed you to either claim costs or not. Uh There is however, now when you go into the website at my chase M. T. T. S. Website does say that there is now an additional box added for the solicitor to ask for the variation in relation to costs. Such as only claim costs if the divorces defend or or declaiming a percentage of costs. So you can see that we're almost there in terms of being able to make sure that we can do online what we have hitherto been able to do very easily by way of the paper exercise as well. So in terms of uploading the marriage certificate as I mentioned, uh there is an expectation then to applaud and of the mouse certificate. So we need to make sure that you keep the original. Should that be requested by the court during the proceedings or four corners of the marriage certificate must be seen their image as I mentioned. And it's also possible for you to upload any other supporting documents as well. So for example, if they got married in a country other than England Wales where english and Welsh was not respectively the first language and he loved to get the most difficult or so, a partnership certificate translated so that translated copy of a non english, non welsh most difficult can be uploaded. A change of name. D does he know if your client is say the uh the wife for example, she's now gone back to a maiden name which is different to the name which is a maiden name on the certificate. Then there is a climate for her to send in a copy of a change of name document to confirm that that's done. And you can upload a change of name deed or the declaration in that regard. And also if there's any other supporting documentation referred to within the application and you can upload and send that to the court as well that way right. What's the position with payment or payment is done by way of the payment by a counter P. B. A. On online reference number in that regard. And the fee the payment is still £550 unless the client, his fees exempt or the X 1 60 allows the court then too consider the incoming outgoing so that they may not have to pay the four to £550. So this amount will be debited from the account prior to the application being issued in that regard. Okay. So you can see the online divorces Certainly progressing swiftly and it's a lot further down than what it has been in that regard. And my understanding is that for the rest of this year, for the rest of 2021, what the court service wants to do is to make sure that the online system is working as fully and efficiently as it possibly can. Of course it's then going to need to tie in with the implementation of the new act, the divorce and dissolution of separation act, so that all References to the five facts of course, will be deleted in that regard. So the aim is to get the system up and running this year, and then of course, ensure that it's accordingly amended in line with the new forms and all sort of knew provision so far as the deletion of the five facts. So that then brings me specifically onto the position with the new act uh in particular. And really what I wanted to discuss with you first and foremost, is what was the impetus behind us? What was what was the need to change the law as we know it uh and and and therefore to bring in the so called non fault divorce uh in that regard. And one of the things therefore, to bear in mind was that the case which really started this and and set out the necessity for this was uh the omens case. Many of you will be familiar with. This was The 2018 Supreme Court Decision. And this was the case whereby uh the wife genuine, she sought to uh divorce her husband uh and she sought to divorce Husband on the base of section 1 to be I his behavior. And at first her lawyers did what really any other reason what lawyer would do in accordance with the Family Law protocol. And also the guidance from resolution, which is to set out three or four key facts uh and then to send a copy of those to the proposed respondent with a view to sing if an agreement could be reached, Whether we have been lodging the divorce application at court and enabling to go through on that basis. So that was what was done. So her lawyers put together about three or four instance uh husbands behavior, but the husband decided to contest. So he decided to contest the decision for divorce. His view was that the marriage has not broken and irretrievably, either due to the behavior that his wife alleged against him or for any other reason. So he he didn't wish to cross petition. So it wasn't that he was defending and he was cross petition. He said that the marriage is broken and irretrievably, but due to say his wife's behavior. Otherwise, he was, he was simply saying that the marriage has not broken that territory really for any reason. So he fought an answer With that in mind which as you know, he has to do with in 29 days of service upon him of the divorce documentation. Now that's where the wife was then given permission to follow a supplemental petition. And this is where some of you will be familiar with the fact that the wife then filed a supplemental petition where she put together some 27 allegations and many of those allegations related to behavior amounting to her husband belittling her, for example, putting her down, criticizing her, embarrassing her in front of other people. One of the allegations, for example, was where they were at at the airport, for example, and it was alleged that uh the husband looked at a gift for their housekeeper which he asked his wife to ever look at, but she didn't pick up that gift and picked up something else, which he didn't agree with him. He shouted at her, which embarrassed in front of other people in the shop and also the type of things that the wife put in the application, but the application was contested and in fact at first instance and the court of appeal decided not to be satisfied. That the behavior was such that it would be unreasonable to expect the respondent, the petition, it live with the respondent. So uh the then President Family division, Sir James Mumbi in particular emphasized that uh the behavior that was referred to wasn't in itself sufficient to satisfy the court that it would be satisfied. The criteria in the section one to be of the M. C. A. But his lordship also said that there wasn't enough impetus at that stage to suggest that we should change the law to bring a non fold. In fact The statistics that his lordship referred to at that state said that only about two or 3% of cases per year which were defended. Many divorces went through many divorces based on behavior parties were not contesting and if there for those who went through and therefore there wasn't enough impetus behind changing the law to bring in non fold. But that's what led to the decision then being taken even further to the Supreme Court. So this is where the always and always case went all the way to the Supreme Court. And you can see here that judgment handed down by Lord Wilson with whom Lord ha jin, Lady Black agreed Lady Hell uh also handed down part of the judgment and what her ladyship said here was this. She said it's not for the court to change the law laid down by Parliament. The course of all his only to interpret and apply the law that parliament has made. And one of the things that maybe Hell did say in Owens was that we need to appreciate that when it comes to a divorce, we need to almost correlate this to an employment tribunal type of case, in the sense that one instant in itself may not in itself be sufficiently serious. But then what you do is you accumulate the behavior so you look at what's happened one case, then you add to it to another, then another behavior and the behavior. And cumulatively, that could be enough to then make that person think that enough is enough. I'm going to, for example, leave my job and I'm going to I'm going to sue for constructive dismissal, unfair dismissal, for example. And in a way it's the same with divorce cases, we have one instance of behavior in itself may not be sufficient, but when you look at it cumulatively, that could be sufficient. Two, satisfied the court that the response behaviors such as it is in such a way that is such that the respondent, the petitioner cannot reasonably be expected to live with the respondent. But this is where paragraph 40 six of a judgment her ladyship did say that it's not for the courts to change the law laid down by parliament. Like I say, it's for them to apply. The law is for the parliament to make the law. But that was really the impetus behind senior judges, you know, as high as the Supreme Court, making it very clear that it was perhaps a bad time, that we saw a significant change in the way in which divorce law was dealt with in England and Wales. And this is where expectations are well, it was reasonable to expect one person to live with another. In light of the way the latter had behaved had changed over the last 47 years since the divorce reformat came to force. Now the divorce reform act of 69 has brought in and in the five year separation and hence we had the Matterhorn claws act of 1973 which allowed Section 12 E. But some 47, years later, we were in a different situation to what we were previously and therefore it was perhaps about time that we saw a significant change in the law on divorce. Now, some of you may remember some 20 odd years ago. I remember in the year 2000 there was an attempt at bringing in non fault divorce at that stage. I remember reading about it at the time where some of the pilots were that if say husband came to you and he wanted a divorce wife, he would have to see his lawyer uh and he would be given information. So it would be a kind of information meeting, Then he would have to cool off for a period of time, so to speak. For a period of three months to go away and reflect on what the lawyers advised him about what the consequences are. And if you still wish to pursue a divorce, then he would find what's called a statement of marital breakdown. And then what would happen is he would get his divorce again, it would be non fault. So you wouldn't have to give a reason for the breakdown except he claimed that the marriage has broken down irretrievably. But then what would happen is between 9 to 15 months later, once the finances were resolved, once the arrangements for the Children were resolved, Uh, he would have think effectively get his divorce order. So that was the idea then some 20 odd years ago. But sadly, the pilots just really take off at all and there wasn't enough uh commitment by by the general public towards that. So That idea was abandoned, but some 20 odd years later, like I say, there was the further attempt at bringing in non fault and the way the government dealt with this is some of you will remember that there was a consultation that was is sent out which ended on 10th of december 2018. Saw that of course parties could then send in, people can then send in their views as to what they felt the new law should look like. And ultimately, following the receiving of the consultation responses, the parliament decided then to put forward the divorce dissolution separation bill of 2019. And uh the bill then obviously went through various stages of the House of Commons and has laws and then royal assent and it got roller sent in June 2020 and hence became known as a divorce dissolution and separation act of 2020. Now, in so far as this new legislation is concerned. As I mentioned earlier, it was due to be fully implemented around september October 2021, but partially I would suggest you to Covid, but also because the online divorce is still being progress. As I mentioned earlier and of course there's a new guide. There's going to be new guidance, there's going to be new sets of regulations and it's going to be the new sets of forms as well. Um It was really felt that it was perhaps a bit too optimistic to expect all of this to being um Decances of 2021 And therefore uh it's now been announced that the new provisions will come into play on six April 2022 with everything going live as at that date. So in readiness for that, we need to know what we should be doing now of course, and what the changes are going to be. So, the fundamental difference between what we have now and what they will be in april next year is there will be now the ending of default arguments. So at the moment, as you know, we can rely upon section one to a behavior, section one to be behavior. So we want to weigh which is Adultery 1 to be, which is behaviour one to see which is desertion. Those four elements will go. The separation elements for personalization. Again, for personal Section one to D I. E. Two year separation would consent and the separation element of section 12 E five year separation will also go. So in fact, all the five facts will be removed entirely and they will still remain the one ground for divorce, which is that the marriage has broken and irretrievably. So that provision will still remain okay. So one would still need to lodge any divorce or dissolution of civil partnership on the basis that they are claiming that the marriage has broken down irretrievably. Blood side of five facts will be entirely removed. The other big difference, which I'll talk to you about in more detail shortly, is about the fact that parties will be able to make a joint statement. So it won't be that husbands divorcing wife or wife is divorcing husband, They will both be able to declare that the marriage has broken down irretrievably. And that will I would suggest take away almost the kind of power argument that he's divorced her or she divorced him. They jointly have come to that decision. So, I think that's a very fantastic innovation that's coming in. And the other point is it will no longer be possible to contest the decision for divorce. So you won't have cases like coins and Owens decided in the same way again. So if wife decides to end the marriage with her husband for whatever reason, you know, whether it's behavior, adultery, desertion, separation, irreconcilable differences, which has the noise is an argument that many clients sometimes raised when they come and see you whatever her reason is. However, um, uh legitimate or otherwise, it maybe she wants to end the marriage. He will not be able to contest the decision for divorce in that regard. So you will see a major decline in the number of cases where people will uh seek to defend a divorce on the basis that although they are saying that the marriage has broken down irretrievably, there may say it's not down to my fault is down to her fault. For example. So the idea of cross petitioning will go in that regard. Uh The idea of defending a divorce on the base that the marriage has not broken and irretrievably as in the Owens case will will therefore go, there will be situations where you will still be able to dispute and there will be situations where you will still be able to dispute the find lord of being pronounced. And I'll give you the reasons for that shortly. Now it's going to be a minimum period of 20 weeks from the start of seniors to obtain the conditional or conditional order is a term that civil partners uh dissolution of civil partnership we use already, which is the equivalent of the decree Nice I but that term will now be used for married persons as well. So conditional order will fully replace the term decree Nice I and for civil partners, we used the word final order to refer to decree absolute. And that term final order would now also apply to married persons as well. So decree Nice, I decree absolute will be entirely replaced with the words conditional order and find lord in that regard. There's going to be a minimum period of 20 weeks from the start up proceedings to obtaining a conditional order. Okay? So you're going to be having those Uh effectively five months and that will be necessary to enable the parties of course, to continue to negotiate and enable matters relationships, service and responses of acknowledgement and following the case through, You still have to wait 12 months to commence divorce proceedings. So what we've currently got on the section three subsection one of them, MCA 1973 will remain under the new constituted law. So the fact that you will not be able to commence divorce proceedings for the first one months will remain. You still be able to pursue a decree of nullity of course, In the 1st 12 Months or even afterwards. If needs be um judicial separation in the case of married persons and separation in the case of civil partners will remain and therefore you'll be able to go for judicial separation of course, even before the 12 months is up insofar as going for a divorce, There's still going to be like a retention of six weeks between the conditional order and the final order. So that's six weeks period will remain also. So you consider major major difference is Going to put a five facts will be removed as you can see. So the fire facts will completely go. People will be able to make a joint statement. You won't be able to contest the decision for divorce anymore. There's going to put a 20 week period from lodging, issuing of your divorce too, obtained a conditional order. Okay? So that was going to be the major changes like say this was scheduled for later on this year, is now put back to 6th of April 2022. So let's go through this a bit more detail than shall we saw what the accident provides for. Is this subject to section three either both of the parties to marriage, then we'll be able to apply for a court for divorce orders. So that's a term that will be using this in a case, a married person. So divorce order which dissolves the marriage on the ground that the marriage has broken down irretrievably. So when one lodges the divorce application then, so this will be say husband or wife lodging the application or in the case of a same sex marriage. Either party there of course then the application and of course no doubt there will be a new form for that will need to be accompanied by a statement either by the applicant or applicants that the marriage has broken down irretrievably. Now what do we mean by applicant to applicants? Will applicant of course will be where it will be a soul applications or say wife is divorcing husband. But remember you have applicants as well where you will now be able to make a joint application. So if husband wife both between themselves agree that the marriage has broken down irretrievably, then it was possible for both of them did a lot of divorce application and for them then to filed a statement as applicants stating that the marriage has broken and irretrievably. So. So it won't be that he'll be responding to her application. They're both will be regarded applicants in a case of a joint application, okay? And of course dealing with the application, they must then take this statement. Either the sole applicant or joint applicants, they would need to take that statement to be conclusive evidence that the marriage has broken and irretrievably and make a divorce order. So that's the point that I said earlier, you won't have cases like coins decided in the same way where for example, the husband may say that I am contesting the decision for the divorce. I'm contesting that the decision for the divorce. He that simply will not be possible anymore. But remember, there will be a provision for disputing the divorce, another reasons, and I'll take you through that shortly. So with a divorce order itself in the first instance, it will be a conditional order. Okay? And then it cannot be made final for a period of six weeks from the obtaining of that. So this will very much time with what we've got at the moment anyway, in so far as the position with the six weeks gap between decree Nisei and decree absolute. Now, this is the other provisions, this the other provisions and that you need to be familiar with the cheese. Is it going to be possible uh to uh dispute the divorce? And also uh is there going to be a need for some kind of a stamped in support? And here they will. So what will happen is this, let's say you're for wife and she's large, their divorce application would have stepped in support as we mentioned, okay. Where she is claiming that the marriage has broken down irretrievably. So she's done that. Let's assume now the court cannot grant that conditional or dry either what we now currently no as a decree Nisei unless in the case of an application that's a proceed by one party, she has confirmed to the court that they wish the application continue. So the way I read that is there will be the equivalent of a statement in support. Now at the moment you've got five different types of support. Each one which corresponds to each of the five facts. But of course now because there will be the replacement of the five facts, it's likely that there will be effectively in the case of um one party to marriage doing a soul application. It's I would have thought it's going to be the case that there will be just that one application in support. But remember in the case of an application which is jointly then they both are going to have to confirm that the wish for the application to continue. So they both have To provide that confirmation possibly by doing this statement in support that they wish for the match to proceed. And therefore the court won't be able to grant the conditional order unless in the case of a soul application, a person has confirmed they wanted to continue in the case of joint application to both confirmed that the wish for the application to continue and the court won't be in a position to accept that confirmation for a period of 20 weeks from the start of proceeding. So you're going to see there's going to be that gap of five months before they can do that. Tonight will be very interesting to see how um that For five month period will be used. You can visit situations where we will be using that time to continue to negotiate in the finances and addressing matters relating to the Children. For example. Also at that time of course will be used for the purpose of dealing with issues of a service and non service and also dealing with Acknowledgments that it's going to be those issues as well. Of course during that time which would need to be utilized. What's the position we're done with judicial separation? But this is a section 17 of the M. C. A. That is going to be amended so that either both of them will be able to apply to the court for an order for judicial separation uh which provides them for the separation of the parties. So this will either be um Soul application, a joint application as well. So just like a divorce, you'll be able to do sole or joint application for Js as well in the same way and again you'll be doing a statement in support or in this way this will never what we will have for divorces. And of course this will also be applicable for civil partners as well. In terms of the separation that civil partners may well seek. So you've got the provisions under section 40 for the civil partnership Act 2000 and four, so that in the case of civil partners who seek to apply to dissolve this civil partnership again, you're going to need to have a statement by the applicant or applicants uh stating that the civil partnership has broken down irretrievably. And again the court would see that as conclusive, so in this way mirrors the position with a marriage that is being dissolved and in terms of nullity applications where you're seeking a degree of knowledge in The section 11 or 12 of the m. c. a. 1970 300 basis that the marriage is void, avoidable or presumption of death order under The presumption of death Act of 2013. In the first instance, if one is going for degree of knowledge or presumption of death order in the first instance, the audio get will be a condition order and then this cannot be made final before the end of the prescribed period. And the prescribed period for the purpose of nullity in this regard will be that six weeks period again. So if, for example, I'm acting for a client where we're seeking a decree of nullity on the basis that they were forced into the marriage. For example, then in the first instance, then we'll obtain a conditional order and then we'll have to wait that six weeks period before we can apply for that to be made final. So there will be provision for that as well going forward. Now, as I mentioned earlier, we need to think about the fact that one will no longer be able to contest the decision for divorce as we said. But there are still provisions which will be available in so far as dealing with special protections and in terms of disputing the divorce or the dissolution of the civil partnership order, Js. Or the not to take. And the main provisions I wanted to pick up on here is the position that we've currently got with sections five and section 10 of the M. C. A. In a section five, you remember of the M. C. A. Is relevant where if somebody is divorcing another person Based on five year separation, then the respondent can raise the argument that they will suffer grave hardship or Are the hardship? What's wrong in all the circumstances were allowed to allow the divorce to go through? So they will suffer great financial hardship. Or the hardship was wrong in all the circumstances to allow the divorce to go through. And in section 10. Remember is where the person is putting in that defense in terms of the sometimes the two year separation, sometimes a five year separation fact where they are claiming that uh this person is divorcing your client and your client is putting in a defense to say that the court should not be allowed to divorce to be concluded until such time as the other person has made a reasonable provision for the others finances or the court is satisfied idea arrangements they are making for the finances are reasonable. Now, these provisions are such that Section five will actually is now repealed. So the grave financial or other hardship points wrong in all the circumstances that provision has now been repealed, so that will no longer exist under a new law. And also a section for which is a divorce not precluded by previous separate judicial separation. That provision will also has also now been repealed, But in so far as the section 10 is concerned, remember, the one where uh one would put this in to claim that the divorce should not be allowed to be concluded until such time as the other person has made a provision financially or the court is satisfied with the arrangements down making that provision will remain or or be in a newly constituted format. So this is definitely the amendment that are provided for here where the provisions here provider on an application for a divorce order whereby a conditional order has been made. So you've got the kind of nice i stage and the conditioner order is made in favor of one party to a marriage or it's made in favor of both parties to marriage, but one of them has since withdrawn from the application. So it's going to be there. And here in this situation, if the respondent has applied to call for consideration of sub subsection for your their financial position after the divorce, so that's where this will be applicable. Okay? So what it would mean is this let's say husband is divorcing wife. Remember you won't need to use any of the five facts anymore. He's divorcing his wife. So after 20 year marriage, for example, she has been the homemaker, she's been she sacrificed her career to let him excel. She's been bringing up the Children, she's let him excel, she's highly dependent upon him financially. And now he's divorcing her for no good reason. Although like I said that you wouldn't need to establish the fact anymore, but he's divorcing her, She's done nothing wrong. It doesn't need a consent, as we said, because you won't have to definitive decision for divorce anymore. Now, in that situation, she will be able to put in this argument if necessary, of course. Which is uh this is one whereby the court like say is considering his application, is done the statement in support to obtain the conditional order. And this is where she could then now applies the respondent for consideration of her financial position after the divorce. So what she will be arguing is in making this determination. She is invited to court to take into account her age, her health conduct turning capacity, resource and financial obligations of each of them to marriage and the financial position of her as the respondent and the effect of that are likely to be after the death of the applicants. Should that person die first? Effectively, what she's asking the court to do is to take into account her and his financial position, both now and also in the future in deciding whether not to enabled a conditional order to be behind it or not. And you Can see this is effectively therefore the newly constituted section 10 as we currently know it at the moment. So this will be a factor that people will be able to raise if necessary. Okay, a link with that as you know, we've also got the position under existing legislation insofar as section 10 of the section 10 A. Of the M. C. Is concerned, which is in relation to the religious marriage so that we've got a divorce. Religious marriage X. Order. If for example, you are dealing and handling a divorce for, say wife who is uh is jewish husband and wife are jewish and they are orthodox jewish denomination. And wife is saying to you, husband is divorcing her, say on say on two year separation or five year separation. Uh And her concern is that even though he's divorcing her for which he doesn't need a consent. The problem is that if he doesn't consent to the religious divorce and obtaining up to get the jewish divorce document, it will cause her major difficulties within the jewish community. Because under orthodox orthodox jewish community, he'll be still married. Under jewish law, husband doesn't consent. A jewish divorce, which would mean that um if you was to go and remarry in the future, which on the english martial law would be valid, her second husband would be such. That under jewish law, she would be regarded still married. And therefore she would be treated as as as an adulteress and any Children she was to have with her second husband were to be treated as being moms is which in turn would mean that if in the future they were to marry, they could only marry in the community. Another person who is also a mom's a So you can so you can see the major difficulties it could cause wife and indeed any Children of any subsequent marriage if the religious divorce does not take place. So, to help the wife in that situation, as many of you will know you will have been doing under the divorce religious marriage act is that if you were acting for wife, we would have only gone as far as obtained a decree. Nice site and you would have paused at that stage to enable her to obtain a religious divorce. And then applied for nicety to be made absolute. Or if you were acting for her uh as a respondent and husband was divorcing her that you would have put in the section 10, a defense to prevent the divorced from going through until such time as the religious divorce was handed down. Now, this provision under the act, it appears will remain because there is still the reference to changing the terms decree nice site to conditional orders. As far as uh the act goes and subject obviously to what the regulations and the the new guidance will say this provision will still be made available under the new provisions. The final part of what I wanted to discuss with you today is just to go through a little bit of elements of the family procedures committee consultation on the draft changes which were as of March this year. So I thought I'd be quite useful to go through these with you. Obviously these consultation responses are in and the Family procedure committee are currently going through these, but it's quite helpful to know what kind of things they were thinking, which in turn helps you to understand going forward what the forthcoming changes are going to be. So I've summarized some of these and I've also taken somebody elements of this from what the committee is currently providing for. So one of the things the committee is of course provided for is the fact that implementing The 2020 Act will require a large number of Substance from Consequential Amendments to Part six and 7 of the FPR 2010. Part seven, as you know, is the provision which relates to marital and civil partnership uh dissolution Orders, and part six, which covers a lot of the elements related to service in particular. So it would be quite substantial changes to that. And in due course then there will be changes also to the accompanying practice directions. In so far as these are concerned, the committee talks very much about what we mean by disputed Case in paragraph 19. And as I mentioned earlier, the new law uh will be such. That respondents will no longer have the ability to defend a divorce or dissolution application of disputed facts or you won't have the kind of uh uh the always cut type scenario where somebody is defending a divorce in terms of the decision for divorce in that regard. Okay. And and the committee wants a more neutral tone to be used rather than the word defend. I want to use the word dispute In that regard. And you will be able to still dispute the decision for divorce in a limited number of cases. And those situations are these these are set out within the new proposal 7.13 b. Which is where say the respondent files an answer, an answer will still be found dispute in the village of subsistence sort of marriage or civil partnerships. So they may actually be arguing that the marriage doesn't even exist. So it may be that they're relying upon the factors under section 11 or section 12 the M. C. A. So the disputing the validity of the marriage for example. Or they are disputing the jurisdiction of the court to entertain the proceedings and that has not been struck out for example. So it could be weird. There's a question mark as to whether the english welsh courts even have jurisdiction that's based on what I discussed with you earlier, uh where we talked about habitual residence and domicile. So you may be disputing the jurisdictional issue and that's where you will be able to dispute um divorce in terms of whether it can then be proceeded with or not, or the response has filed an application for a matrimonial office of a partnership order in accordance to the foods and neither party's application that's been disposed of and which no order has been made. So when would that be relevant? Well, the situation would be this, it could be where, say the applicants, let's say for argument's sake, is the wife who has launched her divorce, okay. So she's lodged her divorce here in England and Wales, let's say okay, but she hasn't pursued it, so she's lodged an application, she hasn't progressed it, okay. And then that's where the respondent has now launched his divorce and he he wishes for that to be progressed. So this is a situation whereby he's lodged his own application for marriage or civil partnership in accordance with the rules and his argument is going to be that that should really follow suit now because the wife, because she lost the application first and she has not progressed, it should effectively be struck out. So this is where he may then be able to dispute on that basis. So that's the that's the thinking behind that. Now what's the position with costs? So this is where paragraph 15 of the of the committee's uh provisions on what the committee is providing for. Is this? They're saying that they don't anticipate any major changes in relation to position would cost, in respect of these applications. The existing movements would therefore continue to apply. And they are saying however, that there might be a need for further consultation once the new act has been embedded in. Now, one of the comments that I suppose wish to make here was this um because we're going to be now bringing in unfold and therefore because you won't be able to contest the decision for divorce, and what kind of situations would you be claiming costs? Because as you know, at the moment when you're feeling in a divorce application for clients, you may say that the respondent shall pay the costs of this application. Should they defend? Uh or should they not return the acknowledgement service maybe within a certain period of time? So, uh I would have thought that people would still maybe claim costs where the applicant is seeking cost based on their means. They are saying I simply cannot afford to pay the four costs or where they are suggesting that the costs are shared equally or in some other proportion. What it might say I do want to respond to pay the costs should they not return the acknowledgment within a certain period of time, for example. So it may still be situations where costs are sought even though we are going to be having non fault in that regard now in terms of service within the jurisdiction, should there be a change here? And this is where the committee are saying that there's no time limit at the moment, of course, on service of applications for marriage or civil partnership border. So that's the current position, as you know, and one of the concerns the committee did have is what would be a position if an applicant were to delay service either deliberately or inadvertently. Um and if they are doing that, then that 20 weeks many one time then has has actually been utilized. What's to happen here? Well, what the committee was saying is that would be concerned if the respondent was to delay The 20 week period by evading or even frustrating service. So with that in mind, what they are saying is that the 20 week period isn't starting from when the acknowledgement of service has been returned by the respond, but that will actually start from when the divorce application has been issued. But of course, so that's where the 26-20 week period starts and therefore whether the respondent delays deliberately otherwise in frustrating service and not wouldn't really have an impact on that. Um Having said that, what the act also is providing for is to enable the court to shorten the period in a particular case. Uh Just like we've got the moment where you can shorten the period in terms of the six weeks you got to wait from decree Nice, I decree Absolutely, there's good reason you can apply to expedite. So the act does Um give the court doesn't give the court the power to extend the 20 week minimum period, but it will be possible to shorten that time. And the example I suppose I was thinking of is this the under new Provisions, there'll be initially that initial period of 20 weeks from your lodging the application again conditional order. And then this is six weeks from conditional order to getting final order. So there's a 26 weeks there. But when would you apply to shorten The 20 weeks? And I suppose in my situation, my situation I was thinking of is where let's say you have logical divorce. Both of them have managed to resolve the finances for example, and they're wanting to judge to endorse the financial consent order as quickly as possible. So that of course it could be implemented as soon as possible upon conditional order and and final order. So that's where you may find. I would suggest that there may well be a joint application by both of them may be short and that 20 week period perhaps. So that's where you may find. It could be a need for that. But again, we won't know fully how this will work until the new guidance and regulations are available in terms of the different methods of Service. The amended rules, 6.78 provides that service will now be able to be done by way of email as well. Uh the moment as you know, you can do that, we need permission. New provisions will allow service by email with the note is being sent by post confirming that service by email has taken place. Okay? So that could be useful. And the committee is of the view that service by email would allow much more of a efficient and streamlined system uh which were tired of course with the online process for divorce. So you can see that the benefit and the thinking behind that and the other provisions, as many of you will know where we've had cases like the thumb and the thumb in 2018 where the husband in that case was arguing that there should be a period during which when you lodge your divorce, you should ensure that you carry out a certain steps such as service upon the respondent within a within a finite period Of time. And if not if you don't pursue that and you know, for you larger strategically lodged a divorce, but you don't pursue it, then the application should effectively be struck out. So that was his argument, as you know in the thumb and thumb case or 2018. But the court of a period of that state said there is nothing in the family procedures which acquires a divorce to be served within a period of time. Having said that the new provisions is now proposing the new Rules 6.6 A proposes that the applicant will have until 12 midnight On the Calendar Day, 28 days after the date of issue To carry out the required steps. So this could be at once your divorce application has been issued. You have 28 days then within which to get it served. And if not, you have to apply for an extension for that. Also under the current laws, you know, there is a requirement to complete the acknowledgment within seven days now. Its proposed at the time limit for the respondent to complete and return. The acknowledgement Is in fact going to be 14 days from the point of service. So with that provision as well. And in terms of joint applications, as I mentioned earlier, there will be provisions for joint applications for the divorce dissolution separation. And this is then to enable the two of them as it said, to reflect in the process, particularly given the difficult decisions. So it's almost that it's not him divorcing her or him divorcing him or vice versa. It's both of them mutually are are taken the view that the marriage has broken down irretrievably. So that I would suggest it's a very positive way forward and to avoid protection against fraud. What it would mean is that in a soul application respondent would be So two notes of proceedings in the case Of a joint application, uh there would still be a need for notes of proceedings to be sent to both parties. Uh and there will be a requirement for them to then acknowledge receipt of that within 14 days. So even though it's going to be a joint application, that both would still need to acknowledge receipt of the notice to ensure that one hasn't fraudulently lodged any joint application in that regard. Such the thinking behind that. And in terms of special Protections, as I mentioned earlier, this is where the provisions under section tend to will remain so that the court will not make the condition of the final unless they're satisfied that no applications were made to prevent that from happening or if the provisions under section tend to do not apply. So that's where you will be able to have that special protection still in place, as I mentioned earlier in so far as the position with the finances. And if the matter is disputed, just like we have at the moment where the court will then call the parties, you don't have a case manager hearing will be the same. Similar provisions to that. So that in the case of disputed cases, there will be a case manager hearing. Uh, uh, this is where the court was then consider the way forward in terms of making directions and taking that forward. Okay, so thank you very much indeed for listening. I hope that's been a useful session for you to bring you up to speed with where we currently are at the moment with the changes to the law on divorce. You can see it's going to be a significant change to what we already used to, uh, and therefore why it's helpful to know at this stage Going forward what the major changes are going to be us from six April 2022. Thank you very much indeed for listening. I hope that's been a useful session for you and I speak to you next time. Thank you very much. Bye for now.