The potential for no-fault divorce to deconflict the separation process had already been shown in Scotland, which introduced no-fault divorce in 2006. It did not cause an increase in the divorce rate, but it did reduce the number of divorces alleging fault. 2016 Office of National Statistics figures showed that while only 6% of Scottish divorces relied on fault-based grounds, in England and Wales, 56% alleged fault.
Now that the toxic poison of blame has been removed from the legal process in England and Wales, couples are increasingly seeking more cooperative ways to settle their arrangements.
This might include mediation, arbitration, and new couples-led negotiation services. These more amicable ways to agree on a divorce settlement help reduce costs, delays, and stress, to the benefit of the separating couple and of course, any children involved. However, each has its own merits and not all are equally effective.
As well as changing the grounds for divorce, the Divorce, Dissolution and Separation Act 2020 makes it possible for couples to submit a joint application, which helps couples not only to start off on the same page (quite literally) but also to progress through the divorce process in a unified way. As well as simplifying aspects of the divorce process, the new legislation also imposes a 20-week period of reflection from when the divorce application is made, to when a Conditional Order is made. This waiting period has met with a mixed reception. Its intention is to protect people and to allow emotions to cool and give couples time to consider matters in the round. In reality, relationships don’t break down overnight, and many couples have already gone through their own reflection period before making an application and are frustrated at the drawn-out nature of the process. It does however give space for couples to take advice, to reflect and to consider the benefits of working more amicably and continuing the process they have started together as a couple rather than seeking individual services.
It is during this waiting period that couples have time to explore non-court dispute resolution methods such as mediation, collaborative law, hybrid mediation, arbitration, or couple-led negotiation processes. These methods can often help divorcing couples to at least minimise any areas of disagreement and achieve an agreed settlement.
Since solicitors traditionally were the advisors to separating couples and remain key gatekeepers of signposting to alternative services, if a couple wanted to work together to reach an agreement, they will usually be directed to mediation to facilitate this. The government has supported mediation as the ‘preferred’ alternative for non-court dispute resolution (and continues to do so on gov.uk) but recent government data shows a drop in mediation cases and a 61% success rate when it is engaged in. The same data shows a 65% success rate for the family voucher mediation scheme. There are alternative services that have much higher success rates and it remains a mystery why gov.uk has not been updated in line with new ‘couples services’ information when it promises better outcomes.
In my view, one of the reasons mediation often does not ultimately result in an amicable settlement is that there is a flaw in the process as it only does half the job. Couples who reach an agreement with a mediator are sent away to separate lawyers to take advice on their agreement. This then very often means that conflict is reintroduced into the process, as arguments emerge over the final details and how it is to be written up into a legally binding consent order. Therefore, this second part of the mediation process very often ends up being counterproductive. It’s time to look again at what the people want and listen to the consumer rather than the industry if we want to help more people achieve better outcomes and stay out of the broken court system.
This consumer perspective drove me to co-create a joint couples service which operates differently, by working with couples to help them all the way through to reaching a final agreement over their finances and children arrangements. As our specialist drafting team writes up all the legal paperwork to finalise the agreement (and can also do so for those who have used a mediation service but want a neutrally drafted order to formalise their MOU), there is no need for the couple to rely on solicitors. This does not stop either person from seeking independent legal advice if they wish to do so, of course, but it does mean that a potentially adversarial legal advisory and drafting process is not built in automatically. In my experience, this approach certainly has been far more successful, with this process having a 95% success rate, as opposed to the 61% success rate which mediation achieves.
Divorce has been adversarial for so long that the very idea of advisors helping a couple reach an agreement amicably still seems quite incredible to some.
In 2020, however, the High Court ruled that the couples-led online divorce service I co-founded did not in fact have a conflict of interest in helping couples. It also ruled that we had not contravened the Legal Services Act 2007 by helping divorcing couples prepare their own documents, instead of relying on solicitors. In tandem with the introduction of no-fault divorce, the judgement helps set the scene for a radical shift away from a legalistic and adversarial divorce process and helps open the door for kinder, more amicable ways to separate.
As more solicitors follow amicably into the ‘Couples Services’ arena, it will be interesting to see how the public feels about working with law firms who on Monday work amicably with their ‘clients’ and then on Tuesday engage in ferocious litigation pitting parent against parent. I believe brand integrity, law-firm culture, and retraining solicitors to think and do differently, are all significant obstacles to success. It’s one thing to offer a service; it’s quite another to deliver that service. These are the barriers for new entrants to overcome, not the law or regulations.
There will always be a place for solicitors, especially where there are issues of domestic violence, coercive control, abuse or where one person is failing to disclose assets. However, it’s become very clear to me that many couples successfully arrange their divorce by doing much of it themselves, or with the help of specialist advisors, who can attend to the real complicating issue of separation, the emotional journey. The business of advising couples on divorce and separation is no longer the sole preserve of lawyers – a more amicable process is on offer which leaves people better able to co-parent and move on with their lives and is transforming how people end relationships in a kinder and better way.
About the author: Kate Daly is a co-founder of amicable, the leading online divorce services company and host of The Divorce Podcast.