No-Fault Divorce -
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No-fault divorce becomes legislation on Wednesday 6 April 2022

Despite the long awaited Act for “no-fault” divorce being passed in June 2020, it is finally becoming legislation on Wednesday 6 April 2022. It has taken years of discussion to reach this point, providing significant changes to the way couples apply for a legal separation.

This landmark legislation, formally called the Divorce, Dissolution and Separation Act 2020 will allow married couples to divorce without assigning blame. Up until this point, couples had to have been separated for at least two years, or have to blame the other spouse for the breakdown of the marriage, which increases the animosity.

England and Wales have been a step behind many other countries when it comes to divorce with many opting for a more progressive approach. At present, one spouse must issue divorce proceedings against the other, potentially creating unnecessary animosity which can often lead to the divorce being contested by the other spouse.

Under the no-fault divorce system, couples will also be able to apply for divorce jointly which will hopefully lessen the chance of blame creeping into the equation. It will not be possible to contest a divorce, putting an end to traumatic situations such as the Owens v Owens case.

Cases such as Owens v Owens are rare. Removing the option to contest a divorce is a vital step forward, stopping people from being trapped in a marriage that they no longer want to be part of.

A statutory timeframe has been included in the new legislation, meaning that a divorce cannot be finalised in less than 20 weeks. Under current law, it is possible to conclude a divorce in a shorter time frame than this, however, it's rare for this to happen in less than four months.

It is important to remember though that complexities can arise that can add significant time to the process, such as financial claims that require negotiation, or concerns around child custody.

What terminology has changed as part of no-fault divorce?

Divorce terminology is also changing too, bringing the process into the 21st century. Making each element of divorce as clear as possible will reduce confusion and help people to understand the process they’re embarking on a little easier.

Previous terminology New terminology Description
Petition Application
Petitioner Applicant
Decree Nisi Conditional Order The order by a court of law stating the date on which the marriage will end
Decree Absolute Final Order The legal document that ends a marriage
(Judicial) Separation Decree (Judicial) Separation Order An order which confirms the parties to a marriage or civil partnership are separated
Decree of Nullity Nullity of marriage order A declaration of the court that the marriage is null and void

How will no-fault divorce work?

The announcement means that couples will no longer have to agree to be separated for two years, or have proof of their partner being at fault, in order to file for divorce. Only one person needs to desire the divorce, and their spouse will not be able to refuse the application.

Being able to apply for a no-fault divorce will spare couples the emotional stress and strain of finding blame for an unreasonable behaviour petition or when they can’t, or don’t want to, wait two years to divorce on the grounds of separation or five years if they do not have the consent of the other spouse.

It should be noted that under the new law, the statutory timeframe means that a divorce cannot be concluded in less than 26 weeks. Although it is possible for this to be shorter under the current law, it is still unusual for it to be less than four months, not including the time taken to resolve financial claims. As a result, the overall timeframe of the new system will be largely in line with the existing one. Plus, a fixed timeframe allows parties to reflect on whether the decision to end the marriage is the right one.

What caused the delay?

Following the tireless campaigning of family lawyers, the government has spent a significant amount of time over the past few years trying to make the divorce process simpler.

The Divorce, Dissolution and Separation Act receiving Royal Assent was a real breakthrough moment, with many hoping no-fault divorce would come into play by early 2021 at the latest. However, following delays, the act has now come into force on 6 April 2022. This was to allow time to become familiar with the new process, and for any necessary, IT changes to be made to HMCTS’s online divorce systems so that new process works as intended and is fit for purpose.

No-fault divorces will take a huge amount of anxiety away from the process, benefitting a significant number of people.

How we guide you through the divorce process

The introduction of no-fault divorce is one of the most significant changes in family law in the last 50 years. Ending a marriage is a monumental decision, and that won’t change. It’s important to remember that the actions you take in the early stages can set the tone for everything that follows.

If you’re about to start divorce proceedings, or currently going through the separation process, then speak to one of our divorce lawyers. We’re here to guide you through the maze of emotions and legal responsibilities, every step of the way.

You can also read our step by step guide on how to get a divorce. Find out more here >>.

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Helen works with clients to ensure that they are sensitively guided through the complex area of family and relationship breakdown.

Our family team is ranked as a Top Tier Firm in the Legal 500 2021 edition.

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Can a child understand the risks of puberty blockers?

On 1 December 2020, the High Court ruled that children under 16 should not receive controversial puberty blockers because they are very unlikely to understand the risks.  

The case was brought by Keira Bell, a 23-year-old woman, against Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service (GIDS) for children. Keira began taking puberty blockers when she was 16 before ‘de-transitioning’ and claimed the clinic should have challenged her more over her decision to transition to a male as a teenager. 

The High Court’s ruling means that children who wish to undergo gender reassignment can now only legally consent to taking puberty blockers if they are able to understand the “long-term risks and consequences of the administration of” the drugs.  

Matt Parr, our LGBTQ+ expert, had this to say on the outcome: 

The High Court’s decision 

In some regards, this decision has made it more difficult for children in this position. It has indicated that it’s unlikely a child under 16 would have the appropriate level of understanding and intelligence to make such a decision, and that this should almost be the starting point.   

Gillick competence – consenting to treatment 

Parental agreement here is important but not essential. Ultimately, a court deciding on the point will take into account their opinion on the individual child’s ability to make the decision and what’s in their best interests.  

If it is decided in a particular case that a child under the age of 16 has sufficient intelligence and understanding to fully appreciate what’s involved in their treatment, they can consent to the treatment themselves. This is called being Gillick competent.   

In the case of Gillick in 1983, the ‘treatment’ involved was the contraceptive pill and this was being given to a child under 16, without the parent’s consent. The court decided that it would be appropriate that the child consents to their own medical treatment if, in each case, the ‘child achieves sufficient understanding and intelligence to fully understand what is proposed.’  

Testing principles 

In its Judicial Review, the High Court has ruled that it’s unlikely a child under 13 would be competent to consent to the administration of puberty blockers. It was also doubtful that a child of 14 or 15 could understand either. The decision makes it clear that the Court should be involved in matters involving such young people. It is hoped this will protect the doctors’ and the patients’ interests. 

Despite the same principles applying across the spectrum of medical treatments, often the child, doctor, and parents’ trains of thought are aligned. They will almost invariably consent to treatment that will save the child’s life or enhances their ability to live life to the full and in the best health possible.    

It is interesting, though not surprising, that a case to test the principles laid down in Gillick has been brought to court in relation to the issue of gender dysphoria and the treatment for it - a widely misunderstood diagnosis and one that still attracts a great degree of scepticism and stigma.  

Wider considerations for parents 

Although this case focused on a specific issue facing transgender children, there are other areas which parents in particular should be aware of. For parents of those who are thinking of transitioning, or have already done so, it’s worth considering re-drafting their own wills to incorporate gender-neutral terms such as “child”, as opposed to those such as “son” and “daughter” or refer to their beneficiaries by name. This can help to ensure that all children are able to benefit, regardless of their gender.  

Birth certificates won’t be replaced once someone has transitioned, their existing one remains but another entry will be made into the central register of births which makes reference instead to their chosen sex. The implication of this years down the line is that it could appear to anyone researching the family tree that the parents had twins. 

It is also important for parents to understand that despite undergoing treatment with puberty blockers and their child having been diagnosed with gender dysphoria, this does not change the child’s natal sex legally. It is important to ensure that legal documents are prepared still making reference to the child’s natal sex, if absolutely necessary to refer to their sex at all (perhaps with additional reference to their chosen preferred name as well) until such time as their child has been issued with a Gender Recognition Certificate. 

As a business, we’ve been committed to promoting diversity and inclusion for many years. The firm and our people are increasingly diverse, and so are our clients. 

Find out more about our team of LGBTQ+ solicitors. And how we can support with a range of legal issues, including preparing for marriage and civil partnerships as well as divorce and dissolution, adoption and surrogacy, wills and estate planning, and inheritance tax mitigation – contact Matt Parr for further advice. 

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.    

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Whilst these topics may be tricky to discuss, early communication with family and friends can help to minimise the risk of family conflict and make sure loved ones are protected for the future.

Preparation is key

It is sensible to consider your current financial and legal arrangements, including your existing will and powers of attorney before telling your friends and family, especially if you are unsure of how they will react.

A legal adviser can offer advice ahead of time and assist in the formulation of a contingency plan, allowing you to quickly safeguard your interests, should any family relationships come under strain as a result of the news.

Give it time

It is important to remember that family and friends may need some time to process your news – their initial reaction might be out of emotion and they may not always feel that way. In terms of moving forward, discussions from both a financial and a personal perspective will need to be had, but the timings and outcome for every couple will be unique. Whilst separation and divorce may be best for some, the idea of staying together and living as companions may better suit others.

Thinking about divorce

Currently, UK law dictates that adultery can only occur between members of the opposite sex. With this in mind, should either partner decide to leave the marriage, providing they’ve not been separated for two years or more, a divorce application would have to be issued on the grounds of unreasonable behaviour. Under these circumstances, the person making the application must show that the other party has behaved in such a way that the Applicant cannot reasonably be expected to live with him or her, causing the marriage to irretrievably break down.

In this situation, seeking support from an accredited family lawyer is advisable and often results in a far better outcome for all involved.

In the absence of any children, the separation process and division of assets can be relatively simple. However, where children are involved, the process can be more complicated, often requiring arrangements for maintenance payments and provisions for the children’s futures to be made.

Moving forward

Should a new relationship be formed, it is often important to ensure that children from the first marriage are provided for. Financial agreements, such as a Living Together Agreements/ Cohabitation Agreements, can protect assets owned prior to living with a new partner, ensuring complete transparency around who owns what. For those intending to remarry, a prenuptial agreement is also advisable in order to help to ringfence the assets brought into the marriage and clarify those that are to be kept separate.  Re-marriage will automatically revoke any previous Will you may have prepared – it is important to ensure that a new Will is prepared as soon as possible before or after the re-marriage, particularly if you have children from the previous marriage that you wish to benefit.

As with the breakdown of any relationship, open communication, allowing time for family to accept the news and specialist legal support can help to safeguard the future for loved ones and pave the way for a new chapter.

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Stephanie deals with all aspects of relationship breakdown to include divorce, children matters and resolving the financial issues upon separation.

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Civil partnerships: Offering financial security for cohabiting couples

Blog | Family

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What is a civil partnership?

Couples in a civil partnership benefit from the same rights and protections as their married counterparts. However, it is free of religious connotations and ideas of ownership, making it an attractive option for those for want to legally commit to each other in a less traditional manner.

What benefits does a civil partnership offer?

There are a host of reasons why a couple might opt for a civil partnership, but one of the main reasons is the financial security it offers.

  • Income tax – Civil partners are entitled to the same income tax allowance as married couples.

  • Inheritance tax – Civil partners are completely exempt from inheritance tax should they inherit their partner’s estate. The surviving civil partner can also effectively double the amount that they can leave to family and friends without having to pay inheritance tax, by transferring the first to die’s unused nil rate band.

  • ISAs – Civil partners can inherit their partner’s tax-free ISA allowance, by using the Additional Permitted Subscription (APS).

  • Transfer of capital assets – These transactions become tax neutral for civil partners, allowing them to move funds and assets between them without generating an immediate charge to capital gains tax.

  • Pensions – Private and occupational pension schemes offer the same rights to civil and married partners. The surviving partner may be able to claim a higher state retirement pension, based on the first to die’s national insurance contributions.

However, for those wishing to enter into a civil partnership, there are still administrative tasks that must be completed, such as the drafting of new wills and other documents. Assets should also be considered and advice surrounding prenuptial agreements should be sought.

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Matt works with individuals and their families to help them negotiate the many pitfalls they can encounter when planning for their future by providing pragmatic, bespoke advice.

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Estate planning: What needs to be considered after transitioning

Blog | Estate Planning

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In an already unsettled time, disputes over estate planning are even more unwanted.

Matt Parr, one of our private client associates, explains the importance of carefully considering the implications of a gender change when it comes to wills and inheritance:

Correct identification

There’s a fear of stigmatisation amongst the trans community, which may hold people back from broaching the topic of altering a will with their family.

However, no matter how difficult the conversation may be, it is essential that wills are updated to reflect new gender identities. If it is not done, conflicts may arise later on, causing unnecessary stress.

The Gender Recognition Act 2004

On 4 April 2005, the Gender Recognition Act came into force. Under this, a person’s new affirmed gender cannot be legally recognised until they have a Gender Recognition Certificate (GRC). These are not retrospective, meaning wills drafted before 4 April 2005 will be interpreted as the beneficiary’s assigned birth gender instead of their new gender.

Obtaining a Gender Recognition Certificate is not a short process. It requires people to live as their chosen gender for two years, after which they must carry out a series of in-depth tests and be put in front of a Gender Recognition Panel. It’s best to start the estate planning process during this time to avoid extending a stressful period further.

Re-drafting your own will

For the family of those who are considering transitioning or are in the process of doing so, it may be wise to re-draft an existing will to include gender-neutral terms for beneficiaries. This allows children to benefit whether they choose to change their gender or not, removing the chance of any issues that the will-writer may have experienced themselves.

Seeking expert estate planning advice should not be avoided due to fear of judgement. Transgender people must find an adviser who puts them at ease, making the will-writing process as stress-free as possible and ensuring their assets and loved ones are protected.

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Matt works with individuals and their families to help them negotiate the many pitfalls they can encounter when planning for their future by providing pragmatic, bespoke advice.

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The lower courts had previously found that the refusal by Ashers to bake a cake with a slogan promoting same-sex marriage was discriminatory, in rulings which chimed with previous case law. However, the Supreme Court deemed that this was not the case, and the bakery was within its rights to refuse the order as an exercise of freedom of expression. So, what does this actually mean for future cases, and what should employers learn from the ruling?

What is discrimination?

There are nine protected characteristics under the law of England and Wales. These are age, sex, race, disability, religion or belief, sexual orientation, gender reassignment, pregnancy or maternity and marriage or civil partnership. Discrimination is classified as being the unjust or prejudicial treatment of any individual or group because of these characteristics.

There are four main forms of discrimination recognised within the law. These are:

The case: What were the initial rulings?

In 2014, Ashers Baking Company Ltd was accused of directly discriminating against Mr Lee because of his sexual orientation, with initial rulings by the County Court in Northern Ireland finding in favour of the claim. They determined that support for gay marriage was indissociable with sexual orientation, so Ashers’ refusal to supply a cake bearing the slogan “Support Gay Marriage” was unlawful.

At the Northern Ireland Court of Appeal, this point was refuted and dismissed. However, the Court still upheld the direct discrimination ruling, stating that Mr Lee had been discriminated against on an associative basis. They stated that the bakery refused to supply the cake not because Mr Lee is gay, but because of his association with the gay community.

The case: What did the Supreme Court rule?

Most recently, the case was brought to the Supreme Court in Northern Ireland, where both of the previous rulings were dismissed. They decreed that the bakery refused to supply the cake because it was to display a message that they objected to, not because of Mr Lee’s sexual orientation. The Court accepted the argument that the bakery still would not have served the cake reading “Support Gay Marriage” to a heterosexual individual and yet would have served Mr Lee or any homosexual individual a different cake; therefore, there was no discrimination on those grounds.

However, the case didn’t end there. In Northern Ireland political opinion is a protected characteristic, and Mr Lee claimed that he had also been discriminated on those grounds. Lady Hale did agree that there was close association between the message “Support Gay Marriage” and the political opinion of Mr Lee. However, she still found that there was no discrimination, having considered articles 9 and 10 of the European Convention on Human Rights, incorporated by the Human Rights Act 1998.

Article 9 refers to freedom of religious beliefs and article 10 refers to freedom of expression, both of which mean that the bakery didn’t have to provide anyone with a product bearing a message they profoundly disagreed with. While they couldn’t refuse to supply Mr Lee with a cake because of his beliefs or sexual orientation, they did retain the right to not express a particular opinion.

The implications

This ruling has somewhat complicated the already complex case law surrounding discrimination cases. A discourse will need to be opened to determine clearly the distinction between treating someone in a certain way in relation to issues surrounding a protected characteristic, and treating someone in a certain way because of a protected characteristic. In other words, objecting to a message is freedom of expression, objecting to the messenger is discrimination. The distinction between these is subtle enough to require further clarification.

Following this, the ruling could have a whole host of further implications. For example, there may well be more associative discrimination cases brought in the near future. Associative discrimination cases are fairly rare at present, but that Lady Hale’s reference to them would seem to have brought them into the spotlight. She stated that the Ashers case was either one of associative discrimination or nothing, so many claimants may see this as their most secure legal avenue.

Article 9 and article 10 rights are also likely to be cited more often, with more people using them to justify actions that could otherwise be deemed to be discriminatory. This defence could be a potential minefield, however, and employers should be wary of it. The Ashers Bakery case saw a party use the Human Rights Act as a shield so they wouldn’t have to do something against their will, as opposed to using it as an excuse for actively saying or doing something discriminatory. The Act does not give people the entitlement to say and do whatever they want no matter how harmful.

How employers should deal with customer accusations of discrimination

Employers need to be prepared to investigate any claims of discrimination promptly and as thoroughly as possible. If a member of the public accuses a staff member of discrimination, the employer should speak to all parties and receive full statements from each of them; this includes the employee against whom the allegation has been made, the complainant and any potential witnesses. Any CCTV footage should also be reviewed if it could assist with the enquiry.

If the findings of the investigation do suggest that discrimination may have occurred, then any employer should treat it as a potential disciplinary issue for the staff member. They should also deal with the member of the public in a respectful and swift manner. This is the best possible course of action to prevent try any claims from being brought.

Final Thoughts

The Supreme Court’s ruling may have made the already complicated case law surrounding discrimination even more uncertain, but there are still some sure-fire procedures employers can go through to help prevent discrimination. By practising due diligence and taking appropriate and swift measures where warranted, employers and HR professionals can put themselves in the best position going forward.

The unanimous ruling by five judges in the highest court in England and Wales sends a strong signal to parliament and reinforces the urgent need for family law reforms. The list of legal areas that are no longer fit for purpose is continuing to grow – from ‘no fault’ divorce to heterosexual civil partnerships and better protections for cohabiting couples – the law must change to better reflect and protect current society.

Family law partner, Caroline Elliott, breakdown the current challenges:

Civil Partnerships

According to the courts, the Civil Partnership Act 2004, that only applies to same-sex couples, is incompatible with current societal norms and therefore discriminates against heterosexual couples.

Before same-sex couples could get married, the Civil Partnership Act was introduced to remove discrimination. It was designed to ensure that, along with marriage, every couple was able to have the same rights, no matter what their gender or sexual orientation.

However, all couples, regardless of gender, can now get married in a civil registry or a church, therefore they are all afforded the same rights in relation to inheritance and property issues. Ironically, now same-sex couples have more rights – in terms of legal protection and options on separation – than heterosexual couples because they can either get married, or enter into a civil partnership if marriage is not for them.

Couples should be able to make an emotional and financial commitment in the eyes of the law, without the requirement of marriage, regardless of their gender. Such policies must be reflective of the diversity of modern Britain, and the way in which people choose to live.

This decision from the Supreme Court will no doubt be putting pressure on the Government to review our outdated systems, but before heterosexual couples can have a civil partnership, Parliament will need to change the law.

Cohabiting couples

The current legal system leaves unmarried couples with very few rights compared to those that are married or in civil partnerships. While getting married isn’t for everyone, arranging legal protection if something were to go wrong should be a high priority, particularly if no ‘legally binding’ commitment has been made.

There is no denying that co-habiting couples are significantly disadvantaged when compared with the legal rights of married couples or those in civil partnerships. However, until the Government reforms co-habitation law, couples should make provisions to protect themselves before they move in with their significant other.

A cohabitation agreement is one option. This could include areas such as, who owns the property at the point of which the agreement is made, as well as if anyone owes anything. You can draw up a financial arrangement to ensure transparency while living together and how property, assets and financials can be divvied in the event of a split.

‘No fault divorce’

Under the current legal system, a spouse filing for divorce who does not wish to wait for either two or five years before starting proceedings must prove that the other party has ‘behaved unreasonably’ or committed adultery. This can lead to couples being trapped in a marriage with someone who they simply have fallen out of love with and trying to think of reasons to blame for the breakdown of the relationship. For people who have children and assets to separate, apportioning unfounded blame can unnecessarily lead to more tension and resistance throughout the divorce process.

The introduction of a ‘no fault’ divorce will help to remove some of the emotion and financial pressures of divorce proceedings, leading to more couples separating amicably and swiftly.

Reforms

Unfortunately, this is a political hot potato. Some 20 years ago, there was an attempt to reform the divorce law system, but it failed to have a real impact due to some political resistance and feelings of undermining society and the sanctity of marriage.

However, since then, things have moved on even further and broadened the gap between how society operates and how legal protections are structured.

Unfortunately, with Brexit dominating the agenda for policy makers, it is unlikely that we’ll see family law reforms any time soon. But, on the plus side, with cases such as this, as well as Tini Owens and Graham Mills gaining more momentum in the courts, it is likely that these rulings will be used in case law moving forward.