Divorce ‘blame game’ to end
The Divorce, Dissolution and Separation Bill was first introduced in June 2019 with the first reading taking place in October 2019, (see our blog The end of the divorce “Blame Game” however the progress of the Bill was halted after Parliament dissolved at the end of the 2019 Session.
The Bill is being brought back before Parliament following the General Election, with the government stating that it represents the biggest shake-up of divorce laws in half a century.
In 2018, 118,000 people petitioned for divorce in England and Wales. Data shows that out of every five divorce petitions over the last three years, close to three rely on ‘conduct facts’ and two on separation facts. The Bill aims to reduce the impact that allegations of blame, which form the basis of ‘conduct facts’, can have on a couple and in particular children as families try to move beyond relationship breakdown. It is anticipated that this will act as a catalyst for separated couples to co-parent successfully and children to begin to adapt to a new family dynamic in a more positive environment.
The Divorce, Dissolution and Separation Bill
The Divorce, Dissolution and Separation Bill will:
- Replace the current requirement to evidence either a conduct or separation ‘fact’ with the provision of a statement of irretrievable breakdown of the marriage (couples can opt to make this a joint statement).
- Remove the possibility of contesting the decision to divorce, as a statement will be conclusive evidence that the marriage has irretrievably broken down.
- Introduces a new minimum period of 20 weeks from the start of proceedings to confirmation to the court that a conditional order of divorce may be made, allowing greater opportunity for couples to agree practical arrangements for the future where reconciliation is not possible and divorce is inevitable.
Current divorce law requires people seeking divorce to give evidence of one or more of five facts to establish the irretrievable breakdown of the marriage; 3 are based on ‘fault’ and 2 are based instead on a period of separation.
The 5 facts are: ‘unreasonable behaviour’, adultery, desertion, 2 years’ separation (if the other spouse consents to the divorce) and 5 years’ separation (otherwise). These are summary versions of the facts.
The behaviour fact, for example, which was an issue in the case of the high profile Owens v Owens case, is often called ‘unreasonable behaviour’ but is actually ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’
At present, where both parties agree, the court can dissolve the marriage after the couple have lived apart for a minimum 2 years. Where one spouse disagrees, the other spouse will either have to wait to be separated for 5 years before a divorce is granted or may instead obtain a divorce if they demonstrate to the satisfaction of the court that their spouse has committed adultery or that they have behaved in such a way that the party cannot reasonably be expected to live with them. Desertion is rarely relied upon. The legal definitions of the facts can be found in section 1(2) of the Matrimonial Causes Act 1973.
Current law does not require any minimum period of time to elapse before granting the decree nisi (conditional order of divorce). Between 2011 and 2018, around one in ten cases reached decree nisi within 8 weeks, and 3 in 10 cases between 9-13 weeks. It is expected that without the introduction of a minimum time frame, the average time would reduce as online divorce is extended
The new law
Crucially, the new legislation will introduce a 20-week period between the initial petition stage and when the court grants the provisional decree of divorce (the ‘decree nisi’). This will provide a meaningful period of reflection and the chance to turn back, or where divorce is inevitable, it will better enable couples to cooperate and make arrangements for the future
The ability to contest a divorce is rarely used (in less than 2% of cases). The Bill removes the possibility to contest a divorce but all divorce applications could still be challenged on the bases of jurisdiction, the legal validity of the marriage, fraud or coercion and procedural compliance.
The divorce will not be automatic at a fixed date at the end of the minimum time frame, but will require the applicant to continue to affirm their decision to seek a divorce. This keeps the important safeguards of the existing process.
Currently the average period to the final decree (decree absolute) is much more varied, as some parties take a long time to make financial arrangements before they apply for the final decree. We will retain the current minimum period of 6 weeks before a final decree can be applied for.
Extent of the new law
Parallel changes will be made to the law governing the dissolution of a civil partnership which broadly mirrors the legal process for obtaining a divorce.
The proposed legislation will not cover other areas of matrimonial law such as financial provision. Financial provision on divorce is handled in separate proceedings and the court has wide discretion to provide for future financial needs.
We consider that the reforms are long awaited and will assist in reducing hostility between parties and provide opportunities for couples on relationship breakdown to collaboratively and amicably end their marriage. The positive effects will hopefully be felt not just by the parties to a marriage, but, importantly, by their children.