Changes to the divorce process - another small step closer to no fault divorce? - Family Law Partners

Changes to the divorce process – another small step closer to no fault divorce?

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Under the current Law in England and Wales, there is only one ‘ground’ for divorce, namely, the irretrievable breakdown of a marriage. This can be based on one of five facts: adultery, behaviour, desertion, separation after two years with the consent of the respondent, or separation after five years without the need for the respondent’s consent.

Approximately 3 in 5 divorce petitions cite conduct facts (behaviour or adultery). Lawyers are often tasked with walking a tight rope when drafting behaviour particulars with enough ‘bite’ to satisfy a Judge, but mild enough to avoid adding fuel to the fire and heightening animosity between the parties. Whilst divorce petitions are rarely defended, the case of Owens v Owens highlighted that they can be and, in such cases, the petitioner will have no choice but to wait until five years after separation when the consent of the respondent is no longer needed.

Following the Judgement in Owens v Owens, the government launched a Consultation Paper on no fault divorce. My earlier blog on no fault divorce explored what the impact of that case might be for the divorce process in the UK.

Defenders of the current system argued reform would undermine the sanctity of marriage by making it ‘easier’ to divorce. The Justice Secretary has explained: ‘While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples.’ In fact, the current system can undermine any prospect of reconciliation, and can undermine the relationship between spouses in their parental roles after divorce.

From the Consultation Paper, the Divorce, Dissolution and Separation Bill (‘The Bill’) was drafted. The Bill has now passed through the House of Lords and was presented to the House of Commons on 25th March 2020 at the ‘first reading’. There was no debate on the Bill at that stage and a second reading is due to take place on a date to be set.

The Bill retains the irretrievable breakdown of a marriage as the sole ground for divorce but replaces the requirement to provide evidence of one of the five ‘facts’ with a requirement to provide a statement of irretrievable breakdown. The Bill removes the ability to contest a divorce except on jurisdictional issues. The Consultation Paper recognised the oddity of requiring one party to petition for divorce where the decision to separate is a mutual one. The Bill therefore creates the option for a joint application.

The current Law operates under a two-stage process whereby the Judge first grants the Decree Nisi (conditional order for divorce). The Petitioner then has to wait six weeks and one day before they are able to apply for the Decree Absolute (final order for divorce). The consultation found that, in reality, couples ‘feel divorced’ once the Decree Nisi has been pronounced and there is little purpose in having a reflection period at this stage in the process.

The Bill retains the two-stage process with updated terminology but provides for a 20-week reflection and future planning period between divorce petition and conditional order (after which the applicant must affirm their decision to seek a divorce) as well as six weeks between conditional order and final order. It is unlikely that this will cause significant delay as many couples wait until financial matters have been finalised before applying for Decree Absolute which often takes longer than six weeks. Furthermore, Courts will retain the power to expedite the process where appropriate.

The Bill has carefully balanced the need to uphold the institution of marriage, with minimising conflict after divorce. It is therefore unlikely to be met with debate during the later stages of the House of Commons process and is expected to be brought into law, ‘as soon as parliamentary time will allow’. Parallel changes will be made to the law governing the dissolution of civil partnerships.

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