The Law Governing Divorce is Changing, What Does This Mean for You?

Despite the significant cultural and social developments in society, the law governing divorce has remained largely the same since 1969 when the Divorce Reform Act was passed. After many discussions and attempts to change the law, the Government has finally decided that reform is necessary.

Current Basis for Divorce

When you apply for a divorce you will need to prove that the marriage has irretrievably broken down and you must also satisfy the court of one of the following reasons why it has irretrievably broken down, namely:

  1. that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
  2. that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  3. that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
  4. that the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; or
  5. that the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

Previous Efforts to Change the Law

Part 2 of the Family Law Act 1996 intended to introduce ‘no-fault divorce’ but after several pilot schemes, it was decided that the provisions of Part 2 were unworkable and were repealed. In 2018, a Private Member’s Bill was introduced which would require a review of the current law and whether a system of application and notification would be preferable. This Bill did not progress any further.

Issues with Fault Based Divorce

Due to the potentially lengthy period of time until a decree nisi is granted many petitioners falsely claim that the respondent has behaved in an unreasonable way in order to secure a quicker divorce. Therefore, divorce petitions are often not an accurate description of why the marriage has broken down and the courts frequently make no judgment about whether the allegations are true.

Many organisations have vocally opposed fault-based applications as requiring the petitioner to find fault which may trigger or exacerbate, parental conflict during a sensitive time which may in turn have a negative impact on children, especially in relation to co-parenting after separation.

Finally, there is no empirical evidence to support that requiring fault to be found makes the petitioner think twice about separating. Therefore, the argument that fault-based divorce protects marriage and/or deters divorce is unsubstantiated.

Owens v Owens

In 2016, Mrs Owens applied for a decree nisi (first stage of divorce proceedings) and her husband contested the application. The judge found that within the current legal framework Mrs Owens had failed to prove that she cannot reasonably be expected to live with Mr Owens. Mrs Owens appeals were dismissed in the Court of Appeal and Supreme Court thus resulting in the decree nisi not being granted and Mrs Owens remained married to Mr Owens. It appeared to be a case of unreasonable law not unreasonable behaviour. Throughout the proceedings the judges stated that it was for Parliament and not the courts to change the law.

Government Consultation Paper and Response

In 2018, the Government published a consultation paper, ‘Reform of the Legal Requirements for Divorce’, which considered whether the current process of establishing whether the marriage had irretrievably broken down by evidencing one of the above five reasons should be replaced with a notification-based process.

In 2019, the Government published its response and announced that it would remove the fault-based and separation requirements. The Government also proposed to:

  1. retain the ground of irretrievable breakdown for divorce, replacing the requirement to evidence conduct or separation with a requirement for a statement of irretrievable breakdown;
  2. provide for the option of a joint application;
  3. remove the opportunity to contest, (although there would be some legal grounds for challenging an application);
  4. introduce a minimum timeframe of six months, from petition stage to decree absolute (final stage of divorce); in exceptional circumstances, the court could allow a shorter period;
  5. retain the two-stage decree process – it would still be necessary to apply separately for the decree nisi and decree absolute;
  6. retain the bar on divorce and dissolution applications in the first year; and
  7. modernise the language used within the divorce process.

What Does This Mean for You?

When the new legislation comes into force (to be introduced as soon as Parliamentary time allows), the process for divorce will be less adversarial due to the removal of the requirement to apportion blame to one party. A reconciliation period will be still be retained. The process will be simplified and the timeframe from petition to decree absolute will be much shorter, this will allow the parties to focus on making arrangements for their own futures such as, children, property and finance.

In addition to the above, and following a successful pilot scheme, the UK Government has introduced an online divorce service where the petitioner can apply for a divorce through the Government website rather than by post. The online service is intended to reduce stress and speed up the process for users.