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Moving Divorce into the 21st Century

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By Caroline Keeley

The Justice Secretary, David Gauke, has today pledged that key legislation for no-fault divorce, will be introduced “as soon as parliamentary time becomes available”.

It is anticipated that this much needed reform, will herald an end to the “blame game” in marital breakdowns. It will also stop one partner refusing a divorce if the other one wants one.

In accordance with existing 50-year-old divorce laws in England and Wales, there is one legal ground for divorce: the “irretrievable breakdown” of a marriage. The set of grounds for divorce, under the Matrimonial Causes Act 1973, requires an applicant to either prove that their partner is at fault through unreasonable behaviour, desertion or adultery. Otherwise, if both parties agree, they can part after two years of separation. In the absence of consent or evidence of fault, applicants must wait until they have been living apart for five years.

As long ago as 1990, a Law Commission report set out the case for reform, highlighting that the use of fault may trigger or exacerbate parental conflict, which has been shown to have a tremendously negative impact on children. In the national survey, 62% of petitioners and 78% of respondents said that in their personal experience, using fault had made the process more bitter, 21% of fault-respondents said fault had made it harder to agree arrangements for children and 31% of fault-respondents felt fault had made financial resolution much harder.

Today’s announcement is consequently signalled by many campaigners as a “momentous day”. Resolution, the national family justice body, welcomes the government’s announcement. Resolution’s national Chair, Margaret Heathcote, said “In my speech to Resolution’s National Conference last Friday, I called on the Lord Chancellor to introduce change as soon as possible, to end the blame game. Today’s announcement is an important move towards that”. Resolution has been actively campaigning for change for over 30 years.

In the wake of the publicity over the Owens v Owens case in which the Supreme Court ruled last year, Mrs Owens could not divorce her husband until a period of five years had elapsed, the government’s new bill would remove power of a defendant, to oppose a divorce. Mrs Owens and her husband had been living separate lives since 2015.

Under the new legislation, it is understood that the requirement for evidence of adultery or unreasonable behaviour, would be substituted by a requirement for a statement of irretrievable breakdown. The current two-stage legal process referred to as decree nisi and decree absolute would remain in place and there will be an option for a joint application for divorce.

Furthermore, there will be a minimum timeframe of six months from petition stage to decree absolute – which brings the marriage to an end. At the conclusion of this period, the applicant will be required to continue to assert their decision to seek a divorce, in advance of the divorce being granted.

Conversely, some may consider that the new law is possibly unaccommodating, the suggestion being that this would be moving towards a system of “divorce on demand”, or rather, making the process of divorce “easier”, threatening to diminish the institution of marriage.

It is, however, vital to remain impartial, neutral and avoid conflict, as divorce and separation are by no means easy. Nonetheless, it is clear that today’s announcement is testament to many years of campaigning for change and a huge step forward in enabling marriages to end more harmoniously.

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