By Caroline Keeley
The government decision to reintroduce The Divorce, Separation and Dissolution Bill and once again place divorce reform at the forefront of the legislative agenda is greatly welcomed by the specialist Family Law team at TWM.
The campaign for a no-fault divorce system has been championed by Resolution under the leadership of Nigel Shepherd who has campaigned for years for a no-fault divorce process to help minimise acrimony for the parties involved and their families. On the 6 January 2020, it was finally introduced to the House of Lords and it is hoped that this year it will finally become law.
Since the Bill was introduced in June 2019, it has passed through two readings in the Commons and the committee stage but has been held at a standstill twice, firstly as a result of the unlawful prorogation of parliament in September and secondly as a consequence of the December General Election.
In the current fault based system, in order to obtain a divorce, you or your spouse must show the Court that the marriage has “irretrievably broken down.” This is the only ground for divorce; to do this you must bring yourself within one of the five specific sets of circumstances:
That you have lived apart for a continuous period of at least five years (in which case the Respondent’s consent is not required).
The Respondent has deserted the Petitioner for a continuous period of at least 2 years (rarely applicable).
The parties have lived apart for a continuous period of at least 2 years and the Respondent consents to a decree being granted.
The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent. (There can be difficulties in pursuing a divorce for adultery if the Respondent is not prepared to admit the adultery, due to evidential issues).
The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
The new Bill, once enacted, will instead enable individuals in both England and Wales to obtain a divorce by simply filing a statement that the marriage has broken down irretrievably, without any need to illustrate that the behaviour of the other spouse, or civil partner is unreasonable, or to prove that they have been living separate and apart for two consecutive years. It would preserve the two-stage legal process known as decree nisi and decree absolute although the language is likely to be modernised. The new legal framework would set a minimum timeframe of six months, from initial petition stage to the final decree absolute divorce stage. It will also permit an option for a joint application for a divorce that currently does not exist.
This reform will avoid an issue which occurred in the 2015 case of Owens v Owens where the Respondent was able to defend an unreasonable behaviour petition and so a divorce could not be granted until the parties had been separated for five years (when the Respondent’s consent was no longer required). This brought unnecessary emotional distress and financial cost to the Petitioner. Going forward, the Bill provides that contests to a divorce will only be legitimate on the basis of jurisdiction, coercion, fraud or the legal validity of the marriage.
The introduction of a no-fault divorce has been criticised by some who feel it undermines the sanctity of marriage. This perspective derives from a belief that parties are far less likely to attempt to resolve their issues under a no-fault system than under the current system in which spouses are required to be separated for at least 2 years in order to confirm that the marriage has irretrievably broken down.
The Family team at TWM echoes the perspective of Aidan Jones OBE, the Chief Executive of the relationship support charity Relate, who said: “This much-needed change to the law is good news for divorcing couples and particularly for any children involved. The out-dated fault-based divorce system led to parting couples to apportion blame, often resulting in increased animosity and making it harder for ex-partners to develop positive relationships as co-parents”. This is what we have identified in practice as well at TWM which is why we try hard to find solutions and to focus on commonalities rather than differences in the way we deliver our family services which include mediation, collaborative law and very skilled negotiation techniques. It is also worth pointing out that long and drawn out issues regarding the divorce itself will also likely have a negative impact upon subsequent negotiation regarding financial matters.
Parallel changes will be made to the law governing the dissolution of a civil partnership, which are now also available to heterosexual couples. The proposed legislation will not cover other areas of matrimonial law such as financial provision.
If you would like further information or advice in respect of divorce or financial matters please contact a member of the Family Law team at TWM.