No-Fault Divorce is on the way
The Divorce, Dissolution and Separation Bill underwent its second reading in Parliament last week. It aims to introduce monumental changes to the procedure for obtaining a divorce in England and Wales.
Since the introduction of the Matrimonial Causes Act 1973, parties to a marriage (and, since 2004, a Civil Partnership) had to prove that the marriage had broken down irretrievably before they could be granted a divorce. Irretrievable breakdown of the marriage is proved by establishing one of five facts, namely:
- Unreasonable behaviour;
- 2 years’ desertion;
- 2 years’ separation, provided the other party consents; or
- 5 years separation.
The spouse against whom the divorce proceeding were issued could contest the divorce, which, if successful, could result in an unhappy spouse being locked into marriage with no hope of getting out or triggering the financial claims that arise on divorce until the parties have been separated for more than 5 years. This is what happened in the case of Owens v Owens, who separated from her husband in 2015.
Owens v Owens: Unreasonable law not unreasonable behaviour?
Mr Owens contested the divorce on the grounds of his behaviour and convinced the court that he had not behaved in such a way that his wife could not reasonable be expected to live with him. He would not consent to a divorce on the basis of 2 years’ separation, so she now has to wait until 2020 before she can start divorce proceedings on the 5 years’ separation ground. The decision was upheld in the Supreme Court.
The case caused great public outcry and was generally felt unfair to Mrs Owens. Whilst, in most cases, divorces are allowed to proceed undefended, even if the facts are not agreed, the case of Owens highlighted the risk that a determined Respondent facing a weak unreasonable behaviour petition could hold up the divorce, and therefore the resolution of financial claims for over 5 years from when the parties separated, therefore preventing their spouse from being able to move on with their lives.
For many years, family lawyers, have campaigned for no-fault divorce and there is a lot of evidence to show that the ‘blame game’ of divorce in England and Wales can be very destructive to families as it increases tensions and acrimony. The new bill is intended to remove this
According to the explanatory notes in the Bill, it is intended to:
- Replace the requirement to provide evidence of conduct or separation facts with a new requirement to provide a statement of irretrievable breakdown.
- Remove the possibility of contesting the decision to divorce, as the statement of irretrievable breakdown is to be taken as conclusive evidence that the marriage has broken down irretrievably. (Divorce proceedings will still be able to be challenged for other reasons including jurisdiction, validity of the marriage, fraud and procedural compliance.)
- Introduce a minimum overall timeframe of six months (26 weeks) into the divorce process, made up of a new period of twenty weeks between the start of proceedings to when the application can be progressed to conditional order (there is currently no minimum period between these stages), and the current minimum timeframe of six weeks between the grant of a conditional order (decree nisi) and when the order can be made final (decree absolute).
- Enable the Lord Chancellor by order to adjust the time periods between the start of proceedings and confirmation to the court that the conditional order of divorce (decree nisi) may be made and between the conditional order and final order (decree absolute) stages, subject to the proviso that the total period may not exceed 26 weeks (six months).
- Introduce a new option of a joint application for cases where the decision to divorce is a mutual one, in addition to retaining the current ability of one party to initiate the legal process of divorce.
- Update terminology, for example replacing terms such as “decree nisi”, “decree absolute” and “petitioner” with “conditional order”, “final order” and “applicant”. 14. The relevant changes above are also reflected in the changes being made to applications for separation orders; removing the ‘fact’ requirement in separation proceedings and replacing this with a statement that the applicant seeks (or both applicants seek) to be judicially
What this means is that, either one or both parties can apply to the court to end the marriage by filing a statement stating that the marriage has broken down irretrievably. There is no requirement to explain the reasons for this. The court MUST make an order not less than 20 weeks after the ‘start’ of the proceedings, provided either the applicant (or, in the case of a joint application, both parties) have indicated that they wish the divorce to proceed. This is in the form of a conditional order. The final order is then made not less than 6 weeks after the final order.
Whilst the removal of ‘grounds’ for divorce based on behaviour or adultery It remains to be seen what effect this will have on spouses who were not expecting and do not wish to be divorced. There does not appear to be any provision to allow the non-applicant spouse to stop the divorce being made final. The bar on issuing divorce proceedings within the first year of the marriage appears to remain. The new provisions will apply to applications in relation to Civil Partnerships and to Judicial Separation proceedings. It remains to be seen whether there will be a way of holding up the final order until a financial settlement has been reached.
The progress of the Bill through parliament appears to be very quick, with the first and second readings taking place very soon after each other. The next stage will be for the Bill to be considered by a Parliamentary Committee of MPs who will go through the Bill in details and report back to the House of Commons, making recommendations, before the Bill goes through the final stages. It is not clear how long this process might take. Spouses who are looking to start divorce proceedings but who’s other half are likely to be difficult may wish to wait to see when the new process will be introduced. However, it is worth noting that the government tried to introduce no-fault divorce in the 1996 Family Law Act. The provisions were never introduced, and eventually revoked, so it is not certain that the new law will be brought in or that it will not be delayed until the Government has finally dealt with Brexit.
If you have any questions about this article, or want to arrange a free, no-obligation initial meeting with our family law specialist, Andrew Hill, please contact our Kendal office on 01539 723757.
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