09 April 2019
Ministry of Justice announces huge shake up in divorce law
The Ministry of Justice has announced its intention to introduce 'no-fault divorce'. This follows a public consultation where family law professionals, including lawyers from B P Collins, as well as those who had experienced divorce first-hand, gave their support for reform.
Under 50-year-old divorce laws in England and Wales, there is currently a requirement to establish one of five facts – that your spouse has committed adultery, has behaved in such a way that you can’t reasonably be expected to live with them, has deserted you (and you have lived apart for two years), or you have lived apart for two years (if both consent to the divorce), or five years if not – in order to prove that the marriage has broken down.
This legislation, introduced in 1969, is thought by many to require one spouse to lay blame upon the other for the breakdown of the marriage (despite our system being no fault), and so was said to cause animosity and conflict. It also often led to couples who had grown apart and who wanted to divorce without a two-year wait having to cite a number of things that their spouse did or did not do, which would be referred to as 'unreasonable behaviour' and so could be a wholly artificial situation.
So change is needed particularly as the nature of relationships and our attitude towards those which have broken down is vastly different to that of 50 years ago, when many felt it was better for all, including for children, to 'put up and shut up' and remain in an unhappy marriage.
New legislation is expected to be introduced as soon as parliamentary time allows and the changes envisaged are thought to include:
- that the sole ground for divorce will remain the irretrievable breakdown of a marriage, but that to be established by the filing of a statement asserting irretrievable breakdown;
- a joint application for divorce (although it will also remain possible for one spouse/ partner only to initiate the process);
- the two stages of decree nisi and decree absolute remaining, but that there will be a minimum timeframe between the filing of the petition and decree nisi (the interim decree) of six months. The intention of which is to provide a period for reflection about the relationship or, where divorce is inevitable, time to deal with arrangements for children and financial matters. The minimum period after decree nisi and before an application for decree absolute can be made, it is thought, will remain at six weeks and one day; and
- the removal of the ability to contest a divorce, which makes a lot of sense because if one spouse has determined that a marriage has broken down irretrievably then there is unlikely to be a reconciliation, and a defended divorce will only mean a couple having to go through a difficult, hurtful and unhappy period of delay as well as having a much higher legal bill.
It has been suggested by some that these reforms will make divorce 'too easy' and that it will undermine the institution of marriage. "That," Sue Andrews, family partner at B P Collins, says, "is nonsense. Anyone going through a divorce knows how emotionally difficult and draining the breakdown of a marriage, indeed any relationship, is. It is rare that the person who starts that conversation does so without first having had much deliberation and worry, and for the other person there will be feelings of anger, hurt and distress.
"Both spouses are likely to feel regret for the loss of what they had and the future they were supposed to have. There may also be feelings of guilt and for both the need to ensure that their children are upset and hurt as little as possible. Divorce and separation will never be easy.”
Justice Secretary David Gauke said:
“While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples.”
The government added:
“These reforms retain what works well in existing divorce law and removes what stands in the way of resolving difficulties more amicably when a marriage has irretrievably broken down and requires an orderly, legal ending."
Sue Andrews, who spoke of change coming in the Sunday Telegraph's Stella, commented:
“The government hopes that these changes in divorce law will result in less acrimony between divorcing couples by ending the blame game. However, these changes are to the process of divorce, and are not a cure all for taking away the pain of separation, and the divorce is no more than the process of giving legal recognition to the breakdown of a marriage.
"In our experience acrimony stems from how spouses treat each other and react to the breakdown of their relationship. It can have a lot to do with finding out that their spouse was in another relationship, fear of the future, not being with their children each day, having to share what one person feels is their hard-earned resources or fear of not coping financially.
"So although this change is welcomed, respect and communication between spouses, having counselling, being honest, not rushing into anything and choosing your lawyer carefully are essential in achieving a clean and amicable divorce.”