The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
The Divorce, Dissolution and Separation Bill entered the parliamentary process on 7 January 2020. The bill underwent the second reading stage on 5 February 2020, and the committee stage is due to take place on 3 March 2020.
The bill was first introduced in June 2019 and is set to revolutionise the divorce procedure in England and Wales. The addition of the “no-fault” divorce will be the first major change to divorce legislation in over 50 years.
Currently, under the Matrimonial Causes Act 1973, the sole ground for divorce in England and Wales is “irretrievable breakdown”. Irretrievable breakdown must be proven by one of five facts, three of which are fault-based. These facts are unreasonable behaviour, adultery and desertion. The other two facts are based on a period of separation. If both parties consent to the divorce, parties are required to live separately for two years before they can begin the divorce procedure. If only one party consents, the period of separation required is increased to five years.
The current legislation does not allow couples to submit a joint divorce petition. Instead, one partner must provide evidence of the other’s “guilt” as to why the marriage has ended. Even if both partners consent to the divorce, couples are still required to live separately for two years. This can often result in one partner asserting a fault-based fact in order to speed up the process. Requiring a period of separation is also impractical for couples who cannot afford to rehouse separately.
In addition, divorce law in the UK allows for one party to contest the divorce, which can prolong the divorce procedure and cause further conflict. This is usually caused by one party disputing the allegations made in the divorce petition.
The current legal process can create hostility between parties, making it more difficult for couples to reach mutual agreements and can negatively impact their family. The new bill aims to remove this “blame game” by introducing the no-fault divorce, helping to facilitate families and encourage parties to cooperate.
The major changes that the bill will introduce include:
No-fault divorce - The new bill allows for one spouse, or the couple jointly, to give notice to the court that they wish to divorce. Instead of using the five facts to support their petition, a statement is required to detail the irretrievable breakdown of the marriage. No further evidence will be necessary to prove that the relationship has ended.
Removing the option to contest - The bill will remove the possibility of contesting a divorce. The court will take the statement of one or both parties as conclusive evidence that the marriage has broken down. This is important for victims of domestic abuse, whose partner may contest a petition in order to exert coercive control.
Twenty-week period of reflection - The bill will introduce a minimum wait period of twenty weeks between the start of the proceedings and the conditional order (the decree nisi). This will allow for a period of reflection, giving couples the opportunity to reconcile, seek mediation or counselling services. If separation is inevitable, this period will be useful to discuss important matters such as finances or child arrangements. The period of six weeks and one day between the conditional order and final order (the decree absolute) will be retained. In theory, this means that the entire divorce process should take no longer than six months.
Updating legal terminology - Terms such as “decree nisi”, “decree absolute” and “petitioner” will be replaced with more modern terms, including “conditional order”, “final order” and “applicant”. This is to make the legislation more accessible and easier to understand by the wider public.
These new changes will help to modernise the law governing divorce and remove the stigma surrounding divorce proceedings so that the legal system can help families rather than cause further problems. The bill will provide greater protection to victims of domestic abuse and seeks to minimise the impact of divorce on children, who are often exposed to the animosity of proceedings and may suffer emotional harm as a result.
The removal of the necessity to prove the irretrievable breakdown of marriage will prevent bizarre scenarios where couples cannot divorce. This is despite it being evident that the relationship has ended. One example includes the high-profile case Owens v Owens, where the wife was denied the right to divorce her husband. She was instead forced to rely on the fact of five-year separation.
The legal community has campaigned for many years for no-fault divorce to be introduced in England and Wales, especially as it is already widely available across the globe. It was initially set to be introduced through the Family Law Act 1996. However, these proposals were later repealed. The bill has been welcomed by family lawyers across the UK, who hope that it will make the divorce process more efficient, help to minimise costs and create more positive outcomes for clients.
For more information
Please contact Kadie Bennet.
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