The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
Currently, under the Matrimonial Causes Act 1973 the only ground for divorce is that the marriage has irretrievably broken down.
In order for the court to hold that the marriage had broken down irretrievably, the petitioner must satisfy the court that one or more of five facts applies. Three of those facts are fault based: adultery; unreasonable behaviour and desertion. The other two facts relate to periods of separation, either two-years, if both parties consent, or five years without the respondent's consent.
A reform to divorce law was announced in April 2019, but this is not the first time that a change in the law has been considered. The Family Law Act 1996 made provisions for no-fault divorce, which were, ultimately, not implemented and subsequently repealed. Part 2 of the Family Law Act 1996 would have introduced no-fault divorce and would have required the parties to attend information meetings to encourage reconciliation where possible. Following the trial of these information meetings in 2001, the then Government concluded that the provisions were unworkable.
Divorce reform was once again thrust into the media spotlight following the 2016 decision in Owens v Owens in which a judge in the Central Family Court refused to grant Mrs Owens a decree nisi of divorce based on her husband’s unreasonable behaviour. Unusually, the husband had chosen to defend the divorce (defended divorces are very rare in practice). The judge found that Mrs Owens had failed to prove, within the constraints of the law, that her husband had behaved in such a way that she could not reasonably be expected to live with him (a requirement of the unreasonable behaviour provision).
Mrs Owens appealed to both the Court of Appeal in 2017 and the Supreme Court in 2018. Both courts dismissed her appeal. The judges in both courts, although recognising that the Owens’ marriage was clearly broken down, ruled that it was for Parliament, and not the judiciary, to change the law to enable such a marriage to be dissolved.
In September 2018, the Ministry of Justice published the ‘Reform of the Legal Requirements for Divorce’ consultation paper. The consultation, which closed on 10 December 2018, sought views on replacing the current requirements with a notification-based process.
On 9 April 2019, the Government published its response to the consultation announcing, that legislation would be introduced,as soon as parliamentary time allows, to remove the legal requirement to make allegations about spousal conduct or to live separately for up to five years. David Gauke, Lord Chancellor at the time, said that the Government would continue to support marriage but that the law should allow people to move on constructively when divorce is inevitable, and that this would benefit children.
Currently, there is no timeline for the introduction of the new legislation. However, it is widely thought that Parliament will not consider the legislation until there is a resolution regarding Brexit. Given that delays could continue until or beyond October 2019, it is unlikely that we will see any progress in respect of divorce reform until that time. It is also unclear whether the reforms will take immediate effect or whether there will be staged implementation. It is, however, clear that it will be necessary to have a period where both schemes run concurrently, and practitioners may have to deal with petitions under the old fault-based scheme as well as new petitions under the new scheme.
Turning to the proposals, in short, the Government proposes to:
- Ground for divorce
Retain the ground for divorce, (irretrievable breakdown) whilst replacing the requirement to evidence fault or separation. Instead of the petitioner satisfying the court of one of the five facts (adultery, unreasonable behaviour, desertion, separation of two years, or separation of five years), the petitioner will be required to give a statement confirming that the marriage has irretrievably broken down. This will likely need to be verified by a statement of truth whereby the petitioner confirms that the information they have given to the court is true to the best of their knowledge and belief.
Proceedings for contempt of court may be brought against a petitioner who makes a false statement in a document verified by a statement of truth. It is envisioned that the repercussions of making a false statement would act as a deterrent to launching divorce petitions on a whim.
- There will be an option for a joint application
Currently, there is no option for couples to petition for a divorce on a joint basis. The only option is for parties to be either the petitioner or respondent to a petition which can, inevitably, cause conflict. Removing this requirement should allow for more amicable petitions wherein both parties feel in control of the process and allow for the court to formally recognise that dissolving the marriage is a joint, autonomous decision made by two consenting parties. It’s hoped that this, in turn, could reduce acrimony in subsequent children and/or financial issues.
- Removing the opportunity to contest a divorce
This is arguably one of the more controversial proposals put forward by the Government. Until the new legislation has been fully drafted, there is an element of ambiguity as to how this will effectively work in practice. The Government has confirmed there will still be some scope for some grounds for challenging an application for divorce. However, the full scope of when these challenges can be raised is not yet known. It is thought, given the petitioner in divorce no longer needs to place reliance on any fault-based grounds, an application can be made based on a unilateral decision, which once made is determinative of the divorce. It will be interesting to see any case law surrounding defended divorce following the implementation of the scheme.
- Minimum time frame of six months
Currently, save for a statutory period between the pronouncement of decree nisi and the pronouncement of a decree absolute (six weeks and one day), there is no minimum time stipulated from petition stage to decree absolute. Under the Government's proposals, there would be an introduction of a minimum time frame of six months from petition stage to the decree absolute (the final decree of divorce). Although it is acknowledged in exceptional circumstances, the court would allow a shorter period (those exceptional circumstances are yet to be defined).
A minimum time frame would allow parties to have a period for reflection, to ensure proper consideration of their decisions and the finality of a divorce. Others would suggest that this is overly paternalistic of the Government and does not credit the parties with the autonomy of their decisions.
In practice, practitioners will be aware that due to the overstretched court administration and judicial availability, divorces are currently taking over six months from petition stage to decree absolute. Currently, our experience is that the timescale for obtaining a decree absolute is between eight and ten months. Whilst the court is working hard to address this issue, it is unlikely to eradicate the administrative delay completely.
- Retention of the two-stage decree process
The Government is proposing to retain the two-step process of applying separately for the decree nisi and decree absolute. Again, it is thought that this process is being retained as a form of a ‘cooling-off’ period to allow the parties time for reflection and consideration of the finality of the divorce process.
- Retention of the bar on divorce and dissolution applications in the first year of marriage
The current proposals retain that parties cannot make an application for divorce or dissolution if they have been married for less than one year.
- Modernising the language used within the divorce process
Finally, the Government is proposing to modernise the language to reflect the changing social climate and to help parties reduce contention and embrace an amicable resolution. The language to be implemented is not final, but it is thought that one of the changes will be to remove the classification of ‘petitioner’ and ‘respondent’. Instead, perhaps, referring to the parties as more neutral terms such as ‘party one’ and ‘party two’.
Overall, having joined in the campaign for change (as supported and endorsed by many family lawyers and the Family Law Group – Resolution), we here at Anthony Collins Solicitors fully endorse the change and proposals made by the Government. We believe that giving parties greater control and autonomy in making these decisions and removing the blame and fault-based nature of divorce will ultimately help to support people to reach amicable solutions and to make decisions in the best interests of both themselves and their children.
The decision to end a marriage is understandably one of the hardest decisions to make. Regardless of the reasons for that decision, we aim to help, support and advise our clients during this difficult time and guide them towards the best outcomes for their individual circumstances.
We will update you further when the Government release the draft legislation and provide further clarity. In the meantime, should you have any queries about the process of divorce under the current legislation, please do not hesitate to contact Kadie Bennett, or alternatively you can contact the matrimonial team on 0121 212 7417.
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