The recently introduced Divorce, Dissolution and Separation Bill aims to reform the 50-year-old law on divorce in England and Wales. Changes to the divorce laws are to be introduced to enable couples to separate more quickly and with less acrimony. The Bill proposes several key reforms including, the introduction of no-fault divorce, an option to file a joint petition, and the replacement of the two or five year separation periods with a 26-week notice period commencing with the production of the divorce petition to the court.
Although most divorces are not defended, the new Bill would remove the power of one spouse to defend the application for divorce. This follows the media publicity following the case of Tini Owens, whose application to divorce her husband was rejected. The case ended up in the Supreme Court, who confirmed that she could not divorce her husband for a period of five years as her husband was defending the application. Mr and Mrs Owens had been living separately since 2015. Owens v Owens  UKSC 41 provided momentum for the campaign to introduce a no-fault divorce system. It was the first time that the Supreme Court had heard a divorce case itself, rather than the issues relating to finances or children. Its ruling came with some reluctance with Lord Wilson suggesting that it was a question for the government as to whether the law governing divorce remained satisfactory.
The current law, under the Matrimonial Causes Act 1973, is something of a mixture of a no-fault and fault-based system. It is no- fault in the sense that the ground for divorce is an irretrievable breakdown of the marriage. However, it is fault-based in that the only way one can prove there has been an irretrievable breakdown is by relying on one the “facts” of adultery, unreasonable behaviour, or desertion (for a minimum of two years).
The current system means that anyone who wants a divorce has to effectively “blame” the other person, unless they wish to wait and apply on the basis of a two-year separation (with consent) or five years separation (without consent). The fact that one of the parties has to accept the blame can cause animosity between the parties who are already going through a difficult time emotionally with the breakdown of their marriage. This can have an effect on how the parties treat each other and their approach to resolving issues, such as the financial arrangements and those for any children involved.
According to Resolution, a national organisation of family lawyers, 90% of members felt current legislation makes it more difficult for them to reduce any conflict and confrontation that can arise between divorcing couples. In addition, 80% thought that the introduction of no-fault divorce could encourage out-of-court agreements, with 67% claiming that the current legislation makes it more difficult to come to an agreement over the arrangements for children.
The relationship support charity Relate commented:
“This much needed change to the law is good news for divorcing couples and particularly for any children involved. The outdated fault-based divorce system led parting couples to apportion blame, often resulting in increased animosity and making it harder for ex-partners to develop positive relationships as co-parents.”
The Bill recently completed its committee stage and is due to have its report stage and third reading on a date to be announced. Of course, the Bill that eventually receives Royal Assent may not be exactly the same as the Bill that was introduced. Indeed, several amendments have been tabled in response to criticisms received, and the current parliamentary uncertainties may result in some delay.
The Bill is progressing through Parliament but is not, of course, yet law. This means that anyone applying for a divorce now has to use the current law and the person applying for the divorce has to demonstrate the marriage has irretrievably broken down.
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