Under the previous regime, a divorcing party was required to prove irretrievable breakdown by blaming the spouse’s unreasonable behaviour, or alternatively adultery, or else wait for at least two years before commencing a divorce by consent, or five years where the consent of the other party was not required.
This lead to the absurd position where one party could seek the dismissal of a petition brought by their spouse by arguing that the marriage had not broken down and the petitioner’s case was at best exaggerated or at worst a fabrication. A particularly recent example of this is the 2018 case of Owens – v – Owens in which Hugh Owens contested his wife Tini’s divorce petition, brought after 40 years of marriage, on the grounds of unreasonable behaviour. The lower courts found that though the marriage had broken down, the wife’s 27 examples of her husband’s unreasonable behaviour were exaggerated isolated incidents, and therefore the marriage had not broken down irretrievably. The Wife appealed to the Supreme Court, which dismissed her appeal and ruled that Mr & Mrs Owens must remain married for the time being. Their Lordships invited Parliament to consider the law in respect of divorces.
In No Contest: Defended Divorce in England and Wales, published in 2018 by the Nuffield Foundation, Professor Trinder and Mark Sefton say:
“While respondents are typically focused on defence as a means to establish their ‘truth’ of why the marriage broke down, the family justice system is predicated on settlement and compromise. That settlement orientation applies even in cases where a formal defence has been issued, with encouragement to settle at each stage of proceedings, up to and including, contested hearings. The very active promotion of settlement at each stage, with lawyers and judges working in concert, reflects the dominant family justice perspective that agreed outcomes are less costly and damaging, that trying to apportion blame is a fruitless and inherently non-justiciable task and that defence is futile where one party has decided that the marriage is over.”
Our family solicitors are members of Resolution, an organisation which has long campaigned for no-fault divorce on the grounds that the legal requirement to assign blame makes it harder for (1) couples to reach an amicable agreement and (2) family lawyers to resolve issues in a constructive way. Resolution proposed a new divorce procedure where one or both partners can give notice that the marriage has broken down irretrievably, and that is the substance of the new Act.
The new system is expected to come into force by the end of 2021 after a period of implementation during which court, online and paper processes will be substantially revised to reflect the Act’s provisions. The key points are:
The five ‘facts’ of divorce (adultery, unreasonable behaviour, separation for 2 years, separation for 5 years or desertion) will be replaced with a statement that the marriage has irretrievably broken down, without the need to provide evidence.
It will not be possible to contest a divorce petition and the Statement (and therefore petition) itself stands as conclusive evidence that a marriage has broken down.
A couple will be permitted to make a joint application for a divorce – at present only one spouse can apply for a divorce.
There will be a minimum 20-week period between the start of a divorce and the grant of a Decree Nisi – which will now be known as a ‘conditional order’. The six-week period between Decrees Nisi and Absolute – which will now be known as a ‘final order’ – remains.
Changes in terminology will make the process and forms more accessible and easier to understand.
Coupled with wide-ranging procedural changes whereby the paper system will move entirely online by (hopefully) the end of the year, this legislation is a welcome and progressive step towards ending costly and distressing litigation like the Owens case which will promote constructive engagement as between divorcing couples. In turn, this should make it less emotional, less traumatic and less acrimonious, which is to be applauded, particularly where a couple have children, who so often become unwitting pawns in a legal process which can so easily become acrimonious and painful.
The new system is designed to remove the potential to engage in needless hostility over the reasons for divorce, but only time will tell whether the new system improves the lot of the divorcing couple: it would be a shame if attempts to remove acrimony result in pushing the acrimony ‘underground’, so I think it is important for solicitors and divorcing couples not to let negative emotions brought about by a divorce fester away on the inside.
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