In June 2019, the Secretary of State For Justice, David Gauke, introduced a ground-breaking bill into the house of commons. The ‘divorce, dissolution and separation bill’.
This Bill, once enacted, will enable individuals in both England and Wales to obtain a divorce by simply filing a joint statement that the marriage has broken down irretrievably, without any need to illustrate that the other spouse’s, or civil partner’s, behaviour is unreasonable, or to prove that they have been living separate and apart for two consecutive years.
The current law surrounding divorce can make separations unnecessarily acrimonious, with ‘fault-based’ divorce (unreasonable behaviour or adultery) taking as little time as four to six months compared to ‘no-fault’ divorces which cannot even get off the ground for a minimum of two years from the time one party or the other determines the marriage is over. From 2016 to 2018, the ‘unreasonable behaviour’ ground accounted for nearly half of all petitions for divorce in England and Wales.
Not only will the Bill remove unnecessary “mudslinging”, but it will prevent the other spouse from refusing to cooperate in the proceedings, as the statement of irretrievable breakdown will, of itself, be conclusive evidence that the marriage has failed. Although such contests are rare, the case of Owens v Owens illustrates that if one party has the motive and the financial means to defend an unreasonable behaviour petition, the other can be left tied into the marriage until as long as five years after the separation (when the Respondent party’s consent is no longer required.) In 2018, the Supreme Court unanimously refused to grant Tini Owens’ divorce petition on the grounds that she was unhappy within the marriage. Going forward, the Bill provides that contests will only be legitimate on the basis of jurisdiction, coercion or fraud, or the legal validity of the marriage.
However, the ‘no fault divorce’ is not without its critics. Many argue that ‘no fault divorce’ could hasten the end to a marriage that could be salvageable if given time and that the current two-year separation requirement allows couples time to reflect. In short, some say that the no-fault principle undermine the sanctity of marriage.
Nevertheless, the Bill has accommodated these criticisms by the introduction of a new minimum period of 20 weeks between the start of proceedings and confirmation to the court that the conditional order should be made. This delay is in addition to existing time bars, namely, petitions for divorce cannot be filed until after the first anniversary of the marriage, and the mandatory six-week gap between Decree Nisi and Decree Absolute.
Regardless, no-fault divorce will help couples to move on as amicably and constructively as possible, as Gauke has stated: “The requirement for one person to blame the other...can introduce or worsen conflict at the outset of the process, conflict that may continue long after the legal process has concluded.” It is also the case that a long hard slog over the approach and content of the divorce itself can “bleed into” the subsequent financial negotiating, making those too all the more entrenched.
For a while it seemed unlikely that these changes would be effected swiftly. Sir Paul Coleridge, head of the Marriage Foundation, which ran a successful campaign to bring forward the reforming legislation, said the Bill would ‘inevitably be a casualty of the proroguing of parliament’. However, since Parliament has resumed, no-fault divorce is very much back on the agenda. Ultimately, the constraints of the current legislation and the negative impact it has on both the couple and any children from the relationship can no longer be ignored.
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