Divorce law change – a long time coming!

10th April ‘19

The announcement by Justice Secretary David Gauke that new legislation is to be introduced to allow no-fault divorce has been a long time coming. Given the current Brexit turmoil and need for ‘parliamentary time’ to push the changes through, there will most likely be some time to wait, but it’s certainly a massive step in the right direction.

The current system requires one party to the marriage to accuse the other of adultery or unreasonable behaviour if they have not been separated for a period of at least two years at the time of applying for the divorce but even then, the other party’s consent will be required. This can often cause a lot of unnecessary animosity between the parties, particularly in cases where the decision to separate has been a mutual one.

The proposed changes to the law include:

  • Retaining the irretrievable breakdown of the marriage as the sole ground for divorce;
  • Replacing the requirement to provide evidence of a ‘fact’ around behaviour or separation with a requirement to provide a statement of irretrievable breakdown;
  • Retaining the two-stage legal process currently referred to as decree nisi and decree absolute;
  • Creating the option of a joint application for divorce, alongside retaining the option for one party to initiate the process;
  • Removing the ability to contest a divorce;
  • Introducing a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute).

The law currently only provides one ground for divorce – being that there has been an ‘irretrievable breakdown’ of the marriage, which would normally be proved by showing one of five facts (i.e. adultery, unreasonable behaviour, desertion, two- or five-years separation), but it is being proposed that these facts would be replaced with a simple statement that the marriage has irretrievably broken down. As it will not be possible to contest the divorce, the vagaries of what would or would not constitute an ‘irretrievable breakdown’ of the marriage are unlikely to be set out in the statute, as it will be based purely on the subjective view of the applicant.

Having the ability to jointly apply for the divorce is expected to be very popular and given that we will no longer have a fault-based system, costs orders are likely to be a thing of the past.

Although the current two-stage process will remain, there is a hint that the outdated Latin terminology of ‘decree nisi’ and ‘decree absolute’ may be replaced; perhaps with the slightly more accessible language of ‘conditional order’ and ‘final order’ currently used in the dissolution of civil partnerships.

In terms of the procedural changes, the biggest impact is likely to be the proposed mandatory minimum timeframe of at least 26 weeks to conclude the divorce; although with administrative and court delays this will probably be closer to 30 weeks. It is being proposed that there will be an imposed moratorium of 20 weeks from the start of the divorce to the decree nisi stage to provide the applicant(s) with a cooling off period before the divorce can be finalised.

The problem with this is that current rules only enable the Court to approve a financial settlement agreed between the parties after the decree nisi stage of the divorce, which at present takes between 6-8 weeks. It is not clear if this rule will be changed when the new legislation is brought in, as it would not be in anyone’s interest to delay a financial agreement being approved for a period of 5-6 months.

Experience has shown this just leads to further issues arising being the parties in the interim and goalposts being moved, which inevitably leads to the whole situation being reopened, and litigation.

At this very early stage in the process, it’s expected that the proposed changes set out by the Justice Secretary will undergo significant amendments as it makes its way through Parliament and is scrutinised by Ministers. However, as long as the principle of a no-fault based system remains, whatever the final outcome, it can only be for the better.

If you are looking to divorce or separate from your partner, or in the process of doing so, and require legal advice, please contact Naheed Taj on 020 3998 2028 or [email protected]

This paper is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.

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