Divorce Reform for the Modern Age

A step in the right direction…

Divorce is never going to be an easy thing for families but the recent outcome in the Supreme Court case of Owens v Owens has generated more questions concerning the current legal requirements for a fault-based divorce or dissolution of a civil partnership, and what this means in practice (you can read more about it here.

The current legal requirements in England and Wales for a divorce or dissolution of a civil partnership are:

a) The marriage or civil partnership has irretrievably broken down; and

b) One of the five facts are relied upon in their petition to the Court. These are: adultery, unreasonable behaviour, desertion for at least two years, two years of separation with consent and five years separation without consent. (N.B. Adultery can not be relied upon within a dissolution for a civil partnership)

Justice Secretary David Gauke has published a consultation and proposes to replace the requirement to evidence conduct or separation as a fact relied upon for divorce or dissolution. The Government further proposes a six-month minimum timeframe, before an application for Decree Absolute can be made after the Decree Nisi order.

This paper is called ‘Reducing family conflict’ and in summary, the paper outlines the following proposals;

1) To abolish the requirement for a Petitioner to give evidence of the Respondent’s conduct or separation to justify to a court the reason for the breakdown in their marriage. To further replace this with a notice of irretrievable breakdown of the marriage or civil partnership, being the sole grounds for a divorce or dissolution.

If this proposal is approved, it will remove the ‘blame game’ and fault of the other party in order to satisfy an outdated legal requirement. It will also reduce the cost, prevents delays in procedure and avoid unnecessary conflict between the separating parties, which can be especially damaging where there are children involved.

2) To abolish the ability of a spouse to contest (or defend) the divorce or civil partnership.

If this proposal is approved, it will avoid the opportunity for spouses to continue to exert control and coercion upon the Petitioner and to stop this element being used as ‘a bargaining chip’ in negotiations about finances and children, and not encourage a focus on past behaviours.

When a relationship has completely broken down, the only focus between the parties should be the future and the welfare of the children involved, and sorting the financial consequences of the breakup.

The proposals highlighted by the Justice Secretary only relate to a narrow part of the law within a divorce or dissolution of a civil partnership. However, if approved this would have a substantial impact on families, where the majority of Petitioners rely upon unreasonable behaviour of the Respondent (the other party’s conduct).

This consultation is aimed at Parliamentarians, the family judiciary, family law practitioners, academics, support organisations and members of the public with an interest in family conflict, children’s wellbeing or the legal requirements for marriage and civil partnership dissolution in England and Wales. It runs from 15 September to 10 December 2018, and a response paper is due to be published by 8 March 2019.

The Justice Secretary seeks responses from anyone with an interest on this paper, and you can enter your responses here.

For further information or advice on any element of Family Law, please contact a member of our Family Law team at family@woodfines.co.uk