It was announced by Justice Secretary David Gauke on Tuesday 9th April 2019 that new legislation has been proposed to update the current divorce process.
Under current legislation, the spouse applying for the divorce must prove that their marriage has broken down irretrievably and rely on one of the following reasons for this breakdown:
- Unreasonable behaviour
- Desertion for more than 2 years in the past 2 ½ years
- Separation for more than 2 years and both spouses agree to divorce
- Separation for at least 5 years
The requirement to rely on one of these reasons has been criticised due to it forcing the applicant to apportion blame or fault, which often creates or adds to tension in an already difficult and emotive situation. Concern has been raised in relation to this, particularly in cases that involve children, as the maintenance of an amicable relationship for co-parents is clearly beneficial and in the best interests of any children involved.
The new proposals will retain the need for a couple to show that their marriage has irretrievably broken down, but will remove the need to rely on a particular reason for the breakdown, and instead require a ‘statement of irretrievable breakdown’. An option for a joint application for divorce will also be created, although one spouse will still be able to solely make the application.
These changes mean that spouses will no longer have to indicate blame for the breakdown of the marriage, and will better reflect the views of modern society where it is accepted that marriages do breakdown and that it is not always as a result of the faults or actions of one spouse.
Some familiarity will remain in that the current two-stage process of decree nisi and decree absolute will still exist. However, the timescales for this process will change with a new minimum timeframe of six months from petition stage to final divorce being implemented. This is made up of a period of twenty weeks from petition stage to decree nisi, and six weeks from decree nisi to decree absolute.
As the proposals stand, the ability to contest a divorce will be removed. This will stop cases such as Owens v Owens, where the husband defended the divorce on the basis that the wife’s claims of unreasonable behaviour were not unreasonable enough. This case left lawyers and their clients with no choice but to become more forceful in their assertions of blame when applying for a divorce, to ensure that their application would be successful. This was an unwelcome change to what family lawyers, who are focused on resolution, believed to be good practice and in the best interests of their clients.
The new proposals appear to be the start of a much-needed refreshment of the law, in order for it to not only reflect today’s societal views on divorce, but also to enable the maintenance and development of positive co-parenting relationships following the end of a marriage. This encourages the considerations of any children involved to be at the forefront of proceedings and for all proceedings, it allows for a reduction in stress and pressure during an emotionally taxing time.