Are the proposed divorce reforms just about changing timeframes?

Divorce|Family Law|February 11th 2019

When the news broke the other day that the Lord Chancellor, David Gauke, has confirmed that he will introduce legislation enacting no-fault divorce in the next session of parliament I tweeted a link to the story on Twitter. My tweet received a response suggesting that in the view of the tweeter the introduction of no-fault divorce will change little, save for the timeframes involved in getting divorced. I have heard this before, and suspect that it is a widely-held view. But is it correct?

To answer the question one obviously needs to look at the current law and the proposed new law. A look at the figures for the number of divorces granted per fact proven (I will explain this in a moment if you do not know what ‘fact proven’ means) will also not go amiss.

Let us begin with the current law. There is only one ground for divorce: that the marriage has irretrievably broken down. This will not actually change under the government’s proposals for reform. However, under the current law it is necessary to demonstrate irretrievable breakdown by proving one of five facts: that the other party has committed adultery and the petitioner finds it intolerable to live with them; that the other party has behaved in such a way that the petitioner cannot reasonably be expected to live with them; that the other party has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the other party consents to the divorce; or that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

Note that fault is only attributable in relation to the first two facts. However, those two facts account for the majority of divorces. The most recent figures available are for 2017. In that year there were a total of 101,337 divorces granted. Of those 58,234 were on the basis of adultery or ‘unreasonable behaviour’, or a combination of both. In other words, some 57 per cent of divorces were fault-based.

There is one more thing to consider before moving to the reform proposals. How long does a divorce actually take? Well, it varies greatly, depending upon many factors, including how quickly the parties deal with the divorce (or how quickly they want to deal with it), and of course how quickly the court/divorce centre deals with it. However, if it is dealt with as quickly as possible I suppose it could go through within three months, although that is very unusual – three to six months is more likely, according to the latest figures. That figure includes a statutory minimum period of six weeks between the decree nisi and the decree absolute.

So it could be said that under the current law a divorce could in theory go through within three months of the ‘moment of breakdown’ if a ‘fault’ fact is proved, assuming that the ‘moment of breakdown’ is when one party decides the marriage is over and they want a divorce. On the other hand, if the only fault provable is five years separation it would take a minimum of five years from the moment of breakdown (assuming the beginning of the separation was the ‘moment of breakdown’ – it may not be) plus three months, i.e. five years and three months.

And what does the government propose?

It proposes that the five ‘facts’ be done away with, i.e. the petitioner will no longer have to prove one of them. A statement by one or both parties that the marriage has irretrievably broken down will suffice. However, the government believes that there should be a minimum timeframe for the divorce “to allow due consideration of the decision to divorce”. To achieve this they suggest that the period between decree nisi and decree absolute be increased to a minimum of six months.

So it could be argued that the reform will change the timeframes involved in divorce. And not just by reducing them, as in desertion and separation cases. For some it may actually take longer to divorce, if the six month ‘period for consideration’ is brought in. Assuming that under the new law it could still be possible to get a decree nisi within a month and a half of issuing proceedings, the minimum time for a divorce could be some seven and a half months, in all cases.

In summary, the minimum time for a divorce under the government’s proposed new system will reduce from five years and three months for a non-consent separation divorce, to just seven and a half months. On the other hand, the minimum in a ‘fault-based’ divorce would actually increase, from three months to seven and a half months.

But all of this is of course missing the main point of no-fault divorce. As we have seen, currently in 57% of cases petitioners are attributing blame for the marriage breakdown on the other party. They are doing this because they don’t want to wait two (or, worse still, five) years before they can issue divorce proceedings. And why should they have to wait?

So in nearly two-thirds of divorces we have the spectacle of blame. OK, in many cases the other party may not be too bothered about being blamed, or about the allegations of their unreasonable behaviour made by the petitioner. But in a lot of cases they will be bothered. This will make them less amenable to resolving other issues by agreement, such as in relation to finances and arrangements for children. It may even make them want to enter into the disaster that is a defended divorce. In both cases (issues not resolved by agreement and defended divorce) long, acrimonious, expensive and stressful contested court proceedings could ensue.

Attributing fault for the breakdown of the marriage can have awful consequences, not just for the parties but also for any children involved. And it is entirely unnecessary. As must now be clear to all, there is no need whatsoever to attribute fault for the breakdown of a marriage. So why not do away with it, and its consequences? That is really what the reforms are about.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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