The Nuffield Foundation has published a report presenting the findings of a project to explore the legal and procedural details of the divorce process in selected other jurisdictions. The report is designed to inform the current Ministry of Justice (‘MoJ’) consultation on reform of the ground for divorce and dissolution in England & Wales.
As the report explains, the MoJ is proposing that the sole ground for divorce of irretrievable breakdown should be evidenced by a new notification system or waiting period. The report examines what lessons can be drawn from the experience of notification and/or separation-based divorce in eight comparable jurisdictions: Australia, California, Colorado, Finland, Germany, New Zealand, Spain and Sweden.
Having never really studied divorce law in other jurisdictions, I find the report quite fascinating, both in terms of how similar different jurisdictions are in some respects, and how different they are in other respects. Overall, though, the report makes the important finding that jurisdictions are converging “towards recognition that a divorce must be granted where one or both parties insists that the marriage is over and away from scrutiny of a decision to divorce according to objective standards.” This is surely excellent news for the people of the countries/states concerned and, as the report says, indicates that the MoJ’s proposal to remove fault is fully consistent with international trends.
The report looks at various aspects of divorce law and procedure in the various jurisdictions, ranging from the grounds of divorce, through the different parts of the process, to whether the divorce can be opposed, and a number of other details.
The centrepiece of the report is a tabular summary of the law and procedure in England and Wales (at present) and the eight other jurisdictions. This sets out in an easy to read form all of the aspects mentioned above. To pick out a couple of the interesting facts at random, we find that most of the other jurisdictions have not had major reforms for almost as long as we have here (suggesting that we are rather behind the times), that Spain, Sweden and Finland do not have any grounds for divorce (and no available defences), and that in all countries/states save for England and Wales and Germany the court must approve or determine child arrangements before the divorce goes through (this was also the case here until 2014).
The report then examines various aspects of the divorce law and procedure in the different jurisdictions, and sets out possible implications for the MoJ to consider when deciding exactly what form our new divorce system should take.
I won’t comment on all of the points here, as I have not given detailed consideration to all of the various details of any new system. However, I do find the following points interesting:
- That there is a trend away from requiring any ground for divorce at all. Here, it is expected that we will keep irretrievable breakdown as the ground for divorce, but do we even need that? As the report says, in Spain, Sweden and Finland divorce is a right and, in the absence of a divorce ground, no proof is required.
- Most other countries do not have our two-part divorce process (decree nisi and decree absolute). Do we really need this?
- Our proposed six month notification period is in line with many other jurisdictions. As I have mentioned before, I wonder whether that is too long, although I don’t expect the MoJ/government to agree to a shorter period.
- The report says that in some jurisdictions defence of the marriage remains possible in theory, but is futile in practice. Quite. No jurisdiction has a specific provision to allow a respondent to register their wish to remain married. This must be the right way.
- Lastly, the report finds that a specific provision on the minimum duration of marriage is relatively unusual. Here, we have a bar on divorce petitions within one year of the marriage, and the government is proposing that that be kept. But is it really necessary? Clearly, other countries/states think not. After all, it is quite possible (and not unheard of) for the parties to a marriage to realise very soon after the wedding that they have made a mistake. Why should they be forced to lose one year of their lives because of a mistake?
Ok, I’ll leave it there. For further details, you can find the full report here.