A closer look at the new Divorce, Dissolution and Separation Bill

Family Law|June 17th 2019

As I’m sure the reader will be aware by now, last Thursday the Lord Chancellor David Gauke introduced the Divorce, Dissolution and Separation Bill into the House of Commons. The Bill intends to amend the law on divorce, civil partnership dissolution and judicial separation by doing away with the need to attribute blame, or fault, for the breakdown of the marriage/civil partnership (in the case of divorce and dissolution), and as a ground for obtaining a judicial separation. I mentioned the Bill in my weekly review post here last Friday, and now I thought I would take a closer look.

The Bill is actually quite short, containing just nine sections and a schedule, setting out the amendments that the Bill makes to previous statutes. The Bill is in three parts, headed “Divorce and judicial separation”, “Civil partnership: dissolution and separation”, and “General”. I will deal with each in turn, although as you may have guessed, the second part is just the civil partnership ‘version’ of the first part, so I won’t be spending much time repeating myself: just take it as read that whatever applies to divorce applies also to civil partnership dissolution. And I won’t be spending much time at all on the third part either.

OK, to section 1. This essentially states the new basis for a divorce, and the basic procedure.

As to the former, we are told that either or both parties to a marriage may apply to the court for a “divorce order”, which dissolves the marriage on the ground that the marriage has broken down irretrievably (i.e. the same ground as at present). Such an application must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably, and the court must take the statement to be conclusive evidence that the marriage has broken down irretrievably, and therefore make a divorce order. This “conclusive evidence” point has some lawyers and academics in a bit of a spin: surely, you can’t tell a court whether a thing is true – it must be up to the court to decide? Well, yes that is usually the case. But the point here is that the law will at last recognise that once one party decides that the marriage is over, then unless they change their mind it is over, and there is nothing that the court, or the law, or the state itself, can do about it.

Although not mentioned in section 1, it should be noted that the bar on petitions/applications for divorce within one year of marriage will remain.

As to the procedure, this will be in two stages, as at present, with the first stage culminating in a ‘conditional’ order (equivalent to the present decree nisi), and the second stage culminating in that conditional order being made final (equivalent to the present decree absolute). Again, there must be a six week gap between the two, but the big difference is that the conditional order cannot be made unless the applicant or applicants confirm that they wish the application to proceed, such confirmation having to be made after twenty weeks have elapsed since the proceedings were started. This is the so-called “period for reflection”, designed to give the parties time to reconsider. Personally, I think it is rather patronising for the state to think that they will have applied for a divorce without having already given the matter full consideration. I also think that twenty weeks is a very long time, meaning that even if everything is completely straightforward the quickest divorce is going to take at least six months. Why should people have to put their lives on hold for so long, just because the state says so? The Bill does provide that the periods can be shortened by the court “in a particular case”. Presumably, this would include those cases where one party has a terminal illness, and may not live long enough to get divorced before they die. The Lord Chancellor may also at a later date shorten or adjust the time periods, so long as together they do not exceed six months.

One other point of interest in section one is that an application made jointly by both spouses may subsequently proceed as an application by one spouse only, if one of the spouses changes their mind.

Moving on, section 2 deals with judicial separation. Again, there will be a modernisation of the terminology. The old ‘decree of judicial separation’ will be replaced by a ‘judicial separation order’. As one would expect, an application for an order may be made by either or both parties to the marriage, and must be accompanied by a statement that they seek to be judicially separated (no need to allege fault, etc.). The only other thing to say is that, once again, the court has no choice: upon receipt of an application the court must make a judicial separation order.

Moving on again, section 3 deals with dissolution of civil partnerships, and section 4 deals with separation orders for civil partners. I’ve had a look through both, and as far as I can see the amendments to the existing law are exactly as one would expect, matching the amendments to divorce and judicial separation law.

Finally, the last part of the Bill deals with general matters, in particular consequential amendments to the various pieces of affected legislation, most of which are to do with the terminology changes.

You can read the Bill as introduced, here.

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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