Long awaited divorce reform

Divorce|Family Law|June 25th 2019

Today, Tuesday 25 June 2019, MPs will consider the ‘Divorce, Dissolution and Separation Bill” at its second reading in the House of Commons.

The current law dates back to 1969 and there have been many significant changes in the intervening 50 years.

Divorce law in England and Wales has been long overdue for reform. Successive governments have resisted such pressure from many different sources, including the Judiciary, family lawyers, those working with families where relationships have broken down and Members of the House of Lords and Members of the House of Commons.

The present government is to be congratulated on carrying through its promise to introduce reform which will spare many families unnecessary distress, grief and anger.

The existing law requires one party to prove to the satisfaction of the Court that their marriage has broken down irretrievably, but they can only do this by relying either upon “fault” (ie adultery or unreasonable behaviour) or upon two years separation with the other person’s consent or five years separation.

The clear majority of petitions that go through the Courts at the moment are “fault-based”, nearly 60%.

Very few divorces are defended.  Only last year, the then President of the Family Division, Lord Justice Mumby, calculated that in the year to January 2017, no more than 0.015% of divorces were defended.  In other words, we already had divorce by consent.

The Government accept that the law as it is, often requiring one person to blame the other entirely for the breakdown of the marriage, does not serve the interests of society as a whole; does not help family relationships to heal and damages any prospects for couples to reconcile and focus upon the best interests of their children.

Instead, the Government’s view is that the law must deal with the reality that marriages and civil partnerships breakdown, beyond repair, and has to do so with the minimum of acrimony and not exacerbate conflict.

Therefore, the bill now before parliament proposes that:

The requirement to provide evidence of someone’s behaviour or separation will no longer be required.

What will be required is a statement of irretrievable breakdown and that will be treated as conclusive.

It would not be possible for divorce proceedings to be defended.

For the first time, couples can make an application for divorce.

There will be a minimum overall time frame of 6 months (26 weeks).

If the provisions of the Bill become law with the Royal Ascent, it will mark a breakthrough in making a very painful, distressing process, easier for both parties concerned and their children.  It will enable them to move on in their lives with dignity, respect and allow them to focus on what is best for their children.

The law in relation to resolving financial issues following separation and divorce remains unaltered.

One issue which the Bill does not need to deal with is the ever-increasing time scale for dealing with undefended divorces now.  Despite the introduction some years ago of “divorce centres” to process the paperwork, even undefended divorces are now taking well over a year.

If the changes which the Government proposes are to have real and lasting effects, this indefensible delay needs to be dealt with.

Graham Coy

25 June 2019

Graham is based at the firm's London Chancery Lane office. His career as a family law specialist has spanned three decades. He is an experienced advocate, mediator and arbitrator who has worked in all areas of family law.

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Comments(2)

  1. David says:

    Just because someone doesn’t defend themselves against something doesn’t mean that they consent to it. As evidenced by the decline in UB petitions North of the border when separation without consent became a ground after 2 years which then quickly became the majority, rather than 1 year with consent.

    Saying such things is inflammatory. People do not defend as they cant afford to and the law is unintelligible with regards to UB, i.e. lacking in natural law or sense.

  2. Andrew says:

    The devil is in the detail. Twenty weeks from the “start of proceedings” but that term is not defined. The House of Lords should correct that by saying that it occurs when the papers reach the court; which would force the Courts Service properly to resource the process so that the first order can IN FACT be applied for and issued on time.

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