Are we nearing a no fault divorce? The Divorce, Dissolution and Separation Bill has been backed by the House of Commons
The Divorce, Dissolution and Separation Bill passed its first hurdle in the House of Commons yesterday with 231 MPs voting in favour of it and only 16 voting against it. Duped the ‘no fault divorce bill’ by lawyers and media across the country, the main focus of the bill is to overhaul the divorce system to make it less confrontational.
Many lawyers across England and Wales are very much in favour of the new proposed legislation being introduced. It is hoped that by enabling separating couples to file a ‘statement of irretrievable breakdown’ rather than listing individual faults with their partner to prove the same, it will help the parties to remain amicable.
Following on from this, it is hoped that the preserved relations between the parties will have a knock-on effect on financial division and children disputes. If the process has not started with one party blaming the other for the relationship breakdown, these elements of the separation may not be as contentious.
Under the current legislation, in order to obtain a divorce, the parties have to prove to the court that the marriage has irretrievably broken down. They can show this by relying on one of five facts. These are:
- Unreasonable Behaviour
- Desertion for at least two years
- 2-year separation with consent of the order party
- 5-year separation without the consent of the other party
Options a and b are the ‘fault based’ facts. To file a successful adultery petition, the adultery must be proven. This is most often done by the person who has committed adultery must admit to it and sign the Acknowledgment of Service to confirm the same. If they won’t admit to it, then in many cases, the petitioner will rely on the other person’s unreasonable behaviour instead. This does not need to be evidenced.
The only way of obtaining a ‘no fault’ divorce at the moment is to rely on being separated for at least two years. At that point, a divorce is only available if both parties agree to the petition being filed. If they don’t agree, the only option available to the Petitioner would be to wait a further 3 years (5 years in total) and then file without the need for other person’s consent.
Desertion is a very technical ground which is only relied on in rare circumstances. It is not clear at this stage how this will be addressed within the proposed law reform.
Owens v Owens
Family lawyers have been advocating for a reform of divorce law for decades. However, this attracted media and government attention in September 2018 when the Supreme Court heard the case of Owens v Owens.
By way of a background, Mrs Owens was the petitioner in the divorce. In 2016, the family court denied her a divorce from her husband as she had not satisfied the court that her husband’s behaviour was so unreasonable that it had caused the marriage to break down. Mrs Owens appealed this decision, however both the Court of Appeal in 2017 and the Supreme Court in 2018 upheld the decision.
In short, the court’s hands were tied because of the current legislation. The majority of the Supreme Court bench therefore expressly invited parliament to “consider replacing a law which denies Mrs Owens a divorce in the present circumstances”. As it stands, Mrs Owens will have to wait five years from the date of separation before she can file again for divorce.
Following the decision in Owens v Owens, the government released a consultation paper – ‘Reducing family conflict: Reform of the Legal Requirements of Divorce’ which ran for 12 weeks and marked the beginning of the proposed reform.
The government confirmed that the purpose of the reform was “to make divorce law consistent with the non-confrontational approach taken in wider family law and to recognise that a legal process that does not introduce or aggravate conflict will better support adults to take responsibility for their own futures and, most importantly, for their children’s futures”. The proposed reform is also to apply to the dissolution of civil partnerships and judicial separation.
The government’s response to the consultation was published on 9 April 2019. It focussed on the following key elements of the new legislation:
- Irretrievable breakdown will continue to be the sole ground for divorce. It is to be demonstrated by a confirmatory statement from one party, removing the requirement to satisfy one of the five facts.
- In some circumstances, parties can make a joint application for divorce.
- The opportunity to contest a divorce will be removed except for: on the basis of jurisdiction, the legal validity of the marriage, fraud, coercion and/or procedural compliance.
- There shall be a minimum timeframe of 20 weeks from petition to decree nisi and six weeks between decree nisi and decree absolute. The aim of this is to promote reconciliation where possible.
- The two-stage divorce process shall remain.
- The current bar on not being able to file for divorce within 12 months of marriage shall continue.
- The language used in the divorce process shall be modernised and simplified.
This response shaped the Divorce, Dissolution and Separation Bill which was initially introduced to Parliament on 12 June 2019.
Now having successfully passed the latest Commons stage, it is a waiting game as to whether further amendments will be published or whether the Bill will be implemented as legislation. It is extremely positive that Parliament is still contemplating the reforms despite the ongoing global pandemic and it is hoped that further progress can be made over the coming days/ weeks.
Watch this space for further updates on no fault divorce and how soon will the ‘blame game’ come to an end?