Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘divorce reform

Changing the grounds for divorce – new legislation proposed

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Family lawyers have long argued that the current law of divorce, which requires parties to prove that a marriage has broken down irretrievably and force spouses to provide evidence of ‘unreasonable behaviour’ or years of separation – even in cases where a couple has made a mutual decision to part ways – often exacerbates conflict, rather than reduces it. Although very few divorces are contested by the parties, this practice is known to be misused by abusers choosing to contest a divorce purely to continue their coercive and controlling behaviour.

Following a consultation, in April 2019, the Government announced that it would bring forward a Bill, which if enacted, would change the law.

The key features of the proposed legislation are :

  • the irretrievable breakdown of a marriage will become the sole ground for divorce;
  • instead of a requirement to provide evidence of a ‘fact’ around behaviour or separation, there will be a requirement to provide a statement of irretrievable breakdown;
  • the two-stage legal process, currently referred to as decree nisi and decree absolute, will be retained;
  • couples will have the option of a making joint application for divorce, alongside  the option (existing) for one party to initiate the process;
  • the ability to contest a divorce will go;
  • a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute), will be introduced.

Proposals for reforming divorce law are always controversial. Critics argue that making it too easy to get a divorce will undermine the institution of marriage. But those who currently deal with divorce on a daily basis see the emotional harm that current arrangements can bring and have broadly welcomed the new proposals.

The Bill will be introduced ‘when parliamentary time permits’.

Further information is at https://www.gov.uk/government/news/new-divorce-law-to-end-the-blame-game which gives links to the consultation on which these proposals are based.

 

 

 

 

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Written by lwtmp

May 1, 2019 at 11:39 am

Reducing family conflict: reform of the legal requirements for divorce

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At present, divorce law requires people seeking divorce must show that there has been irretrievable breakdown in the marriage. To do this they must give evidence of one or more of 5 facts; 3 are based on ‘fault’  (adultery, unreasonable behaviour or desertion) and 2 are based on a period of separation (2 years’ separation where the other spouse consents to the divorce, or 5 years’ separation where the other spouse does not consent).

In practice, only about 2% of respondents contest the petitioner’s decision to seek a divorce. Of these 2% of respondents, only a handful go on to contest (“defend”) the divorce at a court hearing. This means that, under the current law, a spouse who wishes to divorce can already be certain of doing so in practice, regardless of the other spouse’s wishes, provided that the petition establishes irretrievable breakdown.

There are domestic abuse cases where the current grounds for divorce can be used in a coercive way.

Proposals detailed in the consultation include:

  • retaining the sole ground for divorce: the irretrievable breakdown of a marriage
  • removing the need to show evidence of the other spouse’s conduct, or a period of living apart
  • introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce
  • removing the opportunity for the other spouse to contest the divorce application

The consultation also seeks views on the minimum timeframe for the process between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute) (currently 6 weeks, one day). This will allow couples time to reflect on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable.

The Consultation runs until mid-December 2018.

The Paper can be accessed at https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/.

A detailed Press Release is at https://www.gov.uk/government/news/justice-secretary-confirms-plans-to-reduce-conflict-in-divorce

Although there has been considerable public response to these proposals, it can be anticipated that at the end of the consultation dissenting opinions will be heard. The paper has also been criticised for not addressing other issues arising from relationship breakdown, in particular affecting couples who have not married or engaged in a civil partnership.

 

 

 

Written by lwtmp

October 2, 2018 at 11:16 am