Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘divorce reform

Reforming divorce law

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The current law provides that  divorce can only be initiated by one party to the marriage (the “petitioner”). The other party (the “respondent”) must then acknowledge that they have received (been “served with”) the petition and state whether they disagree with the divorce and intend to contest (“defend”) it. Only around 2% of respondents indicate an intention to contest, and only a handful of such cases progress to a final court hearing in front of a judge.

The law requires a person seeking a divorce to satisfy the court that the legal test of irretrievable breakdown has been met. This is done by citing in the divorce petition one or more of five “facts”. Three facts are based on conduct (adultery, behaviour – commonly referred to as “unreasonable behaviour” – and desertion). Two facts are based on a period of separation prior to filing the petition for divorce (two years if both parties consent to the divorce, or five years otherwise). If one of the five facts is made out, the court must grant the decree of divorce.

A similar regime exists for those couples who have entered a Civil Partnership.

It has long been argued that the need to ‘prove’ irretrievable breakdown in this way too often leads to unnecessary conflict between separating partners, which in turn too often has very harmful impacts on the children of the relationship. It has been argued for many years that – particularly where irretrievable breakdown is proved by conduct – the current law in effect requires one party to blame the other party for the breakdown. In reality, relationships break down because neither party is able to sustain the relationship. Changing the law is, however, politically difficult because many members of the public regard marriage as a permanent arrangement, at least until ‘death do them part’, so that, for those people, it should not be too easy to obtain a divorce.

After many years of campaigning, in 2018 the Government launched a Consultation paper on possible changes to the law on divorce. (Noted in this blog on October 2, 2018). The results of the consultation and a statement of the then Government’s policy for reform were published in April 2019 (Noted in this blog on May 1, 2019). It was said at the time that a Bill would be brought foreward “when Parliamentary time permits”.

This can often be used to delay progress with a measure that might be seem to be politically diffcult. In fact, the present Government – despite all the attention it was initially giving to brixit, and all the attention it is now givng to dealing with the Covid 19 pandemic – published, in January 2020, the Divorce, Dissolution and Separation Bill. The Bill started in the House of Lords, where it has completed all its stages. It is now waiting to be debated by the House of Commons.

The key features of the Bill are that:

  • The requirement to provide evidence of conduct or separation facts is replaced with a new requirement  somply to provide a statement of irretrievable breakdown.
  • The possibility of contesting the decision to divorce is removed, as the statement of irretrievable breakdown is to be taken as conclusive evidence that the marriage has broken down irretrievably. (Divorce proceedings will still be able to be challenged for other reasons including jurisdiction, validity of the marriage, fraud and procedural compliance.)
  • There will be a minimum overall timeframe of six months (26 weeks) for the divorce process, made up of a period of twenty weeks between the start of proceedings and when the application can be progressed to conditional order (there is currently no minimum period between these stages), and six weeks between the grant of a conditional order and when the order can be made final.
  • The Lord Chancellor will have power by order to adjust the initial 20 week time period, subject to the proviso that the total period may not exceed 26 weeks (six months).
  • There will be a new option of a joint application for cases where the decision to divorce is a mutual one, in addition to retaining the current ability of one party to initiate the legal process of divorce.
  • The legal language will be updated. For example, for example the “decree nisi”, “decree absolute” and “petitioner” become the “conditional order”, “final order” and “applicant”.

For further details see https://services.parliament.uk/Bills/2019-21/divorcedissolutionandseparation.html.

Also https://www.gov.uk/government/publications/divorce-dissolution-and-separation-bill

 

 

 

 

 

Written by lwtmp

May 17, 2020 at 3:26 pm

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.

 

 

 

 

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