Martin Partington: Spotlight on the Justice System

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 Brexit, 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 simply 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