New year, new divorce rules; looking ahead to the future of divorce law

In June 2020, Parliament passed the landmark Divorce, Dissolution and Separation Act to reform the divorce process and remove the concept of fault from the divorce process. The Act which came after years of campaigning for change by national family justice body Resolution, and family law professionals from all over the country, represents the biggest shake-up to our divorce rules in the last 50 years.

In this article we will explore the rationale behind this legislative change, when the new legislation will take effect, the implications of the act and what the new divorce process will look like in practice.

Out with the old and in with the new; the rationale behind the reform

It was a truth almost universally acknowledged amongst family practitioners that the present law was no longer fit for purpose.

It is a sad yet indisputable fact of life in a society where 42% of marriages end in divorce, that marriages can and do unfortunately breakdown. There is very often little to be gained from conducting a forensic post-mortem of why the marriage broke down, or pointing the finger at the other for the failure of the relationship.

But that is precisely what the present law requires parties to do. Under the current divorce law, parties are required to prove that the marriage has broken down with reference to five facts; 3 of which are based on fault and 2 of which are based on periods of separation (2 years with the consent of the other party, or 5 years if that consent is not obtained.

In practice this means that the majority of divorce couples have had to proceed on a blamed basis i.e. blame their spouse for the breakdown of the marriage, the most common fact relied upon being unreasonable behaviour, or risk waiting years before they can divorce. It follows that the petition can feel somewhat like a mud-slinging exercise, and a delicate balance needs to be struck between going far enough that you convince the court that the marriage had broken down, but not going so far that you risk inflaming your spouse and increasing acrimony unnecessarily.

A case in point for the failings of the current law was that of Tini Owens who became something of a cause celebre for divorce reform lobbyists. Ms Ownes was a then 68 year old woman who lost her high profile appeal to be granted a divorce in the Supreme Court in 2018. She had petitioned on the basis of unreasonable behaviour as her husband refused to consent to the divorce and there were no other grounds available to her, however she was held not to have satisfied the test. The result being that she would have to stay unhappily married until either the 5 year separation period had lapsed or the law was reformed.

Now that the latter has finally occurred, let's look and what these reforms will look like in practice and when they come into effect.

No fault divorce

• When does this new legislation come into effect? It is anticipated that the Act will be implemented in Autumn 2021. This is an indicative timetable given by lord chancellor Robert Buckland who stated that 'time needs to be allowed for careful implementation'. Some have speculated that it may be as late as early 2022 given that the court forms and online portal will need to be looked at.
• What changes will the Act introduce? The new legislation will;
  • Replace the ‘five facts’ with a new requirement to provide a statement of irretrievable breakdown, signalling the end of the 'blame game'. Parties will also be taken at their word that the marriage has broken down, rather than have their relationship be subject to judicial scrutiny.
  • Remove the possibility of contesting the divorce; meaning that there will be no recurrences of cases like that of Tini Owens in future and the expense of contested proceedings can be avoided.
  • introduce an option for a joint application; this takes away the adversarial element of divorce and reflects the fact that sometimes separation is a mutual decision.
  • make sure language is in plain English, for example, changing ‘decree nisi’ to conditional order and ‘decree absolute’ to final order; meaning the law is more accessible and readily understood.
  • More controversially, the new law will introduce a new minimum period of 20 weeks from the start of proceedings to when the ‘Conditional Order’ can be made. The 6 week period between the Conditional Order and when the Final Order can be made will be kept meaning the process will take considerably longer from the point of issue. The rationale behind this is that it will allow greater opportunity for couples to agree practical arrangements for the future where reconciliation is not possible and divorce is inevitable. However this has attracted some criticism.
• What does this mean for civil partnerships? These changes will also apply to the dissolution of civil partnerships.

The change has been hailed as a much welcome reform to the present laws, which will help to remove unnecessary conflict and enable divorcing couples to spend their energies looking forward to their future, rather than to the past. The law will also better reflect society's changing attitudes towards divorce and enshrines in legislation that sometimes a marriage may simply have run its course and neither party is to blame for that.

If you have any queries surrounding the divorce process, please do not hesitate to contact our expert team of lawyers.