The Divorce, Dissolution and Separation Bill: An End to the Blame Game?

The Divorce, Dissolution and Separation Bill: An End to the Blame Game?

COVID-19 has undoubtedly reshaped our personal relationships, forcing some people apart and pushing others closer together. The impact of the virus on relationships in China has seen a rise in the number of divorce applications since lockdown was eased. While we have yet to see whether the same effect will be seen elsewhere across the world, COVID-19 has certainly challenged even the strongest of relationships.

With this background, the Divorce, Dissolution and Separation Act, which gained Royal Assent on 25^th June 2020, becomes even more significant. The Act looks to be the biggest shake-up to divorce laws in England and Wales for over 50 years. Demands for changes to the divorce system have long been made by those within the profession following criticism of the need to establish fault in the majority of divorce cases.

This article will consider the extent to which the current divorce system has created a ‘blame game’ between divorcing couples and the changes that the new legislation will bring about.

Divorce Law in England and Wales

The Matrimonial Causes Act 1973 underpins the law on divorce in England and Wales. Currently, a divorce is only available where the parties have been married for at least one year and that marriage has broken down irretrievably. The latter is satisfied by the petitioner proving one of the five ‘facts’ specified in section 1(2):

(a)   Their spouse has committed adultery and they find it intolerable to live with them;

(b)  Their spouse has behaved in such a way that they cannot reasonably be expected to live with them (“unreasonable behaviour”);

(c)   Their spouse has deserted them for a continuous period of at least two years;

(d)  The parties to the marriage have lived apart for a continuous period of at least two years and their spouse consents to a decree being granted;

(e)   The parties to the marriage have lived apart for a continuous period of at least five years.

English and Welsh law therefore operates a mixed system of divorce, comprising both fault and no-fault elements. However, calls for the removal of fault from divorce law have long been made by those in the profession. Such calls became more pressing following the Supreme Court case of Owens v Owens [2018] UKSC 41. The perceived unfairness caused by Mrs Owens being told she must remain married to her husband for 5 further years while separated caused even those outside of the legal profession to begin questioning the relevance of fault in the divorce system.

In 2018, 57.2% of divorces were fault-based.[1] Studies show, however, that in many cases the fact relied upon in the petition does not closely match the real reason for divorce. The current system therefore creates a blame culture whereby spouses attribute false blame because it is the easiest option. This promotes conflict and makes it more difficult to maintain good relations post-separation. The hostility created by the divorce petition means that many couples resort to the courts to resolve their finance and child disputes incurring extra costs at an already difficult time.

It has been suggested that removing fault would make obtaining a divorce easier thereby undermining the sanctity of marriage. However, it is no exaggeration that many of today’s divorces are already obtained on this basis, albeit the petition is framed in terms of fault. Therefore, eliminating fault would not make divorce easier, but would remove the requirement to “throw mud at each other” as is currently the case.

The New Legislation

The Divorce, Dissolution and Separation Act 2020 makes several changes to the old fault-based divorce system. Firstly, while the sole ground of divorce remains to be irretrievable breakdown, there is no longer a requirement to provide evidence of conduct or separation by proving one of the above ‘facts’. Instead, the petitioner need only provide a statement confirming irretrievable breakdown. This change addresses the problem identified in Owens v Owens, see Owens v Owens [2018] UKSC 41: A Decision Divorced From Reality?[2], where the fact of ‘unreasonable behaviour’ required proof to a high threshold; proof of a basis for irretrievable breakdown is dispensed with.

The statement of irretrievable breakdown will be taken as determinative. Contesting the basis of the divorce petition will therefore no longer possible, save on the basis of jurisdiction, the validity of the marriage, fraud, coercion and/or procedural compliance.

A notice period has been introduced of 26 weeks, providing for 20 weeks from petition to decree nisi and 6 weeks between decree nisi and decree absolute. Previously a decree nisi could be applied for as soon as the petition was issued. The additional notice period may serve to pacify concerns that a no-fault system will allow divorces to be rushed through before providing an opportunity for reconciliation.

Parties will be able to make a joint application so that one party does not have to petition the other. This approach avoids the need for parties to negotiate who prepares the petition which should save time, costs and encourage an amicable end to the marriage.

The language used will be modernised; for example, a decree nisi will be termed a ‘conditional order’ and a decree absolute will be a ‘final order’. The Act provides for near-identical changes to The Civil Partnership Act 2004.

Conclusions

This Act has been long awaited and will clearly have many benefits. Now that the opportunity to contest a divorce is all but removed, the Owens v Owens type situation where one party is locked into a marriage, unable to prove one of the necessary ‘facts’, is avoided. That is perhaps a minor advantage; divorce was contested in less than 2% of all cases before this Act.[3]

The real strength of this change lies is its alleviation of social and financial burdens placed on the parties. Couples who mutually wish to divorce will no longer have to wait for 2 years after their separation, hastening their ability to become financially independent and reducing the impact on children. The dispensation of behaviour-based petitions, and introduction of a joint divorce petition, avoids the blame game. While some may criticise the simplicity of the new divorce process, the extended notice period serves as a useful safeguard against rash decision-making.

One question remains: when will the Act come into force? While it has already gained Royal Assent, section 8 outlines the commencement and transitional provision. The substantive changes to divorce law, within sections 1-5 of the Act, will not come into force until the ‘commencement date’, to be appointed by the Lord Chancellor. It seems, however, that the biggest change to divorce proceedings for nearly 50 years is about to arrive.

Henry Pring and Sophie Rudd

Pupil Barristers

9 Park Place Chambers