In what’s heralded as the biggest shake-up in divorce law for 50 years, The Divorce, Dissolution and Separation Bill (commonly referred to as the no-fault divorce bill) has recently concluded its passage through the House of Commons. Although this is great news for divorcing couples, they will need to wait until Autumn 2021 to be able to petition for a no-fault divorce.
This can be seen as a positive change for divorce law, bringing it into the 21st Century, and it is welcomed by Family Law practitioners and divorcing couples. The new law will help remove the emotional cost of separation and bring divorces in line with current relationship lifestyles. Although this isn’t a silver bullet solution, it eases some of the pressures facing married couples looking for a divorce.
The Law Now
A person seeking divorce currently must wait two years if their partner consents, or five years if the divorce is contested. The only saving grace from this is if one of the partners is guilty of either unreasonable behaviour, adultery or desertion. In this instance, a divorce petition can proceed, but this puts the onus of guilt on one side of the relationship, potentially making it more difficult for future discussions around children and finances.
The current process also potentially airs ‘dirty laundry in public’, with many couples preferring that their domestic relationship be kept behind closed doors, pushing for the need for both parties to amicably walk away from a marriage without fault. The new Bill will allow couples to reduce the potential emotional strain during a divorce.
Why Change?
The historical notion of 2 point 4 children is long gone, and today families come in all different shapes and sizes. It is not uncommon for couples to cohabit instead of opting for a costly wedding and the ties of marriage. Couples can choose to enter a civil partnership, and marriage is open to couples irrespective of their sexual orientation.
Changes in laws over the last twenty years have enabled new forms of partnerships coupled with changes in societal norms – leaving the divorce laws well behind the times. The Divorce Reform Act of 1969 was the last significant change in divorce law, and this forms the basis of current legislation. Traditionally, there was also a stigma attached to divorce, however, in current times, over 50% of marriages in the UK end.
Owens vs. Owens in July 2018 was widely considered the turning point in introducing a new Bill. The Supreme Court ruled against a divorce petition by Tini Owens, a 68-year-old, who wanted to be allowed to divorce her husband. The court ruled that Mrs Owens must remain married to the man she no longer loved until they had lived separately for five years.
Mrs Owens petitioned for divorce based on her husband’s unreasonable behaviour. This was contested and denied by her husband, so the judge allowed an amendment to the petition to be made. Mrs Owens listed 27 examples of her husband’s unreasonable behaviour, however, the judge ruled that this was no proven fact, and the divorce could not proceed. This was further upheld by the Court of Appeal and the Supreme Court, however, was done so reluctantly.
The Lord Justices called on Parliament to consider amending or introducing a new Bill to ensure that current Laws could satisfactorily tackle the issue and ensure the divorce procedure was fit for purpose.
The above changes highlight a need for a modern-day alternative to the traditional divorce laws, and The Divorce, Dissolution and Separation Bill is being brought in to ensure divorce laws are fit for purpose well into the next decade.
The Benefits of The Divorce, Dissolution and Separation Bill
- Allows a couple to apply for a no-fault divorce if the marriage has broken down irretrievably
- One party can apply for a divorce where a couple can not agree, and all that is required is a sworn statement confirming that the marriage has broken down irretrievably
- Simplification of the language used during the divorce process, supporting an increase in accessibility.
The Bill also proposes a ‘cooling-off’ period, ensuring there is a mandatory six months between petitioning and Decree Absolute. In some circumstances, this will increase the overall cost of a divorce and the period required between starting and finishing. These delays have been deliberately included to reduce to any uncertainty from a ‘momentous’ decision and ensure there is no option for a ‘quickie divorce’.
