Charlotte Hurst, trainee solicitor in our divorce and family law team, outlines the key changes to be introduced under no fault divorce reforms.
Earlier this month the government published its response to a consultation issued by the Ministry of Justice in September 2018.
The response confirms that divorce law in England and Wales is to be overhauled in an attempt to put an end to the ‘blame game’ culture often required by existing laws.
What is the current law?
The legislation governing divorce proceedings is the Matrimonial Causes Act 1973. There is currently only one ground for divorce which is that the relationship has broken down irretrievably.
The party issuing divorce proceedings has to evidence this by proving one or more of five facts being:
- Unreasonable behaviour
- Desertion (for a continuous period of at least two years prior to the petition)
- Separation of more than two years (with the consent of the other party)
- Separation of more than five years (without the consent of the other party)
Once the marriage breakdown has been established, there is a two-stage legal process. Firstly, the courts grant a decree nisi (the right to a divorce) which is followed by the finalisation of the divorce known as the decree absolute.
Following the reforms, the irretrievable breakdown of a marriage will still be the sole grounds for divorce. However, the requirement for evidence by way of the five facts listed above, will be removed.
The current legislation has often been considered somewhat outdated, particularly following the recent outcome of Owens v Owens.
How has the Owens v Owens case affected the legislation?
In 2016, Mrs Owens was refused the grant of a decree nisi by the Central Family Court despite the judge finding that the marriage had indeed broken down. Her husband had contested the divorce and the judge found that Mrs Owens had failed to prove that Mr Owens had acted in such a way that she could not reasonably be expected to live with him.
Mrs Owens’ appeal was dismissed by both the Court of Appeal in 2017 and the Supreme Court in 2018. The judges in both appeals said that it was not for them to change the law, but for parliament.
What do the changes mean?
With the elimination of the five facts process, there will no longer be a requirement for blame, with one party simply having to notify the court that the marriage has broken down. Alternatively, married couples will be able to make a joint divorce application.
The new legislation will also remove the ability for the other party to defend the divorce, something that would have been beneficial in the case of Owens.
There will be a minimum period of six months between lodging the petition and being able to apply for a decree absolute to allow married couples time to ‘reflect’ on their decision and encourage a conciliatory approach.
Changes will be made to the laws governing the dissolution of a civil partnership, the Civil Partnership Act 2004, so that it mirrors those governing divorce proceedings.
It is not known yet exactly when the changes are going to take place, but the Ministry of Justice has indicated that this will be imminent and ‘as soon as parliamentary time allows’.