16 April 2019

Change to divorce laws mean couples no longer have to apportion blame

Hayes + Storr, together with many other family law practitioners across the country, welcome the government’s announcement today of changes to divorce laws which are expected to come into effect ‘as soon as parliamentary time allows’.

Currently, under the Matrimonial Causes Act 1973, anyone petitioning for a divorce (“the Petitioner”) must set out their grounds for doing so by stating either that their partner (“the Respondent’s”) behaviour has been unreasonable and falls under one or more of the three “fault facts” as set out below:-

• adultery
• unreasonable behaviour
• two years desertion

Or there has to be a period of separation as set out below:-

• two years separation with the consent of the respondent
• five years separation without consent

Therefore, if divorcing couples wish to start divorce proceedings without waiting for two years, one party is forced to blame the other for the breakdown of the marriage. Unsurprisingly, this often causes conflict between the parties preventing an amicable divorce which is always preferable, and especially so when children are involved.

The government states on their website that the new laws will allow for a no-fault divorce, “replacing the requirement to provide evidence of a ‘fact’ around behaviour or separation with a requirement to provide a statement of irretrievable breakdown”.

Couples will also be given the option to make a joint application for divorce although one party will still be able to initiate the process.

There will still be a two stage process to divorce; firstly: to obtain a Decree Nisi – a Court Order stating the date on which the marriage will end unless a good reason not to grant a divorce is produced, and secondly, a Decree Absolute which is a Court Order officially ending the marriage.

There will now be a minimum timeframe of six months from petition to final divorce which will be broken down into 20 weeks from petition to Decree Nisi and 6 weeks from Decree Nisi to Decree Absolute. The hope is that the introduction of this minimum timeframe will allow divorcing couples time to fully consider all their options including mediation and potential reconciliation if they wish.

The other big change is the removal of the ability to contest a divorce. In the past, if a party objected to a divorce, the petitioning party had to wait five years to divorce their ex-partner. Contested divorces are very rare; however, with the recent highlighting of coercive and controlling behaviour by abusers in relationships, it has been noted that the practice of contesting a divorce is a potential tool for abusers to continue coercive and controlling behaviour.

Resolution, a group whose members are made up of 6,500 family lawyers and other professionals committed to the constructive resolution of family disputes, have stated on their website that “If you’re separating, and you’re faced with having to make unnecessary and unhelpful accusations against your ex on the divorce petition, there is nothing more important than this reform in the law. Let’s now get on with it, and make our divorce law fit for purpose.”