Parliamentary time is being sought today, 9 April 2019, by the Justice Secretary David Gauke for the overall re-vamp of the divorce process.
We are inching ever so much closer to a system of ‘No-Fault Divorce’ with the reforms set to come into force in 3 months’ time. The UK are finally to take heed of the example set by other countries leading the global trend for a no-fault process.
The present law provides for parties to allege either adultery or unreasonable behaviour in order to start the divorce process moving immediately. Otherwise, those trapped in an unhappy marriage must wait at least 2 years until they can apply to the Court to divorce, but only with their spouse’s consent. Those unable to obtain such consent from their spouse must endure 5 years of separation until they can apply to dissolve their marriage..
The new reform will allow a spouse to petition for divorce on the grounds that the relationship has broken down irretrievably. The reform will also banish the ability for one spouse to contest a divorce by challenging the blame attributed to them. The process between petition and the Decree Absolute application will take a minimum of 6 months. The petitioner, in the new rules, will be required only to affirm that they continue to believe that the marriage has irretrievably broken down at the time of the final application.
The reform will go even further as to allow parties to jointly apply for a divorce where the decision is mutually accepted. Ideally, this option will allow parties, whom are also parents to limit any potential damage of conflict to their children, during the process and thereafter.
The Justice Secretary has been a champion of the non-fault divorce process through this parliamentary season and has commented today that the legislation will be introduced “as soon as parliamentary time allows”.
He went on to say of the reforms:
“Hostility and conflict between parents leave their mark on children and can damage their life chances.
We are not going to keep marriages together by having a divorce process that just makes it more acrimonious [and] tries to apportion blame in such a way that the couple are likely to have a weaker, poorer relationship subsequently than they would otherwise do.
While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples. So I have listened to calls for reform and firmly believe now is the right time to end this unnecessary blame game for good.”
Those partners within a civil partnership will also have the same rights when applying for a civil partnership dissolution.
The case of Tini and Hugh Owens reached the Supreme Court in July 2018, alongside wide scale reporting of the matter. Tini had applied to the Court for a divorce on the grounds of Mr Owens’ unreasonable behaviour. The Court concluded that Mrs Owens had not sufficiently demonstrated how Mr Owens’ behaviour had been so unreasonable. The current law would have made her wait until 2020 to apply again on the basis of a 5 year separation. The new reform will seek to protect those who are trapped in a loveless marriage to end it quicker.
The new rules are arguably in line with societal and cultural shifts not only in the UK but across the globe. Those jurisdictions whereby a no-fault system is currently in place, such as Australia, Germany, Finland, Spain, New Zealand, Sweden and parts of the US recognise that a divorce must be granted if one party insists that the marriage is over.
The rules show a general move in the family justice system to resolve issues in a less confrontational way and seeks to promote a less hostile way of managing very difficult personal circumstances.
At Lupton Fawcett, we appreciate and understand the need for parties to engage in an amicable separation, particularly where children are to be co-parented. We welcome the long awaited changes and are happy to provide you with the advice and assistance necessary to enable you to make autonomous decision-making about your relationship.
If you would like to speak to a member of the team regarding any of the issues raised in this article, or any other family law matter please feel free to contact: Chris Burns, who is the head of our family law department; Richard Buckley who is a member of the team in the Sheffield office or Andrew Smith who is a member of our York office.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.