This long overdue reform is a welcome start, but much work still needs to be done to eliminate the unnecessary hardship caused by divorce and relationship breakdown.
There is only one ground for divorce - that the marriage has irretrievably broken down. The new Act does not change this fundamental principle, but it will change how this ground is established.
As the law currently stands, a person seeking to divorce has to wait for two years if their spouse consents to the divorce or five years if their spouse does not consent. If you do not wish to wait, the only means to divorce is to ‘blame’ the other party provided you can prove one of three facts: 1) adultery, 2) unreasonable behaviour or 3) desertion.
The need for reform of the law was brought into sharp focus by the case of Owens v Owens [2018] UKSC 41.
This decision has to be made right at the outset of the process and often sets a negative tone for the subsequent financial negotiations and discussions regarding child-care, thereby doing a disservice to families about to embark on what is already an emotionally challenging process.
The need for reform of the law was brought into sharp focus by the case of Owens v Owens [2018] UKSC 41. Mr Owens successfully denied the allegations of unreasonable behaviour made against him by Ms Owens. As a result, the Supreme Court reluctantly held that Ms Owens would have to remain unhappily married until 2020 (by which point the requirement of five years continuous separation would be fulfilled). This case demonstrated how the fault based system could produce counter-intuitive and unfair results.
Historically, a divorce was considered a rare and scandalous occurrence. Today, approximately 50% of marriages end in divorce. This shift to a no fault system is hoped to reduce the stigma associated with divorce and reflect the reality that relationship breakdown (like many aspects of life) can occur for any number of reasons over the passage of time. It should not be the place of the law to determine whether one’s own reasons to end a marriage are sufficiently valid.
The bill seeks to encourage a conciliatory approach and allows for a couple to apply jointly for a divorce (and where there is not a consensus an individual can also unilaterally apply).
What are the key changes?
- Dispenses with the facts of divorce
This amend removes the layer of difficulty as discussed above. Rather than drum up unnecessary acrimony and distress right at the outset of the proceedings by having to point out where one party went wrong in a marriage, under the new regime neither party will have to blame the other in order to petition for a divorce. The bill seeks to encourage a conciliatory approach and allows for a couple to apply jointly for a divorce (and where there is not a consensus an individual can also unilaterally apply). Even the language of the Bill aims to reduce the potential tension between a divorcing couple by removing reference to ‘petition’ and ‘decree’ in place of more modern and objective terminology such as ‘application’ and ‘order’.
- Removes the ability to contest a divorce
The Bill removes the requirement to evidence that the relationship has broken down. Instead, the parties (or party) has to provide a sworn statement confirming that the marriage has broken down irretrievably. The court is required to take the statement to be conclusive evidence and make a divorce order (and this cannot generally be challenged). As it stands, very few divorces are contested (less than 2%). In practice, couples often agree to the wording in a divorce petition before it is filed at court and despite one party taking the ‘blame’, the reality is that the majority of cases are carried out by consent. Like in the case of Mrs Owens, where a party does contest it is often only relied on to frustrate and can be abused as a means to exert control over an ex-partner. A contested divorce case is not just time consuming, but it also incurs significant legal costs. The bill, therefore, reflects the reality that a vast majority of divorces are agreed and the ability to contest will only increase the temperatures (and is not a means of saving a marriage).
- New time-lines for divorce
The Act introduces a mandatory 20-week period between filing the divorce application and obtaining the conditional order (the first stage of the divorce – formally the decree nisi). The two-stage divorce process remains and the final divorce order (or second stage – formally decree absolute) cannot be applied for until at least 6 weeks from the date of the conditional order. This means that there is a minimum 26-week period (or 6 months) before a divorce can be finalised. Under the new law, therefore, the minimum period to obtain a divorce has been extended by at least three months. The reason for this amendment was said to ‘encourage couples to reflect on their marriage’ and the idea that this could result in some couples reconciling. But this provision arguably ignores the reality that for the vast majority of cases a decision to divorce is carefully thought out and rarely arrived at lightly.
Further reform
The family courts should retain some mechanism to respond to the factual matrixes of each case given the bespoke nature of family disputes.
A no-fault divorce regime is without question a significant step in the right direction however there is still a lacuna in the law which leaves many modern families without protection.
Today families come in many forms, many couples cohabit rather than get married and children born out of wedlock is commonplace. Despite this, there remains no legal framework that recognises a cohabiting relationship. In the absence of legal recognition or a marriage certificate, land law will dictate the legal ownership of any property. There are no automatic rights of: inheritance; bereavement; pensions right (including widow’s pension), tax benefits or any legal entitlement to spousal maintenance.
The next area ripe for reform is the division of money and assets. The courts have an extremely wide breadth of discretion when deciding who gets what on divorce, this is said to reflect the complexity of family life and provide the necessary flexibility to ensure fairness can be achieved no matter the factual matrix. In other jurisdictions, however, the courts are limited to strict rules and division of assets are pre-determined in matrimonial property regimes and by enforceable pre-nuptial agreements. Whilst these systems are more rigid and may not be malleable enough to produce fair outcomes in all cases, these formalised regimes provide much needed certainty. In this jurisdiction, the court’s discretion is so wide that it can be very difficult to predict the outcome of a case. Given there is little certitude as to how a particular judge will determine the issues on a particular day, this can result in more of an impetus to roll the expensive dice in court rather than reach an amicable settlement (which only increases the costs, tensions and stress of divorce).
The new Act removes the emotional blame game that our divorce legislation has been founded upon since it was first enacted in 1857
The family courts should retain some mechanism to respond to the factual matrixes of each case given the bespoke nature of family disputes. However, there are ways in which the unpredictability of family cases can be narrowed. Examples include greater enforceability of pre-nuptial agreements and statutory recognition of cohabiting couples.
The new Act removes the emotional blame game that our divorce legislation has been founded upon since it was first enacted in 1857, now we must look towards creating a legal system that will provide all families with more security, stability and certainty in times of dispute.
Nykol O’Shea is an associate in the family department at Simons, Muirhead and Burton LLP.
