Victoria Syvret, family law solicitor, explains the real-world legal impact of the UK’s new divorce laws, reflecting on the flaws of how divorces happened before the change
On the 8th April 2019, the UK government announced reform to the divorce laws in an attempt to update the current law which is arguably outdated having been in existence for almost 50 years.
The main driving force behind this change is to simplify the divorce process and to make it less contentious particularly for couples where children can be caught in the middle.
The idea is to bring about, what has been termed by campaigners, as a ‘no-fault divorce’. The current divorce laws require a ‘fault-based’ divorce on the grounds of the other person’s adultery or unreasonable behaviour or a divorce based on a period of 2 years separation with both parties consent or 5 years separation without consent. This process can lead to increased conflict between a couple where one party must blame the other in reasons for the divorce if they wish to proceed before they have been separated for two years.
Even at 2 years post-separation, both parties have to agree that they want the divorce, leaving some people forced to remain married until 5 years have passed since they separated.
Most separating couples are keen to proceed with the legal process of a divorce. Within the divorce process the marital finances are divided and therefore a delay to the divorce itself inevitably delays the process of separating the marital assets, allowing each other to cut their financial ties. In cases where the finances need to be decided by the Court, an application can only be made once the divorce itself is underway. Even in circumstances where the parties have separated amicably unless one can find reasons to blame the other for the reasons for divorce, they are trapped waiting for 2 years to pass before they can get on with the divorce itself and finalise any financial agreement they may have reached with a court order.
The blame one party imposes on another is exacerbated where a couple are unwilling to wait the 2 year separation before they can file for a divorce or adultery is not applicable. By having to give examples of the other person’s unreasonable behaviour, the conflict created can be particularly detrimental to couples with children where the hostility caused can damage the children who witness it.
In an age where separating couples are encouraged to try to remain amicable and attempt to agree arrangements for their children, to take ownership of the separation of their matrimonial finances by attending at mediation, or through collaborative law processes, the direct conflict with a divorce proceeding based on the other persons ‘fault’ seems antiquated and is one of the reasons campaigners have lobbied for the changes to the law.
The fresh impetus to introduce reform to the now outdated divorce laws came after the case Owens v Owens in which the husband successfully defended the divorce, as the wife’s grounds did not meet the requirements set out in the current law, despite it being agreed by the Judge that the marriage had in fact broken down.
It is intended that the sole ground for a divorce will now be the ‘irretrievable breakdown of a marriage’ with a requirement to provide a statement of this breakdown. Therefore, the new law will enable couples to maintain a better relationship post separation and for them to become better co-parents in the future as neither party will have the necessity to blame the divorce on the other party’s adultery or unreasonable behaviour.
It is hoped that these changes will allow a shift in focus in divorce away from blame and towards resolution, with the parties able to focus instead on the future financial and child arrangements in a less contentious divorce process.
The new law sets to implement other changes to include the addition of a minimum timeframe. The idea is that whilst the new law should make the process less acrimonious, the length of time it takes still ensures that the decision to divorce will not be rushed into.
The minimum timeframe will allow a couple to reflect on the decision to divorce, with the option of counselling or mediation whilst they are in the period between issuing the Divorce Petition and the Decree Nisi being pronounced. The new time frame would be a minimum of 6 months from the filing of the Petition to the final divorce, with 20 weeks needed between the Petition and the application for Decree Nisi.
The simplicity of the process under the new law is further helped by the proposal to remove the ability of a party to contest a divorce. A divorce could be brought either by one party or jointly. The only way a party could now contest a divorce will be on the grounds of coercion, fraud, legal validity or jurisdiction.
Family Law Solicitor, Senior Associate