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The Divorce, Dissolution and Separation Bill
03
February

The Divorce, Dissolution and Separation Bill

By: M. Taylor

Tags: Civil Partnerships, Divorce, Family

As you may have seen from the news, the government is making changes to the law relating to divorces and dissolution of civil partnerships.

The  proposed new law has its second reading in the House of Lords this week, although no firm date has been set for the law to come into effect, once it is passed.

The changes are intended to remove any ’fault based’ element in divorce proceedings.

History

Until 1857, divorce required a private act of parliament, so was only available to the wealthy and powerful. After 1857, the Matrimonial Causes Act allowed divorce where the person seeking it (the Petitioner) could show that their spouse had committed adultery (and in the (women could not get a divorce simply on the basis of their husband’s adultery, but had to show that they had also been the victim of cruelty or desertion, or that their husband  had committed bigamy or incest!)

Divorces were conducted by way of a full court hearing with both parties having to give evidence and face cross examination, and of course there was significant social stigma attached to being divorced.

Since that time, although there have been changes made to the process – in 1923 women gained equal rights to men and were able to petition solely on the basis of adultery, without having to prove cruelty or desertion as well, and there were further changes in 1937 (allowing divorce on the basis of cruelty, insanity or desertion, as well as adultery) and in 1969, when it became possible to divorce on the basis or 2 or 5 years separation.

In 1996, the Family Law Act was to have introduced no fault divorces, subject to parties attending an meeting to discuss whether reconciliation was possible, but although parts of the Act came into law, the provisions relating to divorce were never brought into effect.

When Civil Partnerships and subsequently, same-sex marriages were introduced, similar provisions were made for dissolving those partnerships, again with one party having to blame the other for the relationship ending, or to wait for 2 years or longer.

Current Law

At present, all divorces (and dissolution of Civil Partnerships) are based on the fact that the marriage or partnership has broken down irretrievably, and the petition for divorce or dissolution must include one of 5 set reasons why the marriage or partnership has broken down. The current reasons are;

  • The parties have lived apart for 2 years and both agree to a divorce / dissolution
  • The parties have lived apart for 5 years
  • One party has deserted the other, and the desertion has continued for 2 years or longer
  • One party has committed adultery, and the other finds it intolerable to live with them (this is not available to couples in same-sex marriages or partnerships)
  • One Party has behaved in such a way that the other cannot reasonably be expected to live with them as their spouse or partner (usually referred to as ‘unreasonable behaviour’)

The difficulty with this approaches that, unless you are able to wait 2-5 years for your divorce,  it is necessary for one partner to blame the other for the marriage or partnership having broken down, and this makes it harder to deal amicably with the separation, although we, and many other solicitors, will aim to keep things civil by encouraging our clients to give mild, low key details of behaviour, and where possible to agree the contents of the petition with the other partner before it is issued at court.

The vast majority of cases today are undefended (meaning in effect that the parties have both accepted that the marriage has broken down) but it remains possible to defend a divorce, arguing that the marriage has not broken down irretrievably and that the marriage should not be dissolved.

In 2016, Mr Owens make headlines after he  defended his wife’s divorce petition  and the court declined to grant her a divorce, deciding that the examples she gave of his behaviour were not sufficient to entitle her to a divorce.

While defended divorces are very rare (accounting for around 0.6% of all petitions) and even where someone states they intend to defend a divorce, it is rare for this to go to court (often the person seeking to defend the divorce will  instead issue their own ‘cross-petition’ so they can blame their spouse for the divorce, or the original applicant may withdraw their petition and wait until they have been separated for 2 or 5 years, to avoid having to blame their spouse)  

The new Divorce, Dissolution and Separation Bill

Under the new law ( if it implemented as currently drafted), the need to give a reason for the marriage or partnership breaking down is removed.

The new applications will simply state that the marriage or partnership has broken down irretrievably, without assigning blame as to why that has happened, and the court must accept that statement as fact, removing the ned to add any additional explanation or reason .

This means that, for the first time, all divorces and dissolutions will be on a ‘no fault’ basis and there will be no need to wait to be separated for 2 years, before being able to proceed without blaming your spouse or partner. It will no longer be possible to defend a divorce – the new law explicitly states that the court is to accept the statement of the applicant that the marriage has broken down as “conclusive evidence that the marriage has broken down irretrievably”

A second change is that it will become possible to make an application for divorce or dissolution  either singly, or jointly by both spouses, so where both spouses or partners agree that the marriage is over, they can apply together for the marriage or partnership to be dissolved.

Some things will remain the same as at present. It will still not be possible to apply to dissolve a marriage or civil partnership within the first year after the marriage takes place,  and there will still be a two-stage process where you will first receive a conditional order (currently known as a Decree Nisi, in divorce proceedings) and then, after a 6 week wait, will be able to apply for a final order (currently known as a Decree Absolute) which formally ends the marriage.

The new law will also set an over all timescale of 20 weeks from when the application is first issued at court, before the final order can be issued, so it will not normally be possible to divorce is under 20 weeks, although as now, the Court will have the power to shorten this period in special circumstances, for instance if the divorce needs to be finalised quickly because one party is pregnant, or is  terminally ill and wishes to be able to remarry quickly, for example) , if an application is made.

The new law does not make any changes (other than updated the terminology used) to the way in which courts will decide applications for financial settlement following a divorce or dissolution, so where couples have been unable to agree on how their financial assets are split, a court will still decide, based on what the Judge decides is fair and reasonable having considered all of the relevant circumstances.  This would allow a Judge to take into account how a party has behaved, in deciding a financial order, even where the divorce itself makes no references to fault or bad behaviour. However, it is very rare for behaviour to be relevant to financial settlements, (for a court to consider ‘conduct’ the behaviour usually has to be very serious – for instance serious criminal offences against the other party, or to have a significant financial impact).

As the Bill has not yet been passed, no firm timescale has been set for when the new rules will come into effect, and it is still possible that changes may be introduced before the bill is passed into law.

If you are considering a divorce or dissolution, we would be happy to discuss with you how the changes may affect you, and what the pros and cons may be if you were to decide to delay starting the process until the new law is passed.  

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