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Divorce reform: Is it a quick way out or an easing of pain?

The Divorce, Dissolution and Separation Bill passed the second reading stage on 8 June 2020. The bill intends to change the way couples divorce in England and Wales but does not intend to change the way their finances are divided.

Under the current law, if a person seeks a divorce they must show that their marriage has irretrievably broken down by relying on one of five facts: unreasonable behaviour, adultery, the fact they have been separated from their spouse/civil partner for two years with the consent of the other party or five years without their consent, or that their partner has deserted them. It follows therefore that unless one party is able (and wishes) to allege fault through unreasonable behaviour or adultery, they must remain married but living separately for at least two years and in some cases five years before they can obtain a divorce on a no fault basis.

Even if fault is alleged, in reality many use what Sir James Munby (the previous President of the Family Division of the High Court) termed as “intellectual dishonesty”. A divorce petition is often carefully crafted with perhaps a little hyperbole so that allegations which may seem trivial are enough to cross the threshold of unreasonableness. A respondent facing such allegations then has to decide whether to accept or contest those allegations. During the second reading it was said that three out of five divorces are currently “conduct” divorces (adultery or unreasonable behaviour) but in only 2% of cases, the respondent seeks to contest the divorce. Perhaps an acknowledgement that by the time their spouse/civil partner has consulted solicitors and drafted a divorce petition, the marriage is clearly over and it would be an expensive exercise to show otherwise. Even if the petition is not contested, a judge still has to determine if there has been unreasonable conduct but with carefully crafted petitions and the agreement of the respondent, this is often a low hurdle to overcome.

However, whether or not it is contested, having to allege wrongdoing at a time when emotions are already high is seen by proponents of the Bill to unnecessarily raise animosity at a time when the parties are expected to put aside their differences, make arrangements for their children and divide their finances in a civil and pragmatic manner.

Some cases buck the trend and are contested such as the infamous case of Tini Owens which is a clear reminder that not all divorces are granted under the current system. During her proceedings she was denied a divorce as the court determined she had not made our her allegations of unreasonable behaviour. She was therefore required to remain in what she saw as an unhappy marriage for a further two years in the hope her husband would consent to a divorce then, or five years if he did not.

Following the Tini Owens case, there has been renewed call for divorce reform which the government wishes to push through using this Bill. The aim is to make the process of divorce less painful. Either party (or indeed both parties together) can seek a divorce and will simply have to self-certify that the marriage has irretrievably broken down. They will not need to say why and the other party to the marriage cannot contest the fact the marriage has irretrievably broken down. Once a petition has been issued, the issuing party must wait 20 weeks before they can apply for a “Conditional Order” (currently known as a Decree Nisi) and after obtaining a conditional order, they must wait an additional 6 weeks before they can apply for a “Final Order” (currently known as a Decree Absolute) which signifies that the marriage/civil partnership has been fully dissolved. Accordingly, the whole process has to take a minimum of 6 months with the petitioner being asked on three occasions (the petition, conditional order and final order) whether they wish to proceed.

This is slower than a petition based on fault under the current proceedings which could complete within 8 weeks but faster than a divorce under the “no fault” facts which require the parties to be separated for at least two years before they can start the divorce proceedings which then take an minimum of a further 8 weeks. In reality, the vast majority of cases take significantly longer than the minimum due to delays at court, the use of the postal system and the parties wishing to organise their affairs before they are fully divorced.

This Bill has caused some lively debate. One MP pointed out that after two years in an employee/employer relationship, an employer would risk a claim for unfair dismissal if they terminated an employment contract without giving reasons so why should it be possible to terminate a marriage contract without giving reasons? Some are worried that it erodes the sanctity of marriage and makes divorce an easy route rather than the last resort, giving couples less incentive to work out their difficulties. Instead, some believe that the government should be focussing resources on making marriage counselling services more readily available.  Much was said about the time limits and some have commented that the minimum time should be extended. Some commenting that it makes divorce quicker (although it actually makes divorce slower for those who would currently rely on a fault based divorce).

On the opposite side of the debate, it was argued that couples do not marry in contemplation of divorce and seeking a divorce is often a life changing decision. Whether the legal route to end the marriage is easy or hard is not going to make or break the decision on whether to divorce or not. It was commented that 6 months is longer than the minimum possible timeframes under the current system and that the decision is not an automatic one but instead the applicant is asked three times if they wish to proceed. They say that the process should not be one which causes any unnecessary pain and that there are advantages to parties starting the often more difficult and expensive part of their separation, dealing with money and children, with the process not being tainted by blame. They say it is an unfair financial burden for couples who do not wish to blame each other to have to live separately for two years before they are able to start their divorce proceedings.

Some have queried whether the process will make divorce cheaper. In reality, the costs of the divorce part of proceedings is a fraction of the overall costs of divorce, dividing finances and making arrangements for children so it is unlikely that there will be any direct cost benefits. However, if the parties do not have to apportion blame, dealing with these ancillary matters may be less confrontational with more acceptance of compromise which would help to bring the overall costs down.

Overall, from a practitioners view, the reform is welcome news. The reason for divorce does not play any role in deciding how the parties separate themselves financially or divide their children’s time. Once the divorce is underway, the reason for the divorce becomes irrelevant in the eyes of the court. It is not a court of morals. But having the proceedings start with a blame game can cloud judgment leading to detrimental effects which are felt by children and drags out financial proceedings unnecessarily.

How the divorce reform fits into the wider society is something which will no doubt be further explored within the next stage for the Bill, the Committee Stage.

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Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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