No-fault divorce is coming: How are divorce laws set to change?
On 9th April 2019 Justice Secretary David Gauke confirmed new legislation would be introduced to allow couples to separate without apportioning blame, in order to reduce family conflict.
The current system
Under the current system divorcing couples, where both parties agree, the Court can dissolve the marriage after the couple have lived apart for a minimum of two years. Where one spouse refuses to provide consent, the other spouse will have to wait to be separated for a period of 5 years before divorce can proceed. Alternatively, a spouse may obtain a divorce by demonstrating, to the satisfaction of the Court, the other spouse has committed adultery, they have behaved in such a way that the spouse cannot reasonably be expected to live with them (unreasonable behaviour) or the spouse has been deserted, which is very rarely used.
This is seen to exasperate conflict between divorcing couples and also to be working against any prospect of couples reconciling, often resulting in increases animosity.
Calls for reforms have been on-going for several years. These calls were intensified after the Supreme Court in the case of Owens v Owens  UKSC 41 on 25th July 2018 ruled against Mrs Owens, who sought a divorce as she was unhappy in her marriage of 40 years to her husband who refused to agree to the divorce. Further to Judgement in this case, Mrs Owens has been left to wait until 2020, a period of five years after her separation to her husband, until she can commence divorce proceedings.
What is proposed under the new law?
Under the new law, couples will no longer have to find blame to prove irretrievable breakdown of a marriage. Instead it is expected that spouses will be able to submit a “statement of irretrievable breakdown” to apply for divorce confirming the marriage has broken down. There will also be the option for a joint application for divorce, where couples for example are both in agreement that the marriage has broken down. The option to make an application jointly, in principle would give the opportunity for couples to work with one another as opposed to against each other, which is most often the case in divorce.
The new rules will also include a minimum timeframe of six months from the petition state to Decree Absolute (final document confirming divorce). At the end of this period the applicant (petitioner) will be required to continue to affirm their decision to seek a divorce before the Decree Absolute is granted, allowing for a “meaningful period of reflection” and an “opportunity to change their mind”.
Of further benefit under the new law is the fact that there will no longer be the ability to contest a divorce. The ability to contest has historically been taken advantage of by abusers who seek to continue their coercive and controlling behaviour. This demonstrates further the government’s commitment to assist those who are in abusive relationships and to make it easier for them to bring an end to those relationships.
Changes to the law governing the dissolution of a civil partnership will also be introduced in parallel terms.
What will the new law mean to divorcing couples?
The change in law is likely to have a positive impact upon those seeking to dissolve their marriage.
The new law should assist in moving the emphasis upon divorcing couples from blame to resolution, which can only be of benefit to all concerned.
For children of separating couples, they are already having to come to terms with the fact that their parents are separating and the change that is likely to incur. Justice Secretary in his speech states “hostility and conflict between parents leave their mark on children and can damage their life chances.” With the focus shifting from blame to resolution, the impact this new law will have on children of divorcing couples is likely to be profoundly beneficial.
There is of course the concern that such laws will make it easier for couples and as such damage the sanctity of marriage. There may also be an argument to suggest that couples may not think carefully enough before they either enter into the marriage in the first place or upon consideration of separation, given the ease to divorce.
The truth is, due to the complex nature of relationships and their uniqueness means different challenges for all concerned but in reality, the need for change is necessary and to reduce the level of acrimony and blame between divorcing couples is certainly a step in the right direction.
No date has been set for the introduction of the new law however it is expected soon and time will only tell how the new law will impact upon divorcing couples and their families.
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