New laws that will spare divorcing couples from having to apportion blame – namely adultery, unreasonable behaviour or desertion – for the breakdown of a marriage are due to come in to force in 2021. The Divorce, Dissolution and Separation Act 2020 aims to align divorce law with a forward-looking, non-confrontational government approach to family law, particularly to reduce conflict involving children.
The current legal process for divorce or legal separation requires the court to be satisfied of at least one of five facts that have resulted in irretrievable breakdown of the marriage: three ‘conduct’ facts;
adultery – might be difficult to prove in court if denied,
unreasonable behaviour – most commonly used reason; behaviour that has lead to the breakdown of the marriage, and
desertion – for two years.
These incentivise the petitioning spouse who initiates court action to make allegations about the other’s conduct. The respondent can dispute the allegations, while not necessarily contending that the marriage has irretrievably broken down. In practice only 2% of respondents contest an allegation, and only a few of these progress to a final court hearing in front of a judge.
Alternatively, there are two ‘separation’ facts based on the period of separation prior to filing the petition for divorce:
two years if both spouses agree,
five years if they do not.
Waiting two years is probably the least contentious way to get a divorce.
There is no minimum time limit between the initial petition and decree nisi – conditional order of divorce, but there is a six-week period between the decree nisi and decree absolute, the final order of divorce.
There must be a petitioner and a respondent, ie. only one spouse can petition the court for a divorce, even if both parties are in agreement. Thus the current legal system can aggravate what may be an otherwise amicable situation.
The new law streamlines the divorce process and removes antagonistic points. It removes all five conduct and separation facts, only retaining ‘irretrievable breakdown’ as the sole grounds for divorce. One spouse will still be able to petition court but the Act introduces a new option of joint application for cases where the decision to divorce is mutual and amicable.
The six week minimum timeframe between decree nisi and decree absolute is retained and a new minimum time period of six months introduced between the start of proceedings and a decree nisi conditional order being made. The Lord Chancellor can adjust the time periods between the start of proceedings and the decree nisi, and/or the decree nisi and decree absolute, provided the total does not exceed 26 weeks (six months).
Terminology has been updated for the twenty-first century. Decree nisi and decree absolute have been replaced by ‘conditional order’ and ‘final order’ respectively and ‘petitioner’ with ‘applicant.
Discussion At present in order to obtain a divorce or legal separation it is often necessary for one party to cite a fault on the part of the other. This has been shown to create or exacerbate conflict during an already difficult time. However, this behaviour is incentivised if a couple is unwilling or unable to wait for a separation period of minimum two years to elapse. This can have a detrimental impact on making arrangements for the future, including financial arrangements and, for parents, child arrangements for which they need to continue to communicate and cooperate for their children.
Removal of blame consequently removes the ability to contest a divorce and prolong proceedings.
Although the ‘separation’ facts (2 and 5 years) are removed the introduction of a minimum 26 weeks for the divorce process aims to ensure the decision to divorce is a considered one, allowing the parties to agree arrangements about the future.
The children of divorcing couples should experience reduced conflict between their parents – which should facilitate better cooperation and co-parenting after divorce.
Couples can focus on moving forward, rather than understanding the divorce system. Which in turn brings a not inconsiderable benefit of the new streamlined system: couples will need to make less use of legal services … in theory.
There is likely to be a short-term, temporary spike in the number of petitions from couples who would otherwise be waiting two or five years to cite separation for a divorce, with the removal of the separation period post implementation. It will be interesting to compare the statistics for the forthcoming years and evaluate the success of the new act in practice.