The New Divorce Law
From Autumn 2021, the Divorce, Dissolution and Separation Act will finally bring change to divorce law.
As the law currently stands, couples who want to divorce in England and Wales must rely on one or more ‘facts’ to prove that their relationship has irretrievably broken down. These facts are:
- Unreasonable behaviour
- 2 years separation with the consent of both parties
- 5 years separation
As only one party can petition for divorce, this can often lead to an acrimonious situation where the other party is “blamed” for the marriage breakdown, even though it may have been a mutual decision to separate. This can be difficult when the parties remain in each other’s lives because they have children. They could decide to wait and separate on the ground of two years separation with consent, but that can could lead to a delay in finalising financial claims which effectively prevents them from moving on with their lives.
As a result of this unsatisfactory situation, there have been long standing campaigns from family law professionals to change the law, which had been unchanged since 1973.
A recent catalyst for change was the widely reported case of Owens, which reached the highest court in the country in 2018. In that case, Mrs Owens had sought to petition for divorce relying on her husband’s “unreasonable behaviour” as the fact to prove that the marriage had irretrievably broken down. She had initially tried to keep the “allegations” as neutral as possibly, to try and reduce the conflict. However, when Mr Owens stated he would defend the divorce, Mrs Owens sought permission from the court to amend her allegations to include 27 allegations, her position being that whilst each allegation taken alone may seem minor, the cumulative effect was such that she could not be expected to live with her husband. The judge hearing the case described her allegations as “flimsy and exaggerated” and her divorce petition was dismissed. Her appeals to both the Court of Appeal and Supreme Court were unsuccessful, however it was noted by the Supreme Court that the outcome was less than satisfactory. She therefore had to wait to divorce based on 5 years separation (it not being possible to rely on 2 years separation as her husband’s consent would have been required). It was clear that the law needed to change.
Under the new law, separating couples will no longer have to rely on one of the ‘five facts’ to prove the ground for divorce – the irretrievable breakdown of the relationship. Instead, the new law will encourage a more constructive approach to separation.
The new law will introduce the following changes:
For advice on divorce and financial settlements, please contact specialist family law solicitor Angela Lally for a free initial chat.
- Introduce joint applications where the couple both agree that the relationship has irretrievably broken down;
- Applicants will still be able to submit a sole application if their partner does not agree;
- Remove the ability to defend a divorce, dissolution or separation;
- Remove the requirement to reply on one of the 5 facts;
- Introduce a new minimum period of 20 weeks from the start of proceedings to the ‘Conditional Order’ (currently called the decree nisi).