Taking the leap to begin a divorce or dissolution is never easy and can be made more difficult by the legal process to be navigated ahead. One aspect of the legal process, the necessity to specify a reason for the separation on the petition, is set to change with a new Bill currently being debated in parliament.
The Divorce, Dissolution and Separation Billhad its first reading in the House of Lords on 7 January 2020 and its second reading is set for 5 February 2020. The Bill proposes to make dramatic changes to divorce laws in England and Wales, lessening the impact the current adversarial approach has on parties.
There is currently only one ground for divorce – irretrievable breakdown of marriage. The Petitioner proves this ground by relying on one of five “facts” as follows:
- Unreasonable behaviour;
- 2 years separation (with consent);
- 5 years separation.
It is rare for desertion to be cited as a reason for the irretrievable breakdown of marriage. The two current non fault-based reasons, 2 years separation with consent and 5 years separation, require a period to have passed before being able to use them. Often parties either do not want or cannot wait this long. That leaves two options; adultery and unreasonable behaviour.
If using adultery, it is possible to cite the “other” person as a co-respondent, but this then creates its own issues and is routinely advised against. Citing adultery also requires the respondent to admit that adultery, which, if not forthcoming, could prove problematic.
That leaves unreasonable behaviour. To use this ground the Petitioner must “blame” the Respondent for causing the marriage to breakdown as a result of their behaviour and also persuade the court that their behaviour is such that the petitioner should not be expected to continue living with the respondent. The Petitioner will therefore have to cite particulars of that behaviour, which might be difficult for the Petitioner to re-live and might equally be difficult for the Respondent to read. It is argued that this requirement to cast blame at the outset unnecessarily increases the temperature and sets the parties on a path of antagonism, rather than cooperation. This is particularly concerning when the parties have children and need to be able to co-parent post the divorce. The reforms set out in the new Bill recognises this and its aim is for the court system to support parties constructively through the process rather than being the wedge to push them apart.
The new Bill, if passed, will mean that the choice of 5 facts (to support the sole ground of irretrievable breakdown) is removed and replaced by the requirement to provide a statement of irretrievable breakdown. It will also be possible for parties to jointly apply.
Additionally, the Bill proposes to end the possibility of defending a divorce or dissolution. Although roughly only 2% of divorces are defended, it currently remains possible to contest a divorce or dissolution. The case of Owens (Appellant) v Owens (Respondent) 2018 UKSC 41 on appeal from  EWCA Civ 182has provided much of the impetus for this review of the legal process.
Mrs Owens issued her Petition in 2015 using the supporting fact of unreasonable behaviour. Mr Owens defended the petition, arguing the examplesof his behaviour were not significant enough to satisfy the test. Mrs Owens ultimately failed in her appeal to the Supreme Court with the appeal being dismissed unanimously, leaving the couple separated but remaining married, after several years of proceedings. This was a deeply unsatisfying outcome for Mrs Owens.
The Bill proposes that the statement of irretrievable breakdown should be taken as conclusive evidence that the marriage has broken down irretrievably, and thereby removing the option for the respondent to defend the divorce/dissolution, so that the outcome ofOwens v Owens cannot occur again.
The Divorce Dissolution and Separation Bill also provides a minimum timeline of 20 weeks from petition to Decree Nisi, whereas no such requirement exists currently. There is no change proposed to the 6-week period required between the Decree Nisi (or Conditional Order) and the Decree Absolute (or Final Order).
Although the Bill is now with parliament, it is not known when it will come into force, but it is hoped that it will be passed into law in the not too distant future.
Please contact A City Law Firm for any family law assistance you require.
By Bianca Martin