Divorce laws in England and Wales are to be overhauled so couples can split faster and, it is hoped, with less acrimony. Jane Hodge, Partner and Head of Family Law reviews the current situation and looks forward to a better, more constructive future.
Currently, "fault-based" divorces, where there are allegations of adultery or unreasonable behaviour, can take as little as three to six months to complete.
But "no-fault" divorces can take much longer - with couples having to prove they have been living apart for at least one year in Scotland, and at least two years in the rest of the UK.
Living apart can include living in the same house, provided they are not sharing a bed or living as a couple. However, it can be difficult to prove that they have led separate lives and is subject to judicial approval.
Frustrating and Adversarial
Many legal professionals feel current divorce law is out of date, particularly following the 2018 Owens v Owens case. The Supreme Court rejected a woman's appeal for divorce after her husband refused to agree a split.
Tini Owens, from Worcestershire, wanted to divorce her husband of 40 years, on the grounds that she was unhappy. Her husband Hugh refused to agree to it and the Supreme Court unanimously rejected her appeal, which meant the couple must remain married until 2020, following 5 years of separation.
This case demonstrates how frustrating the current law and procedure can be where one party is very stubborn and refuses to co-operate with the divorce, even when they have been separated for a substantial amount of time.
It can exaggerate the tension in what is already highly stressful time. It also exposes children to the damaging impact of ongoing conflict between their parents both during the divorce and afterwards.
The wider family justice system has been successful in attempting to help people resolve issues in a non-confrontational way, such as mediation. At the same time, the legal divorce process has thrown fault and blame into the mix while spouses are trying to end their relationship and make sensible living arrangements for their children.
Solicitors have tried for many years to draft behaviour-based divorce petitions with as neutral and non-inflammatory language as possible. There is, however, a threshold to cross with unreasonable behaviour. If the allegations made are not strong enough to pass a subjective test by a judge considering the divorce, the divorce won’t be granted.
Towards Real Reform
The Ministry of Justice issued a consultation on its plans in September 2018. The consultation closed in December 2018. In April 2019 the Government published its response to the consultation and confirmed that it would go ahead with the planned changes by introducing new legislation.
The Government plans to reform the divorce process to remove the concept of fault. In the future, they will only have to state that the marriage has broken down irretrievably and will stop one partner refusing a divorce if the other one wants one.
The current ‘five facts’ would be removed:
- Behaviour that makes continuing to live together unreasonable
- Separation of more than two years (if spouse agrees to the divorce)
- Separation of at least five years (if spouse disagrees with the divorce).
The government also plans to:
- allow couples to give notice jointly
- allow joint applications to become sole applications (and vice versa)
- remove the ability for one person to contest a divorce
- retain the two stage process of decree nisi and decree absolute
- introduce a minimum timeframe of six months from petition to decree absolute
- modernise the language used in the divorce process.
These changes would also apply to the dissolution of civil partnerships.
Positive but Cautious Response by Legal Profession
The Law Society of England and Wales supports this reform to remove blame and simplify the process.
No-fault divorce is designed to hopefully reduce conflict, allowing couples to focus on important issues like children, property and finances. Unfortunately, even this step cannot guarantee to remove all the animosity arising form the breakdown of a relationship but at least it does not compel one person to be blamed over the other.
The Law Society also believes the Government should review the divorce process as a whole and make sure that it is easier for people to understand and navigate.
Regardless of the simplification of the divorce process, it will always be wise to take advice from an expert family lawyer regarding financial issues. These can be complicated and more important to the divorcing couple and their children than the actual dissolution of the marriage.
It is very dangerous to believe that the simplification of the procedure to end the marriage will also make resolving financial issues easier.
Regardless of the current or reformed procedure for divorce, it is important and acknowledged that early advice to support divorcing couples and help them understand their financial responsibilities and the needs of their children is essential.
The introduction of a "no fault" system is huge. It represents the biggest change in divorce law in 50 years.
Unfortunately, whilst the Government has announced the intention to implement the procedure, this will require a change in legislation and with the other more pressing issue of Brexit still to be resolved, Solicitors are not expecting the change to be over night and indeed if there is a change of Government, the change may not happen at all.
Watch this space for updates from the Anderson Rowntree Family Team.
Jane is based at our Chichester office and has particular expertise in complicated and high net worth divorce cases, including those involving business and immigration issues. As a former-Chair of Forces Law, an organisation dedicated to providing specialist legal advice to the armed forces, she can advise on divorce matters for military personnel.
For a confidential discussion about your situation, contact Jane on 01243 787899 or email firstname.lastname@example.org