Whose fault is it anyway? Finally an end in sight for the blame game…

Divorce and separation can be a time of huge conflict and heartache for couples. It is widely accepted that the current divorce law in England & Wales has further exacerbated the position, leaving divorcing couples with no option to end the marriage amicably immediately upon separation. As it stands, unless blame is apportioned, they must wait until they are separated for two plus years. This can be very distressing for separating couples and can result in increased acrimony or considerable delays, neither of which are particularly helpful in already very difficult circumstances. The impact of starting proceedings on an acrimonious note on the families going forward is immeasurable.

David Gauke, the Lord Secretary and Secretary of State for Justice, launched a consultation last autumn on reforming the law and unsurprisingly there was widespread support for the initiative. However, this is by no means a new idea, having first been introduced to the Family Law Act 1996, but its provisions were deemed unworkable and it was later repealed.

The possibility and need for reform gained momentum again after the case of Tini Owens which reached the Supreme Court in July last year, with a devastating result for Ms Owens and outcry amongst the legal profession as to the absurdity of the law as it stands in relation to this particular point. No longer could we as lawyers, and members of Resolution, encourage our clients to cite very mild behaviour particulars, for fear that they too would find themselves in the same position as Ms Owens.  Whilst Ms Owens’ plight was a particularly rare one, this brought to everyone’s attention again how unsatisfactory the current position is. Even before then and to a higher degree since, lawyers, prominent members of the judiciary and groups such as Resolution have been tirelessly campaigning for the ‘No Fault’ divorce and so the announcement in 2019 that this would become a reality was gratefully received.

What are the proposed changes?

The Bill revises the existing processes as set out in the Matrimonial Causes Act 1973 and the Civil Partnerships Act 2004. Here are the key changes:

  • Retain the sole ground of irretrievable breakdown but replace the requirement to provide supporting evidence of a conduct or separation fact with a new requirement to provide a statement of irretrievable breakdown. No further evidence will be required.
  • Remove the possibility of contesting the decision to divorce. The court will take the statement of irretrievable breakdown to be conclusive evidence that the marriage has broken down irretrievably.
  • Introduce a new minimum period of 20 weeks between the start of proceedings and confirmation to the court that the conditional order should be made, and retain the current minimum timeframe of six weeks between conditional order and final order.
  • Enable the Lord Chancellor to adjust the time periods between the start of proceedings and confirmation that a conditional order should be made, and between a conditional order and final order of divorce, as long as the total does not exceed 26 weeks.
  • Introduce a new option of a joint application for cases where the decision to divorce is a mutual one. The current ability of one spouse only to initiate the legal process will be retained.
  • Update terminology used, for example replacing terms such as “decree nisi”, “decree absolute” , “petitioner” and “decree of judicial separation” with “conditional order”, “final order” , “applicant” and “judicial separation order” .

Where are we now?

Of course, the worry amongst many was that the Government with its many issues to deal with, not least Brexit, would leave this as low priority. So it was welcome news to hear that on 16th June 2019 David Gauke introduced the Bill to the House of Commons for the first reading and the second reading took place and was approved on 25th June 2019. It may not be long to wait now for this important change in family law, arguably the most important change since 1973, to receive royal assent, after which it will come into force. It’s by no means perfect but it is certainly a huge step in the right direction.

There is concern about a “spike” in divorces after the reforms but in my view that will be representative only of those waiting for the changes to come into force.

As a member of Resolution, I believe strongly that reform can’t come soon enough.

Grainne Fahy.jpg

Grainne Fahy, partner and head of family law for London and South East

If you are facing similar issues or would like some advice, click here to speak to a member of BLM’s family law team.

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