At present the law on divorce is governed by Section 1 of the Matrimonial Causes Act 1973. To proceed with a Divorce Petition you must prove that your marriage has ‘broken down irretrievably’. To prove this you must establish one out of the five supporting facts; adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation.
The current law on divorce has for a long time been criticised as being archaic and outdated. Many legal professionals have called to ‘end the blame game’. Many married couples have to find fault within their marriage to enable them to proceed with a divorce. This often leading to hostility and unnecessary conflict between couples whereby neither may be at fault but they must find fault to obtain a divorce. This can act against the prospect of reconciliation and can affect the welfare of any children involved. Further, it can affect the settlement of finances after the divorce.
Following Resolution’s campaign to ‘end the blame game’ and the landmark case of Owens v Owens [2017] EWCA Civ 182, the Government announced on 9 April 2019 that the law on divorce is to undergo major reforms. Many of these recommendations made to the current law and its procedures can be found in the proposals put forward in the Family Law Act 1996 Part 2 which was never enacted as law.
Divorcing couples will no longer have to blame each other for the breakdown of their marriage. This will hopefully reduce conflict within families when a couple decides to obtain a divorce.
The proposals maintain the ‘irretrievable breakdown’ of a marriage as the sole ground for divorce. However, the requirement of a supporting ’fact’ will be replaced with a requirement to provide a statement of irretrievable breakdown.
Parties will still have to apply for a decree nisi and a decree absolute. However, the proposals recommend that there is an option of a joint application for divorce, alongside retaining the option for one party to initiate the process.
The Government propose to remove the ability to contest a divorce and are proposing to introduce a minimum timeframe of 6 months, from the application to the granting of the divorce (20 weeks from application to decree nisi; 6 weeks from decree nisi to decree absolute).
There is no doubt that these new proposals will reduce a lot of hostility caused within the divorce process whereby parties want to divorce amicably but have to find ‘fault’ to proceed with a divorce petition.
However, with the law moving towards the digitalisation of divorce whereby the whole divorce process can be completed online many parties may think that they need not obtain proper legal advice.
The concerns with not obtaining legal advice is that many parties may struggle once the divorce application has been served on what they must do next. It is of upmost importance that parties seek legal advice at this point around obtaining their decree nisi and then applying for decree absolute as this must be done within a set time period.
Further, many parties do not appreciate that there is a connection between the divorce and the settlement of finances. It is advised that the parties consider reaching a financial settlement wherever possible prior to the divorce application. This will enable the parties with some security around what is going to happen with the matrimonial assets, matrimonial home, pensions and any inheritance. Without obtaining legal advice at this point many parties may put themselves at the risk of not knowing the consequences of ending the marriage before they apply for the divorce.
With the law on divorce becoming more accessible in the future and the encouragement of the online divorce process many people may obtain a divorce without any prior legal advice. However, it is advised that parties seek legal advice to ensure they carry out the divorce effectively and in set time scales.
Blog by Annabella Dolling, Paralegal