Summary

The House of Lords discussed the Divorce, Dissolution and Separation Bill on 5 February in what has been described by the Ministry of Justice as the “biggest shake-up of divorce laws in half a century”. The bill will allow divorcing couples in legal marriages or civil partnerships to mutually apply for a divorce with a view to reducing allegations of blame for the relationship breakdown. The bill has now been passed to the Committee stage where there will be a line by line examination of the bill which is scheduled for 3 March 2020.

At present, the law in England and Wales requires one party to demonstrate that the marriage/ civil partnership has broken down irretrievably by showing one of five facts: adultery; the other person has behaved in such a way that they can no longer be expected to live with them (known as unreasonable behaviour);  separation for two years (with consent); separation for 5 years (without consent) or desertion (which the writer has never used).

The test of unreasonable behaviour is both subjective and objective. Objectively has the other spouse behaved in the way alleged; subjectively is that sufficient to allege the marriage has irretrievably broken down.

The current law therefore invites a ‘blame game’ between divorcing couples. In fact, the mechanics of processing an immediate divorce requires one party (the petitioner) to prove that the other party has either committed adultery or displayed unreasonable behaviour. This is not a practical solution for couples who have reached a mutual decision to end the marriage as it requires one party to essentially be blamed for the breakdown of the relationship. A supporting statement of facts is required when submitting the divorce petition which means that written evidence setting out one partner’s unreasonable behaviour must be drafted by the petitioner. Even if the parties agree that it is a legal formality, it can often build tension which manifests itself in other aspects of the divorce such as dealing with the parties’ finances or children. 

The new law will remove the ‘blame game’ by allowing one partner (or both) to make a statement of irretrievable breakdown. This will mean that the new law will provide an option to divorce on a mutual basis. 

From a policy perspective, the removal of blame for the breakdown of the marriage is also intended to prevent additional acrimony within the family, particularly where divorcing couples have children. Justice Secretary & Lord Chancellor Rt Hon Robert Buckland QC MP made the following statement about the bill:

“By sparing individuals the need to play the blame game, we are stripping out the needless antagonism this creates so families can better move on with their lives.”

The new law will also prevent a spouse from contesting a divorce  while ensuring that the application for divorce could still be challenged on the basis of jurisdiction, fraud, coercion and the legal validity of the marriage. This has a real impact in cases involving   coercive control and domestic abuse. 

It could be argued that the new law undermines the ‘sanctity’ of marriage as it provides an ‘easy option’ to divorce if one party is able to apply without the consent of the other. The potential new law does not provide for an expedient divorce as it introduces a minimum period of 20 weeks from the start of issuing the divorce petition until when the order for divorce is made. This time period will inevitably give couples sufficient time to consider reconciling the relationship, or to make practical arrangements for the future if the decision to divorce is inevitable. 

Elizabeth Hicks, Head of Family Asset Protection, says:

“ We welcome the idea of no fault divorce. There are often cases where a marriage has broken down not because someone is to blame, but simply because the relationship has run its course. It causes unnecessary tension and angst to then have to come up with some examples of how the other spouse has behaved in order to get divorced. Hopefully, we will soon have no fault divorce. Then we can go on to look at the enforceability of pre and post nuptial agreements.”