Divorce proceedings: is the ‘blame game’ coming to an end?

Answer

The Divorce, Dissolution and Separation Bill (the Bill) is currently making its way through Parliament and, at the time of writing, is undergoing a line-by-line examination by the House of Lords. If the Bill is approved, it could mark a long-awaited change in family law.

The Bill’s journey to Parliament has been a protracted one. Although first introduced in June 2019, its progress was first halted by September’s unlawful prorogation of Parliament and then by December’s general election. This article provides a summary of how divorce can currently be obtained, the changes that the new Bill proposes and what these changes will mean for divorcing couples and family lawyers.

What is the current law?

Under the Matrimonial Causes Act 1973 (the Act), there is technically only one ground for divorce in the United Kingdom: that the marriage has broken down irretrievably.

In its current form, the law requires that this ground be proved by the petitioning spouse. They must establish one of the following five ‘facts’ laid out in the Act:

1. adultery;
2. unreasonable behaviour;
3. desertion;
4. two years separation; or
5. five years separation.

The first three facts can be referred to as ‘fault-based’, while the latter two facts are both based on separation. Of these, ‘unreasonable behaviour’ is the most common fact relied upon. What these facts often mean in practice is that spouses can obtain a divorce only by pointing the finger at each other and assigning blame.

What does the new Bill propose?

If passed, the new Bill will replace the current divorce system outlined above. The single ground of divorce will stay, but instead of having to prove one of the five facts, a petitioning spouse will simply have to make a declaration of irretrievable breakdown; this statement can even be made together by both parties in the divorce. But most importantly, evidence of unreasonable behaviour or otherwise need not be provided to support the statement. Instead, the court must take the statement as conclusive evidence that the marriage has irretrievably broken down and must make a ‘conditional’ divorce order.

The Bill also introduces a new timeframe, requiring that a minimum of 20 weeks pass before a conditional order can be given. This period will run from the time that the proceedings are started. A conditional order may then be made formal six weeks later, at the earliest.

The Bill will also stop one party from contesting the divorce if the other wants to proceed.

Similar provisions will come into force for judicial separation and to dissolve civil partnerships.

What will this mean for divorcing couples?

A 2017 report from the Nuffield Foundation, ‘Finding Fault?’, suggested that 62% of petitioning spouses and 78% of responding spouses said that relying on a fault-based ground made the process bitter, and 21% of responding spouses said it had made it more difficult to organise child arrangements. Moreover, the report concluded that not only are divorce petitions inaccurately recording why a marriage broke down, but that in any event courts did not consider the content of the evidence provided with the petition when determining divorce.

The government has championed the Bill as removing ‘the blame game’ around divorce by replacing the five facts with one statement. The hope is that this will stop divorcing spouses from pointing the finger at one another, and in turn reduce the amount of resentment and antagonism involved in proceedings. Rather than an adversarial process being adopted, a conciliatory one is encouraged.

The most important implication of this will be seen on divorcing spouses’ children. It is long evidenced that divorce can have detrimental effects on the health of the children involved – in particular, children are likely to feel a range of emotions during the divorce from anger and confusion to worry and guilt. It is hoped that the new divorce regime will allow parents to focus on children and financial arrangements for their respective futures, rather than becoming preoccupied with blame.

It could also be argued that the Bill is illustrative of a how divorce is now seen in society, as there is a declining stigma around obtaining a divorce in the modern world. Rather than marriage being seen as a unilateral contract, as has been the case in the past, it is seen in the context of growing and changing relationships. It is becoming more acceptable for marriages to end on the basis that two people are no longer happy together, rather than any particular event or behaviour having occurred. Although, there will be critics of this position who argue that the new Bill allows married couples to divorce too easily and quickly, and in turn challenges the inviolability of marriage.

What does this mean for family lawyers?

Although the Bill is welcomed by family lawyers, there will still be some aspects to iron out.

Family lawyers must become familiar with the new timeframes for divorce laid out in the Bill. As currently drafted, once the petitioning spouse begins divorce proceedings, a minimum of 20 weeks must pass before a conditional order can be given. Once ordered, a further minimum of six weeks must pass before the conditional order can be finalised. The idea behind the initial 20-week period is to give the spouse(s) an opportunity to consider the relationship and think about whether they want to proceed with the divorce.

However, due to a current drafting quirk in the Bill, the 20-week period starts running when the divorce proceedings begin, but there is no requirement for the petitioning spouse to inform the responding spouse of divorce proceedings. Therefore, in theory a responding spouse may find out about divorce proceedings weeks later, by which point they will have less than 20-weeks’ notice to begin preparing for the conditional order and ultimately the final order. This preparation time is vital for divorcing spouses to seek legal advice and determine their position both financially and concerning any children.

As the Law Society suggest, a simple way to address this imbalance would be to let the 20 weeks run from when the responding spouse is served with the divorce notice. This would allow both parties to benefit from the full 20 weeks of reflection and preparation. In the case of spouses who enter the divorce petition together, it would still make sense for the 20 weeks to run from the start of proceedings.

It is also important to note that the Bill will not change the entire process. There are still key aspects of divorce proceedings that will remain unchanged. For example, couples cannot get a divorce within a year of marriage and divorces can still be challenged on grounds such as jurisdiction, legal validity of marriage, fraud, coercion or procedural compliance. In addition, the Bill is not intended to address financial provision for divorcing spouses, which will remain determined by Part II of the Act.

Overall, the Bill has been positively welcomed by divorcing couples, family lawyers and wider society at large. It is hoped that the new law will more accurately reflect society’s view towards marriage and encourage divorcing couples to prioritise the future of their finances and children. To stay updated on the Bill’s status, visit Parliament’s website.

Victoria Potts is a second-seat trainee solicitor in Shoosmiths’ Birmingham Office, currently sitting in the family team.