Plans to change decades’ old divorce laws

Wake Smith Solicitors 10 April 2019

Divorcing couples will no longer be forced to play the blame game under legislative reform being proposed by the Government.

Justice Secretary David Gauke has said laws for no-fault divorce will be introduced as soon as parliamentary time becomes available.

Currently, under the existing Matrimonial Causes Act 1973, an applicant has to either prove their partner is at fault through adultery, desertion or unreasonable behaviour, or if both sides agree, they can part after two years of separation. In the absence of consent or evidence of fault, applicants should wait until they have been living apart for five years.

The need for evidence of adultery, desertion or unreasonable behaviour would be replaced by a requirement for a statement of irretrievable breakdown.

The new changes would establish a minimum six-month timeframe to enable couples to “reflect” on their decision and also abolish the ability to contest a divorce.

Lindsey Canning, head of family law at Wake Smith, looks at the potential changes.

“The introduction of a "no fault" system is huge and will represent the biggest change in divorce law in 50 years.

“Divorcing couples will no longer be forced to play the blame game.

“The current restrictive rules fuel conflict by forcing one side to blame the other, if they do not want to wait for years before obtaining a decree absolute divorce.

“The new legislation, based on the results of a 12-week public consultation, would extend the grounds for divorce while retaining the underlying concept of breakdown.

“This much-needed proposed change is good news for divorcing couples and particularly for any children involved at this very stressful time for all.

“The fault-based divorce system often saw parting couples apportioning blame, resulting in increased animosity.

“These new proposals concentrate on neutrality and avoiding conflict, not as in some quarters that has been suggested, on the disposability of marriage, divorce on demand or making the process easy. No divorce is easy.”

The Government said the new legislation would preserve the two-stage legal process known as decree nisi and decree absolute. There will be an option for a joint application for divorce.

It said it upheld the institution of marriage but would look to update the law to reflect calls for change and gave a three month timetable to introduce the legislation.

Records show that out of every five divorce petitions lodged over the past three years, almost three rely on conduct facts and two on separation facts. The ability to contest a divorce was used in fewer than 2% of cases.

In 2018, 118,000 people petitioned for divorce in England and Wales.

Parallel changes would be made to the law governing the dissolution of a civil partnership.

For further information on divorce proceedings contact Lindsey Canning at [email protected]  or on 0114 266 6660.

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