Finally, an end to the divorce blame game

After many years of campaigning for change, the Divorce, Dissolution and Separation Act 2020 (the Act) received Royal Assent on 25 June 2020. 

The Act marks the most comprehensive reform to divorce law in 50 years and will mean couples seeking to end their marriage will no longer have to do so in a process that requires them to apportion blame. 

It was hoped the reforms would come into force in autumn of this year, but it has recently been announced they will be delayed until 6 April 2022.

The need for reform

The reforms seek to achieve some key goals:

·       Reduction in conflict within the legal divorce process;

·       Greater emphasis on individual autonomy;

·       Reduction in the hardship, length and cost associated with proceedings; and

·       Promotion of a positive co-parenting relationship after a divorce using a process designed to be less conflictual.

The current law

The only ground for divorce in England and Wales is the irretrievable breakdown of a marriage; the couple is required to establish one of five facts to prove this is the case. 

There are three conduct facts – adultery, behaviour, desertion; and two separation facts – two years separation with consent or five years without. 

The court has a duty to inquire if the fact relied on can be established when considering an application for Decree Nisi and can refuse the application if it does not agree the fact has been established. 

As there is a requirement to prove irretrievable breakdown of the marriage, the respondent may defend a divorce petition. This happened in the case of Owens v Owens [2018] UKSC 41 where the husband successfully defended the divorce. The case produced a very troubling outcome where the wife had to stay married to her husband in a marriage that had broken down. 

The changes ahead

The key changes are summarised below.

The requirement to provide evidence of a fact regarding conduct or separation is removed. The new requirement is simply for the applicant to provide a statement that the marriage has irretrievably broken down. 

The key distinctions from the current law are:

·       It is no longer necessary to provide an explanation or evidence that the marriage has broken down. 

·       It is no longer necessary or possible to raise allegations of conduct to start a divorce. 

·       The court does not need to consider whether the irretrievable breakdown of the marriage is proven. It simply needs to ensure the statement requirement has been complied with. 

·       A respondent can’t defend a divorce or dispute a ‘fact’ as the cause of the irretrievable breakdown. The statement of irretrievable breakdown is taken as absolute evidence that the marriage has broken down irretrievably.

·       It will still be possible to challenge a divorce but only for very limited reasons, such as whether the court has jurisdiction, whether there is a valid marriage, in cases of fraud and where there are issues of procedural compliance. 

·       A recognition that the decision to divorce can be mutual. It will be possible to make a joint application for divorce, though the option for one spouse to start the proceedings alone will remain. 

·       The Family Procedure Rules will be amended to allow a joint application to become sole if one party causes excessive delay to the proceedings. 

While the two stages of divorce and dissolution are retained, there is a new minimum time period of six months to obtain a final order (currently Decree Absolute). 

There is a minimum time period of 20 weeks between the start of the proceedings and the making of a conditional order (currently Decree Nisi), combined with the current six-week minimum period between the conditional and final order being made. 

In the absence of the requirement of continuing to use ‘the facts’, the decision to divorce cannot be made as a ‘knee jerk’ reaction. 

Changes to terminology

The terminology used will be updated to make the process more accessible.

The key distinctions from the current law are:   

·       ‘Petition for divorce’ changes to ‘application for divorce order’.

·       ‘Petitioner’ changes to ‘applicant’. 

·       ‘Decree Nisi’ changes to ‘conditional order’.

·       ‘Decree Absolute’ changes to ‘final order’. 

The changes in practice

The divorce/dissolution process will largely remain a three-stage process with some differences.

Stage 1 

An application for divorce or dissolution is made and accompanied by a statement of irretrievable breakdown and a statement of reconciliation. The 20-week period then starts.

Stage 2 

The court or the applicant serve the application, notice of proceedings and an acknowledgment of service on the respondent within 28 days. If it is a joint application, a notice of proceedings will be sent to both parties. 

The respondent has 14 days to return their acknowledgment of service, and if it is a joint application, both parties must complete an acknowledgement of service. 

If the respondent intends to dispute the application for divorce, they must file an answer within 21 days of the date of the acknowledgment of service falling due. 

A divorce application can be amended at any time before a conditional is made – e.g., the application can be changed from sole to joint.

Stage 3

An application for a conditional order is made. This includes a statement confirming whether there are any changes to information contained in the divorce application, confirmation the information in the divorce application remains true, and whether the other party has signed an acknowledgment of service and confirmation, it is their signature that appears. 

The application can be made any time after the date of the 20-week period, provided the time for acknowledgement has passed, and no party has indicated an intention to dispute.

Both parties or one applicant can make the application. If it is joint, only one must serve notice.

If the court is satisfied there is an entitlement to a conditional order, it will direct the matter before a judge to make the order. If costs are sought, the court will direct the costs order should be made if it is satisfied the applicant is entitled.

Stage 4

Conditional orders are made final by giving notice of a wish to make a conditional order final. Notice can be given by:

·       The applicant in whose favour the conditional order was granted;

·       Jointly by both parties if the application was joint; 

·       One of the parties of a joint application, provided 14 days’ notice has been given to the other applicant, and a certificate of service confirming this is provided. 

The court will make the conditional order final if it is satisfied there is no application to prevent it pending and section 10(2) of the Matrimonial Causes Act 1973 does not apply or has not been complied with. 

There is still a requirement to explain delay if the notice is filed more than 12 months after the conditional order was made. 

A better way

I welcome these changes and am delighted I will no longer have to advise my clients that there is a need to apportion blame to secure a divorce. 

I have often been concerned that the content of a divorce petition may, however carefully it is drafted, unwittingly start proceedings on the wrong foot and have a considerable impact on how quickly and constructively a couple may reach agreement on the financial aspects of separation and childcare. 

Removing blame takes the focus away from why the marriage ended and hopefully focuses minds on what needs to be done for the family to move forward. 

Amanda Phillips-Wlyds, Partner at Stowe Family Law in Reading