Scissors cutting a paper family

Outdated Divorce Law Begins A Much Needed Overhaul

At present, a person looking to divorce can only apply after 2 years of separation, with the agreement of their spouse, or after 5 years of separation should they be unable to obtain consent.

Otherwise, they must prove adultery, unreasonable behaviour or desertion.  For couples wanting to divorce sooner than 2 years of separation, this meant playing a ‘blame game’; often what could have been an amicable split could lead to animosity and a breakdown of any positive relationship, an especially important base to couples who wished to co-parent.

The case of Owens v Owens in 2016 and the following appeals, eventually leading to the Supreme Court in 2018, brought to the forefront how the law was forcing parties in “loveless and desperately unhappy” marriages to stay married for up to 5 years should one party not agree.

Although judges did not agree with the judgement they passed, they felt that as the unreasonable behaviour stated by Mrs Owen was not sufficient for divorce, therefore they had no choice. Judges said that it was for Parliament and not judges to change the law.

Following the Owens case, the Government published a consultation paper, ‘Reform of Legal Requirement for Divorce’, responding in April 2019 with proposed legislation, the Divorce, Dissolution and Separation Bill.  The bill hopes to reduce family conflict, meaning couples will not have to provide ‘facts’ of adultery or unreasonable behaviour, but rather provide a statement of irretrievable breakdown.

There will also be the introduction of a minimum 20 weeks from petition to decree nisi and a further 6 weeks (as it currently stands) between decree nisi and decree absolute, meaning couples have a time of ‘reflection’ before divorce is finalised.

The bill has been welcomed by many, including Secretary of State for Justice, Mr David Gauke, who stated:

“the law must change to take unnecessary conflict flash points out of the legal process.”

Despite large support for the bill and how it hopes to help cause less contention in a divorce, especially when children are involved, there were members who raised issues, such as a potential rise in the number of divorces, and that the institution of marriage should be supported.

A main opposer of the bill, MP Fiona Bruce, suggested that there should be more support for families and mediation should be promoted sooner in the divorce process.  Mrs Bruce also noted that 83% of the respondents to the consultation objected to the loss of an individual’s rights to contest a divorce, and that “it signals that marriage need no longer be entered into with the intention of its being a lifelong commitment.”

The draft bill is currently in the House of Commons awaiting a report before its third reading, no date has been set.

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