15th April 2021
The law governing divorce is changing dramatically. The Divorce, Dissolution and Separation Bill [HL] 2019-21, received Royal assent in June 2020, becoming the Divorce, Dissolution and Separation Act 2020 (DDSA 2020).
Couples considering divorce and separation may be aware of the long-standing discussions concerning a ‘no fault divorce’ which overhauls the current regime for divorce that has existed since the 1960s.
S1 of the Matrimonial Causes Act 1973(‘the Act’) governs how a married couple can achieve a divorce. The party seeking a divorce should present a petition for divorce before the court evidencing that the marriage has ‘irretrievably broken down’. Irretrievable breakdown must be evidenced by establishing one of five facts and satisfying any requirements of that fact. These facts are: adultery, unreasonable behaviour, separation for two years with consent, separation for five years without consent and desertion. If the court determines that the fact has been proven, the court shall grant a decree of divorce.
The existing law says that a couple can achieve a divorce straight away if one party is at fault, even in cases where parties have mutually decided to end their marriage; the petitioning party must detail the specifics of that fault. Alternatively, a couple can rely on two- or five-years separation. Consequently, a couple are then forced to prolong their unhappy marriage before they can obtain a divorce.
Currently being unhappy within a marriage is not a ground for divorce and is not definitive of a marriage that has irretrievably broken down.
This gives rise to the argument that if a couple no longer want to be married, they should not be forced to stay together by law and should not be required to ‘point the finger’ in order obtain a divorce if it can be avoided.
A fault-based system risks aggravating family conflict, can be damaging to any children involved, and can frustrate negotiations and cause bad-feeling when couples are dealing with the division of their assets.
Discussions for ‘no fault divorce’ have been longstanding. However, pressure for change over time has increased. The case of Owens v Owens  UKSC 41 (‘Owens’), has been instrumental in achieving the long-needed change. Owens came before the Supreme Court after the Central Family Court held that it would not grant a divorce to Mrs Owens despite agreeing that the marriage had irretrievably broken down. The court stated that she had not successfully evidenced the fact of unreasonable behaviour in her petition for divorce. The court determined that the alleged unreasonable behaviour of Mr Owens did not amount to behaviour that Mrs Owens could not be reasonably be expected to live with.
After further discussion of the lower courts, the Supreme Court unanimously dismissed the appeal and Mrs Owens had to remain married to Mr Owens. The decision did not come without the Justices expressing their concerns over the unacceptable current state of the law, prompting Parliament to reform divorce law. The decision in Owens had gained significant media attention bringing the case for a ‘no fault divorce’ to the forefront of parliamentary attention.
The Divorce, Dissolution and Separation Act 2020
As of October 2021, the DDSA 2020 will allow either or both parties to the marriage to make an application to the court for a divorce order which will then dissolve the marriage.
The application must be accompanied by a statement by the applicant or applicant(s) that the marriage has irretrievably broken down.
The court dealing with the application must accept the statement as evidence that the marriage has broken down and make an order for divorce. This major change does away with the “blame game” overhauling the five facts and removing the option to contest the decision to divorce.
There will be no such thing as a divorce petition, this will be replaced with ‘an application for a divorce order’ and joint applications will be allowed.
In the first instance a divorce order will be a ‘conditional order’; this replaces what is currently referred to as decree nisi. Only after six weeks have passed may the conditional order be made final, replacing what is currently referred to as decree absolute.
A court cannot make a conditional order without there being an application for a divorce order before it, an application made by either party or jointly.
In the case where it is not a joint application, the applicant must confirm that they wish for the application to proceed. In the case of a joint application both parties must confirm they wish for the application to proceed.
If the application started as a joint application, and one party changes their mind, an application may still proceed on the basis that one of the parties have provided their confirmation to proceed.
The procedure of confirmation to proceed replaces what is now called the Acknowledgment of Service under the current law. Under the DDSA 2020 there is no requirement for both parties to agree that they wish to dissolve their marriage.
A party cannot give confirmation that they wish to proceed until twenty weeks have lapsed from the date proceedings are initiated, i.e. from the date the application is issued by the court.
Twenty weeks (five months) after the start of proceedings, the court is entitled to grant a conditional order of divorce. No less than six weeks (just under two months) after a conditional order is made may the court make a final order.
These changes are expected to be implemented in October 2021.
If you are content to wait for the new law to take effect in October 2021 but would like to book an appointment now to find out more and consider your options, please do get in touch. We can help you navigate your separation and divorce in an amicable way.
Ultimately this depends on your circumstances. Whilst October 2021 may not seem that far away, for some this is a long time to wait, and this might not be the best option for you.
If you are unsure of how to proceed, then please do get in touch so we can discuss your circumstances and advise on what might best suit your situation.
For more information on the changes in divorce law or to seek some professional advice on separation, divorce or children arrangements, please call our specialist Family Law Team on 01256 844888 or email firstname.lastname@example.org.
How to Have a Healthy Divorce
10 Things You Can Do To Prepare For Divorce
Divorcing When the Time is Right
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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