“It’s been a long time coming, but I know a change is going to come”. These words for many have been what they have held onto for over two decades since the work of Lord Woolf steered the introduction of a more user friendly justice system in 1998.
The current divorce laws do not reflect relationships today. The current process forces divorcing couples to place fault on the other and set out reasons why the marriage has broken down. The current system sets the tone for animosity and conflict during ongoing legal proceedings that follows from the outset. For many couples with children, this particularly effects their future co-parenting relationship, and at times causes a strain on the relationships between the child/children with their parents.
Now, the change that many family lawyers have been longing and fighting for to bring about a law that reflects modern day society and promote an amicable and stress-free divorce process has now come. The long awaited Divorce, Dissolution and Separation Bill which was first introduced in July 2019 has now passed its final stages[1]. It is expected that these new changes will take effect in late 2021, to permit prudent implementation of the required changes to the current divorce processes.[2]
What are some changes that can be expected?
Presently, the legal requirement is that a party seeking to divorce is to satisfy that a marriage has irretrievably broken down by citing one of the 5 facts (adultery, unreasonable behaviour, 5 years separation, 2 year separation with consent or desertion ). The new law will replace this requirement, and parties will only be required to provide evidence of irretrievable breakdown. What this means is that the statement of irretrievable breakdown will be accepted as substantial evidence that a marriage has broken down and the parties should therefore be entitled to a decree of divorce
Additionally, as it stands, the court’s main concern is whether the evidence cited by the person seeking a divorce meets the legal test. It is envisaged that there will be no investigation undertaken to see whether the facts cited are true or false. The new law will allow for a minimum period of 20 weeks between the commencement of proceedings and confirmation to the court that the decree nisi should be granted, whilst preserving the current minimum timeframe of six weeks between decree nisi and decree absolute.
Currently, the court goes through a two stage process when granting a divorce. This encompasses the grant of decree nisi which suggests that the court is content that the legal test has been met, and the marriage has broken down. There is then a six weeks waiting period before a decree absolute which finalises the divorce can be applied for. The new law will now permit the courts to adjust the current timescale to allow a faster process. The time is not to exceed 26 weeks from issuing of the divorce to grant of a final order.
The new law will also welcome a new option of a joint divorce application for cases where parties have mutually agreed to divorce. This will give couple an opportunity to reflect on the issues which may arise from divorcing, as well make future arrangements. Finally an update to the current legal terminology currently used, such as “decree nisi”, “decree absolute” and “petitioner” will change to “conditional order”, “final order” and “applicant”.[3]
[1] https://services.parliament.uk/bills/2019-21/divorcedissolutionandseparation.html
[2] https://www.gov.uk/government/news/blame-game-to-end-as-divorce-bill-receives-royal-assent
[3] DIVORCE, DISSOLUTION AND SEPARATION BILL: FACT SHEET
Hilda O’Justus
