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24 June 2020

New divorce law – Finally a better way forward

Nothing will take the hurt out of marital breakdown (or the ending of a civil partnership) but the present process often heaps misery on top of the pain. It has been a long haul with various false dawns along the way but we are now within touching distance of a more civilised way of ending failed marriages – enter the Divorce, Dissolution and Separation Bill. Royal Assent is still awaited but we are now almost across the line.

As has been well publicised in the tabloids the big change is that it will no longer be necessary for one spouse / civil partner to blame the other to obtain a divorce or dissolution prior to separating for a period of two years or more.

There are often sound practical reasons why it is better to secure a divorce at the time the marriage breaks down. If finances cannot be agreed it may be sensible to seek the assistance of the court in the context of divorce proceedings. Often the couple agree and cannot understand why it is presently necessary to wait until they have lived apart for two years before they can get a divorce by agreement.

The present basis for a divorce is that the marriage has irretrievably broken down but that breakdown has got to be demonstrated by satisfying the court of one of five different ‘facts’, two of which are fault based namely, ‘adultery’ and ‘unreasonable behaviour’. Reliance on either of these can often lead to a Pandora’s Box of recrimination and cross-recrimination. Many times neither party is wholly blameless for the breakdown. How often have we heard that a particular criticism or allegation has been taken out of context? When people who are already feeling vulnerable and angry are asked to reflect on the past and the reasons for the marital difficulties they will frequently alight on incidents that upset the other person. The danger is that the reason for the breakdown itself becomes an expensive battleground both in financial and emotional terms with the only winners the lawyers.

Under the new law it will still be necessary for an assertion to be made that the marriage or civil partnership has irretrievably broken down but this will be achieved by a simple application. Helpfully, the couple will be able to make a joint application for a divorce.

No legislation is perfect or will please everyone. We have still not seen how exactly the procedure will be set out in the court rules (and the devil may be in the detail) but the overall framework will hopefully enable the couple to concentrate their attention on the things that matter to them, for example the future of their children.

Critics may say that this makes divorce too easy or introduces divorce on demand but in reality that is what we already have albeit with a requirement to allege fault. If the new procedure requires a period of six months between when the proceedings are started and when the divorce is concluded we are still not talking about something that is instantaneous. Undoubtedly there is frequently a need for one or both of the parties to publicly announce or share their pain or anger but rarely is the court environment the best way of doing this. The divorce process is essentially a private one and the document of public record that finally records the ending of the marriage does not state the reason its breakdown. Equally, rarely does the reason for the divorce significantly impact on decisions about the children or money.

History has shown that reform in this area is a slow process and, in all likelihood, these latest changes will not be in place until Autumn 2021 but for most people they are to be warmly welcomed. Resolution and other organisations which have campaigned for change over many years are to be applauded.

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