It's not you, it's me: ending the blame game in divorce

After fifty years, divorce regulation is ready to change. 

The government announced that new legislation will be introduced and published a consultation paper on 15 September 2018, which ran until the 10 December 2018.  The government’s response was published in April 2019, and marks a landmark change in divorce law.

The proposed changes are based on a sole objective: reduce family conflict.  The government understands that to achieve this objective, couples should not be required to blame one another during the divorce proceedings.  Under current legislation, the person starting the divorce proceedings (the petitioner) must give evidence of one of the established facts, even if the divorce is a mutual decision.  Thereby, the couples need either to have been separated for two years if both spouses agree or separated for five years if one spouse does not agree, or the petitioner must make allegations in regard to the respondent’s conduct; adultery, unreasonable behaviour or desertion.  By removing these requirements the government is reflecting popular belief that there does not need to be unnecessary stress or upset for divorcing couples and, most importantly, the children of divorcing couples.  The only requirement would be to provide a statement of irretrievable breakdown.

The removal of the facts is not the only proposed change.  The new legislation will also include the introduction of a joint application for divorce and the introduction of a minimum timeframe of six months between the divorce petition and the finalising of the divorce.  The new regulation would retain the irretrievable breakdown of the marriage as a sole ground and the two-stage legal process – decree nisi and decree absolute (as currently) with at least six weeks between each application.  The ability to contest a divorce would also be removed.  There is, also, an intention to modernise some of the terms used within the divorce, such as ‘petitioner’, ‘decree nisi’, ‘decree absolute’.

Giving time to the divorcing couples to think about the decision that they have made or, even to reconcile, is the reason behind the minimum timeframe of six months.  David Guake, Secretary of State for Justice, says that the law should help to ensure that the relationships are saved if there is a possibility before they are legally ended.  He also says that an opportunity to repair their relationship should be provided to divorcing couples, even when the decision has been mutually agreed.  This ‘proof’ that the decision to divorce has been properly considered by the spouses has been introduced as an objective for the reformed law that ensures the reflection upon future arrangements.  One of the conclusions that the government reached from the consultation is that the people find that the current system marks against reconciliation, offering little opportunity for repair, which in turn can be damaging for the children of a marriage.

This is not the first time that the government has tried to modify the law.  The Family Law Act 1996 intended to modernise the divorce proceedings in England and Wales but it was a too complex reform and failed to provide the reform it had intended.  With the new reforms, English law could now fall more in line with other more forward thinking jurisdictions.

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