by Julian Hunt
Head of the Family department Dean Wilson LLP Solicitors
The government’s Divorce, Dissolution and Separation Act 2020 was passed in June 2020 and aims to implement major reform to the divorce process, becoming law on 6 April of this year.
Julian Hunt, Head of the Family department and member of Resolution, has been an active campaigner in the move toward no-fault divorce and has lobbied local MP’s in favour of the same.
What is the legislation’s main reform?
The Act will remove the concept of ‘fault’ in divorce proceedings – a welcome change to the divorce legislation that has not been amended in any significant way for over 50 years.
What is the current regime?
If a couple want to divorce, they have limited options to choose to present their petition on. Set out as five ‘facts’, these are: adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation without consent.
If a couple wish to divorce quickly those options are limited to the grounds of adultery and unreasonable behaviour, with the less contentious divorce routes only achievable after two or five years separation.
The prospect of a long and unnecessary wait often means that parties will choose the blame route with the unwanted result of intensifying conflict and causing long lasting damage, particularly impacting future co-parenting.
Why doesn’t the current regime work?
The current regime fosters animosity between parties by encouraging the assignment of blame, which can lead to delays in obtaining the end goal of a divorce and can have a knock on effect if the parties have children related matters to resolve at the same time.
The need for a no fault divorce process was highlighted in the recent case of Owens v Owens.
Mrs Owens issued her petition based on Mr Owens unreasonable behaviour in which she stated she could not reasonably be expected to live with Mr Owens anymore. Mr Owens defended the petition on the basis that his behaviour had not been unreasonable when looked at in the context of their marriage and the Court agreed with him. The Court found no behaviour that Mrs Owens could not reasonably be expected to live with and as such the marriage could not be said to have irretrievably broken down and her petition was dismissed. Although Mrs Owens appealed, it was held that judges could only interpret and apply the law handed to them and that under the current regime the petitioner is required to find fault in the respondent.
This decision highlighted the need for a no fault divorce process. Mrs Owens was left in the unenviable position of having to wait out a five year separation in order to proceed with a divorce without her husband’s consent.
What is the aim of the reform and why is it needed?
An acrimonious divorce consumes parties’ lives, and that acrimony usually spills over, even once the Decree Absolute is finalised, especially where children are involved. The fault system encourages discord which often affects the parties’ mental health, as well as the mental health of any children (especially if they are old enough to understand what’s going on). Therefore, divorces using one of the fault-based facts are usually quite traumatic to the parties.
A common misconception under the fault based regime is that the bad behaviour of one party will affect the financial outcome of the divorce, when in fact one has no bearing on the other, unless the behaviour is sufficiently extreme but, these cases are extremely rare.
Parties tend to settle finances subsequent to issuing their divorce petition and the tone of blame is usually carried over so as to frustrate and slow down the financial proceedings which in affect helps no one, including the Family Court whose resources are overwhelmed already.
The proposed changes should simplify the divorce process and reduce conflict from the very start. Parties will then be able to focus on the important issues like children, property and finances bringing resolution more quickly and amicably so that both can heal and move forward.
What will be the new regime?
The new legislation aims to make a number of significant changes, such as:
• Replace the ‘five facts’ with a new requirement to provide a statement of irretrievable breakdown (the Court then must take this statement as conclusive evidence that the marriage has broken down irretrievably);
• Remove the possibility of contesting the divorce;
• Introduce an option for a joint application;
These changes will also apply to the dissolution of civil partnerships.
Family law – what’s next?
The Law Society are currently campaigning for legal aid to be reintroduced for early advice, particularly in family law and we at Dean Wilson LLP believe this would be a further welcome step to focus parties’ minds on the practicalities at hand of separating joint lives into separate healthy and happy futures.
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