Welcome changes to divorce laws

June 4, 2019

By Nicola Matthews, head of family law at Hay & Kilner Law Firm in Newcastle

The Government’s recent announcement of changes to the divorce laws in England and Wales to enable couples to dissolve their marriages more straightforwardly and with less acrimony is well overdue and very welcome.

As things have stood since the late 1960s, a reason has had to be provided as to why a marriage has “irretrievably broken down” with one party having to accuse the other of committing adultery, behaving unreasonably or desertion.

Couples that have lived apart for at least two years can currently apply for a divorce if the desire for one is mutual, but if one party does not consent to the divorce, this period is extended to five years.

This ‘fault-based‘ approach has meant that when a marriage has broken down and people want to make a fresh start, they have to look backwards and blame the other party in order to apply for a divorce, even when there actually is no blame to lay and the couple has simply grown apart.

This often makes an already emotionally challenging situation even worse, with acrimony and resentment that was not previously there quickly building, and it can also have unintended, long-term consequences in situations where the divorcing parties will need to have a continuing relationship.

This is most likely based around their children, and there is a considerable amount of evidence that parental conflict is damaging to children’s well-being and chances in life.

Between 2016 and 2018, almost 60 per cent of divorce applications were on “fault-based” facts (the behaviour fact accounting for nearly half of all divorce applications) and 40 per cent were based on separation facts. Proposals for changes to the law include:

  • Replacing the need to say why a marriage has
    irretrievably broken down with a requirement to simply tell the court that it has
  • Creating the option of a joint divorce application, alongside retaining the option for one party to initiate the process
  • Removing the ability to contest a divorce
  • Introducing a minimum timeframe of six months, from petition stage to the issuing of a decree absolute, to help ensure that divorce proceedings are carefully considered over a sensible length of time. The divorce will not be automatic at a fixed date at the end of the minimum timeframe, and will still need the applicant to confirm that they wish for the divorce process to be concluded.

The same changes will also be made to the law relating to the dissolution of a civil partnership, which broadly mirrors the legal process for obtaining a divorce.

The new legislation is expected to be introduced as soon as Parliamentary time allows, and the hope is that it be more likely that more couples can work together collaboratively, or through mediation, to resolve issues arising on their separation.

More parents will hopefully be able to put aside the reasons why their marriage did not work out and focus instead on meeting the emotional, financial and logistical needs for their children, as well as how their finances can become fairly disentangled.

The emotional difficulties that divorce entails will of course remain, but this new regime should make the whole process much more straightforward and less confrontational to the benefit of everyone involved.

These are long overdue, sensible changes, which I feel will lead to a far greater number of better outcomes for separating couples than is currently the case, and we look forward to seeing them come into force.

Hay & Kilner
For further information, contact Nicola on 0191 232 8345 or email nicola.matthews@hay-kilner.co.uk

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