It is hoped that the Divorce, Dissolution and Separation Act 2020, will come into force in late 2021, when it will no longer be necessary for couples who wish to divorce or dissolve a civil partnership to attribute blame to their partner. This will be the biggest shake-up of divorce law in 50 years.
There is widespread support, including from legal professionals and judges, to end the need for couples to blame one another for the breakdown of their marriage or civil partnership, bring the law in line with modern-day life and accept the fact that some couples just drift apart and don’t want to blame each other.
However, the new law is not in force just yet and so there is no change at present in the way you can petition for divorce or dissolution of civil partnership. Until the law is brought into force, you will still have to rely on one of five facts:
Adultery – where your spouse has committed adultery and you find it intolerable to live with them any longer. (Adultery does not apply to same-sex civil partnerships or same-sex marriages).
Unreasonable behaviour – where you find it intolerable to live with your spouse any longer due to their unreasonable behaviour.
Two-years separation – you can petition for a divorce if you have been separated for a period of two years and your spouse consents to the divorce.
Five-years separation – you can petition for a divorce if you have lived apart from your spouse for five years. You don’t need your spouse’s consent for this.
Desertion – although this is rarely used, this is where your spouse has deserted you for more than two years in the last two and a half years in order to end your relationship, without your agreement and without good reason.
So, at present, if you don’t want to attribute blame, the shortest period in which you can petition for a divorce or dissolution of civil partnership is two years, as long as you have your spouse’s/civil partner’s consent. Without it, you will currently need to wait for five years. This has led to many couples claiming unreasonable behaviour to commence divorce proceedings. Almost half (46.4%) of all divorce petitions during 2016 – 2018 were based on unreasonable behaviour, according to The Office for National Statistics (ONS). That figure rises to 47.1% when adultery is included in the statistics.
Bradie Pell, partner and head of Graysons’ family team says:
“New legislation is well overdue. Up until now, couples wishing to divorce have been forced to attribute blame and this can only lead to additional stress and acrimony in the long run. The new law will hopefully allow couples to separate more amicably, focus more clearly on the needs of their children and move on with their lives more quickly.”
It is widely accepted that the case of Owens v Owens raised awareness of the real need for change. In this case, Tini Owens’ petitioned for divorce on the basis of unreasonable behaviour, but it was denied. The case went to the Court of Appeal, but it was denied again, although judges at that court said they had ‘uneasy feelings’ – but could do nothing until Parliament changed the law.
The new law will mean that:
- spouses/civil partners won’t have to claim one of the five facts to petition for a divorce
- a statement saying that the marriage has irretrievably broken down will need to be made by one or other of the couple, or both
- it will not be possible for the other spouse/civil partner to contest the divorce unless it is on the basis of legal validity, jurisdiction, fraud, coercion or procedure.
- there will need to be a 20-week period between the petition date and the court granting the decree nisi
- there will be a minimum period of six weeks between receiving decree nisi and applying for decree absolute – this is the same as the current situation
Financial issues are not covered by The Divorce, Dissolution and Separation Act 2020. They will be dealt with separately to the divorce.
If you are separating or divorcing, or you need advice or assistance on any family law related issue, contact our expertsnow. We can arrange a meeting to discuss your issues, which at present will be held virtually and will take place via telephone, email or video call.
You can also find a wealth of information on our family law web pages.
Author: Bradie Pell, partner and head of the family team.