Government Reforms: Ending the Divorce Blame Game

The Ministry of Justice has today publicised its intention to dramatically amend the existing laws surrounding divorce. Both tabloid journalist and legal professionals alike have described the proposed changes as ending the so-called ‘blame game.’ The hashtag #nofaultdivorce is even trending on Twitter.

But amid the publicity and social media frenzy, what do the government’s proposed changes actually mean in England and Wales?

1. GROUNDS OF DIVORCE

Currently, there is only one ground for divorce in England and Wales: the marriage has to be seen as having ‘irretrievably broken down’.

The government doesn’t propose changing this rule – but it crucially changes how the irretrievable breakdown of a marriage is established.

Currently the courts cannot rule that the marriage has broken down irretrievably unless the petitioner establishes one of the five facts specified in section 1(2) Matrimonial Causes Act 1973.

These are:

• Adultery
• Unreasonable behaviour
• Desertion
• If a couple have lived apart for more than two years if both agree to the divorce
• If a couple have lived apart for at least five years, even if one partner disagrees

Data covering the last three years shows that 3 out of every 5 divorce petitions issued rely on conduct facts (i.e. adultery, unreasonable behaviour or desertion). Most of the time this is a result of a desire to move ahead swiftly with the divorce process (rather than wait for 2 or even 5 years): for the parties to finalise financial arrangements and move on with their lives. But the need to blame the other party surely accentuates the stress, tension and conflict in a divorce. This is not to mention that adversarial statements, specifically pointing out where one party went wrong in the marriage, are required right at the beginning of the process when the scene is often very delicate.

Under the government’s proposed changes, the requirement to provide evidence around behaviour or separation is dispensed with. Instead, parties will only need to provide a sworn statement of the irretrievable breakdown of the marriage.

2. CHANGES TO THE DIVORCE PROCESS – NEW TIME-FRAMES

Under the government’s proposed changes, the existing two-stage legal process following a divorce petition – currently referred to as decree nisi and decree absolute – stays in place.

However, while this process remains in place, the government has proposed a significantly new time-frame for it. There will now be a mandatory period of twenty weeks between a divorce petition and the pronouncement of a decree nisi. There will also be a gap of six weeks between the pronouncement of a decree nisi and a decree absolute.

The government says the minimum six months time-frame will give parties to a divorce a ‘meaningful period of reflection’ and the ‘opportunity to turn back’.

Significantly, the proposed changes to the process also mean that parties can now jointly apply for a divorce – an option which was unavailable before, and which puts England and Wales in step with other jurisdictions around the world.

3. REMOVING THE ABILITY TO CONTEST A DIVORCE

Lastly, the government’s proposed changes explicitly seek to remove the ability for a party to contest a divorce. Very few divorces (less than 2% of all cases) are contested. However, the government admits that ‘this practice is known to be misused by abusers choosing to contest a divorce purely to continue their coercive and controlling behaviour.’ With very few specific exceptions, under the government’s proposed changes, contesting a divorce will no longer be an option.

For more information about the government’s proposed changes, please see the Ministry of Justice’s press release.

For more news from our Family Department, see here.