What is the current law?
Since 1969, the only ground for divorce has been that the marriage has irretrievably broken down proven by one of five facts:
1. Adultery;
2. Unreasonable Behaviour;
3. Desertion;
4. Two years’ separation with consent; or
5. Five years’ separation without consent
As the law currently stands, couples cannot divorce before a period of separation of at least two years unless one spouse is prepared to allege fault of the other.
The Act changes this. Couples will be able to divorce mutually without asserting blame of the other. The best that couples can currently achieve is to cite the fact of ‘unreasonable behaviour’ and craft some particulars of behaviour that try to be as anodyne as possible. The court hurdle still requires some degree of specificity and the resulting particulars can often cause unnecessary friction, however carefully drafted. Since these particulars need to be agreed at the outset of the entire process, they can often set a negative emotional tone for the subsequent related financial proceedings or discussions relating to the children.
What does the new law mean in practice?
The new legislation will replace the ‘five facts’ with a new requirement to provide a statement of irretrievable breakdown. The statement can be drafted and submitted by both parties jointly and the court must take the statement to be conclusive evidence that the marriage has broken down irretrievably.
The Act also removes the possibility of contesting a divorce. The court will still provide two orders of divorce, the first order will be called the ‘conditional order’ which will replace the current decree nisi. The court will not grant a conditional order until a period of 20 weeks has passed since the start of proceedings. If the divorce application is made by one party only then that party will need to confirm they want the divorce to continue after the period of 20 weeks has passed and the court will grant the conditional order. If the divorce application is made on a joint basis then both parties will need to confirm that they want the divorce to proceed to the conditional order stage.
The parties will then need to wait for a period of 6 weeks following granting of the conditional order before they can apply to make the order final. The final order will replace the current decree absolute and will formally dissolve the marriage.
The new process aims to streamline the current procedure and ensure that it is a simple as possible. It is hoped that the introduction of the Act in Autumn 2021 will allow more couples to separate in the most non-confrontational manner possible.
If you would like to discuss any issues arising from this change in the law, please contact a member of our specialist team who would be happy to advise you.
Sarah Musgrave
Solicitor, Katz Partners