The end is in sight for old divorce law

By Paul Hunt at 00:00

The end is in sight for old divorce law. Despite the political paralysis of Brexit, there do seem to be some matters that are making their way through Parliament and on one of these is the Divorce Dissolution and Separation Bill.


If this bill becomes law and it seems very likely that it will, then it will bring an end to the basis for divorce that we would have taken for granted since 1969 and which is currently set out in the Matrimonial Causes Act 1973.


The basis for divorce is familiar in that the Petitioner has to demonstrate that the Respondent has been guilty of adultery or ‘unreasonable behaviour’ or desertion for 2 years or more. In the absence of those fault-based facts, the other alternatives have been separation for 2 years or more when both parties agree there should be a divorce and finally separation for 5 years.


There has been pressure from several directions over a long period to bring an end to no-fault divorce, it seems quite suddenly to have become a matter of Government policy. It may well be that this was at least in some part prompted by the much-publicised case of Owens & Owens which reminded us that under the current law there still has to be sufficient basis for the divorce and that a divorce petition can be defended, however, rare that might be in practice.


What we seem to be looking at now is something not dissimilar from the last attempt to introduce no-fault divorce and that was in the Family Law Act 1996. That part of it which introduced no-fault divorce, however, was never implemented in practice and was subsequently repealed.


The general features of the new law were that the person initiating the proceedings will file with the court a statement of their irretrievable breakdown. There will be no need to go into details of allegations and there will be no option to defend the proceedings.  In some cases, it will be possible for the spouses to make a joint application to the court for dissolution of the marriage.


There will, however, be a timetable built into the new process with a minimum timeframe of 6 months to the final dissolution.  I remember fixed timeframes being a feature of the 1996 Act and thinking at the time was certainly not making anything any quicker.


Given that divorces under the current law are generally taking longer than the usual estimate, 6 month’s time limit might work out as a shorter period than at present. 
 
Receiving a divorce petition is not pleasant and even less so when it contains allegations of ‘unreasonable behaviour’ which can cause unnecessary resentment or distress.  

There is often a feeling that the allegations are only one side of the story and that they may be exaggerated, include things which were not big issues at the time but become so with the benefit of hindsight, or maybe totally untrue.


When faced with an unpalatable divorce petition, the Respondent has in effect the choice of either, however, letting it proceed undefended or reserving the right to dispute any allegations raised in any other context or embarking upon acrimonious and expensive divorce proceedings.


The latter is extremely rare. However, even an undefended divorce may often mean that the parties get off on a wrong foot to a process of separating and ending the marriage and there are often associated difficult issues because in a fault-based divorce the Petitioner is almost always going to obtain an order that the Respondent pays their legal costs.


It is important however to bear in mind there will be no change in the law relating to financial and property issues arising from divorce or proceedings relating to children.

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Paul Hunt

Paul Hunt , Senior Associate

As a senior solicitor Paul is responsible for cases involving divorce or separation, children, financial and property issues and domestic violence.

He is member of Resolution panel for private children law, ancillary relief and domestic violence. Paul is also trained in Collaborative Law.

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