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Divorce law reform: changes we have been waiting for

View profile for Lisa Collins
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Divorce law reform: changes we have been waiting for

The current legislation

To obtain a divorce under the current divorce framework, parties must have been married for at least one year and be able to show that the marriage has ‘irretrievably broken down’, which can be proven by one of five facts:

  1. Unreasonable behaviour
  2. Adultery
  3. Desertion
  4. Two years separation with consent of both parties
  5. Five years separation (does not require the consent of both parties)

However, there are several problems with the existing legislation. Arguably it aggravates family conflict in the way that to get a ‘quick’ divorce, parties often divorce on the basis of unreasonable behaviour which encourages hostility and bitterness between the parties. 

Additionally, there is the risk that the existing framework can allow parties to manipulate evidence they produce to the Court. For example, in a divorce proceeding on the fact of two or five years separation, parties could lie about separation dates to get their divorce processed quicker, as the Courts are rarely seen to investigate evidence put before it. There has been a need for reform in divorce law for some time and it seems to finally be coming.  

Owens v Owens (2018)

The landmark case of Owens v Owens (2018), which made its way up to the Supreme Court, showed the Court recognising the need to assess existing divorce law. In this case, Mrs Owens petitioned for a divorce claiming that Mr Owens’ unreasonable behaviour had led to the marriage irretrievably breaking down. 

However, Mr Owens defended the divorce, arguing that the unreasonable behaviour relied on could not amount to the marriage irretrievably breaking down. The Supreme Court agreed with Mr Owens and Mrs Owens was denied a divorce on this fact and therefore had to wait five years to rely on five years’ separation without Mr Owen’s consent to divorce.

This case prompted the UK Government to review Divorce Law and they subsequently published a consultation paper ‘Reducing Family Conflict: Reform of the Legal Requirements of Divorce’ in September 2018.

Following the consultation, the Divorce, Dissolution and Separation Bill was introduced to Parliament on 12 June 2019 and has been making its way through since then.   

The Divorce, Dissolution and Separation Bill 2017-2019

To obtain a divorce under the proposed legislation, the petitioner will still need to show that the marriage has broken down irretrievably, but instead of having to provide a list of facts when relying on unreasonable behaviour for example, the petitioning party can simply provide a statement to the court confirming the marriage has irretrievably broken down. This is a positive development as it can reduce hostility and bitterness currently prevalent in divorce proceedings.

Another point to note in the proposed legislation is that it allows for parties to make a joint application which means that one party will not have to divorce the other, further reducing hostility in the proceedings.  

What does this mean for couples considering a divorce?

The new divorce law framework is not expected to become law until Autumn 2021, but it is exciting to anticipate the positive impacts it should have on Family Law.

If you are considering a divorce, our team of specialist divorce and separation lawyers  can provide a free, no obligation 15 minutes consultation. If you would like to arrange receiving some initial advice, I can be contacted on 01245 453846 or lisa.collins@birkettlong.co.uk.

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