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Legal changes

Reform of outdated divorce laws given the green light

The Divorce, Separation and Dissolution Bill has now been resurrected and backed by both the House of Lords and the House of Commons.

The Divorce, Separation and Dissolution Bill which was initially introduced in June 2019 had already been delayed twice in Parliament, but has now been resurrected and backed by both the House of Lords and the House of Commons following a reading in the Commons on 8 June 2020.

Why is law reform needed?

Under the current law if a couple wishes to divorce now, rather than waiting for a minimum of two years’ separation, they have to rely on either the adultery or behaviour of the other person to evidence the irretrievable breakdown of the marriage. These facts are considered ‘fault based’ i.e. they seek to apportion blame to the other spouse as the reason for the breakdown in the marriage. Currently, a divorce is capable of being defended if one spouse wants one and the other spouse does not.

What are the proposed changes?

The new legislation will see the removal of fault from the system to help separating couples to divorce in a more amicable way. Under the new legislation, they will only have to state that the marriage has irretrievably broken down, thus taking the element of blame away.

The legislation also allows for a ‘joint’ divorce where the decision to separate is mutual.

Another significant change is that it will no longer be possible to defend a divorce unless there is a challenge based on jurisdiction, the legal validity of the marriage, fraud, coercion and/or procedural compliance.

The change in law will mean changes to archaic legal terms as it substitutes the term “petitioners” for “applicants” as well as “decree nisi” for “conditional order” and “decree absolute” for “final order”. This will make the process much more understandable.

Meaningful period of reflection

Far from being a ‘quickie divorce’ process, as suggested by some journalists and MPs, under the new law there will be a minimum period of 6 months from the date of the divorce petition to the divorce being finalised. This will allow the parties a meaningful period of reflection and the opportunity to turn back, as some couples may reconcile within this cooling off period. At the end of the 6-month period the applicant(s) will be required to affirm their decision to seek a divorce before it is granted.

This is longer than the period provided for under the current law, which is 6 weeks and 1 day from the date of decree nisi to decree absolute. The position will remain the same in that a divorce cannot be obtained within the first year of marriage.

Reform welcomed

This reform is long overdue and will provide the opportunity for parties to collaboratively and amicably end their marriage or civil partnership whilst also promoting compromise and a potential costs saving.

There are a further few stages before the Bill is put forward for Royal Assent. However, now that many of the hurdles have been crossed we do not anticipate a long wait.

If you need advice, please contact Becki Smith at becki.smith@weightmans.com, Emma Collins at emma.collins@weightmans.com or find out more about our divorce solicitors.

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