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LEGAL COMMENT: An end to the blame game? No fault divorce law 'coming soon'

The Divorce, Separation and Dissolution Bill has now been introduced to the House of Lords.

The government has put long-awaited divorce reform back on the agenda after reintroducing legislation earlier this month to end what the justice secretary has called 'needless antagonism'.

The Divorce, Separation and Dissolution Bill, initially introduced in June 2019, had already been delayed twice in Parliament, but to the relief of family lawyers has been resurrected following December's general election. The bill, which introduces provisions for no-fault divorce, has passed through two readings in the Commons and the committee stage. It has now been introduced to the House of Lords.

The bill proposes that divorce laws in England and Wales are overhauled so that couples can divorce more quickly with less acrimony. Many believe the current system exacerbates the stress and tension couples experience on divorce and exposes children to damaging conflict.

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. It is widely considered that these facts do not help people move on with their lives and should be consigned to legal history. Various organisations including Resolution and Relate have been campaigning for years for a change in the law, which has remained the same for the past 50 years. The government acknowledged over 20 years ago that reforms were needed, but legislation faltered.

The call for change follows the Supreme Court’s unanimous rejection of Tini Owens appeal for divorce, meaning that the couple must remain married until 2020. Baroness Hale, then the UK’s most senior judge, repeatedly called for the current divorce law to be overhauled describing it as “unjust”.

The new legislation will require divorcing couples to produce a statement to confirm that the marriage has broken down irretrievably, will create the option for a joint divorce and will stop one spouse refusing a divorce if the other spouse wants one. The changes will effectively help end “the blame game”.

Under the new proposals there will be a minimum period of 6 months from the date of the divorce petition to decree absolute to 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 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 reform to the current law is long overdue, and we welcome an end to spouses having to apportion blame if they wish to divorce. We know that divorce is not something couples pursue lightly – this is particularly true for parents, for whom the decision carries even greater weight and significance because of their children.

Where children are involved we urge couples to take early legal advice, and to explore alternative dispute resolution through mediation and collaborative law which will help them to engage in a supported conversation about difficult issues. Legal disputes involving children can be complex and require careful guidance, and operating in the absence of practical and sensible legal advice can often cause more problems than it solves. Removing the “blame” element from divorce will go some way to helping parents separate with more dignity, and less acrimony.

Linzi Perriman is an associate solicitor in the family team at Weightmans, contact linzi.perriman@weightmans.com.

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