The new legislation, which the government said (57 page / 893KB PDF) would be introduced as soon as parliamentary time allows, will preserve the two-stage process of a decree nisi followed by a decree absolute. It will also retain the requirement for the “irretrievable” breakdown of a marriage as the sole ground of divorce. No-fault divorce already exists in Scotland.
However family law expert Sarah Ingram of Pinsent Masons, the law firm behind Out-Law.com, said divorcing parties would no longer need to prove adultery, desertion or unreasonable behaviour and instead will need to submit a statement of irretrievable breakdown to obtain their divorce.
The divorcing couple will be allowed a minimum six-month timeframe from the date an initial petition is filed, to reflect on their decision and the new law will also abolish the ability to contest a divorce.
The government said starting a minimum timeframe at the initial petition stage reflected views received during the consultation into the new law that couples “feel divorced” when the court grants the decree nisi. It said couples would therefore have a meaningful period of reflection and the opportunity to turn back.
Ingram said case law had shown that the current divorce laws did not work.
“A highly publicised example of a contested divorce was seen last year in a Supreme Court case in which a Mrs Owens was compelled to stay married to her husband until they had been separated for the required period of five years before she would be allowed to divorce him, because her complaints about his conduct were found not to amount to unreasonable behaviour,” Ingram said.
Ingram said the new law could have several benefits for divorcing couples and their families.
“It is hoped that this will reduce the number of contested divorces and result in swifter financial agreements being reached between divorcing couples, with benefits including a reduction in the scope for wealthy individuals to dissipate their assets,” Ingram said.
“Removing the need to prove facts such as adultery or unreasonable behaviour should also help to keep private details out of court hearings, which is particularly important to high profile couples. This should be seen as a welcome step in the modernisation of divorce,” Ingram said.
The government carried out a 12 week consultation into the plans last year, receiving over 3,000 pieces of evidence, and published its response last week.
It said the ability to contest a divorce was used in less than 2% of cases and the proposed changes would still allow the challenge of an application on the basis of jurisdiction, the legal validity of the marriage, fraud or coercion and procedural compliance.
Parallel changes will be made to the law governing the dissolution of a civil partnership, which broadly mirrors the legal process for obtaining a divorce.