In what has been regarded as "the biggest shake-up of divorce laws for 50 years", the new Divorce, Dissolution and Separation Bill has come to light, implementing the possibility of 'no fault' divorce. For the past 30 years, people have been campaigning for this legislation to be introduced to remove the 'blame game' and allow for more amicable divorces, to mitigate the impact on those involved. Irwin Mitchell, along with many others, have noted how the UK is behind the times in family law and the current divorce laws are no exception, given the significant increase in divorces since the early 20th century and the change in perspective on marriage, so it is hoped this new bill will better fit the current society.
The Current Laws
Currently, when filing for a divorce in England and Wales, at least one of five reasons must be selected and evidenced as a reason for divorce. These are limited to: unreasonable behaviour, adultery, desertion, 2 years separation (if both consent), or 5 years separation (if only one partner consents) and therefore force blame to be placed to avoid significant inconvenience and allow partners to move on. This creates unnecessarily high pressure and tension from the beginning of the divorce process, which can already be painful enough in itself and therefore must be adapted. Many, including Conservative MP Jonathan Gullis, have noted a preference to lay no blame during their divorce, however this has previously not been a practical option, further displaying the outdatedness of the law and the need for the new bill.
Furthermore, divorces may currently be processed very quickly due to having no set time frame. For example, between 2011 and 2018, around 1 in 10 cases reached decree nisi in 8 weeks and 3 in 10 took between 9 and 13 weeks, meaning the courts were satisfied the divorce was legal and therefore it can be dissolved 6 weeks later when decree absolute occurs (read about decree nisi and decree absolute here). This quick progression means divorces often occur in the heat of the moment when emotions remain high. Consequently, this likely reduces the potential for other options to be considered such as marriage counselling, and mitigates the chance of cooperation and preparation for the future, particularly if children are involved.
The Divorce, Dissolution and Separation Bill
After years of campaigning, in June 2020, the above has finally been confirmed to change after the House of Commons voted significantly in support of the new Divorce, Dissolution and Separation Bill (231 votes to 16 against). Although it will not be implemented until late 2021 at the earliest, the new Bill will "strip out the needless antagonism the blame game creates so families can better move on with their lives" (Justice Secretary & Lord Chancellor Rt Hon Robert Buckland QC MP). Most notably, this new law will allow partners, either singularly or together, to make a statement of 'irretrievable breakdown', instead of choosing one of the original five reasons, to begin the divorce process. This removes the blame game entirely as no justification must be given anymore, thereby allowing more freedom within the divorce process and reducing the hostility present between partners which could subsequently be impacting any children they may have.
Furthermore, the Divorce, Dissolution and Separation Bill implements a minimum 20 week period before the divorce proceedings may continue after the initial application. This allows for a 'cooling off period' for the heat of the moment to pass, meaning discussions can be had about seeking other support options, such as counselling, or if divorce remains the best option, then preparations for the future can be made in a less emotionally-driven state. This has also been implemented as divorces can no longer be contested by the other partner if bought singularly to court, so the time period allows for discussions to be had between partners to determine if it is the best option. Previously, less than 2% of cases were contested, however this is still a very notable part of the new law as it protects domestic abuse victims by allowing them to apply for divorce without the abuser being able to interrupt it.
The Impact of the New Bill
Evidently, the Divorce, Dissolution and Separation Bill will completely change the laws surrounding divorce, finally bringing it into line with the approach already taken to family justice to avoid confrontation and protect children. It has however been questioned how significantly this will reduce the impact of divorce, particularly on children. Irwin Mitchell discussed this in their podcast suggesting there is no clear answer as to whether the impact on children will be reduced as, although the process will likely be more amicable, it remains a stressful and difficult concept for a child. Arguably however, if parents are more cooperative with one another due to the reduced hostility this new Bill should bring, more attention may be given to the child and they will likely co-parent better meaning it will be easier for the child to cope.
Concerns have also arisen about the Divorce, Dissolution and Separation Bill undermining the institution of marriage as it arguably will become easier to obtain a divorce under this due to the lack of evidence and reasoning required. It is unlikely it would be used in this way however as divorce remains a 'last resort' option for most and the 20 week period allows people to go back on the decision they may have taken due to the simpler process. Specific concern has also been raised about the timing of the Bill in relation to COVID-19 as couples have been put under a lot of strain during recent times so an easier divorce process could mean they part when they would have remained together under other circumstances. Although a reasonable concern, this new process will not be implemented into society for over a year so this is likely to have little impact over those struggling currently during the pandemic.
Overall, the Divorce, Dissolution and Separation Bill has been welcomed with open arms by most in the practice of family law as it has been a long awaited change. It removes the blame game enforced by the current laws, prevents contest and provides time for the heat of the moment to pass so more reasonable and less emotion-filled discussions can be had about what is truly best for the couple. In turn, it brings divorce laws up to date to match modern society values and beliefs and makes the process more amicable so the emotional impact is reduced on all those involved. It is hoped this will all become a reality in Autumn 2021 (although this could be subject to change) and it will be excitedly awaited until that point.
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