The Divorce, Dissolution and Separation Bill reforms the legal requirements and process for divorce. It removes conflict flashpoints from that process and introduces a new minimum period of 20 weeks between the start of proceedings and when confirmation may be given by a party of their wish for the court to proceed to grant the conditional order of divorce (decree nisi). The existing six-week period between conditional order and final order of divorce (decree absolute) will be retained. These two timescales will mean that a divorce in most cases will not be finalised in less than six months.
What are the proposed changes?
The Bill revises the existing legal processes for divorce, dissolution, and separation set out in the Matrimonial Causes Act 1973 and the Civil Partnerships Act 2004. The key measures will:
- Retain the sole ground of irretrievable breakdown but replace the requirement to provide supporting evidence of a conduct or separation fact with a new requirement to provide a statement of irretrievable breakdown. No further evidence will be required.
- Remove the possibility of contesting the decision to divorce. The court will take the statement of irretrievable breakdown to be conclusive evidence that the marriage has broken down irretrievably.
- Introduce a new minimum period of 20 weeks between the start of proceedings and confirmation to the court that the conditional order should be made, and retain the current minimum timeframe of six weeks between conditional order and final order.
- Enable the Lord Chancellor to adjust the time periods between the start of proceedings and confirmation that a conditional order should be made, and between the conditional order and final order of divorce, so long as the total does not exceed 26 weeks (six months).
- Introduce a new option of a joint application for cases where the decision to divorce is a mutual one. The current ability of one spouse only to initiate the legal process of divorce will be retained.
- Update terminology used, for example replacing terms such as “decree nisi”, “decree absolute” and “petitioner” with “conditional order”, “final order” and “applicant”.
What is the current legal process for divorce?
- The sole ground for divorce is that the marriage has broken down irretrievably. Currently, the law requires a person seeking a divorce to satisfy the court that the legal test of irretrievable breakdown is met by citing in the divorce petition one or more of five “facts”. Three facts are based on the conduct of the other spouse (adultery, ‘unreasonable behaviour’, and desertion), and two are based on a period of separation prior to filing the petition for divorce (two years if both spouses consent to the divorce, five years otherwise).
- The current legal process of divorce can only be initiated by one spouse (the ‘petitioner’). The other spouse (the ‘respondent’) must then acknowledge that they have received (been ‘served with’) the petition and state whether they disagree with the divorce and intend to contest (‘defend’) it. A respondent’s decision to contest is most often driven by their desire to dispute allegations made in supporting particulars evidencing a conduct fact, rather than disputing that the marriage has irretrievably broken down. At worst, the ability to contest can be used to cause cost and delay to a spouse who wants to obtain a divorce.
- The court must be satisfied of at least one of the five facts in order to hold that the marriage has broken down irretrievably. If one of the five facts is made out, it must grant the decree of divorce. Under the current law, the court must in nearly all cases accept at face value the detail of what is alleged by the petitioner in support of the chosen fact, unless the supporting particulars are clearly deficient or the respondent contests the divorce. The court has no practical means by which to investigate whether an alleged fact is true.
- Granting a divorce is a two-stage process in which the court will first grant a conditional decree (the “decree nisi”). This signifies that the court is satisfied that the marriage has irretrievably broken down and so can be brought to a legal end. To finalise the divorce and legally end the marriage, the petitioner must wait for at least six weeks from the granting of the decree nisi and can then apply to the court for the final decree of divorce (the “decree absolute”).
- There is relatively little opportunity built in to the current legal process for a couple to reflect on the implications of the decision to divorce or, where divorce is inevitable, to plan and agree arrangements for the future. While there is a minimum six-week period between conditional and final decrees, there is no minimum overall timeframe for the legal process of divorce.
When will the Divorce, Dissolution and Separation Bill take effect?
It is proposed that the Act will come into force by commencement order after Royal Assent.