Years of lobbying have at last paid off with the announcement by the Government last year that they will introduce legislation to change the procedure for obtaining a divorce. In 1996 campaigners had previously thought that they had succeeded when legislation was brought in to remove the need for a spouse to blame the other as a necessary means to obtain a divorce. However, the move was met with fierce opposition from groups who claimed that the step would threaten the institution of marriage and the legislation was subsequently repealed.
However, pressure for the removal of the basis for a divorce which is seen as increasing the hostility between separating spouses continued and in 2006 Scotland set a precedent by introducing a one-year period of separation as the sole ground for a divorce. This resulted in a higher number of Petitions in the first year but in subsequent years there has been a downward trend in the number of divorces although this is set against a corresponding decline in the number of marriages.
In England and Wales meanwhile, the contentious grounds of adultery and unreasonable behaviour remained as the only routes open to a spouse wishing to end the marriage without having to wait for a given period of separation. This has been criticised by campaigners as not in the interest of either spouse and particularly harmful where there are children of the family as parental conflict is considered to be damaging to children’s wellbeing. Statistics also tend to show that children from broken homes do less well than others although it could be argued that a home is broken regardless of the grounds for divorce. It remains to be seen if a less antagonistic divorce process has any effect on this situation.
Be that as it may, the Government appears to have accepted the arguments in favour of a less confrontational approach following a consultation process in which the responses were overwhelmingly in support of the need for change. They have stated that their aim is to shift the focus away from recrimination and blame to a system which will support parties in making arrangements for their own and their children’s futures.
The proposed new process will remove the current facts that a party needs to cite in the Petition whilst retaining the current basis for a divorce, that is that the marriage has broken down irretrievably. Similarly, the current two stage process of there being firstly Decree Nisi and after a 6 week “reflection” period the Decree Absolute which finalises the divorce and ends the marriage is retained. There will no longer be the opportunity for one party to contest the divorce although the cost of doing so and the reluctance of Judges to encourage disputed Petitions meant that this was a rarely used practice in any event. A further step to encourage cooperation is the intention to permit the issuing of a joint Petition by both spouses. The whole process will involve a period of 6 months from the issue of the Petition to Decree Absolute so as to ensure that the parties have sufficient time to consider the action they are taking and decide that it is what they wish to do.
It is not clear as to how soon this change will be implemented and clearly there are other important matters occupying the Government at the present time which may affect this. It is unlikely that those who oppose any step which represents, in their view, an attack on the institution of marriage will be convinced by the decision and continuing opposition remains likely. It remains to be seen whether a change in the process of obtaining a divorce will lessen the hostility between separating spouses and bring about a concentration on future arrangements arising out of the breakdown rather than the means of obtaining the divorce. Time will tell.
Chris is a partner in the family department, and he has specialised in family law for over 30 years. He deals with all types of relationship issues from pre-nuptial/cohabitation agreements in the beginning of a relationship to financial settlements at the end of a relationship.
If you would like more information on the matters summarised in this article, please contact Christopher Goodwin, at Peacock & Co, at
christopher.goodwin@peacock-law.co.uk
020 8035 0368
