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2021: Out with the old and in with the new (Divorce Law)

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With the Oxford Street Christmas Lights’ return and festive decorations already adorning shop windows, it seems the conclusion of 2020 is soon to be upon us (for many, at long last). Therefore, this blog looks to what 2021 has in store: a new divorce law.

The Divorce, Dissolution and Separation Act 2020 received Royal Assent in June of this year, a long-awaited moment for many proponents of “no-fault” divorce. However, it is anticipated that we may need to wait until autumn 2021 for its implementation.

What are the criticisms of the current law?

A divorce can only be granted if the relationship has ‘irretrievably broken down’. Under the current law, the petitioner must show that this has happened by relying upon one of the five available facts:

  • adultery;
  • the respondent’s behaviour is such that the petitioner cannot reasonably be expected to live with him/her;
  • desertion;
  • the parties have lived apart for at least 2 years and the respondent consents to a divorce;
  • the parties have lived apart for at least 5 years (if the respondent does not consent).

Research has shown that the majority of petitions are based on ‘conduct’: the facts of adultery or ‘unreasonable behaviour’ (Trinder et al., 2017). One of the reasons for this is that a ‘conduct’ based petition is the quickest way to secure a divorce. Many have criticised this as incentivising petitioners to rely on a ‘conduct’ fact, which was said to be tantamount to apportioning ‘fault’. The impact of this is the exacerbation of tension between the parties: 78% of respondents reported that the conduct fact had increased hostility (Ministry of Justice, 2018) and 90% of family law professionals responded that the law makes it harder for them to reduce conflict (Resolution, 2018). In turn, this animosity was found to negatively impact the likelihood of reaching an agreement on the division of matrimonial assets and child arrangements (Trinder, et al., 2017). The inverse impact of this was an increase in the likelihood of protracted litigation, which is detrimental for the parties, children, and the over-stretched family courts.

What is the new law?

Under the new law, the marriage must still be said to have ‘irretrievably broken down’. However, rather than having to rely on one of the five ‘facts’, all that is required is a statement of irretrievable breakdown. This will simplify the process and prevent any apportionment of ‘fault’.

In addition, the court will view the statement of irretrievable breakdown as conclusive. Thus, the new law will remove the ability for the respondent to ‘contest’ the divorce.  This is a welcome change for many; it will prevent a person, such as Mrs Owens in the infamous case of Owens v Owens [2018] UKSC 4, from having to remain in a ‘wretchedly unhappy’ marriage for 5 years if the respondent successfully defends the divorce petition.

Interestingly, the new law also includes the option for both parties to make a joint application for divorce, something which has not previously been available in this jurisdiction. It is hoped that this will help decrease the divorce petition’s potential to be a catalyst of tension in an already difficult situation, whereby one party is said to have divorced the other.

A further change under the new law is the implementation of ‘modernised’ terminology:  

  • the Decree Nisi is to be known as the Conditional Order;
  • the Decree Absolute is to be known as the Final Order; and
  • the Petitioner will be called the Applicant.

In respect of the divorce process, there will be a minimum of 20 weeks from the divorce proceedings commencing and the Conditional Order. This period is intended to provide the parties with an opportunity to reflect and, if appropriate, consider reconciliation. However, the decision to divorce is rarely one taken lightly, and therefore if reconciliation is not an option, this period is an opportune moment to reach financial and children arrangements. Following this, there will be a further period of six weeks and one day between the Conditional Order and the Final Order.

Concluding comments

Overall, the Divorce, Dissolution and Separation Act 2020 will bring divorce law up to speed with the rest of family law; it will adopt a forward-looking approach whereby parties must look to the future rather than the past.