divorce, dissolution and separation Bill [HL]

Explanatory Notes

Policy background

2. Divorce and dissolution are a fundamental change of legal status that may have implications for people’s rights and responsibilities, for matters such as property and inheritance, and for the families involved. Since the Matrimonial Causes Act 1857, divorce has always been a court process.

3. The existing law on divorce dates back, in large part, to the Divorce Reform Act 1969, which replaced the previous grounds of divorce (adultery, desertion, cruelty and being "incurably of unsound mind") with the sole ground that the marriage has broken down irretrievably.

4. The current legal process of divorce can only be initiated by one party to the marriage (the "petitioner"). The other party (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. Only around 2% of respondents indicate an intention to contest, and only a handful of such cases progress to a final court hearing in front of a judge.

5. 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", as the statute calls them. Three facts are based on conduct (adultery, behaviour – commonly referred to as "unreasonable behaviour" – and desertion). Two facts are based on a period of separation prior to filing the petition for divorce (two years if both parties consent to the divorce, or five years otherwise).

6. The court can hold that the marriage has broken down irretrievably only if it is satisfied of one of the five facts. If one of the five facts is made out, the court must grant the decree of divorce.

7. 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 can be brought to a legal end because it has broken down irretrievably. 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 decree of divorce to be made final (the "decree absolute").

8. Decrees of judicial separation are granted on a similar basis to divorce in some respects. A fact must be proved, but judicial separation does not bring a legal end to the marriage and therefore there is no ground of irretrievable breakdown and instead the decree is granted in a single stage.

9. With the introduction of civil partnerships through the Civil Partnership Act 2004, the legal processes for dissolution and separation largely mirrored those for marriage. There are some differences, such as adultery not being an available fact, and the terminology of some aspects of these processes. (In respect of a civil partnership, the equivalent of a decree, for example, is an order, and the statute refers to applicants rather than petitioners.)

10. The Ministry of Justice publishes statistics on matrimonial proceedings, including case progression, at https://www.gov.uk/government/collections/family-court-statistics-quarterly.

11. The Government set out its proposals for reform in September 2018 and held a twelve-week public consultation. The Government responded to the consultation in April last year. The Government’s consultation paper, response and associated documents are available at https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/. These set out the Government’s assessment of the evidence leading to its conclusion that the existing requirement to make allegations about conduct can introduce or worsen ongoing conflict and be harmful to any children.

12. The Government’s policy intention behind the reformed law is that the decision to divorce should be a considered one, and that separating couples should not be put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children.

13. In summary, the measures in the Bill will:

Replace the requirement to provide evidence of conduct or separation facts with a new requirement to provide a statement of irretrievable breakdown.

Remove the possibility of contesting the decision to divorce, as the statement of irretrievable breakdown is to be taken as conclusive evidence that the marriage has broken down irretrievably. (Divorce proceedings will still be able to be challenged for other reasons including jurisdiction, validity of the marriage, fraud and procedural compliance.)

Introduce a minimum overall timeframe of six months (26 weeks) into the divorce process, made up of a new period of twenty weeks between the start of proceedings and when the application can be progressed to conditional order (there is currently no minimum period between these stages), and the current minimum timeframe of six weeks between the grant of a conditional order (decree nisi) and when the order can be made final (decree absolute).

Enable the Lord Chancellor by order to adjust the time periods between the start of proceedings and confirmation to the court that the conditional order of divorce (decree nisi) may be made, and between the conditional order and final order (decree absolute) stages, subject to the proviso that the total period may 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, in addition to retaining the current ability of one party to initiate the legal process of divorce.

Update terminology, for example replacing terms such as "decree nisi", "decree absolute" and "petitioner" with "conditional order", "final order" and "applicant".

14. The relevant changes above are also reflected in the changes being made to applications for separation orders; removing the ‘fact’ requirement in separation proceedings and replacing this with a statement that the applicant seeks (or both applicants seek) to be judicially separated.

15. Minor changes are also being made in relation to proceedings for nullity of marriage, principally to provide the Lord Chancellor with a power to amend the minimum time period before a conditional nullity of marriage order can be made final. This will align the position with that currently found in the 2004 Act for nullity of civil partnerships.

 

Prepared 24th March 2020