The Divorce, Dissolution and Separation Act 2020 finally received royal assent on 25 June 2020 after decades of campaigning by various groups for a change in our divorce laws. Many considered the current law to be antiquated (being 47 years old) and harmful to couples trying to bring their marriage to an end amicably. However, the new law is unlikely to be introduced before Autumn 2021 to allow for a period of careful implementation. Couples seeking a ‘no fault divorce’ may therefore have to wait a little longer.
The new law will allow either or both parties to the relationship to apply for a divorce order. This is considered by many to be a hugely important step in allowing a couple to deal with divorce in a more dignified way.
Currently there is only one ground for divorce or dissolution which is the irretrievable breakdown of the parties’ marriage or civil partnership and this must be supported by one of 5 ‘facts,’ i.e.adultery, unreasonable behaviour, desertion, 2 years’ separation with consent or 5 years separation. The first 2 ‘facts’ of unreasonable behaviour and adultery are the only ones that can be used to start the divorce or dissolution without the need to first be separated for a minimum of 2 years. These 2 ‘facts’ involve apportioning blame on the other party, which is not conducive to encouraging the separating couple to agree other aspects of their separation amicably, including financial matters and making arrangements for any children.
Under the new provisions, different terminology will be used to describe the parties and process in line with the current terminology used in relation to civil partnership dissolution. The ‘petitioner’ will now be known as the ‘applicant’, the ‘decree nisi’ as a ‘conditional order’ and the ‘decree absolute’ as a ‘final order’.
The application will confirm that the marriage has broken down irretrievably and there will be no need to include the ‘facts’ that were previously required. Once a statement of irretrievable breakdown has been made, the court must accept the statement as evidence that the marriage has broken down irretrievably and there will be no opportunity for the respondent to defend or to cross apply for a divorce or dissolution order, as they can under the current law. The applicant must wait for 20 weeks before a ‘conditional order’ (similar to the current Decree Nisi) can be granted.
Statistics show that the average time from petition to decree nisi is currently 28 weeks and as such the new time limit should have a negligible effect on the timing of proceedings.
The divorce or dissolution ‘final order’ (similar to the current Decree Absolute) will not be made until six weeks have elapsed from the date that the conditional order was made. The total number of weeks may be shortened by the court (this occasionally happens now when there is an urgent need to pronounce the decree absolute). The Law Society has raised concerns about the making of a ‘final order’ where no financial order has been made by the court as this could potentially leave the financial weaker party vulnerable if the other party were to die before a financial order is made. It remains to be seen if the Family Procedure Rules Committee will make any recommendations addressing this.
The minimum overall time for the divorce or dissolution process will be 26 weeks, compared to the current average time it takes from petition to decree absolute which is 55 weeks.
There are bound to be teething problems with the new legislation, but this new law is a momentous step forward in our divorce law and brings us in line with many of our international partners. We hope that it will allow our clients to part amicably and with dignity, and to move away from the concept of blame in all areas of their separation.
Hannah Kelly
