Since 1973 there has been one ground for divorce which is that the marriage has irretrievably broken down. However, it has been necessary to prove that the marriage has irretrievably broken down by relying on one of five facts. Those five facts are adultery, unreasonable behaviour, desertion, two years separation with consent and five years separation. Desertion requires two years of separation and has been rarely used. If a couple, therefore, wanted to start divorce proceedings without being separated for two years first, one would have to make allegations of adultery or unreasonable behaviour against the other whether the breakdown of the marriage was amicable or not.
The concern that family lawyers have been expressing for more than twenty years is that the process creates acrimony between a couple which might otherwise have been avoided if the need to make these allegations was not required.
Matters came to a head in the divorce proceedings between Mr & Mrs Owens. Mrs Owens petitioned her husband for divorce relying on her husband’s unreasonable behaviour. Mr Owens defended the petition claiming he had not behaved unreasonably and that the marriage had not irretrievably broken down. Sadly, the Court decided that the allegations of unreasonable behaviour were not sufficiently serious. Consequently, and despite the very obvious breakdown of the marriage, Mrs Owens was condemned to stay married to her husband until they had been separated for five years.
This system, so overdue reform, will now be changing from 6 April 2022 when the new divorce law will come into effect. From that date, it will only be necessary to make a statement that the marriage has irretrievably broken down. Either party to a marriage can file an application for divorce or a joint application can be made. It will not be necessary to make any other allegations or prove that the marriage has irretrievably broken down. This is no provision to dispute the statement that the marriage has broken down so it will not be possible in that sense to defend an application for divorce.
Once an application has been filed there will be a period of twenty weeks before the conditional order of divorce can be applied for. During this period, it is hoped that financial arrangements and arrangements for children will be settled. Once the conditional order is made there is a further waiting period of six weeks before the application for the final order can be made. It is on the making of a final order that the marriage will come to an end. The process will in the vast majority of cases be undertaken online.
It is hoped that the new system will avoid many of the problems that the old fault-based process created unnecessarily and that when a marriage breaks down the focus can be on making agreed arrangements for the children and appropriate financial arrangements rather than on why the marriage broke down and assigning blame.
Article by Mark Leeson, Partner, Head of Family, Brashers. Mark joined Brachers in May 2012 and has practiced in the field of family law since qualifying in 1990. Mark is a solicitor specialising in family law
