Written by Xinlei Zhang.
The new legislation Divorce, Dissolution and Separation Act 2020 will come into force on 6th April 2022. The significance of this legislation is that it will introduce “no fault” divorce for the first time in the UK. In this article we will discuss the reason behind the passage of the legislation and how will the divorce proceeding be affected by the new regime.
As we all known, the divorce in the UK is fault based at the moment. That is to say, in order to establish the marriage is irretrievably break down, the party who wishes to make a divorce petition needs to prove one of the five facts stated in the Matrimonial Causes Act 1973, and unreasonable behaviour is the most common cause of divorce in England and Wales, according to the National Statistics.
Let us delve into the Supreme Court case, Owens v Owens, which resulted in the enactment of the new legislation.
Mrs Owens was aged 68. Mr Owens was aged 80. They were married over 37 years and have two adult children. Mrs Owens first consulted her solicitor about a divorce in June 2012. In May 2015, Mrs Owens issued the petition based on the fact that Mr Owens had behaved in such a way that the petitioner could not reasonably be expected to live with him. The examples given in the petition were the following, Mr Owens had prioritised his work over their life at home; lacked love or affection; that Mr Owen had often been moody etc.
In practice, defended divorces are rare, however Mr Owens denied the allegations about his behaviour and alleged that, the marriage had been successful and that he and Mrs Owens had learnt how to “rub along”. The conclusion given by the Supreme Court was that Mrs Owen must remain married to Mr Owens for the time being. The judges has explained clearly what that law requires that is for “unreasonable behaviour” the behaviour is not what should be unreasonable but “the expectation of continued life together should be unreasonable.” In the meantime, the court made it clear that it was not for the court to change the law laid down by Parliament – the court’s role was only to interpret and applied the law that Parliament had given to them.
The case puts the pressure on the legislative institution to reconsider the divorce procedure in the England and Wales. In 2019, the Government published its response to the consultation, and announced a commitment to legislation introducing no fault divorce. On 15 June 2020, the legislation received Royal Assent.
The section 1 of the new legislation removes requirement to establish facts, and introduces the divorce application brought by both parties. The statement by the divorce applicant or applicants that the marriage has broken down irretrievably will be conclusive evidence to the court. Therefore, the blame game of the current regime will be officially ended. However, as for the divorce procedure, the legislation introduces a new minimum period of 20 weeks from the start of proceedings to when the first order (Conditional Order) can be made. In the meanwhile, the cooling period of 6 week is still in force between the Conditional Order and when the Final Divorce Order can be made.
Overall, the application should be getting easier; and it will be a good news to those parties whose partner may wish to contest the divorce.
However, on the other hand, it will take longer to obtain the Final Divorce Order because of the new minimum period of 20 weeks, while currently, the applicants can apply for the Conditional Order as soon as the respondent responds to the services. Clearly, the current procedure might be beneficial to the parties who both consent to the divorce and wish to get over with the procedure quickly.
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