New Divorce Laws in England

Tom Quail

Published by
Tom Quail

16th May 2019

This month, the Government announced that couples divorcing in England and Wales will no longer have to blame each other for the breakdown of their marriage as there was announced a new law to help reduce family conflict.

The move followed a public consultation where family justice professionals, and those with direct experience of divorce, voiced their support for reform. New legislation will therefore be introduced to Parliament to update the fifty year old divorce law which has been shown to exacerbate conflict.

Ministers are changing the law after responses revealed that the current system can work against any prospect of reconciliation and can be damaging to children by undermining their relationship between parents after divorce.

Justice Secretary, David Jauke, said "hostility and conflict between parents leave their mark on children and can damage their lives chances".

Whilst we will always uphold the institution of marriage, it cannot be right that an outdated law creates an increased conflict between divorcing couples.

The current laws in England and Wales demand proof that a marriage has broken down irretrievably and force spouses to evidence unreasonable behaviour or years of separation, even in cases where a couple has made a mutual decision to part ways.

Proposals for changes to the law include:-

  • Retaining the irretrievable breakdown of a marriage;
  • Replacing the requirement to provide evidence of a factor of behaviour or separation with a requirement to provide a statement of irretrievable breakdown;
  • Retaining the two stage legal process currently referred to as decree nisi, decree absolute;
  • Creating the option of a joint application alongside retaining the option for one party to initiate the process;
  • Removing the ability to contest a divorce and
  • Introducing a minimum timeframe of six months from petition staged final divorce (twenty weeks from petition stage to decree nisi; six weeks from decree nisi to decree absolute).

Starting a minimum timeframe at the initial petition stage reflects views that couples feel divorced when the court grants the provisional decree of divorce (decree nisi). This will provide a meaningful period of reflection and the opportunity to turn back.

Where divorce is inevitable, it will better enable couples to reach agreement on practical arrangements for the future. Courts will retain the power to expedite the process where appropriate.

These reforms retain what works well in existing divorce law and remove what stands in the way of resolving difficulties more amicably when a marriage has irretrievably broken down and requires an orderly legal standing. The proposed legislation will not cover other areas of matrimonial law such as financial provision. Financial provision in England and Wales on divorce is handled in separate proceedings, and the court has wide discretion to provide for future financial needs.

The position in Scotland has been radically different for some significant period of time. Since 2006, if a couple establish that they have been separated for one year, and the other party consents, then the court can grant a divorce. If there is no consent then the couples in Scotland only have to wait a two year period.

In Scotland, unlike England and Wales, all financial matters require to be addressed and dealt with prior to the divorce being granted. The ability to make any financial claim ends on divorce.

In addition, in Scotland, prior to the court granting a divorce in Scotland, the court require to be satisfied that the arrangements for the children are either agreed between the parties or the court has made a decision as to what is in the best interests of the children.

The proposed changes to the divorce laws bring England and Wales, in relation to divorce, more into line with the law in Scotland which has been in place for the best part of thirteen years.

Quite significantly, whilst divorce laws are to be reformed in England and Wales, there is no intention to introduce legislation to provide cohabitant's with rights on the ending of the relationship whereas in Scotland cohabitants have had an ability to make a claim against each other on the ending of the relationship since 2006.

The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at May 2019. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.