The Matrimonial Causes Act 1973 (“MCA 1973”) in England and Wales currently provides couples seeking a divorce with one ground for doing so; that their marriage has irretrievably broken down. The ground must be proved by establishing one of five “facts”. Commonly used are the two fault, or conduct, facts of adultery or unreasonable behaviour, with 60% of English and Welsh divorces being granted on a fault fact. Many divorcing couples opt to use a fault fact as they do not want to wait the minimum two years’ separation required before applying under one of the “fault-less” separation facts.
For a number of years, it has been argued that the (over) use of the fault facts is a major contributing factor to creating an acrimonious and adversarial environment for couples, leading them down a litigious (and often expensive) path.
For ease, further references to divorce and marriage throughout this blog will include references to dissolution and civil partnership, as appropriate.
The Divorce, Dissolution and Separation Bill 2017-2019 (“the Bill”)
The Bill, introduced by former Justice Secretary, David Gauke MP, aims to introduce pragmatic reforms to the current divorce regime and remove the problematic elements of archaic law, which creates conflict flashpoints for divorcing couples, often making matters worse. The purpose of the Bill is to create a less harmful process of divorce in England and Wales, complementing the Family Division’s current policy guidance of forward-looking, non-confrontational and out-of-court resolutions in family proceedings.
As is often the case with legal reforms, the misfortune of an individual, specifically Mrs Tini Owens, shone a spotlight on the need to reform divorce law in England and Wales. The outcome of Owens v Owens SC  UKSC 41, sparked renewed enthusiasm for reform, whereby Mrs Owens could not divorce Mr Owens as he successfully defended her divorce petition based on unreasonable behaviour, meaning Mrs Owens must now wait for 5 years’ separation before she can proceed with a divorce. Reform has also been bolstered by research by The Nuffield Foundation resulting in her report Finding fault? Divorce Law and Practice in England and Wales (2017) and campaigning by Resolution culminating in the Bill.
England and Wales’ outdated divorce law was succinctly summarised by Sir James Munby (former President of the Family Division) in Owens where he stated:
“The law which judges have to apply and the procedures which they are to follow are based on hypocrisy and a lack of intellectual honesty. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive manipulation of section 1(2)(b)”.
Below we look at some of the practical changes introduced by the Bill, the likely impact of a “no fault divorce” regime and when the Bill is likely to replace the existing family law.
PRACTICAL CHANGES INTRODUCED BY THE BILL
Removal of “fault” facts
The use of the fault facts in divorce has been the subject of sustained criticism for a number of years, if not decades. One such criticism is that the fault facts undermine the policy guidance of the Family Division. If enacted, the Bill will remove the current five facts regarding either conduct or separation, in the MCA 1973; however, the sole ground of the irretrievable breakdown of the marriage is retained. The five facts will be replaced with a new evidential process to establish the single ground whereby the applicant must provide a statement confirming their marriage has irretrievably broken down. The statement will be accepted by the court as conclusive evidence that the marriage has in fact broken down, and the court must then make a divorce order.
The change dispenses with the need to apportion blame to one party (the respondent) when relying on a fault fact, which has been viewed as an empty, but destructive, legal ritual setting the scene for hostility and resentment.
The statement confirming the irretrievable breakdown of the marriage is hoped to eliminate another source of conflict as parties are often accused of embellishing upon their ex-partners unreasonable behaviour to rely on that fact, which cannot be tested by the court. In an increasingly amicable process, the statement can also be filed jointly by the parties.
A no fault regime is seen as a welcomed change as fault facts have unfortunately led to parties “gaming the system” in an effort to avoid using the separation facts. Fault facts are used in England and Wales 10 times more than in neighbouring Scotland and France and the use of boilerplate allegations is commonplace in divorce petitions as the law is seen to “incentivise” parties to use a fault fact to expedite their divorce.
Petitions relying on fault facts undoubtedly make parties more bitter from the outset, which goes against the collaborative family law policy advocated by the Family Division. The requirement to “hurt” one’s former spouse for the sake of paperwork is ultimately unnecessary as the particulars used in the divorce petition, rarely impact on the resolution of the finances or arrangements for children.
No defence against divorce
The Bill also proposes removing the ability of the respondent to defend a divorce petition (unless on the grounds of fraud, lack of jurisdiction or procedural irregularities). Following Owens v Owens, public support for defended divorces has dwindled and practitioners often advise against the expensive legal exercise of defending a divorce petition. Under the Bill, if all procedural and legal requirements are met in the application, there can be no objection to a divorce.
This change has been welcomed by many family law practitioners who have expressed concerns that defending a divorce can perpetrate coercive behaviour. Furthermore, defending a divorce petition is usually based on the fault alleged in the particulars and is a lengthy, expensive and extremely hostile process for parties to embark upon. Again, this is in direct contradiction with the policy guidance of the Family Division.
Changes to terminology
In a symbolic change, the terminology will also be modernised by the Bill in an active step away from civil law language. Divorce petitions will become divorce applications. Decree Nisi will be replaced with a Conditional Divorce Order and Decree Absolute will become a Final Divorce Order.
It is thought that this change will create a distinction between family proceeding and other forms of civil litigation, which is believed to go hand in hand with the removal of fault facts in fostering amicable proceedings.
Introduction of a minimum 20 week waiting period
Finally, under the Bill, the divorce regime timeline will be reformed. A Conditional Divorce Order (replacing Decree Nisi) will be granted following a mandatory minimum 20 week waiting period after the application is submitted. This has been dubbed by many as a “reflection period” allowing couples to reflect on the application, and it is intended to serve as an opportunity for parties to resolve financial and children arrangements prior to applying for a Final Divorce Order with the objective of reducing unnecessary stress and acrimony.
At the conclusion of the 20 week period, the applicant (or applicants, as the case may be) must confirm to the court that they wish to proceed with the divorce. Upon receipt of the confirmation, the court will then make the Conditional Divorce Order. The Final Divorce Order (replacing Decree Absolute) can then be applied for 6 weeks after the Conditional Divorce Order is issued. Before a Final Divorce Order is granted, parties must provide a third confirmation to the court of their intention to proceed with their divorce. The process effectively introduces a “triple lock” feature to the regime as parties are required to actively confirm their intention to divorce on three occasions before a Final Divorce Order is made – namely when applying for Divorce; a Conditional Divorce Order; and the Final Divorce Order.
IMPACT OF THE NEW LEGISLATION AND INTRODUCTION OF A “NO FAULT” DIVORCE REGIME
Creating a more amicable environment
Creating a more amicable environment between parties is the overall objective of the new divorce regime. Couples going through a divorce are already experiencing a variety of emotions and are understandably sensitive to the comments or behaviour of their spouse.
The no fault regime proposed by the Bill seeks to generate an amicable environment for parties to resolve finances and children arrangements, avoid the courtroom and resolve issues through alternatives to litigation, such as mediation or arbitration. Using alternatives to litigation methods is often impossible when parties have had to “point fingers” at the outset of proceedings. Reducing, or eliminating opportunities to ignite conflict encourages amicability, which should lead to better future relationships between parties and avoidance of expensive litigation. This is especially significant should the parties have to co-parent, as the likelihood of parental conflict is significantly lowered.
Increased divorce dates
The principal criticism of the Bill is that the removal of fault will cause a spike in divorce rates as couples may enter into marriage without proper consideration of the commitment viewing marriage as a contract they can easily get out of.
After introducing the Bill, David Gauke MP acknowledged that divorce rates may increase following the introduction of a no fault divorce regime. However, the initial spike in divorce rates is likely to be attributed to couples currently waiting out a separation period who will become automatically eligible to apply for divorce under the new regime. The increase is expected to be temporary and divorce rates should plateau to current rates once couples previously relying on separation facts have divorced, as was the case in Scotland when no fault divorce was introduced in 2006.
Therefore, the argument that no fault divorce will lead to less consideration of and commitment to marriage is largely unfounded. The majority of couples only become aware of the divorce process after they have concluded that their marriage has irretrievably broken down and they begin divorce proceedings. At this stage, it is likely that reconciliation is no longer a viable option and a no fault divorce regime is therefore unlikely to prevent reconciliation.
PARLIAMENTARY PROCEDURE – WHEN IS THE BILL LIKELY TO BECOME LAW?
So far, the Bill has progressed through the Committee Stage in the House of Commons and is due to move to the House of Commons Reporting Stage shortly (with the exact date TBC). During the House of Commons Reporting Stage, the Bill will be considered for amendment following the findings at Committee Stage. Once completing the stages in the House of Commons, the Bill will move through the House of Lords before being enacted.
It is expected, due to the current political climate and the degree of uncertainty of Brexit, that the Bill’s journey through parliament will not be concluded this year. However, it is hoped that progress will continue to be made ensuring the reform of an outdated procedure and realignment of divorce law with the principles of the Family Division