“Frankly, we are not going to keep marriages together by having a divorce process that just makes it more acrimonious [and] tries to apportion blame in such a way that the couple are likely to have a weaker, poorer relationship subsequently than they would otherwise do.”
The proposals follow the Supreme Court’s judgment in Owens v Owens  UKSC 41, in which the Court unanimously rejected the wife’s appeal in a contested divorce when the husband contended that the marriage had not, in fact, broken down irretrievably. As we noted at the time, the Court rejected the appeal with obvious reluctance, Lady Hale PSC finding it “a very troubling case” .
The move – which will probably surprise no-one in the light of the judgment in Owens v Owens – comes after responses to the recent consultation on Reducing Family Conflict: reform of the legal requirements for divorce revealed general support for reform.
Currently, a petitioner for divorce must provide evidence that the marriage has broken down irretrievably, on the grounds set out in s.1(2) of the Matrimonial Causes Act 1973:
- the other party’s adultery;
- the other party’s unreasonable behaviour (“that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”);
- two years’ separation if the other spouse consents to the divorce; or
- five years’ separation if the other spouse does not consent.
118,000 people petitioned for divorce in England and Wales in 2018; out of every five divorce petitions over the past three years, three have relied on conduct and two on separation.
The proposals for reform include:
- retaining the irretrievable breakdown of a marriage as the sole ground for divorce;
- replacing the requirement to provide evidence of factual evidence of behaviour or a period of separation with a requirement to provide a statement of irretrievable breakdown;
- retaining the current two-stage legal process of the decree nisi and followed by the decree absolute;
- retaining the option for one party to initiate divorce proceedings but creating the additional option of a joint application for divorce;
- removing the ability to contest a divorce; and
- introducing a minimum timeframe of 6 months from petition stage to final divorce: 20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute.
The proposed reforms will not extend to other areas of matrimonial law such as financial provision. The legislation is expected to be introduced “as soon as Parliamentary time allows”. Parallel changes will also be made to the law governing the dissolution of a civil partnership, which broadly mirrors that for obtaining a divorce.
The proposal to introduce a minimum timeframe at the initial petition stage reflects the views of respondents to the consultation that couples “feel divorced” when the court grants the decree nisi. The intention is to provide a meaningful period of reflection and the opportunity for divorcing couples to change their minds or, where divorce is inevitable, to give them a chance to reach agreement on practical arrangements for the future. However, courts will retain the power to expedite the process where appropriate.
According to the Ministry of Justice, contested divorces currently account for fewer than two per cent of cases. Under the proposed changes, however, a divorce petition could still be challenged on the grounds of jurisdiction, the legal validity of the marriage, fraud or coercion and procedural compliance.
The current law does not require a fixed period of time to elapse before granting the decree nisi. Between 2011 and 2018, around one in ten cases reached decree nisi within eight weeks and three in ten cases between nine and thirteen weeks. The MoJ expects that without the introduction of a minimum timeframe the average time will reduce as online divorce is extended.
The Government’s full response to the consultation is here.