The Divorce, Dissolution and Separation Bill, first introduced into Parliament in June 2019 after a public consultation – and which fell at the Dissolution – was reintroduced in the House of Lords on 7 January. Its purpose is to amend the law of England and Wales so as to allow one spouse, or the couple jointly, to make a statement of irretrievable breakdown – in effect, ‘no-fault’ divorce. It will also prevent one partner contesting a divorce if the other wants one – which, the Government says, has in some cases allowed domestic abusers to exercise further coercive control over their victims. In short, it should prevent a reoccurrence of the situation in Owens v Owens  UKSC 41.
Specifically, the Bill will:
- replace the current requirement to evidence either a conduct or separation ‘fact’ with the provision of a statement of irretrievable breakdown of the marriage (couples can opt to make this a joint statement);
- remove the possibility of contesting the decision to divorce, as a statement will be conclusive evidence that the marriage has irretrievably broken down; and
- introduce a new minimum period of 20 weeks from the start of proceedings to confirmation to the court that a conditional order of divorce may be made, allowing greater opportunity for couples to agree on practical arrangements for the future where reconciliation is not possible and divorce is inevitable.
Parallel changes will be made to the law governing the dissolution of a civil partnership which broadly mirrors the legal process for obtaining a divorce.
The proposed legislation will not cover other areas of matrimonial law such as financial provision. Financial provision on divorce is handled in separate proceedings and the court has wide discretion to provide for future financial needs.
The documentation relating to the Bill is here. The Government published its response to the public consultation, Reducing Family Conflict: reform of the legal requirements for divorce, on 9 April 2019. The reintroduction of the Bill was welcomed by Relate.
Reform of divorce law welcome – but not enough.
So the Parliamentary Bill to reform the law of divorce – lost when Parliament was dissolved for the general election – has been reintroduced this week. That is welcome news indeed. But does it go far enough?
When the Government, in June 2019, responded to the report proposing the reform, it said:
‘Our focus for reform continues to be to reduce conflict, to put a greater emphasis on future relationships – particularly those involving children – and to enable reconciliation where possible. We recognise that the law cannot prevent the breakdown of marriages. Yet when divorce is inevitable, the law must neither induce nor give opportunity for acrimony and hostility. Critically, the relationship between two former spouses who have ongoing parenting roles, must not be undermined. We want to reform the law so that it creates the conditions for couples to reconcile if they can – and to move on as constructively as possible if they cannot.’
These might seem excellent principles, but simply changing the way in which divorces are obtained does not remove the conflict. In the vast majority of divorces, the real focus for conflict is played out in relation to the finances and to the arrangements for the post-separation care of children.
The underlying difficulty is not the existence of conflict, but the way in which conflict is processed and resolved (or not). The judicial system in England and Wales, reflecting much in our culture, is based upon an adversarial approach in which parties take up arms in a struggle before an adjudicator. The approach inevitable creates a competitive winner-loser sentiment – if I am to win, then you must lose. The system is also slow and costly. Perhaps more significantly, it inhibits mutual understanding, absolves personal responsibility for choices, and reduces any sense of ownership of decisions.
A root and branch reform, moving the judicial system – at least in family cases – towards a continental style inquisitorial approach might do much to ameliorate these mischiefs. So, too, might a wholehearted commitment to the development and growth of family mediation provision (too often seen from Whitehall as merely a way to save money and reduce pressure on the judiciary and with under-resourced training). Perhaps a combination of the two would be the ideal approach.
My second question regarding the Government’s response is around the implication that conflict is inherently a ‘bad thing’. In the course of my work, I explore with individuals and couples how they have dealt with decision making and disagreements during their relationships. Conflict aversion is a common feature amongst these separating couples. Successful couples do not avoid conflict but learn how to resolve disagreements and learn from them.
Investment in education in the dynamics of conflict within relationships would, I suspect, pay enormous dividends. A place for relationship coaching within any system for dealing with the consequences of relationship breakdown might provide an effective way to equip parents, especially, to deal with and resolve future conflicts.
Whilst happily married some years ago my sister got divorced. Some may have concerns over “to allow one spouse … to make a statement of irretrievable breakdown – in effect, ‘no-fault’ divorce. It will also prevent one partner contesting a divorce if the other wants one”.
Having now read Owens v Owens  and Paul Kemp’s website (link at his name above) I can understand the need for change. But, without trawling through the legislation, is there any provision for either spouse to say, “Hold on a minute, please may we discuss (mediate) this to see if we can save our marriage for the sake of the children”?
A family mediator, when assessing whether a couple’s matter is suitable for mediation should be aware of the possibility of reconciliation and, wherever it seems to him or her that progress might be made in that direction, should signpost the couple to individuals or organisations that might help them. I often refer couples to counsellors or to a relationship coach – mediation itself is not, however, a therapeutic intervention, and the mediator’s role is to help the couple to make their own choices about the future.
The other element here is that couples who mediate will often say that they separated well, i.e., that mediation helped them to create a narrative that included the possibility of a constructive future relationship – particularly helpful where there were children (even adult children).
The unilateral and conclusive statement of irretrievable breakdown sounds to me very like the ‘talaq’ of Islamic divorce. In that case, there is a 3-month ‘cooling-off’ period, during which a return to the marital bed (inter alia) serves to rescind the statement. (The 3 months also allow for any pregnancy, and therefore paternal obligations, to be established.)
Does the proposed legislation allow for the statement to be rescinded by the one who made it?
Oh I see – yes there’s an equivalent provision, of 20 weeks:
s. 5 – The court may not make a conditional order unless … that party has confirmed to the court that they wish the application to continue … and a party may not give confirmation … before the end of the period of 20 weeks.
What is one to do if one is married to a spouse who has developed a delusional mental disorder, and who has stopped taking his or her medication, with the effect that he nor she now has paranoid false beliefs about one, which lead to the belief that the marriage has broken down irretrievably?