The UK Government plans to reform the current divorce process to make several changes including removing the necessity for either or both parties to claim a ‘fault’ with the other if they wish to divorce. Last month, in April 2019, the Government confirmed they would go ahead with the planned changes and introduce new legislation, as soon as parliamentary time becomes available.
Current Divorce Process
At the time of writing this, the process for divorce is lengthy, complicated and you will need to provide information to support or prove the following faults:
- Unreasonable behaviour
If the spouses can wait longer or don’t want to blame one another there are these two options:
- Separation of more than two years (if spouse agrees to the divorce)
- Separation of at least five years (if spouse disagrees with the divorce)
It is easy to see why so many legal professionals see this process as outdated and how it causes more aggravation between separating couples who should be focusing on issues and arrangements for children, property and their finances.
A simplified overview of the current process is as follows:
- Petition – One party sends their petition to court. Court then issues the papers to the other party.
- Response – The other spouse receives the papers; they must then respond within 7 days by filling in a form called an ‘Acknowledgement of service’. (if it is not returned there is a lengthy process to move this stage forward.)
- Decree Nisi – Once the ‘Acknowledgement of service’ has been returned to the court, the petitioner can apply for the Decree Nisi. The district judge will consider the petition and papers to decide if the petitioner is entitled to divorce. If the Judge is satisfied all is in order, a Certificate will be issued confirming the time, date and place when Decree Nisi will be pronounced.
- Order From Court – After the Decree Nisi has been pronounced the Order from the Court will be received. The Decree Nisi confirms that the petitioner is entitled to a divorce, but the divorce is not yet finalised.
- Decree Absolute – Six weeks and one day from the date Decree Nisi is pronounced the petitioner can then apply for the Decree Nisi to be made Absolute which will finalise the divorce.
Although this may seem simple enough, the process can take months, particularly if one party is not cooperative. At each stage, the process can be held up by objections, financial issues and the respondent not complying within the specified time frame.
What Changes to the Divorce Process are Planned?
No-Fault and No Allocation of Blame
In the first instance, the ‘blame game’ that couples are forced to play currently, will no longer be a necessity. A couple or one party would only need to notify the court that their marriage has irretrievably broken down.
There will not be the need for accusations, finger pointing, and blame apportioned to either party. It is the allocation of blame that causes the stressful courtroom battles that are so consuming and unpleasant for all involved.
Let’s not forget how witnessing their parents fighting is one of the most damaging things to children. For separating parents, it is so much more difficult to focus on the needs of their children when they must prove a fault-based fact against their former partner.
The reforms will also mean that couples will not now have to wait two years (of living separately) to start the divorce process if they had not wanted to apportion blame. Under the current process couples who want to divorce quickly would have to prove adultery, desertion or unreasonable behaviour which aside from causing emotional issues, could then be contested by the respondent.
If a couple do not both consent to the divorce and there is no evidence of fault, the applicants would have to wait until they have been living apart for five years, before the divorce proceedings could begin.
The new divorce process will also negate the necessity for mutual agreement of both parties on the divorce or any aspect of it. The ability for one person to contest a divorce will be removed.
Allow Couples to Give Notice Jointly
This change will mean that a couple who mutually agree they want to divorce, can start the process together rather than one party having to ‘petition’ and the other ‘respond’. This will save time and a lot of administrative issues if they apply jointly.
These joint applications will also be allowed to become sole applications if the situation were to arise. Equality sole applications would be allowed to become joint applications.
Putting the Children First
These are just some of the proposed changes and we wholeheartedly agree that they will benefit everyone involved in divorce. As much as we would all hope that every marriage will stand the test of time, it is sometimes better for people to be apart. As experienced family mediators, we have seen the stress and sadness that can be placed on young shoulders as they become drawn into adult relationship breakdowns.