John Bolch
Family law blogger John Bolch examines divorce, the new law that has come into effect on April 1st and whether it will reduce animosity, encourage mediation and improve the system as a whole.
Divorce law in England and Wales has just undergone the most profound change since civil divorce was first introduced in 1857 (prior to that divorce was dealt with by the ecclesiastical, rather than the civil, courts).
In the 160-odd years since then divorce law has been based upon the concept of fault: in order to get your divorce you needed to prove that the other party (the ‘respondent’) was at fault for the breakdown of the marriage.
It is true that in the last fifty years the concept of fault was watered down somewhat, in that no attribution of fault was required if the parties had been separated for at least two years and the respondent consented to the divorce.
However, before those two years were up fault had to be proved, by showing either that the respondent had committed adultery or that they had behaved unreasonably. This resulted in more than half of all divorces being fault-based.
Now all of that has changed. Fault has been swept away as a feature of our divorce system. The change is so fundamental that it is no exaggeration to call it a ‘revolution’.
So how exactly will the new system work?
Goodbye to the blame game
Under the new system the ground for divorce remains the same as under the old system: that the marriage has broken down irretrievably.
However, the crucial difference is that under the old system you had to prove irretrievable breakdown, whereas under the new system you do not.
Under the old system you had to prove irretrievable breakdown by showing that the respondent had committed adultery, or that they had behaved unreasonably, and so on.
Under the new system, however, all you (now called ‘the applicant’) have to do is file a statement with the court that the marriage has broken down irretrievably. The court must accept that statement as conclusive evidence that the marriage has indeed broken down irretrievably.
The concept of fault, blaming the respondent for the breakdown of the marriage has thus disappeared.
This, in turn, means that it will no longer be possible for the respondent to defend the divorce. After all, if the statement proves that the marriage has irretrievably broken down, the respondent can hardly then claim that it has not.
Removing the right to defend a divorce has been criticised in some quarters. After all, in any other type of civil proceedings the respondent has the right to defend themselves. But divorce is not of course like other types of proceedings – the reality is that if one party says the marriage is over then it is.
And there is another change that relates to the statement of marital breakdown. For the first time it will be possible for both parties to apply for the divorce, meaning that they will both sign the statement.
Period of reflection
The other major change relates to the timescale for the divorce.
When the new system was formulated it was recognised that removing the right of the respondent to defend meant that the divorce could in theory go through very quickly, giving the parties little or no time to pursue the possibility of reconciliation, or to discuss arrangements for children and finances.
To address this the system introduces a twenty week ‘period of reflection’, between the divorce application and the conditional divorce order (the equivalent of the decree nisi under the old system). The idea is that this period “provides couples with a meaningful period of reflection and the chance to reconsider”, and that: “Where divorce is inevitable, it enables couples to cooperate and plan for the future.”
And when the applicant applies for the conditional order they must confirm that they wish the divorce application to continue.
After the conditional order is made there is still a six-week time gap before the court can make the final divorce order (the equivalent of the decree absolute under the old system), just as there was under the old system. A divorce under the new system will therefore take a minimum of twenty-six weeks.
A better future?
The great hope for the new system is that it will reduce unnecessary animosity, and therefore make it more likely that the parties will be able to agree arrangements for children and finances.
It remains to be seen whether this hope will be realised!