By Caragh Deery - Law Student @ St Hilda's College, Oxford
In light of the attention brought to the inadequacies of divorce law in Owens (discussed in Part I of this series), legislative reform is finally underway. In its consultation paper ‘Reducing Family Conflict’, the Government acknowledged that it cannot prevent the irretrievable breakdown of relationships, and that it must do more to support couples looking to divorce.
The main proposal from the paper that will be implemented with the Divorce, Dissolution and Separation Act 2020 (DDSA), is that the current requirement to establish either a fault fact or a separation fact will be replaced with the option of one spouse or the couple jointly to make a statement of irretrievable breakdown of the marriage. There is no longer any need to prove fault, or to wait a period of 2 or 5 years before being able to obtain a divorce. This puts greater autonomy into the hands of the divorcing parties, and according to research conducted by Trinder, should have other beneficial consequences such as: reducing bitterness, improving cooperation and coparenting children, and making the process more straightforward. The scrutiny that the State has over when a party may exit a marriage or civil partnership will be greatly reduced.
However, there is still a 6-month notice period, which gives the parties time to cool-off. The party/parties must notify the relevant body of the breakdown of the relationship, and if at least one party still agrees that the relationship is irretrievably broken down after 6-months, a divorce will be ordered. This shows that the law continues to seek to ensure that parties will stop and think before obtaining a divorce. However, there is no longer a requirement for parties to justify their reasons, and their application will not be scrutinised. Thus, in terms of exiting marriage, the DDSA will go a long way to ensure, if not completely ensures, that parties are free to choose for themselves whether to end their marriage. Overall, the DDSA is a development to be welcomed by the law, and it will complement nicely the earlier reforms on entering marriages and CPs.
Of course, no programme of legislative reform is ever complete and there are further ways in which the law can be improved. The ‘Reducing Family Conflict’ Report identified several ways in which the law governing the exit of marriage in particular can still be improved. As with many areas of family law, greater funding would be beneficial. This could help to fund support services for reducing conflict and supporting the children of divorcing parents. The law could also provide earlier help for married couples, such as counselling and resources, or marriage preparation help for those looking to enter a marriage. Moreover, there is also scope for changes and reform on financial provisions of divorce. Obtaining a divorce itself is not the end of the matter, and there is more the law can do to reduce conflict at this stage.
An empirical study of divorce law in practice in England and Wales: Liz Trinder’s ‘Finding Fault’ project https://www.nuffieldfoundation.org/finding-fault-divorce-law-practice-england-and-wales
Ministry of Justice Consultation Paper ‘Reducing Family Conflict’: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793642/reducing-family-conflict-consult-response.pdf See in particular the ‘Executive Summary’ and ‘The Governments Response’ sections.