For the past 50 years, the law has required that at least one spouse must allege adultery, unreasonable behaviour or desertion, in order to start the divorce proceedings straight away. When a couple wants to apply for a “no-fault” divorce, it can be a very lengthy process from petition to the divorce being legally finalised as couples must prove that they have lived separately for a considerable amount of time. In Scotland, couples must be able to prove they have lived apart for at least one year whereas, in the UK, couples must prove that they have lived separately for at least two years in order for their divorce request to be considered.
“Fault-based” divorces, (i.e. when adultery, abuse or desertion has taken place) can be much quicker. Provided that there is factual evidence of wrongdoing within the marriage, the divorce can take as little as 3 – 6 months to finalise legally. However, if a spouse petitions for divorce and the other spouse protests, without factual evidence of adultery or unreasonable behaviour has taken place, the only way to obtain a divorce is to live apart for 5 years.
The current laws mean that divorce proceedings often resort to spouses playing “the blame game” in order to process their divorce more quickly. This can lead to exacerbated conflicted and hostility and prevent any possible reconciliation or mediation. When children are involved this can be extremely distressing for them to witness.
Justice Secretary David Gauke has said “Hostility and conflict between parents leave their mark on children and can damage their life chances. So I have listened to calls for reform and firmly believe now is the right time to end this unnecessary blame game for good.”
The Ministry of Justice has recently released its plans to overhaul the current divorce laws that are currently in place. The new laws are designed to stop the “blame game” happening within divorces proceedings, reducing family conflict and making mediations easier. The new legislation will also put a stop to spouses being able to contest divorces, which in the past has been used by abusers in order to keep control of their victim. The new laws will also aid couples who both want the divorce without having to prove fault.
The new legislation for divorce proposes the following;
• To retain irretrievable breakdown of marriage as the sole ground for divorce.
• To no longer require factual evidence of behaviour or separation. Instead, just a statement of irretrievable breakdown will be required.
• There will be the option of a joint divorce application, where both spouses can apply together. The option for one party to initiate the divorce proceedings will remain the same.
• The new legislation proposes to remove the ability to contest a divorce. This means if one spouse has initiated the divorce, the other spouse will not be able to appeal it.
• There will still be the two-stage legal process, currently referred to as decree nisi and decree absolute. However, there will now be a minimum timeframe of 6 months, from the petition stage to final divorce.
These laws aim to reduce family conflict and make the difficult process more civil and less stressful. The new minimum timeframe will give spouses with children time to organise a co-parenting plan to make the transition as easy as possible. The minimum timeframe will also give couples the time to reflect and possibly reconcile.
Currently, the date for the new divorce laws to take effect has not been announced, however, the Ministry of Justice has said that the legislation will be introduced as soon as parliamentary time allows