Commons Library analysis: Divorce, Dissolution and Separation Bill [HL] 2019-21

The Divorce, Dissolution and Separation Bill [HL] 2019-21

The Divorce, Dissolution and Separation Bill [HL] (the Bill) was introduced in the House of Lords on 7 January 2020. It completed its Lords stages on 24 March 2020 and was introduced in the House of Commons on 25 March 2020 as Bill 125 of 2019-21. Second Reading in the House of Commons is due to take place on 8 June 2020.

In short, the Bill would:

• replace the requirement to provide evidence of conduct or separation with a new requirement to provide a statement of irretrievable breakdown;
• remove the possibility of contesting the decision to divorce, as the statement of irretrievable breakdown would be taken as conclusive evidence that the marriage has broken down irretrievably;
• introduce a new option of a joint application;
• introduce a minimum overall timeframe of six months into the divorce process;
• enable the Lord Chancellor, by order, to adjust the time periods;
• update terminology.

The law relating to judicial separation, and to dissolution of civil partnership and separation of civil partners, would be amended in a similar way.

The Bill would extend to England and Wales. Matters relating to marriage and civil partnership are devolved. Part 8 of this briefing paper sets out a brief summary of the position in Scotland.

The Bill follows two similar bills. The first was introduced in the House of Commons on 13 June 2019 and the second was introduced in the House of Lords on 15 October 2019. Neither Bill completed its passage through Parliament, the first because of prorogation and the second when Parliament was dissolved for the General Election.

Background

Current basis for divorce

The only ground for divorce is that the marriage has irretrievably broken down. The court cannot hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or more of five facts, three of which are fault based (adultery, behaviour, desertion). Two of the facts relate to periods of separation – two years if both parties consent, and five years without consent. In many cases, it is possible to divorce more quickly if the petition is based on one of the conduct (fault) facts.

Owens v Owens

In 2016, a judge in the Central Family Court refused to grant Mrs Owens a decree nisi of divorce, even though he found that the marriage had broken down. The husband had defended the divorce – defended divorces are rare in practice. The judge found that Mrs Owens had failed to prove, within the meaning of the law, that her husband had behaved in such a way that she could not reasonably be expected to live with him.

Both the Court of Appeal in 2017, and the Supreme Court in 2018, dismissed Mrs Owens’ appeal. Judges in both courts said that it was for Parliament, and not judges, to change the law. In the Court of Appeal, Sir James Munby, then President of the Family Division, said that, in this respect, the law and procedures were based on “hypocrisy and lack of intellectual honesty”.

Family Law Act 1996 provisions for no-fault divorce: not implemented and now repealed

Part 2 of the Family Law Act 1996 would have introduced “no-fault divorce” and required the parties to a divorce to attend “information meetings” with a view to encouraging reconciliation where possible. In 2001, following a series of information meeting pilot schemes, the then Government concluded that the provisions were “unworkable”. The relevant provisions in Part 2 have now been repealed.

Previous calls for introduction of no-fault divorce

Among others, some senior members of the Judiciary; the Family Mediation Taskforce; Resolution (the national organisation of family lawyers); and The Times newspaper have called for the introduction of no‑fault divorce. There have also been Private Members’ Bills in the Commons and the Lords, which did not become law, on this issue.

In October 2017, the report of a Nuffield Foundation funded research project, led by Professor Liz Trinder of Exeter University, recommended removing fault entirely from divorce law and replacing it with a notification system. The report concluded that it was time for the law to be reformed to address the mismatch between law and practice.

Advocates of this form of divorce speak of reducing the conflict which can be caused by allegations of fault. In some cases, the assertion of fault is considered to be a “charade”.

Arguments against no-fault divorce

The arguments of those who oppose the introduction of no-fault divorce include that the institution of marriage should be supported; the risk of the divorce rate increasing if it is perceived to be easier to get a divorce; and the negative impact of family breakdown.  

Government consultation and response

In 2018, the Ministry of Justice consulted on replacing the current requirement to establish one or more of the five facts to show that a marriage has broken down irretrievably, with a process based on notification. In his Ministerial Foreword, David Gauke, the then Lord Chancellor and Secretary of State for Justice, referred specifically to the Owens case, and said that it had generated broader questions about what the law requires of people going through divorce and what it achieves in practice.

On 9 April 2019, the Government published its response to the consultation. David Gauke announced that legislation would be introduced to remove the legal requirement to make allegations about spousal conduct or to have lived separately for up to five years.   He said that the Government would continue to support marriage but that the law should allow people to move on constructively when divorce is inevitable, and that this would benefit children.

Scotland

The basis for divorce in Scotland was originally very similar to that in England and Wales. However, the Family Law (Scotland) Act 2006 reduced the separation periods from two years to one where there is consent, and from five to two years where the respondent does not consent. The ‘desertion’ fact was also removed.