Divorce & Separation

On 6 April 2022 the Divorce, Dissolution and Separation Act 2020 comes into force bringing with it a major overhaul of divorce law and procedure in England and Wales. This is the biggest change in divorce law in over 50 years.

The main changes are the end of apportioning blame when divorcing – i.e., ‘no fault’ divorce as it is often referred to; as well as the ability for couples to jointly apply.

Family lawyers, in particular members of Resolution (www.resolution.org.uk), have campaigned for these changes for many years; recognising the harm that can be done when couples have to allege blame for the breakdown of the marriage, in an otherwise amicable separation. This is particularly harmful where they are also trying to agree the arrangements for their children.

The Act will change the existing Court process for divorce and dissolution of civil partnerships.

There are changes to the terminology to make it easier for everyone to understand:

• ‘Petition,’ – the document to start the proceedings – becomes ‘Application’
• ‘Decree Nisi;’ – the Order that is made part way through the proceedings – becomes ‘Conditional order’
• ‘Decree Absolute;’ – the final Order to conclude the divorce and end the marriage or civil partnership – becomes ‘Final Order’
• Petitioner,’ – the person who started the proceedings – becomes ‘Applicant’
• ‘Respondent,’ – the other person in the proceedings – stays the same.

The procedural changes are that:

• The application for a divorce can either be made as a joint or sole application, so by one or both parties. It can start off in joint names and move to a sole application if one person is not progressing it
• The sole ground for divorce/dissolution will remain that the marriage/civil partnership has irretrievably broken down
• Instead of being based on the present ‘grounds’ of adultery, behaviour, desertion, 2 or 5 years separation, the only requirement is a statement of irretrievable breakdown; no further evidence will be required
• A defended divorce will be called a ‘disputed divorce’ and will only be allowed in limited circumstances; where there is a procedural or legal point, such as the Court not having the power to deal with the proceedings; fraud or a procedural non-compliance
• There will a minimum period of 20 weeks between starting the proceedings and applying for the Conditional Order. This is to give couples time to reflect on their decision
• There must be at least 6 weeks between the Conditional Order and applying for the Final Order. However, it is generally advisable to delay that application until a final financial Order has been made

Some aspects of the current law will stay the same including the rules that proceedings cannot take place within the 1^st year of marriage/civil partnership.

The Court’s online divorce portal will be updated to take into account the changes and to also include dissolution of civil partnerships. The changeover dates have been published. The portal will close on 31 March 2022 and reopen with the new procedure on 6 April 2022. All paper applications by litigants in person have to arrive at the Court by 31 March 2022 to proceed under the current law. The only exception to this is for urgent applications received by post or email before 4pm on 5 April 2022.

This week, Justice Secretary David Gauke pledged new legislation will be introduced where divorcing couples will no longer have to blame one another for their marital breakdown.

This reform follows on from the landmark Tini Owens case in which the Supreme Court ruled Ms Owens failed to demonstrate her relationship had broken down because of her husband’s unreasonable behaviour and could not divorce Mr Owens until five years had passed.

Changes to the outdated divorce laws would establish a minimum six-month timeframe for couples to ‘reflect’ on their decision and remove the ability to contest a divorce.

What are the current grounds for divorce?

Under the Matrimonial Causes Act 1973, spouses are forced to prove their partner is at fault through adultery, desertion or unreasonable behaviour. If both parties agree to the divorce, they must be separated for two years. Where there is no fault or consent to the divorce, applicants are required to wait until they have been living apart for five years.

Ministers are acting to update the 50-year-old divorce laws after a public consultation found the current system works against any prospect of reconciliation, in addition to having a damaging effect on children by undermining the parent’s relationship.

Critics also believe that the fault-based system forces parties to accuse each other of bad behaviour if they do not want to wait years before obtaining a divorce.

The Justice Secretary stated:

“Hostility and conflict between parents leave their mark on children and can damage their life chances.

“While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples.”

The Ministry of Justice has said the new no-fault divorce laws will be introduced ‘as soon as parliamentary time allows’.

Contact our Divorce and Family Lawyers Guildford, Portsmouth & Southampton

If you are considering getting a divorce in England, you need first-class legal advice and representation from a specialist divorce lawyer. Get in touch with Child Law Partnership solicitors today via the online enquiry form.

The Marriage Foundation recently commissioned new data from the Office for National Statistics (ONS) to discover the number of divorces in England and Wales, the duration of the marriages, and whether the divorce was granted to the husband or wife.

In 2017, there were 55,689 fewer divorces granted to wives compared with the peak year of 1993; a 47 per cent drop from 118,401 to 62,712. According to the recent report from The Marriage Foundation, there was only a 15 per cent fall in divorces granted to husbands (from 46,271 to 38,957) during the same period.

Divorces granted by previous marital status

The ONS data was broken down into three main categories to determine the difference in divorce figures when marital status before marriage was considered:

1. Single
2. Divorced
3. Widowed

Previously Single Marital Status

During 2017, the research revealed 23,329 first-time husbands who filed for divorce were divorcing a woman who had also never been married before. This was a drop of more than 6,000 from 2012 when 29,721 divorces were granted to the husband. Although a higher figure, similar findings were found for previously single women. 37,217 wives were granted a divorce where both parties were in their first marriage in 2017; a fall of over 16,000 in just five years (53,930 were filed in 2012).

Previously Divorced Marital Status

3,417 men filed for divorce from a woman who had been married before; a small drop on the 3,767 recorded in 2012. Those previously single women who applied for divorce from a husband who had been married more than once fell 1,612 compared with 2012’s figures (from 7,366 to 5,754).

Previously Widowed Marital Status

The number of men granted a divorce where the woman had been previously widowed fell from 114 to 90 in five years. This compares with 96 that were granted to a first-time wife from their previously widowed husbands in 2017, 30 petitions less than half a decade ago.

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If you are considering getting a divorce, you need specialist legal advice and representation from a qualified family lawyer. Get in touch with Child Law Partnership solicitors today via the online enquiry form.

Between Christmas Eve and New Year’s Day, 455 online divorce applications were lodged in England and Wales. According to the Ministry of Justice (MoJ), 26 people submitted applications on Christmas Eve, 13 on Christmas Day, 23 people filed on Boxing Day and 77 on New Year’s Day.

Amicable, a divorce support service, revealed that online searches for ‘divorce’ are 25% higher in January compared with any other time of the year. Relationship support charity, Relate, also report a 13% rise in calls and 58% spike in website users in the first month of every year. Experts believe that disputes arising from trying to create the perfect Christmas in addition to financial troubles over the festive break are the main reasons why married couples decide to split at this time of the year.

Simone Bose, a Relate counsellor, explained:

“No one’s saying that Christmas itself leads to divorce and separation, but if you’re already experiencing issues then added ‘festive pressures’ such as financial woes and family rows can push things from bad to breaking point.”

Digital Divorces

From April 2018, couples have had the opportunity to complete the divorce application process using the internet. Since the platform was opened, more than 23,000 online divorce applications have been made.

The introduction of the online divorce petition service is part of a £1 billion plan to modernise the current justice system. The MoJ reported that the newly digitised system for applying for divorce has cut application form errors from 40% to less than 1%. On average, the time taken to complete a divorce application has also reduced by more than half an hour.

Grounds for divorce

In order to apply for a divorce in England and Wales, you must have been married for at least a year and able to prove your marriage has broken down due to one of the following:

• Adultery
• Unreasonable behaviour
• Desertion
• You have lived apart for more than two years and both parties agree to the divorce
• If your spouse does not agree to the separation, you must have lived apart from your partner for at least five years

Contact our Family Lawyers Basingstoke, Salisbury & Portsmouth

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The Law Society has issued guidance for its members on the effect of a no-deal Brexit on family law. The future is unclear, and the UK faces a loss of protection for some vulnerable parties, including the victims of domestic violence.

The president of the Society, Christina Blacklaws, told the Law Gazette last month that “there is little doubt that resolving disputes will become much more complex and much more costly.”

On the subject of divorce, the Law Society predicts that after a no-deal Brexit, unless the states involved in a multi-national case are members of the Hague Convention on divorce, there could be conflicts of jurisdiction and parallel proceedings, which would be more expensive for the parties involved.

Currently, if you are the victim of domestic violence or harassment, and a national court has issued a civil law protection order in your favour, this will be recognised and enforced anywhere in the EU. The UK plans to repeal the Regulation which controls this, and it is unclear what the government intends to do to ensure UK judgments are respected in other EU states post-Brexit.

It is possible that the UK could negotiate deals with individual EU states on family law matters, but this will require the authorisation of the European Commission. The UK has also disclosed that it intends to negotiate a treaty with the EU on issues relating to civil justice and cooperation in family law, which the Law Society has stated it would encourage.

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Evidence from the National Centre for Domestic Violence (NCDV) suggests that reports of domestic violence increased sharply during the 2018 World Cup tournament, despite England’s success. The charity received 2,619 reports of domestic violence between the 1^st and 10^th July this year – an increase of 500 when compared with a similar 10-day period before the competition began.

The divorce rate among opposite-sex couples in England and Wales is at its lowest since 1973, according to new research from the ONS. Only 8.4 per 1,000 married couples got a divorce in 2017, a decrease of 5.6% compared with 2016.

The ONS publication, which was released yesterday, looks at a number of factors which can influence the divorce rate, such as:

• age of divorce
• duration of marriage
• opposite-sex v same-sex divorce rate
• reason for divorce

Average age of divorce in England & Wales

In 2017, the highest divorce rate for opposite-sex couples was among men between the ages of 45 and 49 (average age of 46.4), and women aged 40 to 44 (averaged at 43.9). Following a pattern that has remained unchanged since 2014, women are still more likely to divorce before the age of 45 while men divorce more than women at an older age. The report states that age is closely linked with the risk of divorce, believing that those who marry in their teens and early twenties are at a much higher chance of entering into divorce at a later stage in life. Against 2016’s statistics, the divorce rate in 2017 has fallen across every age group for both men and women except those aged 60 and over (a figure which has remained the same at 1.6 per 1,000 couples).

Duration of marriage

The mid-point of all durations of marriage in England and Wales in 2017 has increased slightly from 12.0 years in 2016, to 12.2 years. This figure has matched that of the historical high 12.2 years in 1972 according to the statistics.

Same-sex couple divorce rate rises

Despite the fall in opposite-sex divorces, 2017 saw a spike in divorces among same-sex couples. It was reported that there were 338 same-sex divorces in England and Wales – three times more than in 2016 (112 divorces), with 74% of those divorces happening among female couples. Following the same pattern of opposite-sex couples, (in which women divorce younger than men and vice versa), the average age at which a same-sex couple divorced in 2017 was 38.3 years old for women, and 42.0 years for men.

Reason for divorce in England & Wales

With 62% of all divorces being petitioned by the wife in opposite-sex couples in 2017, 52% of these were on the grounds of ‘unreasonable behaviour’. This has been the most common ground in which wives have petitioned a divorce since the 70’s. It has also been the most consistent reason for husbands since 2006, with 37% claiming unreasonable behaviour in 2017. The ground of unreasonable behaviour for divorce was even higher among same-sex couples: 83% among women stated unreasonable behaviour while 73% of divorces among men were petitioned on this ground.

The study also noted that the fall in divorce rates could be influenced by behavioural and attitude changes towards marriage, with many couples now choosing to cohabit rather than enter into marriage. This was seen previously – between 2003 and 2009 – when the decline in divorces was consistent with the decrease in marriages.

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Supreme court judges ‘reluctantly’ upheld a previous family court ruling that Tini Owens, 69, was unable to divorce husband of 40 years, Hugh, who refuses to split. This particular case has highlighted the need to reform family law in the UK and introduce a ‘no-fault’ divorce.

The Divorce Process

Current law in England and Wales states that unless there is evidence of adultery, unreasonable behaviour or desertion, then a divorce will only be granted after spouses have either:

• lived apart for five years, or
• lived apart for two years if both parties consent to the divorce.

Upholding the previous ruling, Supreme Court Judge Lord Wilson said:

“The appeal of Mrs Owens must be dismissed. She must remain married to Mr Owens for the time being.” He noted that Mrs Owens would be eligible for divorce but not until 2020 – when five years had passed since the couple separated.

Lord Wilson added that “Parliament may wish to consider whether to replace a law which denies Mrs Owens any present entitlement to a divorce in the above circumstances.”

Nigel Shepherd, former chair of Resolution – an organisation who intervened on Mrs Owen’s behalf – echoed the judges’ sentiment:

“Whilst the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it.

“In this day and age, it is outrageous that Mrs Owens – or anybody – is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to an end in all but name.”

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Services providing support for survivors of domestic abuse have received a boost with the news that the Government is to make around £19 million of new funding available.

Councils working in partnership with charities and other organisations will be able to bid for a share of funding to support survivors of domestic abuse.

This will be available for a wide range of services to help survivors rebuild their lives; including the provision of refuge beds, education, and employment and life skills training.

This funding builds on £20 million allocated in 2016 to 2018 which has helped provide more than 2,200 new bed spaces in refuges and other specialist accommodation, supporting more than 19,000 survivors with a safe space to rebuild their lives.

The Government has also published updated guidelines for councils, created in partnership with experts, to help ensure their response to domestic abuse is as collaborative, robust and effective as it can be, meeting the needs of diverse communities including BAME, disabled and LGBT victims.

“The release of the next round of funding for refuges and other accommodation for women escaping domestic abuse is desperately needed, and much welcomed,” commented Katie Ghose, Chief Executive of Women’s Aid. “Our national network of refuges not only save lives but transform them, helping women and their children to rebuild their lives.”

“Together we need to ensure that there is a sustainable, long-term funding solution for all domestic abuse services, including lifesaving refuges,” she added. “Only then can we guarantee that every survivor and her children can get the support they need to build a life free from domestic abuse.”

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