The end is in sight for divorce law reform

Posted: 12/06/2020

In our report Escaping the Labyrinth we examined divorce law in England and Wales and the state of play around the world (as at 2018). We analysed 42 jurisdictions and highlighted 21 to show the huge variety of approaches to divorce around the globe.

Against the backdrop of the high profile Owens case, current divorce law in England and Wales was found to be overly complex, unnecessarily adversarial and restrictive of personal autonomy as it requires state interference in private decision-making. Our divorce law barometer placed England and Wales very much at the restrictive end of the international scale.

The international analysis highlighted differences in:

timescales for when a divorce is allowed: minimum periods of marriage required before divorce is possible as well as minimum periods of separation to prove that a marriage is over
who can apply: at one person’s instigation or jointly be consent
whether reasons must be given to obtain a divorce: some jurisdictions do not require any reason to be given whereas in others the reasons differ depending on the gender of the person applying
who gets to decide that the marriage should be dissolved: does the state step in to evaluate whether the marriage is at an end or is it a personal decision to be respected without state scrutiny

Since then, a Divorce, Dissolution and Separation Bill has been presented to parliament three times but its passage was thwarted by the prorogation of Parliament in September 2019 and the subsequent General Election in December 2019. The Bill was reintroduced in January 2020 and has since passed through the House of Lords and will now proceed to Committee stage in the House of Commons having passed its Second Reading in the House on 8 June 2020 (231 votes for, 16 against). It has been committed to a Committee of the Whole House and the remaining stages on 17 June 2020.

It is perhaps remarkable that the passage of the Bill has been so smooth to date, given that the reforms it contains have been resisted for decades. However, public opinion in England and Wales shows clear support (73%) for the ‘blame game’ to end according to a YouGov poll published in April 2019.The vast majority of those involved in the family justice system are also very much in favour as Resolution has demonstrated.

Presuming that the Bill makes it onto the rule books, divorce law in England and Wales will certainly be less complicated and enable people going through relationship breakdown to focus on the future rather than examining historic details. They will no longer have to persuade the court that one person is to blame for the relationship breakdown. Instead, they can concentrate their energies on moving forward, whether that is regarding co-parenting whilst living separately from the other parent or disentangling financial and other aspects of their lives.

Divorce reform in a nutshell

Irretrievable breakdown of the marriage will remain as the sole ground for divorce but it will no longer be necessary to provide evidence of the breakdown. This means that there is no need to allege fault against the other party or wait for a period of separation to pass before applying for a divorce.

A statement of irretrievable breakdown cannot be contested: there will be no option to “defend” the divorce as in the past. However it will remain necessary to establish that the court has jurisdiction to entertain the application.

Divorce will take a minimum of 26 weeks from the start to final order. This is broken down into two stages:

20 weeks (minimum) from when the application is made to the first conditional decree confirming that the divorce should be granted, and
a further six week (minimum) period from the conditional decree to final order ending the marriage

Divorce can be applied for jointly as well as by one spouse. As before, an application for divorce can only be made once the parties have been married for a minimum period of one year.

Where will this leave us vis-à-vis other jurisdictions?

But, where will the new divorce law fit amongst other jurisdictions’ divorce laws? We selected various jurisdictions from around the world to see where England and Wales stands internationally:

Philippines	Divorce is not possible at all. In March 2018, the Philippines' lower house of Congress passed a divorce bill on the third reading, and further progress was made in February 2020 when a Committee of the House of Representatives approved the bill. Worldwide, divorce is only illegal in the Philippines and Vatican City.
Singapore	Divorce is only possible after a minimum of three years of marriage (barring the applicant suffering unbearable hardship or exceptionally unreasonable/cruel behaviour). The party applying must prove with evidence that the marriage has broken down irretrievably due to the other person’s fault (adultery/behaviour) or desertion for at least two years. Alternatively divorce is possible if the spouses have lived apart for three (and agree to divorce) or if they have lived separately four years (with no consent). The other spouse can contest the divorce and/or dispute the reasons for the breakdown.
*England & Wales Prior to the new law coming into force*
Scotland	No minimum marriage period. It is possible to obtain a divorce using an administrative simplified process but only if (i) there are no children under 16 and (ii) there are no finances for the court to sort out. Divorce is based on either one year’s separation if both parties agree or two years’ separation if one spouse applies. To divorce before these minimum separation periods, allegations of adultery or unreasonable behaviour must be made.
Chile	Divorce was not possible until 2004. No-fault divorce is possible by agreement between the spouses after they have separated for one year. Otherwise, it is possible for one spouse to divorce the other after separating for three years. If a spouse does not wish to wait for three years and divorce by agreement is not possible, they will have to allege violation of the duties and obligations of marriage/with respect to any children against the other and persuade a court that the violation was serious and recurrent. With this last type of divorce, a minimum time of separation is not required.
Japan	Over 90% of Japanese divorces are obtained by a simple, non-judicial procedure by mutual consent without any fault allegations being made. If one spouse does not agree to the divorce, the other can apply for divorce including by alleging fault (adultery, abandonment in bad faith) or a serious reason which makes it difficult to continue the marriage. This last ground is akin to irrecoverable breakdown of the marriage and can include a wide range of reasons, from violence and abuse to conflict with the spouse’s family and differences in character.
China (PRC)	No-fault divorce was established in 1980. There is no minimum period of marriage before divorce. Lack of mutual affection can be the basis for the irretrievable breakdown of the marriage but fault-based allegations can be made to prove the breakdown as well. In May 2020, the legislature in China passed a law imposing a compulsory 30 day ‘cooling-off’ period before divorce applications will be processed following the lifting of coronavirus lockdowns in an effort to lower the divorce rate.
*England & Wales Post the new law coming into force*
Spain	Divorce is not possible until after three months of marriage (barring exceptional circumstances). There is no need to provide any reason for the divorce.
Netherlands	There is no minimum length of marriage before divorce can be obtained and there is only one ground: irretrievable breakdown which does not need to be proved by making allegations of fault. Even if one spouse disputes the marriage breakdown, the court will generally grant the divorce. This law has been in force since 1971.
California	Dissolution is based on irreconcilable differences. There has been no opportunity to make fault-based allegations since 1970. There is no minimum length of marriage.