Jarndyce v Jarndyce and the Divorce, Dissolution and Separation Act 2020: bringing family law into the twenty-first century

Posted: 03/12/2021

The case of Jarndyce v Jarndyce is often referred to as being synonymous with the miserably slow pace at which the English legal system administers justice. It is so often quoted that one could be forgiven for thinking that the case is an actual, albeit historic, judgment, as opposed to a creation by Dickens. The takeaway point, however, is clear – the fallout from the fictional Chancery and generational matter of Jarndyce and Jarndyce destroyed the happiness and lives of most of the members of the family, who had become involved in pursuing their claims with obsessive vigour. To this day I doubt it has been resolved!

To what extent does the progress of family law even remotely mirror the plight of the Jarndyce family?  Too closely perhaps, given that the only statute to be invoked in the dissolution of a marriage and settlement of financial matters is five decades old. Perhaps we should celebrate the passing of the Matrimonial Causes Act 1857, which transferred the jurisdiction of the ecclesiastical courts, in respect of nullity of marriage, to the newly created Court for Divorce and Matrimonial Causes. It took 164 years, through various later incarnations of the statute, for Parliament to provide for the Matrimonial Causes Act 1973, our current law.

Family lawyers have campaigned for years for amendments to be made to the 1973 Act, such that it would more appropriately meet the needs of society in the twenty-first century. At last, the battle was won and the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) was granted Royal Assent on 25 June 2020, and will come into force on 6 April 2022. 

The new act brings about a radical change to the ability to obtain a divorce. We will finally leave in the dusty past the notion of ‘who did what to whom’ and ‘he said, she said’.  Married couples will be able to bring their relationship to an end on civilized terms. They will be empowered with the opportunity to legally unravel their lives together with respect and a recognition that, sometimes, relationships simply do not last. It is not always someone’s fault and it is not reasonable, in those cases, to expect the couple to wait the statutory two years to mutually dissolve the marriage. Today’s family court service has finally recognised the fact that the professionals assisting a couple to dissolve a marriage need to have the tools so that the parties retain human dignity.

I won’t be alone in acknowledging the pain and suffering the existing legislation has wrought on families – in particular, the requirement, in all but two of the divorcing options, to blame the other person. It is a blame that, in the case of a petition brought detailing their spouse’s behaviour, is both painful and damaging. Family lawyers became used to drafting anodyne behavioural petitions where the couple wanted to divorce immediately but could only meet the requirement to establish behaviour that was deemed unreasonable. At least, the practice was widespread, until the findings of Owen v Owen. This drove a nail into the coffin of the behaviour petition that was drafted in moderate terms. 

As we celebrate the passing of the new law, let us consider the reality of the changes. The requirement of the 1973 Act to prove ‘irretrievable breakdown’ by citing either three fault-based options, or one of the two lengthy periods of separation (2 years or 5 years), will be removed. In its place, the statutory wagging finger of blame will become immobile and a simple written statement, by one of the parties or as a joint expression, will declare the marriage to be over. The reason given will still be ‘irretrievable breakdown’ but no more painful facts of the breakdown will be required. A minimum period of twenty weeks must elapse between the start of the proceedings and the court confirming a Conditional Divorce Order (previously known as a decree nisi). The Final Divorce Order (replacing the decree absolute) can be applied for six weeks later.

The painful decision for any couple to end a marriage will remain but, from April next year, at least the process of implementing that decision will be a process that is no longer charged with negative emotion and did little but perpetuate any animosity.

Interestingly, the law in Singapore has too had a makeover, and one of their proposed amendments is very similar in requirements to our own DDSA 2020. The Women's Charter (Amendment) Bill was introduced in the Singapore Parliament on 1 November 2021. It is likely to be passed in early 2022. The Women’s Charter is the legislative framework which governs marriages and matrimonial proceedings.

The bill seeks to amend the Women’s Charter to:

• simplify and update the provisions relating to the solemnisation and registration of marriages;
• restate and rationalise the rights and duties of husbands and wives;
• provide that the parties to a marriage may agree that the marriage has irretrievably broken down;
• enhance the court’s enforcement powers in relation to custody and child access orders;
• introduce programmes for children in matrimonial proceedings; and
• expand the classes of persons that may be advised by the court to attend family support programmes.

One of the key amendments introduced by the bill relates to new s95A(1)(f) and (6), which enables parties to a marriage to agree that their marriage has irretrievably broken down for the purposes of the Women’s Charter, in particular for the purposes of divorce and judicial separation. This will become the sixth fact, in addition to the existing facts of adultery, unreasonable behaviour, desertion, and separation (three years with consent, and four years without consent). It is proposed that the mutual agreement filed in support of the sixth fact must state:

• the parties’ reasons for concluding that their marriage has irretrievably broken down;
• the efforts they have made to reconcile; and
• the consideration they have given to the arrangements to be made in relation to their financial affairs and any children of the marriage.

Further, the court must consider these matters in deciding whether to exercise its powers to permit the parties a chance at reconciliation, or to advise the parties to attend a family support programme. The court must not accept an agreement that a marriage has irretrievably broken down if it considers that there remains a reasonable possibility that the parties might reconcile. The purpose for introducing a sixth fact for divorce is to reduce acrimony in the divorce process.

Some commentators would like more to be done, in both jurisdictions, to ease the passage of a broken relationship. However, for now, we applaud the changes!

This article has been co-written with Shu Mei Hoon of Drew & Napier (ShuMei.Hoon@drewnapier.com)

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