Breaking new grounds – divorce legislation on the horizon

4th June 2020

Brexit preparations dominated the Houses of Parliament in the early part of the year, so much so that there was very little room for other business to be conducted.

The onset of the COVID-19 crisis has further disrupted progress through the House of many well-intentioned Bills.

A casualty of this is the Divorce, Dissolution and Separation Bill 2017-19, which has been caught in the legislative logjam.  Reform of the outdated UK divorce laws is on the horizon however, prompted by the case of Owens v Owens [2018] UKSC 41.

In this case, the Central Family court found that although the marriage had irretrievably broken down, a divorce could not be granted because Mrs Owens failed to convince the court her husband had behaved in such a way that it was unreasonable to expect her to carry on living with him.

The decision was upheld in the Court of Appeal and the Supreme Court.  It was in the latter that the wording of the decision contained a direct invitation to parliament to ‘consider replacing a law which denies Mrs Owens a divorce in the present circumstances’.

Changes to follow consultation

The government was quick to respond and by September 2018, had launched a consultation paper entitled ‘Reducing Family Conflict: Reform of the Legal Requirements of Divorce’.

The consultation ran for 12 weeks and was designed to create a package of reforms which, according to the paper:

“make divorce law consistent with the non-confrontational approach taken in wider family law and to recognise that a legal process that does not introduce or aggravate conflict will better support adults to take responsibility for their own futures and, most importantly, for their children’s futures”.

On 9th April 2019 the government published its response to the consultation, proposing the following changes to the existing fault-based divorce process:

  • Either spouse will be able to seek a divorce on the grounds of irretrievable breakdown of the marriage without the need to provide evidence or proof
  • The other spouse will not be able to contest any decision to divorce on those grounds, as happened in the aforementioned Owens v Owens case
  • The introduction of a 20 week ‘cooling off’ period between issuing a divorce petition and receiving the decree nisi. The decree nisi will also be renamed a ‘conditional order’ and the decree absolute a ‘final order’.
  • Allowing spouses to make a joint application for divorce

Divorce will never be too easy

Although the introduction of a ‘no-fault’ divorce process was criticised by some as making divorce too ‘easy’, the majority of those with experience in the field welcomed the changes.  The consensus was that the changes would remove from the process much of the conflict and rancour that can develop.

Everything is currently on hold and may or may not be up for discussion again when the current political, social and economic gridlock is lifted.  With that in mind, it is worth recapping the current divorce laws, particularly as some commentators have predicted that current lockdown is likely to lead to a spike in applications for divorce once lifted.  If this transpires then divorces will be granted (or not) according to the current laws.

When both parties agree, they might try to undertake their divorce without the advice of legal expertise in the hope of a ‘quickie divorce’, but no such thing exists.

In fact, given the long term ramifications of a divorce on the lives of both parties and any children, approaching the matter with anything less than the best possible advice is extremely risky and short-sighted.

Currently the party seeking a divorce has to give grounds for divorce that the court will accept, which could be any of the following:

  • Unreasonable behaviour
  • Adultery
  • Desertion
  • A two year separation (provided both parties agree to the divorce taking place)
  • A five year separation (if one partner does not agree to the divorce)

The first three will require evidence the chosen grounds are actually grounded in reality, while both of the last two present a long wait before the parties can get on with the rest of their lives.

Although the administrative aspects of seeking a divorce – filling in a D8 petition form and waiting for the decree nisi and decree absolute – are fairly simple, complications arise when one party contests the divorce, often by denying that their behaviour could be construed as ‘unreasonable’.

The very act of forcing one party to pick a specific ‘fault’ in the other party is what often leads to divorces in the UK becoming confrontational in manner.  The hope with the proposed legislative changes is that this is reduced so far as possible.

For now however, there is no change in the rules that unhappily married people will have to work with.  Experienced advice is critical from the outset and at every stage of the proceedings.

The Family team at Ansons are on hand to offer such advice, and to discuss any aspect of your divorce. Please speak to Mike Vale, on 01543 267236 or email

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