Justice Secretary’s Decision to Review Divorce Laws Welcomed

In a continuation of a piece written in early January on the Redknapp divorce Aaron Keene, Partner in the Family department at Wilkes examines how it appears the courts are finally beginning to listen to calls for a change in the law.

The Lord Chancellor and Secretary of State for Justice, Mr David Gauke MP, a former solicitor, has agreed to examine the case for reforming the divorce laws and the present need, in many cases, to rely upon fault based divorce, i.e. adultery or unreasonable behaviour, if the parties have not been separated for 2 years.

In cases which are undefended at the present time the Court do not undertake a detailed enquiry into the reason for the breakdown, save that one party has satisfied one of the facts pleaded under the Matrimonial Causes Act 1973, simply accepting a statement by the Petitioner, but if the other party defends the proceedings the Court have to reach a decision based upon both parties’ evidence.

At present, if you wish to petition a Court for divorce, you have to prove the irretrievable breakdown of your marriage by showing one of five facts. These include adultery, unreasonable behaviour and desertion for 2 years as well as separation for 2 years, with the other party’s consent, and separation for 5 years.

The Family Law Act 1996 provided at that time new proposals to move towards a no-fault divorce process based upon people attending an information meeting and then having a period of reflection and consideration of whether the marriage could be saved before proceeding with the divorce, but it was never implemented and has now been repealed. MPs at that time were persuaded to abandon that approach.

It now looks as though the time may be right to reform the present divorce laws, presently enshrined in the Matrimonial Causes Act 1973.

It also remains to be seen whether the divorce process itself will be looked at. Figures released by the Ministry of Justice for the third quarter of 2016 from July to September 2016, showed that there were 27,546 petitions filed for divorce during that period and it took 47.3 weeks on average for the petition to reach Decree Absolute, although 23.8 weeks to reach the Decree Nisi stage.

There is often a delay between Decree Nisi and Decree Absolute while parties obtain an order in respect of their finances before making the divorce final by way of the Decree Absolute.

Aaron Keene considers this move as being long overdue and states that it should lead to more amicable separations by divorcing spouses. Should suitable amendments be passed it would allow people to concentrate on the important issues in respect of the arrangements for their children and financial matters arising from the divorce, rather than concentrating on the reasons why the marriage may have broken down.