Divorce reform, but no more…

20160419_170156Reform of ground for divorce: when there’s time…

 

The Lord Chancellor has produced a response – a press release promising reform of divorce law – following his consultation on divorce law reform last Autumn.

 

Proposals for changes to the divorce law (and parallel civil partnership law), we are told, will include:

 

  • retaining the irretrievable breakdown of a marriage as the sole ground for divorce
  • the requirement to provide a statement of irretrievable breakdown
  • retaining the two-stage (decree nisi and decree absolute0 process for final dissolution
  • possibility for a joint application for divorce, alongside retaining the option for one party to initiate the process
  • removing the ability to contest a divorce
  • introducing a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute).

 

Detail is awaited, when the full scheme is announced. This will be, we are told, when the legislative timetable permits. First thoughts include:

 

  • You cannot prevent someone ‘contesting a divorce’: if one spouse or civil partnership is entitled to make an assertion to the court (ie irretrievable breakdown) the other must be entitled to disagree: ie a fair trial.
  • We do not know how irretrievable breakdown will be proved (NLJ proposed a new Matrimonial Causes Act 1973 s 1 (irretrievable breakdown) in October 2018.
  • The government has been panicked into divorce reform in the wake of the Owens case (Owens v Owens [2018] UKSC 41, [2018] AC 899, [2018] 2 FLR 1067, which is a real example of poor cases making bad law: had her case been properly pleaded by her lawyers Mrs Owens could have got her divorce (see NLJ August 2018).

 

Marriage and cohabitation breakdown: much more is needed

 

That is not to say that divorce law does not need reform. It does. But so does so much more of family law on relationship breakdown, which reformers overlook in the rush to change the narrow area of divorce. And the Lord Chancellor thinks he is offering a palliative to cover a narrow area in need reform.

 

In the area of relationship breakdown at least the following needs urgently to be reformed:

 

  • Cohabitation law and financial support for ex-cohabitant (ie unmarried) partners
  • Mediation available on a basis supported by statutory funding (which is needed, also, to help children in the bitterness of relationship breakdown: one of the Lord Chancellor’s aims with his divorce legislation)
  • Rewriting of Marriage Act 1949 which seriously discriminates against many couples which are not married in a still Christian-based statutory framework.
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