A relationship breakdown during lockdown – do we still fulfil the criteria for divorce?

12th June 2020 Family Law

As we enter, dare I say it, week 12 of lockdown, the country has been forced to adapt to a new norm. The way we work, shop and socialise has faced major reform over the last three months.

There is no telling yet as to the impact this global pandemic will have on the economy of both the UK and the world and we will continue to face more adaptations to our lives as we begin the slow emergence to the outside world.

One reform which is currently gathering momentum is the law on divorce. Now that we are compelled to spend more time than ever with our significant others, could this be a blessing for those struggling during this time, or does it provide too easy an option to get out?

The Divorce, Separation and Dissolution Bill faced its second reading in the House of Commons at the beginning of this week with a vote of 231 in favour to 16 against. The Bill, which has been long supported and awaited by the vast majority of family practitioners, aims to remove the need for one spouse to blame the other in order to obtain what some refer to as a “quickie divorce”.

The current law in England and Wales which governs divorce is the Matrimonial Causes Act 1973, an Act which is approaching its 50th anniversary and is considered by many commentators to be out of sync with modern day relationships.

Under this Act, there is one ground for divorce, being that the marriage has “irretrievably broken down” which must be supported by one of five facts;

1. Behaviour;
2. Adultery;
3. Separation for two years with consent;
4. Separation for five years;
5. Desertion.

If it is the case that the respondent to the divorce proceedings does not want a divorce, the petitioner has two options: either wait an agonising 5 years or attribute blame to the other person.

Whilst it can often be the case that there is sufficient detail to support one of the fault based facts, and often a petitioner may want to blame the other for the breakdown of the relationship due to the hurt they feel they have been caused, the pointing of fingers can only exacerbate an already distressing time, especially for couples who still have to parent their children following their divorce.

There are also those cases, where allegations of adultery or behaviour are denied, which can leave a person trapped in a marriage for 5 years. Such was the case for Mrs Owens [Owens v Owens 2018 UKSC 41] who has spent the last five years trying to persuade the court that she should be allowed to divorce her husband, who had taken the unusual step of defending her divorce petition.

The proposed amendments will remove the requirement for establishing a fact to support the irretrievable breakdown of the marriage, which will remain the only ground for divorce.
Instead, parties can choose to make an individual or joint Divorce Application (replacing the previously termed Divorce Petition). The Applicant(s) will be required to provide a statement confirming that the marriage has irretrievably broken down.

The court will thereafter grant a Conditional Divorce Order (currently the Decree Nisi). However this will not be granted until a period of at least 20 weeks has passed and an application is made confirming that the Applicant(s) wish for the divorce to proceed. Once the Conditional order has been made, the Final Divorce Order (currently the Decree Absolute) can be granted 6 weeks after, in line with the time frames under the current law.

This 26 week period is intended to allow the Applicant(s) to reflect upon the decision to divorce and is similar to recent amendments made to the law on divorce in China, where couples will be required to wait 30 days after submission of their application to fully consider their desire to divorce.

Some see the amendments as making divorce too easy and abolishing the importance of marriage vows.  However, it is already the position under the current fault based regime that it is possible for a divorce to be finalised within a matter of months, with the only imposed time frame for reflection being the 6 weeks between Decree Nisi and Absolute. The reforms will extend the period for reflection to 6 months in total.

It is expected that the new Act could be passed at some point this year and there are concerns that there will thereafter be a spike in divorces. I suspect that as we start our journey on the slow road to normal life, there will be many knee jerk divorce petitions presented to the family courts. However, the reforms will present couples with the opportunity to start to return to their pre-lockdown lives and have the chance to reflect on whether they truly want to proceed with a divorce, or whether they have just fallen victim to the “humans aren’t meant to live together 24/7” syndrome and are able to work through their difficulties on the other side.

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Katie Howard-Wroe is a Solicitor located in Manchesterin our Family department

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