Today, the long-awaited Divorce, Dissolution and Separation Act 2020 has finally come into force, and in this article, we look at what this will mean for divorce applications going forward.
As the Divorce, Dissolution and Separation 2020 Act amends the Matrimonial Act 1973, it is impossible to understand the current legislation without referring to the 1973 Act.
Previous Law
The Matrimonial Causes Act 1973 came about after much public consultation and involvement of the Law Commission, it introduced only one basis of Divorce - which was that it has irretrievably broken down, and could only be proven in one of five ways. These were a mixture of fault and non-fault:
- Adultery;
- Unreasonable behaviour;
- Desertion for at least 2 years;
- 2 years separation with consent;
- 5 years separation without consent.
At the time of being introduced, it was widely considered that the 2 years separation with consent, would be the most used ground, as it allowed for financial relief to be sought before the divorce was finalised. However, over time the better approach was seen to be for decree nisi to be granted as soon as possible and decree absolute to be granted when concluding any financial proceedings, and that is the most common approach in use, before the introduction of the new Act.
To do this, applicants had to use grounds that were available immediately, which were unreasonable behaviour and adultery. Both are fault-based grounds meaning someone must take the blame for the breakdown of the marriage.
Requiring one party to take the blame for a breakdown of the marriage has often lead to significant hostility between the parties which may have had a knock-on effect on any possibility of a compromise regarding the couple’s finances or child arrangements. More importantly, where there are children of the marriage, any increase in hostility will no doubt have had a direct impact on them.
The Reform
The Matrimonial Causes Act is over 50 years old and reform has long been needed. The Law Society has been a long time supporter of divorce reform, from as early as 1996, and even lobbied for change in March 2017 during the case of Owens v Owens [2018] UKSC 41; [2018] AC 899. The idea of a no-fault divorce is not new, and the UK has not spearheaded the reform into inception. In Scotland, for example, a couple can go through a no-fault divorce after one year of separation and over 9 out of 10 divorces are granted on that basis.
It took the case of Owens v Owens [2018] UKSC 41, to accelerate the reform. In that case, Mrs Owens petitioned in May 2015 for a divorce and her petition was like most other applications whose cited ground is unreasonable behaviour: Mrs Owens said that the marriage was such that she said she could not reasonably be expected to live with her husband anymore. Mr Owens contested this ground, and the matter went to Court, where the first instance judge ruled that Mrs Owens had exaggerated the context and seriousness of the allegations and that Mr Owens' behaviour was the kind to be expected in a marriage. The Court found no behaviour that Mrs Owens could not reasonably be expected to live with, and therefore, the marriage could not be said to have irretrievably broken down. Mrs Owens’ petition was dismissed.
Mrs Owens appealed this decision; however, the Court of Appeal was satisfied that the judge at first instance had correctly applied the law and Mrs Owens’ appeal was dismissed.
Mrs Owens then appealed to the Supreme Court who issued its decision in July 2018, some 3 years after her petition. The Supreme Court said ‘reluctantly’ that Mrs Owens isn’t entitled to a divorce.
After this ruling, there was significant traction for reform, including from Baroness Hale, and in June 2020 ministers announced the Divorce Dissolution and Separation Act 2020.
The New Law
With the introduction of the new Act, comes significant changes, the first and most noticeable is the terminology:
- ‘Divorce petition’ will be changed to ‘an application for divorce order’
- ‘Decree Nisi’ will be changed to a ‘Conditional Order of divorce’
- ‘Decree Absolute’ will be changed to ‘Final Order of divorce’
- ‘Petitioner’ will be become the ‘Applicant’
There is also the introduction of a new minimum overall timeframe of 26 weeks made up of a ‘minimum period’ of 20 weeks in divorce and dissolution proceedings between the start of proceedings (when the court issues the application) and when the applicant(s) may apply for a conditional order and the current minimum timeframe of 6 weeks between the conditional order and when the order can be made final. This ensures that there is a period of reflection so that the couple may consider reconciling, or where divorce is inevitable, provides a greater opportunity for couples to agree on practical arrangements for the future.
Notably, the 6 months period runs from the date that the papers are filed at the court, not from when they are served on the respondent. This may be a hugely controversial issue in that the respondent may have less than a month’s notice of the divorce, and so 20 weeks after the filing of the papers at the Court, the applicant can apply for the first decree of divorce, previously known as the decree nisi but now known as the conditional order. Six weeks after the conditional order, the applicant can apply for the final decree of divorce, previously known as the decree absolute and now known as the final divorce order. Whilst this will be beneficial for cases involving victims of domestic abuse, this will be highly regrettable and unfair on respondents in cases where there is no domestic abuse. Not only will they no longer have an opportunity to oppose the divorce, but they will also have limited time and opportunity to persuade the other spouse not to proceed. It’s difficult to think of a more hostile environment than one spouse issuing a divorce petition, not informing their partner, continuing marital life, and not giving any indication to the other spouse that they had already issued a divorce and then finding out that they will be divorced within a matter of weeks.
A very welcome, and long overdue, change from the reform is that service by email has been added under rule 6.7A and so email service it’s no longer a substitute service but a primary form of service.
Another positive element of the reform is that it recognises that some couples want to apply jointly for a divorce and the new Act provides for joint applications, in that both parties can apply together to the court for the divorce. Moreover, whether the application is a sole or joint application, either or both can apply for the conditional order, and equally, either or both can apply for the final divorce order.
The New Technology
One of the most important practical changes that the new Act brings, is the introduction of a new online platform.
Sole applications can be made online through the digital service or on paper using the D8 form, but where the applicant is represented, the digital service must be used to make the application. The only exception is where the same solicitor is acting for both applicants in a joint application, in this instance, the paper form D8 must be used to make the application.
When applications are submitted on paper, the documents are scanned into the electronic court system, where they will be uploaded onto the digital case management system and will be dealt with by the Courts and Tribunal’s Service Centre. This also applies to applications for judicial separation and separation orders and nullity proceedings.
Applicants will need to supply documents to support their applications, for example, a marriage certificate, and these can be uploaded online during the application process, however, the guidance also provides for these documents to be submitted by post or email, if technical issues are experienced.
To use the new digital platform, the user will first need to create an account or sign in to begin. After the application is issued, all parties to the case will be provided with a reference number and access code to sign into the digital service (this is the case for both sole and joint applicants, and respondents). Parties will need to agree to receive emails to use the digital service and those with access to the digital service will be able to see the documents and orders uploaded in their case, which should streamline the process.
As with the previous system, parties are able to keep their contact details private from their spouse or civil partner should there be a need to do so.
Outlook
Whilst the reform will be a huge step forward for couples seeking to divorce, it is unlikely to provide a complete solution for divorcing couples until there is also reform for the financial proceedings as most divorce petitions are undefended.
This reform will hopefully give a practical solution to a system that was outdated and allow greater scope for parties to settle on all other aspects of family life and to move forward in a more positive way.
MARTIN DAVIS AND RACHANDA SHAFEI © 2022
BARRISTERS
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.