Whilst the first December election since in almost a century might mean that the UK leaves the EU by the latest deadline of the end of January 2020, it also means that parliament has been dissolved, closing the latest parliamentary session. The impact of this is that any Bills passing through parliament which have not become law will not make it on to the statue book. They can be reintroduced in the new parliamentary session but there is no obligation on the new government or parliament to do so.
The Divorce, Dissolution and Separation Bill, which sought to introduce no-fault divorce, is one such Bill which, despite having been approved by the Houses of Commons and Lords in principle, did not become law before parliament was dissolved on 6 November.
What is the Divorce, Dissolution and Separation Bill?
Under the Matrimonial Causes Act 1973, in order for a petition for divorce to be successful, the petitioner must show that the marriage has irretrievably broken down. This is done by proving one of five facts:
a. That the respondent has behaved unreasonably;
b. That the respondent has committed adultery;
c. That the respondent has deserted the petitioner;
d. That the parties have been separated for at least 2 years and both agree that the marriage is over; or
e. The parties have been separated for at least 5 years.
As such, unless the parties have been separated for at least 5 years, either the petitioner must show that the respondent is at fault (i.e. by proving unreasonable behaviour, adultery or desertion) or the respondent must consent to the divorce following a separation of at least 2 years.
A no-fault divorce system would mean that the petitioner is not required to prove that the respondent has behaved inappropriately in order to proceed with the divorce. The respondent would be unable to defend the divorce petition as they can currently. Under a no-fault divorce the petitioner does not need to make allegations of inappropriateness against the respondent, which is seen by many as being unnecessarily antagonistic.
Whilst there has been significant support for no-fault divorce for a number of years, it gained significant public attention following the case of Tini Owens. Mrs Owens began divorce proceedings in 2015 on the basis of her husband’s unreasonable behaviour. Mr Owens successfully defended his wife’s divorce petition on the basis that the behaviour complained of was not sufficiently serious. The case went all the way to the Supreme Court who reluctantly agreed that under the current legislation, Mrs Owens’ petition must be dismissed. Lady Hale said she found the case very troubling but it is not the role of the court to change the law – it is for parliament to legislate if we are to have a no-fault divorce system. As such, Mrs Owens must in all likelihood wait until 2020 until she has been separated for 5 years from her husband before proceeding.
The Divorce, Dissolution and Separation Bill, had it become law, would have provided that the petitioner must only confirm that the marriage had irretrievably broken down. This could not be challenged by the respondent. Therefore, no fault need be alleged.
Will a no-fault divorce bill be introduced in the new parliamentary session?
As the previous parliament has now been dissolved, a new no-fault divorce Bill would need to be introduced in order for the law to be changed. Any new government is under no obligation to introduce such a Bill. However, there does seem largely to be cross party support for a change in the law to a no-fault divorce system. Both Labour and the Liberal Democrats have committed to introducing it in their manifestos. It is absent from the Conservative manifesto. However, it did feature in Boris Johnson’s Queen’s Speech after his failed attempt to prorogue parliament. It therefore seems likely that a no-fault divorce Bill will be introduced in the next parliamentary session. As to whether it becomes law, we will have to wait and see.
Update 08/01/20
The Government has introduced the Divorce, Dissolution and Separation Bill which introduces no fault divorce.
The legislation also introduces a minimum time period of 20 weeks between the initial divorce petition and the decree nisi to “provide a meaningful period of reflection and the chance to turn back, or where divorce is inevitable, it will better enable couples to cooperate and make arrangements for the future”.