On 25 March 2020, The Divorce, Dissolution and Separation Bill reached its first reading in the House of Commons. The bill seeks to modernise divorce procedures in England and Wales, and will see significant changes made to divorce laws for the first time in 50 years. Subsequently many welcome changes to what are seen as “archaic divorce laws”.
The proposed changes come after the landmark case of Owens vs Owens. This highlighted the importance of removing the requirement to prove “irretrievable breakdown”. However, leaving no aspect of society untouched, divorce procedures and the progression of the bill into law have also been greatly impacted by COVID-19.
Unfortunately, the progressive bill which has the potential to relieve spouses from abusive marriages, first delayed by the UK general election, may be further delayed due to the virus. Accompanying these delays, self-isolation is predicted to cause a wave of new divorce filings. Meanwhile, divorces currently underway may be subject to delays due to the courts prioritising essential hearings.
Others have been left wondering how the pandemic will affect their financial orders. Equally, some are questioning whether COVID-19 qualifies as a “barder event”. Many questions remain unanswered as the pandemic develops and hundreds of thousands of people wait to hear what will become of their marriage.
As it stands, the UK’s divorce system is fault based. As outlined in the Matrimonial Causes Act 1973, a spouse must prove “irretrievable breakdown” based on one of five facts. Three of these include adultery, desertion and unreasonable behaviour. The remaining two facts are based on how long a married couple must be separated for. If both spouses agree to the divorce, they are required to be separated for a total of two years. This increases to five years if only one spouse agrees to the separation.
The new bill brings with it a range of changes. Now, if a spouse wants to file for divorce, they can do it either individually, or jointly, by simply writing a statement explaining the irretrievable breakdown of the marriage. On top of this, as a safeguard for those within an abusive partnership, a spouse will no longer be able to contest the divorce petition.
The bill also sees the introduction of a twenty-week waiting period between the beginning of proceedings and the decree nisi or ‘conditional order’. This provides spouses the opportunity to reflect on their marriage and potentially see a marriage counsellor. If it is determined that the couple are unable to reconcile, this time may also be used to discuss potential child arrangements.
Additionally, in an effort to modernise the legal proceedings of divorce, and make the legal terminology more accessible, certain legal terms will be phased out. As a result, terms such as “decree nisi”, “decree absolute” and “petitioner” will be changed to “conditional order”, “final order” and “applicant”.
While many see the changes as a step in the right direction, the bill is not without its critics. Peers in the House of Lords have argued that while the bill may speed up divorce proceedings, it will not necessarily have a significant impact on the ‘blame game’.
Baroness Meacher reflected that ‘no-fault’ is not a ‘magic bullet,’ and that it will not simply eradicate ‘parenting issues’ or ‘conflict’. She continued: “The proposed quick process based on no-fault might, others have argued, be counterproductive by shortening the period during which a couple might begin to come to terms with the divorce and to settle.”
Meanwhile, stemming from a more traditionalist approach, Lord Marrow expressed that the proposed bill would potentially increase the number of divorces within the UK. Weighing up the impact of ‘no-fault’ he said: “On the one hand, I completely understand how removing fault will make divorces less acrimonious, which may be a good thing. On the other hand, I completely understand that if marriage is a lifelong commitment, with all its extensive public policy benefits, there must be constraints on the freedom to exit.”
He went on to prescribe that a spouse should only be able to walk away from a “till death do us part’ commitment” if there is a “serious event” causing them to do so. He concluded by raising an issue with the increased accessibility of divorce.
However, 2006 saw Scotland introduce ‘no-fault’ divorce for couples after one year of separation, and it was found that in the long-term, divorce rates were unaffected.
Proponents of the bill argue that increased accessibility and ‘no-fault’ help to avoid a process which encourages both conflict and hostility. Lord Marks of Henley-on-Thames remarked that ‘no-fault’ helps to enhance honesty in divorce cases. He determined that: “Improving our support for marriage, family stability and relationship support are, as the noble Baroness, Lady Wyld, and the noble and right reverend Lord, Lord Harries, argued, the best ways of expressing society’s commitment to marriage.”
Nevertheless, significant delays to the bill are likely to occur as a result of COVID-19. Speaking about the impact of the virus, Anita Scorah, a Partner at legal practice SAS Daniels Solicitors said: “Unfortunately, the current Covid-19 pandemic means that the new Divorce Bill is likely to be delayed by many months, if not years. Therefore, it is really important that people in unhappy marriages familiarise themselves with the current rules”.
Arguably, delays to the bill could not have come at a worse time. According to UK lawyers across the country self-isolation is predicted to drive up divorce rates.
Baroness Fiona Shackleton of Belgravia, a UK Divorce Lawyer, told Parliament: “For some, life in lockdown due to the coronavirus may feel similar to holidays like Christmas—but that’s not necessarily a good thing, as prolonged periods together can prove make or break for a relationship”. Meanwhile, speaking to CNBC Ayesha Vardag, Founder of divorce lawyers Vardags, said that she had expected a lull for the company during the crisis, however her firm had found the opposite, with a significant rise in divorce enquiries.
Many are also concerned about how the virus will impact divorce settlements, parent plans, and financial orders. Speaking to The Guardian, Carolina MarÍn Pedreño, a Family Law Partner at Dawson Cornwell said that many parents had enquired about breaking existing orders: “Some people are very opportunistic, trying to use the circumstances to cancel contact. Others are really, really concerned and they want to know whether their caution is reasonable and whether they will be criticised or penalised for changing their arrangements”. Meanwhile, Chris Longbottom, a Partner at Clarke Willmott, said that 20% of clients were using COVID-19 nefariously through preventing the other parent from accessing their child/children. Cara Nuttall, a Family Lawyer at JMW has stressed that the crisis does not give parents a “carte blanche” to do as they please.
Concerning financial arrangements and whether COVID-19 can be considered a ‘Barder Event,’ the courts have not yet established specific case law relating to the crisis. However, law firms have said that it is likely courts will take into consideration whether an individual has been impacted financially by the crisis. So, if a client applies to reduce spousal maintenance payments, COVID-19 could be considered as ‘material change in circumstances’.
Ultimately, at the heart of this debate lies the need to maintain compassion and empathy. And, considering the uncertainty and stresses of the crisis, the new bill cannot come soon enough.