The Ministry of Justice is due to explain how it intends to reform the legal requirements relating to divorce following the publication of the Nuffield Foundation’s Reforming the Ground for Divorce: Experiences from Other Jurisdictions report.
What did the report find?
The report states that England and Wales have more mandatory steps that need to be followed than anywhere else. This means that the process is far too complicated for most litigants in person and can cause them unnecessary conflict and disadvantages.
The Report states that in most other jurisdictions, the process is much more straightforward with only one or two mandatory steps resulting in a divorce. The use of interim decrees is something that is mainly limited to England and Wales and causes confusion since litigants in person often do not realise that they have to then apply for a final decree. The study highlights that the fact an applicant has to state that they wish to get divorced on more than one occasion is confusing. The three-step process in England and Wales can be compared to the two-step process in Finland and Sweden (application and a request to reopen proceedings if a “reconsideration period” is deemed necessary), or the one-step approach in New Zealand and Australia where the decree is final after a month.
Recommendations for reform
The report, which was published this month, recommends reducing the number of mandatory steps from three to two, which would not only reduce the burden on the courts but also assist litigants going through the process. The report argues that by keeping the process at two-stages rather than just one stage (such as in New Zealand and Australia), the process is still supporting marriage and requiring the parties to take active consideration and consent. The report, however, does recognise that some may be concerned about dropping from a three-stage process since the decision to divorce may be taken more easily if the need to assert fault is removed.
The foundation has been funding research into divorce to update the evidence surrounding the current fault-based system of divorce that was reported on by the Law Commission in the 1990s, which set out six problems with fault-based divorce. Lord Chancellor, David Gauke, has stated that as part of the wider reform of divorce he would like to remove the need to allege fault since it is an "archaic requirement".
The report suggests removing fault entirely from divorce law and replacing it with a process of giving notice of irretrievable breakdown, and the intention is confirmed by one or both parties after at least six months has passed. The consultation period closed in December 2018, and a spokesperson has stated that there should be a response soon.
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