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New legislation to end ‘contested divorces’ in England and Wales planned

Thursday, 11 April, 2019

The Ministry of Justice (MoJ) has formally confirmed that married persons in England and Wales will soon be prevented from contesting a divorce petition.

The grounds for divorce under s1(2) of the Matrimonial Causes Act 1973 will also be amended to remove the concepts of conduct or separation (the so-called 'five facts'). Instead, the petitioner will merely have to supply a statement of irretrievable breakdown of the marriage.

The announcement follows a 12-week consultation, conducted between September and December in2018. The MoJ claims that its proposals were supported by a majority of 'family justice professionals and those with direct experience of divorce,' and that 'it is clear from consultation responses that there is support for removing blame from the legal process of divorce'.

However, its published summary of responses to the consultation show that the general public rejected the main proposals by a huge margin. Of the more than 3,000 responses, 80 per cent disagreed with replacing the 'five facts' with a unilateral notification process: the so-called 'no-fault divorce'. About the same proportion also disagreed with removing the right to contest a divorce.

The level of public opposition was dismissed by the MoJ as the result of 'a surge of late responses in the final two weeks of the consultation,' which it says was prompted by anti-reform groups who 'encouraged their supporters to respond to particular questions and make certain points in argument'.

'The strong support earlier in the consultation for replacing the five facts, which was running at 70 per cent of respondents in favour, was overturned at the end of the consultation by the impact of these later responses', said the Ministry's consultation summary.

The reforms are thus going ahead as planned. As well as the two main changes, the abolition of the 'five facts', and the removal of the right to oppose a petition, the reforms will:

  • retain the two-stage legal process, currently referred to as decree nisi and decree absolute, although this 'outdated' language is to be 'modernised';
  • introduce a minimum timeframe of six months from petition stage to final divorce. This will comprise 20 weeks from petition stage to decree nisi, and a further six weeks from decree nisi to decree absolute; and
  • leave the process for the ending of a marriage, through a decree of nullity, unchanged.

The current ban on launching divorce proceedings within a year of marriage will remain in place. Also, legislation to implement the reforms will not affect the current financial provision regime. Meanwhile, the government will 'continue to explore whether existing protections for respondents to a divorce petition should be strengthened'.

Legislation will be introduced as soon as parliamentary time allows, said Secretary of State for Justice David Gauke.