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New law designed to encourage first major reforms to divorce in 50 years published

New law designed to encourage first major reforms to divorce in 50 years published

Draft legislation designed to encourage the Government to make the first major changes to divorce legislation for nearly 50 years has been published.

The Private Member’s Bill follows research by experts which shows current divorce laws are causing needlessly painful and destructive breakups and exacerbating conflict between couples.

The Bill requires the Government to review the current law on divorce and civil partnership dissolution and to consider a proposal for a system of no-fault divorce. It is expected to have cross-party support.

The Bill, to be introduced to the House of Lords by the former top family judge Baroness Butler-Sloss, is a result of work by legal and relationship experts, politicians and family lawyers, following new research by Professor Liz Trinder from the University of Exeter Law School, published by the Nuffield Foundation.

Parliament last looked at divorce law in the mid-1990s after concerns that the law was unfair, confused and caused unnecessary bitterness and hostility. Parliament passed the Family Law Act 1996 which would have introduced a no-fault divorce law, but the statute was never implemented due to an overly-complicated process. The problems with the divorce law were not addressed.

Baroness Butler-Sloss said: “The present law on divorce is not fit for purpose. Research by the University of Exeter, funded by the Nuffield Foundation, has illuminated its deeply unsatisfactory state. Most judges do not apply the law as set out in the 1973 legislation; in order to get a quick divorce petitioners have to make allegations of unreasonable behaviour by the other spouse which can be very wounding for the respondent; but much more important these allegations are extremely upsetting for the children. This modest bill asks the Lord Chancellor to review the divorce law and the schedule to the bill sets out the suggestions for no-fault divorce.”

Professor Trinder’s recent Finding Fault research found that the problems created by an outdated law have continued, even getting worse. The law is unclear, unfair, expensive to operate and, above all, creates unnecessary conflict that can impact on children.

There is widespread recognition that the existing law needs to be reformed. Calls for a review have come from top judges including successive Presidents of the Family Division and Supreme Court Justices, including Lady Hale, as well as Resolution (representing family lawyers) and the Marriage Foundation.

The proposed legislation is a ‘duty to review’ Bill, which places a duty on government to conduct a review of the law, with a built-in presumption that law reform is required and setting out a scheme that must be considered. The Bill will require the Lord Chancellor to report to Parliament, with a progress report in the first six months of the Bill passing and every six months until the review is complete.  The scheme to be considered by the Lord Chancellor sets out how divorce can be granted through a process of registration and confirmation, after a nine month ‘cooling off’ period, where a marriage or civil partnership has broken down irretrievably.

The Bill requires the Government to consider in its review a scheme where one or both parties could register that their marriage (or civil partnership) has broken down irretrievably. The divorce or civil partnership dissolution would be granted if one or both confirmed the application after a nine-month ‘cooling off’ period.

Professor Trinder said: “Our aim is to encourage the Government to consider change sooner rather than later. There is general agreement that the divorce law is a mess, and has been so for many years. It is really easy to get a divorce in a few months by blaming the other spouse. We think there is a very good case for a law where divorce is granted automatically after a nine-month cooling off period, if one or both parties confirm that they still think the marriage has broken down irretrievably. That would avoid the mud-slinging that the law currently encourages and that helps nobody, not least the children”.

The Nuffield Foundation has funded Professor Trinder’s research, including her work with Baroness Butler-Sloss on the Private Members’ Bill. Tim Gardam, Chief Executive of the Nuffield Foundation said:

“Professor Trinder’s research has shown that divorce law is increasing conflict and suffering for separating couples and their children, and is at odds with wider reforms in the family justice system that focus on reducing conflict and promoting resolution. This evidence suggests that reforming the law would improve the lives of many of the 100,000 families each year affected by divorce, something that Parliament has previously agreed in principle 20 years ago.”

Nigel Shepherd, immediate past Chair of Resolution and long-time campaigner for no-fault divorce, said: "Every day Resolution members up and down the country experience the reality of relationship breakdown through our clients. We know only too well that basing a divorce on fault does nothing to help resolve family problems constructively. In a recent survey 90 per cent of our members said that the current divorce laws make it harder to reduce conflict and confrontation. This is why we welcome and fully support Baroness Butler-Sloss's private member's bill, which we hope will highlight the widespread support for divorce law reform and lead to the change that is long overdue.

“We need a better way for separating couples to move forward with their lives. We need to end the blame game and we need to end it now."

Date: 20 July 2018

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