Family and children

Reforming the legal requirements for divorce - Law Society response

The proposals

Government proposes to:

  • remove the requirement to assert one of the five fault-based ‘facts’
  • require couples to give notice to a court that their marriage has broken down
  • allow notice to be jointly given by both parties, as well as by only one party
  • remove the possibility of contesting a divorce
  • retain the two-stage decree process: decree nisi and decree absolute
  • introduce a minimum timeframe for the process
  • apply the same changes to the dissolution of civil partnerships

Our view

We support:

  • removing fault from the divorce process because it can lead to conflict, lengthens the process and makes it harder for separating couples to focus on children, property and finances
  • the introduction of joint applications
  • removing the ability to contest a divorce – an individual should never have to remain in a marriage against their will

We recommend:

  • joint applications can progress if one person changes their mind
  • government clarifies its plans for how separating couples arrange their finances, as this will help determine whether the 2 stage decree process should be retained
  • further consultation on the length of the divorce process, in the context of the HMCTS reform programme
  • government considers possible risks around online divorce
  • reintroducing legal aid for separating couples early in the process
  • couples should not need to wait a mandatory period before they can finalise their divorce
  • the court should be able to delay the decree absolute in religious marriages for any faith-based community where genders cannot equally seek a religious-based divorce
  • judges should be able to investigate any signs of duress
  • further consultation with religious communities to ensure the impact of these proposals is fully understood
  • government should remove legal jargon to help people understand the law
  • government reviews the divorce process as a whole, rather than considering one aspect at a time, and makes it easier for people to understand and navigate the entire process.

What this means for solicitors

The proposed changes should improve the divorce processes for solicitors by simplifying current practices and reducing conflict between couples.

It is expected that the changes to the system will be relatively simple to implement.

Next steps

The consultation closed on 10 December 2018 and the government is considering responses.

View the consultation on the MoJ website

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