The introduction of "no-fault" divorce on 6 April marks an important step towards reducing acrimony upon the breakdown of a marriage. Equally importantly, the new law will limit the ability to contest a divorce, a power which has at times been used by abusers to extend control over their former partners. But does the law go far enough in helping survivors leave abusive marriages?
The current system of law in relation to divorce dates back to 1973, and requires that a spouse seeking a divorce (the "applicant") either has to attribute blame, or wait a minimum of two years. If the other spouse (the "respondent") does not consent to the divorce, the minimum wait without relying on fault is 5 years.
Fault-based divorce and abuse
Where a divorce is sought on the basis of fault (adultery, desertion or what is widely known as "unreasonable behaviour"), the applicant must set out details of the respondent's conduct in the divorce application ("petition"), which will be seen by the respondent. The requirement to set out allegations can lead to significant acrimony from the outset of divorce proceedings.
Where there has been a history of abuse in the marriage, this can create a particularly difficult situation. Rights of Women, a legal charity, has noted that many applicants who are survivors of abuse do not wish to set out details of the abuse they have been subjected to, as they do not want to antagonise their abuser. If, however, an applicant does not raise abuse in the divorce proceedings and later seeks to do so (e.g. because they need to seek a protective injunction), they risk the respondent claiming that the fact that abuse was not raised during the divorce supports a proposition that the allegations are not true.
The current system also permits a respondent to contest the divorce where it is based on fault. Particularly where the applicant does not have access to significant resources, the respondent can potentially use this process as a way to exert pressure and economic abuse. Where a divorce is contested, the proceedings will be prolonged, leading to delay, significantly increased legal costs and raising the prospect of the applicant having to appear in court to give evidence.
Generally, where a divorce is contested, the court will attempt to enquire as to whether the respondent would agree to it proceeding if e.g. different, more benign allegations were made in the petition. Although this can lead to an initially contested divorce proceeding by agreement, where a survivor of abuse has referred to the abuse in the petition, it can potentially seem that the court is "siding" with the abuser by encouraging the applicant to remove their allegations of abuse and replace them with something more innocuous.
Reform
The Divorce Dissolution and Separation Act 2020 (DDSA) creates a new procedure for divorce, which will be implemented on 6 April. No longer will an applicant have to demonstrate fault or a minimum period of separation – instead they will simply need to confirm that the marriage has irretrievably broken down. In addition, the respondent's ability to dispute a divorce will be limited to situations where the court does not have jurisdiction – e.g. if the parties have no connection to this country or were not in fact married. It will also be possible, where appropriate, for parties to apply jointly for a divorce.
The reforms are welcome in terms of reducing potential acrimony at the outset of proceedings. In particular, the new system is likely to reduce the opportunity for abusers to weaponise the divorce process.
However, the new procedure imposes a minimum period of 20 weeks between the divorce application and the applicant being able to apply for the first part of the divorce (a "conditional order"). Once a conditional order is made, there will be a further minimum wait of 6 weeks before a final order can be made, making the process for obtaining a divorce under the new law potentially slower than under the "fault-based" regime.
The 20-week period, referred to as a "cooling off period" is intended to be a time when parties can reconsider their separation or seek to reach agreement on matters such as financial claims and arrangements for any children. The practical result is that the marriage will legally continue for a minimum of 6 months after a divorce application is made and the applicant has confirmed that the marriage has irretrievably broken down. For survivors of abuse seeking to exit a marriage as swiftly as possible, this built-in delay seems unhelpful.
Potential reduction to the waiting period?
The DDSA provides that "in a particular case" the court dealing with a case might shorten the waiting period that would otherwise be applicable – i.e. the 26 week period referred to above. It is not yet clear in what circumstances a court may be persuaded to do so, but it may be that e.g. a risk of further abuse if there is delay could be a factor taken into account. It is likely to be some time before there is greater clarity as to what circumstances might give rise to the waiting period being reduced.
The DDSA heralds a new, less fractious approach to divorce. Whilst it is expected that this will reduce acrimony in many cases, the reforms should also permit survivors of abuse to exit a marriage in a way that reduces the likelihood of repercussions from the perpetrator and should avoid the system being used for further abuse.