These Explanatory Notes relate to the Divorce, Dissolution and Separation Bill as introduced in the House of Commons on 13 June 2019 [Bill 404].
These Explanatory Notes have been prepared by the Ministry of Justice to assist the reader in understanding the Bill. They do not form part of the Bill and have not been endorsed by Parliament.
These explain what each part of the separation Bill will mean in practice; provide background information on the development of policy; and provide additional information on how the Bill will affect existing legislation in this area.
These notes might best be read alongside the Bill. They are not, and are not intended to be, a comprehensive description of the Bill.
The separation Bill will revise the legal process in England and Wales for married couples to obtain a divorce or judicial separation and for civil partners to dissolve their civil partnership (a process termed dissolution) or obtain a separation. It will therefore amend certain provisions set out in the Matrimonial Causes Act 1973 and the Civil Partnerships Act 2004, which are the main statutes governing these proceedings.
Divorce and dissolution are a fundamental change of legal status that may have implications for people’s rights and responsibilities, for matters such as property and inheritance, and for the families involved. Since the Matrimonial Causes Act 1857, divorce has always been a court process.
The existing law on divorce dates back, in large part, to the Divorce Reform Act 1969, which replaced the previous grounds of divorce (adultery, desertion, cruelty and being “incurably of unsound mind”) with the sole ground that the marriage has broken down irretrievably.
The current legal process of divorce can only be initiated by one party to the marriage (the “petitioner”). The other party (the “respondent”) must then acknowledge that they have received (been “served with”) the petition and state whether they disagree with the divorce and intend to contest (“defend”) it. Only around 2% of respondents indicate an intention to contest, and only a handful of such cases progress to a final court hearing in front of a judge.
Currently, the law requires a person seeking a divorce to satisfy the court that the legal test of irretrievable breakdown is met by citing in the divorce petition one or more of five “facts”, as the statute calls them. Three facts are based on conduct (adultery, behaviour – commonly referred to as “unreasonable behaviour” – and desertion). Two facts are based on a period of separation prior to filing the petition for divorce (two years if both parties consent to the divorce, or five years otherwise).
The court can hold that the marriage has broken down irretrievably only if it is satisfied of one of the five facts. If one of the five facts is made out, the court must grant the decree of divorce.
Granting a divorce is a two-stage process in which the court will first grant a conditional decree (the “decree nisi”). This signifies that the court is satisfied that the marriage can be brought to a legal end because it has broken down irretrievably. To finalise the divorce and legally end the marriage, the petitioner must wait for at least six weeks from the granting of the decree nisi and can then apply to the court for the decree of divorce to be made final (the “decree absolute”).
Read the complete Bill 404 on the UK Parliament website.
