Top family lawyers UK state that the struggle to bring about a change whereby parties to a marriage or civil partnership could simply divorce or have the civil partnership dissolved has a deep-rooted history.
In the beginning
At one time, centuries past, the church decided on matrimonial issues, and divorce was rare, and later on in the 18th and 19th centuries. Divorce was a privilege of the rich, as an Act of Parliament had to be passed to sanction it.
The Matrimonial Causes Act 1857 introduced divorce law to the general public through the medium of the courts. Men could petition for divorce based on the their wife’s adultery which had to be proved, and it was more difficult for women as the adultery committed by their husbands had to have an element of aggravation such as rape, incest or the wife walking into the bedroom and seeing her husband in the process of committing adultery on their matrimonial bed.
There were further developments in the matrimonial causes Acts of 1923 and 1937, by which time divorce could take place on the grounds of cruelty, desertion, adultery and insanity. Each allegation had to be proved, but women were by now on an equal footing to men. During the first three years of marriage, however, a divorce could not be obtained.
The Matrimonial Causes Act 1973
After the Second World War, there were huge social changes, and the requirement that there should be only one ground of divorce, namely the irretrievable breakdown of marriage gained momentum, leading to the Divorce Reform Act 1969, now consolidated into the Matrimonial cause Act 1973.
The Act confirmed that the one ground for divorce was the irretrievable breakdown of marriage, which could be proved by one or more of the following five facts:
-separation for two years with the other spouse’s consent,
-and separating for five years, without consent.
The bar to divorcing within the first three years of marriage remained until 1984 when it was reduced to one year (currently still in place).
No-fault divorce noises in the 1990s fell on deaf years
No-fault divorce was infant mooted in the Family Law Act 1996, but the divorce provisions were never implemented and were repealed. Successive governments tried to reintroduce no-fault divorce, but there was little enthusiasm to take the matter much further at that time.
The Civil Partnership Act of 2004
This Act allowed same-sex couples the right to register their civil partnerships but also to dissolve them. It became available on the same terms as divorce other than based on adultery, as there was no accepted legal definition of adultery for same-sex couples.
Marriage of same-sex couples
Legislation to allow same-sex couples to marry in England and Wales was passed by parliament in July 2013 and took effect on March 13th, 2014 and was named the marriage (same-sex Couples) Act. The first same-sex marriages took place in the UK on March 29th, 2014. The Act also allows same-sex couples to convert their partnership to marriage if they wish and also allows individuals to change their legal gender without having to end their marriage.
Progress on the “No-fault divorce” (2020)
The Divorce, Dissolution and Separation Bill (2020) has passed its significant hurdle in the House of Commons and could become law soon sometime next year. An “irretrievable breakdown” will continue to be the sole ground for divorce. Only one party needs to confirm that the marriage is at an end in this way, and this will remove having to satisfy one or more of the five facts. So, if one party is in a loveless marriage and wants to end the marriage, they can. This is unlike the case of Owens v Owens when the Supreme Court although in sympathy with Mrs Owens said she could not divorce her husband even though she found herself in a loveless marriage as she could not prove by one or more of the five facts that the marriage had irretrievably broken down.
In some cases, parties can make a joint application for divorce, and the opportunity to contest a divorce will be removed, other than based on jurisdiction, the legal validity of marriage, fraud, coercion and procedural compliance. The time frame from the filing of the petition to decree Nisi Shall be 20 weeks, and after that 6 weeks and one day from decree Nisi to decree absolute, as at present, to see if there is a possibility of reconciliation. The current bar of not being able to file a divorce petition within 12 months of marriage shall continue.
Divorce itself is never easy but can be made less unpleasant by not requiring one party to blame the other in order for both of them to obtain a dignified burial of their dead marriage. This helps to maintain the will vital to conciliatory arrangements for the children if any, the house and money.
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