On 6th April 2022 the biggest shake-up in divorce law in England and Wales in half a century took place with the coming into force of The Divorce, Dissolution and Separation Act (2020). The reform removes the need for separating couples to apportion blame for the breakdown of their marriage and now provides the option for either spouse or the couple jointly to apply for divorce by presenting a statement confirming that the marriage has irretrievably broken down.
Essentially the Act aims to remove a ‘blame-game’ scenario whereby one party lists particulars of unreasonable behaviour or adultery against the other party which often has the negative effect of injecting unnecessary acrimony into an already challenging and difficult situation for families. By removing this adversarial layer of the divorce process, the hope is to prevent children and the spouses themselves from being dragged into a bitter battle of words and accusations that can have damaging consequences for the family as a whole. Instead, separating couples can now focus on ensuring that their children are minimally impacted by the divorce and also upon trying to reach a resolution of their finances.
In addition to allowing a divorce to be actioned through the statement of irretrievable breakdown, the Divorce, Dissolution and Separation Act has a number of other fundamental tenets:
- There is now a new minimum of 20 weeks between the divorce application and the conditional offer of divorce. This allows for a period of reflection for separating couples and also gives the opportunity for a reconciliation for spouses who decide they do not want to proceed with divorce. It also provides time for practical arrangements to be put in place in respect of children and financial matters for couples who do not reconcile and for whom divorce is inevitable.
- The language used for the divorce process has been simplified to make it more understandable, replacing the terms; ‘decree nisi’, ‘decree absolute’ and ‘petitioner’ with ‘conditional order’, ‘final order’ and ‘applicant’. This may also have the benefit of making the process less daunting for prospective divorcing spouses.
While these welcome reforms have entered the fabric of family law in England and Wales, they are not part of Northern Ireland divorce law. In Northern Ireland, the grounds for divorce remain as;
- Two years separation with consent.
- Five years separation.
- Unreasonable behaviour.
- Adultery.
The first two grounds; two years separation with consent and five years separation are commonly known as ‘no-fault’ grounds and the latter two grounds of unreasonable behaviour and adultery are commonly known as the ‘fault’ grounds. In Northern Ireland if separating spouses cannot reach a resolution of their finances, they may need to apply for financial relief to the court, in a process called ancillary relief. The ancillary relief court can only be accessed when a divorce petition has been issued. Consequently, this can often lead to situations whereby one spouse has no option but to issue a ‘fault-based’ divorce, for example when they have not yet been separated for a period of two years. If an unreasonable behaviour or adultery petition is issued, the non-petitioning spouse has the opportunity to defend the divorce by issuing their own Answer and Cross Petition. This can often set in train a scenario in which spouses engage in mudslinging against one another, precisely the situations that the new England and Wales reforms are aiming to avoid.
For now in Northern Ireland divorce law we are left with our current system. At McIlvenny Law, our overriding aim is to try to preserve the right to private and family life whenever families are experiencing the upheaval of a divorce. Particularly whenever children are involved, it is imperative that as little damage as possible is caused to the family. Whenever two people decide to get married, a significant amount of love, care and attention is dedicated to the preparation of the wedding and ultimately the marriage. We strive to ensure that the same level of care and attention is dedicated to the divorce process, in essence, in search of the ‘good divorce’. If divorcing couples have children there may be significant future family events such as graduations, weddings and the birth of grandchildren. If the good divorce can be achieved, this paves the way for a much more harmonious future for the entire family.
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