The UK Government is changing the divorce law in England and Wales so that there will be less conflict between couples who no longer want to be married. We don’t know yet what the new laws will be in detail, but a recent consultation which invited people to give their opinions on their proposals gives us an idea of what the new laws may look like.
What is the current divorce law?
Divorce is the most common legal process used to end a marriage. It’s called ‘dissolution’ when talking about a civil partnership. In this blog, where we have used the word ‘marriage’ and ‘divorce’ it includes ‘civil partnerships’ and ‘dissolution’.
In order to get a divorce, either the husband or the wife has to show that the marriage has ‘irretrievably broken down’ – that the couple cannot fix their relationship. He or she must prove one of 5 things:
- ‘Unreasonable behaviour’ by the other person that makes it difficult for the person asking for the divorce to live with him or her. .
- ‘Desertion’ by the other person (when he or she leaves with the intention of never coming back)
- ‘Adultery’ by the other person – when he or she has sex with someone else
- Living apart for 2 years and they both agree to the divorce
- Living apart for 5 years.
Sometimes, one or more of these things might happen but there is no divorce because the person who could ask for the divorce chooses not to. At the moment, because of the way ‘adultery’ is defined, this can’t be used to get a divorce of a same sex relationship, or the dissolution of a civil partnership. If one of the partners in a same sex marriage, or civil partnership is unfaithful, they could argue that this was ‘unreasonable behaviour’.
What are the problems with the divorce law for children?
The divorce law that applies at the moment date back to 1973, to a law called the Matrimonial Causes Act. The law is nearly 60 years old, and there have been lots of changes in society and about how we think about families and family relationships. We have also started to understand a lot more about how getting divorced affects children involved. Research that took place as early as 1995 suggested that while divorce and separation will have an impact on the children involved, it is the conflict between parents that is far more damaging than the split itself.
Even if both people want to get divorced, a lot of the time, one of the couple will ask for a divorce on the grounds of unreasonable behaviour, because otherwise they would have to wait for 2 years to get divorced. By making one of the couple make accusations and provide evidence of the other’s behaviour, it creates conflict where it doesn’t need to exist. This ‘blame’ can makes couples far more anxious and upset, which in turn can be the worst part of the divorce for the children involved. It makes it much harder for parents to work together to decide living arrangements and can make holidays, and things like birthdays and Christmas more difficult too.
Although waiting for 2 years to get divorced can avoid blame and conflict, this can be difficult for couples who want to divorce, especially if one of them can’t afford to move out. It also stops people moving on with their lives.
Other parts of the divorce laws cause problems too – for example, the person who hasn’t asked for the divorce has the automatic right to oppose the divorce. When this happens it is called a ‘contested divorce’. Some people use their right to oppose the divorce to act unfairly to the other person. They can use it to put pressure on the person who wants the divorce to agree to something else by threatening to oppose the divorce if they don’t agree.
What rights do you have if your parents divorce?
When their parents split up, many children and young people feel that they are ignored and that their views aren’t taken into account. If you’re in this situation, the United Nations Convention on the Rights of the Child gives children and young people under 18, rights which mean that
- you have the right to information about what is happening and to have your voice heard in any process that will decide things about where you will live and who you will live with if your parents are divorcing. This might be done through CAFCASS Cymru which has the job of ensuring that children’s voices are heard in the family courts in Wales.
- you have the right to maintain contact with both your parents, if you want to.
- decisions that are made about you should be made in your ‘best interests’.
How will the new divorce law be better for children?
In Wales, there is a commitment to consider children’s rights at the heart of every new law. The UK Government hasn’t made the same general commitment to children’s rights, but the new proposals around divorce recognise that the interests of children aren’t being looked after under the existing divorce rules, and this needs to change. The UK Government hopes that the proposals for the new divorce law will reduce family conflict.
While we don’t know the details of the new divorce law, we know what the UK Government was proposing in September when it published the consultation.
- Someone wanting a divorce will still only be able to do so because their marriage has irretrievably broken down.
- However, instead of having to give a reason why the marriage has broken down, the person or both people will just need to give notice that the marriage has broken down.
- There would be a minimum time period before the divorce could go through, which would give people time to make all the arrangements they need before the marriage is legally over.
- There would be no automatic right to oppose the divorce.
Why can’t Wales have its own laws on divorce?
Although the National Assembly for Wales is now able to make its own laws in some areas of life in Wales, the UK Government has kept powers to make laws for Wales in other areas. In the area of ‘Justice’, the UK Government has kept powers over family relationships, so Wales can’t make its own laws about divorce.
What happens next?
Now that the consultation period has finished, the UK Government must consider all the responses it has had to the questions it asked in the consultation. Once it has done this, it will announce what the new divorce laws will look like and start the process of making the new laws.
For more information about your rights if you’re in Wales and your parents are getting divorced, read our pages about how the law affects you at home.
 White Paper Looking to the Future: Mediation and the Ground for Divorce https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/272042/2799.pdf