DIVORCE, DISSOLUTION AND SEPARATION BILL: FACT SHEET
Introduction
1. Marriage will always be of vital importance to society, and it is deeply sad for those involved when a
marriage breaks down irretrievably.
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When people take the difficult decision to divorce, the legal
process should seek to minimise the potential for conflict and should not make things worse.
2. The current legal process for divorce incentivises one spouse to make allegations about the other’s
conduct to avoid otherwise waiting to divorce on the basis of at least two years of separation. Such
allegations can set the scene for acrimony and conflict during the legal process and afterwards. This
can be especially damaging for any children of the relationship. Instead, the legal process should
better support couples to reflect on the decision to divorce, to reconcile if they can, and if they cannot
do so to move forward as constructively as possible. This is particularly important for parents, as
conflict is damaging to children’s life chances. Those life chances are improved by co-operative
parenting and positive parenting relationships.
3. The Divorce, Dissolution and Separation Bill reforms the legal requirements and process for divorce.
It removes conflict flashpoints from that process and introduces a new minimum period of 20 weeks
between the start of proceedings and when confirmation may be given by a party of their wish for the
court to proceed to grant the conditional order of divorce (decree nisi). The existing six-week period
between conditional order and final order of divorce (decree absolute) will be retained. These two
timescales will mean that a divorce in most cases will not be finalised in less than six months.
What is the current legal process for divorce?
4. The sole ground for divorce is that the marriage has broken down irretrievably. 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”. Three facts are based on the
conduct of the other spouse (adultery, ‘unreasonable behaviour’, and desertion), and two are based
on a period of separation prior to filing the petition for divorce (two years if both spouses consent to
the divorce, five years otherwise). In this factsheet we refer to these as conduct and separation facts.
5. The current legal process of divorce can only be initiated by one spouse (the ‘petitioner’). The other
spouse (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. A respondent’s decision to contest is most often
driven by their desire to dispute allegations made in supporting particulars evidencing a conduct fact,
rather than disputing that the marriage has irretrievably broken down. At worst, the ability to contest
can be used to cause cost and delay to a spouse who wants to obtain a divorce, and can be a
means for a perpetrator of domestic abuse to continue coercive or controlling behaviour through the
legal process.
6. The court must be satisfied of at least one of the five facts in order to hold that the marriage has
broken down irretrievably. If one of the five facts is made out, it must grant the decree of divorce.
Under the current law, the court must in nearly all cases accept at face value the detail of what is
alleged by the petitioner in support of the chosen fact, unless the supporting particulars are clearly
deficient or the respondent contests the divorce. The court has no practical means by which to
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References to marriage include civil partnerships, and references to divorce include dissolution of a civil
partnership and to judicial separation, where appropriate and unless stated otherwise.
