The Ministry of Justice says it will announce how it intends to reform the legal requirements for divorce ‘very soon’ as research of international processes, published yesterday, highlights the challenges for litigants in person in England and Wales.
The Nuffield Foundation’s report, Reforming the Ground for Divorce: Experiences from Other Jurisdictions, says the number of mandatory steps to get divorced is greater in England and Wales than elsewhere.
The procedure in some other jurisdictions is ‘typically very simple’, with one or two mandatory procedures or legal steps leading to the divorce. Interim decrees appear to be ‘largely unknown’. California abolished interlocutory decrees in the 1980s, ‘partly based on concern that litigants in person were unaware of the need to apply for the final decree’.
‘The simplicity of the process elsewhere contrasts with England and Wales where the petitioner must reaffirm their desire to divorce on multiple occasions – at the application (petition) for divorce, the application for decree nisi and then with the application for decree absolute,’ the report says.
Decrees in Australia and New Zealand become final after one month. New Zealand orders made by a judge at an undefended hearing come into effect immediately. Finland and Sweden have two mandatory steps – application and request to reopen proceedings if a ‘reconsideration’ period is required – compared with three in England and Wales.
The report says England and Wales’ multiple mandatory stages ‘appears to be rooted in a very different approach to divorce, with an emphasis on the parties having to repeatedly prove to the state their entitlement to divorce, a concern about collusion between the parties and seemingly less confidence in the capacity of the parties to make their own decisions’.
The ministry is advised to consider the merits of reducing the number of steps from three to two. This would reduce administrative burdens on the court and help litigants in person who may not realise they must apply for a decree nisi and decree absolute.
The report says: ‘Every additional stage is likely to frustrate the divorce through inertia… For those particularly concerned about marriage stability, it would still require more active consideration and ongoing consent than, for example, the one-step approach found for joint applications in other jurisdictions, such as Australia and New Zealand.’
However, the report acknowledges that retaining the three-step approach would reassure those concerned that parties might take the decision to divorce lightly if the need to allege fault is removed from the process.
Lord Chancellor David Gauke says he wants to scrap ‘archaic requirements’ to allege fault as part of wider reform. The ministry’s consultation closed in December. A spokesperson said the response ‘will be coming very soon’.
The foundation’s report is authored by the University of Cambridge’s Jens M Scherpe, director of Cambridge Family Law, and Liz Trinder, a professor of socio-legal studies at the University of Exeter Law School. The foundation says it has been funding research into divorce law to update the evidence base on fault-based divorce since the Law Commission’s 1990 report on divorce.