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Divorce, Dissolution And Separation Act 2020

Contents

Commentary on provisions of the Act

Divorce and judicial separation

Section 1: Divorce: removal of requirement to establish facts etc

  1. This section substitutes a new section 1 of the Matrimonial Causes Act 1973.
  2. New subsection (1) provides that an application for a divorce order may be made to the court by either or both parties to a marriage. New subsection (2) specifies that an application for divorce must be accompanied by a statement that the marriage has broken down irretrievably ("statement of irretrievable breakdown"), and that this statement may be made by the applicant or applicants (in a joint application).
  3. New subsection (3) makes clear that a court in receipt of an application under subsection (1) must take the statement of irretrievable breakdown as conclusive evidence that the marriage has broken down irretrievably, and make a divorce order accordingly.
  4. New subsection (4) provides that a divorce order is at first a conditional order and may not be made final before 6 weeks have elapsed from the making of the conditional order. New subsection (5) provides that the court cannot make a conditional order until the applicant, or both joint applicants, has or have confirmed to the court that they want the application to continue, and the applicant(s) cannot give that confirmation until 20 weeks have elapsed since the start of the proceedings. Rules of court govern how and when proceedings are started. The current provision in rule 5.3 of the Family Procedure Rules 2010 provides that proceedings are started when a court officer issues an application at the request of the applicant (an application is issued on the date entered in the application form by the court officer).
  5. New subsection (6) provides that the Lord Chancellor may, by statutory instrument, shorten or lengthen the minimum periods set out in subsection (4)(b) or (5). Any such statutory instrument containing an order under subsection (6) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament (new subsection (9)). New subsection (7) stipulates that the Lord Chancellor may not vary the minimum periods set out in subsections (4)(b) and (5) so as to provide for a total minimum period exceeding 26 weeks.
  6. New subsection (8) provides that the court may, in a particular case, shorten the time periods set out in subsections (4)(b) and (5). This replaces the existing power of the court currently set out in section 1(5) of the Matrimonial Causes Act 1973 to reduce the six-week period to decree absolute in exceptional cases (such as in the case of terminal illness or imminent birth of a child to one of the parties).
  7. New subsection (10) provides that Family Procedure Rules may make provision as to the procedure for a joint application to become a sole application.

Section 2: Judicial separation: removal of factual grounds

  1. This section amends section 17 of the Matrimonial Causes Act 1973.
  2. Subsection (2) substitutes subsection (1) of section 17 and provides that an application for a judicial separation order may be made by either or both of the parties to a marriage. New subsection (1A) specifies that an application for judicial separation must be accompanied by a statement that it is the intention of one or both parties to the marriage to be judicially separated from one another. New subsection (1B) provides that the court dealing with the application must make a judicial separation order.
  3. Subsection (3) omits the current subsection (2) of section 17, reflective of the removal of the facts in the substituted section.
  4. Subsection (4) updates the language in section 17 for clarity and for consistency with divorce, dissolution and separation in a civil partnership.

Civil Partnership: dissolution and separation

Section 3: Dissolution: removal of requirement to establish facts

  1. This section amends section 44 of the Civil Partnership Act 2004.
  2. Subsection (2) provides for an application to the court for dissolution to be made by either one or both civil partners. Subsection (3) introduces new subsection (1A) of section 44, which provides that an application for dissolution must be accompanied by a statement that the civil partnership has broken down irretrievably, made by either one or both of the applicants.
  3. Subsection (4) omits subsections (2) and (3) of section 44 (which relate to the facts alleged and are accordingly no longer applicable).
  4. Subsection (5) replaces subsection (4) of section 44 to provide that the court must take the statement of irretrievable breakdown, made by one or both of the parties to a civil partnership, as conclusive evidence that the civil partnership has broken down irretrievably, and make a dissolution order accordingly.
  5. Subsection (6) omits subsection (5) of section 44 (which contains the facts that no longer apply).
  6. Subsection (7) inserts provision that Family Procedure Rules may make provision as to the procedure for a joint application for dissolution to become a sole application.

Section 4: Dissolution orders: time limits

  1. This section amends sections 37 and 38 of the Civil Partnership Act 2004 and inserts a new section 37A.
  2. Subsection (2) omits subsection (2) of section 37 (the current provision stating that a dissolution, nullity or presumption of death order is at first a conditional order and may not be made final before the end of the prescribed period set out in section 38).
  3. Subsection (3) inserts new section 37A, which reflects the amendments to the Matrimonial Causes Act made by section 1 and provides that every dissolution order is at first a conditional order and may not be made final before the end of 6 weeks from the making of the conditional order. It also provides for the minimum time periods between stages and provides a power for the Lord Chancellor to amend these minimum time periods in a way that reflects the timeframes and Lord Chancellor power set out for divorce in section 1 of this Act.
  4. Subsection (4) amends section 38 (which deals with nullity and presumption of death orders) to insert a new subsection (A1) which provides for each such order to be conditional in the first instance and not to be made final before the end of the prescribed period.

Section 5: Separation: removal of factual grounds

  1. This section amends section 56 of the Civil Partnership Act 2004.
  2. Subsection (2) amends subsection (1) of section 56 to provide that a separation order may be applied for by either or both of the parties to a civil partnership.
  3. Subsection (3) inserts new subsection (1A), which sets out that any application for a civil partnership separation order must be accompanied by a statement stating that it is the intention of one or both civil partners to be separated from one another.
  4. Subsection (4) omits subsection (2) of section 56 (the current provision requiring the court to inquire into facts alleged).
  5. Subsection (5) restates current subsection (3) of section 56 (to provide that the court must make a separation order (if the requirements are met)).
  6. Subsection (6) omits subsection (4) of section 56 (which cross-refers to provision elsewhere in the 2004 Act which relates to the facts alleged, and which is repealed by provision in the Schedule to the Act).

General

Section 6: Minor and consequential amendments

  1. Subsection (1) of this section introduces the Schedule, which contains minor and consequential amendments resulting from the main provisions of this Act.
  2. Subsections (2) to (7) allow the Lord Chancellor by regulations made by statutory instrument to make provision consequential on the provisions of this Act, including transitional or saving provision. Regulations may amend, repeal or revoke provisions made by or under primary legislation.

Section 7: Extent

  1. Section 7 sets out the extent of the Act (see commentary at paragraphs 16 to 18 above and Annex A for further information).

Section 8: Commencement and transitional provisions

  1. Provision in sections 6(2) to (7) (power to make consequential provision), 7 (extent) and 9 (short title), together with Sections 1 and 3 in so far as they confer power to make provision by Family Procedure Rules, came into force on the day the Bill received Royal Assent. All other provisions will come into force on such day as the Lord Chancellor may by regulations appoint.
  2. Subsections (4) to (7) make transitional provision to disapply various provisions where proceedings have started before the commencement date, so that these proceedings can continue under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 before their amendment through this Act.

Section 9: Short title

  1. Section 9 sets out the short title of the Act.

Schedule: Minor and consequential amendments

  1. The provisions in this Schedule have the same extent and application as the provisions that they amend. The provisions amended by Parts 1 and 2 extend to England and Wales only. The provisions amended by Part 3 extend and apply to England and Wales, in a small number of cases also extend and apply to Northern Ireland and Scotland, in one instance apply to Wales only, in one instance extend and apply to Scotland only and in one instance extend and apply to Northern Ireland only.
  2. Part 1 of this Schedule makes amendments to the Matrimonial Causes Act 1973 that are minor and consequential on sections 1 and 2 of this Act, for consistency of approach and terminology within the Act and with present and amended provisions of the Civil Partnership Act 2004.
  3. Part 2 of this Schedule amends the Civil Partnership Act 2004 in a number of minor ways that are consequential on sections 3, 4 and 5 of this Act, and for consistency of terminology and approach within the Act.
  4. Part 3 makes amendments to other Acts that are minor and consequential on sections 1 to 5 of the Act, typically where these other Acts contain references to decrees of divorce, judicial separation or nullity that need to be amended to reflect the new terminology of orders.

Part 1: Amendments to the Matrimonial Causes Act 1973

  1. Paragraphs 2, 4, 5, 10(b), 16(a), 17 and 31 omit and/or amend sections of the Matrimonial Causes Act 1973 which are no longer necessary or appropriate because they relate to evidence of facts of irretrievable breakdown which will no longer exist by virtue of section 1.
  2. Paragraphs 3, 6 to 9, 10 (but for subparagraph (1)), 11, 13, 16(b), 18(a), 19 to 21 and 23 to 30 amend provisions of the Act for consistency with sections 1 and 2 (which substitute new section 1 and amend section 17 respectively), such as changes of references in the current Act from petitions to applications, and from granting of decrees nisi and absolute to making of conditional and final orders, as well as to reflect the fact that applications for divorce orders can now be made jointly.
  3. Paragraph 12 inserts a new section 12B that will ensure consistency of approach to nullity orders as currently found in the Act and with terminology introduced by sections 1 and 2 in relation to divorce orders and judicial separation orders. This provision retains the two-stage process that currently applies to nullity orders by virtue of sections 11, 15 and 1(5) of the Act, retains the current six-week time frame between what is now a decree nisi and decree absolute for nullity (which will now by virtue of this provision become conditional and final nullity orders), and replaces the current power of the High Court to amend the time frame with a power in the Lord Chancellor similar to that provided for in respect of nullity orders for civil partnerships in section 38(2) of the Civil Partnership Act 2004. A new provision is necessary because the current provision that creates these effects – section 15 of the Act – did so by cross-applying section 1(5) of the Act, but, given the formulation of new section 1, this simple cross-application was no longer practicable. Paragraph 14 substitutes a new section 15 in further consequence of these amendments and in consequence of the changes in section 1.
  4. Paragraphs 18(b), 20(5), 21(4), 22(3), 23(4), 24(4), 25(5), 27(6), 29(8) and 32 contain amendments that ensure that references to decrees, which will now be changed to orders, can still be read as including decrees if these were granted before the coming into force of the relevant provisions of this Act.

Part 2: Amendments to the Civil Partnership 2004

  1. Paragraphs 36, 38 to 40, 41(a) and (b) and 42 omit sections of the Act which are no longer necessary or appropriate because they relate to evidence of facts of irretrievable breakdown which will no longer exist by virtue of the amendments in section 3 to section 44 of the Act.
  2. Paragraph 35 amends cross-references consequential on the amendments made in sections 3, 4 and 5 of the Act. Paragraphs 37 and 41(c) amend provisions of the Act for consistency with the amendments in sections 4, 5 and 6, such as changes to reflect the fact that applications for dissolution orders can now be made jointly.

Part 3: Amendments to other Acts

  1. Paragraphs 43 to 60 make amendments to references in a number of Acts to decrees of divorce, judicial separation or nullity, and decrees nisi or absolute, which therefore require minor and consequential changes to reflect the changes in sections 1 and 2 of the Act to refer to divorce orders, judicial separation orders and nullity orders and in some cases to refer to conditional orders or final orders rather than decrees nisi or absolute. These provisions also contain amendments to ensure that references to decrees, which will now be changed to orders, can still be read as including decrees if these were granted before the coming into force of the relevant provisions of this Act.
  2. Paragraphs 43 to 57 and 59 extend and apply to England and Wales, but for paragraph 59 which applies to Wales only. Paragraphs 47, 49, 51(4), 51(5) and 53 to 57 also extend to Scotland and Northern Ireland. Paragraph 58 extends and applies to Scotland only. Paragraph 60 extends and applies to Northern Ireland only. Whilst these amendments extend beyond England and Wales, they strictly amend references to divorce, judicial separation and/or nullity decrees from, or such proceedings in, the courts of England and Wales. In other words, even where the provision being amended extends and applies to Scotland or Northern Ireland or applies to Wales only, the amendments are strictly to the references to decrees from and/or proceedings in England and Wales.

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