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An analysis of the Divorce, Dissolution and Separation Act, 2020

This article is written by Varchaswa Dubey, from JECRC University, Jaipur. This article reflects the analysis of the Divorce, Dissolution and Separation Act, 2020. Further, the article also reflects the reasons and effects of divorce.

Introduction 

According to Black’s Law Dictionary, divorce refers to “the legal separation of man and wife, effected, for cause, by the judgment, of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties”, while dissolution refers to “the act of terminating a marriage; divorce; but the term does not include annulment”, and separation refers to “separation of man and wife by decree of the court, less complete than an absolute divorce.” 

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Divorce laws provide the legal framework which administers the matters where marriage is brought to an end by either or both the parties to the marriage, i.e. the husband and wife. The rate of divorce has increased during contemporary times and has uniform rules to deal with arising matters of divorce. 

Origins of divorce 

Before human civilization was met with Christianity, the proceedings of divorce did not require any government intervention. During the eighth century, marriage was considered a breakable contract in western culture. The Romans also did not consider marriage to be worthy enough of government intervention and the couples simply declared their marriage had ended. The Romans from 27 BC to 14 AD introduced a law that required seven witnesses to the statement made by the parties to the divorce. 

Germanic peoples also accepted unilateral divorce, that is, divorce instigated by only one partner. The Anglo-Saxons regarded marriage as a simple contract that could be dissolved by one or both partners at any time. 

The oldest codified law in the history of divorce was traced to 1760 B.C. during the reign of King Hammurabi of Babylon. It is believed that the King carved 282 laws in stone tablets including the law on divorce. During that period, a man could divorce his wife by simply saying, “You are not my wife,” which was followed by payment of a fine and returning the wife’s dowry. However, if it was the wife who wanted the divorce, she was required to file a complaint to obtain a divorce.

In India, divorce was not considered very common in nature, and women were given high status in society. There are not many sources to reflect the divorce in ancient India.  

Origins of divorce in England 

Initially, the proceedings of divorce were governed by church courts by the Ecclesiastical Laws but after 1530 the Church courts in those countries had no power to annul a valid marriage and later on The Matrimonial Causes Act, 1857 was introduced which required a husband to prove his wife’s adultery if he wanted a divorce, but before the 1957 act, judicial divorce could only be attained by the act of the Parliament. A wife had to prove her husband’s adultery, and also that he had either treated her with cruelty, had deserted her, or had committed incest or bigamy eventually Matrimonial Causes Act, 1973 was introduced which acted as significant legislation in the history of laws concerning divorce in England and Wales. 

Recently the Divorce, Dissolution and Separation Act, 2020, was passed by the Parliament of England and Wales, to make concerning marriage and civil partnership in England and Wales provision about divorce, dissolution, and separation, and for connected purposes.

The Divorce, Dissolution, and Separation Act, 2020

The bill was introduced in the House of Lords on 25 March 2020.

The objective of the bill

To provide for the revision of the legal process in England and Wales for married couples who shall opt for legal separation or dissolution of marriage or divorce. The Bill further aims at amending certain legal provisions reserved in the Matrimonial Causes Act, 1973 and Civil Partnership Act, 2004. 

Background of the Act 

Divorce and dissolution of a marriage are significant changes in the legal status that have an impact on people’s rights and responsibilities, property, inheritance, and the families of the concerned parties to the proceedings. Before The Matrimonial Causes Act, 1857, divorce was considered to be a part of church proceedings, however, the legislation post – 1857 changed the scenario.  

The current law on divorce and dissolution of marriage can be traced back to the Divorce Reform Act, 1969 which gave the sole ground of divorce may be that marriage has broken down irretrievably and the reason for such break is adultery, dissertation, cruelty, etc. under the 1969 act, only one person could initiate legal proceedings against another and the respondent has to acknowledge that they have received the petition. 

The grounds for seeking a divorce may be one under the old legislation but the reason that a marriage has broken down is: 

  • Adultery, 
  • Desertion, 
  • Parties to a marriage living apart for two continuous years, 
  • Parties lived apart for at least two years, before the presentation of the divorce petition. 

The aim of the government behind the reformed law is that the decision to divorce should be considered as one and that separating couples should not be put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children.  

New provisions in the Act  

The 2020 legislation introduced the provision of application of divorce by either or both the parties to the marriage, it also introduced the concept of making the statement that the marriage has broken down irretrievably and such statement shall be considered conclusive evidence that the marriage has indeed broken down.  

In the new amendment, the 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. Section 3 of the 2020 act replaced Section 44 of the Civil Partnership Act, 2004, which provides for an application to the court for dissolution to be made by either one or both civil partners.

According to the new legislation, every dissolution order is initially a conditional order and may not be made final before the end of 6 weeks from the making of the conditional order. Section 56 of the Civil Partnership Act, 2004, is also amended by the 2020 act and the current legal provision states 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.

What are the implications of the Divorce, Dissolution, and Separation Act, 2020?

Currently, a couple who seeks a divorce under the 1973 Act simply cannot initiate divorce proceedings because they have decided to get separated and that they have mutually agreed to take divorce, and the couple has to establish one of the five essentials to take a legal separation and in such cases where parties to a marriage indulge in blame games like adultery and unreasonable behavior, and to tackle this issue, the 2020 legislation is an ideal law. 

The expected results of the Divorce, Dissolution, and Separation Act, 2020 are:

  • It will be beneficial in cases where one of the parties to a marriage alleged unreasonable behavior where behavior cases conflict between the parties to a marriage which may further set the tone for negotiations or court proceedings regarding finances and children. A reduction in conflict between the parties will also clearly be beneficial for any children of the family. 
  • It is no longer necessary for the parties to a marriage to stay in the company of each other and bear additional costs of the petition. 
  • The spouses are likely to get into mediation or other similar practices, which will further reduce the burden on courts. 
  • The new process is more straight and couples who mutually agree to divorce now no longer have to wait for 2 years for their separation, which will eliminate additional and unnecessary financial costs and negative impacts on the children residing with their parents who have decided to separate but had to earlier wait for 2 years to separate. 

What is the current divorce system?

The source of the law of divorce in England and Wales can be traced back to the Matrimonial Causes Act, 1875, but before the 1857 act, judicial divorce could only be attained by the act of the Parliament. According to Section 1 of the Matrimonial Causes Act, 1973, and in the contemporary divorce system, divorce can be claimed on the grounds of:

  • Adultery
  • Desertion
  • Unreasonable behavior
  • 2 years separation (with the other spouse’s consent)
  • 5 years’ separation (without their consent)

Adultery 

To plead adultery as a ground of divorce the petitioner in the divorce petition has to prove that the respondent has committed adultery and that the petitioner finds it unbearable to reside with such a partner, and such intolerance does not necessarily have to be associated with the act of adultery. 

Desertion

The petitioner in the divorce case has to prove that their partner has deserted the petitioner for at least two years before the filing of the divorce petition. Desertion in such cases refers to the unjustifiable withdrawal from cohabitation without the other spouse’s consent and to remain separated permanently. 

Unreasonable behavior 

It refers to the behavior of the respondent and the effects of such behavior on the petitioner. To determine that will any right-thinking person think that the husband has behaved in such a manner that his wife cannot reasonably expect to live with him. Such circumstances include factors of violence, embarrassment, negative actions of the respondent, etc. 

2 years separation

It refers to the parties to a marriage living apart for a continuous period of at least two years before the filing of the petition and the respondent gives their consent to a decree being granted. Consent in such cases refers to the positive consent and should be given in writing, and living apart here refers to living in separate houses but not necessarily under different roofs. 

5 years separation 

Under this, the parties to the marriage shall have lived apart from each other for at least five years before the filing of the divorce petition. This allows the marriage to be dissolved even against the ill will of the other spouse who is not associated with any reason for the breakdown of a marriage. 

The emerging trend 

Divorce is considered as the end of the relationship between a couple which ceases the right of being called a husband or wife. Divorce is considered a bad element for society as it leaves a negative impact on the young minds who may consider divorce as a tool to get out of a relationship and adapt to another. 

The most worrying factor about divorce is the rate at which divorce is taking place around the world, which is not only causing permanent effects on the children but also the adults. According to a report, in the US, the divorce rates have increased from 2.2 per 1,000 in 1960 to over 5 per 1,000 in the 1980s. In the UK, Norway, and South Korea, divorce rates more than tripled. Since then divorce rates have declined in many countries. According to another report, Russia has the highest divorce rates around the world, followed by Belarus, Gibraltar, and the United States. 

Conclusion 

The UK’s 2020 legislation has brought numerous changes in the legal system concerning divorce in the United Kingdom and Wales. The new act has also introduced new legal provisions to the territory which shall act as an advocate for the rights of each party to the divorce. 

It is vital to underscore that the divorce rates have increased at alarming rates and the reasons and effects of divorce have already been discussed above. The concerned government must work in making the situation better by creating awareness about not to opt for divorce and instead opt for other options like family counseling, therapy, etc which shall preserve the sacred tie of marriage.

References 

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