Divorce: a cooling off period?

With the difficulties experienced by many in lockdown, it is widely predicted that there will be a world-wide surge in the number of divorces.

In China, a new law has been passed to try to tackle an increase in divorce rates. Couples who wish to divorce in China will now have to complete a 30 day ‘cooling off period’ before they can proceed with a divorce. Those opposing this new law argue it is inappropriate for the state to interfere with personal autonomy as it pertains to private family life. Those in favour argue that this measure sends a message of hope to couples struggling in these uncertain times. Whilst we are in the midst of an precedented global pandemic,  normal life will resume again. Perhaps if couples are required to take 30 days to reflect on their marriage, it may lead some to reconcile.

This news from China comes as the Divorce, Dissolution and Separation Bill (commonly referred as the no-fault divorce bill) has passed its third reading in the House of Commons. It will shortly be considered by the House of Lords and is expected to become law in England and Wales by Autumn 2021. As the law currently stands, a person seeking to divorce has to wait for two years if their spouse consents to the divorce, or five years if their spouse does not consent. If you do not wish to wait, the only way to divorce is to ‘blame’ the other party provided you can prove one of three grounds: 1) adultery, 2) unreasonable behaviour or 3) desertion. The new bill removes all element of blame and even allows for a couple to jointly apply to divorce. Whilst couples no longer have to blame the other or wait for at least two years before they can divorce, the government has introduced a minimum six month time-frame before a divorce can be finalised. Some members of Parliament have proposed to increase this statutory period to one year (and this suggested amendment is to be considered by the House of Lords and may become law). This minimum timeframe (be it 6 months or 1 year) is said to give couples a ‘meaningful period of reflection’ and the ‘opportunity to turn back’. In our experience, however, by the time clients come to us to obtain a divorce, they have not done so on a whim. In the vast majority of cases, this difficult decision has been carefully considered over a significant period of time (often years) and after exhausting attempts at reconciliation.

Under the current divorce regime, provided you rely on one of the three ‘blame’ grounds, (and depending on court processing delays) you can be divorced in as little as three months. This new statutory period of reflection will increase the minimum timeframe for a divorce by at least three months (or 9 months if the one year rule is implemented).

Despite this, media outlets refer to the bill as introducing ‘quickie divorces’ and that this threatens to undermine the institution of marriage. It has also been reported that there is a growing concern that the new bill will encourage a spike in divorce rates given relationships are under significant pressure in the current climate.

It remains to be seen whether a statutory ‘cooling off’ period will help to reduce the number of divorces or whether this will serve as an unwelcome delay for those who do not need more  time to reflect.

By Tessa Bray and Nykol O’Shea