Consultation on proposed no fault divorce legislation

Overview

In October 2018 Garff MHK Daphne Caine was granted leave to introduce a Private Member’s Bill by the House of Keys. This sought ‘to amend the grounds for divorce, dissolution of civil partnerships and judicial separation; and for connected purposes’.

Getting divorced is a lengthy process that can have a detrimental impact on couples and families.

While it takes eight days from notifying the General Registry for adults to be able to marry or register a civil partnership, divorce or dissolution is a process that can take a long time.

Couples who want to settle matters amicably, without publicly blaming one of the parties for the breakdown of the marriage/partnership, must have separated for two years where there is consent to the divorce but otherwise five years. That delay can put huge strain on individuals and on families. Alternatively a person might make allegations about their partner’s behaviour, generally perceived as showing their spouse was at ‘fault’ and to blame for the union’s breakdown.

Alleging fault, comprising adultery or unreasonable behaviour, does not require there to be a qualifying time limit for the existence of the complained of circumstances and therefore adopting such facts can considerably shorten the time it takes to obtain a divorce*.  This means that some divorcing couples rely on one of the fault-based routes in order to avoid the emotional and financial strain of waiting two years or longer.  However, particularly for families with children, where one parent alleges fault for the marriage breakdown this can fuel ongoing conflict and precipitate a long term negative impact.

A recent study of the similar system in England and Wales by the Nuffield Foundation concluded:

“The study shows that we already have something tantamount to immediate unilateral divorce on demand but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. A clearer and more honest approach, that would also be fairer,  more child-centred and cost effective, would be to reform the law to remove fault entirely.”

Legislation to modernise the system in England and Wales is now being progressed.

The draft Isle of Man Bill, based on the draft legislation being progressed at Westminster, is aimed at implementing a simpler administrative process to obtain a divorce, dissolution of civil partnership or judicial separation in place of the detailed judicial scrutiny which is associated with the fault-based process currently used in the Isle of Man. The draft Bill seeks to address the following key issues:

• that the current system includes elements that lead to conflict and difficulties, and this is at odds with other aspects of family law that look to put the needs of any children first and minimise potential for negative impact on them as well as on the couple; and
• that there is a balance between divorce being a considered decision and recognising that once there is irretrievable breakdown the process followed should then minimise conflict, stress and cost for the parties.

Why your views matter

To obtain the views of the Isle of Man community on modernising the area of family law concerned with divorce, dissolution of civil partnership and judicial separation.

What happens next

After this consultation closes a summary of matters raised in the consultation, with responses where appropriate, will be published and the draft Bill will be finalised with a view to being introduced into the House of Keys early in 2020.