Divorce Reforms Are On Bermuda’s Horizon

Divorce Reforms Are On Bermuda’s Horizon

Changes in England and Wales

The “no-fault divorce,” as it has become known, was finally forced into being by the case of Owens v Owens [2018] UKSC 41.  Mrs. Owens had petitioned for divorce on the grounds of unreasonable behaviour in 2015, following a 40-year marriage. Her case was appealed to the highest family court in England, but her divorce was still denied.  It was stated that the particulars relied upon by Mrs. Owens were “flimsy” and “exaggerated”, that Mrs. Owens had cherry picked her examples of Mr. Owens’ unreasonable behaviour, and that she was more sensitive than most wives. 

The decision seriously floodlit the fault in the system, which had been the subject of meandering debate for two decades.  What followed was an outpouring from the family law community in support of legal reform. This resulted in the Divorce, Dissolution and Separation Act 2020 being introduced in England and Wales on 6^th April 2022, bringing with it a swathe of landmark changes in the way couples divorce.

The new law has:

•  removed the ability to defend proceedings;
•  simplified the language used; and,
•  revised the statutory timeframe involved. 

The sole ground of “irretrievable breakdown” of the marriage still remains, as does the rule that the parties must be married for one year before commencing divorce proceedings.  However there is no longer a need to establish one of the five facts, those being adultery, unreasonable behaviour, two years separation with consent, two years desertion and five years separation.  Instead, the Applicant (formerly the Petitioner) must provide a statement to the court, within the Application (formerly the Petition) stating that the marriage has broken down irretrievably.  The result is that the person commencing the proceedings does not have to blame the other person for the breakdown of the marriage. 

It is also possible for the parties to submit a joint application if they agree that the marriage has broken down irretrievably.

Twenty weeks after filing the Application, the Applicant can apply for a Conditional Order (formerly Decree Nisi) and 6 weeks thereafter, a Final Order (formerly Decree Absolute).   This all sounds very straightforward, but it is worth noting that if there are child arrangements and finances to deal with, those proceedings will run parallel to the divorce proceedings and can take longer to finalise, resulting in a delay of the Final Order being pronounced.

The much hoped for outcome is that the use of less confusing language, along with a streamlined approach will make the process more cost efficient and less stressful for the parties. 

Bermuda

As of December 2022, the process for divorce in Bermuda remains unchanged. However, Bermuda should shortly catch up and implement the no fault divorce procedure.  The Matrimonial Causes (Faultless Divorce) Amendment Act 2022 was passed by Parliament in February 2022 and is awaiting a commencement order, to bring the no fault divorce into effect. 

Whilst much the same as the English legislation, the 3 year rule in Bermuda will still apply. This means that the parties must have been married for three years prior to commencing divorce proceedings, unless exceptional hardship (on the part of the Applicant) or exceptional depravity (on the part of the Respondent) can be established. 

Another notable difference is that the Conditional Order can be applied for 12 weeks after issuing the Application and the Final Order 8 weeks thereafter.  The minimum time in which the proceedings could be concluded is therefore 20 weeks as opposed to 26 weeks in England and Wales.  However, bear in mind the negotiations around child arrangements and finances can delay the application for the Final Order in divorce as mentioned above. 

We look forward to welcoming these new changes in Bermuda, as the jurisdiction continues to provide and develop an effective and efficient family justice system.

For further information about divorce or matrimonial and family law please contact ncavanagh@mjm.bm