The Ministry of Justice has recently concluded its much publicised consultation on reforming divorce. within it, it proposes to test a minimum six-month wait to grant a decree absolute after the decree nisi has been granted. The MoJ has stated, “We think this allows a sufficient period for most couples to consider the implications of divorce and reach agreement on practical arrangements, while not being so long a period of uncertainty that it would have a long-term effect on children.”
The current “cooling off period” is six weeks and one day, in operation since 1973, although no clear evidence has been offered in support of the justification for the substantial increase in time. When considering an application for decree absolute, thereby formally ending a marriage, the court is already obliged to be satisfied that to make the decree absolute pronouncement will not cause hardship and, in the case of a marriage with children under 18, that satisfactory arrangements have been made for those children. Therefore, provision already exists to enable the court to defer the final decree pronouncement if it is unsatisfied with the parties’ financial arrangements.
Many practitioners oppose the MoJ’s proposals, indicating that it may caused emotional upset and distress at elongating the divorce process unnecessarily. It must be remembered, that in many cases, parties will be seeking to divorce after a period of separation already measured in years. To add six months to this period for no discernible reason may appear somewhat arbitrary and unwelcome.
Commenting on the suggestions from the MoJ, partner Pui Uro stated, “Whatever the outcome, it is widely accepted that the divorce laws in England and Wales are in urgent need of reform. However, it is imperative that separating couples are not used as some form of social experiment and that the MoJ does not throw out the baby with the bathwater. The “cooling off period” allows divorcing couples to reflect on matters, including inter alia, the possibility of a reconciliation with their spouse. There is no meaningful evidence that parties require longer than the current allowance of six weeks and a day, nor evidence that parties actually require six months to reflect on this.”
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