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Marriage and Family

Divorce bill needs to be changed to treat both parties equally

5 February 2020

Today the Divorce, Dissolution and Separation Bill (HL) will have its Second Reading in the Lords. This is the first serious opportunity for Peers to consider the Government’s bill to introduce ‘no-fault’ divorce in England and Wales.

The plan is to change the current system, where a petitioner for divorce must prove fault, and replace it with a notification system. The old five facts system will be replaced with a requirement to provide a simple statement asserting irretrievable breakdown from one or both parties.

When the proposals were first seriously mooted by the government, a public consultation was held. There was some serious opposition to the proposals. In fact, an eye-watering 80 per cent of those who responded to the consultation did not agree with the proposals to replace the five facts with a notification process. A mere 17 per cent were in favour.

Undeterred by such strong evidence of public disquiet, the Government simply pushed ahead anyway.

Barring a surprising and unexpected turn of events, because of political will and significant pressure from lawyers, this bill is likely to become law. However, before it gets Royal Assent, it MUST be changed. Or England and Wales will end up with one of, if not the quickest divorce process in the world, which will surely only lead to more divorces, when the Government should be focusing on helping couples stay together.

Let me be clear, I do not think this divorce bill is a good idea. It will have a negative impact on marriage which is a key foundation stone for a strong society. Human nature is such that if you make something easier, it will happen more often. This is backed up by studies which show that if you make divorce easier, it happens more often[1],[2],[3]. Moreover, this change will, I believe, have negative consequences for children. Undermining the stability of marriage will undermine it’s ability to bring security to children’s lives.

But be that as it may, and given the likelihood of the legislation passing, I repeat what I’ve said already. It must be changed. Let me explain why.

The bill provides for a 20-week period of notice between the start of the proceedings and the conditional order of divorce. There will then be just six weeks between the conditional order and the final order. The government has said the aim of this 20-week period is intended to ensure that decisions to divorce remain a considered one.

In practice the Bill’s proposals may mean that the spouse responding to the request for a divorce may not receive a notice of the divorce petition until a number of weeks after the 20-week period has already started running. In fact, the responding spouse could be notified as late as the 19th week because the only requirement is that the court must confirm that the respondent has been served notice not that the respondent is aware of the divorce from when the 20-week period starts running.

In a useful blog, leading Family lawyer, Prof. Hodson OBE said this: “The respondent may not know about any divorce taking place at all until it’s all too late. She or he may only know when they are served along with the application for the first decree of divorce with only six weeks or so then to go. There is no duty to serve at the start of the 20 weeks. It can be any time before the first decree.’[4]

The Law Society has also suggested the need for a change on this point.[5]

Imagine you come home one day, to discover your husband/wife has filed for divorce and in just one week’s time, the Conditional Order will be granted. Then in just over another month’s time, the Final Order will be served. You have no right to contest. No legal right to call a halt and dispute the proceedings. Imagine starting the often-messy process of divorce negotiations over finance and childcare on that foot. Not only is the process happening in a rush, the mere reality of the divorce comes as a massive shock.

Even in a liberal, autonomous culture this cannot be right. Both parties in the divorce should have equal time to reflect on their marriage and review whether they want to go through the with divorce or not.

As such, the Government’s bill needs to be changed. Ideally, Peers will put down amendments so that it is clear and fair as to when the 20-week notice period should start for married couples. One option is to set the start of the 20-week period at the time the application is filed in the case of an application by both parties. When only one party makes the application, the 20-week period should instead start once the other party has received notice of the divorce application form the court.

In an ideal world, the whole idea would be abandoned. But in a complicated world, legislators need to recognise this clear flaw in the bill (there are others!) and make changes to ensure there is genuinely time for couples to reflect and think. The Government, meanwhile, if they push ahead with this bill, should also make sure more funding is given to relationship support. The aim should be helping couples stay together, not making it easier for them to separate.

[1] González, Libertad and Viitanen, Tarja K. (2006) The Effect of Divorce Laws on Divorce Rates in Europe. Department of Economics, University of Sheffield ISSN 1749-8368. Pg. 4.

[2] Friedberg, Leora. (1998): “Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data,” The American Economic Review, 88(3), 608–627.

[3] Allen, Douglas W. (2006) Do No-Fault Divorce laws Matter? A Survey, 1995-2006. Simon Fraser University. Pg. 10

[4] Prof David Hodson, ‘The Fastest Divorce in the World?’ International Family Law Group, January 2020. https://www.iflg.uk.com/blog/fastest-divorce-law-world

[5] https://www.lawsociety.org.uk/...

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