On Tuesday David Bacon MP’s ten minute rule bill to introduce no-fault divorce passed its first reading. It will have its second reading on the 4th of December. I could say a lot about divorce reform (I already have elsewhere – see, for example, this post), but here I will keep my comments upon the bill to a minimum.
The proposed bill is very simple, essentially having just two points:
- Adding to the ‘five facts’, one of which must currently be proved to show that the marriage has irretrievably broken down (adultery, unreasonable behaviour, two years’ desertion, two years’ separation and consent or five years’ separation) an additional option of divorce on the written consent of both parties, without the need to prove anything else. David Bacon specifically indicated that the other ‘five facts’ would be retained, although I cannot see the need for two years’ separation and consent to remain – if you can get a ‘consent divorce’ without waiting two years, it is clearly superfluous.
- Including a 12 month ‘period for reflection and consideration’, to give the parties an opportunity to reconsider whether they wish to proceed with the divorce (I am not clear whether this is just to apply to the ‘consent’ fact, although if it is then that would obviously be a serious disincentive to using that fact).
In principle, a simple divorce by consent appears to be a good idea, doing away with the need to prove that the other party was at fault for the breakdown of the marriage, which can obviously increase animosity unnecessarily and is in any event artificial – few marriage breakdowns can be attributed solely to the ‘fault’ of one party. However, I would go much further: there is no point in keeping a marriage going when one party wants out. Accordingly, I would say that either party should be able to file a statement of marital breakdown, to which there is essentially no defence (apart, perhaps, from financial hardship). The period of reflection (see below) would then commence, at the end of which the divorce can be finalised. The ‘five facts’ that exist now can be done away with completely.
I turn now to the 12 month period for reflection. Whilst I agree that there should be some delay, rather than having the divorce effectively granted ‘by return of post’, I’ve never been quite sure why so many people, politicians particularly, believe that such a long period is required. So far as I can see it just prolongs matters unnecessarily, preventing the parties from getting on with their lives. My view is that a three month period should be quite sufficient.
Along similar lines, there is also the issue of whether arrangements for children and finances should be sorted out before the divorce is finalised, as I understand is the case in many other jurisdictions. Personally, I think that there may be good reasons to sort out finances before finalising the divorce, as there can be a direct connection between finances and divorce, especially in relation to pensions. However, I’m not so sure about arrangements for children. After all, many children disputes take place quite independently of any divorce proceedings, and anyway arrangements for children are not final in the same way as finances.
Those are my thoughts, but before I close I should mention that Sir Edward Leigh MP opposed the bill on the erroneous basis that it would increase the number of divorces. I have explained many times previously that this is not so (we effectively already have no-fault divorce now for cases where both parties want it, albeit not in name), so I will say no more about it here.
In summary, the bill is interesting, but seriously flawed. Whatever we do though, as Marilyn Stowe said on Twitter, please don’t rush into it without proper consideration and careful drafting!