The Ministry of Justice’s consultation on reforming the legal requirements for divorce closed last week. Responses to the consultation have been submitted by all interested parties, including organisations representing lawyers in general, and family lawyers in particular.
One of those responses, from The Bar Council, which represents barristers in England and Wales, has raised a few legal eyebrows.
I haven’t seen The Bar Council’s full response (it doesn’t appear to have been published on its website), but the Law Society Gazette reported that The Bar Council have told the government that they consider that “making separating couples wait six months before their divorce is finalised is an ‘unacceptable delay’ for those who do not have children.”
To explain, in its consultation document (which you can find here) the Ministry said that it wished to test a proposal that there be a six month minimum timeframe between the decree nisi and the decree absolute. The basic idea is that: “The Government wishes to make sure that couples have sufficient time to reflect on the decision to divorce and to make arrangements for the future.” The Ministry felt that this timeframe “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.”
There is, of course, a ‘period of refection’ built into the present law, but it is just six weeks and one day. The Bar Council have apparently said of the proposal that it be extended to six months:
“It is not clear whether there is empirical or anecdotal evidence that the current period of 6 weeks and 1 day is too short a period of time and what the reasoning is for extending it to 6 months. The period is a minimum and a decree absolute will not be made until the court is satisfied that to make a decree absolute will not cause hardship and, in the case of a marriage with dependent children, that satisfactory arrangements have been made for the children.”
As I say, this has raised a few legal eyebrows. One eminent QC said on Twitter that he was surprised to read it, and that: “Provided there are ‘exceptions’ in case of genuine urgency a 6 month delay seems not unreasonable to me.” This received a response from an eminent family law solicitor who also expressed surprise, saying that unless the responses were “broadly aligned” we were “not going to get much-needed change over the line”.
But is The Bar Council right?
Leaving aside the fact that The Bar Council seem to be unaware that is no longer necessary for the court to be satisfied about arrangements for any dependent children before the divorce can go through, I believe they are. In fact, to me there is something odd about imposing an arbitrary period for couples to reflect upon whether they want to go through with the divorce.
As The Bar Council says, the proposal “may not give sufficient weight to the serious consideration that spouses give to petitioning for divorce at the outset rather than in the period between nisi and absolute decrees”. Quite. The idea of a ‘period for refection’ is just another example of the ‘we know best’ sanctimonious attitude of so many who always want to have a say in how our divorce law is structured. Why don’t we just treat divorcing couples as adults, and let them decide when their marriage should come to an end?
And anyway, how often does it happen that the parties become reconciled in the six week period between decree nisi and decree absolute? I’m not sure I ever recall it happening in all my 26 years practising as a family lawyer. Whatever the number is, it must be vanishingly small. Extending the period to six months will only extend the pain, and delay the time when the parties can get on with their lives.
Which makes me wonder whether we even need a two-decree system. In his foreword to the consultation document Lord Chancellor David Gaulke says: “It is right that the legal process for divorce should give couples an important opportunity to consider the implications of divorcing.” But why? As The Bar Council said, and as I can testify from my 26 years practising as a family lawyer, spouses seeking a divorce have already reflected hard upon the matter before the process begins. They do not need further time for reflection.
Of course the delay is not just about reflection. The Ministry mention ‘practical arrangements’ which have to be sorted out. In particular, this means sorting out financial and property matters. But there is of course nothing to say that these matters will be resolved within six months – they often take longer. Would it make more sense to say the divorce can only be finalised (whether by second decree or the only decree) when finances have been sorted out, as is the case in other countries?
I realise that these thoughts add to the lack of a ‘broad alignment’ of proposals, but I doubt anyway that the government will be swung by what lawyers have to say. And I suspect that there will be a considerable array of other ideas contained within the responses to the consultation. Whether those ideas will persuade the government to deviate from its plans, we will just have to wait and see.