The concept of ‘fairness’ is, of course, at the very heart of our legal system. It means that the system should be fair towards all parties. Thus, for example, when any type of application is made to a civil court, the respondent should not be at any disadvantage merely by virtue of not being the party who issued the application. Accordingly, to give a specific example, the respondent to a financial remedies application is, in theory at least, likely to achieve the same outcome that they would have done if they had been the party making the application. To put it the other way, there is no advantage in being the party who issued the application.
But when it comes to divorce itself, things are not quite so clear, and they may become very much less clear if the government’s Divorce, Dissolution and Separation Bill, which aims to introduce a system of no-fault divorce, is passed in its original form.
As drafted, the Bill proposes that a divorce will take a minimum of 26 weeks. There will be the usual six weeks between the conditional order (which will replace the decree nisi) and the final order, which will replace the decree absolute. However, before the conditional order can be made, the period of twenty weeks must have elapsed since the start of the proceedings, i.e. when the applicant, or both parties jointly, filed with the court a statement that the marriage had irretrievably broken down. The twenty week period is the so-called “period for reflection”, designed primarily to give the parties time to reconsider.
But in their written evidence for the Bill’s committee stage the Law Society raised an issue with this. They point out that, where the application is made by one party only, the respondent may not receive notice of the divorce until some considerable time after the proceedings started, for example due to court delays, interference from the petitioner/applicant in delaying receipt by the respondent, or the simple length of time of delivery if the respondent is living abroad. They say that this “is unfair on the recipient [i.e. the respondent] and allows no direct opportunity for reconciliation or mediation.” They therefore propose that the twenty week period only begins when the respondent has actually been served with the divorce application.
Although not directly relevant for the purposes of this post, I should say at this point, for the sake of completeness, that supporters of the Bill in its current form point out that if such an amendment were made then that would give respondents the opportunity to delay the divorce by deliberately avoiding service, or even to suggest that they will only accept service if the applicant agrees to their terms regarding financial matters, or arrangements for children.
Leaving that point to one side, just how important is the period for reflection? As I’ve said here before, the marriage is almost always finally over before the divorce proceedings are commenced, and during the committee debate, the Parliamentary Under-Secretary of State for Justice Paul Maynard accepted that the prospect of a couple reconciling once divorce proceedings have started is low. So I question whether it is really that important anyway (personally I would reduce its length, or do away with it entirely, not that I believe that will happen).
In any event, the particular nature of divorce, which makes it so different from most, if not all, other legal remedies, is that the ultimate decision does not lie with the courts. The courts can do nothing to repair a broken marriage. Only the parties together can do that. And if the party who applied for the divorce does not want to reconcile, then there is nothing the respondent can do about it – the marriage is over. It therefore matters little or nothing if the respondent has not been given the full twenty weeks for reflection. Yes, it is true that during the twenty weeks the respondent could try to persuade the other party to change their mind, but surely, the respondent will already know that their marriage is in difficulties, and will, if they want to save it, already be doing all they can to that end?
Obviously, the divorce should not go through if the respondent has not been served, but otherwise my view on this point is that the reality is that there would be little or no unfairness to the respondent if they did not get the full twenty weeks (of course, they will not get it anyway, unless they are served on the very day that the application is issued, which must be extremely unlikely).
Otherwise, I’m sure some, or even many, may say that the other glaring ‘unfairness’ to the respondent under the proposed new law is that they are denied the right to defend the divorce. Surely, everyone has a right to defend any application made against them? I can deal with this quite quickly. As I said above, divorce is not like any other legal remedy, and defending a divorce does not repair a broken marriage. It is ultimately a pointless exercise. The whole question of fairness does not come into it. In any case, it may be said that effectively little will change, as the current law does not really give the respondent the chance to defend a divorce anyhow, only to delay it.
The Bill has completed its committee stage in the House of Commons, without amendment, and is now due to have its report stage and third reading, on a date to be announced. The Bill’s page on the Parliament website is here. You can find the Law Society’s written evidence for the Bill’s committee stage, here.