As anyone with an interest in the family justice system will be aware, the Government’s Divorce, Dissolution and Separation Bill, which is intended to introduce a system of no-fault divorce, is currently navigating its way through Parliament. It recently completed its committee stage, and is due to have its report stage and third reading on a date to be announced.
Of course, the Bill that hopefully eventually receives the Royal Assent may not be exactly the same as the Bill that was introduced. I have therefore been looking at amendments to the Bill that have thus far been tabled.
At the latest count four new clauses have been proposed, along with nineteen amendments to existing clauses. I won’t go over all of the amendments here, just those that I find to be of particular interest.
The first amendment I want to mention may perhaps be considered by many to be somewhat futile. It was tabled by Sir Edward Leigh MP, who is a well-known opponent of no-fault divorce. He is obviously concerned that under the proposed new system one party to a marriage can ‘force’ divorce upon the other. He therefore proposes that a clause be added to the Bill to the effect that where a divorce application is made by one party only, it should be recorded on the divorce order if the other party to the marriage did not consent to the divorce (the other party will have to have told the court that they do not consent). Sir Edward explains: “This new clause would allow a party to a marriage who does not want to divorce to have it on the public record that the divorce was against their wishes.” Quite what this would actually achieve, particularly considering that, save for the parties and court officials, very few people would ever see the divorce order, I don’t know. The other party will already know that they did not consent. But so what? (Sir Edward has also tabled an amendment to do away with the no-fault provision in the Bill, but I will gloss over that.)
A new clause that some may consider rather more sensible is to increase support for marriage and civil partnerships, and provide new support for couples where an application for divorce has been made to the court. This sounds like a reasonable idea, although exactly what support would be provided is not clear. I am also sceptical that the necessary new funding would be forthcoming. In a similar vein, another amendment proposes that on receipt of a divorce application the court must ensure that both parties are provided with information on marriage support or relationship counselling available to couples as an alternative to divorce proceedings.
Moving on, Frank Field MP proposes that the Bill be amended so that there be a requirement for the court to take the wellbeing of any children in the family into account before granting a divorce order. This is, in fact, a step back to how things used to be under the present law. It used to be that before the divorce could proceed the court had to be satisfied about arrangements for any minor children, but that requirement was removed in 2014. Arrangements for children have been clearly separated from the divorce process, and I can’t see us going back to the old system, or something similar.
The last amendments I want to mention relate to the 20 week ‘period for reflection’ before the conditional divorce order (i.e. decree nisi) can be made.
As drafted, the period would begin when the proceedings are started. An amendment proposes that where the divorce application is made by one party only, the period should only begin when the other party is served with the application. This addresses the concern (raised, if I recall correctly, by the Law Society) that the other party may not receive the application until sometime after it is issued, thereby denying them the full 20 weeks. As I have said here previously, supporters of the Bill in its current form point out that if such an amendment were made then that would give the other party 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.
Another amendment proposes to further ‘protect’ the other party by providing that in single-party divorce applications no financial remedies application, save for interim maintenance, may be commenced within the 20-week period, unless the other party agrees. To me, this in most cases will just further delay the inevitable. As I have said here many times, it is extremely rare for someone issuing divorce proceedings to then change their mind. The marriage is over – surely it would be best to sort everything out as quickly as possible?
Of course, all of the above may turn out to be academic if the current parliamentary uncertainties trigger a general election before the Bill is passed. In that case one can only hope that the new government, whatever form that takes, will resurrect the Bill.
You can find all of the tabled amendments, up to the 16th of July, here.