Should the Lord Chancellor be able to alter the new divorce system?

Divorce | 24 Feb 2020 0

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New divorce system: Henry VIII powers 

As I mentioned here briefly on Friday, the House of Lords has expressed concern about a couple of clauses in the Divorce, Dissolution and Separation Bill, which aims to introduce a system of no-fault divorce. They fear that, as drafted, the Bill will allow the Lord Chancellor to make fundamental changes to the new divorce system, without parliamentary scrutiny. In other words, the Bill will confer so-called ‘Henry VIII powers’ on the Lord Chancellor. 

As at present, the new system will operate in two stages: the conditional order (the equivalent of the present decree nisi) and the final order, which is the equivalent of the present decree absolute. A central element of the reform is the timescales involved. As drafted, the Bill requires that twenty weeks have elapsed since the start of the proceedings before an application for the conditional order may be made and that six weeks must have elapsed since the conditional order before the final order can be made (similar to the present six-week requirement between decree nisi and decree absolute). Accordingly, a divorce under the new system will usually take at least twenty-six weeks (the court can shorten the periods in any particular case). 

The stated purpose of the twenty-week period before conditional order is that it should act as a ‘period of reflection’, during which the parties, or at least the party who issued the divorce application, can consider whether they do indeed wish to dissolve their marriage. The rationale for the six week period was explained by a government Minister as “to improve the financial arrangements”, which may seem a bit odd, as financial arrangements are likely to take longer than that to sort out, but of course, the party can delay applying for the final order until they have been sorted out, as at present. 

The new system will apply both to divorces and to civil partnership dissolutions. 

Section 1 of the Bill provides that the Lord Chancellor may by order made by statutory instrument amend the two periods so as to shorten or lengthen them, provided that they do not exceed twenty-six weeks. So basically it allows the Lord Chancellor to shorten the periods, without recourse to parliament. There is a similar provision relating to civil partnerships. 

Under the present law there are similar provisions, but only enabling the period between decree nisi and decree absolute to be altered. Indeed, the period was altered for divorces, from the period of six months as originally enacted, to the period of six weeks. 

Altering the rationale 

In a report on the Bill by the House of Lords’ Delegated Powers and Regulatory Reform committee, concern has been expressed about the power given to the Lord Chancellor to shorten the periods. The committee fears that it

could be used in a way which radically altered the rationale for the revised divorce process.

They, therefore, recommend that the relevant clauses in the Bill be removed.  

There is, of course, something ironic about the reference to Henry VIII when discussing divorce, but I suppose even the Lords would prefer a much-shortened divorce system to the type of ‘shortening experienced by two of Henry’s less fortunate wives! 

Anyway, despite the fact that I feel that the twenty-week period is longer than it need be (I believe half of that would be quite enough – why make people wait longer before they can get on with their lives?), I have to say that it does seem odd that such a change could be made to the system without parliamentary scrutiny. If parliament has approved the new system, then surely it should be for parliament to make any substantial change to it? 

Why is the power included in the Bill? Simply to save the expense of having to have any change scrutinised by parliament? Or is it, as the Ministry of Justice has indicated, simply a ‘carry-over’ from the current system? But if the latter, the current system only allows for non-parliamentary alteration of the six-week period. There is no set period that must elapse before decree nisi. 

Having said that, I am more concerned that the new Bill passes as soon as possible, with or without Henry VIII powers. We have waited quite long enough for no-fault divorce. 

You can read the report on the Bill by the House of Lords’ Delegated Powers and Regulatory Reform committee, here, and you can find the Divorce Bill here. 

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If you would like any advice on family law you can find about our legal services here or please do contact our Client Care Team to speak to one of our specialist family lawyers here. 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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