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Lords debate Divorce Bill – Part 2

Divorce Bill: Continuing my look at the highlights of the recent committee stage debate of the Divorce, Dissolution and Separation Bill on the House of Lords:

When should the 20 week period begin?

The next proposed amendment I want to look at was moved by Lord Farmer and is one that I believe I may have mentioned here previously.

Under the proposed new system the court cannot make the conditional divorce order (the equivalent of the present decree nisi) until a 20 week period for reflection has elapsed from the date that the divorce proceedings were commenced. The idea behind the period is primarily to give the parties a chance to reflect, and possibly change their minds about the divorce.

But there are concerns that the respondent to the divorce may have had less than 20 weeks, as there will be a delay between the issuing of the divorce and them being served with the papers. It is therefore proposed that the 20 week period should not begin to run until the date that the respondent is served with the papers.

The problem with this is that it gives the respondent the opportunity to delay the divorce, simply by avoiding service of the papers, as we know many respondents attempt to do under the present system. Why give them this opportunity? They obviously already know about the divorce.

No financial proceedings until after 20 week period

Moving on (I shall skip over the ‘Henry VIII powers’ issue, which I have already discussed here, in this post), the next proposed amendment I want to mention was also moved by Lord Farmer, who suggests that no financial remedies application (save for maintenance pending suit) should be allowed to be made without the agreement of the other party, until after the 20 week ‘period for refection’ has elapsed.

Lord Farmer says that this would allow a ‘genuine pause for reflection’, improving the chances of a reconciliation.

I disagree, for the same reason I have given on many occasions: people very rarely start divorce proceedings unless they are certain that the marriage has broken down irretrievably. Delaying commencement of financial remedy proceedings will unnecessarily delay the divorce. In any event, I presume that it will still be the case that no final financial remedy order can be made until after the conditional divorce order, and will not take effect until after the divorce has been finalised.

Recording a lack of consent

Another proposed amendment moved by Baroness Howe of Idlicote is that where a respondent to a divorce does not consent to the divorce then that fact should be recorded on the divorce order. The Baroness seems to believe that this will go some way towards ‘compensating’ the respondent for the fact that they cannot defend the divorce.

I’m afraid I find the idea pointless. It will make no difference whatsoever. The respondent knows whether they consented to the divorce and, quite frankly, no one else is likely to care.

Monitoring the effect of the reform

The last two proposed amendments I want to mention come from Lord Farmer again, and Baroness Deech. Lord Farmer wants the Secretary of State to be required to publish an annual report on the impact of the reform on divorce proceedings and marriage, and Baroness Deech, who of course has her own private members’ bill seeking to reform the law on financial remedies following divorce, wants the Secretary of State to conduct a review of the current provisions on financial remedies, essentially to see whether they are still fit for purpose.

As to the former, I think the marriage and divorce figures that are already regularly published should surely already provide a good indication of the effect, if any, of the reform.

As to the latter: what has this got to do with no-fault divorce? It seems to me that the good Baroness is attempting to push for her own reform by the back door. In any event, as she mentions, and as I mentioned here myself last month, the Government is already considering a consultation on possible reform of the law on divorce finances.

To conclude, the Bill passed through the committee stage without any of these (or any other) amendments being adopted and now goes to the report stage in the House of Lords, which is scheduled for the 17th of March.

You can find the first part of the debate here, and the second part here. You can follow the progress of the Bill here.

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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, with his content now supporting our divorce lawyers and child custody lawyers

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  1. JamesB says:

    I suggest you need to realise that the respondent’s feelings matter and a period of time is the least he or she is owed in which to get ready to come to a realistic deal rather than fight (which is how the five stages of grief go).

    I can see why you as a lawyer would think otherwise (or rather wouldn’t care) as making money from warring exes is an historic cash cow for lawyers. However, establishment need to think for the people not just themselves if they want to maintain any legitimacy.

  2. JamesB says:

    I suggest 1 year as per the Scottish system. Indeed I suggest the Scottish system as a whole.

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