Lords debate Divorce Bill – Part 1

On the 3rd of March the Divorce, Dissolution and Separation Bill, which aims to bring in a system of no-fault divorce, went through its committee stage in the House of Lords. The debate was quite lengthy, commencing at 4.11 pm and ending at 9.33 pm, and covered a lot of ground. Obviously, I cannot go through it all in detail here, but I thought I would mention a few highlights, in this and my next post (in view of the significance of this reform, and the importance of getting it right, I felt that the debate merited two posts). 

Definitely Maybe

OK, I never thought I would include a reference to Oasis in one of my posts, but the title of their debut album immediately sprang to mind when I read of the first proposed amendment to the Bill, moved by Lord McColl of Dulwich. 

Lord McColl does not think that the initial stage of the proposed new divorce procedure, involving the filing with the court of a statement by one or both of the parties that the marriage has broken down irretrievably, is consistent with the aim of the Bill to give the parties a chance to effect a reconciliation, the main reason for the minimum twenty-week period between issuing proceedings and the making of a conditional divorce order. He feels that the statement makes the divorce seem inevitable from the outset, and says that any such statement should therefore only come at the end of the divorce process. 

He suggests that the initial statement should say that the petitioner (to use the present parlance) thinks the marriage may have broken down, but not definitely irretrievably. 

Hmm. I agree with the response to the amendment by Baroness Butler-Sloss (who ought to know a thing or two about the subject, having been President of the Family Division between 1999 and 2005), who said that the evidence clearly shows that that the majority of people who commence divorce proceedings know perfectly well when a marriage has irretrievably broken down. As I have said myself many times, people do not start divorce proceedings unless they are certain that their marriage is over. Such an amendment is therefore superfluous, and may even deceive the respondent into thinking that there is a possibility of reconciliation when there is not. 

The wellbeing of any children 

The second proposed amendment, moved by Baroness Howe of Idlicote, “would require the courts to take the wellbeing of any children in the family into account before granting a divorce order to end a marriage. 

I will deal with this quite shortly. I can see where the Baroness is coming from. Indeed, for the entire time that I was practising there was a requirement that in any divorce proceedings the court had to consider the arrangements for any dependent children, and the court could refuse the divorce if it was not satisfied with those arrangements. 

However, that requirement was removed in 2014, when it was decided that it was best to separate children issues from the divorce. There will be no going back to the old ways. 

12 months for a divorce 

The next proposed amendment I want to mention was moved by Lord Mackay of Clashfern no less, the former Lord Chancellor. He would like to extend the minimum period for a divorce, from six months to one year presumably, as Lord Marks of Henley-on-Thames commented, on the basis that the law obliging people to stay married for longer will either help children or encourage more reconciliations. 

No. Just no. 

Six months is quite long enough to drag out the procedure and prevent the family (including any children) from moving on with their lives. In fact, I think six months is too long – three months would be quite enough to cover the rare instance of someone changing their mind on divorce. As Lord Marks said, once the decision to divorce has been made, forcing parties to stay married for longer than is necessary to confirm that decision serves no purpose. 

OK, I’ll stop there for now, and bring you the next instalment tomorrow. 

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

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