New briefing for Lords Report Stage – amendment by amendment analysis

A quick briefing note on the research evidence for the new amendments being debated at Report stage in the Lords on 17th March 2020. The amendments include an attempt to reintroduce fault and separation periods. I’ve looked at each one and, leaving aside the amendment on Henry VIII powers by Lord Keen, none are consistent with the research evidence from studies from the 1970s, 80s and 90s and the Finding Fault study. Let’s hope that the Bill continues unamended in its present form, as indeed it did in the Commons last year.

Apologies that the briefing is not up to the same production standards as the last one. Time was against us!

 

New Finding Fault amendment-by-amendment briefing for the Lords Committee Stage

We have produced a new briefing on the research evidence on each of the amendments tabled for the Committee Stage of the Divorce Bill on 3rd March 2012.

The Briefing looks at the research evidence (or lack thereof) for amendments on:

  • Divorce stages (Amendment 1)
  • Children and divorce (Amendments 2 & 14)
  • Information (Amendment 3)
  • Length of the minimum period (Amendment 4)
  • Defining the start of proceedings (Amendments 5 & 15)
  • Henry VIII powers (Amendments 6 & 16)
  • Bar on financial provision proceedings (Amendment 7)
  • Minimum period for service (Amendments 8, 9, 11, 12, 13, 17 & 18)
  • Consent (Amendment 10)
  • Reporting on the impact of law reform (Amendment 19)
  • Review of financial remedies law (Amendment 20)
  • Funding for marriage support services (Amendment 21)

Divorce Bill completes Second Reading – a quick reaction

It is very welcome news that the Divorce Bill has had its Second Reading in the House of Lords. It now moves quickly onto the Committee stage, scheduled for 3rd March. The focus now is getting the Bill through the Lords quickly and returning it again to the elected House of Commons where the same Bill proceeded unamended in the previous parliament.

I live-tweeted the whole three hour debate so got to listen to all of the speeches. You can read them here.  So, what did I make of it?

It is clear that there is very strong support for the Bill, both outside and inside parliament. There are some concerns about specifics, mainly around the issue of whether the clock on the pre-conditional order 20-week period should start ticking at application or at service. There is also, as we always knew, a very well-organised and vocal group that are ideologically-opposed to divorce reform. They are likely to punch above their weight politically, but we know that they are a parliamentary minority and are way out of step with the public mood. It will be a tough (and probably unpleasant) fight. But the evidence is for reform, as it has been for decades. We’ll get there, but expect a few more research/myth-buster briefings along the way.

So two key points for now.

1. Keep it simple. Keep it focused.

The government is determined, quite rightly in my view, to keep the focus of the Bill on reform of the grounds for divorce. There are many issues in family law and policy that require urgent reform. But this Bill is not the vehicle to tackle them. The Bill is a stripped-down racing bike designed to do one simple (but vitally important) task. It is not a juggernaut for tackling a whole range of issues.

Baroness Janke gave a brilliant analysis of the gender gap in pensions after divorce. Baroness Meacher raised the issue of pre-nups. But we can’t address the fundamental problems with financial remedies on the hoof by tacking on a few amendments to this Bill. That would not do justice to the difficulty of the issue and would also be likely to derail divorce reform.

Similarly, Baronesses Burt and Hunt raised an issue about trans people and the law of nullity. That again, requires a considered debate of nullity as a whole, not picking out just one element of several. I suspect, in any case, that any amendments of this kind would be immediately stripped out in the elected House of Commons.

2. When two worlds collide.

The other overwhelming impression from the debate is of a collision between two worldviews from will rumble on throughout the passage of the Bill. On the one hand, are those that recognise, from personal or professional experience or from research evidence, that the current divorce law does not (and cannot) stop relationships breaking down. The current law just makes that really difficult process worse for adults and children. As Baroness Chakrabarti noted, the law cannot make people love each other. And, as Baroness Meacher and others noted, it should stop pretending to do so with the charade of fault. This worldview is based on a pragmatic recognition of the limits of the law once relationships have broken down. And as Lord Mackay’s support for the Bill shows, this recognition of the legal reality is not at all inconsistent with a deeply-held religious conviction or support for marriage. 

On the other hand, are those with an ideological opposition to divorce and who oppose reform regardless of how the current law works. This was evident in the Second Reading debate where a collection of three Anglican Bishops, some Conservatives and a DUP peer argued against the Bill. Their main points were that marriage is a sacrament and must be protected (regardless of the parties faith, or lack of it). There is an assumption that married people make rash decisions about separation and so must be protected from themselves by making the legal process as difficult as possible. The assumption is that the law can and should be a bulwark against divorce. Of course, this is an ideological take on how the world should be, not how it is in practice.

Is there any hope of bridging the gap? I doubt it and I’m not sure that it would be desirable. As a socio-legal researcher who is interested in how the law works in practice, it is frustrating to how easy it is for ideology to overtake reality. And worse, to see how a tiny and unrepresentative minority of evangelical/Christian right organisations are able to try to hijack the debate.

What we need is for all those with personal or professional experience of how the law works in practice to get in touch with peers and MPs to talk them through the reality, rather than the fantasy and distortions. I’ll be doing another myth-buster briefing shortly to address some of the issues raised in the second reading.

 

 

New Finding Fault briefing for the House of Lords Second Reading debate

We’ve now released a new briefing for peers in advance of the Second Reading debate on the Divorce Dissolution and Separation Bill on the 5th February.

The short briefing sets the research evidence on why law reform is needed and explains how the current Bill will address those problems fairly and effectively. The main message is that this is a pragmatic reform, that retains what works about the current law, but removes what creates needless conflict and distress. The same Bill proceeded unopposed in the Commons in the last parliament. Well done to the Ministry of Justice for ensuring that the Bill has been brought back so quickly.

Eagle-eyed readers might notice that the briefing is almost identical to the one we produced for MPs prior to Second Reading in the Commons and being studied here by a very dapper Sir Bob Neill MP.

Third time lucky for the Divorce Bill?

 

After a turbulent few months in politics, the government’s Divorce, Dissolution and Separation Bill has been reintroduced into parliament for the third time.

The current Bill is identical to the widely-welcomed Bill introduced by the then Lord Chancellor, David Gauke, in June 2019. That first Bill raced through the Second Reading and Committee stage of the House of Commons with cross-party support and without amendment. It was still waiting for Report stage when parliament was prorogued. The same Bill was then reintroduced by the new Lord Chancellor Robert Buckland in October 2019, but fell when parliament was dissolved for the general election.

It is really good news that government and the Ministry of Justice remain fully committed to the Bill. As the MoJ press release pointed out, it is now fifty years since the current divorce law was introduced and reform is long overdue.

The Bill very cleverly combines what works about the old law, but removes what causes so much unnecessary harm. It proposes to:

  • Retain ‘irretrievable breakdown’ as the sole ground for divorce and civil partnership dissolution
  • Change how irretrievable breakdown is proven. A statement of irretrievable breakdown will replace the current five ‘facts’ of adultery, (unreasonable) behaviour, desertion, two year’s separation with consent or five year’s separation
  • Introduce a minimum overall waiting period of six months
  • Enable joint as well as sole applications
  • Remove the ability to contest the divorce or dissolution, other than for fraud, lack of jurisdiction or other procedural irregularities
  • Update the terminology, e.g. conditional order rather than decree nisi

 For a summary of the research evidence on the need for reform and the likely impact of the Bill see this Finding Fault briefing.

It is critical that this Bill does now reach the statute book. The research case for reform is overwhelming. And the proposals have cross-party and widespread professional and public support. Let’s get it done, as they say.

Comments on amendments to the Divorce, Dissolution and Separation Bill [2017-19]

[Update – this post refers to amendments to the Divorce Bill that fell with the dissolution of parliament in autumn 2019. The post will be updated if any of the amendments are laid down again in relation to the current Bill]

The post has been written by Liz Trinder, Professor of Socio-Legal Studies in the Law School, Exeter University and lead researcher on the Nuffield Foundation funded Finding Fault research study.

What this post covers:

  • A very short summary of the problems with each group of amendments
  • A short overview of the main provisions of the Bill
  • Detailed commentary on each amendment (at 16thJuly 2019), grouped thematically

This is quite a long post. It is also available as a downloadable pdf

 

In Brief: problems with the individual amendments and why they should be rejected

  • Retention of fault & separation (A8, 16, 17, NC3): ignores overwhelming case for reform
  • Counselling and reconciliation (A7, 14, 15): too late, parties will focus on future
  • Longer time periods (A9, 10-14, 19): reconciliation unlikely, delays would be punitive
  • Bar on financial applications (A4, 6, 14): creates delay, punishes the most vulnerable
  • Start of proceedings (A3, 5): starting at application is fairer due to service avoidance
  • Children (A1, 2): the court cannot order parents to reconcile or create a happy family
  • Recording lack of consent (NC4): a private matter, a public record could be misused
  • Evaluation of reform (NC1): post-legislative scrutiny would be more effective
  • Funding for counselling (NC2, A18, 19): wrong vehicle, must include cohabitants

Key: A = amendment, NC = new clause

 

1. Overview of the Divorce, Dissolution and Separation Bill

The government’s Divorce, Dissolution and Separation Bill is a response to long-standing and widespread criticism of the current law on the grounds for divorce and civil partnership dissolution. As the Ministry of Justice Consultation document and Response explain, the reliance upon allegations of fault to achieve a divorce within a reasonable timeframe creates unnecessary conflict, contrary to wider family policy goals. The law is also unfair, confusing and hypocritical, encouraging many to make up or exaggerate allegations of conduct which the court cannot then investigate. There is also no evidence that the current grounds protect marriage or civil partnership.

The Bill is a targeted reform. It retains what works about the current law, but removes the elements that create unnecessary harm. The sole ground (or reason) for divorce or dissolution will continue to be irretrievable breakdown. The main difference is that irretrievable breakdown will be evidenced by a declaration to that effect, rather than by one of the much-criticised five legal facts of adultery, (unreasonable) behaviour, desertion, two year’s separation with consent or five year’s separation.

It will also no longer be possible to ‘defend’ a divorce if all procedural requirements have otherwise been met. This would prevent cases such as Owens vs Owens where the wife remained trapped in a marriage for five years despite it being evident that the marriage was irretrievable.

The Bill will introduce some procedural differences. It will be possible to make a joint as well as a sole application, reflecting that it is often a mutual decision. The government is also concerned that the process is a considered one. The Bill will introduce a new minimum overall waiting period of six months. This will be divided between a twenty-week period from application to conditional decree (formerly decree nisi) and six-weeks from conditional to final decree (formerly decree absolute).

The Bill had cross-party support at Second Reading and in Committee Stage. The current progress of the Bill can be checked here. For background reading on the Bill (and the need for reform) see the House of Commons Library Briefing on the Bill and the Finding Fault briefing on the research evidence for reform and the likely impact of the Bill.

 

2. Commentary on each group of amendments

Retention of mixed-fault divorce (Amendment 8 & New Clause 3, Amendments 16 & 17)

Proposed amendments

A group of four amendments would result in the retention of the existing law, with minor changes. Amendment 8 would remove Clause 1 of the Bill, thereby retaining the current means of evidencing irretrievable breakdown of a marriage by reference to fault (adultery, behaviour or desertion) or a period of separation. The only difference would be that New Clause 3 would reduce the current separation periods from two years to one year where the respondent consents to the divorce, otherwise from five to two years.

Amendment 16 would restrict the application of the Act to marriages conducted after the commencement of the of the Act, i.e. retaining the mixed-fault regime for all existing marriages for the next several decades. Amendment 17 would retain the mixed-fault regime for existing (pre-commencement) marriages where the application is from one party only, again for the next several decades.

All four amendments relate only to marriage. They do not affect the Bill’s provisions for civil partnership dissolution.

Comment

The four amendments would retain the mixed-fault system in its entirety, or for the great majority of divorces, for the foreseeable future. There is no recognition that parliament had previously accepted the case for no-fault divorce in 1996, the widespread calls for reform from stakeholders or the cross-party support for the Bill to date. The retention of the mixed-fault system ignores the fundamental problems identified by the Law Commission in the 1990s and replicated in the Finding Fault study. Those problems include the manipulation of the grounds to secure a faster divorce, the unnecessary triggering or exacerbation of conflict and the unfairness to the respondent subject to allegations that they cannot defend.

It is highly unlikely that the introduction of shorter separation periods would significantly reduce the disproportionate reliance upon fault in England & Wales, currently about 60% of divorces. Average court processing times of six months would mean a petitioner relying on separation would still be waiting a minimum 18 months if the respondent consented, or 30 months if consent could not be relied upon or was withdrawn. In contrast, the average wait time for an adultery or behaviour divorce was six months in the Finding Fault study and could be as little as three or four months. The behaviour fact would remain a much less risky and quicker route, and therefore the only realistic option for many despite the known problems with using a fault fact.

Further, it has long been recognised that the separation facts are discriminatory. It is not a realistic option for many families to buy or rent two houses before the finances are settled, particularly in high cost areas such as London and the south-east. Living separately under the same roof is technically possible, but the rules are archaic and contrary to child welfare. The ‘Mouncer’rules require that meals are taken separately. Parents trying to create a ‘normal’ family life for their children by having family meals during the two- or five- year separation would be deemed to be living together and therefore not entitled to a divorce. In addition, retrospective separation dates can be easily faked. In contrast, the waiting period set out in the Bill’s do not preclude the parties continuing to share a household and cannot be faked.

There is no historical precedent for introducing divorce reform that operates only prospectively. All previous reform has applied to all marriages, not just those conducted after the reform.

The four amendments (and all others handed in by Sir Edward Leigh) apply only to marriage, not civil partnership. The effect would be to break a fundamental principle that marriage and civil partnership should be treated as functional equivalents.

If the amendments were accepted, they would create two entirely different legal regimes: the existing mixed-fault regime for all or sole application marriages conducted before commencement and the Bill’s proposed no-fault regime for all marriages and civil partnerships. That situation would be discriminatory and unfair.

It would also be a recipe for confusion. One of the many advantages of the Bill is that it removes the complexity of the current system. Legal clarity and transparency is a critical component of the rule of law and is particularly important when the majority of the parties are not legally represented.

 

Counselling and reconciliation periods (Amendments 7, 14 & 15)

Proposed amendments

Amendment 7 would require provision of information on relationship support or counselling to parties to an application as an alternative to divorce.

Amendment 14 would divide the twenty weeks from application to conditional order into two discrete periods: a 12-week ‘reconciliation period’ followed by a 20-week ‘reflection’ period. No financial order applications would be allowed in the ‘reconciliation’ period. Amendment 15 would enable a 12-week ‘reconciliation period’ to be curtailed if the spouses met at least three times with a marriage counsellor “to help effect a reconciliation”.

 

Comment

None of the three amendments are helpful.

The online divorce system does already offer information about relationship counselling. The government website gov.uk recommends that the first step in the divorce process is to get support and advice, and includesa link to Relate and a Directory of Counsellors. That information is described as a means to “help you through the divorce”, but obviously would also enable the parties to get relationship support if they wished to continue the marriage.

The online site could, in future, helpfully provide further links to online tools to help the parties make future arrangements for children or finances. What is important, however, is that the Bill does not require the parties to attend an information meeting or counselling or consider reconciliation. Any information provided through the online application system is an offer to the parties, not a requirement.

What the Bill does do is to help ensure that the process is a considered one by requiring a minimum period of six months from the application. It is left to the parties to determine how best to utilise the time given their own particular circumstances. The Bill also retains three stages – or a ‘triple lock’ – where the applicant(s) must reaffirm their wish to proceed (at application, application for conditional order and application for final order). Each of the three stages gives an opportunity for the parties to change course if they choose to do so. Indeed, as case progression depends upon taking three active steps to continue, changing course simply means not taking any step. The continuation of the triple lock is in contrast to similar jurisdictions where divorce or dissolution can follow only one or two actions by the applicant(s).

There are two main reasons why the government’s approach is preferable to the three amendments. First, it is based on the evidence of how relationships break up and when the legal divorce is initiated. It should be noted that by the time that a divorce application has been made, the national and international evidence is that it is generally too late for marriages or civil partnerships to be repaired. The extensive research conducted into the Family Law Act information pilots and the Finding Fault research showed clearly that the decision to divorce is not taken lightly or impetuously. Indeed, it is a typically protracted decision based on months, if not years, of painful and difficult consideration.

Not surprisingly, there was limited take up of the offer to meet a relationship counsellor as part of the Family Law Act pilots. Those who did take up the offer typically used the session to come to terms with the ending of the marriage and focus on the future, rather than to explore the possibility of reconciliation. Only a handful of marriages were continued as a result. More recently, analysis of the Finding Fault data indicated that the 10% of cases that do not reach decree absolute each year is because of procedural difficulties, not because of an attempted reconciliation.

The second reason for preferring the government’s approach is the problem of the state not respecting or undermining private decisions. The parties may have already been separated for years and so an externally imposed delay would be extremely unfair. But there is a particular concern that victims of abuse, who may have taken a long time to summon the courage to leave an abusive marriage, would be discouraged by actual or perceived pressure to reconsider their decision. Domestic abuse is not a rare phenomenon. In the Finding Fault study, 42% of a nationally representative sample of behaviour divorces included allegations of domestic abuse, some of an extremely serious nature.

The differential treatment of civil partnership and marriage in all three amendments is also a concern.

 

Length of time periods (Amendments 9, 10 & 14 and 11-13)

Proposed amendments

Three amendments would extend the overall six-month time frame for divorce set out in the Bill. The twenty-week period between application and conditional order would be extended to 32 weeks by Amendment 14 and to 40 weeks by Amendment 10. Amendment 9 would extend the period between conditional and final order from 6 weeks to 12. The effect would be to extend the minimum 26-week period to a possible 44 or 52 weeks.

A further three amendments seek to restrict the powers of the Lord Chancellor to amend the time periods. Amendments 11 & 12 would remove Clause 1 (6) and (7)) which give the Lord Chancellor power to amend the length of two periods (within an overall maximum of 26 weeks). Amendment 13 would require draft SIs to be approved by parliament, rather than giving parliament power to annul any SIs made.

All six amendments apply solely to divorce, not civil partnership dissolution.

Comment.

The six-month minimum period set out in the Bill is consistent with other similar jurisdictions that have recently reformed the divorce law, such as Finland and New York State. It is also consistent with the needs and preferences of divorcing couples. At present, 60% divorce on fault grounds where the average length of proceedings is six months, but having to produce potentially toxic or fabricated fault allegations.

The research evidence shows that the decision to divorce is a very difficult and typically protracted one. Consequently, few spouses will reconcile during the divorce process. Extending the minimum waiting period would be a punitive step and delay families making necessary decisions about their future.

The differential treatment of marriage and civil partnership is not appropriate.

 

Bar on financial applications (Amendments 4, 6 & 14)

Proposed amendments

Amendments 4 & 6prevent financial applications being made in divorce ordissolution applications during the twenty-week period, unless both parties agree or the application is for interim maintenance and financial injunctions. Amendment 14 subdivides the application to conditional order (in divorces only) into two discrete periods – a 12 week ‘reconciliation period’ followed by a 20-week reflection period. No financial provision proceedings may be issued in the 12-week reconciliation period.

Comment

The government’s aim is to ensure that the divorce/dissolution process is a considered one (see Explanatory Notes). In the great majority of cases, the research evidence shows that the final decision to divorce/dissolve the civil partnership has already been taken well before applications are made. The twenty-week period will therefore be used in most cases to begin the process of agreeing arrangements for finances and children. It is neither appropriate, nor desirable, for the state to prevent the parties from planning for their future by barring financial applications during this period, not least as it can take many months to reach an outcome.

The amendments would be particularly damaging for the most vulnerable parties. It would, for instance, prevent a woman trying to leave an abusive marriage from starting proceedings immediately to permanently resolve the family finances, either at all in the case of amendment 14 or unless her spouse agreed. Both situations would be ripe for exploitation by the abusive spouse. The latter might simply refuse to agree to start financial proceedings in order to maintain control of the woman and the finances for as long as possible. Alternatively, those applicants who simply cannot wait might be forced to give up on the prospect of pursuing financial orders at all or to trade an unfair financial division to secure the spouse’s agreement to commence financial proceedings during the twenty-week period. Each scenario is unfair, unjustifiable and potentially dangerous.

As before, the differential treatment of marriage and civil partnership cannot be justified.

 

Defining the start of proceedings (Amendments 3 & 5)

Proposed Amendments 

Amendments 3 and 5 would define the start of the twenty-week period, for divorce and dissolution respectively, at application for joint applications or when notice of an application has been ‘received’ in sole applications.

Comments

This is a more finely balanced issue than other amendments as it concerns the respective rights of applicants and respondents in sole applications.

It is important that respondents in sole application cases are given sufficient time to adjust emotionally and to start planning for the future. Starting the clock when an application is ‘received’, as the amendments propose, would maximise the time available to the respondent. A similar approach is adopted in some other jurisdictions, including Sweden and Finland, where the clock starts ticking only on delivery to the non-applicant.

However, in Sweden and Finland all citizens must officially register their current address. Service is taken as proof of delivery to that registered address, regardless of whether the person actually receives the notice. The situation is different in England & Wales. The rules are far more onerous. They require that the respondent must acknowledge service, not just by ‘receiving notice’, but by returning a signed copy of the acknowledgement of service to the court. That puts the respondent in a very powerful position as the divorce cannot proceed without their cooperation.

Respondents can, and do, exploit that ability to control the progress of the case. In the Finding Fault research, a tenth of respondents took two months or more to return the acknowledgement. Some took more than a year. A further 14% of respondents did not respond at all. That non-response had a serious impact on the progress of the case. Nearly half (44%) of the 41 non-response cases failed to reach decree nisi, compared to only 3% of cases where the acknowledgement had been returned. The non-response cases that did manage to reach decree nisi, took twice as long to get there as cases where the acknowledgement was returned promptly, a median 30 weeks (or 7.5 months) compared to 15 weeks. If the clock only starts ticking at receipt of acknowledgement, those cases would have to wait for a further twenty weeks after a long delay. Whilst 14% of cases would seem a small proportion, extrapolated nationally it would amount to about 8,000 cases annually taking twice as long to reach conditional order and 6,000 failing to reach conditional order at all.

Very few of the late or non-responses in the Finding Fault sample appeared to result from difficulty in locating the respondent, even those living abroad. Instead, the majority of the non-returns appeared to be respondents choosing not to cooperate with the process, i.e. actively frustrating service. In particular, there was evidence that non-response was more likely to occur in cases featuring allegations of domestic abuse/coercive control, and indeed it appeared to be used as a further instance of controlling behaviour. In a small number of cases, the non-response appeared to result from the respondent’s mental health difficulties and/or chaotic lifestyles.

In contrast, there is limited evidence that respondents would be significantly disadvantaged by timing the start of the process from application. The standard practice is that the court initially serves the application on the respondent, meaning there should be no delay providing that contact details are correct. All 300 petitions in the nationally representative Finding Fault sample were served by the court, rather than the petitioner. However, the revision to the Family Procedure Rules could require that service can only be conducted by the court at first instance, rather than an applicant who might want to delay service until the last moment.

Concerns have also been expressed that a respondent might receive a divorce or dissolution application out of the blue, with no knowledge that the relationship was in trouble and (possibly) with limited time to react. Further analysis of the Finding Fault sample would suggest that this type of ‘bombshell’ application would be quite rare. There were no instances amongst any of the sample of 81 qualitative interviews. Instead, and consistent with previous research, most breakups were not sudden events, but occurred over time. In the minority of cases where the breakup was unexpected, it was the non-initiator of the breakup who later went on to initiate the legal divorce.

Numerically, the weight of evidence suggests that the more likely risk of harm stems from the known deliberate evasion of service by the respondent, compared to a more hypothetical risk of delayed service by the applicant. The consequences are also rather different. Failure to acknowledge service risks extensive delays to the legal process or no divorce or dissolution at all. Delay in serving the respondent means less time to react, but the loss of time would be capped.

Starting the process at application would seem to be the fairest approach in a situation where a balance must be struck. The government has stated that a conditional order will not be granted without satisfactory evidence of service (i.e. return of the acknowledgement of service) and that it will explore safeguards to protect the interests of respondents where there are difficulties with the service of documents. Those protections would be set out in secondary legislation and in the Family Procedure Rules which would be consulted upon.

 

Divorces with children (Amendment 1 & 2)

Proposed amendments

Amendments 1 and 2 would prevent the making of a divorce or dissolution order if the court is not satisfied that the divorce or dissolution is in the children’s interests.

Comment

Until 2014, the court was required to scrutinise a ‘statement of arrangements’ for children and consider whether it should exercise any of its powers under the Children Act 1989 before it could grant a divorce decree or dissolution order. This duty under s.41 Matrimonial Causes Act 1973 and s.63 Civil Partnership Act 2004 was repealed by s.17 of the Children and Families Act 2014. Research had shown that the ‘welfare check’ was ineffective, with little more than ritual scrutiny of information supplied by the parents. The Explanatory notes to the Draft Children and Families Bill noted that the “vast majority” of parents agree arrangements for children at divorce (para 66). A better alternative therefore was for any disputes about children to be brought in separate Children Act proceedings.

There have been no subsequent concerns raised that the removal of the s.41/s.63 ‘welfare check’ has had any adverse consequences for child welfare. Instead of a perfunctory check for a selected group of children at a specific time point, the onus is on any parent being able to bring a Children Act application at any point where there is a dispute about arrangements.  This position is consistent with wider family justice policy which emphasises the responsibility of parents to act in their children’s best interests. It is also consistent with the research evidence that parents are very mindful of the impact of family separation on their children and do what they can to mitigate it.

Amendments 1 & 2 would go significantly further than the repealed s.41/s.63 as they would enable the court to refuse a divorce or dissolution order. However, even if the court could be made aware of any concerns, it is highly unlikely that the court’s refusal to grant the legal divorce or dissolution would force the parents to reconcile, let alone create a happy and positive environment for their children. Instead, it is likely that the marriage would continue in name only, existing purely as a dead or ‘limping’ marriage with adverse consequences for all, including children.

The proposed amendments would be impossible to operate in practice and would undermine, not support, child welfare.

 

Recording lack of consent (New Clause 4)

Proposed amendment

The new clause would enable a respondent to a sole application to formally record their lack of consent to the divorce (but not to a civil partnership dissolution) if they so choose.

Comment

Relationship breakdown can be a very fraught and conflictual time. No law can prevent that, but a good law will reduce the opportunity to weaponise the process and deepen the conflict. Currently there are instances of parents who threaten to show a behaviour petition to children. Providing an official written record of non-consent could be used in exactly the same way to fuel conflict.

Whether someone opposes the divorce is a private matter between the parties. It should not be recorded as part of a court process. Indeed, a review of similar jurisdictions found no examples where a wish to preserve the marriage could be formally recorded, whether in jurisdictions with no mechanisms for defence or those where defence is only a theoretical possibility.

 

Evaluation of reform (New Clause 1)

New Clause

This clause requires the Secretary of State to report annually to parliament on the impact of reform on divorce proceedings and marriage, with the report to include statistics on divorce applications, numbers seeking marriage counselling etc.

Comment

It is vital that the impact of any reform is evaluated, particularly in such a sensitive area of policy. However, the proposed amendment is far too imprecise to enable parliament to assess fully the impact of the reform. The requirement to collect the numbers of parties undertaking relationship counselling is not achievable. It would be of little value, in any case, as there is no baseline data to enable a comparison. The proposed requirement to collect data on the number of divorces is redundant as the Office for National Statistics already publishes comprehensive annual statistics on divorceand civil partnership dissolution, including by marriage duration, age and gender of the parties etc.

Post-legislative scrutiny would be a far more appropriate mechanism to assess whether the Act was working as intended and whether there were any unforeseen or undesirable effects.

 

 Funding for counselling services (New Clause 2 & Amendments 18 & 19)

Proposed amendments

NC2 would convert the existing power to fund marriage support services into a duty and also extend it to cover civil partnerships. Amendments 18 and 19 would prevent commencement before substantial grants for marriage support services had been made under s.22 FLA or there was a plan to do so.

Comment

Far greater funding for relationship support services would be very welcome. Too often, those with limited means are unable to start, or continue with, counselling (see https://www.relate.org.uk/investinrelationships). The Finding Fault report concluded with a recommendation that any money saved as a result of law reform should be redirected to relationship support services.

However, as the Secretary of State noted in the Second Reading debate, that is a spending choice for government and a Bill dealing with the legal process for marriages and civil partnerships that have already broken down is not an appropriate vehicle to achieve that. Nor would it be appropriate to delay implementation of a much-needed Bill to address those issues.

More broadly, it is doubtful whether the Ministry of Justice is the appropriate department to deal with relationship support. It is not a justice issue and it will never get the attention it requires. The Department of Health or DWP would be far more suitable departments.

As a final point, amendments 18 and 19 would only make relationship support services available to married couples. New Clause 2 would provide services to married couples and civil partners, but exclude cohabitants. Both approaches are unfairly restrictive. They also ignore the evidence that cohabiting relationships are more vulnerable and therefore more in need of support services.

 

When should the 20-week period start? Part 2: ‘bombshell petitions’

Why does this matter?

One of the questions that has arisen in relation to the Divorce, Dissolution and Separation Bill is when the clock should start running on the proposed twenty-week period leading to the conditional order. The Bill states that it should be at ‘application’. That would avoid the problems caused by the respondent avoiding service. The Finding Fault research showed how service avoidance was a significant problem in a minority of cases, including those featuring domestic abuse, and had the potential to delay or completely derail the process.

However, there have been suggestions that the start point should instead be where there is evidence of service to ensure that the respondent has sufficient time. An amendment to that effect has been handed in.

To help inform debate on the issue, I have conducted some further analysis on the Finding Fault dataset. In Part 1 of this post I looked at  the likelihood of petitioners delaying the service of the petition. Part 2 looks at the likelihood of a ‘bombshell’ petition arriving on the doorstep of a respondent who is hitherto unaware of problems in the relationship.

SPOILER: On both issues the likelihood of the event happening is quite low and almost certainly lower than the documented risk of service avoidance. In qualitative terms, the potential impact of delayed notification is probably less than the impact of a significant delay in the final order or the risk of not being able to proceed caused by service avoidance. On balance, the evidence points towards starting the clock at application, but safeguards will be needed to protect the respondent. The government has already committed to requiring evidence of service before a conditional order may be made and to exploring other safeguards. The likelihood is that that will require changes to the Family Procedure Rules which will then be subject to further consultation.

How often is the divorce petition (application) a total surprise?

While we do have robust data on the extent and consequences of disrupted service, there has been no previous analysis of the frequency of unexpected (or ‘bombshell’) divorce petitions. The phenomenon is not logged as part of the court process, unlike failure to return the acknowledgement of service. However, we did conduct 81 qualitative interviews with petitioners and respondents as part of the Finding Fault research. In each case we asked the interviewee about when they were first aware of problems in the marriage, when they started thinking about/found out about the divorce, how the legal divorce progressed and their reactions to it. This gives us a rich insight into who initiated the separation and divorce and the extent to which either came as a surprise. We cannot use this non-representative sample to try to quantify the numbers of surprise petitions, but it is possible to draw broad conclusions about how common or uncommon surprise petitions might be in practice.

The complexity of uncoupling

It is widely acknowledged that divorce is best viewed as a process (or processes), rather than a single event. For our purposes, a crucial distinction is between the decision to separate (‘splitting up’) and the launch of the legal process (the ‘divorce’). International research has established that the majority of separations are not shock events following a ‘critical incident’. Instead they are typically initiated by one person, usually women, after a long period (typically years) of marital dissatisfaction (see, for example, Baxter 1984; Emery 1994; Rollie 2010).

A classic example of this type of incremental separation is our interviewee WK10 who described initiating her separation following years of dissatisfaction:

“On and off we had difficulties. I think five years – within five years of being married. But we were both quite reluctant to go ahead with divorce. Certainly, me because I was off work and I had young kids. I had very young children. So it was about how I was going to upset them and whether it was the right thing for them. So, I didn’t consider it before and it was only when- I think about 15, 16 years into my marriage when I thought, right, enough is enough and when my eldest actually said, “Mum, if you’re not happy, just leave”.

It is also well established that the parties will often emotionally leave the relationship at different speeds, with a ‘leaver’ and a ‘left’. However, another key insight from the international research is that the question of who initiates, or who leaves and who is left, is not quite so straightforward. Rollie (2010), for example, notes that those who withdraw emotionally from the marriage are not necessarily those who initiate the separation or legal divorce. It is possible to provoke or engineer the other spouse into acting by one’s own action or inaction. Similarly, both parties may be equally unhappy and wish to end the relationship, but only one will then initiate the separation and they may not be the one to initiate the legal divorce.

Incremental (non-surprise) separations

Our qualitative sample mirrored those findings. In broad terms, most of the interviewees described the ending of the relationship as following a long period of unhappiness or marital difficulties. Only a minority reported that the separation came as a surprise following a critical incident, typically but not always discovery or disclosure of an affair. Splitting up for most of our interviewees was not therefore a shock.

The incremental separations can be divided further into whether the initiation of the legal divorce was anticipated or not (see Typology below). There was a group of negotiated exits where the parties were in communication directly, or through lawyers, about the timing and content of the petition.  These were not necessarily conflict-free cases, but both parties had a good understanding of what was happening and there were no surprises in relation to the timing of the petition.

There were also a number of acceptable exits cases where separation itself was not a shock, but where there was limited notice of the exact timing of the subsequent petition. This could follow extensive negotiations. Interviewee SP06 was not aware, for example, of exactly when the petition would be issued, but did want the divorce to proceed as quickly as possible. Or one spouse might use issue of the petition to take control of the process, including attempting to get back at the other. SP32 had been the initiator for the separation and was intending to file the petition, but her husband leapfrogged her petition by filing a snap petition of his own without notice (and without following protocols). Following an apparently mutual separation, SP20 deliberately filed his petition without warning his wife because “back then she was still very unreasonable”.

Whilst the behaviour of some petitioners is not necessarily conducive to positive relationships, in these ‘acceptable exit’ cases, the divorce itself was actively sought by the respondent. The content and timing of the petition might cause some additional upset, but the separation itself was not a surprise or the divorce unwelcome.

 

Typology of breakups

  Incremental separations Surprise separations
Aware of incoming petition Negotiated exits Non-initiator control
Not aware of incoming petition Acceptable exits Bombshell petitions (no actual examples)

 

Critical incident/shock separations

A minority of interviews reported that the separation was a surprise to one of the spouses. However, in no case in our sample was the shock separation effected by a bombshell divorce petition arriving out of the blue to an entirely unsuspecting respondent. Instead, in each case there was a gap between the sudden announcement that the marriage was over and the subsequent petition.

The shock separations were also distinctive in that in all our cases the ‘leaver’ who had initiated or triggered the separation then offered or allowed the person being left to take control of the subsequent legal divorce, possibly out of a sense of guilt. In one case the offer to be petitioner was refused (although the respondent was willing for the divorce to proceed), leading to a very carefully negotiated behaviour petition with no further surprises.

Otherwise, in each shock separation case it was the non-initiator (the left) who became the petitioner. Interviewee WK02 was shocked when her husband suddenly announced that the marriage was over. When he didn’t take action with the legal divorce, she took over: “I just said ‘Look, I want to get on with life, I don’t want this hanging over for however long, so if things could move forward quicker by me sorting it, then I will do it’. WK07 and WK15 both initiated adultery petitions within a few weeks or months after their partners surprised them with the revelation of an affair. And SP50 had endured years of domestic abuse before finally leaving: “I just walked out of the door with the clothes I had on my back and I just went”. She then allowed her husband to dictate the timing of the divorce, ultimately relying on the five year’s separation fact after he refused consent for a two year’s separation divorce.

The absence of bombshell petitions

Although ‘bombshell’ petitions are possible, there were none in our sample of 81 interviewees. The closest was an unusual case where both parties had emotionally disengaged from each other but ‘The Talk’ to end the relationship had not happened. The ending was achieved instead by the unannounced arrival of the petition. Some might see it as a ‘bombshell’ case, but a close reading of the account does suggest that the case is probably an example of what Rollie was referring to as one party at least partly engineering the separation by their non-activity or burying their head in the sand:

“It was definitely going to happen. We hadn’t discussed it, but we’d got to a point where life was just non-existent in the relationship, we were living two separate lives joined together by [child], which obviously isn’t ideal for [child] especially.  So yes when it happened, yes she was on holiday [with extended family and child] … and I got the letters through the post, which … it’s kind of a moment that you will never forget when you read those kind of letters.  But yes I got it, but after ten minutes I knew it was deep down the right thing to happen.  So it wasn’t a surprise at all, but it was a surprise when it actually … when it happened”. (Res03)

Implications for law reform

So what are the implications for law reform? Two points stand out. First, as with previous research, what the analysis has shown is that who takes on the ‘petitioner’ and ‘respondent’ role in the legal divorce is not an automatic reflection of who has driven the separation or who might be in most need of protection or thinking time. That is not to say that respondents may not be vulnerable, just that it should not be assumed that they are the more unwilling and reluctant participants in the divorce process.

Second, whilst a ‘bombshell’ petition is possible, it is likely to be fairly rare, and certainly far less frequent than the known incidence of service evasion or delay, affecting up to a fifth of cases.

If the twenty-week clock does start at issue, as proposed, it will be necessary to tighten up the rules to prevent any game-playing by the minority of parties who attempt to get back at their spouse through the divorce process. That will mean addressing any attempts to delay service until the last possible moment as well as addressing the problem of service avoidance.

References

Baxter, L. A. (1984). Trajectories of relationship disengagement. Journal of Social and Personal Relationships, 1, 29–48.

Emery, R. E. (1994). Renegotiating family relationships. New York: Guilford Press.

Rollie, S. S. (2010). Divorce and dissolution of romantic relationships: Stage models and their limitations. In D.H. Demo & M.A. Fine (Eds.), Beyond the Average Divorce. Sage

 

See Part 1 the likelihood of petitioners delaying the service of the petition.

When should the 20-week period start? Part 1: Service problems caused by the petitioner

Why does this matter?

One of the questions that has arisen in relation to the Divorce, Dissolution and Separation Bill is when the clock should start running on the proposed twenty-week period leading to the conditional order. The Bill states that it should be at ‘application’. That would avoid the problems caused by the respondent avoiding service. The Finding Fault research showed how service avoidance was a significant problem in a minority of cases, including those featuring domestic abuse, and had the potential to delay or completely derail the process.

However, there have been suggestions that the start point should instead be where there is evidence of service to ensure that the respondent has sufficient time. An amendment to that effect has been handed in. Two of the reasons that have been put forward for this include (a) that petitioners who choose to serve the petition instead of the court could delay service until the very last minute, and (b) any delay would be particularly unfair for respondents who are unaware of difficulties in the marriage/civil partnership and then receive a petition/application out of the blue.

To help inform debate on the issue, I have conducted some further analysis on the Finding Fault dataset. Part 1 of this post looks at the question of petitioners delaying service. Part 2 explores the likelihood of a ‘bombshell’ petition landing upon an entirely unsuspecting respondent.

SPOILER: On both issues the likelihood of the event happening is quite low and almost certainly lower than the documented risk of service avoidance. In qualitative terms, the potential impact of delayed notification is probably less than the impact of a significant delay in the final order or the risk of not being able to proceed caused by service avoidance. On balance, the evidence points towards starting the clock at application, but safeguards will be needed to protect the respondent. The government has already committed to requiring evidence of service before a conditional order may be made and to exploring other safeguards. The likelihood is that that will require changes to the Family Procedure Rules which will then be subject to further consultation.

What evidence is there of problems with service caused by the petitioner?

It is possible for petitioners to have a petition served on the respondent (FPR 2010, rule 6.5). However, the standard practice is that the petition is served by the court. In the Finding Fault undefended sample, the initial attempt at service was conducted by the court by post in all 300 cases, including domestic and international cases. Only if that initial service were unsuccessful, did the responsibility fall to the petitioner to try to effect service. This was most commonly pursued through use of a process server or by asking the court to deem service.

As the court undertakes initial service, there is little opportunity currently for the petitioner to be intentionally difficult. However, a minority of respondents will delay or avoid service. About a fifth of respondents will delay returning the acknowledgment of service or not return it at all (see Taking Notice).

Aside from limited opportunity, currently there is also very little incentive for a petitioner to be difficult. It is in the interests of the petitioner for the divorce to proceed as quickly and smoothly as possible. No advantage is generally to be gained by the petitioner by problems with service. On the contrary, the analysis in Taking Notice showed that service problems led to delays and/or failure to achieve decree nisi, contrary to the apparent wishes of the petitioner.

Only in very rare and specific circumstances might the petitioner gain an apparent advantage by frustrating service. An example would the recent case of Raani & Charazi [2015] EWFC B202. The Orthodox Jewish petitioner husband sought permission to dispense with service on the basis that his wife could not be found. Decree absolute was granted (although later set aside). The (apparent) advantage to the husband was that he was able to circumvent s.10A Matrimonial Causes Act. That provision would otherwise prevent his civil divorce without his having first given his wife a Get to secure a religious divorce, thus trapping her in the religious marriage whilst securing his freedom. It is important to note that Raani was a case of preventing service altogether, rather than simply delaying it to the last minute.

In future, if the twenty-week clock starts at application, there would potentially be more incentive to delay service by applicants. Some may wish to get at their spouse by delaying service for as long as possible while the twenty-week clock runs down. That type of game-playing behaviour might potentially be curtailed by rules setting out time limits on service. There are no time limits currently on when a petition must be served after issue. However, there would still be limited opportunity for those minded to delay service, as it is unlikely that the standard practice of the court undertaking initial service would change. The rules might be changed to insist on initial service by the court. Consideration might also be given to creating rules for the small number of cases where initial service fails due to incomplete or inaccurate contact details, whether provided intentionally or not.

 

Part 2 explores the likelihood of a ‘bombshell’ petition landing upon an entirely unsuspecting respondent.