House of Lords considers divorce bill
We continue to report on the progress of the Divorce, Dissolution and Separation Bill, which aims to make no-fault divorce in England and Wales a reality. The Bill had its second reading in the House of Lords on 5 February 2020 and is due to reach committee stage on 3 March 2020. During this stage the Bill will be examined line by line to see whether it will work in practice and whether amendments are required.
The House of Lords debated the Bill for over 3 hours with some expressing their concerns that the Bill would increase the divorce rate if the respondent to a divorce petition is no longer given an opportunity to challenge the claim of irretrievable breakdown. The Bill has, however, overwhelming support, with Lord Keen of Elie, who sponsored the Bill, stating it is just a matter of time before we have a fully modern no-fault divorce system.
Of course, the debate also considered various amendments to the Bill, in particular when the 20 week ‘period for reflection’ should begin. Should it begin when the divorce application is issued or when the respondent acknowledges service of the application? The latter would present a problem as Lord Keen said, “an unresponsive respondent … might well frustrate the entire process and delay it unconscionably.”
The Bill does not cover how divorcing couples should divide up their marital assets. However, some of the Lords recognised that this is another area of family law which does need to be looked at and reformed.
Baroness Burt of Solihull said “If the final decree is awarded before a financial order is made, there must be clear evidence that there will be no meaningful financial prejudice. I do not know how we build this into the Bill, but I think it is exceptionally important, given the tortuous lengths to which some people will go to advantage themselves financially in the divorce settlement.”
And Baroness Meacher said, “Finally, there is the law surrounding the financial settlement in divorce cases. I understand that the Government are planning a consultation exercise on this issue. Can the Minister tell the House when the consultation will take place, for how long it will proceed and whether it will include consideration of pre-nups? I know there are reasonable concerns about pre-nups, but they deserve serious consideration as a means of reducing conflict over money at the time of a divorce. Also, are the Government committed to allowing parliamentary time to implement reform in that area in the Parliament?”
Despite raising these issues, full comprehensive answers to these queries have yet to be given. Lord Keen did state, however, “Financial settlement was also raised by the noble Baroness, Lady Burt. We are at present considering an appropriate form of consultation on how we might approach any reform of the law with regard to financial settlement, but we have no desire to derail the Bill by trying to draw in a rather more complex area … That will require wide-ranging consideration before we can bring forward any possible legislation. It is not something that we would seek to address in the context of the present Bill.”
Most family practitioners will agree that we have waited quite long enough for no-fault divorce, and consideration of reform of finances on divorce is potentially a very complex area, which would certainly cause great delay to the current Bill. We now wait to see whether the committee reading on 3 March 2020 will result in the Bill becoming law or whether further amendments are going to be required.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors.