Make of this what you will.
On the 18th July 2018, our old friend Baroness Butler-Sloss initiated, via its first reading, a private member’s Bill in the House of Lords, namely the “Divorce (etc.) Law Review Bill [HL] 2017-19“. Bills are not usually prepared in full draft form at this stage. That is normally done only for the second reading, which is not yet scheduled. However, the brief notes to accompany a first reading are often easier to understand than the complete Bill, stripping it down to the bare essentials. In this case the “brief notes” and the Bill may be one and the same. The Bill is to…
“provide for a review by the Lord Chancellor of the law of England and Wales relating to divorce and judicial separation and to the dissolution of civil partnerships and the separation of civil partners.”
However, the review is required to focus on a particular proposal to change the law, as set out in a Schedule within the Bill. The most salient features are these,
“The sole ground for divorce or judicial separation, or the dissolution of a civil partnership or the separation of civil partners, is to be irretrievable breakdown of the marriage or civil partnership.
(1) The irretrievable breakdown is to be evidenced in each case by, (a) the making of an application to the court, and (b) the subsequent confirmation of that application. (2) No further evidence or reason is to be required.”
“An application may be made by one party to the marriage or civil partnership, or by both of them jointly.”
“In the case of an application made or confirmation given by one party only, the consent of the other to the order sought is not required.”
This is unilateral divorce. I suppose one should be grateful that provision is not included for the application also to be ex parte – but I’m not even sure about that, as the provision is “if an application is made by one party only, the other must be (or be deemed to have been) given notice of it“. Deemed to have been?
Note that the phrase “irretrievable breakdown” in the Schedule is without content. It could be replaced by “induction into the Church of Scientology” without material difference, because sufficient evidencing consists simply of making the application and then confirming it. No further evidence is required. So, in truth, the first sentence of the Schedule would be more accurately written as “The sole ground for divorce or judicial separation is submission of the application and subsequent confirmation of the same”. In other words, no reason at all other than the wish, of one party, to divorce.
On 15th September 2018 the MOJ published a public Consultation via a report titled, “Reducing family conflict: Reform of the legal requirements for divorce“. The proposals are consistent with those of Baroness Butler-Sloss’s Bill, which, you will recall, had its first reading two months earlier. Perhaps a reader with a greater knowledge of Parliamentary procedure can explain why it is that Government business is being pursued by a private member’s Bill, and why that Bill was initiated two months prior to the Government’s Consultation being released. A mechanism for getting ahead of the game, possibly?
Submissions under the Consultation (now closed) were sought from Parliamentarians, the family judiciary, family law practitioners, academics, support organisations and members of the public with an interest in family conflict, children’s wellbeing or the legal requirements for marriage and civil partnership dissolution in England and Wales. The impetus behind bringing these proposals was the 2018 case of Owens v Owens in which Mrs Owens sought a divorce on the grounds of unreasonable behaviour which Mr Owens contested. The courts ruled against Mrs Owens and this caused outrage in some quarters (perhaps rightly so in this case, I don’t know). The consultation document was sent to,
- President of the Supreme Court
- Lord Chief Justice
- President of the Family Division
- Association of District Judges
- Cafcass Cymru
- Coalition for Marriage
- Families Need Fathers
- Family Law Bar Association
- Family Mediation Council
Justices’ Clerks’ Society
- Law Society
- Marriage Foundation
- Nuffield Foundation
- Welsh Government
- Women’s Aid
- Welsh Women’s Aid
Of these, the only organisation I know for sure has spoken against the planned changes is the Christian group the Coalition for Marriage. The Marriage Foundation has previously criticised this position by the Christian group and declared their support for reform. (Not sure about FNF). I would expect all the remaining organisations listed above to be effusively in favour of the proposals. A largely negative response to the consultation, with reasons, has been given in this private submission.
Some have referred to the proposal as “no-fault divorce”, but actually it is more profound than that: it is a “no reason at all” divorce – and, of course, unilateral. Readers will no doubt be reassured that research by Professor Liz Trinder and her associates has firmly backed-up the Government’s (and Butler-Sloss’s) proposals. They conclude that,
“…we already have something tantamount to immediate unilateral divorce ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state.”
The respondent declares an intention to contest (technically “defend”) in only 2% of divorce cases. Professor Trinder’s further research concludes that only very few of these actually end up being contested at court.
“Most defended cases that do reach the courts are settled, rather than decided by a judge. The outcomes therefore reflect the relative bargaining capacity of the parties, not an inquiry into the truth of allegations. The court’s willingness to accept the results of some deals appeared intellectually dishonest, even if it did bring an end to a damaging dispute. The pressure to settle reflects a realistic appraisal by family lawyers and judges that defence is costly, unhelpful and ultimately futile for the parties and burdensome for the courts. The defence process does increase acrimony, contrary to family justice policy. It can be misused by controlling spouses to make the divorce unnecessarily difficult.”
A bit of a sting in the last sentence. (By the way, if the names Baroness Butler-Sloss and Professor Liz Trinder seem familiar it may be because you read my article Woozling Shared Parenting. I trust you are reassured).
In short, the Government’s case, supported by Trinder, is that in the large majority of cases the new arrangements will make no substantive difference, whilst in a few cases the effect will be to obviate “futile and damaging dispute”, with ultimately the same ending (except, of course, in rare cases like Owens v Owens where the applicant would now automatically triumph).
All this may very well be true. But is it unduly cynical of me to paraphrase the proposal thus: “we have already successfully introduced unilateral, no-fault divorce, in almost all cases so we might as well tidy up the loose ends”. The loose ends will include avoiding any future Mrs Owens, and also preventing nasty controlling husbands using the existing provisions for contesting the petition to further abuse their wives. Well, no doubt it happens.
That’s all very well, but I’m left thinking ‘what is the point of marriage if it can be ended unilaterally without reason?’. What’s the point of a contract which either party can unilaterally declare void at any time? Contracts are usually binding: that’s their point. If any business contract had such an escape provision, one would examine very carefully any commitments upon you which would remain after cessation. If the nature of the contract involved party A accepting burdensome obligations and party B acquiring substantive assets, and these provisions would persist after contract dissolution, what sane “person A” would sign such a contract with a unilateral escape clause?
I’ll not digress too much to remind you of the decline of marriage and its demographic dependence (see Marriage and Families, Divorce, Cohabitation). But the decline of marriage is real and continuing, not merely an artefact of delay in marriage. The killer graphs are those which show the percentage of people who have been married at any time versus age, and how this is falling as later birth cohorts are considered – see Figure 1 (men) and Figure 2 (women). The relentless push to elevate women’s earnings compared to men’s, coupled with young men’s falling educational attainment compared to young women’s, can only result in this decline of marriage continuing. But we can add to these reasons for the decline of marriage the possibility that young men will wake up to the reality represented by the last paragraph. If so, the decline of marriage which has thus far been strongly skewed to the lower socioeconomic groups will increasingly spread even to those highly marriageable prospects: men who are good earners.
Figure 1: Percentage of men ever married versus age: different birth cohorts compared, data from Office for National Statistics, 2018 (click to enlarge)
Figure 2: Percentage of women ever married versus age: different birth cohorts compared, data from Office for National Statistics, 2018 (click to enlarge)
There is another private members Bill concerning divorce which started in the House of Lords, that by Baroness Deech, the Divorce (Financial Provision) Bill [HL]. At the time of writing this has completed its passage through the House of Lords and awaits its second reading in the Commons.
The Bill would implement provisions very similar to those of Scottish law, and the laws of most European and North American states. It would introduce a presumption of an equal division of all the property and pensions acquired by the couple after marriage, but only that acquired after marriage. Assets obtained by one party by gift, inheritance or succession from a third party would not be included. Provision for maintenance payments and allowing the home to be retained for the carer and their children would remain. Maintenance would be determined broadly as before, defined as flowing to the party who has hitherto been financially dependent. However, the Bill seeks to end the “meal ticket for life” by limiting such maintenance to 5 years except in certain circumstances. Currently these exceptional circumstances appear to be defined by the court deciding “that there is no other means of making provision for a party to the marriage and that that party would otherwise be likely to suffer serious financial hardship as a result”. It is unclear how that would be interpreted.
Perhaps most significantly, the Bill seeks to make pre-nuptial and post-nuptial agreements, signed by both parties, to be binding, subject to certain requirements. I doubt that a pre-nuptial or post-nuptial agreement could be used to fix child arrangements in advance – though that would be extremely useful. The Bill is, after all, titled “Divorce (Financial Provision)”.
The first reason Tini Owens was refused a divorce was because, although she proved both that her marriage had broken down and that it was irretrievable, she did not prove to the court’s satisfaction that the behaviour of her husband, Hugh, had been such that it would have been unreasonable to have expected them to remain married.
The second was that Hugh decided to defend. Had he not decided to defend, the petition would not have been subject to judicial scrutiny and would have been rubber-stamped by administrative staff, despite failing to prove that a divorce was justified.
The reality, as Baroness Hale pointed out last year, is that the bar is set very low, but this fact is kept secret from petitioners, presumably to ensure that solicitors write petitions and not petitioners. What happens currently is that a petition will bounce backwards between petitioner and respondent a couple of times while they negotiate and compromise and eventually agree on the wording so that it can then be processed with minimal hassle.
If the respondent is denied the right to defend, it removes any pressure on the petitioner to compromise and removes that very valuable pre-court negotiation and compromise process. All the hostility and conflict which this process removes will then continue into the next stage, after the divorce is granted, when the arrangements over finances and child residence and contact are thrashed out.
This is all good news for lawyers, because these are the disputes which are profitable to them, rather than the simple mechanics of securing a divorce, and that is presumably why Resolution, their representative body, is so eager for the reforms, but it is dreadful news for couples and will almost certainly add rather than remove conflict.
As you have mentioned above, the reason for these proposed changes is the trouble Mrs Owens has had getting divorced. At the first sign of any woman not getting what she wants, the legislators jump into action. It’s a pity they do not do something to help males occasionally, by granting anonymity to those accused of sex offences, for example. (I cannot recall, in over thirty years, a single case of them changing a law to specifically help males. Quite the reverse. Why are we voting for them? )
Looks as if we could soon cut to the historic chase: “I devors yu!| “I devors yu!| “I devors yu!| – please note, 3 times! Delivery either by email, text, face-time or phone call, (or via snail-mail for dinos.) PS Hands off your endowment of me with the majority of your worldly goods.
I agree that this is really about introducing unilateral divorce under the stalking horse of no-fault divorce (which we have had since 1969), but I actually think it goes even further than that, and what this really represents is administrative divorce without any judicial scrutiny. Just as the right to defend a divorce may be exploited by a respondent, so may administrative divorce be exploited by a petitioner, and a vulnerable spouse – for example one who has just lost their job or who cannot work due to illness or injury – could be left in a very difficult situation. It is hard to imagine that this measure won’t increase the likelihood of divorce or the incidence of serial marriages.
Although Trinder identifies that defending a divorce is very rare (and doing it successfully rarer still) what emerges from her research is that the right potentially to defend is used to moderate petitions and ensure divorces in which the respondent is not unreasonably disadvantaged. Denying the respondent that right is tyrannical.
Elsewhere I made this comment:
“A justice system which is blind to fault is a contradiction: a justice system must be based upon justice. Fault ensures that not only the petitioner but also the state officials who enable and grant the divorce are encouraged to take responsibility for their role in breaching a legal contract.”
Mr Owens was obviously completely blameless.
Marriage is not the same any more – not since the introduction of same sex marriages.
Soon, saying “I divorce you” three times will suffice.
Women will always be able to legally call on the finances of their ex for an extended period after divorce.
The next step will be to give similar financial rights to couples who have co-habituated.
Soon, saying “I divorce you” once will suffice.
And I’m mystified as to why one would have marriage and civil partnerships now both are same or either sex.? What is the difference between the two contracts ?
Anecdotally , from friends , men come under pressure to do the right thing and accept fault , so maybe the new law at least makes it clearer who actually wants divorce. Of course the other fraud is claims if domestic abuse to obtain legal aid. And again perhaps there will be less need if costs are low.
I’m sure the Deech Bill would stop the judicial generosity towards females as to ancillary relief , but may at least put limits on their generosity.
As you say the job may be to make sure anyone interested in the wellbeing of men makes sure the flimsiness of the ties and costs of them breaking are made clear.
There are some technical differences regarding pension sharing, I think, and civil partnerships cannot be celebrated in a church, but otherwise, they are essentially the same. Now civil partnerships have done their job in enabling same-sex marriage, the sensible thing to do would be to abolish them.