Divorce, Dissolution and Separation Bill
Public Bill Committee, 2 July 2019.
Steve McCabe (Labour, Birmingham, Selly Oak)
I just want to rattle through a few preliminaries. Please switch electronic devices to silent. Mr Speaker does not allow tea or coffee during sittings. We will consider a programme motion, a motion to consider the written evidence and a motion to allow us to deliberate in private. I hope we can deal speedily with those.
Table
Steve McCabe (Labour, Birmingham, Selly Oak)
The deadline for amendments has passed.
Steve McCabe (Labour, Birmingham, Selly Oak)
Copies of written evidence we receive will be made available in the Committee Room.
Examination of Witnesses
Steve McCabe (Labour, Birmingham, Selly Oak)
We will now hear evidence from representatives from Relate, Resolution and the Law Society. I remind hon. Members that all questions have to be limited to matters within the scope of the Bill and that we have to stick to the agreed timings. Members should declare any relevant interests at the outset.
If our panel are ready, I ask them to introduce themselves, in order, for the record.
Steve McCabe (Labour, Birmingham, Selly Oak)
Thank you. I invite Committee members to ask questions, in order. We have a strict deadline and must finish by 10.15 am.
Anne-Marie Trevelyan (Conservative, Berwick-upon-Tweed)
Thank you very much for coming in to help us progress this Bill. What are your views of the Bill? Are there any improvements we should be making, or is it a pretty good attempt to solve this particularly difficult dilemmaQ ?
Eddie Hughes (Conservative, Walsall North)
You said that the reasons they state do not represent a fair reflection of the actual reasons. On what is that based? I thought I had read a report that said that 91% of petitioners said that it was very close or fairly close.Q
Steve McCabe (Labour, Birmingham, Selly Oak)
Q I am conscious of time. I wonder whether either of our other two witnesses has anything to add on the first question.
Melanie Onn (Labour, Great Grimsby)
Good morning, it is good to have you with us today. I wondered if you could expand on the changes that were proposed in the Family Law Act 1996, and explain why they have not come forward. What do you think has changed between 1996 and now that means that this legislation should be brought forward? I do not know who wants to answer firstQ .
Melanie Onn (Labour, Great Grimsby)
Q Nigel, earlier in your evidence you mentioned that people cannot afford to wait two years. Can you explain that a little more? Afford it in what sense—financially or emotionally?
Melanie Onn (Labour, Great Grimsby)
Q I have one final question. David, you mentioned flaws in the legislation, and you have also talked about the need for some amendments. Is there a danger, as we go through this process, that we end up in the same situation as in 1996, where there are multiple amendments and we make what is currently quite a simple piece of legislation far more complex than it needs to be?
Victoria Prentis (Conservative, Banbury)
Could you focus on children for a moment? What proportion of divorces involve children? How will the Bill promote their welfareQ ?
Anna McMorrin (Labour, Cardiff North)
The new procedure will introduce a minimum clause between application and the conditional order. Can I begin by asking Aidan how the minimum pause between application and condition order will improve the wellbeing of couples and children in practiceQ ?
Anna McMorrin (Labour, Cardiff North)
Yes.
Anna McMorrin (Labour, Cardiff North)
Q From your perspective, would that allow enough time for everything to be reconciled within that timeframe?
Anna McMorrin (Labour, Cardiff North)
Q Nigel and Aidan, do you agree?
Eddie Hughes (Conservative, Walsall North)
Q Does this Bill make divorce easier?
Eddie Hughes (Conservative, Walsall North)
Q Sorry, Aidan used the word “easier” during his evidence, so I thought that was kind of implied. Nigel, if you could explain.
Eddie Hughes (Conservative, Walsall North)
Q So, relatively—I am sorry about the semantics, but I think they are important—if the current process makes it harder, surely, by implication, this makes it easier? You cannot argue both of those points. You clever legal people are always at this.
Eddie Hughes (Conservative, Walsall North)
Q Does it make it less hard? That would be helpful.
Eddie Hughes (Conservative, Walsall North)
Q I started with the word “easier”—you were trying to avoid the opposite of it.
Steve McCabe (Labour, Birmingham, Selly Oak)
Maybe we just have to hear about it as evidence.
Eddie Hughes (Conservative, Walsall North)
Sorry. Thank you, Chair.
Eddie Hughes (Conservative, Walsall North)
You definitely used the word “easier”—and the transcript, I am sure, will tell us that.
Eddie Hughes (Conservative, Walsall North)
Q Sorry; you were referring to one element of it, saying, “This is easier.”
Eddie Hughes (Conservative, Walsall North)
Q Or, occasionally, identifying them if they actually do exist.
Eddie Hughes (Conservative, Walsall North)
Q Do we have any idea in percentage terms of how many people start proceedings but do not conclude them?
Eddie Hughes (Conservative, Walsall North)
Q One final question from me: is there something we could do that would be more significant in removing the pressure or burden on children, other than removing the fault element?
Eddie Hughes (Conservative, Walsall North)
Q That is the most significant thing in removing the impact on children?
Eddie Hughes (Conservative, Walsall North)
Q Hang on a second. The last time we tried to change this was in 1996, and it did not change. This feels like a fairly unique opportunity in terms of timescale, so is there something else we could be doing that would be more significant?
Steve McCabe (Labour, Birmingham, Selly Oak)
I think we had better move on.
Bambos Charalambous (Labour, Enfield, Southgate)
I have a technical question about the Bill. Clause 6 gives the Lord Chancellor wide-ranging powers to amend primary legislation. Are you comfortable about those powers? The clause is titled “Minor and consequential amendments” but that is a bit of a misnomerQ .
Anne-Marie Trevelyan (Conservative, Berwick-upon-Tweed)
Q To pick up on something that you said, Mr Hodson, the reality is that the language of applicant and respondent is important because it gives control to the person—I am thinking particularly of women who are trying to leave an abusive relationship. If it is changed, how do they maintain control of the next stage of the process, which clearly this Bill does not cover, in terms of the finances and protecting their children and ensuring that they are in control of the timetable and, indeed, the outcomes on that side of things?
Anne-Marie Trevelyan (Conservative, Berwick-upon-Tweed)
Q But in terms of that direction and that messaging, if you are no longer the applicant, although you are the one applying, that changes the whole sense of who is fighting for this, because the financial arrangement side is still often a fight.
Andrew Slaughter (Labour, Hammersmith)
To be clear, the Law Society would like us not to take out clause 6. I have yet to see what the views of the others are. Is that because you are against Henry VIII clauses generally, or do you think one is particularly inappropriate in this Bill? This is being put forward as an uncontentious Bill, but that is rather undermined by the desire to get it through simply and quickly without amendment. There is an attempt to have your cake and eat it by leaving in the ability to amend it completely in future.Q
Andrew Slaughter (Labour, Hammersmith)
Q You want to get that through quickly before we mangle it. Then you are happy to trust Government to do whatever they like in the future in this area of law. Is that your view?
Andrew Slaughter (Labour, Hammersmith)
Q It is just slightly suspicious. The same thing happened with the Marriage (Same Sex Couples) Act 2013. There was a desperate rush to get it through without bolting anything on. Then we had to have a series of short Acts, some of them private Member’s Bills, dealing with issues of relationships. There were lots of other things we could have dealt with in the Act, such as cohabitation and humanist marriage, and we dealt with equal civil partnerships in other ways. You just want to get this through and done.
Steve McCabe (Labour, Birmingham, Selly Oak)
I am conscious of the time, and I want to bring the Minister in shortly. Does anyone else have a simple, straightforward question they have not had a chance to put yet? I guess it is over to you, Minister.
Paul Maynard (Conservative, Blackpool North and Cleveleys)
Q For the benefit of the wider Committee, could you set out what, when people submit their evidence of fault, the court does with that piece of information? How is it handled by the court? What weight do they place on it?
Yasmin Qureshi (Labour, Bolton South East)
Good morning. YouQ gave evidence a little while ago about the fact that in order to respond to a fault being mentioned in a divorce, a person has to memorise reams and reams of letters and make a very detailed, comprehensive response to the allegation, but unless they pay the money, they are not even going to be considered. One of the problems with a fault having to be alleged is that often, the respondent or the applicant will then have to spend quite a lot of money to get the process through, so it is almost a double whammy: they have to pay money to blame each other and get a divorce.
Yasmin Qureshi (Labour, Bolton South East)
That is a lot.
Steve McCabe (Labour, Birmingham, Selly Oak)
Minister, this will have to be your last question.
Paul Maynard (Conservative, Blackpool North and Cleveleys)
Q Do not worry, Chair; it is. To follow up on my previous question, what assessment have you made of the introduction of a joint application for a divorce? How might that change the dynamics of the process?
Steve McCabe (Labour, Birmingham, Selly Oak)
I thank the panel for the evidence. We will move on to the next panel.
Steve McCabe (Labour, Birmingham, Selly Oak)
Good morning. May I ask the panel to introduce themselves for the record, please?
Anne-Marie Trevelyan (Conservative, Berwick-upon-Tweed)
Q Does this Bill improve things for those who have been living in an environment of domestic abuse?
Anne-Marie Trevelyan (Conservative, Berwick-upon-Tweed)
Q Do you think we will see an increase in applications in this cohort of families, if the process is easier?
Rosie Duffield (Labour, Canterbury)
To expand that, parties will still have to wait a year before applying. In your opinions, is there a danger that that will exacerbate any existing abuseQ ?
Eddie Hughes (Conservative, Walsall North)
Q Is there some evidence that changes of the type proposed by this legislation would lead to an increase in the number of divorces? I am reading a couple of cases here. Leora Friedberg found in her research that unilateral divorce laws were responsible for about 17% of the increase in divorce rates in the US during the 1970s and 1980s. Research across Europe by Libertad González and Tarja K. Viitanen found that
“reforms that “made divorce easier” were followed by significant increases in divorce rates”
and, moreover, that the effect of the move towards no-fault divorce laws seemed “permanent”. Is there research suggesting that we could see not just a spike in divorce but a continuation of increased divorce levels?
Eddie Hughes (Conservative, Walsall North)
So those two things that I quoted are unfounded or not relevant?
Eddie Hughes (Conservative, Walsall North)
There are two here.
Eddie Hughes (Conservative, Walsall North)
Q What do the public think about whether we should maintain fault? Has any research suggested that the public are happy with the idea of there being fault?
Eddie Hughes (Conservative, Walsall North)
Q Here it states that the Government’s own consultation found that a mere 17% of respondents agreed with proposals to replace the five facts with a notification process, and 80% were against it. Is that incorrect?
Eddie Hughes (Conservative, Walsall North)
Q Are responses from evangelical Christians not valid?
Eddie Hughes (Conservative, Walsall North)
Q Why did you mention it then?
Eddie Hughes (Conservative, Walsall North)
Q Why would you make that assumption? Why would they not know about the consultation and why would they not respond? On what basis do you make that case?
Melanie Onn (Labour, Great Grimsby)
Q Is there evidence that demonstrates clearly that no-fault divorces are any less damaging to children than divorces in general? Regardless of whether fault and blame are apportioned, it is still a traumatic event for families, and it involves changed circumstances. We do not have this provision here, but could you point us towards something from north of the border or overseas that suggests that it would definitely ease the anguish of families in that situation?
Steve McCabe (Labour, Birmingham, Selly Oak)
Q Do you have anything to add?
Robert Courts (Conservative, Witney)
Professor Trinder, I just want to pick up a point that you mentioned about international research and evidence from countries with similar legal jurisdictions as to whether no-fault divorce leads to an increase in divorce. You mentioned the United States, but what is there in New Zealand, Canada and Australia, in particular? Can you help us with that?Q
Robert Courts (Conservative, Witney)
Q So is there an absence of research from countries with similar legal jurisdictions? The United States is similar, but it is not that close. The closest are the ones that I have mentioned.
Robert Courts (Conservative, Witney)
Q How do their divorce rates compare with ours?
Melanie Onn (Labour, Great Grimsby)
Q Mrs Owens’ case brought this to prominence in recent years. How many other such cases have there been that I may have missed?
Victoria Prentis (Conservative, Banbury)
You heard the evidence from the previous panel about a barrier to divorce being the cost of the fee. Is that something you have any evidence for or opinion onQ ?
Victoria Prentis (Conservative, Banbury)
Q So is the exemption system not working?
Steve McCabe (Labour, Birmingham, Selly Oak)
I think we shall move to the Minister.
Paul Maynard (Conservative, Blackpool North and Cleveleys)
Q Thank you both for your evidence so far. For the benefit of the wider Committee, will you set out some specific examples, where there is coercion and control in a relationship, of how the current process facilitates that coercion and control?
Steve McCabe (Labour, Birmingham, Selly Oak)
If there are no further questions, I thank the witnesses for their evidence. Thank you. That brings us to the end of our oral session today. The Committee will meet again this afternoon to begin our line-by-line scrutiny of the Bill. Note that we will be in Committee Room 9 at 2 o’clock.
Steve McCabe (Labour, Birmingham, Selly Oak)
Welcome, everyone. May I remind you of Mr Speaker’s advice that you should switch off or silence electronic devices and that you should not have tea or coffee in the Committee Room?
We now begin line-by-line consideration of the Bill. No amendments have been tabled, but I expect to allow stand part debates on most clauses, which should allow hon. Members plenty of opportunity to scrutinise the Bill. We have to proceed in the order set out in the programme resolution that was agreed this morning.
Divorce: removal of requirement to establish facts etc
Steve McCabe (Labour, Birmingham, Selly Oak)
Minister, do you wish to make any opening remarks?
Paul Maynard (Conservative, Blackpool North and Cleveleys)
I will see what hon. Members have to say and then round up.
Steve McCabe (Labour, Birmingham, Selly Oak)
That is entirely up to you. I call Eddie Hughes.
Eddie Hughes (Conservative, Walsall North)
May I begin, semi-light-heartedly, by declaring my interest as a Catholic, which informs my position? At the national parliamentary prayer breakfast in Westminster Hall this morning, there was a discussion about the overlap between politics and religion. There are some areas in which I find the two to be inextricably linked, and this may be one of them.
When I entered into marriage as a Catholic, I felt wholeheartedly that it was for life and that there was simply no way out of it; my wife decided otherwise, and we ended up getting divorced. For my part, because I felt that I had stuck to the sanctity of marriage from a Catholic point of view, I was kind of relieved by the idea that it was possible to apportion blame and use the idea of adultery as a basis for the breakdown of the marriage. However, I appreciate that in some cases that may not be preferable. My problem with the Bill is that I feel it will make divorce easier. When a contract is easy to get out of, people enter into it more lightly.
Melanie Onn (Labour, Great Grimsby)
I hear the hon. Gentleman’s perspective, but I wonder who he thinks it serves in the long run to apportion such blame.
Eddie Hughes (Conservative, Walsall North)
I completely understand the hon. Lady’s point. That is why I am trying to set the context: my very personal view is that the system worked in my particular case, but I completely accept that it will be different for others, as we heard in our evidence session this morning.
My point is simply that we have all visited websites that have asked us to tick a box to agree to terms and conditions. It is highly doubtful whether any of us has ever read all the terms and conditions before ticking the box, because we know that we are entering into a contract that will be really easy to get out of. We have all done it—we have all pressed the button to enter into a contract really quickly, because we know that it is easy to get out of. I am scared about any move in that direction with regard to marriage, because my personal belief is that it is more important than that, as a contract and a spiritual union.
Anyway, I have some points and questions for the Minister about clause 1. The written and oral evidence submitted to the Committee by Mr Hodson raises several key points that really engage with the clause and that arguably highlight the need for amendments that I hope the Government will consider.
The 20-week reflection period is clearly of huge importance. The Bill is about removing fault from divorce, not about minimising the opportunity within the divorce process for couples to gain access to mediation and have a rethink. This may come as a surprise to some right hon. and hon. Members, but in some instances the first occasion on which a spouse finds out that their marriage is in difficulty is the commencement of divorce proceedings. That is the first opportunity they have, with that knowledge, to try to put things right. At a time when the annual cost of family breakdown to the Exchequer stands at £51 billion, according to the Relationships Foundation’s annual assessment, it is imperative that policy makers and legislators seize every opportunity provided by the 20-week reflection period to maximise the opportunities for mediation and reconciliation. Without any expression of commitment to the importance of marriage, the Bill will sound very hollow.
One key measure by which the success or failure of the removal of fault in the legislation will be judged will be the extent to which it creates a better environment within which couples can rethink and save their marriage. To this end, the 20-week reflection period defined in clause 1 is clearly of the utmost importance. At the moment, on the basis of the evidence submitted by Mr Hodson, it seems vulnerable on several points.
First, in a case in which one member of a couple initiates divorce proceedings, if the 20-week clock starts ticking from the moment that they initiate, as clause 1 currently proposes, the other spouse will on some occasions inevitably end up with less than a 20-week reflection period. That is clearly neither fair nor transparent. Will the Government amend the Bill so that it is clear that the 20-week clock will only start to tick from the moment it is clear that both members of the couple know about it?
Secondly, in order for the 20-week reflection period to work well, it is plainly important that a good part of the 20-week period, if not all of it, is made a litigation-free zone, so that the focus can be on mediation. That must extend to ancillary financial litigation. Will the Government amend the Bill so that at least most of the 20-week period, if not all of it, is made a litigation-free zone, including ancillary financial litigation?
Thirdly, will the Government consider changing the point in the process at which the partner seeking the divorce should lodge their statement of irretrievable breakdown? Having it at the start, as the Bill proposes, makes it extremely difficult for the other partner to respond constructively if the intention is for a period of reflection.
Finally, mindful of the importance of the 20-week period referred to in clause 1 for reconciliation and mediation, what new provisions will the Government make to ensure that all couples are offered effective reconciliation and mediation specifically during this period, in an effort to increase the numbers of divorce proceedings that are not concluded, thereby increasing the number of marriages saved?
Yasmin Qureshi (Labour, Bolton South East)
It is a pleasure to serve under your chairmanship, Mr McCabe. I put on the record the fact that the Opposition do not object to this legislation, which is one reason why no amendments or new clauses have been tabled. We welcome this piece of legislation, which has for many years been required and called for, and it is great that the Government have brought it to the House. This morning, Members heard from experts in this area who deal with these types of cases day in, day out, and it was quite clearly their unanimous opinion that this legislation is important, welcome and needed.
No one goes into a marriage expecting it to fail, but it is an unfortunate reality of life that couples may choose to go their separate ways. It is even more unfortunate that, when they pursue a divorce, they do so under archaic law. Among the five permissible grounds for divorce are adultery, desertion and unreasonable behaviour, which involve the allocation of blame to one party. That is unfair and could damage a couple’s children as well.
Paul Maynard (Conservative, Blackpool North and Cleveleys)
It is a pleasure to serve under your chairmanship, Mr McCabe, and to see so many people in the room, discussing what will be a very important piece of legislation. It is rare that we deliver social change in this place. It often occurs at a glacial pace. However, there are locks on the great canal of British history. Every so often, the locks open, the water flows and the ship of state moves on. It never occurs by unanimity. There will always be some in the avant-garde driving the canal boat through the locks, navigating carefully and ensuring that all the locks open and shut in synchronicity. Others may be less at the forefront—more at the bow of the ship perhaps, questioning, querying, holding to account and analysing the detail. Both are important as we consider any item of social change, and it is right that Parliament reflects all these views. As my hon. Friend the Member for Walsall North has demonstrated, it is very rare to achieve unanimity on any social issue, not just among colleagues in this House but across the country as a whole. I would never object to anyone raising concerns about this sort of legislation when it comes before the House.
We all come to Bill Committees with expectations and enthusiasm. When I served on the Committee that considered the Deregulation Bill in 2014, we spent at least 45 minutes discussing the idea of abolishing the age limit for purchasing chocolate liqueurs. There was a great, furious controversy about how many chocolate liqueurs one had to eat to become inebriated, and no consensus was achieved. I therefore hope that we might achieve a somewhat more broad—in fact, unanimous—consensus on this Bill, which frankly is far more important than the age at which one can purchase a chocolate liqueur.
This Bill is exceedingly important to millions of people up and down the country who are facing the prospect of divorce, have gone through it in their past and have strong views as a consequence, or who are currently in a marriage and considering what they intend to do. Its provisions, taken together, provide for reformed legal requirements in England and Wales by which a marriage or civil partnership may be legally ended through a court order for a divorce or dissolution, or by which an order for separation may be made allowing the parties to a marriage or civil partnership to remain in a legal relationship, but to live apart.
I will start by stating what I hope is agreed by everyone, and is a core Government belief: that marriage is vital to our functioning as a society. It is deeply sad for all those involved when a marriage or civil partnership is beyond repair. The decision to seek a divorce or dissolution of a civil partnership is an intensely personal one. The Government have heard calls to reform the legal process so that it does not make matters worse—calls that are supported by evidence, including that which we have heard this morning, about the harm done by the current legal process and how it is out of step with reality.
The Bill does not seek in any way to diminish the importance of the commitment made when two parties enter into a marriage or civil partnership with each other; that is a profound and deeply personal commitment between two people. I declare an interest: like my hon. Friend the Member for Walsall North, I am a Catholic, and I personally believe that marriage is a sacrament in the sight of God. Equally, I recognise that not everybody shares that point of view. We are looking purely at marriage as a civil institution; clearly, many people from many different faiths and none will have religious concerns, but today we are looking at the law on the dissolution of a marriage.
Relationships can, and ultimately do, fail. When a marriage or civil partnership breaks down and is beyond repair, the law must deal with reality, by creating the conditions for people to move forward with the minimum of acrimony and agree arrangements for the future in an orderly and constructive way. Above all, the legal process should not exacerbate conflict between parents, which is especially damaging for children. The process must better support and encourage parents to co-operate in bringing up their children.
The evidence is clear that the current legal requirements needlessly rake up the past to justify the legal ending of a relationship that is no longer a beneficial and functioning one. The requirement for one person to blame the other if it is not practical for them to separate for at least two years can introduce, or worsen, conflict at the outset of the process—conflict that may continue long after the legal process has concluded. Allegations about a spouse’s conduct may bear no relation to the real cause of the breakdown and can be damaging to any prospect that couples will reconcile or agree practical arrangements for the future. In the extremely difficult circumstances of divorce, the law should allow couples to move on constructively when reconciliation is not possible.
I will now deal with clause 1, which relates to divorce as a whole. This clause is key to the Government’s whole approach to this Bill and its principled approach to reducing conflict in divorce proceedings. Other clauses regarding the legal requirements for judicial separation, the dissolution of a civil partnership or the legal separation of civil partners reflect that same approach with the appropriate modifications. Clause 1 substitutes for section 1 of the Matrimonial Causes Act 1973 a whole new section 1. The current section 1 contains the grounds for divorce, the legal requirements that a party must satisfy to establish those grounds to the satisfaction of the court, and the powers of the court to grant the divorce if so satisfied.
The sole legal ground for divorce—that the marriage has broken down irretrievably—is retained. Under the existing section 1, a petitioner for divorce is required to show one of the five facts to evidence irretrievable breakdown. Three of the facts relate to the other party’s conduct in terms of adultery, behaviour and desertion, and the remaining two relate to the continuous separation of the parties to the marriage before the petition for divorce is filed. In new section 1, the requirement to show a fact is removed and is substituted by a requirement that the divorce application be accompanied by a statement that the marriage has broken down irretrievably. The new statement is to be conclusive evidence of irretrievable breakdown, and where such a statement has been validly made the court must make the divorce order.
I want to make it clear that the legal process for divorce cannot save a marriage when the relationship has already irretrievably broken down. Only 2% of divorces are currently contested, and research shows that most often the decision to contest is motivated by the desire of a respondent party to dispute conduct alleged by the petitioner. Since clause 1 removes the use of both separation and conduct-based facts, the ability of a respondent party to a divorce to dispute allegations about conduct falls away.
The ability of one party to a marriage to apply for a divorce order is retained, but clause 1 provides, for the first time, the option for a married couple to make an application jointly, reflecting cases where the decision to divorce is a mutual one from the outset. The Government want to ensure that when the decision to divorce is shared, the legal process reflects that mutual decision.
The current process by which a marriage is ended in two legal stages is retained, but the terminology of the 1973 Act is updated to match the more modern approach in the Civil Partnership Act 2004. The first decree of divorce, currently the decree nisi, will become a conditional order of divorce. The second decree, currently the decree absolute, will become the final order. The removal of Latinate terminology is, I believe, long overdue and will, I hope, be welcomed. As now, the applicant for the divorce must confirm to the court that it may make the conditional order. That will not follow automatically just because an application for divorce has been made. The conditional order does not legally end the marriage; it merely signifies that all the legal and procedural requirements have been met and that the court is satisfied that the marriage can be brought to a legal end. It provides a final opportunity for an applicant to reflect on the decision to divorce, as at conditional order stage the parties remain married.
Clause 1 retains a minimum period of six weeks between the conditional order and when an application may be made to the court for the final order of divorce, mirroring the current period between decree nisi and when the petitioner may apply for the decree absolute.
Kate Green (Labour, Stretford and Urmston)
I wonder what the Minister thinks the purpose of that six-week delay really is. What does he think will happen in these marriages during that six-week period?
Paul Maynard (Conservative, Blackpool North and Cleveleys)
Part of the objective, I believe, is to improve the financial arrangements. People may wish to delay a little longer until such a point. It is not a maximum period; it is a minimum, and the process might well take longer. It is about ensuring that we take a progressive, step-by-step approach to bringing the marriage to an end, and people may wish to tie up further loose ends, which may take longer than six weeks. There has always been a six-week gap to ensure, if nothing else, that all the paperwork is in order.
Crucially, however, new section 1(5) introduces into the legal process of divorce a minimum period of 20 weeks between the start of proceedings and when a party, or either or both parties to a joint application, may confirm to the court that the conditional order may be made. Those two periods together will now mean that in nearly all cases a divorce may not be obtained in a shorter period than 26 weeks, or six months. The 20-week period is a key element of the reformed legal process. For the first time, a minimum period has been imposed before the conditional order of divorce is made. The intention is to allow greater opportunity for the applicant to reflect on the decision and to decide arrangements for the future where divorce becomes inevitable.
The prospect of a couple reconciling once divorce proceedings have started is low, but our intention is that the legal process should still allow for that possibility. It is never too late for a couple to change their mind, which is one reason why we have decided to retain the two-stage process for divorce.
Separately, the new section 1(8) inserted by clause 1 retains the ability of the court in an individual case to shorten the period between decree nisi and decree absolute, which are now the conditional order and the final order, and also extends this discretion to the new minimum period between the start of proceedings and when confirmation can be given that the court may grant the final order or divorce.
I will come on to some of the points that have been made by my hon. Friend the Member for Walsall North and by the shadow Minister, the hon. Member for Bolton South East. My hon. Friend made some interesting and helpful points about how we can ensure, as I have just referred to, that this is as considered a process as possible, and how we can best utilise the 20-week period that I have just set out.
As my hon. Friend may have picked up during the evidence session earlier today, there is more going on to reform the divorce process than just what is in the Bill. There are a number of online initiatives to try to make the process smoother for those going through it, and one thing that we will look at is what changes we can make to that online process to signpost people towards mediation of some sort, counselling and so on, to make sure that they are aware of the broad range of options available to them, which they might not have thought of when they initiated the divorce process.
My hon. Friend also made a point regarding the Law Society’s concerns as to when that 20-week period should start. We have explored this at some length during the consultation. Starting the time period from the acknowledgement of service, as some have suggested, could incentivise an unco-operative party to delay a divorce and could enable a perpetrator of domestic abuse to exercise further coercive control, which is why we have erred on the side of starting it earlier than that.
It is also worth flagging the caveat that we should bear in mind at every stage of this process. When we talk about mediation at this stage of a divorce process, it is often around finances or childcare. The mediation that my hon. Friend and I might think of as laymen is more a form of marriage counselling and relationship support. We should always be careful about that: when we initiate a divorce proceeding, mediation takes on a slightly different meaning from what it might perhaps have during a marriage. As I mentioned to the hon. Member for Stretford and Urmston, 20 weeks allows people more time to sort out their finances, in as constructive a way as possible.
The shadow Justice Minister mentioned the one-year bar on divorce and asked for the reason for that. I confess that I too have asked officials of the first rank what was in the Bill and why this might be. We consulted on it before the introduction of the Bill and there was certainly no broad consensus or hard and fast evidence either way. Many felt that it went against the grain of reforms that recognise marriage as an autonomous troth, as indeed did the Law Society and the Association of Her Majesty’s District Judges. Faced with a lack of consensus and a lack of hard evidence at this stage that the bar causes hardship or is a problem, we propose to keep the status quo. That does not mean to say that the law can never be changed, but we do not believe that it would be the right step at this stage.
Understandably, the shadow Justice Minister raised the issue of legal aid and indeed legal support for those going through a divorce. She will be more than aware that legal aid is already available for mediation for couples who have finances or child arrangements that are in dispute. This provides a non-litigious route, resolving issues and helping families to move forward constructively. We are also investing some £5 million to support innovation across the sector that will help people to access legal support as close to their community as possible.
The shadow Justice Minister rightly made a point about litigants in person. As I have said to her in the past at the Dispatch Box, we are doubling our investment in our litigant in person strategy, but the wider reforms that I have just mentioned with regard to online processes for divorce should make it simpler and more straightforward for people to initiate proceedings online, so they would have less need for active legal help at that stage of the process. The reform programme, the litigant in person strategy and the legal support action plan are all about opening up newer avenues to access legal support that are not just about someone getting that legal help as they come through the courtroom door.
On that particular note, I beg to move that the clause stand part of the Bill.
Judicial separation: removal of factual grounds
Steve McCabe (Labour, Birmingham, Selly Oak)
Does anybody wish to participate in debate on clause 2? I do not see anyone who does. Minister, do you wish to make any concluding remarks?
Paul Maynard (Conservative, Blackpool North and Cleveleys)
I am not sure people will have the patience for me to read out all my notes on every clause.
Steve McCabe (Labour, Birmingham, Selly Oak)
There is no requirement.
Paul Maynard (Conservative, Blackpool North and Cleveleys)
I do feel I ought to. My notes are now all shorter than they were for clause 1. It might help Members if I make it clear for the sake of the record that clause 2 refers to the idea of judicial separation, by which a party to a marriage may obtain a judicial separation order. Judicial separation is rarely used nowadays, with fewer than 300 judicial separation petitions made annually in comparison with around 110,000 petitions for divorce. We recognise, however, that divorce is not an option for some couples because of deeply held religious or other beliefs. Judicial separation therefore continues to provide an important legal alternative for those couples, and that is why we have decided to retain it. Clause 2 broadly reflects the changes made in clause 1 and applies them to the issue of judicial separation. I commend the clause to the Committee.
Dissolution: removal of requirement to establish facts
Steve McCabe (Labour, Birmingham, Selly Oak)
Minister, do you wish to make any opening remarks? Does anyone else wish to participate in debate on clause 3? I will take that as a no. Minister, do you wish to say anything in conclusion?
Paul Maynard (Conservative, Blackpool North and Cleveleys)
I was going to take clauses 3 and 4 together.
Steve McCabe (Labour, Birmingham, Selly Oak)
You may refer to them both, but we have to take them separately.
Paul Maynard (Conservative, Blackpool North and Cleveleys)
The only point I will make to colleagues is that, just as we had judicial separation in clause 2, clause 3—and indeed, clause 4 for that matter—refers to civil partnerships and the Civil Partnership Act 2004. It once again takes all the elements I referred to in clause 1 and translates them on to the Civil Partnership Act 2004 so that that is also up to date from where we are currently.
Minor and consequential amendments
Bambos Charalambous (Labour, Enfield, Southgate)
We support the Bill very much. We had some concerns about the powers that the Lord Chancellor would have in relation to clause 6, but given that they are so limited in scope, we do not propose to object to them. However, we do not wish it go unnoticed that we have concerns about Ministers having—I will not call them Henry VIII powers in relation to divorce proceedings—draconian powers in pushing forward legislation that would remain as primary legislation. I will leave it at that. We do not oppose this clause, but I wish to put on record that we have wider concerns about Ministers’ powers.
Paul Maynard (Conservative, Blackpool North and Cleveleys)
I was going to say a few words on this clause, so I am grateful to have the chance to respond to the debate. The hon. Gentleman makes a perfectly fair point about the delegated powers. We got the idea from the Civil Partnership Act 2004, which was introduced by the hon. Gentleman’s party. We are reflecting the changes in that Act in the Bill. The powers we are conferring on the Lord Chancellor were exercised by the High Court with the introduction of the Matrimonial Causes Act 1973. In 2004, when the legislation was updated, it was decided that the power was better vested in the Lord Chancellor for civil partnerships. We are now catching up across the broader spectrum of proceedings with that decision to move the power from the High Court to the Lord Chancellor. I can justify the devolved powers in question even to myself, and I can even call them Henry VIII powers.
Paul Maynard (Conservative, Blackpool North and Cleveleys)
On a point of order, Mr McCabe. It is customary to give a lengthy thank you to all those who have participated in the Bill. I fear I would end up making a speech longer than any other speech if I tried to do so, but I thank all Members for their contributions, even if they have been silent contributions of good will emanating towards us. That is good enough for me.
More importantly, I thank all the officials who have worked hard on the Bill for many months. They may even be disappointed that we have taken only 47 minutes to progress it through Committee. I will put them at their ease, because if it is only 47 minutes, it means there is far less chance for me to muck it up at any stage. There will be a sigh of relief at the Ministry of Justice, I suspect, that I have been hidden from scrutiny by taking a bit less time. I thank all my officials and I thank you, Mr McCabe, for chairing the Committee so adeptly. You have facilitated our rocket-powered canal boat moving down the great canal of British history through one more set of locks.
Yasmin Qureshi (Labour, Bolton South East)
Further to that point of order, Mr McCabe. I place on record my thanks to all Members who have attended today and those who spoke in the Chamber on Second Reading. I thank you, Mr McCabe, for your excellent chairing of this Bill Committee.
Steve McCabe (Labour, Birmingham, Selly Oak)
It is certainly close to a record, Minister, but it must be down to the quality of the Committee.