No-fault divorce: A quick look at Baroness Butler-Sloss’s divorce bill
By:5 commentsJuly 23, 2018
Last Wednesday Baroness Butler-Sloss, the former President of the Family Division, introduced a new private members’ bill into the House of Lords. The Divorce (etc.) Law Review Bill aims “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.”
It may seem somewhat unusual to go to the lengths of introducing a private members’ bill just to get the Lord Chancellor to review the law on divorce, but there is rather more to the Bill than just that. To begin to find out exactly what the Baroness has in mind we must look at sub-paragraph (2) of clause 1 of the Bill:
“The review must, in particular, consider replacing the current law with a scheme for divorce and judicial separation, and the equivalent for civil partnerships, based on a system of application and confirmation (and such a scheme is set out in the Schedule).”
I’ll come to the Schedule in a moment. First of all, clause 1(3) tells us that:
“The review must include consideration of—
(a) any procedural implications of its proposals, and
(b) the consequences of its proposals for other relevant connected matters, such as (for example) financial provision and arrangements for children.”
The Bill calls for the Lord Chancellor to begin the review within six months of the Bill being passed, and then report to Parliament upon the conclusions of the review, and of any proposals which it makes.
At this point, you may be thinking you are none the wiser. What exactly does the Baroness mean by “a system of application and confirmation”? As indicated, we must look to the Schedule to the Bill for the answer.
The Schedule sets out the scheme for the reformed divorce law. It begins by telling us that: “The sole ground for divorce or judicial separation, or the dissolution of a civil partnership or the separation of civil partners, is to be an irretrievable breakdown of the marriage or civil partnership.” That, of course, is the same as at present. However, under the new law, the only evidence required is to be the making of an application to the court, and confirmation of the application. No need to prove adultery, ‘unreasonable behaviour’ (to use the common parlance), separation, etc. In other words, a system of no-fault divorce.
As of now, no divorce application may be made until one year has elapsed from the date of the marriage. The application may be made by one or both parties. Either or both parties may confirm the application, but only after nine months have elapsed from the date of the application if it was made jointly or, in the case of an application made by one party, the date that the other party was given notice of the application. If the application is not confirmed within two years then it will expire.
OK, so whilst it may choose an unusual way of going about it, the Bill ultimately proposes something very similar to what we have seen many times before a simple no-fault divorce system. As anyone foolish enough to be a regular reader of my posts here will know, I am all in favour of that. My only complaint is that I think nine months is rather too long to keep the parties to a broken marriage from moving on with their lives – I think three months would be enough, and six months should be the maximum.
I suppose the main point of interest with the Bill is the odd way it goes about things. By proposing a review rather than the straight introduction of a no-fault system the Baroness clearly seems to be aware of the minefield of potential objections that the Bill may face, and mindful of the problems that ultimately scuppered the government’s last attempt to introduce no-fault divorce, via the Family Law Act 1996.
Of course, the biggest problem that the Bill faces is that it is a private members’ bill, rather than a government bill, and as such far less likely to be passed. Still, let us hope that the Baroness succeeds where others have failed.
The Bill will have its second reading on a date to be announced.