Examination of Witnesses

Divorce, Dissolution and Separation Bill – in a Public Bill Committee at 9:26 am on 2nd July 2019.

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Aidan Jones, Nigel Shepherd and David Hodson gave evidence.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak 9:28 am, 2nd July 2019

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.

Nigel Shepherd:

Hello. I am Nigel Shepherd, former chair and current board member of Resolution and a long-time campaigner for no-fault divorce.

David Hodson:

I am David Hodson and I am here on behalf of the Law Society family law committee. I am an assistant mediator and arbitrator in a practice in central London, dealing with international cases.

Aidan Jones:

Hello, good morning. I am Aidan Jones, chief executive of Relate.

Photo of Steve McCabe 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.

Photo of Anne-Marie Trevelyan 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 ?

Nigel Shepherd:

If I may start, I think this is an excellent Bill. The important thing is the big picture. Resolution members—6,500 family justice professionals—are dealing with divorce disputes up and down the country on a daily basis. Our ethos is to try to do so in a constructive, non-confrontational way, yet in the words of our current chair, Margaret Heathcote, who is quoted in the Ministry of Justice’s press release announcing the Bill, under the current law we are doing that job with one hand tied behind our back. Each year, about 100,000 couples are getting divorced in England and Wales, and the most recent statistics show that about 57% of those are pushed into this blame game, alleging one of the two primary fault grounds of adultery or behaviour.

The Committee will be aware that the Family Law Act 1996 would have introduced no-fault divorce, but it was never implemented. We estimate that, since then, about 1.7 million people have assigned blame in the divorce process. Many of those would have done so not necessarily because they wanted to or because it was the real reason for the divorce but because under the current system, if they cannot afford to wait at least two years for a consensual divorce, that is the only option open to them. Crucially, a large number of those would have been parents. Quite frankly, we have waited too long for this reform, having had it once and not got it over the line. In the meantime, we are dealing with that conflict on a daily basis. It is damaging to families, and particularly damaging to children. It is the time that the law caught up with the public attitude, which is that it is time for change and to end this blame game.

Photo of Eddie Hughes 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

Nigel Shepherd:

A national opinion survey, “Finding Fault?” You will hear evidence in the next session from Professor Liz Trinder, who conducted empirical research called “Finding Fault?” and the opinion survey for that found that only 29% of respondents to a fault divorce said that the fact used matched very closely the reason for the separation, and that 43% of those identified by their spouse as being at fault disagreed with the reasons cited in the divorce petition.

We call it a blame game, because at the moment if someone comes to see me as a practising family lawyer and says, “We both agree that the marriage has broken down. It is very sad, but we want to do this in the right way for our children and move forward. Can we get a divorce?” I say, “Not unless you want to wait two years.” They are aghast. They say, “That’s crazy. What do we do?” and I say, “Well, one of you is going to have to blame the other. Has there been adultery?” They say, “No,” so I say, “In that case, it is a behaviour petition.” They ask, “What do I have to say?” And that does not really matter. It has to be true—as a lawyer, I cannot put them through something that is untrue—but you can practically go on to the internet and cut and paste things such as, “I don’t like the way they control the remote control.”

Photo of Steve McCabe 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.

David Hodson:

May I respond briefly to that last point? I would go even further than Nigel. Lawyers specifically go out of their way to make sure that the real heart of the reason why the relationship may have broken down is not in the allegations of unreasonable behaviour, to remove any cause for greater animosity and concern. As practising lawyers we go out of our way to pull back from the distress that these allegations would cause. So although, as Nigel says, it will always be true, we do not put down the real problems at the heart of the relationship, to avoid that.

If I can come to the Law Society’s position, we have throughout supported no-fault divorce and we have been keenly supportive of Resolution in all the steps it has taken. Nigel and I were actively involved in 1996 when that legislation went through. We are keen to support no-fault divorce and actively support the principle of this legislation. We actively support a period of notice as the way of dealing with it, rather than a period of separation, which can have artificial and discriminatory elements.

We have a number of concerns, however, about the structure of the Bill, including the way it is set out, and there are a number of flaws in the Bill. We want the legislation to go through and we want no-fault divorce, but we believe that the Bill should be amended in certain respects before it completes its passage through Parliament.

Aidan Jones:

At Relate we believe that the outdated fault-based divorce system leads to animosity and causes conflict between parents, which we believe harms children. We think that it is better to have a system that supports co-parenting in future. We recently did a survey in which 64% of divorcees who responded said that placing blame for the divorce made the process worse for them. There are some quite stark quotes about how difficult that process was. For example: “things had been civil up until that point, very straightforward. Then, after divorce papers, it turned into a war and no one wants to accept blame or responsibility.” We strongly support the changes to the law, as set out.

Photo of Melanie Onn 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 .

Nigel Shepherd:

I am happy to do so. I think the 1996 Act was extremely complicated. This Bill has the beauty of simplicity, and for the right reason: it concentrates on the principal problem of the fault-based system. The 1996 Act introduced various things such as information meetings and different periods for different situations where there were children or a dispute about the divorce. I think it got wrapped up with those complications, so it was never implemented. It has taken a long time to get where we are today.

I also think that public attitudes have changed considerably. I think people are looking for autonomy and to say, “We are adults, and if one of us believes that the marriage is over, we should have a dignified, constructive way of ending it that focuses on the future, not the past.”

David Hodson:

It went into Parliament a fairly good piece of legislation; the perception of many lawyers is that it came out vastly more complicated. It went in with a nine-month period of notice—the structure was the same—but it came out, as Nigel said, with a two or three-stage process. Eighteen months was almost the minimum; if there were children, that went up to 21 months. There was even a provision that it could be further.

The general perception was that it made it far more difficult; although there were media headlines about an easier divorce, everyone knew that it would make it far more difficult as it made it longer. To a certain extent, a longer divorce does not help the public, so there was not too much unhappiness that that particular model as it came out of Parliament did not go through. Why it never went through is a political matter, which perhaps is another matter. The length of the period was the primary problem with the legislation as it came out of Parliament—it was far too long.

Photo of Melanie Onn 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?

Nigel Shepherd:

The position at the moment is that under the legislation for financial remedy, relief, maintenance or transfer of property, the court can make an order only when we have reached what is now the decree nisi stage, which will be the conditional order stage under the proposals. If you need to move on financially, you need to access the orders; even by agreement, the court cannot do that until there is a conditional order.

A two-year wait is a lifetime. Once people have reached the sad conclusion that their marriage is over, they are told that they can get on with some things but will have to come back in two years’ time and relive that, so when faced with the option of, “All you need to do is put down some mild allegations of behaviour, and we can get on with it,” that it the choice they make. That is why those percentages of fault-based grounds are so high. Even where people agree that it is a game they are playing to get through, it still increases conflict; you can still derail those negotiations and have an impact on the family.

Photo of Melanie Onn 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?

David Hodson:

From the legal profession, we desperately hope not. We want a simple process. Despite what may be thought, family lawyers try to settle all our cases. We try to deal with the crucial elements—issues regarding children and finance—but divorce is not a matter on which lawyers would want to spend any amount of time. We want it to go through smoothly.

Will it change the parliamentary process? We hope not. I agree with Nigel: we think the spirit of the age has changed since 1996. Our perception is of a far greater willingness to accept no-fault divorce from those categories that might not previously have been supportive. The changes that certainly the Law Society would like are not substantial; they do not change the structure or concept of a period over notice. They just try to protect the interest, particularly of the so-called respondents—the sole petition where the person may not have fully been expecting a petition to come through.

Photo of Victoria Prentis 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 ?

Nigel Shepherd:

I do not have the figures to hand, but I can certainly come back to you on that. Self-evidently, a very considerable number involve children under the age of 16. I am sure that is the case. Professor Liz Trinder may have the specific figures to hand. Clearly, children are at the heart of this process. As David said, as Resolution members and family lawyers doing the job properly we are trying all the time to help people focus on what really matters. The children are absolutely the first consideration in that. We know from the research that conflict is damaging to children. It is not necessarily divorce itself; it is the way you divorce. This Bill will help at the beginning to have a more constructive approach to that and help people focus on what matters.

David Hodson:

It is curious. The reasons for a divorce do not reflect on children issues and they will not be dealt with in financial issues, and we do not deal with them. But it is the psychodynamic of the couple that every so often a client will say to one, three or four months under way, “I still resent the fact that I am the respondent. You do know that this is equally to blame,” and we say, “Yes, we do, but it won’t have any bearing on children or financing”. However many times we say it to our clients, there is a residual feeling in their mind: “How am I the respondent? I shouldn’t be. I may be partly to blame, but I’m not wholly to blame”. It is the black-and-white element that we have one petitioner and one respondent.

One of the things the legislation has to bring through is that we have to review how we call people in this process. It is the softer elements around the legislation that are as important as the harder elements. For example, let us not get rid of the idea of an applicant and a respondent; let us have “in the marriage of”, and let us name the parties. Even if one person applies for a divorce and the other one responds to it, let us call it a divorce between two people, without having a litigious element in the heading. I think Relate and others would also certainly want to support those softer elements, which are crucial to this process as Parliament and society look at amending this law.

Aidan Jones:

From my perspective, the best I can do is quote one of our senior practice consultants, who says:

“The proposed legislation sends out a much healthier message for children. I have known plenty of couples over the years who have agreed together to separate, but one had to cite unreasonable behaviour and the other had to go along with it. This can cause issues. Blame is toxic and never helpful. A great deal of the work we do in the counselling room is around helping people to understand this and to take responsibility for their own actions. It is possible to have a healthy divorce. This legislation will make that easier to achieve”.

Photo of Anna McMorrin 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 ?

Aidan Jones:

Between application and decree nisi?

Aidan Jones:

It gives the potential for those couples to consider their position and seek help and support through counselling, for example, that we can provide. It allows them to consider carefully before proceeding. We support that period of consideration. The 20-week period up to decree nisi is important. We think that is the right place to put it. Our view is that, when it gets to decree nisi, the big decision is almost made in a lot of cases. The potential for people to have a longer period of consideration is very important.

David Hodson:

This is one of the primary concerns the Law Society has about this structure. We are very anxious. The respondent to a sole petition may be unaware of how seriously the other spouse feels about the marriage—they may not be expecting a divorce. Then, not only does she/he receive a divorce petition, as we still call it, but they also receive an application for financial claims. From day one, we have not only the divorce time period but the financial claims running.

The Law Society’s strong recommendation is that we carve out, within the 26 weeks, a three-month period where there are no financial proceedings. Then the respondent spouse is not facing the claims to make full disclosure—once that happens, the thinking moves on to “Oh, we have now got to resolve matters post-divorce.” We are very keen for there to be a period of reflection and consideration, which is what we had in the 1996 legislation in another form, to give an opportunity to pause, reflect, talk, maybe to have counselling, maybe in some cases to have reconciliation and maybe for one party to get up to speed with the other party. It is the constant experience of divorce lawyers that one party may have come to terms with the ending of a marriage before the other, so we are dealing with a very different emotional timetable.

This three months will not be of any prejudice. If urgent applications have to be made for interim provision, that is fine. It will not affect children or domestic violence, which are always separate proceedings. It just is a litigation-free zone for three months. We are not in any way saying there should be an extra three-month period—it is part of the 26-week period. After that, it is fine if couples want to say “Hey, let’s just get on with it by consent”, but for those who say they would like a pause, this legislation needs to find somewhere to say: “We want to give an opportunity for consideration, maybe of reconciliation, maybe a pause in the proceedings.” At the moment it does not. As Aidan said, and as the Government consultation paper said, it would be between the conditional order and the final order. That is the wrong end of the process. Have it at the beginning—a three-month period.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

Q From your perspective, would that allow enough time for everything to be reconciled within that timeframe?

David Hodson:

Is it possible to deal with financial matters in litigation in six months? No. In the central family court, where I sit part-time, you would normally expect nine months from what we call a form A, when the application is started off, until the financial dispute resolution hearing where most cases settle—the final hearing. That usually takes nine months, so it could not be done in the six-month time period anyway. We have other concerns about pensions and policies. It could not be done in three months or six months, so that argues for a nine-month period. We are not arguing for it. We are agnostic about six months.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

Q Nigel and Aidan, do you agree?

Nigel Shepherd:

I think the Bill has it right at the moment, and I think it is very important to recognise that that kind of amendment runs the risk of leading us down the road of complicating things. We have a unique opportunity at the moment to get this over the line on the key principle of no-fault divorce. I think the purpose of the Bill is that simplicity. We can deal with issues of financial application separately if we need to. We can certainly discuss that. What I would not want to do is risk losing this opportunity for the sake of amendments that make it more complicated than it is. That would be our key point.

Aidan Jones:

I agree with that. The core and most significant issue is the fault-based system. I think we should seek to resolve that, and anything that puts that at risk, for me, is something we should consider very seriously, so I would support that we keep it simple and deal with the major and most significant issue. For me, the most important part of that is the impact on children and their life chances, and the Bill will go a long way to resolve that, or to make that a better situation.

Photo of Eddie Hughes Eddie Hughes Conservative, Walsall North

Q Does this Bill make divorce easier?

David Hodson:

No, in a word. I think it makes it kinder.

Photo of Eddie Hughes 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.

Nigel Shepherd:

Yes. I do not think it makes it easier in the sense that I think a couple who have been married deciding to get divorced—or one of them being unhappy—is very rarely easy, for us as practitioners. What the process currently does is it makes it harder than it needs to be. It increases conflict.

Photo of Eddie Hughes 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.

Nigel Shepherd:

It is a matter of terminology. This no-fault process makes it kinder and more constructive. I do not think you will ever get rid of the—

Photo of Eddie Hughes Eddie Hughes Conservative, Walsall North

Q Does it make it less hard? That would be helpful.

Nigel Shepherd:

It makes it less conflicted, and if by hard you mean conflicted and unconstructive, yes, this Bill makes it less of those.

Photo of Eddie Hughes Eddie Hughes Conservative, Walsall North

Q I started with the word “easier”—you were trying to avoid the opposite of it.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Maybe we just have to hear about it as evidence.

Aidan Jones:

As the non-legal person, I think I used the word “healthier”.

Photo of Eddie Hughes Eddie Hughes Conservative, Walsall North

You definitely used the word “easier”—and the transcript, I am sure, will tell us that.

Aidan Jones:

The quotation from our senior practitioner used the word healthier—it is possible to have a healthier divorce. I think that is a better way to describe it.

Photo of Eddie Hughes Eddie Hughes Conservative, Walsall North

Q Sorry; you were referring to one element of it, saying, “This is easier.”

David Hodson:

It makes it a far more respectful process. Our existing law is harder, because we make our clients go through the process of inventing allegations of unreasonable behaviour or making allegations of adultery when that may not have been anything to do with why the marriage broke up.

Photo of Eddie Hughes Eddie Hughes Conservative, Walsall North

Q Or, occasionally, identifying them if they actually do exist.

David Hodson:

We do not now have to. If I may say this, with respect, we changed the law a few years ago so that you no longer name a co-respondent. That is just part of what we try to do to reduce the tension. Why do we have to name third parties who may or may not have anything to do with the reason a marriage broke up?

Photo of Eddie Hughes 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?

David Hodson:

Can I deal with that? That is a real concern for the Law Society. There is some doubt about the statistics. It is a particular concern with online divorce. My firm deals with the online divorce process, and there is a real worry that the number of divorces that do not proceed has increased with the online divorce process. There were 13 on Christmas day. We have asked the Ministry of Justice for figures under the new process, which came into effect in April last year, where the public could issue their own divorces. Solicitors came on board in August.

How many members of the public issued their own divorce through the online process? We have asked the Ministry of Justice, which has given us some figures. My firm has done a freedom of information request and we hope to get a reply in about two weeks. I think it will show that there is a higher number in the online process than there was in the “hard” process, when we actually put it in the post, as it were, and actually had to file it.

That brings us on to a concern about the effect. We have to allow a process. If people are going to say that, it is another reason for the three-month cooling-off period. As I say, we have asked the Ministry of Justice, and if the Ministry of Justice can give those figures to all of us around this combined table earlier, it would be very helpful. The suspicion must be that the figure for litigants-in-person through online who do not proceed is higher.

Photo of Eddie Hughes 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?

Nigel Shepherd:

I do not think so. This Bill does what it says on the tin in that respect. It is really important to get this and to focus on that big picture.

Photo of Eddie Hughes Eddie Hughes Conservative, Walsall North

Q That is the most significant thing in removing the impact on children?

Nigel Shepherd:

It is one element that we can achieve through this Bill. Of course, there are things that we need to continue to work on.

Photo of Eddie Hughes 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?

Nigel Shepherd:

I think we need to continue to work on how we improve our systems, but I do not think this Bill is the vehicle for dealing with the fault aspect, which we know is damaging to children, and we can achieve that.

Aidan Jones:

There are things we can do—not in a legal sense, but in a sense of, “How do we support people in healthy relationships?”—but I would not include them within the Bill. I would want Government Departments and the Government to look more widely at how we can support people through their relationships and in bringing up children. That is really important and you make a good point.

David Hodson:

Children have been removed from the divorce process. They are not even named in the divorce petition. A few years ago, the requirement to set out their names and dates of birth was completely removed. One can get a divorce petition through now and have no idea whether they have one child, no children, many children, who they are living with and so on. That was a previous Ministry of Justice decision. The statutory instrument simply removed all reference to any children in any divorce papers. A few years ago, the judge had to express themselves satisfied with the arrangements for the children. That has also gone, so in the legal sense, the children have been completely removed, but they are still the children of a couple who are having to go through a no-fault divorce, and we do not want the children or their parents to have to go through that.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I think we had better move on.

Photo of Bambos Charalambous 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 .

David Hodson:

I think there is an agreeable difference between the Law Society and Resolution here. We would like to see any material changes to the expectation of the structure set out in primary rather than secondary legislation. We are keen for the public, at the end of this process, as the measure goes through Parliament, in either a few weeks—some would think that is too rushed—or in a few months, when there is an opportunity for public debate, to understand what the divorce process is all about. The 1996 measure did at least allow the public to have a discussion about what it was like. We are not having that discussion at the moment, partly because this is going through fairly quickly and partly because it has not got into the public arena, so we would be very keen to say this: if the Ministry of Justice has any concerns about bringing any of these aspects forward, it should put them in the primary legislation.

There is another reason. At the moment, clause 1 does not read well. I mean no undue criticism of the drafter, but nobody could pick it up and read it. I tried to do that on Thursday at lunchtime and I really struggled. It is not a progressive process, it does not use straightforward language, and you cannot see it. Nigel and I have had a happy disagreement, but when is the irretrievable breakdown of the marriage? In terms of what we need to have within this structure, I agree with Nigel that we do not want to clog it up, but there are some crucial elements that we think should be brought into this legislation, as opposed to having—dare I say?—Henry VIII-type powers. Henry VIII is probably not the right person to bring up in the context of divorce, and Henry VIII-type powers probably should not be in, of all things, this divorce legislation.

Photo of Anne-Marie Trevelyan 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?

David Hodson:

It is totally unaffected by that particular provision. Domestic violence and children proceedings are under another piece of statute. They would often be dealt with by a different judge on another occasion. None of the financial elements would actually overflow into those two, so there is absolutely no prejudice whatever.

In terms of the timetable for the three months, a person might want to bring an application for interim financial provision. One reason why we have so many fault-based divorces in this country is that, in some instances, people need financial help and they can get it under our law only against what we used to call ancillary relief. Some countries have free-standing provision—I think Sir James Munby is coming, and it would be interesting to ask him. I think he supports free-standing financial provision—so you do not need a divorce. Many people apply for a divorce as a route to applying for financial provision. They would not be prejudiced in any way by having this litigation-free zone. They could apply straight away, which must be right.

Photo of Anne-Marie Trevelyan 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.

David Hodson:

It does not—forgive me. You would often have a petitioner for a divorce who may actually be the respondent to the financial claims. It gets awfully confusing, but you would often have the petitioner, who actually seeks the divorce under our present law, and it may be the respondent—maybe the wife—who then makes the application in form A, because she needs the financial provision, and she would be called the applicant in the financial claims. Because they are financial proceedings, they are separate to the divorce and they have a separate court hearing. She is the applicant and she would actually be the one who would control the entire timetable. She would be the one who made the opening speeches if they were at a hearing. She is the one who would actually be the applicant. The divorce is literally divorced from the financial process apart from two or three dates, and completely divorced from domestic violence and children proceedings—and rightly so.

Photo of Andrew Slaughter 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

David Hodson:

Clause 6 must stay in; there has to be the power for Government—for the Ministry of Justice—to bring in statutory instruments. We are saying that if the Ministry of Justice has in mind any changes, and if there are certain elements within the structure of the process of divorce that are in question, let us debate and understand them now, have a discussion, and bring them in there. That is certainly not to suggest that there should be a much longer process and much longer clause 1. If some of these items—not a lot; just a few of them—that we have put in the Law Society briefing paper are going to be considered, they should be brought forward and discussed now.

Nigel Shepherd:

Resolution is relaxed about the current structure of the Bill. We feel that we can proceed with this as this is, and we can deal with some of these details in secondary legislation. Again—I am banging the same drum—our primary focus is on removing fault from this process, and that is what we want to get over the line.

Photo of Andrew Slaughter 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?

Nigel Shepherd:

We cannot ignore the current political uncertainty and the priorities elsewhere. We are delighted that time has been found for this, and we do not want to lose it.

Photo of Andrew Slaughter 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.

Nigel Shepherd:

Yes, exactly. Are there other things that we would like to do? Yes. We would like to get legal aid back, at least for early advice, to help couples and steer them towards mediation and in the right direction. Yes, we would like to reform the law for cohabitants, to give protection to the vulnerable. It is just that this is not the Bill to do that. When I say that we are relaxed at Resolution about the secondary legislation point, it is not that we think that the primary legislation is flawed, but are just ignoring that to get it through. We think it is fine, but there are details that clearly can be dealt with in secondary legislation, and we are comfortable with that.

David Hodson:

Would it be helpful if I explained one of the primary concerns of the Law Society? It relates to the respondent—forgive me for using that language; the person receiving a sole petition. When does the 26-week period run? At the moment, under this legislation, it runs when the petitioner—again, forgive me for using the old-fashioned language—sends the petition to the court. When it is served, it is served through a period of notice, and there are service provisions. The legislation intends for the 26 weeks to run from that date, but the respondent may get it weeks—sometimes many weeks—later, because there are delays at the court; I do not make any further points on that, but it may take weeks, sometimes longer, for it to be issued. If somebody is abroad, the period of service may be longer. There may be a need to find the person.

In our opinion, we have fairly arbitrary, unfair, discriminatory provisions for the respondent spouse, who, we must remember, may not know this is coming. There may not have been a letter before action. They may be surprised to know how seriously the other spouse was thinking of ending the marriage—“Oh, I didn’t realise it was such a bad state that they would issue a divorce petition.” Perhaps they are not living together and the person has to be found.

It is wrong and, we believe, quite unfair for some spouses to have 24 or 20 weeks, and others to have 15 weeks, if it takes longer to serve. One of the fundamental elements of what the Law Society wants is to make it clear that the 26 weeks—if that is what Parliament deems is the right and appropriate period—run not only for the petitioner who issues the petition, but for all respondents, from the date they receive it.

The Ministry of Justice consultation period ums and ahs—my words, not theirs—as to whether the period should run from the date of the start of proceedings or the date of service, and in the end has eventually come down on the date of the start of proceedings, but they admit there is good reason for it to be from the date of service. It has to be from the date of service; otherwise, it is grossly unfair, and we are creating a law where some respondents have 24 or 23 weeks. That cannot possibly be right. If Parliament decrees that we should have a divorce after 26 weeks’ notice, that should not be the notice given by one spouse; it should be the notice received by the other. When we talk about whether to have clause 6, that is one of the fundamental elements that we say should be debated and discussed in this forum, and more publicly, to see how we feel about respondents having far less than 26 weeks.

Photo of Steve McCabe 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.

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

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?

Nigel Shepherd:

The short answer is that the average time that court officials—this is now mostly done by legal advisers in regional divorce centres—have to scrutinise the evidence is four minutes per case, broadly. Although current legislation says that the court has a duty to investigate the situation as far as is reasonably practicable, the reality is that our process does not allow that to happen at all. If a petition goes in on behaviour, and it is not defended, the legal advisers looking at it are simply checking to make sure that the jurisdictional grounds are correct, and that there is the necessary legal connection between the behaviour and the breakdown—in other words, that the boxes are correctly ticked.

There is no investigation and, what is worse, if the respondent to that petition writes five pages on why it is all untrue, if it is not formally defended with an answer and a fee paid of £200, it is ignored. That is the worst of all worlds, because respondents, particularly those without the benefit of legal advice, think that they are saying that they disagree with something about the petition, but that nobody is listening. That makes it even worse. There is no realistic scrutiny at all in the system. It is impractical to have that scrutiny, because who knows really what goes on behind the closed doors of a marriage? That is why this change is fundamentally so important; it means that there is no pretence anymore. It is intellectually dishonest at the moment; that is what Sir James Munby said in the Court of Appeal in the case of Owens. We would be getting rid of that dishonesty and acrimony at the start of the process.

David Hodson:

I can add to that as a part-time judge at the central London family court. Until two or three years ago, when we had divorce centres, part-time judges had to do four or five of these special procedures every time we sat. It took a matter of moments. We would give careful consideration to the document that had been drawn up by the legal adviser as to whether there were any procedural errors. We would look at the unreasonable behaviour allegations, but I find it difficult to remember in recent years—we have softened as the years have gone by—anything having been sent back. Sometimes it is so minuscule, but if it is undefended, it will go through.

The 1996 legislation had a knock-on effect. If Parliament decided in 1996 that no-fault divorce was appropriate, though Parliament subsequently did not bring it into force, should judges be turning around and saying no? Owens was a distinctive case. It was a defended case, whereas if it is undefended, as Nigel said, it will go through. That makes it a crying pity that people have got to go through that process in the first place.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

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.

David Hodson:

One of the Law Society’s concerns is the court fee. I appreciate that this is not in primary legislation, but may we express our concern? At the moment, it is £550.

David Hodson:

For that, you get a few minutes—I will not say moments—of judicial time, and there is perhaps some scrutiny of the procedure. We hope to go to a no-fault divorce process, mostly online, with almost no or no judicial involvement, because there will not have to be any.

The £550 is very unfair on the poor—for those on welfare benefits, there is an allowance, but it is very unfair on those above that. The great worry has to be that we have a lot of limping marriages in our society between people who just cannot afford that. There are no financial claims—there is no money to make any financial claims—but they just cannot afford to bring the divorce forward.

The Law Society—Resolution would probably agree—would like to make a plea: can the Ministry of Justice review the fees? Again, that is for a secondary instrument. We have some of the highest in the world, probably second or third highest, and they are much too high. Particularly with the new process that will be going through, there is not that cost to society or to the Ministry of Justice of running it, so can we make the plea to reduce the fee of £550, so we do not have marriages out there that came to an end a long time ago?

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Minister, this will have to be your last question.

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

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?

Nigel Shepherd:

We are all in favour. It is absolutely right, and people ask for it all the time. People come in and say, “We both agree. Can we make this a joint decision? It is really important because we want to say to our children that this was a joint decision that we made as adults, rather than having Kramer v. Kramer—an applicant and petitioner against, with one person being blamed and the other not.” We are absolutely in support; it is a crucial part of the Bill.

Aidan Jones:

We absolutely support that as well. We believe that is the right message. When the sadness of a divorce is approaching, it is the right message for the children to see that two adults can still co-parent and get on with each other. In the interests of the children, it is the best way forward.

David Hodson:

We tried it under the present process in a number of cases where we had agreed particulars of unreasonable behaviour and cross-petitions. In other words, it went through on the petition of both the petitioner and respondent. Then we got the decree absolute, and we still had the original petitioner described as the petitioner, though it had gone through on the petition of the respondent as well, because there was a joint petition with jointly admitted unreasonable behaviour on both sides. That was so unfair. It is the unfairness of that decree absolute. If only we could have, “This is the marriage of x and y, and they have jointly asked for this.”

I think—we can discuss this—there will be a number of instances where there is a sole petitioner and a joint application for the decree absolute. Again, that embraces what we want to see—that by the end of the period before the application for the decree absolute, they have both come to terms with it. They may not have been okay with it at the beginning, but if at the end, they have come to terms with it, how much better that would be for the children, the future parenting and all those other issues. That is why we are desperately keen to see not only a change to our laws, but a change in the terminology—the way the forms are set out—because that signals so much more for the couple.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I thank the panel for the evidence. We will move on to the next panel.