Divorce, Dissolution and Separation Bill

Written evidence submitted by Nicholas D Hart, retired former solicitor (DDSB06)

Divorce, Dissolution and Separation Bill

Although I have not been active as a solicitor in practice in Matrimonial Affairs for many decades, I was sufficiently affected by the cases I came across to feel I can contribute some concerns over the Bill as currently drafted. I would hope my concerns have been expressed already by specialists in this field, but make this submission in case this is not so.

I am also concerned that the mistakes in previous legislation (e.g for the ‘Bedroom Tax) directly occasioned by faulty Impact Assessments are not repeated.

The Impact Statement for this legislation repeats at almost every stage "It is assumed that there will be no impact on related financial settlements, the long-term divorce rate and reconciliations." This will only hold true if the legislation is drafted to make it so, and that it currently does not, in my opinion.

For the reasons I state below the opposite may be true.

In my view, the most significant legal change proposed by the Bill is not the unilateral nature of the proceedings per se, but that for the first time a ‘guilty’ party to the marriage can initiate and control the proceedings. This is contrary to centuries of contentious practice around which the practice of our law is based, so the possible consequences of it require creative thought as there is no comparable practice or history against which to check the viability of this project.

For example, much of the protection for the ‘innocent’ party in existing divorce legislation was not specifically provided for because the process itself meant that that party was in control.

Sadly, the legislation needs to provide for the worst cases, not just the best, and does not seem to do so.

By way of example (even if stereotypical) a philandering wealthy husband who just wishes to ditch the inconvenience of a wife and children and remarry can start the process unilaterally, seems not to need to make any proposals for financial provision for spouse or children, and can be divorced 26 weeks later without the court being able to hold up the process. There are already enough cases of proceedings in other areas of contentious practice where the respondent’s address has been incorrectly given allowing default judgements to be improperly entered to make it essential to protect against that in this sensitive area.

Given that, it would seem advisable for statutory authority to require the form of a unilateral divorce petition to describe what is proposed to happen, whether there are children of the family etc., and a statement of truth with appropriate penalties.

Whilst that could be provided for by Statutory Instrument, an essential backstop would be to require in the primary legislation a court appointed mediator in any unilateral proceedings to have certified that the respondent spouse is aware of the proceedings and the need to be make an application if financial matters are to be resolved, without which an order making the divorce unconditional can not be made. A comparable system now works in employment law, apparently to good effect.

A similar drafting query revolves round the 26 weeks – as drafted the process could take years because the unconditional stage must be prompted by the applicant party. Thus, another form of abuse would be for a malicious applicant party with no immediate need to remarry to be able to hold up that stage indefinitely and not allow the respondent spouse and any children of the family to move on.

I can not see that that is dealt with.

Those lawyers who are in current practice in this field may be able to envisage many other areas where this reversal of a millennium old presumption may have unforeseen consequences, and I would hope they will be encouraged to do so to enable this worthy legislation to be enacted effectively.

July 2019

 

Prepared 3rd July 2019