13.This Government Bill was introduced in the House of Lords on 7 January. The Second Reading debate took place on 5 February.
14.The Bill is identical in substance to one introduced in the House of Commons towards the end of the 2017–19 Session. That had completed Committee Stage when Parliament was prorogued on 8 October. It was re-introduced in the House of Lords at the start of the 2019 Session but it made no progress before dissolution on 5 November.
15.The Ministry of Justice has provided a memorandum about the delegated powers in the Bill. We wish to draw to the attention of the House the significant delegations of power contained in clauses 1 and 4 (described in paragraph 35 below).
16.The Bill, which extends to England and Wales only, revises the legal processes set out (a) in the Matrimonial Causes Act 1973 (MCA) for married couples to obtain a divorce or judicial separation, and (b) in the Civil Partnership Act 2004 (CPA) for civil partners to dissolve their civil partnership or obtain a legal separation. In summary, the Bill:
17.The MCA and CPA currently require a party petitioning for a divorce or dissolution to prove to the court that the marriage or civil partnership has irretrievably broken down by reference to one or more of the following facts: the other party has committed adultery, behaved “unreasonably” or deserted the petitioner for at least two years; or that the parties have been separated for two years and they both consent to a divorce or dissolution, or separated for five years and the respondent does not consent.
18.Where the respondent contests the divorce petition (which happens only rarely), there has to be a trial before a judge with oral evidence from the parties and other witnesses. The court must dismiss the petition if it finds that the petitioner has not proved the allegations or (in a petition based on the respondent’s behaviour) that they are insufficiently serious to justify a divorce.
19.But if the court is satisfied that the petitioner has proved one or more of these grounds, it must grant a divorce decree or a dissolution order. The decree or order is initially provisional. It is called a decree nisi (for a marriage) or a conditional order (for a civil partnership).
20.After the expiry of six weeks from the date of the decree nisi or conditional order, the petitioner can apply for the divorce to be made absolute or the dissolution to be made final.
21.The respondent can apply for the divorce to be made final after the expiry of three months from the date of the decree nisi if the petitioner has not done so. The court may then make the divorce absolute, rescind the decree nisi, or otherwise deal with the case as it thinks fit. The court may, for example, prevent the divorce from being made absolute until childcare or financial issues have been resolved. The Queen’s Proctormay apply to the court for the revocation of a decree nisi where it comes to light that the petitioner had obtained the decree dishonestly. There are mirror provisions for civil partnerships.
22.The MCA and CPA each contain delegated powers which allow for the six-week period between divorce decree nisi and absolute (or, under the CPA, the conditional and final order) to be altered by order, although it cannot be increased to a period of longer than six months. The MCA confers that power on the High Court, while the CPA confers it on the Lord Chancellor.
23.The Bill makes fundamental changes to the way in which a party or parties to marriage or civil partnership may obtain a divorce or dissolution.
24.There will be two stages to the new process. The first stage begins when an application for a divorce or dissolution is lodged with the court. The application can be made either by one party alone or by both parties jointly. The party or parties making the application will have to file with it a statement that the marriage or civil partnership has broken down irretrievably, which the court will be required to accept at face value. This applies even if the other party objects (in the case of an application made by only one party).
25.The applicant (or joint applicants) must then wait for a period of 20 weeks beginning with the date on which the application was lodged before filing with the court a statement that they wish the process to continue. The court will not make a conditional divorce or dissolution order until after the statement is filed.
26.At Commons Second Reading of the 2017–19 Session Bill on 25 June 2019, the then Lord Chancellor, the Rt Hon. David Gauke, described the first stage as “a period of reflection”. He said that the Bill will make “the court process towards a conditional order less rushed and give couples further time to consider the implications of the divorce”.
27.The then Parliamentary Under-Secretary of State for Justice, Paul Maynard MP, elaborated on this in Commons Public Bill Committee on 2 July 2019. He said:
“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.”
28.In the Lords Second Reading debate on this Bill on 5 February, the Advocate-General for Scotland, the Rt Hon Lord Keen of Elie QC, said:
29.“It will introduce a new minimum period of 20 weeks from the start of proceedings to when the applicant or the joint applicants can confirm to the court that a conditional order may be made. There is currently no minimum period, meaning that decrees nisi are reached as quickly as couples and the court process allow. Our proposal will allow time to consider the implications of the divorce. Between 2011 and 2018, around two-thirds of cases reached conditional order in less than our proposed 20-week minimum period. About one in 10 cases did so within eight weeks, and four in 10 cases between nine and 16 weeks. Our reform is in no measure introducing so-called quickie divorce; for around 80% of couples the divorce will actually take longer than it does currently.”
30.The second stage begins with the date on which the court makes the conditional order. The parties then need to wait for a further period of at least six weeks from that date before an application can be made to the court for a final order of divorce or dissolution.
31.The Minister explained the purpose of the second stage in Commons Public Bill Committee on 2 July 2019:
“… the objective … 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.”
32.He added that the first and second stages 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”.
33.Lord Keen of Elie said this about the second stage at Lords Second Reading on 5 February:
“In addition to the new minimum period of 20 weeks, the six-week minimum period between conditional and final orders will remain. As is the case now, the divorce will not be able to proceed to conditional order unless the court is satisfied in relation to service on the respondent.”
34.New sections 1(8) of the MCA and 37A(5) of the CPA will allow a court to shorten either the first or second stage (or both) in a particular case.
35.New section 1(6) of the MCA and new section 37A(3) of the CPA, inserted by clauses 1 and 4 of the Bill respectively, confer Henry VIII powers on the Lord Chancellor, by order subject to the negative procedure, to adjust the periods specified in the Bill for the first and second stages, but subject to the proviso that the period between the start of the first stage and the end of the second stage may not exceed 26 weeks in total. There is, however, nothing to prevent the Lord Chancellor from using the power to reduce the period, even by several weeks.
36.The delegated powers memorandum emphasises that a delegated power exists in current legislation to allow for the alteration of the current minimum timeframe between a conditional order and final order for the dissolution of a civil partnership and between decree nisi and decree absolute for a divorce. As noted above, this cannot be exercised to extend the period beyond 26 weeks.
37.The memorandum gives the following justification for the new powers in this Bill:
“Whilst it is appropriate to continue to set out a minimum time period for divorce and dissolution in primary legislation, it is also appropriate to continue to allow for flexibility for that time period to be adjusted without recourse to primary legislation, as Parliament has long allowed”.
38.The memorandum also explains that the Lord Chancellor “will be able to make adjustments to the time periods, for example if policy considerations meant that it would be appropriate to shorten one or both of the time periods”. However, it gives no indication at all as to what the policy considerations might be.
39.We regard this is as a very weak justification for an important Henry VIII power.
40.During the Commons debates on the Bill in the 2017–19 Session, Ministers described the 20-week period for reflection in the first stage as “a key element of the reformed legal process” and emphasised that parties would normally have to wait for at least six months before a divorce can be finalised; yet clauses 1 and 4 would allow the Lord Chancellor entire discretion to change the length of either or both stages, the only restriction being that the overall period cannot be extended to longer than 26 weeks.
41.As we observe above, new section 1(8) of the MCA permits a court to reduce the length of either stage of the divorce process in a particular case. This might allow a judge to shorten either stage if, for example, there is an urgent need to finalise a divorce in order to protect an applicant from an abusive spouse or civil partner. It is therefore wholly unclear to us why the Government need to have powers which allow them to change the length of both stages for all divorces.
42.In our view the Government have failed adequately to explain the reasons why these wide delegated powers are necessary since, as we have stated above, the Courts in individual cases have the power to shorten the period. We therefore recommend that new section 1(6) of the MCA and new section 37A(3) of the CPA should be omitted from the Bill on the ground that they contain an inappropriate delegation of power.
43.We considered whether more restrictive powers might be appropriate – for example, ones which allowed the Lord Chancellor by order to alter the respective durations of the first and second stages without reducing or increasing the total length (26 weeks) of the two stages combined. We believe that narrower powers such as these could be acceptable, if the Government were able to provide a satisfactory justification for the criteria, specified on the face of the Bill, to be applied in exercising them.
44.We also recommend that the Bill should, in any event, require the Lord Chancellor to undertake a public consultation exercise before exercising these powers, whether or not they are restricted in scope. This is so that the views of judges, the Law Society, divorce practitioners and the general public are fully taken into account before the waiting periods are amended.
45.The memorandum explains that the negative procedure for the powers in clauses 1 and 4 is considered appropriate because they are “clearly circumscribed [ones], relating to procedural time periods which have the further limitation that the Lord Chancellor may not lengthen the prescribed overall 26 week period and because the power in section 38(2) of the CPA, which these powers partially re-enact (the key change being the content of the prescribed time periods which the Lord Chancellor can change), is also subject to the negative procedure”.
46.In our view, however, the Henry VIII powers in clauses 1 and 4 are different in nature and scope from the ones they replace. As we explain in paragraph 22 above, existing legislation allows only for the alteration of the period between a decree nisi and a decree absolute or (for a civil partnership) between a conditional and final dissolution order. In contrast, the new powers conferred by this Bill could be used in a way which radically altered the rationale for the revised divorce process.
47.Ministers have emphasised in Parliamentary debates that the waiting period of six months between the start and the end of the new process is fundamental to the reformed divorce regime. It is, therefore, in our view inapt to describe new section 1(6) of the MCA and new section 37A(3) of the CPA as “clearly circumscribed” or as merely “relating to procedural time periods”.
48.A statutory instrument changing the duration of the new divorce process is likely to be of considerable interest to Parliament, particularly if it reduced that duration to a very short period.
49.We therefore recommend that the affirmative procedure should apply if these powers are retained in the Bill, regardless of whether they are narrowed.
3 Ministry of Justice Delegated Powers Memorandum
4 For example, adultery or “unreasonable behaviour”.
5 See clause 2 of the Bill. There is no requirement to file a statement that the marriage or civil partnership has broken down irretrievably or to prove any facts. A judicial separation is a formal separation sanctioned by the court. It does not bring a legal end to a marriage or civil partnership.
6 This will align the terminology of the MCA with that of the CPA.
7 This ground does not apply to a civil partnership.
8 The exact wording in section 1 of the MCA is: “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.
9 A petitioner who seeks a judicial separation rather than a divorce must also prove one or more of these facts; but he or she does not have to show that the marriage has broken down irretrievably.
10 The vast majority of divorces are uncontested. But a recent, well-publicised example of a contested divorce is the case of Owens v Owens which went to the Supreme Court. The Court’s judgment in that case ( UKSC 41) gave the impetus for the change in the law proposed by this Bill.
11 The Treasury Solicitor also holds the separate office of Queen’s Proctor.
12 The court is given power to shorten the period in a particular case.
13 See section 1(5) MCA (which confers power on the High Court to make a “general order”) and section 38(2) CPA.
14 HC Deb, 25 June 2019, col. 662.
15 Public Bill Committee, 2 July 2019, col. 35.
16 HL Deb, 5 February 2020, col. 1809.
17 Public Bill Committee, 2 July 2019, col. 35.
18 HL Deb, 5 February 2020, col. 1810.
19 See para 1(d) of the memorandum.
20 See section 38(2) of the CPA.
21 See section 1(5) of the MCA (as it currently stands).
22 See para 9 of the memorandum.
23 See para 10 of the memorandum.
24 See para 19 of the memorandum.