The usual suspects and tired old arguments

The government’s Divorce Dissolution and Separation Bill, having already been passed by the House of Lords, is now working its way through the House of Commons and will have its second reading on Monday 8 June. There is cross-party support for the new law, but inevitably the backbench parliamentary awkward squad is trying to stop it.

If passed, the bill will introduce no-fault divorce in England and Wales, replacing the current system where people who wish to end their marriage must allege fault (i.e. adultery, behaviour or two years’ desertion) , unless they wait until they have been separated for two years (if their spouse consents to a divorce) or five years (where there is no consent).

The backbenchers who are trying to lead this rebellion are the usual suspects, Fiona Bruce MP, Sir Edward Leigh MP and Sir John Hayes MP. They are wheeling out the same tired old arguments against reform, now with the added twist that divorces are going to rise because of the COVID-19 lockdown.

There has been a lot of stuff in the media about how divorce is going to increase due to the lockdown. Maybe it will. These are of course unprecedented times. However, my suspicion is that it will not, or at most there may be a brief statistical anomaly until the world returns to something resembling normality.

All the stuff about a surge in divorces is rather too familiar for my liking. Every year, usually in early December, news stories start to appear around how the first day back at work after Christmas is known as “Divorce Day” and how family lawyers are traditionally rushed off their feet in the New Year.

Frankly, it’s rubbish. I generally find January a little busier than December, but not hugely so. December is quieter than November – because, I think, people want to wait until after Christmas is over before taking big steps in their lives. Those new instructions that I do receive in January are very rarely people whose marriage has collapsed on Christmas Day. They have usually been separated for weeks or months long beforehand. There is no evidence at all that more divorces break down over Christmas than at any other time of the year.

This tripe is derived from a combination of journalists desperate to fill space in the paper and law firm marketing department press releases. It’s the same now. All of the news stories about a COVID-19 inspired divorce surge seem to come from law firms who should know better and the media laps it up. When the current awfulness has passed, I doubt that we will find that the divorce rate has risen in the slightest. If I am wrong about, I doubt that it will lead to a long term increase in the divorce rate, which has been falling steadily for years.

Let’s examine the claims that the usual suspects are making:

  • The new law will be quickie divorce.

The media have referred to the current divorce law as quickie divorce for years, despite it being nothing of the kind. Sir Edward Leigh MP also refers to it as a “quick-style divorce”. It certainly won’t be a quickie divorce now; if anything it’s going to take longer.

In theory, it is currently possible to get divorced within 4 to 5 months, depending on how quickly the court and parties deal with matters. In reality, many divorces take a lot longer than this because it’s common practice to resolve all financial issues and obtain a financial order before applying to the Decree Absolute and bringing the marriage  to an end. This will not change under the new law. When you factor in the time needed to sort out financial issues, most divorces take at least six to twelve months, possibly longer.

The situation is somewhat confused by how slow the Family Court currently is in dealing with divorces. In 2015 the government reorganised the court system for divorces by introducing specialist regional divorce units. Previously it had been possible to issue divorce proceedings in your local Family Court; after 2015 they could only take place in specialist divorce units.

The regional divorce units were portrayed at the time as somehow being a significant change in the law and that they would “streamline” the process. They were perceived as allowing “over the counter” divorces and that in some way the court was no longer involved. Former MP, Anne Widdecombe, never one to let the facts get in the way of her opinions, decided their arrival was a bad thing:

“Divorce is already too easy — it makes a nonsense of marriage. I am not saying, go back to the old days when divorce involved tricks and stratagems, but at least it should be something people have to think about and take a great deal of trouble over. It should not be like buying sweets over the counter, or discarding an old carrier bag.”

Widdecombe didn’t bother finding anything out above how divorce works before voicing her opinion. The fact was that the law had not changed one iota. All that was different was the way in which the paperwork was handled; in specialist divorce courts, not in your local county court.

Despite all the talk of “over the counter” divorce, in fact the regional divorce units are still courts; for example, the Regional Divorce Unit for London and the south-east of England is based at the Family Court at Bury St Edmunds. It was an administrative change, not one that involved any change in the actual law. The only possible way in which the law could be seen to have changed was that the responsibility for granting certificates of entitlement to divorce was transferred from District Judges to the court legal advisers (the modern name for magistrates’ court clerks). Divorces continue to be granted or refused in accordance with the Matrimonial Causes Act 1973.

The use of the word “streamline” was spectacularly misleading. The legal profession quickly found that the regional divorce centres struggled to cope with the workload. Bury St Edmunds in particular has become notorious for dealing with cases at a glacial pace. It now takes about a year to get a divorce there, even where there are no financial issues to be sorted out.

So, the new no-fault divorce laws will be quicker then? Well, no. If the regional divorce centres were properly resourced, they would be delivering divorce within four to five months, just like the local court used to do before 2015. That’s what the new online divorce portal is now able to do. The portal has only relatively recently become available in cases where parties are legally represented and it is fair to say that it is not without its problems. However, when it works, it is remarkably fast; I recently applied for a Decree Nisi in an online divorce and was startled when I received a certificate of entitlement a few days later, which had been granted on the day after I had applied. By contrast, the paper system takes 2 to 3 months at the moment just to get the Decree Nisi and about a year overall.

No-fault divorces will take longer than the current system can deliver, even at its fastest. After lodging an application for a divorce with the court, the applicant will have to wait a minimum of six months before he or she can apply for a conditional divorce order, and then a minimum of six weeks thereafter before an application can be made for the final divorce order. Many cases will take longer because of the finances.

  • That there is no support for no-fault divorce

Leigh, Bruce and Hayes claim that there is no demand for reform:

“there is simply no public support for this Bill – which was not in the Conservative manifesto.’

It is true that it wasn’t in the Conservative’s manifesto last year. For some reason, it was omitted, despite the Conservative government having introduced the legislation in the House of Commons during 2019, only to see it run out of parliamentary time before the December 2019 General Election. Nevertheless, the Lord Chancellor confirmed during the election that it was still government policy.

Leigh complains that:

‘We don’t understand why – in the present time – it is necessary to do this.. I assure you that in the Dog and Duck [pub] in Grimsby or Scunthorpe there is no great demand for no-fault divorce.’

Against, the evidence for this simply isn’t there. In fact, as Resolution pointed out in response:

“A 2019 YouGov poll showed 73% of the public supported divorce law reform. And a separate YouGov poll we commissioned showed 71% of the population agrees that no-fault divorce is urgently needed to protect the long-term interests of children.”

  • That divorces will increase under the new law because divorce will be easier.

There is absolutely no evidence to support this. Research by Professor Liz Trinder at the University of Exeter shows that where no-fault divorce has been introduced elsewhere in the world, apart from a brief spike immediately after the new law is introduced, the long term divorce trend remains unaltered.

No fault divorce will not make divorce easier. It’s already very easy. The parties find it all too easy to start pointing fingers at each other. All that does is to increase the level of hostility, where there is usually plenty to go around already. It makes it harder for them to move on, to agree arrangements for their children and finances, none of which is in their best interests.

  • That the new law will prevent marriages from being saved.

Again, there is no evidence to support this. There is a single ground for getting divorced at the moment; the marriage must have irretrievably broken down. That ground will remain in the new law, you just won’t need to cite adultery, behaviour etc to satisfy the court that the marriage is definitely over. In the words of Liz Trinder, “You cannot resuscitate a marriage by refusing to bury its corpse”.

Resolution points out that:

“in fact the evidence points the other way: analysis of case files shows fault was associated with shorter marriages and shorter gaps between the break-up of the relationship and filing for divorce.”

The Marriage Foundation, which exists to promote marriage, supports the new law. It recognises that when marriages fail, they need to be brought to an end in a manner that enables the couple to do so with dignity and the minimum for conflict.

  • That the new new law is being rushed through.

This claim is more than a little silly. The legislation was first introduced in the House of Commons last year, but ran out of time before the election. It has been on the political agenda ever since the case of Owens v Owens which got a great deal of coverage a few years ago. Moreover, I have been advising clients that the law is going to change eventually for almost a quarter of a century. It very nearly did change in 1996 when the parliament passed the Family Law Act 1996 which would have introduced a flawed no fault divorce law, had it not been abandoned by the Blair government and then quietly abolished without ever having been implemented in law. To suggest that there has been an unseemly rush to do this is ludicrous.

The reality is that the usual suspects here, Bruce, Leigh and Hayes, are ignoring the evidence in favour of their own belief systems. Bruce and Leigh are both firmly on the right and very religious. Hayes is also very much on the right, being opposed to abortion and in favour of capital punishment. They are of course entitled to believe in what they wish, but I would suggest that does not give them the right to simply ignore the evidence.

7 June 2020

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