PARLIAMENTARY DEBATE
Divorce, Dissolution and Separation Bill (First sitting) - 2 July 2019 (Commons/Public Bill Committees)

Q 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 dilemma?

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.

Q 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.

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.”

Q 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 first.

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.

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.

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.

Q Could you focus on children for a moment? What proportion of divorces involve children? How will the Bill promote their welfare?

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”.

Q 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 practice?

Aidan Jones: Between application and decree nisi?

Yes.

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.

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.

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.

Q Does this Bill make divorce easier?

David Hodson: No, in a word. I think it makes it kinder.

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.

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—

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.

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

Sorry. Thank you, Chair.

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

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.

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.

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?

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.

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.

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.

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.

Q 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 misnomer.

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.

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.

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.

Q 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.

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.

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.

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.

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.

Q Good morning. You 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.

That is a lot.

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?

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.

Q Does this Bill improve things for those who have been living in an environment of domestic abuse?

Professor Trinder: Hugely, I would say. At the moment, probably about 20,000 petitioners are alleging domestic abuse in behaviour petitions. That is a very substantial number. I led the first major study of divorce law, funded by the Nuffield Foundation. One of the things we did was to talk to people who have been going through the process. Certainly, where there has been a background of domestic abuse, people had a strong sense of not wanting to inflame the situation or put themselves more at risk by alleging particulars of behaviour. About 20,000 petitions annually involve allegations of domestic abuse and not to have to put those allegations forward would put those petitioners, particularly women, in a much safer position.

Mandip Ghai: We would agree with that. As part of my role at Rights of Women, I regularly advise survivors on our telephone advice lines. They have a real concern about issuing a divorce petition at all, and about the perpetrator’s reaction, but they have particular concerns if they are having to cite domestic abuse on the petition. The Bill will also, we hope, prevent perpetrators using the threat that they will defend petitions to try and control her or have the upper hand in negotiations about finances and children.

We also find, often, that if the perpetrator issues a divorce petition first, she has to agree to a divorce based on her unreasonable behaviour, when in fact the reason why the marriage broke down was his abuse towards her. We support the Bill.

Q Do you think we will see an increase in applications in this cohort of families, if the process is easier?

Professor Trinder: I dispute the concept that it would be easier. I echo Nigel Shepherd’s point that it would be kinder. There is absolutely no reason why there would be a significant increase. In effect, the Bill just changes the way irretrievable breakdown is evidenced, by removing the need to present allegations that may or may not be true. What we may see—it happened in Scotland and other jurisdictions—is that there will be a temporary increase or spike in the number of divorces that are being brought forward. The law would not cause an increase in relationship breakdown; what it would do is enable people who are waiting for two years, sometimes five years, who are in a queue already because their marriage has broken down, to move on with their lives, sort out permanent agreements for their children and resolve money issues without having that long wait.

Mandip Ghai: For survivors who are thinking about leaving an abusive relationship, the point of separation is often the most dangerous time for them. There are lots of things they are thinking about, not just his reaction to the divorce. The Bill would just be one thing that would hopefully help her leave the abusive situation.

Q Is there some evidence that changes of the type proposed by this legislation would lead to an increase in the number of divorces? I am reading a couple of cases here. Leora Friedberg found in her research that unilateral divorce laws were responsible for about 17% of the increase in divorce rates in the US during the 1970s and 1980s. Research across Europe by Libertad González and Tarja K. Viitanen found that

“reforms that “made divorce easier” were followed by significant increases in divorce rates”

and, moreover, that the effect of the move towards no-fault divorce laws seemed “permanent”. Is there research suggesting that we could see not just a spike in divorce but a continuation of increased divorce levels?

Professor Trinder: No.

So those two things that I quoted are unfounded or not relevant?

Professor Trinder: There is a large number of academic studies, as you would imagine.

There are two here.

Professor Trinder: There is a large number of academic studies looking at the relationship between divorce rates and divorce law in a range of jurisdictions. You can always find one or two studies that will be outliers, particularly from the United States where there are aligned researchers. The strong message from the consensus of academic opinion is that there is no relationship between the substantive divorce law and divorce rates. The paper by Libertad González that you reference clearly said that procedural changes can have an impact on divorce rates, not the substantive law. If you look at our law, we have fault. Of all divorces, 60% or so are proceeding on fault. They will all get through. Fault is not a bar to achieving a divorce at all.

Q What do the public think about whether we should maintain fault? Has any research suggested that the public are happy with the idea of there being fault?

Professor Trinder: It depends on how you ask the great British public, and how it is put.

Q Here it states that the Government’s own consultation found that a mere 17% of respondents agreed with proposals to replace the five facts with a notification process, and 80% were against it. Is that incorrect?

Professor Trinder: No, I think those are the accurate figures from the Ministry of Justice. The MOJ launched a consultation and the vast bulk of responses were supportive of the proposals. A small evangelical Christian organisation then e-mailed all its members, and there was a flood of responses.

Q Are responses from evangelical Christians not valid?

Professor Trinder: No, they are valid.

Q Why did you mention it then?

Professor Trinder: They are valid as the views of evangelical Christians, but they are not a valid representation of the British public. In opinion surveys by YouGov, a majority of the population are supportive of the specific reforms and the removal of fault entirely. In the main, evangelical Christians are not supportive of the reforms, but the public in general are, and that is much more persuasive to me.

Mandip Ghai: The problem with relying just on statistics is that that does not include various sections of society, such as survivors of domestic abuse, who probably did not respond to that consultation. They probably did not know about it, or may not have felt confident enough to respond to the consultation.

Q Why would you make that assumption? Why would they not know about the consultation and why would they not respond? On what basis do you make that case?

Mandip Ghai: When we spoke to people on our advice line, they did not know about it. I am basing it on my experience of speaking to survivors on our telephone advice lines. The reality for those women who we hear on our advice lines and who are going through the divorce process is that they find having to state the behaviour particularly difficult. From our experience, removing the fault-based system would help them to get through the divorce process in a safer way.

Q Is there evidence that demonstrates clearly that no-fault divorces are any less damaging to children than divorces in general? Regardless of whether fault and blame are apportioned, it is still a traumatic event for families, and it involves changed circumstances. We do not have this provision here, but could you point us towards something from north of the border or overseas that suggests that it would definitely ease the anguish of families in that situation?

Professor Trinder: Just now I mentioned that 60% of divorces in England and Wales were based on fault. North of the border in Scotland it is 6% to 7%. Are we, south of the border, so much more badly behaved in marriages than the Scots? [Laughter.]Again, it’s a game. The system is gamed, and the law currently incentivises conflict, because the only way to get a divorce within a reasonable time is to make allegations of fault. It is more likely that 50% of divorces are about behaviour because you do not need an admission, as you do with adultery. In the surveys that we ran as part of our study, that was much more likely to cause difficulties in sorting out child arrangements and to mean contested financial proceedings. The point is that divorces are going to be incredibly stressful and, in many cases, conflictual. The problem is that the law adds needlessly to that conflict. The fault process is a routine and a legal charade that adds nothing. Through allegations and seeing behaviour in black and white, it can derail couples who are managing their divorce reasonably well. It can derail things in a way that adds nothing to the process, and is just a needless problem that does not need to be there.

Q Professor Trinder, I just want to pick up a point that you mentioned about international research and evidence from countries with similar legal jurisdictions as to whether no-fault divorce leads to an increase in divorce. You mentioned the United States, but what is there in New Zealand, Canada and Australia, in particular? Can you help us with that?

Professor Trinder: Most of the research exploring the relationship between divorce rates and divorce law has been from North America and Europe. I cannot think of anything from Australia and New Zealand, but their approach has been—

Q So is there an absence of research from countries with similar legal jurisdictions? The United States is similar, but it is not that close. The closest are the ones that I have mentioned.

Professor Trinder: In the United States, each state has completely different laws. Australia and New Zealand are different in that they have had separation divorce. In Australia, the only ground is a one-year separation, which has been in place since 1967. We did a comparative study as part of the research and really struggled to find Australian and New Zealand respondents, academics or experts, because there is just no research on the grounds for divorce. It is just not an issue because the reform took place so long ago and that is just how things are.

Q How do their divorce rates compare with ours?

Professor Trinder: They are very similar. It is also worth noting that the divorce rate between England, Wales and Scotland is almost identical, yet we have 60% fault, while Scotland has 6% to 7%. Fault is not influencing the divorce rate at all. That makes sense because divorces are granted in England and Wales and, with the exception of Mrs Owens, fault is not a barrier at all.

Q Mrs Owens’ case brought this to prominence in recent years. How many other such cases have there been that I may have missed?

Professor Trinder: It is extremely unusual. About 2% of divorces in England and Wales intend to defend. Most of those cannot actually continue with that, and only about a dozen out of 100,000 cases go to a fully contested trial each year. Owens is the only case that we are aware of in the last two decades in which the decree has been refused. We also looked at defended cases and had a sample of 74, and none of those were upheld. It is worth noting that in those defended cases, most of them were not defences of the marriage. It was not somebody saying, “No, I don’t believe that my marriage has broken down.” Mostly, they were triggered by the law itself. People were objecting to the allegations of behaviour made against them, including what appear to be perpetrators who defended allegations of quite serious domestic abuse. Because the court tries to settle cases, rather than go to a fully contested hearing, what happened typically was that the particulars were stripped out, so the line went through references to very serious assaults and they were removed from the particulars.

Q You heard the evidence from the previous panel about a barrier to divorce being the cost of the fee. Is that something you have any evidence for or opinion on?

Mandip Ghai: Yes, I would agree with that. Obviously, fee exemptions are available, but lots of people will not fall within the criteria to be exempt from the fee and will not be able to pay the £550. For survivors particularly, the option of sharing the fee with the respondent is not there, and even if she is able to get a costs order from the court to say that the respondent has to pay the court fee, usually he does not pay—

Q So is the exemption system not working?

Mandip Ghai: Not yet. For a lot of people, it is not working.

Professor Trinder: I would add that we had interviewees in our sample who had been saving up for their divorce over several years. A couple of years ago, the fee went up from I think £410 to £550, literally overnight, and this man was in tears describing how he then had to start saving again. His divorce was almost in his grasp, after he had saved for several years, and then again taken away. The fees are very high—internationally, they are very high—and they are unaffordable for many people.

Q Thank you both for your evidence so far. For the benefit of the wider Committee, will you set out some specific examples, where there is coercion and control in a relationship, of how the current process facilitates that coercion and control?

Mandip Ghai: Some of it has been mentioned already. Professor Liz Trinder has already mentioned how defending divorce petitions can be used as a tactic. One other thing that we find—I disagree with the previous panel, one of whom suggested that the time period of 20 weeks should start from service—is that sometimes perpetrators will avoid service, deliberately not responding to the petition even though they have received it, or avoiding being served with it, as a way to try to control the applicant and stop her from proceeding with the divorce. They might suggest that they will consent to the petition proceeding, or accept service, if she agrees not to make any financial claims or agrees various things related to children.

Professor Trinder: I agree absolutely with that. Defence is a very stark example; you get respondents defending—causing huge distress to and huge financial costs for the petitioner—not because they believe that the marriage is repairable or saveable but because they simply want to control the other party. Looking at the case files, there are very clear examples of that, so the removal of that ability to continue to control the petitioner in that way is a really welcome future from the Bill.

Mandip Ghai: The other way, which I mentioned earlier, is that sometimes the perpetrator will issue the divorce petition first to prevent her starting divorce proceedings based on his behaviour.