|Tue 2nd July 2019||
Divorce, Dissolution and Separation Bill (First sitting)
(Public Bill Committees)
Committee Debate: 1st sitting: House of Commons
|13 interactions (1,310 words)|
Divorce, Dissolution and Separation Bill (First sitting) DebateFull Debate: Read Full Debate
Anne-Marie TrevelyanMain Page: Anne-Marie Trevelyan (Conservative) - Berwick-upon-Tweed)
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Thank you. I invite Committee members to ask questions, in order. We have a strict deadline and must finish by 10.15 am.
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.”
Break in Debate
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 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.
Break in Debate
Good morning. May I ask the panel to introduce themselves for the record, please?
Professor Trinder: I am Professor Liz Trinder from the University of Exeter.
Mandip Ghai: I am Mandip Ghai, from the charity Rights of Women.
Q To expand that, parties will still have to wait a year before applying. In your opinions, is there a danger that that will exacerbate any existing abuse?
Professor Trinder: That is a difficult issue, about which we have thought a lot. In general, the Bill very helpfully places responsibility for determining whether a marriage has broken down on the parties. In almost all instances, it is entirely up to the parties to determine whether the relationship has broken down and make that declaration. My only reservation with the one-year marriage bar is that it possibly has a symbolic importance to Members here. If the threat of removing the bar were to jeopardise the progress of the Bill, then I would not support it. Part of the reason for my making that statement is that there is not much evidence for needing to remove the bar.
In our study, we looked at a nationally representative sample of 300 undefended cases. Only four of those were brought within year two—months 12 to 24. Only one was brought in the 13th month, as soon as it was legally possible to bring those proceedings. Numerically, the size of the population is small. In those four cases we also looked at what the case was about: why the marriage had come to such a precipitate end, whether it was domestic abuse, and whether it was women trying to flee an abusive relationship. None of those cases involved domestic abuse. That is not to say that there would not be domestic abuse survivors wanting to leave a marriage soon, but the numbers are very small and divorce in itself is not a protective measure.
There is the potential for nullity in the case of a forced marriage. Non-molestation occupation orders would be a solution. In any case, women would be in a better position in that, although they would have to wait 18 months, they would not have to disclose particulars of behaviour.
Mandip Ghai: We would obviously want survivors to be able to end an abusive marriage as soon as possible. We would agree with the one-year bar if concerns about it were going to derail the Bill: looking specifically at the impact on survivors, there is not enough evidence. I would also want some evidence on the impact it would have on migrant women and migrant survivors. I do not have enough information on that at the moment. There is also the issue of the potential impact on immigration status if someone’s stay is dependent on their relationship with the abuser. We do have concerns about the one-year bar, but we would agree on that if it was going to derail the Bill.