Divorce, Dissolution and Separation Bill [HL]

Baroness Burt of Solihull Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

[Baroness Burt of Solihull (LD)]

My Lords, from these Benches, I wholeheartedly welcome the Bill, enabling as it does no-fault divorce to be introduced to potentially take some of the tension and emotional strain out of leaving a marriage. It also enables joint petitions to take the sting out of what is already a difficult time. Having fault as a ground for divorce can lead to recriminations—something children traumatised enough at the break-up of their parents do not need to witness.

Another aspect is that one partner can petition and the other will no longer have the power to contest, even when it is apparent to all that the marriage has irretrievably broken down. Contested divorces are relatively uncommon, with only about 2% contesting the petition for divorce and only a handful of those going on to contest at the final hearing, but these are sad cases indeed and much unnecessary suffering can be caused.

If I may pray for the Minister’s patience, I will ask about the relevance of the spousal veto for trans people. As I understand it, when the Bill becomes law, if the spouse who has not transitioned refuses to grant permission for gender recognition, the transitioning spouse can petition for divorce; their spouse who has refused to sign cannot stop the divorce, or subsequently stop their spouse from formal recognition of the transition. It just seems wrong to me that, in some cases, recognition cannot take place unless the transitioning spouse gets divorced. I understand that the Government are adamant that the spousal veto is without the scope of the Bill, but I am sure the Minister is aware of the strength of feeling and sense of injustice felt by trans people—indeed, by anyone who supports their rights—not to be discriminated against in this way.

I see that the noble Baroness, Lady Hunt, is in her place today. I welcome her to this place and thank her for all the brilliant campaigning work that she has done for the LGBT+ community. I see that her name is on the speakers’ list to make her maiden speech in this debate; I know she will make a great contribution towards furthering the cause of equalities in this place.

I would like to raise a few other concerns for people who may conceivably be disadvantaged by these changes, and I would appreciate the assurances of the Minister on these points. First, I will address the 26-week overall period. There is currently no minimum time in which a divorce can be granted. The introduction of a minimum overall timeframe of 26 weeks seems helpful in ensuring that couples wishing to divorce do not act in haste and repent, as the saying goes, at leisure. We know that both partners need to have been married for at least a year, in most circumstances, but there is no period of reflection built into the divorce process, as recommended by the Law Society and mentioned by the noble Lord, Lord Anderson.

A couple could have a row, then if one partner completes the petition application—maybe online—the whole legal process would commence. Most marriages have their rocky patches but, in my view, a period of reflection would facilitate sober consideration of the enormity of the step to be taken, enabling them to think about it and discuss it with a marriage counsellor. If they still feel the same at the end of the period of reflection—the Law Society recommends that the first three months be litigation-free—then nothing is lost. The Law Society also recommends wider support, information and signposting to marriage and relationship support services, and to non-court-based dispute resolution services.

Secondly, I know that financial settlements are deemed outside the scope of the Bill, but the Law Society briefing is clear:

“We also strongly recommend that there is very clear signposting within the online divorce and dissolution process to the need to properly resolve financial matters before final decree.”


If the final decree is awarded before a financial order is made, there must be clear evidence that there will be no meaningful financial prejudice. I do not know how we build this into the Bill, but I think it is exceptionally important, given the tortuous lengths to which some people will go to advantage themselves financially in the divorce settlement.

Thirdly, there is the question of when the six months starts. In my view, that has to be when the petition is served, not when it is filed. Professor David Hodgson, of the International Family Law Group, says:

“There is no duty to serve at the start of the 20 weeks. It can be any time before the start of the first decree.”


He makes the point that one party could conceivably have only six weeks to respond. However, if the six months starts on the date of service, what would happen in the case of abandonment, where the other party cannot be traced, or where they are away for weeks at a time? In such exceptional circumstances, I think there would need to be a phrase saying that every reasonable effort must have been made to serve the petition before the 20-week first-stage clock starts ticking.

Those are the main issues that I wanted to raise. However, the Law Society has also raised a number of smaller issues. One is the cost of applying for a divorce. To my mind—and that of the Law Society—at £550 the application fee is too much and is discriminatory to couples without that sort of money available. It would be pretty counterproductive if a couple had to stay together, with all the misery and distress that entails, because they could not afford to get divorced.

The Law Society also thinks that simpler language would help people, particularly where English is not their first language. I appreciate that some simplification has already been made to the terms, such as replacing “decree nisi” and “decree absolute” with “conditional order” and “final order” and replacing “petitioner” with “applicant”. In a society where, for some, English is not their first language, simple and straightforward language throughout would be particularly helpful. Let us have language that anybody—even totally non-legal people like me—can understand. And the issue is not just language but the complexity of the application process. It needs to be as simple and straightforward as possible to be fully inclusive to all.

I will leave Professor Liz Trinder of the Nuffield Foundation with the final word:

“Divorce will always be an extremely difficult time for couples, but these reforms will help make sure that the law does not make it worse”.