Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022

Lord Stewart of Dirleton Excerpts

Tuesday 8th February 2022 Grand Committee

Moved by

[Lord Stewart of Dirleton]

That the Grand Committee do consider the Divorce, Dissolution and Separation Act 2020 (Consequential amendments) Regulations 2022.

Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, the draft instrument before us makes consequential amendments to primary and secondary legislation relevant to the Divorce, Dissolution and Separation Act 2020, ahead of its planned commencement on 6 April this year. The purpose of these measures is twofold: first, to introduce a new jurisdiction ground for joint applications for divorce—namely, either applicant’s habitual residence; secondly, to update the terminology relating to divorce proceedings consequential on the language changes made by the aforementioned divorce Act.

I will speak first to the amendments in paragraphs 1, 4, and 8 of the schedule to the regulations pertaining to the introduction of a jurisdiction ground for joint applications for divorce: namely, the habitual residence of either applicant. Jurisdiction grounds, in this context, are the grounds on which a divorce can be applied for and/or granted in the jurisdiction of England and Wales. The ground we are discussing sets out that, provided either applicant is habitually resident in England or Wales, a joint application can be made by both applicants within this jurisdiction.

This instrument amends a number of measures, including the Domicile and Matrimonial Proceedings Act 1973, the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 and the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014. To each of these pieces of legislation, it brings in the same ground to which I have just referred.

An equivalent jurisdiction ground appears in article 3 of EU Regulation 2201/2003, known as Brussels IIa. Until the end of the transition period, the Brussels IIa regulation jurisdiction ground applied to all cases of opposite sex divorce, legal separation and annulment in England and Wales. The United Kingdom is no longer governed by Brussels IIa, which was revoked by Statutory Instrument 519 of 2019. However, the choice was then made to replicate the applicable Brussels IIa jurisdiction grounds into domestic law by amendment to the Domicile and Matrimonial Proceedings Act 1973.

All the jurisdiction grounds in article 3 of Brussels IIa were replicated save for the ground that we are now discussing, that of habitual residence in joint applications. The sole reason why this ground was not replicated upon exit from the EU was because at that time it was not possible to make a joint application for divorce in England and Wales. With the commencement of the divorce Act, this will now be an option for the first time, so it would be remiss not to replicate this final ground now that the opportunity presents itself.

The same ground is also being introduced into the following measures: the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 and the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014. This ensures equality in all legislation relating to ending a partnership or marriage, regardless of whether these are between same or opposite sex couples.

The other amendments in this instrument amend language in the Domicile and Matrimonial Proceedings Act 1973, the Civil Partnership (Registration Provisions) Regulations 2005, the Pension Protection Fund (Provision of Information) Regulations 2005, the Financial Assistance Scheme (Provision of Information and Administration of Payments) Regulations 2005, the Civil Legal Aid (Merits Criteria) Regulations 2013, and the Civil Legal Aid (Remuneration) Regulations 2013.

The amendments update the terminology in relation to divorce consequential upon the language changes made by the divorce Act. The divorce Act amended terminology in the Matrimonial Causes Act 1973—for example, by the replacement of terms such as “decree nisi”, “decree absolute” and “petitioner” with “conditional order”, “final order” and “applicant”. This means that the same terms will now be used in legislation relating to both divorce and dissolution. It simplifies language too, making terms more recognisable and readily accessible to members of the public. This supports the aim of the divorce Act in supporting citizens representing themselves in divorce proceedings. This instrument consequentially replicates those language changes across relevant legislation.

By making the amendments I have outlined today, the intention is that we will standardise and update language across all relevant pieces of legislation and amend jurisdiction grounds to add a specific relevant ground for joint divorce applications. This instrument is consequential on the divorce Act, reflective of the ultimate aims of the divorce Act, to reduce conflict between couples and families. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, we support this instrument. I have just a couple of questions. I am surprised that the question of jurisdiction was not dealt with in the Act itself. Perhaps the Minister has some explanation for that, which I have not perceived.

My second question relates to paragraph 7.7 of the Explanatory Memorandum, which says:

“The Government’s policy intention behind the reformed law”,


which in turn has resulted in the consequential amendments contained in this instrument,

“is that the decision to divorce should be a considered one, and that separating couples should not be put through legal requirements which do not serve their or the state’s interests”.

I find that a bit puzzling, and I wonder whether the Minister can help me with what it is directed to. However, as I say, we support the amendments.

[Baroness Chapman of Darlington (Lab)]

My Lords, we, too, support the regulations. The provisions are primarily to reflect the new terminology associated with the reformed divorce, dissolution and separation proceedings in the Act, as well as to add a jurisdictional ground for the newly created joint applications.

The Act has not yet come into effect, but we hope that it will soon and that there is no further delay. I think I heard the Minister confirm that the date will be 6 April 2022—he is nodding, so I take that as an indication that that is correct—which is very pleasing. My party fully supports that Act and the changes to divorce, dissolution and separation that it will introduce. As a result of this Act, it will be much easier for couples to divorce in cases where the relationship has irretrievably broken down.

We hope that this will end some of the adversarial system currently in place. A spouse will no longer be able to object to or oppose a divorce, and couples will no longer have to apportion blame for the breakdown, leading, we hope, to less conflict and acrimony for all involved. A simple statement that the marriage has irretrievably broken down should be sufficient for proceedings to commence. I am very pleased to welcome the measures that the Minister has outlined today.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to participating Peers for their contributions to the debate. The noble Baroness on the Labour Front Bench acknowledged that I had tacitly confirmed that 6 April was the commencement date—so I was able to answer that question without saying anything.

As to the two questions raised by the noble Lord, Lord Thomas of Gresford, on behalf of the Liberal Democrat Benches, I regret to say that I do not have ready answers to either—I beg the Committee’s pardon. I undertake to provide answers in writing to the noble Lord as soon as I am able.

Beyond that, I think I have registered agreement from both noble Lords who spoke that these merely consequential amendments are not contentious and bring about changes to standardise the approach to language and to jurisdiction grounds for divorce—ensuring, I hope, that legislation surrounding divorce is clear, simple and consistent across the board. I commend this instrument to the Committee.

Motion agreed.