First Reading is a new regular feature in which I ask campaigners, writers and thinkers what law they’d change, if they could table their own “private person’s bill” in Parliament. My first guest is the campaigner and policy researcher Ellie Cumbo – and here’s her Ground of Divorce and Dissolution Bill, to radically reform the law on divorce. You’ll be able to hear Ellie explain her policy in discussion with me here on Head of Legal tomorrow.
Have a look at Ellie’s bill, and you’ll see she wants to bring in “no fault” divorce in England and Wales (and an equivalent system of “no fault” dissolution of civil partnerships). Under the bill, you could, as now, petition for divorce after a year of marriage. But you wouldn’t have to cite any “facts” – such as adultery or unreasonable behaviour – to justify your claim that your marriage had broken down. The court would simply have to grant you a divorce “on demand”, except in a rare case to avoid grave hardship to your spouse.
You’ll see that the bill amends the two Acts of Parliament that govern this area: the Matrimonial Causes Act 1973, and the Civil Partnerships Act 2004. Clause 1 of the bill amends the 1973 Act, replacing the current ground of divorce with the new “no-fault” ground, amending the law on hardship, and bringing the law on judicial separation in line with Ellie’s new approach to divorce. Clause 2 amends the 2004 Act to make parallel changes to civil partnership law.
It was great fun to draft this bill for Ellie, and it gave me a bit of practice as a legislative drafter. I know some readers are legally nerdish enough to spot my boo-boos – and you’re more than welcome to let me know about them! I’m grateful to John Bolch, an actual family law expert who helped me work out what I needed to do. This is I think a way of opening up an important discussion about how to modernise the law on divorce.
Do come back tomorrow, when Ellie will explain why she wants to change divorce law in this way, how she thinks it’d work, and why she thinks divorce reform is difficult.
I am not sure that you should retain the Matrimonial Causes Act wording about the “ground that the marriage has broken down irretrievably”. Although you have removed the test as to when this requirement is met, I think you still leave it open to the respondent to demand that the petitioner prove “irretrievable breakdown”.
I also think that you need to be much more radical and abolish the (medieval) common law position that marriage is a contract. This would not only make divorce easier but, arguably, would scupper the Sharia courts by limiting the possibility of binding arbitration.
Great feature and an excellent first Bill. I’d agree with James that retaining the notion that a marriage/CP must have broken down irretrievably is probably unnecessary. I don’t think there’s anything in the Bill that would allow the respondent to demand the petitioner prove it, but to move to a position whereby divorce/dissolution is truly permitted “on demand” necessitates, in my view, removing any indication that a criterion must be meet, even in theory.
Also, for the sake of clarity, I would probably replace the term “grave” with “significant” or “substantial” in the new section 5 of the MCA 1973/section 47 of the CPA 2004. Although the laws currently use the term “grave”, the Family Law Act 1996 preferred the term “substantial”. Whilst, in practice, there might not be much difference, “grave” is a rather old-fashioned term and so could perhaps be replaced with a more commonly-used term without changing the substance of the protection offered.
Might it not be better to make “no fault” petitions joint petitions so that there is no issue of defending them? Where there is any disagreement as to whether the petition ought to be granted I would suggest this brings the divorce into being adequately dealt with by the existing provisions.
Unfortunately I write from personal experience. The draft Bill would certainly have helped me – ultimately we decided to wait to divorce on 2 years separation because drafting suitable, non-misleading and fair terms to describe unreasonable behaviour within the terms of the legislation was artificial and risked generating conflict where there was none. A joint declaration of it being accepted as over would have been more appropriate.
I think you’re going to end up with two section 4s in the MCA 1973 as drafted (line 5 of page 4 and line 5(ish) of page 6)? (You did ask.). S.4(2) of this proposed Act risks making it join the ranks of unimplemented legislation and perhaps an x month delay may be more fruitful.