The House of Lords has urged the government to chop elements of the divorce bill that would enable the lord chancellor to radically alter the reforms without parliamentary scrutiny.
The Lords’ delegated powers and regulatory reform committee has been scrutinising the Divorce, Dissolution and Separation Bill, which the government says will end ‘needless antagonism’, and published its findings and recommendations last week.
The bill introduces a minimum six-month period between the first and final stages of the divorce process. This comprises 20 weeks between the start of proceedings and confirmation to the court that a divorce confirmation can be made, and six weeks between a conditional divorce order and final dissolution.
Ministers have described the minimum timeframe as a ‘key element of the reformed legal process’ which gives couples an opportunity for reflection.
However, the Lord committee says the new sections of the Matrimonial Causes Act 1973 and Civil Partnership Act 2004 confer so-called Henry VIII powers on the lord chancellor to shorten the timeframe between the first and second stage of the divorce process.
According to the report, the government submits that the lord chancellor would be able to make adjustments if ‘policy considerations’ made it appropriate. However, the committee says the government ‘has given no consideration at all as to what the policy considerations might be’ and calls it a ‘very weak justification for an important Henry VIII power’.
The committee says: ‘New section 1(8) of the MCA permits a court to reduce the length of either stage of the divorce process in a particular case. This might allow a judge to shorten either stage if, for example, there is an urgent need to finalise a divorce in order to protect an applicant from an abusive spouse or civil partner. It is therefore wholly unclear to us why the government need to have powers which allow them to change the length of both stages for all divorces.’
The government also argues that the powers re-enact existing legislation.
However, the committee disagrees: ‘Existing legislation allows only for the alteration of the period between a decree nisi and a decree absolute or (for a civil partnership) between a conditional and final dissolution order. In contrast, the new powers conferred by this bill could be used in a way which radically altered the rationale for the revised divorce process.’
The government is told to remove the clauses from the bill ‘on the ground that they contain an inappropriate delegation of power’.
Narrower powers could be acceptable but the committee says the lord chancellor should first consult judges, the Law Society and divorce lawyers.