FAMILY LAW (DIVORCE ETC.) BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum relates to the Family Law (Divorce etc.) Bill. It has been prepared by the Department of Finance and Personnel in order to assist the reader in understanding the Bill and to help inform debate upon it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill and is not intended to be a comprehensive description of the Bill. So, where a clause or part of a clause (or Schedule) does not seem to require any explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. The Family Law (Divorce etc.) Bill reforms the facts on proof of which a divorce or judicial separation may be granted, or an order for maintenance made by a magistrates' court under the Domestic Proceedings (NI) Order 1980. It makes some changes to the procedures in divorce and judicial separation cases, and states explicitly the power of both a divorce court and a domestic proceedings court to adjourn a case for reconciliation or mediation.
4. The Bill also deals with three anomalies of family property law, which have to be amended or repealed in order to allow the UK government to ratify Protocol 7 of the European Convention on Human Rights. Article 5 of the Protocol requires the law to treat husband and wife equally. The three anomalies are the presumption of advancement, the husband's common law duty of maintenance and the common law rule in relation to housekeeping money.
5. The aims of the Bill are:

• To encourage good post-divorce relationships between the parties and between them and their children, by encouraging agreement.

• To limit unnecessary bitterness and distress in the divorce process. The Bill encourages mediation, and makes some procedural changes like giving a choice to some people not to have a hearing, or making it easier to change from a fault-based divorce to a separation-based one to help reduce acrimony.
• To remind people that children's interests are important in divorce, by including this in a statement of principles.
• To make the law easier to understand.
• To remind people that any risk of domestic violence should be attended to, by including this in a statement of principles.

CONSULTATION

6. A written consultation paper, Divorce in Northern Ireland - A Better Way Forward was prepared and a consultation process took place from December 1999 to February 2000. Views were sought from professionals involved in divorce, churches, interest groups and the public at large. The research which informed the proposals included the results of a large postal survey of those going through the divorce process as well as interviews with legal and other professionals and with people who had gone through divorce in the past.

OPTIONS CONSIDERED

7. The Consultation Paper considered a range of options including a pure no-fault divorce system, and the need for a divorce hearing. It took into account best practice in other jurisdictions and the particular needs and circumstances of Northern Ireland society. The options selected, and outlined below, were those which commanded the most widespread support among consultees.

OVERVIEW

8. The Bill has fifteen clauses and two Schedules. Clause 1 sets out a number of principles to be taken into account in dealing with divorce cases. Clauses 2 - 4 deal with the ground for divorce and aspects of divorce procedure. Clauses 5 and 8 declare the power of the divorce court and domestic proceedings court respectively to adjourn a case for mediation. Clause 6 deals with the ground for financial provision under Article 29 of the Matrimonial Causes (Northern Ireland) Order 1978 (the "1978 Order"). Clause 7 makes certain changes to the grounds on which a maintenance order can be made in the domestic proceedings court. Clauses 9 - 11 address three anomalies of family property law which must be remedied in order for the United Kingdom to ratify Protocol 7 of the European Convention on Human Rights. Clauses 12 to 15 and Schedules 1 and 2 contain the necessary technical and transitional provisions to implement the substance of the Bill.

COMMENTARY ON CLAUSES

Clause 1: Effect on parties and any children

This clause declares three principles which are designed as an interpretative aid for the courts as well as a statement to people using the legislation as to how the law thinks about divorce. The principles are that where a marriage has irretrievably broken down and is being brought to an end, this should be done with minimum distress to the parties and children affected, that questions should be dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as possible in the circumstances, and that risks of domestic violence should be removed or diminished as far as reasonably practicable. The persons who are to have regard to these principles are the court and any person exercising functions under the 1978 Order.

Clause 2: Facts of which petitioner must satisfy court

Clause 2 amends the "five facts" which may be used to prove irretrievable breakdown in the 1978 Order. The single ground for divorce in Northern Ireland remains the irretrievable breakdown of the marriage. In line with practice in Northern Ireland, and to emphasise that separation is a preferable option for many people, the clause places the separation facts first in the list. Two years' separation with consent is retained, while five years' separation is reduced to three years. The little-used and complex fact of desertion is removed, and the clause amalgamates unreasonable behaviour and adultery in one residual fault fact. It does not remove adultery from the law. A divorce, granted on the ground of irretrievable breakdown, can still be obtained on proof of an act of adultery, just as it can under the present law. Equally, as under the present law, if a judge is not satisfied that the marriage has irretrievably broken down, even though satisfied that the adultery has taken place, he or she will not grant the divorce.

Clause 3: When requirement of oral testimony from petitioner may be dispensed with

Clause 3 provides that in certain limited cases and subject always to close scrutiny by the court, full oral testimony will be at the option of the parties. The summary procedure is only available in separation cases, only if both parties agree to it, and most importantly, only if the court thinks it is appropriate and is satisfied that the Statement of Arrangements for Children gives a full picture of the arrangements for the children.

Clause 4: No application required for decree of divorce to be made absolute

Clause 4 amends the law in relation to the decree absolute of divorce. A divorce decree is made in two stages. The first stage is the decree nisi, granted on the day the case is dealt with. Six weeks later, the petitioner must apply for the decree absolute, and can only remarry after it is obtained. This "cooling off" period is appropriate for an order of such magnitude as divorce. However, to decrease the administrative burden on the petitioner, it is considered more appropriate that the decree absolute issue without further application on the expiry of six weeks, subject to an application by either party that it should not do so. This may be done if the parties have changed their minds about divorce, but (which is more likely) the court also has a power to delay the decree in separation cases until suitable financial provision has been made for the respondent.

Clause 5: Mediation

Clause 5 declares the court's power in divorce, nullity and judicial separation cases to adjourn proceedings for mediation. This is additional to the court's existing power to adjourn cases for reconciliation. Mediation allows parties who are definitely not going to reconcile to reach their own agreement as to the future arrangements for their children or as to their finances. Mediation is a useful tool in some but not all divorce cases, for example, where there is domestic violence. This is a facilitative clause, and does not set up or change arrangements for provision of mediation. It replaces the outdated conciliation provision in Article 43 of the 1978 Order.

Clause 6: Grounds of application for financial provision under Article 29 of the 1978 Order

Clause 6 amends the grounds on which an application for maintenance can be made under Article 29 of the 1978 Order. This is to reflect the changes made to the grounds available under the Domestic Proceedings (Northern Ireland) Order 1980 (the "1980 Order").

Clause 7: Grounds of application for financial provision under the 1980 Order

Clause 7 amends the grounds on which an application for maintenance during marriage may be made under the 1980 Order. The grounds for an order roughly follow the facts for divorce. Accordingly, desertion is removed from the order, and adultery and unreasonable behaviour amalgamated. The "no fault" grounds in the 1980 Order are "failure to maintain" a spouse or any child of the family. In the interests of reducing unnecessary acrimony, this clause reformulates these in a less blaming way, so that they now read that the respondent "ought in all the circumstances" to maintain the applicant or any child of the family.

Clause 8: Mediation under the 1980 Order

Clause 8 replicates the provisions of clause 5 as to mediation for the Domestic Proceedings Court.

Clause 9: Abolition of presumption of advancement

Clause 9 abolishes the presumption of advancement. This doctrine operates in relation to transfers of property by a husband or father to his wife or child, and creates an equitable presumption that the transfer is intended as a gift. Where a similar transfer is made by a wife or mother to her husband or child, the general equitable presumption of resulting trust operates and the court will assume that she intended to retain an interest in the property. This outmoded and anomalous doctrine needs to be changed in order to allow the UK government to fulfil its intention of ratifying Protocol 7 of the European Convention on Human Rights, Article 5 of which requires the law to treat spouses equally. The abolition will not of course be retrospective.

Clause 10: Abolition of common law duty to maintain

Clause 10 will abolish this obsolete and anomalous doctrine of the common law. It has since been superseded by reciprocal statutory duties of maintenance by both spouses. Change is necessary in order to allow the UK government to ratify ECHR Protocol 7 as above.

Clause 11: Housekeeping allowance

Clause 11 will amend this, the third of the "three anomalies" which must be changed to allow the UK government to ratify ECHR Protocol 7. In Northern Ireland, savings made from a housekeeping allowance paid by a husband to a wife, and any proceeds thereof, belong to the husband. This rule does not apply where the allowance is paid by a wife to a husband, although arguably the doctrine of resulting trust would lead to the same effective result. The rule is of great antiquity - in fact it dates from a time before women could own property. It has already been subject to statutory amendment in England (Married Women's Property Act 1964), so that the proceeds of such an allowance paid by a husband to a wife will be jointly owned. It is proposed in England that this statute be further amended so that it applies to an allowance paid by either spouse to either spouse.

Clause 12: Amendments and repeals

Clause 12 provides for amendments and repeals as outlined in the Schedule.

Clause 13: Interpretation

Clause 13 defines certain key terms used in the Bill.

Clause 14: Commencement

Clause 14 provides that the Act will come into operation on such day or days as the Department of Finance and Personnel may by order appoint.

Clause 15: Short title

Clause 15 provides that the Act may be cited as the Family Law (Divorce etc.) Act (Northern Ireland) 2002.

Schedule 1: Amendments of 1978 Order

The Schedule sets out the technical amendments in detail.

Schedule 2: Repeals

This Schedule sets out the repeals.

FINANCIAL EFFECTS OF THE BILL

9. The Bill is unlikely to have any major financial implications. The changes to divorce procedure, combined with Northern Ireland Court Service's (NICtS) consideration of moving the divorce hearing from a High Court Judge to a High Court Master may result in the need to appoint a further High Court Master at a cost of 105 extra days work at an estimated cost of £42,000. There should be no effect in relation to the workload of District Judges and County Court Judges because of the nature of their present working relationship whereby District Judges can deputise as County Court Judges. Automatic generation of the Decree Absolute would lead to loss of court fees to the sum of £43,580 based on 2001 figures. However, this potential loss is subject to the Fee Policy Working Group amending the fee on the divorce petition to compensate. Simplification for the amendment of a petition from a fault-based to a no-fault based fact will attract a loss of revenue to the NICtS of £3000 per annum. The changes to the law will result in administrative changes to court office procedures and will require a rewrite of the current computer software. Currently, the NICtS is implementing a new system and therefore the timing of the legislative change is an important factor in whether there will be any additional work undertaken in relation to the computer systems. NICtS also considers that there will need to be additional administrative staff employed to deal with the new administrative processes at a cost of £29,156. Therefore, NICtS estimates that an additional £117,736 per annum will result from the changes proposed in the Bill. The anticipated fall in the number of divorce hearings may result in some saving to legal aid. The encouragement of mediation is likely to be cost neutral in the short and medium term. The reduction of five to three years' separation may result in a short term increase in the number of divorces, as effectively three years' worth of five year petitioners will become eligible for divorce at once. It should be emphasised that this is not a real increase in the number of divorces, as all of these people would be seeking a divorce when the fact became available to them.

EFFECTS ON EQUAL OPPORTUNITY

10. The Bill was identified as having impacts on the following equality categories: age, religion, gender. In relation to age, the Bill initiates several measures designed to promote the welfare of the children of divorcing families by minimising unnecessary acrimony and promoting good post-divorce relationships. In relation to gender, while persons of both genders may suffer domestic violence, women are more likely to do so. They are also more likely to use a fault basis for divorce. The statement of principle in clause 1 in relation to domestic violence is of assistance to women, as is the retention of a fault fact. In relation to religious belief, the Bill ensures that no-one is left outside the law's protection because of their religious belief, by retaining both the remedies of judicial separation and fault-based divorce. Consultation also indicated that the issue of religious and civil divorce in the Jewish community is a live issue but that fuller consultation is required than would be required to include a provision in this Bill. A full consultation with faith communities in Northern Ireland will be carried out and this matter given consideration at a later date.
11. In relation to disability, racial origin, marital status and sexual orientation, issues were identified in relation to the wider law and practice of divorce. The issues for people with disabilities and for minority ethnic communities are around courtroom accessibility and provision of interpretation facilities. In relation to those of marital status and sexual orientation, it has been noted that the law of divorce only applies to married heterosexuals. These wider issues are outside the scope of this limited Bill.
12. In relation to political opinion, no impacts were identified.

HUMAN RIGHTS ISSUES

13. The Bill is in compliance with the Convention Rights in particular with Article 6 (due process), Article 8 (respect for private and family life) and Article 12 (right to marry in accordance with the law). It makes specific provision which will allow the UK government to ratify Protocol 7 ECHR. In relation to the question of separate representation of children in private law proceedings affecting them (UN Convention on the Rights of the Child Article 12) the Law Reform Advisory Committee is currently seeking the permission of the Minister for Finance and Personnel to consider this matter.

EQUALITY IMPACT ASSESSMENT

14. Equality issues were fully considered at the time of drawing up the consultation paper. In line with the Department's subsequent Equality Scheme, an Equality Impact Assessment, setting out the thinking which informed the proposals was drawn up and a consultation carried out in April and May 2002. Thirteen responses were received to the written consultation paper, and meetings were held with such of the major faith communities and minority ethnic communities as wanted to meet with us. The equality impacts are set out above.

SUMMARY OF THE REGULATORY APPRAISAL

15. The proposed changes to the divorce system would result in a cost of £117,736 to the Northern Ireland Court Service as detailed above.

SECRETARY OF STATE'S CONSENT

16. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.

LEGISLATIVE COMPETENCE

17. At Introduction the Minister of Finance and Personnel had made the following statement under section 9 of the Northern Ireland Act 1998:

"In my view the Family Law (Divorce etc.) Bill would be within the legislative competence of the Northern Ireland Assembly."