Official Report: Minutes of Evidence

The Chairperson (Mr O'Toole): We are very pleased to have Michael Foster, who is head of civil law reform, and Martin Tyrrell and Maurice Dowling, policy advisers on civil law reform. Michael, do you want to give us an opening statement?

Mr Michael Foster (Department of Finance): Thank you, Chair. You will know that this work had its genesis in a motion last year in the Assembly that called on the Minister of Finance to reform our current divorce laws to bring them into line with a no-divorce system, and that was agreed by the Assembly.

The Chairperson (Mr O'Toole): A no-fault divorce system, we should say. Not quite a no-divorce system.

Mr Foster: Sorry, yes: a no-fault divorce system.

After that, our team did some work on it and invited a range of interested stakeholders to meet us to determine the range of issues in order for us to design a public consultation. Those meetings took place late last year and into this year, and they were very constructive and helpful. Following on from that, we prepared the consultation document, which was issued in June and had a closing date for responses at the end of September. We received a total of 405 responses to that consultation.

For the past number of weeks, we have been considering the results of the consultation, and those are set out in the briefing paper. I do not propose to go over them in detail, but I will instead highlight just a few key points. First, as you outlined in your opening comments, support for changing the law was in the minority among the 405 responses that we received. We felt that that was perhaps surprising, given the level of support that seemed prevalent in the Assembly, but, on the other hand, based on the similar exercise that you referred to in England and Wales, before the change in their law, it was perhaps to be expected. Around 64% to 65% of consultees indicated that they favour no change to the current law.

The Chairperson (Mr O'Toole): Sorry, can you remind us how many responses there were in total?

Mr Foster: There were 405.

The Chairperson (Mr O'Toole): OK.

Mr Foster: As you also mentioned, Chair, it is worth noting that, up until the final two weeks of the consultation, a significant majority had been in favour of reform, but, in the last two weeks of the exercise, those numbers flip-flopped.

Secondly, it is worth pointing out that other respondents favoured reform but stopped short of seeking a no-fault system. That category of respondents included some fairly key players in the area, including the legal professions, Women's Aid and the Lady Chief Justice's office.

The Chairperson (Mr O'Toole): Those groups said that they favoured reform?

Mr Foster: Yes, but not fully no-fault divorce. They were not alone in that; there were others, and I have highlighted a number of them.

The Chairperson (Mr O'Toole): We will come on to ask about that.

Mr Foster: In total, around 70% of consultees did not favour a fully no-fault system, although 80% of the respondents went on to suggest that fault should be retained in some shape or form.

The Chairperson (Mr O'Toole): Sorry, 80% of the —?

Mr Foster: Felt that the fault grounds should be retained in some shape or form.

Our paper seeks to summarise, in a fairly brief way, the views of the groups that responded. It is worth noting that, in England and Wales, 83% of respondents were not in favour of change, but it is also the case that, in that jurisdiction, there was a high-profile campaign during the consultation on behalf of the no lobby. We did not see any particular evidence of that during our consultation period, although it is obviously noteworthy that, in the last couple of weeks, a significant number of responses received were very similar with regard to the points being made. Briefly, the main reasons for opposition were grounded in views that marriage is a divinely ordained institution and a foundational society contract and that its integrity should be preserved in the public interest.

The Chairperson (Mr O'Toole): I think that it is important to say that the law does not have a view on whether it is divine or not. People who are married under civil law are not married by a divine body. Is that correct?

Mr Foster: Yes, those were some of the themes that were drawn out from those who were not in favour of reform. The general concern was that, by making divorce easier, we would jeopardise marriage and the family.

Those in favour of change tended to offer more direct observations of their experience, knowledge and understanding of the current divorce system, noting concerns such as the burdens associated with the lengthy separation periods that are required in this jurisdiction, the use of fault grounds as a means of coercive control in abusive relationships, and the accessibility of the current system. Those were the key themes in favour of reform. It is worth noting that those in favour of reform offered different views on how far reform should go, from fully no-fault divorce to shorter separation periods, and others advocated just minor changes to the current law.

As things stand, Chair, we met the Minister and briefed him on Monday. He has noted the headlines from the consultation and has indicated that he is interested in the further qualitative work that we are aiming to complete quite soon, which will provide a little bit more detail and context. He has also asked us to clarify some points raised in the consultation with certain key stakeholders, and we are undertaking that piece of work. He is keen to make progress in this policy area, ideally during this mandate, and we anticipate that we will have a much clearer idea of his preferred approach over the next few weeks as we complete the additional work that we are undertaking.

The Chairperson (Mr O'Toole): OK. For the purposes of the record, I presume that our divorce law was not exactly the same, but largely the same, as what it was in England and Wales pre-reform.

Mr Foster: It is exactly the same, for all intents and purposes.

The Chairperson (Mr O'Toole): That means, effectively, that, for the formal decree of divorce to be issued, there has to be an acknowledgement of blame, legally —

Mr Foster: No —

The Chairperson (Mr O'Toole): — or there has to be a process that gets to that happening.

Mr Foster: Under our current law, there are five routes. The headline route is irretrievable breakdown of the marriage. Under that, there are five facts, one or more of which need to be proven in front of the court. One is desertion, which is rarely if ever used as grounds for divorce. The second is adultery, which is used in some cases. The third is unreasonable behaviour. Those are the three fault grounds. On top of those, however, one of the factual grounds that can be used, without fault having to be established, is the parties having been separated for a period of two years, and both consenting to the divorce. The final route is five years of separation without consent.

In many ways, that was the genesis of reform in England and Wales. There was a very high profile case of Owens v Owens in which, basically, the wife from a fairly elderly couple that had been married for many years said that she did not want to be with the husband any more. He did not agree, and, in court, she could not establish that there had been any unreasonable behaviour: she simply did not want to be married to him any more. As he did not consent to a divorce, however, she had to wait the full five years because she could not establish any fault grounds. That was the spark for the change in the law in that jurisdiction.

The Chairperson (Mr O'Toole): OK, so those are the grounds. Does the reform in England and Wales basically mean that it can happen without a mandatory separation period?

Mr Foster: Yes and no. There is now what is determined to be a period of reflection. It is a much more straightforward process: you can make a sole application or a joint application, it is fully online, and, after a period of 26 weeks in total, you can effectively be divorced without having to go to court to establish fault. There is no mechanism by which the other party can respond to the proceedings.

The Chairperson (Mr O'Toole): Is it accurate to say that there has to be court process in Northern Ireland for a divorce to happen? Does it have to go to a court at some point?

Mr Foster: It does. There is a provision in the Family Law (Northern Ireland) Order 1993 that can dispense with oral testimony in certain cases, but that has never been brought into operation. The net effect of that is that, even if two parties both consent to a divorce and there are no quibbles about children, property or anything like that, one of the petitioners still has to go to court, present their writ to the judge and run through their petition before the decree nisi can be granted.

The Chairperson (Mr O'Toole): Does it have to be a two-year process for that to happen?

Mr Foster: The exception to that is if fault is proven. If there is unreasonable behaviour, adultery or desertion, the two-year separation period is not applicable, and a party can bring their case to the court without having that separation period.

The Chairperson (Mr O'Toole): OK. The responses showed the majority not being in favour of any change, but it is important to say that it appears that there was a particular cohort of people — I am speculating here — that became aware of the consultation and submitted responses. It is not illegitimate for these people to do this, by the way. MLAs will be used to getting pro forma emails. Were those responses pro forma? Did the responses have the same words in them?

Mr Foster: The responses were submitted online on Citizen Space. A number of questions were asked, with boxes in which to answer, so a pro forma already existed to an extent. I will defer to Martin and Maurice, who were at the coalface, but I can say that the responses were strikingly similar in many respects. Is it right to say that?

Mr Martin Tyrrell (Department of Finance): Yes, there were definitely family resemblances between the responses.

Mr Foster: That makes sense. That is helpful. To be clear, however, that does not make those responses illegitimate.

Mr Foster: No, no.

The Chairperson (Mr O'Toole): People are entitled to respond in whatever way they want.

If I understood correctly, you mentioned a couple of people being in favour of partial reform, not going as far as England and Wales. The people that you mentioned were the Lady Chief Justice, Women's Aid —.

Mr Foster: The Lady Chief Justice usually does not adopt a view on policy matters, but she referred to the work of the family justice review, which was chaired by the then Mr Justice Gillen and brought forward a robust set of recommendations for the family justice system. That report felt that there were circumstances in which having fault retained as a ground was important. An example that they commonly cite is of a woman who suffered for many years at the hands of an abusive partner and who wishes to have that abuse documented in a public hearing in front of a court. That was a case where the review of civil justice and family justice felt that it was important that fault grounds were retained.

The Chairperson (Mr O'Toole): Have fault grounds been removed in England and Wales entirely?

Mr Foster: Yes.

The Chairperson (Mr O'Toole): What they are effectively calling for is an option for somebody who wants to proceed down that route by saying, for example, that they want unreasonable behaviour to be recorded in a legal document, and that might be an option for somebody who had been in an abusive relationship.

Mr Foster: To an extent, yes. It would not be recorded in a legal document as such, but it would be an opportunity for a person to give their testimony in front of a court in a public way. In England and Wales, there has been some discussion post the reforms, which have not been in operation for very long. They have been in place for only a couple of years. There is evidence to suggest that conduct and fault are being pushed down the road to the discussion around financial provisions and property arrangements, and that is causing delay and additional costs in the system at that point. That is obviously something that we would want to avoid.

The Chairperson (Mr O'Toole): Just explain that to me.

Mr Foster: In other words, somebody who has been in a relationship in which there was a considerable degree of fault. No matter what system we employ, at the end of the day, you are never going to get rid of the human side of this.

The Chairperson (Mr O'Toole): Of course.

Mr Foster: There will always be distress and discomfort for couples who are faced with those situations. In England and Wales, they are finding that, instead of having the opportunity to air those issues in the divorce proceedings, they are trying to bring them up in relation to the financial settlement arrangements — in other words, when the court is hearing contested matters about property and the division of assets. The ancillary relief system, as it is known, is not equipped for and does not take account of conduct, except in strictly defined circumstances. Where there has been financial abuse of considerable status, that can be taken into account in the financial settlement arrangement. The example that is sometimes cited is somebody who has had a major gambling problem and fleeced their partner of a considerable amount of money. That type of conduct can be taken into account in the financial settlement arrangements.

The Chairperson (Mr O'Toole): The law has generally always separated out the fault aspect of a divorce from the financial settlement part of it. You are saying that although fault has been abolished from the main part of the divorce settlement, it is being relegated to later on.

Mr Foster: There is some evidence of that. I would not go so far as to say that it happens in every case, but it appears to be happening more often in the financial provisions than it did in the past.

The Chairperson (Mr O'Toole): So, the Minister is now considering this, and, at some point, you will give him advice on how to proceed, or he will bring a paper to the Executive?

Mr Foster: We are at the stage where we are going to come back to the Minister on some of the points that he raised on Monday. At that point, we will get a clear steer on how he wants to proceed, and we will start the preparation of a policy paper for consideration by the Executive.

The Chairperson (Mr O'Toole): In practical terms, and not presupposing any position by the Minister or the Executive, theoretically a decision could be passed very quickly. Is it realistic to expect that not to happen in this mandate but to be something for a future mandate?

Mr Foster: It is going to be difficult, just because of the weight of legislation that is already in the legislative programme this year and into next, and also from a resource perspective, to push that forward. However, that is not to say that it cannot happen. We stand ready to try to do what we can. The Minister does not have a closed mind on it. He is keen to hear additional information from other stakeholders, and we are going back to some of them to clarify a few points around some of the responses. I think that he wants to find a good landing zone for this that will bring about a useful set of reforms.

Ms Forsythe: Thank you all for coming here to brief us on this. You made the point about the timings of the responses to the consultations. Is it unusual to have more responses in the last few weeks?

Mr Foster: No, not at all. That is why we are not presupposing that this has been some sort of orchestrated campaign by one group or another. We will analyse and take into account those responses in exactly the same way that we do with the responses that we received on 26 June when the consultation opened. We got a number of responses on day one. The consultation period was open for 16 weeks, and each and every one of those responses during that time frame will get equal weight, if you like.

Ms Forsythe: That is my experience as well. Sometimes, when I am profiling in my own work, I know when it is due, and I am more inclined to do the work, build it up and put it in closer to the deadline, be it replying to a consultation, applying for a job or whatever it happens to be. With this one being open from June through to September —.

Mr Foster: Over the summer; I agree.

Ms Forsythe: — there was recess, there was the summer holidays, and it would not be unusual to see an influx of responses in September.

Mr Foster: No, not at all. We were expecting it. In fact, arguably, we expected to receive more in the last couple of weeks. In fact, we ended up giving an extension of two weeks to some fairly key stakeholders who indicated that they would welcome an extra short amount of time to finalise their response.

Ms Forsythe: It is important to make the point that, no matter what the pattern was, all the responses are in, whether we like them, whether the Minister likes him or whether anyone likes them, the numbers are there. I think that you have addressed what the next steps are and what we will expect to see in the timeline. It is my understanding that the marriage law will come forward ahead of this law. Do you know what the timing will be on both of those?

Mr Foster: We hope to have the marriage law to the Executive with a final Bill before the end of this year. We expect it to come into the Assembly system in the early part of 2026. On this work, if we get a fair wind and agreement at the right time, we could potentially be looking at a Bill after the summer next year, but it certainly will not be any earlier than that, because we obviously have to take into account resources across the whole piece, not just in our office.

The Chairperson (Mr O'Toole): Nobody else has indicated that they wish to come in. I will ask one final question, if I may abuse my privilege as Chair. Last year, this same very hard-working and under-resourced team in the Department published a report on the operation of the Defamation Act. The upshot was that it was a bit too soon to tell. If you have an update, it would be helpful for us to get that in written form so that we can keep an eye on that in our post-legislative scrutiny. I will not ask you to go into it in detail now.

Mr Foster: The frank answer is that you are right. You are effectively looking at the entirety of our team. Martin and Maurice work part-time, as does Fidelma, who was left behind today to look after the shop, so to speak. We simply have not had the bandwidth to do any further work on it, although we keep an eye on developments here and in the South and in other jurisdictions on these islands. Bear in mind that England and Wales did not review their Defamation Act, which, from memory, was introduced in 2013, for another seven or eight years, to allow cases to get through. Realistically, we are probably looking at the next mandate before we undertake any further work on that.

The Chairperson (Mr O'Toole): That is helpful. If any patterns emerged, it would be helpful for us to be kept abreast of them, but I do not expect you to give me chapter and verse on it now because I acknowledge that you are an under-resourced team doing a lot of work. In the meantime, thank you very much, Michael, Maurice and Martin — the three Ms, as it were. I am sure that you have been called worse.

Mr Foster: We have been called worse.

The Chairperson (Mr O'Toole): Thanks very much.