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Royal Assent

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Thursday 25th June 2020

(9 months, 3 weeks ago)

Lords Chamber

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The following Acts were given Royal Assent:

Birmingham Commonwealth Games Act,

Divorce, Dissolution and Separation Act,

Corporate Insolvency and Governance Act.

Divorce, Dissolution and Separation Bill [HL]

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(Ping Pong (Hansard): House of Lords)
Thursday 18th June 2020

(9 months, 4 weeks ago)

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Returned from the Commons

The Bill was returned from the Commons with a privilege amendment. The amendment was considered and agreed to.

House adjourned at 6.27 pm.

Divorce, Dissolution and Separation Bill [HL]

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Tuesday 24th March 2020

(1 year ago)

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Third Reading

A privilege amendment was made.

Bill passed and sent to the Commons.

House adjourned at 6.12 pm.

Divorce, Dissolution and Separation Bill [HL]

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Tuesday 17th March 2020

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Ministry of Justice

Report

Clause 1: Divorce: removal of requirement to establish facts etc

Amendment 1

Moved by

1: Clause 1, page 1, leave out lines 6 to 15 and insert—

“(1) Subject to subsections (1) and (2), either or both parties to a marriage may apply to the court to initiate the process for an order (a “divorce order”).(2) In the case of an application by both parties to the marriage under subsection (1)— (a) the application must be accompanied by a statement by the applicants that the marriage has broken down irretrievably, and(b) the court must—(i) take the statement given under subsection (2)(a) to be conclusive evidence that the marriage has broken down irretrievably, and(ii) make a divorce order which will dissolve the marriage.(3) In the case of an application under subsection (1) that is to proceed as an application by one party to the marriage only—(a) an application must be accompanied by an initial statement by the applicant of their intention to seek a conditional order on the basis that the marriage may have broken down;(b) a confirmation by the applicant under subsection (5)(a) that they wish the application to continue must be accompanied by a statement that the marriage has broken down irretrievably; and(c) the court dealing with an application made by one party under this subsection and subsection (5)(a) must—(i) take the statement given under subsection (3)(b) to be conclusive evidence that the marriage has broken down irretrievably, and(ii) make a divorce order which will dissolve the marriage.”Member’s explanatory statement

This amendment sets out different steps in the divorce process, depending upon whether the application is a joint application by both parties to the marriage, or an application by only one party.

Lord McColl of Dulwich Portrait Lord McColl of Dulwich (Con)
- Hansard - - - Excerpts

My Lords, Amendment 1 is a redrafted form of the amendment that I brought before the House in Committee. I have returned to this issue because, as I read and reflected on the Committee debate, I was not at all assured that my concerns had been addressed. In coming back to this issue, I make it clear that I will not be dividing the House on this amendment, but I hope this debate will provide an opportunity for the Minister to address my concerns. I put on record my sincere thanks to him for the useful meeting that we had yesterday to discuss this and my other amendment.

I will begin by defining the problems that the amendment is designed to address and will then explain how it deals with them. I welcome that the Bill allows people to make joint applications for divorce for the first time. For these couples, the divorce will come as no surprise. However, the negative impact of the Bill on respondents where there is no fault is profound.

Under the current system, in the absence of fault, the couple must have lived apart for two to five years before proceeding to divorce. Clearly, on this basis no one would claim to be surprised at the divorce application. In the case of the two-year separation, the divorce application must be by mutual consent, and anyone who claims to be shocked at receiving divorce papers after five years’ separation is not credible. Under the Bill, however, all this will change for the respondent in this no-fault context. One day, they could be thinking that their marriage is all right, and the next day they could be faced with a declaration of irretrievable breakdown and the fact that they could be divorced within six months or even sooner if they are not notified at the start of the reflection period. I am particularly concerned about the greater insecurity that this will inevitably bring to many marriages, and the attendant psychological cost. In case anyone was to think that this might be a very small number, I remind the House that the circumstances I am describing —namely, the two to five-year separation period—are used in around two-fifths of divorce petitions each year. That is around 40,000 divorces: 40,000 respondents who today must receive some warning, but who under the Bill need receive no warning at all.

There is all the difference in the world between a divorce where both parties agree and seek it together, and a divorce initiated by one party only, perhaps with the other party not even knowing. The Bill, however, deals with the two largely as if they are the same. That does not seem just or fair. My amendment seeks to address this presenting problem by requiring that where a divorce application is not made jointly by mutual agreement, a different approach is adopted. I propose a change to the wording in new Clause 1(1), which currently says that the applicant is applying for a divorce on the grounds of irretrievable breakdown. I suggest instead that new Clause 1(1) refers only to the applicants initiating the divorce proceedings.

I then suggest a two-track scenario. Where there is a joint application, the initial application includes a statement saying that the marriage has broken down irretrievably. Where the application is by one party only, the applicant is required to make two statements. The first, on applying for a divorce, would state that the applicant’s intention was to apply for a conditional order, which they would have to do under subsection (5), on the basis that the marriage may have broken down. The statement of irretrievable breakdown would then accompany the application for a conditional order 20 weeks after the first application if the petitioner wished to proceed to the next stage.

There are two main rationales for my amendment. First, it means that someone who wants to end the marriage cannot suddenly drop a bombshell on his or her spouse that their marriage—which she or he may have thought was all right—has actually irretrievably broken down. The first move the petitioner can make is a declaration that he intends to apply for a conditional order on the basis that he thinks the marriage may have broken down, not that it has already broken down irretrievably. This has the effect of requiring him to treat his spouse with greater respect, in the sense that the statement he makes to her is not one that says emphatically “It is all over” such that there are no grounds upon which she can respond and seek to save the marriage.

The Bill proposes to remove from the respondent the right to contest a divorce. In this context, it is only right that if the spouse who joined them in making a “till death us do part” commitment wishes to move towards disengaging himself from that commitment, he must do so in a way that affords his spouse some respect. This must involve giving her the opportunity—should she wish to take it—to make the case for why the marriage is saveable and worth saving, before it is condemned by a final statement of irretrievable breakdown.

When I raised this matter previously, some noble Lords suggested that it was patronising because I was questioning the decision of those who wanted to divorce. One could, however, make that comment only if one was viewing this process entirely from the perspective of the petitioner. I am not. I am not trying to prevent the petitioner divorcing if that is what he wants. I am simply reminding the House that on a previous occasion the petitioner made a “till death us do part” commitment to his spouse and that in extricating himself from that serious commitment, he should be encouraged to afford his spouse some respect.

Secondly, changing the initial statement is important if we are really serious about trying to promote reconciliation during the divorce process. The Government have stated clearly on numerous occasions that their purpose is to seek to promote reconciliation within the divorce process. In their response to the consultation, for instance, they stated:

“Sometimes, a marriage will still be reparable at the point at which one spouse seeks the divorce … But the law can—and should—have a role in providing couples with an opportunity to reflect on that momentous decision and to pull back from the brink if they decide that reconciliation is achievable.”

The Government further observe in the family impact assessment:

“The current law works against reconciliation by incentivising (in order to get a divorce more quickly) a spouse to make allegations about the other spouse’s conduct which can create conflict.”

They further state that they want to exploit the new opportunities for reconciliation under the no-fault system:

“We want to create conditions for couples and parents to reconcile if they can”.

It is because of this that there is a 20-week reflection period.

The Government describe, on page 31 of the Reducing Family Conflict consultation, the lodging of the petition as putting the marriage “on notice”, during which there is a 20-week period that the Government have called “the reflection period”, and that we do not even reach the point of applying for a conditional order until after that period. This being the case, it seems completely unnecessary to require the lodging of a statement of irretrievable breakdown until the moment of formally applying for the conditional order. Indeed, the decision to ask people to make a declaration of irretrievable breakdown at the start of the process seems not only unnecessary but like an attempt to needlessly sabotage the reconciliation potential of the reflection period. Some might respond by saying that at the moment that the divorce process begins, with a definitive statement, the marriage has broken down. In the context of a fault-based system, I can see why it must. In the context of the new “without fault” system before us today, however, I can see no logical reason why this must be so and many logical reasons, which I have highlighted, why we should insist on a statement of irretrievable breakdown only when applying for the conditional order.

The law today begins a divorce process with a statement of irretrievable breakdown only because that is what the law says. The law, however, can be changed; it is being changed through the Bill and should be changed further through amendment, if we are serious about exploiting the greater opportunities to facilitate reconciliation in a no-fault system. On this point, the Nuffield report was very helpful when it stated that under a system where one party is notified of the intention to divorce, as proposed by the Bill, there is also the possibility that notification would be more facilitative of reconciliation. Notification certainly could be facilitative of reconciliation if we did not condemn the reflection period to failure at the outset by unnecessarily asking one couple to make a statement of irretrievable breakdown 20 weeks before they can apply for a conditional order.

The Minister suggested to me yesterday that if we were to move to a situation where the process commences with a statement that the marriage may have broken down, it might result in speculative divorces. That thought is of course itself speculative, but I would not be opposed to replacing “may” with “has”, if that would help. My point is that if we start with a definitive statement from one party that the marriage has broken down irretrievably, we are losing the opportunity for greater reconciliation that a no-fault system provides. That is to miss an obvious opportunity. That statement should not be made until after the reflection period. If the Government do not like this solution, what will they do instead to address the problems that I have set out in my speech today? I beg to move.

Baroness Howe of Idlicote (CB)
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My Lords, I am pleased to support Amendment 1, in the name of the noble Lord, Lord McColl. I continue to be concerned about the lack of regard for the respondent demonstrated in this legislation.

In the first instance, respondents lose their right to contest the divorce and thus, in an important sense, their voice. In the second instance, as the noble Lord has already said, respondents are severely disadvantaged in a no-fault context when compared with respondents in the same position under the current law, because the two to five-year warning of a statement of irretrievable breakdown is taken from them; they are exposed to a potential statement of irretrievable breakdown without any warning. In the third instance, respondents are not even afforded security about enjoying access to a 20-week reflection period. It is thus entirely possible that they will not be told about the divorce until the end of that period, and thus be confronted with not only a potentially out-of-the-blue statement of irretrievable breakdown but the possibility of being divorced in just seven weeks from first hearing about the divorce.

In the context of this assault on the rights and dignity of the respondent, Amendment 1 helps in two ways. First, rather than requiring the divorce process to begin with a statement of irretrievable breakdown, which makes it very hard for the respondent to respond because the petitioner is saying very emphatically “It is all over”, the initial statement proposed by Amendment 1 would create a context in which there can be a conversation and the respondent’s voice can be heard. Of course, this does not mean that the respondent will be able to change the mind of the petitioner should they wish to try to persuade them that their marriage is savable, but at least it provides them with a credible opportunity for doing so.

Secondly, the initial statement proposed by the amendment does not condemn the reflection period to likely failure by commencing with a statement that suggests, with great finality, that there is no way the marriage can be saved. It might be necessary to start a divorce process on the basis of a statement of irretrievable breakdown within a fault-based system, but if we are to realise the objectives set out by the family test assessment to use the no-fault system to create a basis from which one can foster conditions that better promote reconciliation, this is a terrible missed opportunity. It also misses out on the opportunity highlighted on page 164 of the Nuffield Foundation report that notification in a non-fault-based system

“would be more facilitative of reconciliation.”

I hope that the Government will support the amendment or come back with an alternative means of restoring dignity to the respondent and making the most of the new opportunities in a no-fault system to promote reconciliation.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss (CB)
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My Lords, I spent 50 years in family law and I have some experience of dealing with parents who are at odds with each other. I have seen the impact on their children. I am very relieved to hear that the noble Lord, Lord McColl, for whom I have the greatest respect, does not wish to test the opinion of the House. I respect and understand his good intentions and those of others putting forward amendments today, but if they passed they would hinder rather than enhance the process of this excellent Bill.

Amendment 1 is opposed by family lawyers, many of whom have great experience of dealing in family cases. It assumes incorrectly that when the existing divorce process was not completed in some 50-odd cases out of about 300 it was due to reconciliation. I think we were told in Committee that only one of those was an attempted reconciliation. The others were procedural problems. There is no evidence to support the view that a period of reflection, suggested by the noble Lord, Lord McColl, would in fact create more reconciliation than starting with the application, as put forward by the Government.

For most divorcing spouses the petition does not come at the beginning of something going wrong. My experience certainly is that it comes towards the end, when efforts have been made on both sides to have reconciliation. It is a very serious step and one that is not taken lightly. I also have to say that it is very unlikely that the respondent is taken by surprise. He or she is almost certain to know that the marriage is not going well. I find it inconceivable that a speculative application could be made by somebody right out of the blue when the marriage appears to the other spouse to be working perfectly well.

If irretrievable breakdown is the ground of divorce, as, indeed, the Bill requires, the proposed amendment is entirely inconsistent with it, because that is the way the application would come before the court. Whatever you have to call it, the application is for a divorce at some point. The three-stage process would make it much more complicated and would probably be confusing for many people.

One particular group of people is not in fact taken into account, if the noble Lord, Lord McColl, will forgive me for saying so: spouses escaping abusive marriages. If there has to be this period before you can even apply for a divorce, the opportunities for intimidation, coercion and other behaviours against the escaping spouse—unless they go to a refuge—would mean that this measure would make life infinitely worse for them. The noble Lord has not referred to that group. Again, according to the research done by Exeter University and the Nuffield Foundation, people have said that it is time that the state respected and did not second-guess the decisions of parties to a failed marriage.

I am also quite surprised that the noble Lord did not refer to civil partnerships. Since civil partnerships now follow exactly the same rules as marriage under current legislation, this measure would put marriage in a completely different situation to civil partnerships. That must be unsatisfactory so I strongly oppose the amendment, but I am relieved to know that it will not go to a vote.

Baroness Shackleton of Belgravia Portrait Baroness Shackleton of Belgravia (Con)
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My Lords, I support what the noble and learned Baroness, Lady Butler-Sloss, said. Although I have absolute sympathy with the well-intentioned objectives of my noble friend Lord McColl, I fear that they will fall far short of what any practitioner can deliver.

Speaking from the coalface, when a person books an appointment with a divorce solicitor, it is often in absolute trepidation and recognition that they have failed. Sending that person away means, if I might say so, that we are getting into a situation like talaq, where you say, “I divorce you, I divorce you”, then the third time, you say, “Yes, you are divorced.” Putting down a warning in circumstances where there may be violence and it may have taken a great deal of courage to come to the conclusion that the marriage is over would, in my experience, just be delaying the evil day.

As we have seen in our recent politics with Brexit, as we are seeing now with coronavirus and as we see with marriage and its breakdown, uncertainty is a set of very disturbing circumstances, the innocent victims of which are children. Children need certainty. Often, when they know that their parents’ marriage is on the rocks, they are relieved to find some sort of consensus to sort out the problems that have been going on in their house for some time. Dignified separation without naming and shaming and blaming can only be to their advantage. I wonder how many of those who marry people look at two people whom they know are fundamentally incompatible and have the courage to say, “I will not marry you because I think that this will end in disaster.”

It takes only one party to get divorced, not two; one person can check out of the marriage and there is simply nothing that the other party can do to make them change their view. This amendment would delay what is in most circumstances an inevitable consequence. There is nothing to stop responsible practitioners suggesting that a couple try harder, go to mediation or have help, but to suggest that a practitioner or the law can keep together a marriage that has fundamentally failed is pie in the sky. The sooner the consequences of a fallout can be sorted, the better it is for everybody.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull (LD)
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My Lords, I associate myself totally with the wise and experienced words of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Shackleton. I can well remember our discussion in Committee about the petitioner “thinking” that the relationship “may” have irretrievably broken down. This amendment inserts a third stage into the process. The noble and learned Baroness, Lady Butler-Sloss, who is hugely experienced in the field of divorce, said, along with others, that in their experience, by the time someone files for divorce, it is not done lightly and their mind is made up. If there was a possibility that the marriage was retrievable, they would have explored it before filing.

I think that this step is unnecessary. The timeframes as set out in the Bill are appropriate, so adding another stage would not be helpful. Therefore, we will not support this amendment.

Lord Harries of Pentregarth (CB)
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My Lords, I would suggest that there are two issues behind the amendment moved by the noble Lord, Lord McColl, and I am not sure that the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss, have really addressed them. One is whether there should be a sort of extended time period—“I think the marriage may have broken down”—to allow for reconciliation, while the other is the situation where a woman is pretty certain that her marriage has broken down. She is living apart from her husband with her children, but she still has some hope. Then, out of the blue, a note comes through, perhaps rather late in the day, that her husband has actually petitioned for divorce.

I think that outside of this House there is quite a widespread worry about what the noble Lord, Lord McColl, has called the rights and the dignity of a person in that situation. I accept all the other arguments that have been put forward, but will the Government address the situation where something might come, if not as a total surprise then as rather a bitter blow that it should have reached this stage and the party has heard about it so late?

Lord Morrow Portrait Lord Morrow (DUP)
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My Lords, the noble Lord, Lord McColl, has intimated that he will not be testing the opinion of the House on this matter, but nevertheless, I rise to support Amendment 1. There are some things worth saying in relation to this important amendment and on this very important issue.

The noble Lord listened carefully to the previous debate and his new amendment now seeks only to avoid use of the term “irretrievable breakdown”—nothing more, nothing less—at the start of a divorce application when it is made by one party to a marriage. Where the couple have decided by mutual agreement, and it is clear that they have discussed the matter in advance and come to a view, this amendment does not propose a different statement at the start of the procedure from that which is made on actually applying for the conditional order. This is positive for two reasons. First, it means that the amendment focuses on the particular group of people who are likely to be disadvantaged by this Bill: namely, the respondents in the case of a unilateral divorce application in the absence of fault.

As the noble Lord explained, under the current system, around 40% of divorces are made in the absence of fault through a prior period of separation of either two years in cases where there is agreement or five years in cases of disagreement. In the context of these divorces, at present the respondent gets at least two years’ warning before the statement of irretrievable breakdown can be made. Under the Bill, they could get no warning at all and they will also lose their right to contest the divorce, which is a double whammy, truncating their rights on two fronts simultaneously.

Before I talk about the important service that Amendment 1 provides in addressing these difficulties, I would like to comment briefly on them, and particularly on their political significance.

The noble Lord, Lord McColl, expressed his worry about the psychological impact of the heightened insecurity that the Bill will visit on some marriages. People in marriages today who judge that it is not beyond the bounds of possibility that their spouse might suggest divorce, although neither party has committed adultery or behaved unreasonably, know that, even if they were unable to persuade their spouse to change their mind, they could not have a declaration of irretrievable breakdown visited on them for at least two years. There is in this a certain security, which this Bill will remove for 40% of current divorces.

It seems strange that the Government should want to associate with such a proposal. Last year, before the general election, the Conservative think tank Onward published its seminal paper The Politics of Belonging, which suggested that if the party was to win the election it must seek to engage with “Workington Man”. One of the central arguments of the report is that, having for many years prioritised freedom, the public now attach greater importance to security. On the basis of its extensive polling, the report stated that,

“by a ratio of 2-to-1, voters want to live in a society that provides greater security not greater freedom.”

It is this realignment of focus away from being primarily about freedom to a far greater emphasis on security that causes the report to argue that what is needed now is the “politics of belonging”—greater togetherness rather than greater separation.

In this context, the Bill before us today, the practical impact of which is to emphasise greater freedom for the petitioner and greater insecurity for the respondent, seems strangely out of place. Amendment 1 restores some dignity and security to the respondent by ensuring that they will not be presented with a statement of irretrievable breakdown right at the start of the process, potentially as a bolt from the blue. This means that, while they will understand that their marriage has been put on notice, they will not be presented with a form of words suggesting that it is all over from the outset.

This has two benefits. First, it treats them more gently and with greater dignity than moving straight to a statement of irretrievable breakdown. Secondly, while not restoring to the respondent a right to contest the divorce, it restores to them the opportunity to have a voice. If you present them with a statement of irretrievable breakdown, you are effectively telling them that it is all over and preventing them having a voice. If, by contrast, they are told that the marriage is on notice and that in 20 weeks a statement of irretrievable breakdown will be made unless they can persuade their spouse that their relationship is worth saving, they will at least have an opportunity to respond constructively.

Another reason this amendment is very positive is that it helps the Government fulfil their stated objective to promote reconciliation in the divorce process. This is significant because, having recognised that the current law makes reconciliation harder, the family test assessment in the new law states:

“We want to create conditions for couples and parents to reconcile if they can.”

Under the current law, which is based on fault, one has to begin the divorce process with a declaration of irretrievable breakdown because it involves citing adultery or unreasonable behaviour.

However, in considering a new system where one does not need to prove fault, that is not necessary. We have the opportunity to bring forward new legislation and therein a new approach. Given the stated commitment to foster better conditions to promote reconciliation than we have at the moment, an obvious place to start is this amendment and its proposal not to make a statement of irretrievable breakdown until after the reflection period when applying for the conditional order.

On this point I note that the Nuffield report—which some have quoted selectively to justify not prioritising reconciliation during the divorce process—states that, under a system where one party is notified of the intention to divorce, as proposed by this Bill,

“there is also the possibility that notification would be more facilitative of reconciliation.”

In other words, we should recognise that, in moving to the new system, there is the potential for greater scope for reconciliation than under the current system, because of the notification system.

Finally, it seems that the noble Lord, Lord McColl, has managed through the amendment to identify a means to use non-fault notification that is more facilitative of reconciliation. In this context, to reject the amendment because, up until this point, the divorce process had always started with a statement of irretrievable breakdown would be very odd, given that the whole point of this exercise is to change divorce law. I very much hope that the Government will not dismiss the amendment but give it proper consideration.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I thank my noble friend Lord McColl of Dulwich and other noble Lords for their contributions to the debate. As my noble friend observed, the amendment would keep the existing ground of irretrievable breakdown at the start of the application only where the application was made by both spouses. Where the application was made by only one party, it would remove the ground of irretrievable breakdown, which has stood for 50 years, in favour of the novel concept of a ground that may or may not be the case.

I am aware that there has been a narrative of the divorce application coming as a shock to the respondent, but, as the noble and learned Baroness, Lady Butler-Sloss, observed in Committee, and repeated this afternoon,

“the evidence from the research is that the majority of people know perfectly well when a marriage has irretrievably broken down.”—[Official Report, 3/3/20; col. 532.]

They know when it has come to an end. The proposed amendment would hinder, not enhance, the process of divorce. Indeed, my noble and learned friend, Lord Mackay of Clashfern, observed in Committee that

“once you have applied, you have carried out the intent.”—[Official Report, 3/3/20; col. 535.]

That point was reflected in a number of observations made by the noble and learned Baroness this afternoon.

The Government remain firmly of the view that an application for divorce is precisely that: an application seeking the legal dissolution of the marriage by the court because it has broken down irretrievably. A divorce application cannot be a notice to the other party that there may be marital difficulties. That is not a proper use of the court process. The legal process of divorce is not a remedy for marital discord but a means to dissolve the legal ties at the end of a marriage. As I observed in response to the amendment to similar effect tabled by my noble friend Lord McColl in Committee, such an amendment would have the potentially perverse effect of encouraging speculative applications. These are not effects that the Government wish in any way to encourage.

The reality is that under the existing law, which allows only sole applications, the application is made on the ground of irretrievable breakdown of the marriage right at the start, and well before the court takes account of the evidence for fault or separation. There is no reason to change that. I accept that my noble friend Lord McColl wishes to allow for reconciliation where one spouse wishes to divorce and perhaps the other does not, but the Government’s conclusion is that to amend the law in this way would not achieve his purpose and would in fact send entirely the wrong signals to divorcing couples. It is in these circumstances that I invite my noble friend to withdraw his amendment.

Lord McColl of Dulwich Portrait Lord McColl of Dulwich
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My Lords, I thank everyone who has taken part in the debate. I have great respect for all of them. I have enormous respect for the noble and learned Baroness, Lady Butler-Sloss—we have known each other for more than 70 years, so it is quite easy to. I thank everyone for taking part. I hear what the Minister said. I think that it will be taken up in another place with some enthusiasm. I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by

2: Clause 1, page 1, leave out lines 9 to 15 and insert—

“(2) On an application for a divorce order the court must inquire, so far as it reasonably can, into—(a) the facts alleged by the applicant or applicants, and(b) if the application is by one party to the marriage only, any facts alleged by the respondent.(3) The court hearing an application for a divorce order must not hold that the marriage has broken down irretrievably unless the applicant or applicants satisfy the court of one or more of the facts described in subsection (3A), in which case it must make a divorce order.(3A) The facts referred to in subsection (3) are— (a) if the application is by both parties to the marriage, that the applicants have lived apart for a continuous period of at least one year immediately preceding the making of the application;(b) if the application is by one party to the marriage only—(i) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent, including where the respondent has committed adultery;(ii) that the applicant and the respondent have lived apart for a continuous period of at least two years immediately preceding the making of the application;(iii) that the respondent has deserted the applicant for a continuous period of at least two years immediately preceding the making of the application.”

Lord Farmer Portrait Lord Farmer (Con)
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My Lords, I shall speak also to the other amendments in this group. It is not at all the norm for me to table amendments that appear to strike at the heart of what the Government, on whose Benches I sit, are trying to achieve. It is not something that I relish in any way. However, I feel compelled to keep challenging the introduction of no-fault divorce in this country. This is, in fact, because I support the two key principles set out in the original consultation paper and do not believe that removing the ability to cite fault fulfils them.

Those principles are, first, that the decision to divorce continues to be a considered one, giving spouses the opportunity to change course, and, secondly, that spouses are not put through legal requirements that do not serve their or the state’s interests and can lead to ongoing conflict and poor outcomes for children.

I realise that the various Front-Bench justice spokespersons, many of whom are lawyers, are for this Bill. However, I have become aware that many Back-Benchers and even some Front-Benchers are not truly cognisant of its contents and implications. I have a great respect for the legal profession but it is deliberate and appropriate that this House welcomes and appreciates those from different backgrounds who can provide a wider view.

The purpose of all my amendments—2, 5A, 6A, which supersedes Amendment 6, and 7, 8, 9, 11 and 12—is to retain the good things in this Bill and reject the bad. I am referring to those elements which I do not think will serve the best interests of families in our country. They aim better to fulfil the laudable principles with which the Government embarked on divorce reform. My amendments will retain the option for both parties in the marriage or civil partnership to make a joint application for a divorce, judicial separation or dissolution. They will also retain the minimum time period before which a divorce or dissolution cannot be granted. I heard what my noble and learned friend Lord Keen said about many fault-based divorces taking less time than the six months currently proposed.

My amendments would also retain the ability in the current law to cite fault to obtain a divorce or dissolution and to contest a divorce. I know that this happens rarely and that only 2% of respondents state intention to defend, with fewer than half of these going through the formal process. I also know that the number contesting may be less than 1,000 every year and that many are resisting the particulars of unreasonable behaviour and other fault-based facts. However, some will be trying to keep their marriage vows alive by resisting being unilaterally divorced.

At least the current law enables them to mount that defence. The removal of this facility ushers in, de jure, unilateral divorce with the full approval of the state. This is justified on the dubious grounds that we already have unilateral divorce de facto. This is where a reluctant respondent, who might have much preferred to attempt reconciliation, is more or less forced to accept that their marriage is over when fault facts of dubious veracity are used to establish the ground for divorce. Would it not be better to curtail the motivation and ability of people to do this through the minimum time limits proposed in the Bill and by significantly reducing the separation periods with and without consent so that they more closely resemble the Scottish system? That is what my amendments would also achieve.

A couple could jointly apply after one year’s separation. There would then be another six months to run, during which time, one hopes, much progress could be made on real areas of conflict—finances and children. A sole applicant could apply after just two years’ separation. In 2015-16, only 6% of divorces in Scotland were fault based because of these other remedies.

I have already alluded to the support of noble and learned Members of this House for the more draconian measures proposed in the Bill, so I know what I am up against, and I have very rarely experienced in this House an argument that has changed people’s minds. I still want to take the time to explain why I believe that these amendments will more adequately fulfil the Government’s stated principles.

On the first principle—

“that the decision to divorce continues to be a considered one, giving spouses the opportunity to change course”—

how does a sole application leading to a divorce after a 20-week reflection period, plus six weeks, achieve this? Leaving aside the important issue of both parties having the full extent of that period, I simply ask noble Lords whether no-fault divorce really does allow for reflection.

If fault is discarded, people can simply go online, late at night, after what may have been a rather trivial or resolvable argument—or possibly too many drinks—and apply within minutes. The irretrievable breakdown of the marriage would, in effect, be proven by the impetuous completion of that form. As one mediator writing on the Family Law website expressed it:

“Our culture has changed, and we must be alive to the unalterable fact that our online world can eliminate vital processing and reflection time.”

To those who argue that online completion allows that already anyway, I say this. The need to cite a fault fact will in itself be a moment of pause, even a deterrent, for many who might be all too well aware when they are doing so that their spouse could counter-accuse them of far worse.

I have also been told that it is patronising to suggest that those who come through the door, particularly of our top lawyers, to arrange a divorce are not doing it with very careful consideration. For this cohort, I am in complete agreement that this move will have been well thought through, not least as there is often so much money and property at stake. However, there will be many who think that they have far less to lose, and who may have given the issue far less thought.

Again, I am aware of Professor Janet Walker’s research, cited by the Nuffield Foundation’s Finding Fault? report, in defence of the argument that divorce is rarely initiated lightly. The report states that the research showed that the decision to divorce is not taken lightly or impetuously. Indeed, it is a typically protracted decision, based on months, if not years, of painful and difficult consideration. However, once that decision has been reached, the parties need to move forward without lengthy delays. Professor Walker’s study was a valuable analysis of provisions made in Part 2 of the Family Law Act, which was repealed. She followed thousands of people who took part in the pilots of the information meetings that would have become mandatory once the Act was brought into force. These, however, were volunteers, who had actively put themselves forward, not only to attend the meetings but to take part in research. So, despite my sincere respect for Professor Walker, I am not at all convinced that her subjects can be treated as representative of the overall divorcing population, including in terms of the level of consideration they had given to the decision to divorce.

On the second principle—that spouses

“are not put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children”—

this Bill falls very far short. I agree that the current system could be improved, but if the proposed reforms were enacted, respondents would be defenceless, in every sense of the word, and many of these are already the more vulnerable party, in financial and other ways. How are their interests served?

The assumption in debates during the passage of this Bill, as we have heard again today from the noble and learned Baroness, appears to have been that the abuser is often the respondent—but the abuser might also be the applicant. This law might penalise many more women than men, given that women are 12% worse off financially after divorce, while men are more than 30% better off.

How are the state’s interests served by this bad law, which cheapens the commitment of marriage? I have already cited research that shows that unilateral divorce leads to fewer marriages, fewer remarriages and more cohabitation, precisely because it makes marriage more like cohabitation. Does the state really want the greater instability that more cohabitation will bring, and higher numbers of children growing up without both parents? How is conflict significantly reduced when most of it is either prior to the divorce procedure or separate from it, at the stages when issues of money and children are being resolved?

To answer that, I will return to the single piece of research on which this Bill seems to have been based. The Nuffield Foundation’s Finding Fault? study insists that having to cite fault is a major engine of conflict, but ignores the horror and anger a respondent will feel when they are being unilaterally divorced with no reason or warning. Trinder et al say that such bombshell applications are rare, but this ignores Marriage Foundation research which found that fewer than 10% of married couples who parted had been quarrelling a lot the year before they did so. In its words:

“The remarkable lack of conflict or unhappiness immediately prior to divorce or separation suggests a great deal of family breakdown today may be a lot more salvageable than is commonly assumed.”

What about affairs, which can very quickly devastate a family, about which one party may be oblivious until divorce proceedings are initiated?

Why are the Government undertaking this seismic shift on the advice of one non-peer-reviewed study and the legal lobby? They seem to be assuming that the study is wholly impartial, but the University of Exeter blog accompanying its research, which was written by Professor Liz Trinder, decries,

“how a tiny and unrepresentative minority of evangelical/Christian right organisations are able to try to hijack the debate.”

Christians like me are not trying to hijack any debate; we are simply trying to have a debate. Such a discriminatory and pejorative statement hardly breeds confidence in the impartiality of the author of this influential report. We are enjoined before the start of every day’s proceedings to put aside partial affections. I urge the lawyers in this House to look more widely at this issue and not to think just about the immediate process their clients go through. Many divorce applicants will never see a lawyer. I also urge the Government to think again about the wider social ramifications of plans which do not have public support and on which they were not elected. I beg to move.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss (CB)
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My Lords, I entirely understand the best intentions of the noble Lord, Lord Farmer, in putting forward this amendment, but my heart sinks to hear it. It is really an effort to rewrite the Matrimonial Causes Act 1973, which we are trying very hard to get away from. I do not know whether the noble Lord understands—I hope he will forgive me for saying it like this—just what a farce the current divorce situation is. The majority of divorces are now completed on fault, and the fault has to be something that is important enough for the judge to sign off. Some judges sign off something which is very limited indeed, but if it is actually a fault of any significance, it upsets the respondent, and the respondent very often finds that he or she is being accused of things that have really not arisen during the marriage but are necessary for the current farcical situation to create a divorce. The exacerbation of the respondent inevitably has a marked effect on the children.

I have to say that Professor Liz Trinder, whom I know, is entirely independent. The report Finding Fault? is in line with lots of earlier research. In its comments on children, it is undoubtedly in line with the very strong evidence of endless consultant child and adolescent psychiatrists—and I know many of them. Over the years they have become increasingly concerned about the negative impact on children of the allegations of unreasonable behaviour that are to be found in the current legislation.

I am a patron of the Marriage Foundation, and the foundation is extremely keen that people should be reconciled. I have to say that I share that view; I must tell the House that I have been married for 61 years and I find it extremely sad when I meet members of my own family and other people I know who are divorcing. That for me is a tragedy. However, there is no shortage of people who wish to end their marriage. That is part of our English and Welsh law, and we have to go along with it.

Still, we must recognise that if this amendment were passed and only one party wanted to bring divorce proceedings, we would be back in the old situation, which is deplorable for children, and that would exacerbate the emotional trauma of the divorce process. I have to tell the House that it makes reconciliation very much less likely when allegations of behaviour are raised. Where they are not raised, it is a lot easier for people to talk to each other, but, if they are, it creates a very serious situation. I am very concerned that children should be protected from the behaviour of their parents. Children should be protected from the sort of allegations that could only seriously exacerbate the tragic situation for them when their parents separate.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull
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My Lords, these amendments by the noble Lord, Lord Farmer, would add a number of conditions or barriers that would mean that a statement of irretrievable breakdown would not be accepted unless the couple had lived apart for a specific time or there was a citation of unreasonable behaviour. The conditions look suspiciously like the existing damaging conditions that the Bill is trying to get away from—a point echoed by the noble and learned Baroness, Lady Butler-Sloss, in much more eloquent terms than I can manage. It sounds harsh to say this, and I have every respect for the noble Lord, but it is hard to conclude anything other than that these are wrecking amendments. This party supports the Bill and so we will not be supporting them.

Baroness Shackleton of Belgravia Portrait Baroness Shackleton of Belgravia
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My Lords, I wish to speak against the amendment. There is a practicality that is overlooked here, and that is the question of living separate and apart. It is not feasible financially or possible, particularly with children, for one party to up sticks and leave the matrimonial home; often this means returning to their parents and different schooling. It is just not viable.

The real problem with divorce is that it is now socially acceptable; there is no stigma on divorce. I believe passionately in marriage. I am also a patron of the Marriage Foundation, which supports this measure. In an earlier speech, my noble friend referred to the elite readers of the Times running a campaign to support the Bill. It was actually spearheaded by Sir Paul Coleridge, who is the head of the Marriage Foundation, because he believes the Bill is pro-marriage. It stops the agony when one party needs to exit a marriage. The amendment would effectively wreck a Bill that most practising lawyers support.

I will add that the very rich have something in common with the very poor: they are the least affected by divorce. So the people at the bottom of the scale are going to be no more inhibited from getting a divorce than those at the top.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I thank my noble friend Lord Farmer and other noble Lords for their contributions to the debate. I will speak to Amendment 2 and the other amendments in the group: 5A, 6, 6A, 7, 8, 9, 11 and 12. These amendments seek to retain the requirement on the court to inquire into any facts alleged by the applicant or indeed the respondent, and to be satisfied as to the facts alleged before holding that a marriage or civil partnership has broken down irretrievably. The exception would be that it would retain the approach under the Bill for joint applications.

With the greatest of respect, these amendments would drive a coach and horses through the Government’s measured and progressive Bill; the Government cannot accept them. They seek to maintain the status quo and deny any meaningful reform of the law—reform that is long overdue and which commands broad support in both Houses and beyond. Removing the use of blame in the legal process of divorce, dissolution and separation is a key objective of the Government. We know from the evidence that incentivising a spouse to make allegations about the other spouse at the outset of the legal process can simply worsen conflict. That conflict can then play out not only during the legal process of divorce but in any linked proceedings about financial matters or children.

In Committee, my noble friend said that much weight has been put on the evidence from research by the University of Exeter, funded by the Nuffield Foundation. He referred to the Finding Fault? study as

“a piece of grey literature … that … has not been peer reviewed.”—[Official Report, 3/3/2020; col. 553.]

and said that the reliance of the Government and, indeed, noble Lords, on this research was in his view surprising. He further noted that it was based on one study involving 81 interviews and an analysis of 300 divorces.

I am bound to say that the Government and many others find the evidence from this important research compelling. The Finding Fault? project, led by Professor Trinder, was peer-reviewed at application stage and scrutinised throughout by an expert advisory group, and the final report was reviewed by a senior academic and two members of the Nuffield research team. It has since been widely cited in academic family law textbooks. Indeed, I note that it has been referred to with approval by those with considerable experience in this area of the law, including my noble friend Lady Shackleton and the noble and learned Baroness, Lady Butler-Sloss.

I agree that that research has been influential. Its messages—that the current law increases conflict, encourages dishonesty and undermines the aims of the family justice system—are consistent with a body of evidence going back about 40 years, not least the Law Commission report of 1990, which led to the enactment, although not the implementation, of the Family Law Act 1996. The Finding Fault? study shows that the problems with fault-based divorce persist today. We cannot ignore that message.

Although the survey component of the study did find evidence of public support for retaining fault as part of the divorce law, this was not universal and indeed was inconsistent with other beliefs expressed by respondents—for example, that it is unfair to blame just one spouse for a marriage breakdown. The survey was only one component of the research, which also included interviews with people going through divorce, focus groups with lawyers, observation of the court scrutiny process, analysis of divorce court files and comparative analysis in other countries.

I appreciate and acknowledge the conviction of my noble friend and those who support his views that this Bill is bad for marriage, families and society, but I profoundly disagree. These reforms are measured, progressive and necessary. They are formulated on evidence that the current law works to fuel conflict, which is damaging for couples, parents and children. The law does not do what people think it does. It does not keep a party to a marriage in a relationship against their will. Marriage is a consensual union between two people. Unilateral divorce has been available under the current law for over 40 years. This Bill seeks to remove elements of the current law that can drive conflict. It does not and cannot make the painful decision to divorce any easier.

In light of this, I simply cannot agree with the terms of the amendment. We have, of course, listened to the concerns expressed about some provisions in the Bill. At this early stage, I would note this: I have committed the Government to work with the Family Procedure Rule Committee to address the issue of timely service on the respondent of the notice of proceedings by the applicant party. I have also tabled amendments to the Bill to make the delegated powers in Clauses 1 and 4, to amend the 20-week and six-week minimum periods under the Bill, subject to the affirmative resolution procedure, which will provide greater scrutiny of the measures. Finally, I have given a commitment that the Government will use the opportunity of amending court processes, including the online divorce service, to improve information about, and signposting to, important services such as marriage counselling and mediation. With those commitments in mind, I urge noble Lords to support the Bill in its present form and invite my noble friend to withdraw his amendment.

Lord Farmer Portrait Lord Farmer
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My Lords, I thank all noble Lords who contributed to the debate on my amendments. They backed up my argument that opinions do not change much in this House when you put forward a case. I thank the Minister for the commitments he just made.

It was said that these amendments go back to the dark ages. In a way, what I was saying when I spoke to them was that they line up very well with what is going on in Scotland, which seems to work very well. In Scotland, there are reduced time periods of one year and two years instead of two years and five years. I am not suggesting that we go back to 1973. The Minister also defended the Finding Fault? review from my criticisms. The process of peer review should be ruthlessly rigorous. It should involve at least two academics reading an anonymised script and aim to be as objective as possible. Other Nuffield Foundation research has been turned into peer-reviewed journal articles. I can give my noble friend at least one example: “Reforming family law—the case of cohabitation: ‘things may not work out as you expect’”, by Jo Miles, Fran Wasoff and Enid Mordaunt.

Ms Miles is on record as saying:

“Divorce law has not got anything to contribute; it is changes in society”

which have led to increased divorce. She is entitled to her opinion, but that is a contested view. The Nuffield Foundation did not ask someone with a different view who could have provided a profound challenge to its assumptions, methodology et cetera, but someone who was of the view that this legal change would not have an adverse effect on society. Unsurprisingly, the research assumes that divorce rates will be unaffected by the law. I just mention that in reply to the Minister.

In any event, I must join my noble friend Lord McColl in waiting to hear what the elected Members of the other place make of this. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3

Moved by

3: Clause 1, page 2, line 9, at end insert—

“(5A) For the purposes of subsection (5), “the start of proceedings” means—(a) in the case of an application that is to proceed as an application by both parties to the marriage, the date on which the application is lodged at the court under subsection (1), or(b) in the case of an application that is to proceed as an application by one party to the marriage only, the date when notice that the application for a divorce order has been lodged at the court has been served on the other party to the marriage.(5B) The court may abridge the 20 week period under subsection (5) if, on application, there is evidence that the respondent has engaged in deliberate evasion of service or other steps to delay materially the service of the application under subsection (1).(5C) The extent of the abridgement is at the discretion of the court and the court must take into account the date when the proceedings would have started had there been no such evasion or other material attempts to delay service by the respondent.”

Baroness Meyer Portrait Baroness Meyer (Con)
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My Lords, Amendment 3 is tabled in my name and that of the noble Lord, Lord Curry, who is following government advice by staying at home today.

The amendments in this group would tie the start of proceedings to service in the case of a sole petition divorce. Amendment 3 relates to marriages and Amendment 9A to civil partnerships. My noble friend Lord Farmer tabled a similar amendment in Committee. I am returning to the issue today because I believe the compromise offered by the Government does not go far enough. Proposed new Section 1(5) stipulates that 20 weeks must elapse between application and conditional order. This period gives couples a chance to reflect on the serious matter of divorce, plan for the future and consider whether their marriage can be saved.

As a nice aside, I must express my surprise at hearing several noble Lords imply in Committee that once the divorce process has started, there is no point attempting to save the marriage. I also gently remind the Minister that the government press release of 7 January said that the 20-week period is to

“provide a meaningful period of reflection and the chance to turn back”.

For the 20-week period to work, it is vital that both parties are aware that divorce proceedings have been initiated, but the wording of proposed new Section 1(5) leaves room for the respondent to be deliberately kept in the dark by the applicant. It ties the beginning of the 20-week notice period to “the start of proceedings”—that is, when notice is given to the court.

It is all too easy for a sole petitioner to avoid his or her obligation to give notice to the respondent by, for example, giving an out-of-date address or deliberately choosing a moment when the respondent is unreachable, maybe abroad. The question of whether the respondent is aware of the application becomes live only when the applicant asks the court to make the conditional order at the end of the 20 weeks. This means the respondent could be left unaware that the notice period has started, and the clock is running. They may not find out that the 20-week period has almost expired. That would surely defeat the entire purpose of the notice period: to encourage reflection. It could leave the respondent at a huge disadvantage.

It is more than possible that the applicant could start proceedings then leave the country with the children, in effect committing international parental child abduction. As noble Lords know, this subject is close to my heart. If the applicant flees to Germany, for example, it is possible to change the children’s place of residence in a matter of weeks, taking them out of the UK jurisdiction and into a foreign jurisdiction. Even if this does not happen, possession is nine-tenths of the law—as noble Lords are surely aware. Only 15% of abducted children are returned to their country of habitual residence under the terms of the Hague convention 1980. I raise this scenario because the Bill gives an unscrupulous applicant a great deal of power over the respondent. To summarise: on the eve of a conditional order, a respondent could find himself or herself confronted with a double fait accompli: divorce and the loss of the children.

The point was underlined last year by family law specialist David Hodson, in an article for a legal journal. He wrote:

“The intention of Parliament of divorce by notice over 26 weeks actually applies only to the applicant for the divorce. The recipient respondent will have less, perhaps much less and possibly even only a few weeks and yet have no opportunity to object. Any idea that there would be reflection and consideration—”

Baroness Butler-Sloss Portrait Baroness Butler-Sloss
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I wonder whether the noble Baroness would allow me to make the point that in Amendment 3, proposed new subsection (5B) talks about

“evidence that the respondent has engaged in deliberate evasion of service or other steps to delay materially the service of the application”.

Nothing in this amendment deals with the applicant misbehaving.

Baroness Meyer Portrait Baroness Meyer
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Maybe it is a failing in the amendment. It could be detrimental to both sides, but I am coming on to the other side as well. Mr Hodson described the current wording of the Bill as

“discriminatory, arbitrary and unfair. A process in law which means some parties to proceedings will have a dramatically different notice period than other respondents.”

The simple solution to the problem is to make the start of proceedings in the case of single applicants for divorce the date on which the application is served on the other party, rather than the date it is made by the petitioner. This was recommended in the Law Society briefing paper, which states:

“It is proper that a respondent to a divorce is given the full 26-week period of notice … If the notice period runs from the start of proceedings rather than the date of service, the respondent may receive the notice long after the start of proceedings, whether due to court delays, interference from the petitioner in delaying receipt by the respondent, the simple length of time of delivery if abroad, or other administrative reasons …We would recommend the Bill is amended to ensure that the notice period in applications by one party to a marriage only, would start from when the notice was received by the other party to the marriage. We believe it is vital that both parties each have a minimum of 26 weeks for the divorce to proceed under.”

In Committee, the noble and learned Lord, Lord Keen, said that this would hand

“too much power to a respondent party who wishes to frustrate the divorce proceedings by avoiding or disputing service or delaying the entire process.”—[Official Report, 3/3/20; col. 582.]

He suggested that new rules and definitions of service should be explored by the Family Procedure Rule Committee, but there are two concerns about this approach. First, the principle is so important, and the potential for injustice so profound, that we cannot risk the Bill coming into force without this problem being solved first. To delegate this to the Family Procedure Rule Committee is to neglect the responsibility of this House to scrutinise and improve legislation. Secondly, on the point of a respondent who wishes to avoid or frustrate the divorce process, we accept the concerns of noble Lords. That is why these amendments give the court power to abridge and shorten the 20-week period if it arises that a respondent is attempting to frustrate the process.

I hope that, despite my bad reading, this demonstrates that concern about unco-operative respondents can be addressed, but we must also address the issue of unco-operative applicants. I beg to move.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss
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My Lords, before I speak to Amendments 3 and 9A, I should tell your Lordships—in the unusual circumstances—that I certainly have a cough. I have had it since before Christmas; I have been to see my general practitioner, who says that I have a virus, but it is not “the virus”. I hope that noble Lords can be assured that I am not going to spread the coronavirus. I saw my GP and a consultant last week and have been checked out. I am sorry about my cough, but I cannot get rid of it.

What the noble Baroness, Lady Meyer, has spoken about happens already, either by petitioners who give a false address or by respondents who make it impossible for the petition to continue. This goes on; I have heard from judges that they know it is going on. Sometimes divorces are completed without the respondent knowing. In other cases, there are divorces that cannot conclude because the respondent will not support it and just refuses to answer any questions or do anything that is relevant to the outcome of a divorce. I hope this is something that the Government will discuss with the President of the Family Division and the Family Procedure Rule Committee, because it is a serious matter. However, I do not think that it will be managed by this amendment.

I interrupted the noble Baroness, because I wanted her to realise that she has to deal with what is actually in the amendment: 26 weeks is not referred to in the amendment, and it deals only with respondents and not applicants. For all those reasons, I suggest to noble Lords that this amendment is flawed and cannot be supported.

Lord Harries of Pentregarth
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Even if it is the case that the wording of the amendment is not quite right, would the noble and learned Baroness in principle support this amendment? It seems to deal precisely with the situation which she outlined so eloquently, where both sides sometimes try to evade service. Would it not be important to have on the statute book a way of dealing with this issue?

Baroness Butler-Sloss Portrait Baroness Butler-Sloss
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I understand what the noble and right reverend Lord says. The trouble is that I do not think having it in primary legislation will make it any easier for this issue to be resolved. This seems a matter for the Family Division to get on with, to see what it can do to try to deal with this. The Family Procedure Rules have to be obeyed; when I was a family judge, they were as important to me as primary legislation. I understand the point, but I do not think that it will make people behave any better if this is in primary legislation rather than in the rules.

Baroness Shackleton of Belgravia Portrait Baroness Shackleton of Belgravia
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To answer the question on the problem about service, this is regularly done when somebody is trying to evade service. You can go to the court and ask for an order for deemed service. There does not seem to be any problem in that; you just have to produce evidence that you have made your best endeavours to serve somebody, and if the court is satisfied that that has happened, service is deemed and the divorce can proceed.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull
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My Lords, I sympathise very strongly with this amendment, which as we have discussed deals with the vexed question of service. There is a balance to be struck where there is one applicant for divorce—in other words, it is not a joint application—between ensuring that the respondent has received adequate notification and that they are not able to frustrate the process by claiming not to have received notice. I am sure the House is very grateful to the noble Baroness, Lady Shackleton, for her explanation of how that can be overcome. In meetings with the Minister, and in this Chamber, he has given assurances that the Family Division would make rules that strike the balance between sufficient notification and attempts to frustrate the process.

We accept the Government’s position that the arrangements for service are best left to the Family Procedure Rule Committee. We also accept that, increasingly, applications will be made online, in which case service is usually effected by the court. But we must also agree with the Government that provisions must be made for paper applications as well as online applications.

It is important that the respondent must be made aware of the proceedings as early as possible. The rules need to provide that a respondent cannot frustrate proceedings by trying to evade service, or by failing to acknowledge service. I would greatly appreciate further clarification from the Minister, and further assurances that this amendment will not be necessary.

Lord Keen of Elie Portrait Lord Keen of Elie
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I thank the noble Baroness, Lady Meyer, for moving the amendment on behalf of the noble Lord, Lord Curry, and other noble Lords for their contributions. We understand the concerns that part of the intention behind the Bill’s new minimum 20-week period between the start of proceedings and when the court can be asked to make the conditional order could be undermined if notice of the proceedings on the respondent party is substantially delayed. I provided assurances in Committee that a conditional order will not be made without satisfactory evidence of service. Of course the Bill does not provide for divorce or dissolution by 26 weeks’ notice; confirmation is required at both conditional and final order stages that the marriage or civil partnership should be brought to a legal end.

However, in this matter we have to be led by the evidence. Professor Trinder’s study of 300 undefended divorce case files found that no acknowledgement of service was returned by the respondent in 41 of the sample cases, which is about 13.7% of the total. If you were to extrapolate that nationally, that would amount to about 14,000 cases annually. Very few cases appeared to result from difficulty in locating the respondent; instead, the majority of the 41 non-returns appeared to reflect a decision by the respondent not to co-operate with the process, either because they were opposed to the divorce in principle or the reason given for it or simply because they wanted to make the process more difficult for the applicant. Resolution, the leading body in England and Wales representing over 6,000 family justice professionals, has also identified frustration of the proceedings by the respondent as the greater mischief.

I accept that in tabling his amendment the noble Lord, Lord Curry, was offering a constructive suggestion but that he recognises that a respondent may be deliberately evasive. However, the material effect of his amendment would apply to applications made by one spouse only when the 20-week period had started and the respondent had been served.

There is a difficulty here. The only fail-safe way of knowing that the respondent has been served is when the respondent returns to the court with the form acknowledging service, if indeed they return at all. In his amendment, the noble Lord sought to address this issue by giving the court the power to abridge the 20-week period between the start of proceedings and when it may make the conditional order if there is evidence that the respondent has sought to evade or delay service. The difficulty, as with the existing procedures for the court to grant deemed service or dispense with service in England and Wales, is the evidence that the court will require to be shown that the respondent should be aware of the application when in fact he refuses to return the acknowledgement of service, and therefore it makes the process of dispensation difficult. Indeed, such a process can be lengthy and requires separate applications to the court, which in turn can make it a complex process for applicants to navigate.

The amendment would place a further requirement on the applicant to apply to abridge the time of the 20-week period in such cases by providing evidence that the respondent has deliberately sought to evade service. Inviting an applicant to prove a negative is always going to be rather challenging, particularly in this sort of process. We have listened carefully to what has been said about this matter, both in debate and in the meetings that I have had with a number of your Lordships.

We consider that the right way to deal with this concern is to commit, as I committed at the previous stage, to work with the Family Procedure Rule Committee, which already has the relevant statutory powers to address the issue of service, and which has a statutory duty to consider whether to consult on rule changes. We are therefore inviting the Family Procedure Rule Committee to consider the matter when reviewing the rules required to implement the Bill, including a rule requiring service of the application within a specific period following the issuing of proceedings. I believe that this approach has drawn support from all sides of House, and I therefore invite the noble Baroness to withdraw her amendment.

Lord Harries of Pentregarth
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Everyone here recognises that there is a problem, and the most experienced lawyers among us have emphasised that. My question is simply: if we have been aware of this problem for so long, and the Family Procedure Rule Committee or whatever other body was appropriate did not deal with it at that time, what makes the Minister think it is going to deal with it better in future? Would it be better to have something very clear actually on the statute book, such as some government alteration of the amendment put forward by the noble Baroness, Lady Meyer?

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - - - Excerpts

No, my Lords, it would not be appropriate to put this in primary legislation. To assuage such concerns as there may be, I can say that the President of the Family Law Division has already had this matter raised with him and has expressed a view. We have committed to make sure that the matter is brought before the Family Procedure Rule Committee, which is the appropriate body to address this point.

Baroness Meyer Portrait Baroness Meyer
- Hansard - - - Excerpts

My Lords, I am grateful to the Minister for responding to these amendments. Of course, I am very disappointed. As he made clear in Committee, the Family Procedure Rule Committee can be invited only to consider the matter. It might decide not to act, or the matter may get lost in the myriad other changes following this Bill. I recognise that there is little appetite for a vote, so I beg leave to withdraw my amendment but very much hope that our colleagues in the other place will take a view on this before the Bill completes its passage through Parliament.

Amendment 3 withdrawn.

Amendment 4

Moved by

4: Clause 1, page 2, line 20, leave out from “subsection (6)” to “House” in line 21 and insert “may not be made unless a draft of the instrument has been laid before and approved by a resolution of each”

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - - - Excerpts

My Lords, in moving Amendment 4, I shall speak also to Amendment 10 in my name. Essentially, Clause 1 provides for a minimum period of 20 weeks between the start of proceedings and when the court can be asked to make a conditional order of divorce. It further provides a delegated power to enable the Government, by statutory instrument, to shorten or lengthen this period, as well as the existing minimum period of six weeks, which will apply between the conditional order and the final order of divorce. Clause 4 similarly makes provision for the Lord Chancellor to change the prescribed periods in respect of civil partnership dissolution.

The Delegated Powers and Regulatory Reform Committee questioned the purpose of these Henry VIII powers and recommended their omission from the Bill, or alternatively that they be made subject to the affirmative resolution procedure. At an earlier stage, the noble Baronesses, Lady Meacher and Lady Chakrabarti, spoke of their concern about the lack of clarity surrounding the circumstances in which the Government would seek to use these delegated powers. We have listened to those concerns; it is in the light of this that we move an amendment that will make these powers subject to the affirmative resolution procedure. I hope this reassures noble Lords that there will be proper scrutiny of these powers in the event that they are ever sought to be used. I beg to move.

Lord McNicol of West Kilbride Portrait Lord McNicol of West Kilbride (Lab)
- Hansard - - - Excerpts

My Lords, as the Minister has just outlined, these amendments will use the Lord Chancellor’s Henry VIII powers to change the period of time between the commencement of proceedings and the conditional order, as well as between the conditional order and the final order, subject to the affirmative resolution procedure. We are very pleased on this side of the House that the Government have listened to the debates and discussions earlier and moved forward, so we welcome these government amendments. They have been laid in response to the Committee amendments previously tabled by my colleague and noble friend Lady Chakrabarti, who unfortunately cannot be with us for the debate today. We warmly support the Bill. I have not spoken on previous amendments as the contributions—especially those from the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Shackleton—have been eloquent and insightful, not to mention evidence-based, which is always nice to hear in your Lordships’ House.

I take this opportunity to remind your Lordships’ House again of the consequences of the decade-long underfunding of our justice system and how these cuts have affected family law in many ways, especially since legal aid was removed from divorce cases. This was, I believe, a terrible mistake. We are in many cases failing to protect abandoned people and children. The lack of access to lawyers results in inherently inadequate allocation of resources in the event of separation and divorce. As my noble friend Lady Chakrabarti recently highlighted, it seems perverse that, if the state seeks to take your children away, you have access to a lawyer but, if your ex-partner is depriving you of that contact, you do not have that support.

We can try to craft the most perfect divorce legislation but people must have access to early and consistent advice and representation. We urge the Minister to reflect further on the availability of legal aid.

I want to pick up on one comment made by the noble and learned Baroness, Lady Butler-Sloss, on an earlier amendment. She said that if amendments were passed to this excellent Bill that were not government amendments, it could hinder its progress. I hope that noble Lords will heed those words. On a personal note, the noble Lord, Lord Farmer, commented that the decision to divorce should be a considered one. Like many noble Lords here present, I am fortunate: I have been happily married for the last 25 years. But among the individuals who I have come across and had conversations with about divorce, I know that none of them took the decision to divorce in an unconsidered way. So, happily, we support the amendment.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - - - Excerpts

I note that the noble Lord supports the amendment and I hear what he says with regard to ancillary matters.

Amendment 4 agreed.

Amendment 5

Moved by

5: After Clause 1, insert the following new Clause—

“Information to be provided

The Lord Chancellor must ensure that individuals applying for a divorce order who have children under the age of 18 are provided with a concise statement of the main findings from the relevant social science disciplines about the impact of divorce on different aspects of a child’s wellbeing.”

Baroness Howe of Idlicote
- Hansard - - - Excerpts

My Lords, in Committee we had a useful debate on the impact of the Bill on children. The amendment I moved on that occasion required that the best interests of children should be considered in the divorce process. In his response, the Minister said, among other things:

“I understand why some may regard it as important for the court to consider the impacts on children of the decision to divorce, but that ought not to be a matter for the divorce process. The decision to marry or divorce is an autonomous one. It is not for the law to stand in the way of one or both parties who no longer wish to be in a marriage. The legal process of divorce should focus only on ending the legal relationship between the adult parties. Issues that may arise from the divorce, such as disputed arrangements for children, can and are dealt with now under separate statutory provision.”—[Official Report, 3/3/20; col. 549.]

Taken as a whole, the Minister’s response made two main points. First, he claimed that while the decision to marry involved two people, the decision to divorce need involve only one person and is as such an “autonomous decision” that engages neither the spouse nor the children. This was not to say that the best interests of children were irrelevant but, rather, that they are engaged outside the legal process of divorce and protected through provisions such as those in the Children Acts. Secondly, he expressed the concern that the requirement to take into consideration the best interests of children could be used to prevent the divorce taking place if the divorce were deemed to be not in their best interests.

While it is not my intention to table any amendment that would prevent a couple who want to divorce from divorcing, I am deeply concerned about doing anything that authenticates an ethic of autonomous decision-making in family life. When two people marry and bring children into the world, they change the world through those children, who are very properly dependent on them throughout childhood. They use their autonomous choice to create a family unit of dependents and interdependence, in which anyone who is committed to the notion of responsibility must acknowledge that they say goodbye to autonomous decision-making, in the sense of decision-making based entirely on self, and engaging with the consequences for others only after the fact.

The thrust of government policy in seeking to fix “broken Britain” has been all along about helping fathers and mothers recognise that they must live up to their responsibilities, not escape them by falling into the ethic of autonomous decision-making. The hyper-individualism of the ethic of autonomous decision-making is the root cause of the broken Britain phenomenon, which the Conservative Party in opposition pledged itself to repair. In consequence, it makes no sense that, once in power, the Conservatives should instead give a shot in the arm to the hyper-individualism that they previously committed to curtail. In this context, rather than encouraging ethical autonomous decision-making, it is vital that divorce legislation in 2020, while not blocking the break-up of the family unit, should encourage adults with dependants to make decisions that are fully cognisant of the implications of those decisions on others, including their children.

This is absolutely relevant to the divorce process because it is one of decision-making. That is reflected in the three stages of the process as set out in the Government’s consultation paper, Reducing Family Conflict: the petition, the decree nisi and the decree absolute. The sense of the decision-making process negotiated through the first two stages is helpfully elucidated on page 32 of Reducing Family Conflict:

“Although it is the making of the petition that puts the marriage on notice, so to speak, it is only at the stage of the decree nisi that the marriage has, at least provisionally, been found by the court to have broken down irretrievably.”

The dictionary definition of putting in notice is,

“a formal announcement, notification, or warning, especially an announcement of one’s intention to withdraw from an agreement.”

The first part of the divorce process is therefore not set out in terms that suggest that the divorce is necessarily going to happen. We are looking at an indication of intention.

The provisional nature of that initial putting on notice period is further underlined by the designation of the 20-week period between initiating the petition and the application of the conditional order as the reflection period. It is during this reflection period that the Government have said on numerous occasions that they hope it might be possible to save a marriage. For example, in their response to the consultation process, the Government state on page 17:

“The law can, and should, have a role in providing couples with an opportunity to reflect on their momentous decision and pull back from the brink if they decide that reconciliation is achievable.”

In other words, at this stage we are not dealing with a process where decision-making is over.

In the context of the decision-making process facilitated within the legal process of divorce, it is very important that couples with children think about the impact that the divorce is likely, given the current social science research, to have on their children. In order to help them think this through, it is vital that they are empowered to make informed decisions through the provision by the Lord Chancellor of a

“concise, accessible statement of the main findings from the relevant social science discipline about the impact of divorce on different aspects of a child’s well-being.”

This is a modest but important amendment. It does not block divorce but simply seeks to empower a couple to make decisions about divorce that are informed by an awareness of the likely impact on their children.

I suggest that we cannot expend energy on seeking to block such a provision unless we want to risk being seen to prioritise the convenience of adults over the best interests of children in a way that I—and, I feel sure, many others—would find disturbing. I very much hope that the Government will accept this amendment. I beg to move.

Lord Mann Portrait Lord Mann (Non-Afl)
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My Lords, I apologise for not having participated in this debate previously, but I trust it is in order to make a few remarks in relation to this amendment.

In 2002, when I was recently elected to the Commons, for whatever reason the Whips did not put me on a Select Committee—that is another story—so I created my own select committee in my constituency. I spent the best part of a year looking at heroin abuse in micro detail. The relevance and significance to this debate is in one of the extraordinary findings I made. There were around 600 heroin addicts living in the constituency. It was a fairly stable population and it was easy for me to gain access to them. I personally met, interviewed or researched—you could use all those terms accurately—around 300 of them, half the cohort, looking at what should be done to deal with their addiction but also at how they came to be addicted.

I came across the most extraordinary correlation. Of those 300, I found none—not a single one—who had not had major childhood trauma sometime in their teenage years. For some, it was reasonably well documented; it would be sexual or violent abuse in or outside the family that led them to heroin as their drug of choice. For others, though, it was a parental death or a messy separation. That correlation was absolutely uniform across the entire cohort; it varied between individuals, of course.

The conclusion I drew was that inability to cope with that major trauma led people into more dysfunctional behaviour and particularly into the choice of heroin as a comforting drug—the so-called cotton wool drug—which was the area I was building a particular expertise in. That has concentrated my mind and work for the nearly 20 years since, dealing with many such cases and the impact of separation on children.

I do not draw the same conclusions as the noble Baroness on how the law should be framed, because what I found in dealing with individuals in this situation was that the institution of marriage itself was not the problem or the issue; it was the circumstances in which they lived. Any kind of disputed, messy separation—whether a divorce or a less conventional way of living; I call it a quasi-separation—within an established family, or perhaps an established legal marriage that was itself dysfunctional and traumatic, could create the problem. In how we frame the law, the conclusion I drew at the time and put to your Lordships is therefore that a flexibility of approach that puts the children first is critical.

However, a structured approach in the law that overstructured the solution for the child would be counterproductive. The intent behind the noble Baroness’s amendment and the causation that she is putting forward are entirely endorsed, but I fear that the remedy is too constrictive in terms of the outcome for children and for how children will know that they are put first.

Lord Harries of Pentregarth
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My Lords, I shall speak to Amendment 13. It seeks simply to ensure that important information is available for divorcing couples so that they have the chance to think again about whether divorce is the best, or the only, way forward.

In Committee, I tabled an amendment that made it a duty to inform the couple of that information. The Minister argued then that it was too far down the road at that point, as the couple would have already started the process of obtaining a divorce. However, he thought that it would be possible for the necessary information to be made available on an official website, and this amendment simply seeks to ensure that that will indeed be the case. It therefore reads:

“It is the duty of a Minister of the Crown to ensure that those applying for a divorce order using the website of Her Majesty’s Courts & Tribunals Service have access to information about services related to relationship support, mediation, domestic abuse and related matters.”

Of course, that does not take into account those who apply for an order on paper, but it assumes that they will probably look at the court’s website at some point, and that is probably the best that can be done at this stage. Therefore, I very much hope that the Government will be able to accept this very simple amendment.

Lord Bishop of Carlisle Portrait The Lord Bishop of Carlisle
- Hansard - - - Excerpts

My Lords, much of what I might wish to say about Amendments 5 and 13 has already been mentioned, so I will not repeat it. However, from these Benches I would like to express my warm support for the main thrust of both amendments and briefly reiterate three points.

First, in both amendments, those applying for a divorce are not compelled to do anything, but they are presented with information that might make a difference not only to what they do but to the way in which they do it.

Secondly, with regard to Amendment 5, almost everyone is agreed that the divorce of a child’s parents is one of the so-called ACEs, or adverse childhood experiences—we have just heard about one of those—that can significantly affect the subsequent flourishing of the child. It seems to make every sense to bring that to the attention of the parents, as well as the fact that children apparently often tend to do better even with fractious parents than they do after a divorce, although I fully acknowledge that cases of domestic abuse are a different matter.

Thirdly, as for being given access to information about mediation and marriage counselling, as we have been reminded, it might seem a little late in the day for that, and I noted the earlier comments of other noble Lords. However, as I understand them, the statistics suggest that as many as 2,500 relationships are currently rescued each year as a direct result of this sort of intervention. That is obviously important not only for the couples but for any children involved. Several noble Lords have already emphasised that point.

Both these amendments seem to be simply a matter of common sense and care for everyone who is caught up in the trauma of a divorce. They would enhance, rather than destroy, the Bill, and I very much hope that the Minister will regard them with the favour that they clearly deserve.

Lord Browne of Belmont Portrait Lord Browne of Belmont (DUP)
- Hansard - - - Excerpts

My Lords, the social science evidence is very clear that divorce has a negative—sometimes profoundly negative—impact on child development. Of course, there are occasions when divorce is absolutely in the best interests of children: when they need to be liberated from an abusive environment. In developing public policy, however, we must be careful that situations where divorce is the best outcome do not cause us to lose sight of the fact that, in most cases, it is best for children to remain living in an intact family home.

Under the current law, if someone is unfaithful to their spouse, they know that they will be at risk of receiving divorce papers. There is a sense in which the law is there to protect the faithful spouse from being abused by an unfaithful spouse. The new framework, however, seems to turn things on its head. A feckless husband and father, rather than being challenged by the law in his selfishness, is actually empowered by it, and in a way that enables him to demonstrate a cruel lack of regard for his spouse and children. He can have an affair and use the law to help him fulfil his objective of liberating himself from the family unit that constrains him, in order to pursue others. The law allows him to issue a statement of irretrievable breakdown with the option of being out of the marriage in six months.

What does this Bill do for the faithful spouse, the respondent, and, more importantly, their children? It means that people who have committed no fault, but who are being divorced, will lose the warning that they currently benefit from through the requirement for prior separation in the absence of fault. They will instead receive, out of the blue, a statement of irretrievable breakdown, a breakdown that is in no sense their fault, and find that marriage will end in six months, or significantly less if the petitioner sabotages the 20-week reflection period by not telling her that a petition has been lodged until part way through or at the end of the period.

The lack of actual regard for the respondent and children in the proposed law is concerning. I know that in 2011, when David Cameron, as Prime Minister, called for feckless runaway fathers to be shamed, he was not necessarily saying that couples should not divorce. His point was that fathers should take their responsibilities seriously. As well as challenging fathers not thoughtlessly and selfishly to walk out of marriages, he was challenging fathers not to turn their backs on their responsibilities after divorce. Notwithstanding that, however, it is very difficult to square the way that this legislation empowers a feckless father to walk out of his marriage on the basis that his decision is an autonomous one, without regard for the best interests of the children until after the decision to divorce has been made. In this context, at the very least we must think more about asking parents to process the divorce decision in the context of an awareness of what the social science evidence says about the best interests of their children.

In this regard, I set before your Lordships’ House two considerations. In the first instance, a divorce decision is not an autonomous decision, because it impacts both the spouse and the children. We should be encouraging not an autonomous decision but a responsible decision, one that has regard for the impact on others, especially the children.

In the second instance, the decision to divorce is located, to some significant degree, in the legal process of divorce, and is not a foregone conclusion from the outset. As the Government’s consultation, Reducing Family Conflict, makes plain on page 31, initiating the petition amounts to something that

“puts the marriage on notice”.

The application for the conditional order for the divorce is not actually made until after the 20-week period. This is called a reflection period, for the very good reason that it is a time for reflection, to aid the decision-making process in the context of which The Family Impact Test says:

“The legal process for divorce should seek to reduce acrimony and conflict, thereby helping couples and parents to look to the future rather than providing a mechanism that facilitates and encourages the attribution of blame for past events. We want to create conditions for couples and parents to reconcile if they can – and to move on as constructively as possible in the event that this is not possible.”

In other words, the Government are saying that the decision-making process is still taking place in the legal process of divorce during the reflection period. In this context, it seems absolutely right that, rather than encouraging people to make autonomous decisions about divorce in the legal process of divorce, we should be encouraging them to make responsible decisions about divorce—decisions that do not think just about themselves but about their children.

I believe that this amendment is eminently sensible. It does not block couples seeking divorce; it entitles couples to receive information. Quite what couples decide to do with the information is up to them. Perhaps it will make them resolve to work harder at their marriage and step back from divorce. Perhaps it will not change their decision at all, but it will impact the way in which they approach it and make them more alive to the need to provide special support for their children going forward.

The state, having played a role in recognising the marriage commitment through the law and conscious of the significant public policy benefits of marriage, has a responsibility, particularly to the children of the marriage, to make sure that it cannot be exited without reflection on the implications of doing so in the best interests of the children. I am therefore pleased to support the Amendment 5.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss
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My Lords, I start by reassuring the noble Baroness, Lady Meyer, that if the President of the Family Division has said he will do something, he will do it.

Turning to these two amendments, I have the greatest possible sympathy with the proposals in each of them, but I do not think it appropriate that either should be in primary legislation. I would like to see, side by side with the application online, a requirement for the applicant to read advice about dealing with the issues raised by the noble Baroness, Lady Howe, and the noble and right reverend Lord, Lord Harries; and equally, if not more important, to read something about what the children say about divorce’s impact on them. About 20 years ago, Michigan had the most wonderful video of children ranging from about six to 18. They talked about the impact of divorce on them, such as: guilt—wondering whether it was their fault; anger at one parent or sometimes both; frustration because they did not know what was going on; and so on. Children need to be informed about what is happening; they have a right to know. They are people, not just packages.

It is extremely important that this sort of information, together with the information the noble Baroness and the right reverend Prelate have set out today, be provided, along with asking whether the parents realise that the children generally love both of them—it is very rare that they do not—and that the impact will include their feeling that they are responsible for what has happened, for example. I would like an undertaking from the Minister that this information, which has to be easily available, will be provided. A link is not good enough, because people do not have to look at it. It should be side by side with the application and should be provided to any applicant with children; however, it is not an appropriate provision for primary legislation.

Baroness Meyer Portrait Baroness Meyer
- Hansard - - - Excerpts

My Lords, I fully support what the noble and learned Baroness says. Before I speak in support of the amendment moved by the noble Baroness, Lady Howe, I shall make one thing clear: I have never said that I would be in favour of forcing people to stay together if they have decided that the best way forward is to separate and divorce. On the contrary, as I said in my previous speech, I fully support the new clause which allows for divorce by mutual decision through a joint application. The problem lies elsewhere: in what are, for the moment, called “contested cases”.

It is clear from earlier debates that many noble Lords, mostly those from the legal profession, approve of this Bill, which simplifies divorce proceedings, but is this a case of the law sometimes being divorced from real life? Life is messy. The law should allow for that. It cannot be based on a one-size-fits-all relationship. For a start, the Bill’s premise that once one party wants a divorce, the marriage must be considered to have broken down, is false. Relationships come in all shapes, sizes and emotions. Impulsive decisions to divorce are replete with second, third and fourth thoughts—a process in which the respondent should play a full part. That can lead to greater mutual aggravation, of course, but it can also lead to reconciliation, most importantly to the benefit of a child.

Although some noble Lords hotly contest this, the plain truth is that this Bill provides for unilateral divorce, minimising from the start the chances of reconciliation, when it should do the opposite. It is unfair to the respondent, placing virtually all the cards in the hand of the applicant. That cannot be morally acceptable. It offends natural law.

The claim is made that the new law will help women to get out of abusive relationships. I do not deny that there will be such cases, but on the basis of my experience observing scores of relationships during my 19 years as the CEO of a charity, I argue that the opposite is more likely when one spouse is an abuser. The normal reaction of an abusive spouse to what he considers an attack is to hit back and hurt to the greatest degree possible. Where there are children, they become the abuser’s weapon of choice. Making amendments here and there is all well and good, but my objection in principle to this Bill remains the same: by failing to take into account the welfare of the children, it makes them more vulnerable.

The noble and learned Lord, Lord Keen, mentioned that it is not for the law to stand in the way of one or both parties who no longer wish to be married—I agree—but he also said that there is no call to contaminate the divorce process with the interests of the children. Surely the law should protect children. In the real world, in which I worked for nearly two decades, I looked not at parents during the divorce but at what happens in the years afterwards to their children. The price that children pay is horrendous, yet whenever I make this pretty obvious point, I am told that I should not worry because this rule deals only with divorce, and children will be protected by the Children and Families Act 2014. Perhaps we should look at that Act before putting forward this Bill. Is it not important to put the two together? As one major critic of this Bill eloquently commented:

“It would be a major opportunity lost if, in the pursuit of ending the blame game, even greater harm is created.”

I agree with the amendment, which would better inform parents of what will happen to their children when they divorce. That is one thing, but I am sorry to say that the law should provide much greater protection for children than this Bill will. I support the amendment.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull
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My Lords, we have gone round the houses a bit but the amendments in this group are about information to applicants. Amendment 5 would require the Lord Chancellor to ensure that information was provided to divorcing couples with children under 18 about the effects of divorce on children. I recall that we had a discussion in Committee about the impact of divorce on children, and I agree strongly that they are often victims in this. However, I think that most parents will be only too well aware of the effect of divorce on their children, and they do not split up a home lightly.

As in so many situations, the impact on the children will depend on how the situation is handled. Taking the sting out of divorce by removing any requirement for blame and taking out child arrangements and financial arrangements from the divorce itself will, I hope, help the inevitable split have a calmer, less traumatic effect on children. In the past, staying together for the sake of the children often produced more, not less, unhappiness and trauma for children and adults. A family today can look very different from the traditional model that prevailed years ago. To me, as long as there is security and love, that is the main thing.

Amendment 13 would require applicants to be provided with information about relationship support, mediation, domestic abuse and related matters. Again, we discussed this in Committee, and I tend to agree with one or two other noble Lords who said that by the time an application has been made, it is too late.

Lord Harries of Pentregarth
- Hansard - -

My amendment says that this information should be on the website of the Courts & Tribunals Service, so that would not be too late; it would be when they were still exploring the possibility, not putting in an application. It would be there just as basic information. Surely there cannot be any objection to people finding out a few facts.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull
- Hansard - - - Excerpts

I am very grateful to the noble and right reverend Lord, and I totally agree. I am just going on to talk about the information that we should be making available at all stages.

These services should be freely available to any couple experiencing difficulties in their relationship. Let us face it, the current situation with regard to Covid-19 can hardly be conducive to calm, happy families if they are all stuck in the same house together for weeks on end. I strongly agree that the Government should be funding the kinds of services mentioned in the amendment, particularly in the current circumstances, and several steps upstream before a decision is made to file. However, I also agree with the noble and learned Baroness, Lady Butler-Sloss, that this very valuable information does not need to be in primary legislation. I look forward to hearing details from the Minister about how full information will be provided outside the primary legislation. I would be very happy if he wanted to write to me and other speakers today about that issue; that would be good.

Lord McCrea of Magherafelt and Cookstown Portrait Lord McCrea of Magherafelt and Cookstown (DUP)
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My Lords, I support Amendments 5 and 13. I believe that they bring before the House necessary advice and information that can be valuable to those considering divorce and its implications.

The reality of living in the real world today is that many of the foundational principles of a strong society are being rocked. We are seeing those who look upon marriage as being a lifelong contract before God being frowned upon, just the same as the life of the unborn child—they have no voice and no right to be heard. However, I believe that children ought to be given greater consideration. We are told, in the light of the virus that is striking fear into the hearts of many people across the world tonight, that we should remember to be considerate of others. It is not all about us. It is not all about me. Those considering divorce also need to think about that: “It is not all about me; it is also about my children.” The noble and learned Baroness, Lady Butler-Sloss, reminded us that children have a right to know—they are not just “packages”.

Let us take as an example a child in a home, where one member of that family unit suddenly receives the request for a quick divorce. They had no knowledge that it was happening, but they are also not told the fault; you are not allowed to know the fault or there is no reason for you to be told it—it is just a quickie divorce. What does the child believe? It is faced with “My family has been torn apart, but why is Daddy leaving the home?” or “Why is Mummy stepping out of the marriage?” Have they a right to be told? Is that to be brought out? We talk about anger; what will they feel when a parent just walks away in a matter of months? Anger, guilt, frustration—the noble and learned Baroness, Lady Butler-Sloss, mentioned those things. In actual fact the children cannot feel them, but they do not know why their family unit is no longer together, because they do not necessarily have to be given a reason why the family is being torn apart.

It is vital that we realise that yes, irretrievable breakdown is a reality, and we know that in fact there comes a situation where two people cannot live together and that their staying together would be worse for the children. However, we should provide every opportunity and every piece of information and advice to try to keep families together in a society that is already broken.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - - - Excerpts

My Lords, I thank the noble Baroness, Lady Howe, the noble and right reverend Lord, Lord Harries, and other noble Lords for their contributions to this debate.

I recognise, as does the noble Baroness, Lady Howe, that there is concern about the impact of divorce on children, both at the time of the divorce and in the future. No one pretends that it will ever be easy on children, even where the relationship between the parents has been traumatising to them in the course of the marriage. The noble Baroness’s amendment would commit the Government to summarise academic research about

“the impact of divorce on different aspects of a child’s wellbeing.”

Academic research will grow over time, and any concise statement of the main findings will be fluid and continually subject to review. Indeed, the findings of any academic research would then be questioned as to what evidence there was supporting it, what the nature of any cohort examined was, and whether the study was, for example, longitudinal. Any number of questions would arise in that context. However, even if a statement of the main findings of such research could be achieved concisely, we are not persuaded that pointing to academic research will affect people’s decision to divorce, which must be the ultimate intent of the amendment. For most people, the application to divorce will come after much reflection about what the future will hold without the other spouse, and it will include consideration of the children as well. We therefore do not consider it appropriate to accept this amendment, and I invite the noble Baroness to withdraw it.

I turn to Amendment 13, tabled by the noble and right reverend Lord, Lord Harries. He referred to this at an earlier stage of the Bill. I share, and understand, the spirit of the concerns he has expressed. It is right that all divorcing couples have opportunities to find out about support services and mediation. Where the Government’s view differs from the noble and right reverend Lord’s is that we see this as a practical, rather than a legislative, issue. I am happy to reassure noble Lords, and the noble Baroness, Lady Burt, that we will work hard to see what more can be done to improve the signposting of these services and information about them. That will require careful consideration, all the time thinking about the best places for couples to access the relevant information and to support them in making informed decisions once they have it. In particular, we will review the content on the GOV.UK website and check the ease with which people can navigate their way to services in their local areas. That website will likely be the first port of call for many people contemplating divorce, and at the point before they have decided even to seek advice from a lawyer. The information on GOV.UK therefore has the potential to be accessed before marital breakdown is, in a sense, irretrievable.

In addition, following the passing of this Bill, the Government will need to update the online divorce service as well as the paper-based system. As I have mentioned before in this House, we fully intend to use this updating process as an opportunity to strengthen signposting to services for applicants and, where appropriate, for respondent parties as well. That important work has yet to begin but I can give noble Lords examples of the kinds of ways in which we can improve signposting and information. For example, that could include prompts in both the paper and online systems. There are examples of this in current divorce petition forms, where marginal notes provide help to applicants. Similarly, in the online system, filter questions can help ensure that appropriate information and prompts are displayed for the user as they move through the online process. It would be inappropriate, for example, to suggest to a victim of domestic abuse that they may wish to consider relationship support. However, I am happy to make a firm commitment that we will work to make these prompts as effective as they can be in providing information about support services and mediation.

On the wider question touched upon by the noble Baroness, Lady Burt, about funding requirements, we are making funding available for the Reducing Parental Conflict programme that has been working in local authority areas in England to encourage focus on the importance of relationship issues and how to build support for families. In addition, in the recent Budget, the Chancellor announced £2.5 million to fund research into how best to integrate family services, including the emerging family hub model. We are addressing these issues but, as I said, we consider them to be practical issues, not matters to be placed on the face of primary legislation. I hope that, with those assurances, the noble and right reverend Lord will see fit to not move his amendment.

Lord Harries of Pentregarth
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My Lords, I thank the Minister for his assurances. I think the House would welcome it if, at Third Reading, he was able to spell out a bit more the kind of work that is being done and give a clear statement about where responsibility lies for ensuring that this happens. I presume it would be with the Ministry of Justice. What he said was welcome and a categorical assurance about that would reassure many people.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - - - Excerpts

I am much obliged to the noble and right reverend Lord. The responsibility would ultimately lie with the court service, which is an agency of the Ministry of Justice, to ensure that these processes do work in the way that I have indicated. I note what the noble and right reverend Lord said about further reassurance and I will take notice of that.

Baroness Howe of Idlicote
- Hansard - - - Excerpts

My Lords, I thank all noble Lords who have taken part in this debate. I am again pleased that we have had such a focused discussion on the implications of this legislation for children. We had an important one in Committee, but this was more widely spread. I am afraid that I am not particularly reassured by the response of the Minister—no doubt he would expect this—who does not even appear to think that this amendment is relevant to the Bill.

I very much hope that this debate will be read by Members of another place and that, when this Bill goes to their House, they will apply themselves to the task of seeking to factor into the divorce process a better consideration of the best interests of children than does the current draft. This is an important challenge if the Government are to have any chance of realising their objective of fixing broken Britain. I beg leave to withdraw my amendment.

Amendment 5 withdrawn.

Clause 2: Judicial separation: removal of factual grounds

Amendments 5A to 6A not moved.

Clause 3: Dissolution: removal of requirement to establish facts

Amendments 7 to 9 not moved.

Clause 4: Dissolution orders: time limits

Amendment 9A not moved.

Amendment 10 agreed.

Clause 5: Separation: removal of factual grounds

Amendments 11 and 12 not moved.

Amendment 13 not moved.

Amendment 14

Moved by

14: Before Clause 6, insert the following new Clause—

“Impact on marriage

Nothing in this Act changes the understanding of marriage as established by law.”

Lord Harries of Pentregarth
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My Lords, I firmly support this Bill, but I can well understand the fears of those who worry that it will undermine the institution of marriage. I suspect that those fears are more widely shared by those outside the House than they have been expressed within it. The traditional understanding of marriage is well expressed in the Church of England service in which one person pledges themselves to another

“for better, for worse, for richer or poorer; in sickness and in health ... till death do us part.”

In the Book of Common Prayer this ends with the words:

“I give thee my troth”

and in the Alternative Service Book, “I make my vow.” I have always understood that the law of this country reflects that understanding of marriage. In the old days, apparently, register offices used to carry a notice that marriage according to the law of this country was—and here I adjust to take into account same-sex marriages—the union of one person with another, excluding all others, until death. This is borne out by Jowitt’s Dictionary of English Law, updated in August 2019, which states that it is

“the voluntary union for life of one man and one woman to the exclusion of all others”

but again, taking account of the possibility of this being two persons of the same sex.

My concern, as expressed at Second Reading, is that this venerable understanding might be changed in some people’s minds because the present Bill allows divorce on the say-so of one person to the marriage that it is has irretrievably broken down. They might therefore come to think that marriage vows are a contract like any other, which one person could break if the partner to the contract failed to fulfil their obligations. But marriage vows, wherever they are made, in church or a secular space, are an unconditional commitment of the same character as the oath of loyalty made by your Lordships in this House. It is not a commitment made on the basis of certain conditions being kept—provided the partner does this, that or the other. It is a commitment, whatever happens, for life. Marriages do break down irreparably; if they do, a humane way of recognising this in law must be found—and I believe that the Bill does this. But it is important that the Bill does not lead people to think that it undermines the institution of marriage as an unconditional commitment for life.

My amendment does not spell out the legal definition of marriage. There is no need. All we need is an assurance in the Bill that, as the amendment proposes

“Nothing in this Act changes the understanding of marriage as established by law.”

I understand from the Public Bill Office that this kind of phraseology is quite a regular procedure. I very much hope that the Minister will accept this simple amendment. I beg to move.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - - - Excerpts

I thank the noble and right reverend Lord for moving his amendment. Of course, marriage is a contract. The statute law speaks of

“the persons contracting the marriage”

and sets out “the words of contract” when two people take each other as husband and wife. As with any contract, there are certain obligations, but how these obligations are spelled out has, of course, changed over the centuries. For example, it was at one time the duty at common law for a man to maintain his wife. That commitment, now gender neutral, is not explicit in the statute law, but it remains possible for either party to a marriage to apply to the court for financial provision—for reasonable maintenance—in cases of neglect, for example. Of course, it is the importance of obligations during the marriage that has led to the law providing for financial adjustment at the end of it.

But marriage is also much more than a contract. The statute does not spell that out—I suggest because it does not need to. It never needed to in the past and does not need to today. I venture that the importance of marriage to couples and to society is self-evident. Again, how that importance is expressed has changed over the centuries. In the rites of the Church of England, the wording of the marriage service in the 21st-century Common Worship differs from that in the 17th-century Book of Common Prayer. I am sure the noble and right reverend Lord would agree that the understanding of marriage is in essence the same, notwithstanding those changes. All that has really changed in the newer service book is that the expression of that commitment now has a different inflection, which more directly speaks to couples marrying today, rather than in the 17th century. All that is as it should be.

Our law provides only for how people enter into marriage, not what it is. I suggest that it is far better that our understanding of marriage derives not from law but from what people bring to it and the benefits our society recognises with regard to marriage. The understanding of marriage did not change when the Matrimonial Causes Act 1937 introduced new grounds for divorce, nor when the Divorce Reform Act 1969 replaced these with the single ground of irretrievable breakdown—and nor will it change with this Bill passing into law.

The noble and right reverend Lord’s amendment cannot serve any direct purpose. He suggests that it allows us to put matters on the record. In a sense, he asked for an assurance from government that marriage under the law is not simply a contract. As I stand at this Dispatch Box, I am more than happy to assure him that this Government believe that the vital institution of marriage is a strong symbol of wider society’s desire to celebrate a mutual commitment and that it is one of the things that binds society together and makes families what they are. We support marriage for all these reasons, and I hope that reassurance will be sufficient to persuade the noble and right reverend Lord to consider withdrawing this amendment.

Lord Harries of Pentregarth
- Hansard - -

I thank the Minister for his response, but he clearly does not share my concern that many people are worried about the Bill. Although I do not think it undermines the institution of marriage, a lot of people are worried that it does. I really cannot understand why the Government are unwilling to accept this very simple amendment. It does not go into the details of what marriage is. Whether it is a particular kind of contract or an unconditional obligation is neither here nor there. All my amendment says is that this Bill does not change the legal definition of marriage. I believe it would do the Government a great deal of good to put this little clause in the Bill, because it would reassure a lot of people who feel that this Bill undermines the traditional institution of marriage.

I hope that perhaps the Minister might be able to come back at Third Reading having thought again about this. It is not a controversial amendment; it does not go into the definition of marriage. It just says that the Bill does not change the legal definition of marriage—what could be less controversial than that? But it would go a long way to reassuring people. I very much hope the Government will think again about this, but meanwhile I beg leave to withdraw my amendment.

Amendment 14 withdrawn.

Amendment 15

Moved by

15: Before Clause 6, insert the following new Clause—

“Report on the effect on children of divorce or dissolution in families with low conflict

(1) The Secretary of State must publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending when there is either no conflict or low conflict between the parties.(2) The Secretary of State must lay the report under subsection (1) before both Houses of Parliament.”

Baroness Howe of Idlicote
- Hansard - - - Excerpts

My Lords, in response to my amendment on children in Committee, the Minister said:

“Divorce, at least in terms of the legal process, is of limited duration”.—[Official Report, 3/3/20; col. 549.]

It may be seen in those terms by parents but I suggest to the Minister that that is not the case for children. He also suggested that I should review the family test for the Bill in response to the research evidence that I presented in Committee. I have done so and it seems largely to focus on reducing conflict between parents. The document refers to one specific study, which is described as highlighting the fact that

“frequent, intense, poorly resolved and child related interparental conflict adversely affects long-term emotional, behavioural, social, academic development, and future intergenerational/interpersonal relationship behaviours for”

children and young people.

Much has been made in this House of the damage done to children by warring parents staying together—I think that message will have reached the public loud and clear—and I am sure that in those situations children are not surprised to find their parents choosing to divorce. However, I am concerned that both our parliamentary debate and general public discourse have been less informed of the fact that where there is no conflict between parents, divorce can be more harmful to their children than their staying together. Children can face a divorce that comes out of nowhere.

I quoted extensively in Committee from research that highlighted this issue. I hope the House will also allow me to summarise that again. First, of those who split up, low-conflict families tare in the majority—that is, 60% compared to 9% high-conflict couples. Secondly, a 12-year longitudinal study found that children in low-conflict families had higher levels of well-being if their parents stayed together than if they divorced. The noble Lord, Lord Browne, quoted social scientist Elizabeth Marquardt, who said:

“The children of low-conflict couples fare worse after divorce because the divorce marks their first exposure to a serious problem. One day, without much warning, their world just falls apart.”

Thirdly, it is the new reality that children find themselves in that brings them stress after parents with low conflict split up—possibly in a new home, a new school and a new relationship with both parents as one moves away and the other takes on more responsibility.

My amendment does not say that parents must not divorce. Rather, it would require the Secretary of State to

“publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending when there is either no conflict or low conflict between the parties.”

So far the Government have chosen to adopt the rather un-nuanced approach that conflict is always bad for children and that minimising it to the greatest possible extent is always good. They have not demonstrated any willingness to engage with the research that suggests that, first, while of course conflict is generally negative, there are occasions when a lack of conflict can make things even worse for children; and, secondly, that in a low-conflict context the interests of the children are best served by the marriage continuing. In that context, it makes sense that the Government should do more to encourage couples to fight for their marriage, rather than say, “It’s an autonomous decision” and go out of their way to remove obstacles to its termination.

In this context, I am moving this amendment because I want to ask the Lord Chancellor to engage formally with this research. The family test is inadequate because it does not do so. This is a major problem. There is a strong argument for saying that, until such time as the Lord Chancellor has engaged with this research, this legislation should proceed no further. I beg to move.

Lord Farmer Portrait Lord Farmer
- Hansard - - - Excerpts

My Lords, I will speak to my Amendment 16. I have brought back this amendment on the need for an annual report on the impact of the Bill because I disagree with the Minister’s reasons for rejecting it in Committee.

As I said, we could have moved to a divorce system that more closely resembled that of Scotland, which has much to recommend it, given that it sees so few fault applications. However, the Government have chosen to undertake an uncharted course, to a system described as enabling possibly the fastest divorce in the world, certainly for recipients of an application. Therefore, it seems irresponsible not to keep very careful track of any changes in our divorce, dissolution and separation patterns which ensue from this very significant change, especially given the existing high rates of family breakdown in this country.

I mentioned in Committee that research on which the Government have relied to justify removing fault points to how this degrades the commitment of marriage. Professor Wolfers says that its benefits are reduced; therefore cohabitation, which is widely agreed to be a less stable relationship form, becomes more common. So this will, very likely, have a knock-on effect on the number of children who experience the breakdown of their parents’ relationship.

I disagree with the Minister that the requirement to report annually on the number of divorce applications, including by gender, is unnecessary, given that the data is already publicly available and published in the Family Court Statistics Quarterly. The point of reporting is to be accountable for changes in that data and to draw Parliament’s attention to it. If the Government are not convinced that the Act will have a detrimental effect on any of these patterns, they should have no qualms about reporting on it.

I also disagree that it would be unduly onerous for the courts service to collect income data, or unduly intrusive for the applicants to supply it. The collection of income data is easily achieved by including this in standard demographic data income bands, the completion of which would of course be voluntary. We are constantly told that data collection is important to the Government, to help understand why people make choices, and to help make forecasts for the future. Understanding how different income brackets are affected by a policy is therefore not unusual or shocking. It makes no sense to me that in this area the Government are so coy about asking people to give them this information.

In conclusion, there is an inconsistency in the Government’s approach to informing themselves when it comes to tracking the effects of this Bill, despite the heavy social costs of relationship failure and the ramifications across the whole of government. I encourage the Minister to see the constructive point of this amendment in helping the future outworking of this law.

Lord McColl of Dulwich Portrait Lord McColl of Dulwich
- Hansard - - - Excerpts

My Lords, I wish to speak to Amendment 17 in my name. It seeks to address some confusion that emerged during debate in Committee. I will not press this amendment to a vote but I hope that, as a result of this debate, we may gain greater clarity about the place for reconciliation during the divorce process.

We have heard very mixed messages from the Government on their commitment to reconciliation in the divorce process. On the one hand, there have been repeated statements of interest in promoting it. I have found no fewer than 30 occasions where the Government have said that promoting reconciliation during divorce is part of the policy intention behind these reforms.

I would like to highlight a few of these statements. The initial consultation document from September 2018 stated:

“The reformed law should have two objectives: to make sure that the decision to divorce continues to be a considered one, and that spouses have an opportunity to change course”.

The Government’s response to the consultation in April last year stated:

“Sometimes, a marriage will still be reparable at the point at which one spouse seeks the divorce … But the law can—and should—have a role in providing couples with an opportunity to reflect on that momentous decision and to pull back from the brink if they decide that reconciliation is achievable.”

At Second Reading of the Bill in the other place in June last year, the then Justice Minister stated:

“The Government believe that the need to confirm to the court that it may make the conditional order, and to apply to the court for the final order, means that a divorce or dissolution is never automatic and that the decision to divorce is a considered one, with opportunities for a change of heart right up to the last moment.”—[Official Report, Commons, 25/6/19; col. 580.]

This is consistent with the family impact test assessment, which suggests that one of the strengths of the new system is the increased scope that it will provide for reconciliation. It states:

“The current law works against reconciliation by incentivising (in order to get a divorce more quickly) a spouse to make allegations about the other spouse’s conduct which can create conflict … The current law also offers little opportunity for reflection and conciliation, as the initial decree of divorce can come only a matter of weeks after the divorce proceedings have started.”

It then says that the Government want to exploit the new opportunities for reconciliation under a no-fault system, saying:

“We want to create conditions for couples and parents to reconcile if they can”.

Yet despite these repeated statements in support of reconciliation, and the suggestion that the scope of reconciliation will be enhanced in the no-fault system, there is little or no evidence of a political will to exploit this. On the contrary, there have instead been contradictory statements that reconciliation is not possible once the divorce process has started. I was concerned that, in response to my amendment in Committee, the Minister replied:

“The noble Lord expressed concern, as did others, that the Government’s statistics give the impression that a significant number of divorce petitions never reach decree absolute. There is, however, no evidence that these represent cases of reconciliation.”—[Official Report, 3/3/20; col. 537.]

Later in the proceedings, he said:

“I understand the desire of noble Lords to see that the marriage relationship can be supported, but it has to be supported at the right time. That is not at the point of an application for divorce on the grounds of irretrievable breakdown, which is why we do not consider that the Bill is the right vehicle for tackling the wider issues that lead to relationship breakdown.”—[Official Report, 3/3/20; col. 565.]

There seems to be some conflict between these two sets of statements, so I am probing the Government’s intention. If one believes that reconciliation, once divorce begins, is so unlikely that it makes no sense to prioritise it, then the statements in the consultation, consultation response, press releases, family impact assessment and at previous readings of this Bill all seem misplaced.

Rereading the debates, I observe that when pressed on why the assertion that reconciliation in divorce is insignificant, the Minister placed great emphasis on one piece of research from the Nuffield Foundation which has already been discussed. That report has quite a small sample size: around 300 court files, of which 51 did not complete the divorce process. Of these the information suggests that: in five cases, there was an apparent change of course or mind by the petitioner; in four cases there was acknowledgement returned but no application for a nisi; and in one, reconciliation after nisi pronounced. In 10 out of the 51, there was no clear reason why the cases did not proceed. This seems a very small sample from which to make such strong definitive statements that reconciliation is not possible in the divorce process. Furthermore, this goes against research I have seen from the United States conducted by Doherty, Peterson and Willoughby, who engaged with a sample of 2,484 parents during the divorce process and found that 25% of those individuals indicated a belief that their marriage could still be saved.

I am grateful to the Minister, who yesterday drew my attention to the assessment provided by Newcastle University of the reconciliation pilot studies run under the Family Law Act. He cited those to justify not placing too much emphasis on reconciliation once the divorce process had begun. Indeed, the following line was quoted to that end in earlier debates:

“For most, the information about marriage support will not come early enough to give them a real chance of saving their marriage.”

But the sentence after that quote was omitted from the earlier debates. It states:

“Perhaps, in an implemented system, between 5 and 10 per cent of attendees will turn back from the brink of divorce.”

Five to 10 per cent may not sound very much but in the context of 100,000 divorces a year, that could be 5,000 to 10,000 couples. Even if we were more pessimistic and said that only half the couples got this information, that would still be 2,500 to 5,000 couples reconciling. The benefits of this would be considerable. It is clear that the researchers did not conclude that promoting reconciliation during the divorce process had failed or not succeeded enough to justify an ongoing focus on saving marriages within the divorce process. Instead, they argued that

“the research suggests that this kind of information needs to be more carefully targeted at those for whom the door to reconciliation is a viable option when they attend an information meeting.”

The report spoke particularly positively about the pilot studies, where people had a meeting with a marriage counsellor, stating:

“The MWMC was well-received in the pilots and provides a blueprint for implementation. It was particularly helpful in moving people on from ‘stuck’ positions, enabling them either to put effort into possible reconciliation, or to move forward into divorce feeling more able to cope with it.”

Hearing some speak about the provisions of the Family Law Act, you get the impression these were draconian measures that were deeply unhelpful. In fact, the messages coming out of the pilots were very positive. Some 90% of attendees were positive about the experience. The report states:

“The vast majority of those attending an information meeting described it as useful, and the information leaflets as both user-friendly and accessible, and found that their combined levels of knowledge about a wide range of subjects were extended.”

Given the huge public policy benefits of marriage to health and well-being, which I set out in my speech at Second Reading, the Government need to be on a very firm foundation indeed if they are to cast aside the significance of the shortfall between the number of divorces commenced and concluded, suggesting with great confidence that reconciliation is negligible once the divorce process has begun. I do not believe that one can argue that conclusively from the Nuffield or indeed the Newcastle report. Moreover, the statistics I have quoted from Nuffield are based on research which looks at couples who divorce under the current system. We do not know how couples will act under the new system. Law and prophecy are two separate subjects. Indeed, the Nuffield report was very helpful when it stated that under a system where one party is notified of the intention to divorce, as proposed by this Bill,

“there is also the possibility that notification would be more facilitative of reconciliation.”

I see nothing in the present research to demonstrate authoritatively that we should not bother actively promoting reconciliation during the divorce process. In this context, the Lord Chancellor should produce a report, as my amendment proposes,

“drawing from multiple peer reviewed academic sources comparing the scope for reconciliation under a fault-based divorce system with a no-fault based divorce system”.

Lord Browne of Belmont Portrait Lord Browne of Belmont
- Hansard - - - Excerpts

My Lords, I rise to speak to Amendment 15 in the name of the noble Baroness, Lady Howe. As I noted in my speech in Committee, in all our debates on the Bill we must not forget children. The Family Impact Test assessment affirms the Bill on the basis that it seeks to “reduce conflict”. However, while I fully understand the Government’s desire to reduce conflict in the divorce process, it is telling that the majority of couples who divorce are in low-conflict relationships.

The figure mentioned by the noble Baroness, Lady Howe, is that 60% of couples that split are in low-conflict relationships. This research comes from Professor Spencer James of Brigham Young University. He states that these low-conflict couples are

“largely indistinguishable before they split from couples that remain together”.

These findings challenge the assumption that the majority of couples that split up are in constant conflict with one another, yet that assumption seems to underpin this legislation. James’s research comes from the UK’s largest household panel survey, Understanding Society. He found that only 9% of married couples in the United Kingdom who split could be described as high-conflict couples. He states:

“Both unhappiness and conflict are far less prevalent among couples who are about to split than one might reasonably expect.”

All of this is important when we return to research on the impact on children of family breakdown. Parents are more likely fall into poverty following separation. Therefore, they need much greater levels of state support. Some 60% of lone parents receive housing benefit, compared to just 10% of couple parents. Even when income and education are taken into account, studies find negative effects on children from divorce. One study, from Lee and McLanahan, looking at 2,952 mothers and children, revealed that instability especially affects children’s socioemotional development.

Yet the impact of divorce on children seems to depend on what came before. Children tend to do better if their parents exit a high-conflict relationship and worse if they exit a low-conflict one. As James notes in the research I mentioned earlier:

“This potentially counterintuitive finding in fact makes great sense. The break-up of a low conflict relationship comes largely out of the blue for the children. They are then left to conclude either that relationships are profoundly unpredictable or that they are somehow responsible. It’s easy to see how either of these conclusions can then undermine and sabotage their own future prospects of a loving committed relationship”.

This amendment would require the Government simply to look further into the impact of no or low-conflict divorce on children. It is a significant failing that the Family Impact Test assessment has not engaged with this. I think there will be a good deal of benefit in gaining greater understanding of why these couples divorce and therefore in investing more effort in helping them. If these married couples are saying they are relatively happy one year before divorce, what pushes them to make that decision? Understanding that would enable targeted support and help.

The research I have talked about should give us hope. If 60% of couples of are low-conflict and many of them are happy one year before they divorce, perhaps those marriages could be saved. Divorce is generally not in the best interests of the children of those families, so keeping them together would be a great benefit to them. I support Amendment 15.

Lord Morrow Portrait Lord Morrow
- Hansard - - - Excerpts

My Lords, I wish to speak in support of Amendment 17, which was tabled by the noble Lord, Lord McColl. I am aware that he does not intend to test the opinion of the House on it, but nevertheless I think there are some things that merit being said.

The noble Lord noted in Committee that there are no less than 27 references to reconciliation in the Government’s comments setting out their response to their consultation on divorce law reform. They include the statement that,

“the law can – and should – have a role in providing couples with an opportunity to reflect on that momentous decision and to pull back from the brink if they decide that reconciliation is achievable”.

If we look beyond that document there are plenty of other examples, including in the Family Impact Test assessment of this Bill, which states:

“The current law works against reconciliation by incentivising … a spouse to make allegations about the other spouse’s conduct which can create conflict. The alternative option which requires the couple to live apart for a substantial period of time can disincentivise efforts at reconciliation because the separation period can be affected if the couple try living together again. The current law also offers little opportunity for reflection and conciliation, as the initial decree of divorce can come only a matter of weeks after the divorce proceedings have started.”

In promoting a no-fault system, the Family Impact Test states:

“We want to create conditions for couples and parents to reconcile if they can”.

In this context, it seems to me that commissioning research on how reconciliation is best facilitated under the new regime proposed by the Bill compared to the fault-based system that we have now is vital. The Minister might be preparing to tell me that reconciliation rarely happens during the divorce process, as he did in Committee when he said that there was little evidence that divorces that do not proceed do so because the couple have reconciled. If the Government really think that, it seems completely contradictory to all their statements about reconciliation.

I hope the Minister will not try to square this circle by simply saying that the Government’s position is that while it is not worth prioritising reconciliation, of course they support reconciliation when it is possible. Multiple statements of commitment to the promotion of reconciliation in the Government’s response to the consultation, press releases and family test are such that it does not make sense for the Government then to say that, by the time the divorce process starts, it is too late for reconciliation.

I note that when the Minister suggested this argument in Committee, he cited in defence the Newcastle University study of the Family Law Act 1996 pilots. He told the House about the information meetings that were part of the Family Law Act 1996 and said:

“The purpose of that meeting included providing the parties with information about marriage counselling. Academic research into various models of information meetings found that they came too late to save marriages and tended to incline parties who were unsure towards divorce.”—[Official Report, 3/3/20; col. 564.]

He also implied elsewhere in Committee that the information meetings were not effective.

In truth, the report actually suggested that, if the reconciliation provisions in the Family Law Act were properly implemented within the divorce process, between 5% and 10% of divorce applications could be stopped. In my estimation, that is hugely significant. Saving 5% to 10% of marriages that will otherwise end in divorce means saving between 5,000 and 10,000 marriages per year. That would be an extraordinary achievement.

Indeed, the University of Newcastle evaluation says:

“Our research demonstrates beyond doubt that separating and divorcing families need more and better information than is currently available, that those who attended information meetings on a voluntary basis in the pilots appreciated the information provided, and that the MWMC [meeting with the marriage counsellor] is capable of helping people with a wide variety of agendas to move forward and take the next steps.”

It also states:

“Looking at the evidence from the information meeting pilots it is reasonable to conclude that information provision and the MWMC did and can support the principles of the Family Law Act. Some attendees have reflected carefully on the decision to divorce and some took steps to save the marriage; messages about reducing conflict and being conciliatory were understood and respected; and parents were helped to consider the needs of their children. These impacts are not easily measured by monitoring the use or non-use of particular services, but can be understood in more subtle terms.”

The evaluation recommended that the information needed to be personally tailored to the needs of the couple, rather than one sizes fits all.

In this context, the argument that the Bill is about just the divorce process and that marriage support should be addressed elsewhere is very difficult to sustain. First, it is not consistent with many of the Government’s statements about their focus on reconciliation within the divorce process. Secondly, it is not consistent with what the academic research says about the importance of promoting reconciliation within the divorce process. Thirdly, it fails to engage with the logic of their own Family Test Assessment, which says that finding reconciliation in a fault-based system is hard and that no-fault provides new opportunities in this regard. On this point, I note that the Nuffield report, which some have quoted selectively to defend not prioritising reconciliation during the divorce process, actually states that under a no-fault system, such as that proposed by this Bill,

“there is also the possibility that notification would be more facilitative of reconciliation.”

In this context, the Government’s failure to use Section 22 of the Family Law Act is deeply unfortunate. They should have allocated grants through Section 22 to really seek to understand the opportunities for greater reconciliation in a no-fault system and then applied Section 22 money to help exploit those new opportunities. I had hoped that the Section 22 amendment would have been brought back on Report. I very much hope that it is pursued in another place. I very much hope that the Government will take cognisance of what has been said here today.

Lord Keen of Elie Portrait Lord Keen of Elie
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I thank all noble Lords for their contributions to this part of the debate. I will speak to Amendments 15, 16 and 17.

Amendment 15 was moved by the noble Baroness, Lady Howe, and would require the Secretary of State to publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending

“when there is either no conflict”

as it is termed, “or low conflict”, as it is termed, “between the parties.”

It would require the publication of a report laid before Parliament on the impact on children of divorce or dissolution but it does not define what is meant in this context by “low conflict” and, for that matter, it does not define what would be meant by “no conflict” for this purpose. It is also not clear whether that could be achieved by pointing to existing academic research or whether the Government would need to conduct their own research, questioning parents during and after divorce about the nature of their relationship, or indeed questioning children, presumably only if of a suitable age, about their feelings and evaluating any impact on their life chances long into the future.

The very indefinite nature of such a report means that people who, on publication, would have wanted the report to have researched in one direction might find that it simply does not do so and does not assist them in that regard. Therefore, with great respect, we do not agree that the amendment would serve any useful purpose. It would not deter people from divorcing. Even if they read the report, they would be left considering their situation and that of their children, not that of a group of people who were the subject of research. For all those reasons, I invite the noble Baroness to withdraw her amendment,.

Amendment 16, tabled by my noble friend Lord Farmer, would require statistical reporting every year beyond that which the Ministry of Justice currently publishes. It would not require what was referred to in Committee as the “demographics” of the parties in geographic locations, but it would still require the income of spouses and civil partners for each divorce or dissolution application, as explicitly stated in the amendment.

As I observed in Committee, the number of divorce applications, along with the gender of applicants, is already publicly available and is published under the Family Court Statistics Quarterly. However, with regard to income, we continue to be of the firm view that, aside from the burden on the courts of collecting that data about income, it would be an unwarranted intrusion on application of what is, in any event, a difficult time. We simply do not consider that there is a case to compel applicants, or indeed respondents, to supply such information. Indeed, it could mislead people into thinking that the court considered income relevant to the grant of the divorce.

The court will only properly require information about income in separate proceedings for financial provision orders, and we see no reason to draw that into the divorce process, which, if I may say so, is the mechanical process of ending the marriage. It will also only properly require information about children in separate proceedings for children’s orders, and, as I have said before, we do not consider that that should be drawn into the process of ending the marriage. Therefore, again, I invite my noble friend not to press that amendment.

I turn to Amendment 17, in the name of my noble friend Lord McColl of Dulwich. The Government are clear that divorce must be a last resort, and that is why we are retaining the requirement for people to confirm the intention to divorce at two further stages beyond the original application. It is also why we are building in a minimum of 20 weeks before people can apply for the conditional order—the first pronouncement from the court that the marriage is capable of being dissolved.

Some have told us that it is at that point in the existing process—the decree from the court—that the reality of divorce sinks in. However, evidence points to the prospect of reconciliation being very low. No divorce process should be automatic but it is simply the means to bring to an end a marriage that is already no longer functional after attempts to revive it have essentially been exhausted. Under the current process, about three in five people seeking divorce make allegations about their spouse’s behaviour or adultery. Having to give and receive allegations of an intensely personal nature can only sever the relationship further. I do not see that the current process is particularly conducive to repairing the relationship, and at such a late stage.

This amendment would result in a report which I suspect would satisfy no one. Some people may want to see evidence for whether more or fewer couples reconcile after our reforms are implemented, but that will mean waiting years for the report so that any longer-term trend can be assessed. Other people may want to see comparisons between the existing divorce processes internationally, but they differ from jurisdiction to jurisdiction, whether or not they are based on fault, and of course some jurisdictions have a hybrid process. The report envisaged in this amendment would not put an end to differing views about the evidence. I would also note that there is a difference between what is termed “scope for reconciliation”—that is, the theoretical possibility—and whether couples actually reconcile.

The Government have taken account of peer-reviewed academic sources in developing the proposals in this Bill, as has been noted by some noble Lords, but we are not just beholden to their conclusions. We have also taken into account what was said when we consulted on our proposals. The matter of this amendment is one for academic study and I fear that it would be fruitless for the Government to undertake it. For these reasons, I invite noble Lords not to press their amendments in this group.

Baroness Howe of Idlicote
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My Lords, I thank all noble Lords who have taken part in this debate and I am not at all surprised that there is evidence which suggests that reducing conflict is a good thing for children. Indeed, it would be surprising if it did not, and certainly it is not my purpose to argue for more conflict.

The purpose of the amendment has been simply to point out that there is other important research which suggests that reducing conflict beyond a certain level is unhelpful. The family impact assessment does not engage with this research and nothing the Minister has said in his response suggests that the Government have done so; in fact, far from it. However, it is important that the findings of this research are taken seriously in framing the Bill, so I hope that the matter will be picked up and pursued in the other place. In the circumstances, however, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendments 16 and 17 not moved.

Divorce, Dissolution and Separation Bill [HL]

(Committee: 1st sitting (Hansard - continued))
(Committee: 1st sitting (Hansard - continued): House of Lords)
Tuesday 3rd March 2020

(1 year, 1 month ago)

Lords Chamber

Read Hansard Text
Ministry of Justice

Committee (Continued)

Amendment 4

Moved by

4: Clause 1, page 2, line 8, leave out “20” and insert “46”

Member’s explanatory statement

This would extend the minimum legal period for a divorce from six months to one year (with the additional six weeks between the conditional and final orders).

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con)
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My Lords, I understand that the question to which this clause is an answer was in the consultation and that the answer in consultation was 12 months, whereas here it is six. I just wonder what superior knowledge the Government had in mind in going to six months when the consultation seemed to say 12.

I have had some experience in this area, 20-something years ago. When I proposed the 1996 Bill, I put in 12 months—that is what I am asking for now; I am nothing if not consistent—but on that occasion Parliament decided that it should in fact be 18 months. Putting it up by six months is something with which I am fairly familiar, so I invite my noble and learned friend to explain the situation.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, this amendment more than doubling the period before conditional order seems to be based on the proposition that the law obliging people to stay married for longer will either help children or encourage more reconciliations. In the debate on Amendment 2, speakers on all sides of the House demonstrated the fundamental commitment of us all to the welfare of children, who—as we all agree—suffer badly from family breakdown and its consequences. The noble and learned Lord spoke eloquently on that. For all the reasons given by many noble Lords in the earlier debate, I agree with those who have said there is no basis for saying that the children’s interests would be best served by denying or delaying divorce to one or both parties to a marriage who have determined on a divorce.

As for the second proposition, that keeping unwilling couples tied into a failed marriage for a longer period may lead to more reconciliations, the evidence is overwhelmingly to the contrary. The decision to divorce is a hard one, rarely taken lightly. Of course, changes of mind occur. Separated couples often get back together—sometimes successfully and sometimes not, as the noble and learned Baroness, Lady Butler-Sloss, pointed out earlier—but in every such case they make the decision to reconcile willingly, not because they are obliged by law to try to do so. In some cases, of course, divorced couples even remarry each other. Again, that step is open to couples after divorce and is dependent on free will, not obligation.

Once the decision to divorce has been made, forcing parties to stay married for longer than is necessary to confirm that decision serves no purpose. Enforced delay rarely leads to reconciliation. It extends the unhappiness and uncertainty. It infringes on the parties’ autonomy, preventing them making decisions for themselves, arranging their new personal lives and futures, making safe and secure arrangements for their children and organising their family finances. It also—most significantly, I suggest—extends the hostility between the parties, who are frequently embittered by divorce proceedings and whose embitterment starts to heal only when the divorce is finalised and they go about the business of joint but separate parenting or building new, separate lives. This Bill is all about reducing bitterness by removing fault from the actual process of divorce.

The Government have proposed a 20-week period—reflecting other jurisdictions, such as New York and Finland—as appropriate for the confirmation of the decision to divorce. No period will ever be perfect to the week, but my belief is that the 20-week period to a conditional order is about right and is supported by the evidence. I commend the Government for choosing it.

Lord Farmer Portrait Lord Farmer (Con)
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My Lords, I have attached my name to Amendment 21 tabled by my noble and learned friend Lord Mackay of Clashfern. As he said, his original Family Law Act 1996 required this longer period, and explicitly stated that this enabled the children and the finances to be resolved. Importantly, this meant that someone was not free to remarry before these important responsibilities from the former marriage had been put to bed. To quote my noble and learned friend, at Second Reading on the Family Law Bill, he said:

“A very important requirement in the Bill is the requirement that parties decide all arrangements relating to their children, finance and home before a separation or divorce order can be made… In making this change the Government have been influenced by those who responded to their consultation paper who were of the view that parties who marry should discharge their obligations undertaken when they contracted their earlier marriage, and also their responsibilities which they undertook when they became parents, before they become free to remarry.” [Official Report, 30/11/95; col. 703.]

I am fully aware that the report Finding Fault? Divorce Law and Practice in England and Wales states that the average length of divorce proceedings is currently six months. A six-month minimum period would therefore mirror current practice. A longer period would be punitive for those who need to divorce quickly. This would include those experiencing domestic abuse, as we have heard, with 15% of Finding Fault? petitioners citing physical violence.

To this I say two things. First, it seems that when it suits the researchers, behaviour patterns are accurate, so when 15% cite domestic violence, what they say is accurate. Yet as I understand it, one of the main reasons for this no-fault divorce—for removing fault from divorce—is that in the majority of cases, the reason given is either false or inaccurate.

Secondly, in the consultation preceding the Bill before us, in response to the question: “What minimum period do you think would be most appropriate to reduce family conflict, and how should it be measured?”, 1,044 people—33% of the 3,128 responses—said a year. Only 297—9%—said six months.

In their response to the consultation, the Government said:

“Those opposed to reforms proposed a minimum period of one or two years, depending on whether the application was joint or sole, or on whether the couple had children.”

In other words, those opposing the reforms should be ignored, even though they were in the majority. Remember the bigger picture of the consultation: 83% wanted to retain the right for an individual to contest a divorce. Only 15% stated that this right should be removed. Also, some 80% did not agree with the proposal to replace the five facts with a notification process. A mere 17% were in favour. However, the Government also said:

“Those who selected nine months or longer felt that this would enable counselling or mediation and proper reflection to enable reconciliation where possible. In particular, those suggesting a year or more felt that this would more properly reflect the importance of both marriage and divorce as significant life decisions, particularly in cases involving children or where one party wishes to remain in the marriage.”

This Bill takes account only of the worst-case scenario—domestic violence—and deems the application for divorce to be a one-way street towards a final order.

The Bill should also take account of good things happening. The Government have said that they wish to make sure that couples have sufficient time to reflect on the decision to divorce and that that reflection period may result in them pulling back from the brink. I have heard noble Lords say today that when someone applies for a divorce because of irretrievable breakdown there is no going back, but we are introducing a new element into divorce proceedings based on the applicant saying that there is one-fault divorce. For example, a husband who is having an affair with someone in the office and his wife has no idea about it, knows that all he needs to do is write a letter to the court and say that the marriage has irretrievably broken down. The wife has not been advised and this comes as a bombshell to her. There could be many instances like this where, because of the new procedure, a unilateral request for a divorce is not recognised by both parties.

Many people initiate divorce early in the new year, which is also a popular time for booking one’s summer holidays six months hence. We all know that that six months goes extremely quickly and, before you know where you are, you are in June when it was January. Likewise, a divorce which gathers momentum and is all over at the end of six months will seem to come around very quickly, especially for the party who has been unilaterally divorced. Time for reflection and reconciliation will be squeezed out.

If the Government were to accept the amendment, I would expect it to extend to Clause 4 and to civil partnerships.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, when the Government consulted in 2018 on the Bill’s proposals, a number of headlines suggested that we were introducing quickie divorces; indeed, in some quarters, that misapprehension may linger. However, in a sense, we are putting an end to them. Under our reform Act, applicants cannot apply for a conditional order until at least 20 weeks have passed from the start of the divorce proceedings, along with the current six weeks between conditional and final orders, and that is a minimum period. Of course, progression from one stage to the next will never be automatic.

Applications for divorce are increasingly made online and the Government’s updated impact assessment, which was published last April, projected that, under these reforms, on average we would be adding between nine and 10 weeks to the divorce process based on the expected impact of full implementation of online divorce. So we are certainly not reducing the overall time for the average divorce. Indeed, at present rather more than 80% of divorces take place sooner than the timescale set out in the Bill.

I acknowledge that there is no magic number as far as this timing is concerned. A single divorce law must work for everyone and, in introducing the new minimum period before conditional order, we have carefully considered what period would most effectively help applicants consider the implications of divorce and allow couples to reach an agreement on practical matters without unduly lengthening the process. That is the purpose of the minimum period. It is certainly not intended to be punitive in any way.

The question then arises: why six months overall rather than a year or even a month? The Government have reflected on the different views put forward during the consultation and, at that time, some key organisations broadly supported six months as a reasonable period to meet the emotional and practical needs of divorcing couples. However, they also noted that there could be problems if that period was longer. Indeed, a period substantially longer than at present could unduly delay necessary financial arrangements, for example, and it would be particularly unhelpful if a couple had already been separated for a long period of time before the application is made. We therefore made the judgment that six months strikes an appropriate balance that allows a better opportunity for parties to adjust and a reasonable period for them to consider the implications of the step that they are taking.

As I say, there is no magic number. It is a case of exercising judgment and we consider that the period of 20 weeks, together with the six-week period, is appropriate in the circumstances, and we would not propose to extend that period by way of amendment to the Bill. In these circumstances, I invite the noble and learned Lord to withdraw the amendment.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, of course it is a matter of judgment. I had to do the judgment some time ago. The other angle which has to be taken into account is that when the divorce proceedings are finished, parties are apt to lose interest in their responsibilities under the marriage that has been terminated. I have seen that as a matter of fact from time to time. For example, fathers who desert find it very difficult to remember to pay the necessary support money to the deserted lady. That kind of thing can be made worse if the divorce has been completed before all the financial matters have been settled. However, I agree that this is a matter of judgment, and I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5

Moved by

5: Clause 1, page 2, line 9, at end insert—

“( ) For the purposes of subsection (5), “the start of the proceedings” means—(a) in the case of an application that is to proceed as an application by both parties to the marriage, the date on which both parties apply for a divorce order, or(b) in the case of an application that is to proceed as an application by one party to the marriage only, the date when the notice of an application for a divorce order has been served to the other party to the marriage.”Member’s explanatory statement

This amendment seeks to address that, if the 20-week period begins as soon as the application is made, the respondent may have less than 20 weeks by the time they have been served notice.

Lord Farmer Portrait Lord Farmer
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I beg to move.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, I support this amendment on the basis that it is not right that the length of the notice should be determined solely by the applicant. The present definition of the start of the application is settled by the rules of court. It would be a good idea if the rules of court committee examined this matter because if it is willing to change the present rule to a rule that accommodates the need to make sure that the respondent has received some kind of notice, either as a deemed service or as an actual service, at the start of the proceedings, that would be satisfactory. It would also be satisfactory if it were left to the rules committee because who knows what difficulties might arise? Nobody can forecast every possibility. If it was with the rules committee it could make the necessary adjustment later without recourse to Parliament. It is good idea that the rules committee decides this question. I think that is the best answer to it.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames
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My Lords, I rise to speak to the amendments standing in my name and that of my noble friend Lady Burt of Solihull. Amendments 8 and 9 concern applications for divorce orders, Amendments 11 to 13 concern applications for judicial separation orders, and Amendments 17 and 18 concern applications for dissolution orders in respect of civil partnerships. In speaking, I shall address the applications for divorce orders, but the others run in parallel.

Our amendments have one theme: the Bill starts the 20-week period leading to the conditional order with the start of proceedings. I see the point the noble and learned Lord, Lord Mackay, makes that that is not technically defined, but on any ordinary construction—the construction intended by the drafters of the Bill—the start of the proceedings is the issue of the application.

Concern was expressed at Second Reading and publicly that, under the Bill as drafted, the respondent may not receive notice of the application for a conditional order—this the point the noble and learned Lord was making—before much or all of the 20-week period has passed. He or she may not, therefore, have had time to consider his or her position before the proceedings are effectively determined, so the respondent could find himself or herself subject to a conditional order before even knowing of the proceedings. To that concern, some supporters of the Bill—which I strongly support—respond that to start the 20-week period only on service of the proceedings would encourage, or at the very least enable, unco-operative respondents to evade service or to refrain from acknowledging service, and that would frustrate the proceedings. This concern was mentioned by the noble and learned Lord at Second Reading. Our probing amendments are designed to encourage a search for a compromise by requiring an applicant to serve his or her application for a divorce order quickly, with provision for that applicant to apply to dispense with service, or to apply for an order that service be deemed. Those provisions would involve an obligation to ensure that the applicant knows of the proceedings well before a conditional order is made and, at the same time, to prevent respondents from seeking to frustrate the proceedings by avoiding service or not responding to them.

We have suggested a time limit of six weeks for service by the applicant—of the application for an order or for an alternative order—dispensing with or deeming service. We recognise the concerns of some, including those of Professor Trinder from the University of Exeter—I completely endorse her views on every other aspect of the Bill—but it is difficult, at present, to secure an order dispensing with or deeming service within a six-week time limit. I agree with the noble and learned Lord that rule changes could be made to speed up those procedures. There is a possible concern, also mentioned by some, that “service” needs better definition for this Bill. Perhaps it does, but that can be achieved.

Neither I nor any other noble Lord who supports these amendments is dogmatic about the precise definitions or time limits. At Second Reading, the Minister indicated an openness to discussion on this issue. I am very grateful to him for the time he and his officials have given to the discussions we have had between Second Reading and Committee. I hope that discussions with and within the department will enable a compromise to be reached which will achieve an acceptable balance between applicants and respondents and between simplifying procedures and avoiding injustice. We hope to discuss these issues further, including any necessary rule changes to implement a compromise and the procedures needed to bring about or clarify those rule changes, before Report.

Lord Farmer Portrait Lord Farmer
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My Lords, I shall speak now to my Amendments 5 and 15, which includes civil partnerships. If the 20-week period begins as soon as the application is made, the respondent may have less than 20 weeks by the time they have been served notice. There is even the possibility that they may not hear about it until the end of the period. We can all imagine scenarios in which this could have very negative consequences for the respondent in a sole petition who may have been unaware that the marriage was in the dire straits that a divorce application suggests. It also gives the applicant the advantage. One hears of parental alienation syndrome, where one party can persuade the children to come round to their way of thinking. Also, when it comes to talking about and arranging the finances, one party can find that they have been hidden away.

The Finding Fault? study says that most parties in a marriage know that the relationship is foundering and the bombshell application is not always the surprise it may seem, as we have heard this evening. To counter that, practitioners who gave evidence in Committee in the Commons argue that bombshell applications are more common than the Exeter academics claim. Moreover, most marriages go through difficulties and many self-heal. What might tip a spouse over the edge to apply could be something completely unrelated to the other party and something of which that party is unaware, such as an affair with someone at work, as I mentioned earlier.

Opposition to this amendment seems to rest on concerns that respondents might refuse to go through the procedures which indicate that they have been served notice, as the Finding Fault? authors state. They also state in that in other countries—for example, Sweden and Finland—all citizens must officially register their current address. Service is taken as proof of delivery to that registered address, regardless of whether the person there actually receives the notice. The rules are more onerous in England and Wales. They require the respondent to acknowledge service not just by receiving notice but by returning a signed copy of the acknowledgement of service to the court. That puts the respondent in a very powerful position, as the divorce cannot proceed without their co-operation.

The original Finding Fault? research, on which the Government relied heavily, cited evidence that non-response was more likely to occur in cases featuring allegations of domestic abuse or coercive control, and indeed it appeared to be used as a further instance of controlling behaviour. The Bill is weighted on the understanding that the obstructive spouse is the respondent. In its briefing, Resolution states:

“The Bill rightly limits the opportunity for respondents to delay, control or frustrate the divorce application.”

The Exeter academics say that legal professionals do not seem concerned by the asymmetry between respondent and applicant, yet the Law Society, which supports the broad principle of the Bill, is supportive of both parties having the same minimum period.

To reiterate, the respondent is almost deemed the one at fault. Again, this pushes our laws towards the hard cases where there is abuse, rather than finding ways to ensure greater fairness for all those applying for divorce. Other statutes deal with domestic violence. The standard practice is that the court initially serves the application on the respondent, meaning that there should be no delay, provided that contact details are correct. However, who provides the contact details? Often, it is the applicant. Surely a new process can be developed—for example, through email, recorded delivery or whatever—to prove that the respondent has been served with the application. The 20-week period starting on application is defended on the ground of simplicity. However, as with so many elements—and omitted elements—to this Bill, in its simplicity lies its harshness.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - - - Excerpts

My Lords, as I believe I indicated previously, we accept that we should address the service issue in the context of the Bill. Therefore, I can advise the Committee that my right honourable and learned friend the Lord Chancellor raised this issue with the President of the Family Division last week. The Family Procedure Rule Committee will be invited to consider the matter when reviewing the rules required to implement the Bill, including a rule requiring service of the application within a specific period following the issue of proceedings.

The rule committee has a statutory duty to consider whether to consult on rule changes. I hope it will decide to do so in order that wider scrutiny can be given to any proposals for achieving timely service. I also hope that through the increasing use of an online divorce service many respondents will be served quickly and efficiently by email, as the noble Lord, Lord Farmer, suggested. However, I am clear that the provisions in the Bill will need to work for the many cases that, at least in the short term, will continue to be dealt with through paper applications to the court.

Amendments 5 and 15 seek to provide in the Bill different definitions for the start of proceedings in respect of joint and sole applications. For sole applications, the practical effect will be to define the starting point for the 20-week period as the date on which notice of the proceedings is served on the respondent party. However, that will create the potential for new disputes as to when notice is served or received. The only certain way to evidence this is through an acknowledgement of service, if one is returned by the respondent. Such an approach risks handing too much power to a respondent party who wishes to frustrate the divorce proceedings by avoiding or disputing service or delaying the entire process.

Resolution, the leading body in England and Wales, representing over 6,000 family justice professionals, has identified this as the greater mischief. Its concerns are underpinned by evidence. The noble Lord, Lord Marks, referred to the work of Professor Liz Trinder. In her study, she found that no acknowledgement of service was returned by the respondent in a sample number of cases representing 13.7% of the total. That was only a sample, but it would amount to about 14,000 cases annually if extrapolated nationally. In the majority of cases where there was no return in the sample, this appeared to reflect a decision of the respondent not to co-operate with the process, whether they were opposed to the divorce in principle or simply wanted to make the process difficult for the petitioner.

The amendment creates new potential for mischief from a respondent who is not co-operative. The Government are concerned to avoid introducing new opportunities into the revised legal process for divorce for a perpetrator of, for example, domestic abuse to exercise coercive or controlling behaviour. It is a question of achieving the right balance. We consider that the right way to achieve this is by working with the Family Procedure Rule Committee to address the issue.

I shall deal with the entirety of the group of amendments beginning with Amendment 8, moved by the noble Lord, Lord Marks, and consisting also of Amendments 9, 11, 12, 13, 17 and 18. I thank the noble Lord for his consideration of this issue and our discussion of it. Amendments 8, 11 and 17 would amend the Bill to insert a new delegated power into Section 1 of the Matrimonial Causes Act 1973 and a new Section 37A into the Civil Partnership Act to enable the Lord Chancellor to make provision by order to set out a further minimum period within which a sole applicant must effect service of notice. Amendments 9, 13 and 18 would make that power subject to the negative resolution procedure and Amendment 12 would apply in judicial separation cases.

These amendments would add to the Bill further delegated powers that are simply not needed. We consider that the best way to achieve resolution of the service issue is to work with the Family Procedure Rule Committee to address the rules around service. The provisions of the Courts Act 2003 already provide a power for the Family Procedure Rule Committee to make rules of court regulating matters governing the practice and procedure to be followed in family proceedings, including the requirements for service. I am quite happy today to give a commitment that we will work with the Family Procedure Rule Committee to address these concerns over service. They already have the relevant statutory powers to address this. In these circumstances, understanding that these were put forward as probing amendments, I invite noble Lords not to press them.

Lord Farmer Portrait Lord Farmer
- Hansard - - - Excerpts

My Lords, I thank the Minister for his explanations. I am to some degree heartened by him wanting new advice to be gained from the rule committee. In this instance, we wish him well and hope we can come to a sound agreement. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by

6: Clause 1, page 2, leave out lines 10 to 12

Member’s explanatory statement

Omits new section 1(6) of the Matrimonial Causes Act 1973, as recommended by the Delegated Powers and Regulatory Reform Committee.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
- Hansard - - - Excerpts

My Lords, in moving Amendment 6 I shall speak also to Amendment 16, both amendments having been recommended by the Delegated Powers and Regulatory Reform Committee. The reasons set out in the DPRRC report are, in a nutshell, that the matters dealt with under the Henry VIII powers in the Bill are too central to its purpose and therefore not appropriate for the procedure, at least not as currently set out in the Bill. I hope that, in the light of that report, the Minister will consider either accepting my amendments or, perhaps, subjecting these powers to the affirmative procedure.

Baroness Meacher Portrait Baroness Meacher (CB)
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My Lords, I rise to speak to Amendment 6, proposed by the noble Baroness, Lady Chakrabarti. I apologise to the noble Baroness that I did not get a chance to have a chat with her before this evening, as I had originally added my name to the amendment. As the noble Baroness explained, the Bill as it stands proposes minimum periods of 20 weeks and six weeks for the two stages of divorce and dissolution proceedings. I thank the Minister for the very helpful meeting we had last Wednesday, where he clarified that a statutory instrument to shorten the period for divorces would indeed be subject to the affirmative procedure. The question has been whether there is any reason at all why the Lord Chancellor should be given a Henry VIII power to reduce the length of either of the two periods through delegated legislation.

The Bill is very clear that, in a particular case, an application may be made to the court to shorten the period for the proceedings. For example, if one of the partners is dying and wants to sort out their affairs before they die, it would of course be perfectly reasonable for them to make an application to the court to reduce the period required. Also, if there is a need to protect an abused spouse, time may be of the essence. However, to shorten the minimum period for divorce or dissolution in all cases is quite another matter. We have to think about that.

The then Minister for Justice, Paul Maynard MP, emphasised in the Commons Public Bill Committee on 2 July 2019:

“The 20 week period is a key element in a reformed legal process.”

There is currently no minimum period, and with respect to the second stage, the Minister said that part of the objective was

“to improve the financial arrangements. People may wish to delay a little longer until such a point. It is not a maximum period; it is a minimum, and the process might well take longer.”—[Official Report, Commons, Public Bill Committee, 2/7/19; col.35.]

As the Minister knows, I expressed my concern at Second Reading about a future Lord Chancellor having the power to allow for a more rushed process, without proper parliamentary scrutiny. Certainly, the decision to apply the affirmative procedure to any statutory instrument reducing the time period is, in my view, an important improvement. The Government argued in a memorandum that the Lord Chancellor

“will be able to make adjustments to the time periods, for example, if policy considerations meant that it would be appropriate to shorten one or both of the time periods.”

I do not want to be difficult, but when I asked the Minister during his presentation to the Cross-Bench meeting what policy considerations might justify reducing the timeframe for divorces in a general sense, neither he nor the civil servants present could provide an answer. However, during the meeting last Wednesday, the noble and learned Lord, Lord Mackay of Clashfern, came—probably quite inadvertently—to the rescue and suggested a justification for the use of this power. The noble and learned Lord suggested that if, for example, there were repeated applications to the court to reduce the length of time from 26 weeks, then a more general reduction in the minimum period would be helpful. Repeated applications to the court are unhelpful to the people immediately affected; I imagine there are delays and all sorts of things, including perhaps costs.

This sounds a very sensible justification for the Henry VIII power. The concern of the Delegated Powers Committee, on which I sit, had been that Ministers at that point had offered no rationale for the Henry VIII power. Now, thanks to the noble and learned Lord, Lord Mackay, to whom I must give due credit, we have such a rationale, as well as confirmation from the Minister that the affirmative procedure would be applicable. I am therefore personally satisfied that this matter has been acceptably resolved—I had intended to say “satisfactorily resolved”, but it has certainly at least been acceptably resolved. However, I must emphasise that I am not, of course, speaking for the Delegated Powers Committee as a whole; I am speaking purely as one member.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, under the procedures set out in this new Bill, something like 80% of divorces will now take longer than they otherwise would have done. Having regard to that, it is considered prudent that the Lord Chancellor should have the opportunity as matters develop to be able to adjust the timeframes under which provision is made for divorce in this Bill. What I refer to are future, unforeseen policy considerations, which might indicate that it is appropriate to shorten the length. As was observed, the noble and learned Lord, Lord Mackay of Clashfern, cited, as an example, a situation in which there were a multitude of applications to reduce the timeframe and it was felt that this directed us towards a conclusion that there should be an overall reduction in the timeframe, because it was creating particular difficulties. That is why these powers exist.

There are essentially there of them: one in respect of divorce, one in respect of partnership and one in respect of nullity of marriage. As the Bill was drafted, these statutory instruments would have been subject to the negative procedure, but, as I indicated during meetings with a number of noble Lords, it is our intention to amend that and to apply the affirmative procedure in order that Parliament may have oversight of any such proposed step. In these circumstances, and with that undertaking to amend before Report stage of the Bill, I invite the noble Baroness to withdraw her amendment.

Baroness Chakrabarti Portrait Baroness Chakrabarti
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My Lords, I am hugely grateful to the Minister and to the noble Baroness, Lady Meacher, who does not speak for the committee but is clearly a very important member of that committee. In the light of the assurances given, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendment 7

Moved by

7: Clause 1, page 2, line 19, at end insert—

“( ) In the case of an application that is to proceed as an application by one party to the marriage only, there shall be no commencement of financial provision proceedings until the end of the period of 20 weeks from the start of the proceedings for the divorce order unless—(a) the other party to the marriage agrees to the commencement of financial provision proceedings, or(b) there is an application under section 22 for the court to make an order for maintenance pending suit.”Member’s explanatory statement

This amendment would ensure that there are no discussions about financial settlement for 20 weeks unless both parties agree or there is an application to the court for interim maintenance and financial injunctions.

Lord Farmer Portrait Lord Farmer
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My Lords, this amendment would ensure that there are no discussions about financial settlement for 20 weeks unless both parties agree, or unless there is an application to the court for interim maintenance and financial injunctions.

The 20-week period I refer to is dependent on the longer period argued for in Amendment 4, which was 46 weeks. If the minimum period is only 20 weeks before a conditional order is granted, a shorter legislation-free period would be appropriate. However, as I am arguing with my noble friend for a 46-week minimum period, waiting 20 weeks before even starting to sort out finances allows the genuine pause for reflection the Government say they are committed to.

There are already many divorces initiated which are not pursued to final order. That number might reduce considerably under a legislative framework that has no natural brake pedal. The Law Society supports the concept of a litigation-free period. I beg to move.

Lord Morrow Portrait Lord Morrow (DUP)
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My Lords, I support Amendment 7. It would carve out a specific 12-week period at the beginning of the divorce process where no financial provision proceedings may take place. Of course, this would not include cases where both parties agree to commencement of such proceedings, or where there is an application for maintenance.

This is a vital amendment, as it would act in the interests of vulnerable respondents and improve the chances of reconciliation. It serves to recognise that the parties to a marriage might have very different perceptions of the marriage at the point when a divorce application is made. It may come out of the blue for one party—we have heard that referred to earlier. They will need time, and it is not helpful to be plunged into the heat of battle over finances. Financial provision proceedings are by nature contentious and would serve only to undermine the chances of meaningful conversation between spouses in the initial weeks. I believe that keeping the first 12 weeks free from litigation would increase the possibility of the parties being able to discuss their marriage without having to take up entrenched positions.

All couples should be given an opportunity, perhaps even be incentivised, to consider the ramifications of divorce carefully and work towards saving their marriage. Some divorcing couples do reconcile and most of those do so in the initial weeks of an application for divorce. This initial 12 weeks is a key period to try to save the marriage.

Ministers in the other place have said that once one party has asked for a divorce, inevitably—in 100% of cases—it means that the marriage is over. But they fail to mention the more than 10,000 divorce proceedings that are dropped each year, while this position is also counter to their own policy objective of making space for reconciliation. I know that we could argue all day about the reasons for that and whether some of them are attributable to cross-petitioning, but no one can deny that some people embark on a divorce and then change their mind because they reconcile with their spouse.

In evidence to a committee in the other place last year, David Hodson OBE, a distinguished family lawyer and spokesman for the Law Society, argued strongly for a 12-week litigation-free zone. He told the committee:

“We are very keen for there to be a period of reflection and consideration, which is what we had in the 1996 legislation in another form, to give an opportunity to pause, reflect, talk, maybe to have counselling, maybe in some cases to have reconciliation and maybe for one party to get up to speed with the other party. It is the constant experience of divorce lawyers that one party may have come to terms with the ending of a marriage before the other, so we are dealing with a very different emotional timetable. This three months will not be of any prejudice. If urgent applications have to be made for interim provision, that is fine. It will not affect children or domestic violence, which are always separate proceedings. It just is a litigation-free zone for three months.”—[Official Report, Commons, Divorce, Dissolution and Separation Bill Committee, 2/7/19; col. 9.]

Writing into divorce law the concept of a three-month litigation-free period will send a vital signal of hope to divorcing couples that perhaps they can work out their differences. It will give them the time and space to attempt to do so. Most of the debate on the Bill has focused on the barriers to divorce which couples face when their marriage has broken down, but not much time has been spent discussing how many couples reconcile and want to have a strong marriage.

I do not think I need to remind the Committee of the impact of family breakdown in the United Kingdom. We have one of the highest rates of family breakdown in the developed world. Surely this shocking fact places a duty upon us, as legislators, to do something to keep families together if possible. We all recognise that some marriages are unsavable but the Government should not focus on those alone. In addition, we must do all that we can to save marriages which are savable. They exist: why else would we have a proliferation of marriage counselling services? Does our own experience of marriage not tell us that, too? Many marriages go through rocky periods where the spouses, and their family and friends, fear that the writing is on the wall. But then conversations take place, apologies are offered and accepted, and changes are made to behaviour and circumstances—and a few years later, the couple are happier than ever. Let us do something for them, not just the ones where all hope is lost.

Baroness Deech Portrait Baroness Deech (CB)
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My Lords, the phrase “the heat of the battle”, just used by the noble Lord, Lord Morrow, provides a very succinct and appropriate introduction to my amendment. Everyone who has spoken so far has been in agreement. We support the institution of marriage and civil partnership. We want people to be stable and happy, to avoid disputes, and to provide security and warmth for their children. We differ only on the detail of how best to do it.

The difference between the context of today and that of the last time divorce was debated is the social context: more varieties of relationship, more avoidance of marriage, less disapproval when things go wrong, and more individualism within and outside of the couple’s relationship. The enduring problem is the effect on children of the break-up and how to cope with the dismantling of the housing and financial structure created by the parents. They used to say, “Marry in haste, repent at leisure”; this Bill will put an end to that. It will be “Marry at leisure”—because so many people prefer to cohabit first—and “Repent or divorce in haste”.

I accept that the wish of nearly everyone is to remove as much dispute as possible from the divorce process: to get it over and done with, as quickly as possible, to reduce the pain. It is in that spirit that I am introducing Amendment 20. In their good intentions, the Government have put the cart before the horse. Divorce, whatever its basis, will be over and done with perhaps in weeks or months. But the financial settlement for the couple and their children will have a lifelong effect and is likely to take much longer to arrange than the divorce. It will contain all the bitterness and antagonism that this Bill tries to remove from the substantive divorce.

I have spoken many times about the iniquities of our outdated financial provision law and I will not rehearse them here, save to remind noble Lords that distinguished lawyers—and more importantly members of the public—find that law uncertain and overly judge-made, with little resemblance to the governing statute. The law has no public input, remains unreformed for half a century of social changes and is very costly. I have a list of cases where the legal costs amount to half or more of the couple’s assets. We must also remember that there is no legal aid, as the noble Baroness, Lady Chakrabarti, has reminded us. Those who must represent themselves are left to flounder without even the most basic knowledge of what principles of division they should adopt.

Children’s needs are neglected while the adults fight. Only this week, the Times reported that one-third of separated parents are avoiding child payments. The Government will not succeed in removing hostility from the divorce proceedings unless they bring the financial provision law into line. It is almost oven-ready, as they say, as a few years ago the Law Commission drafted a Bill to put prenuptial agreements on a statutory basis. All who know Scottish law can see that its system is far better, cheaper and fairer, with much less recourse to litigation.

I have on several occasions set out proposals for reform, now taken up by the noble Baroness, Lady Shackleton, in her Private Member’s Bill—the Divorce (Financial Provision) Bill. She is unable to be in her place at this moment, but she is in full support of everything that I am saying.

With the Government’s Bill before us relating to substantive divorce as distinct from the money element, there are further urgent reasons to achieve reform of the financial element of divorce. I will set these out, as they underlie my amendment. In brief, there is no point in trying to achieve the aims of the divorce Bill—to make divorce less acrimonious and harmful to children—if the laws relating to the division of money on divorce remain as uncertain, expensive and acrimonious as they are. Research has shown that the quicker the divorce, the less likely the parties are to come to an agreed settlement, and that they will be more likely to settle on financial matters when more time has elapsed. This does not augur well for consensus in the proposed new law.

Twenty-six weeks is a brutally short period, after which one can well imagine that the unsuspecting spouse is still in the house, reeling with shock, utterly without plans about where to live or how to manage in the future, and without legal advice. The time taken to reach financial settlement is often far longer than the divorce itself, and even more prolonged if the couple cannot agree and must go before a judge. Financial orders can take years, as we read recently in the media about the highest in the land. It is not advisable to apply for the decree absolute, or final divorce order, until the finances are settled, as there may be tax disadvantages if there is a considerable gap between the end of the marriage and the consequential financial transfers.

As explained to me by that experienced noble Baroness, Lady Shackleton, the court can adjudicate capital only when a conditional decree—what we used to call the decree nisi—has been obtained. The Bill enables a conditional decree to be obtained faster, but disengagement from marriage can occur only when finances are sorted. Thus the acceleration of the decree is valuable only if the law relating to finance is overhauled, and that too can provide some certainty.

Moreover, if a spouse is not satisfied with the financial settlement on offer at the time of a conditional decree, he or she may apply for the final divorce to be postponed. This is provided for in the Matrimonial Causes Act 1973 and carried over into the Bill, paragraph 10 of the Schedule to which says that

“the court hearing an application by the respondent … must not make the divorce order final unless it is satisfied”

that there should be no

“financial provision for the respondent, or … that the financial provision”—

the offer—

“made by the applicant … is reasonable and fair or the best that can be made in the circumstances.”

Again, the quick divorce may be thwarted by a spouse who is not happy with whatever has been offered and wishes to delay matters.

The reality is that there will be more hardship and uncertainty when dissolution arrives after six months, without time to reach agreement or secure orders relating to housing and money. These issues cannot be ignored. A more ordered, rapid and predictable means of settlement of financial provision might significantly reduce the negative impact of divorce on children, more so than the ground of divorce itself.

The only two countries in Europe which have divorce laws as speedy as ours are set to be Sweden and the Netherlands, with notification being the norm in Sweden. However, their laws about finance are default automatic equal post-marital property division, prenuptial agreements and no ongoing maintenance except in exceptional circumstances. Orders about money and children can be made before the divorce. In the Netherlands, if there is agreement the divorce can be instant; if not, a court appearance is necessary, a parenting plan is required and maintenance is only short-term. Prenups are respected.

One can conclude that the six-month notification process can work without escalating the rate of divorce, but only if there is a fixed and certain property regime, such as in California, Sweden, Scotland, the Netherlands and most of Europe, enabling spouses to know exactly what their entitlement will be even before the dissolution. That is what we need here if no-fault divorce is to live up to its name. Without reform of financial provision, we are undermining the purposes of this Bill.

To that end, I have tabled this amendment requiring the Government to carry out a prompt review of our law on financial provision and to consider a more certain, less costly regime, with priority for children up to 21 and, like Scotland, a statutory basis for prenups, equal division of assets and shorter-term maintenance. The opposition to any reform comes principally from the Bar. I have been talking about this for 40 years and am yet to hear a member of the Bar come forward with a single proposal for reform in this field. I know why; I am sorry to say that there is a section there with a vested interest in keeping the law as uncertain and unpredictable as it is. I get letters from the public only begging for reform whenever I call for it in public. I hope noble Lords will support it.

Lord Walker of Gestingthorpe (CB)
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My Lords, the noble Baroness, Lady Deech, has spoken so fully and clearly on her amendment that it is difficult to find much to say in support of it without repetition. However, three points are entitled to a bit of expansion or repetition: first, prenuptial agreements; secondly, the extraordinary flexibility—or, one might say, disarray—of the reasons the court has to take into account at present in making a financial provision order under Section 25 of the Matrimonial Causes Act 1973; and, thirdly and lastly, the suggestion, which the noble Baroness modestly did not refer to, that her drafting of this amendment shows a degree of favour for her own preferred solution to the very difficult problem of general rules for financial provision.

I will take these points in turn. First, on prenuptial agreements, in the early days of divorce, the notion that an engaged couple might think about and discuss a future divorce was regarded as so shocking that it was ruled in English law as a matter of public policy that a prenuptial agreement was unenforceable. That rule has gradually diminished in importance and has certainly now disappeared, as was confirmed by the Supreme Court of the United Kingdom in the important case of Radmacher v Granatino about 10 years ago. What the Supreme Court did in Radmacher v Granatino was to take account of the premarital agreement, not to enforce it.

The suggestion is—and it is a powerful suggestion—that the courts should now go further and treat any premarital agreement as to the division of property and resources on divorce as being valid and enforceable so long as it was entered into fairly and so long as it was based on full disclosure of assets by each side of the marriage and full access to independent legal advice for each partner to the marriage. The Law Commission has made a very clear recommendation to that effect, which was in striking contrast to its failure to agree any other part of the changes that might usefully be made to financial provision.

Secondly, turning to the court’s discretion under the existing law as to what financial provision to make, there is an extraordinary provision that has been in force for many years. Section 25(2) of the Matrimonial Causes Act 1973 sets out a confusing list of eight disparate factors with no clear hierarchy or pecking order between them and no clear guidance to first-instance judges as to how they are to take account of these eight disparate factors in ordering financial provisions. Moreover, these eight factors were there long before 1973, since the 1973 Act was, of course, a consolidating Act. It has been very difficult to provide reliable and clear guidance to first-instance judges who have had to deal with these matters, sometimes on inadequate presentation of the facts and considerations in order to do justice.

In the case of White v White, which was decided about 20 years ago, the Law Lords, as they then were —and since then the Supreme Court—did their best to spell out, of the eight disparate factors, some sort of coherent code to be followed. The top court of this country has made heroic efforts to do that, but the result has been, I regret to say, singularly disappointing. It is also necessary to try to relate these factors, which have been part of the law for half a century, to the very different social conditions that we have today.

Surveys and research undertaken by numerous bodies—some working in conjunction with the Law Commission—have shown that there are wide variations in the way the eight factors in Section 25(2) are applied in different parts of the country and by different judges in the same parts of the country. That is not good for the administration of justice. It adds further stress and expense to what is in any event a sufficiently stressful and expensive procedure, especially if one has to take account of the possibility of appeals to higher courts because of the different ways in which the discretion is exercised. By contrast, the new rules for financial provision in Scotland, which are much clearer and which limit much more the extent of judicial discretion, are working well, as a recent survey has revealed.

Thirdly and finally, it has been suggested—I think politely—that the noble Baroness’s amendment is tilted in favour of her own views as to the amendments that should be made to the law. One simple answer to that is that it would be unsurprising if that were so, because she has of course spent a great deal of time thinking about it. However, she has been somewhat modest about the fact that they are not only her own views. The points mentioned specifically in her amendment, including the rule on prenuptial agreements, are not simply her thoughts. She was too modest to mention the fact that they have been embodied in two Bills which passed twice through all stages in this House without a single adverse vote, but which have never passed into law because neither Bill succeeded in finding a sponsor and getting through the House of Commons before the end of the relevant Parliament. Therefore, the matters specified in the amendment reflect the views which have twice been before this House and which have twice been approved by it, without becoming law. I support the amendment and commend it to your Lordships.

Lord Beecham Portrait Lord Beecham (Lab)
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The provisions of Amendments 7 and 17A clearly relate to an important aspect of matrimonial proceedings; namely, the financial settlement. The amendments seek to ensure that there are no discussions about such financial settlements for 20 weeks unless both parties agree. However, does this not illustrate the need for legal advice to be available to the parties, or at any rate to at least one of the parties, in the situation of a divorce? I understand that attempts were made to amend the Bill in that respect, but it was ruled that it was not possible to do so. However, will the Minister undertake to look again, or to persuade his colleagues in the Government to do so, at the issue of providing legal aid for matrimonial matters, particularly of this kind, where one party may well have insufficient resources to procure the necessary advice in this important area of the consequences of a divorce?

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, I very much support Amendment 20, which the noble Baroness, Lady Deech, spoke to. Not very long ago, I got a fairly impassioned letter from a gentleman I knew who had recently been involved in a divorce. He said that one of the great difficulties in approaching that, which he found by no means easy, was that it was not easy to find out what was likely to happen in relation to finance, and that it was extremely difficult to guess. The reason for that primarily is that the present structure involves a very large amount of judicial discretion. Those of your Lordships who have had the experience of prophesying how a judge will react will understand the difficulty that you encounter with that kind of thing.

Discretion, as I think Lord Bingham said, is a departure from the rule of law, because the discretion becomes the rule not of law but of the judge’s wisdom or lack of it. I remember the old judge in the Court of Session when I first went there: Lord Carmont. He used to say that if you give a thing to a man’s discretion —he was not thinking of women at that time—you commit it also to his indiscretion. The limit of discretion is quite wide.

I thought about trying to do something about this in 1996, but I concluded that it was too difficult to try to mould it to what I was trying to do then. It is probably right that it should not be attempted as part of this Bill. On the other hand, it is mightily necessary to get on with it and get a framework that can be used in the majority of cases. It is true that some discretion may be required—you do not want the framework to be too rigid—but you want it to be fairly clear that this is the way the thing will work unless there are special reasons requiring the exercise of judicial discretion.

We must get on to this soon. I know that it is difficult; many times have I encountered a situation where, if you have something difficult to do, you put it off until tomorrow. That is not the correct thing to do in this case. It is absolutely essential that this should be dealt with now; I understand that it is likely that such steps are being taken. Let us not be too afraid of it; let us have a good try at it and try to put a framework in position. I know that some people doubt it and wish to exercise their own discretion—it is always good to do that if you are confident in yourself—but it is much better for the people who are the subject of this jurisdiction if they know, and can come to an early conclusion about, what is likely to be the case in their particular situation.

I strongly support the amendment and wish that the Government will get on with it with the greatest possible speed. They are very good at getting things done quickly. They will get very important things done within a year; let us hope that they can get this done in, let us say, six months.

Lord Grantchester Portrait Lord Grantchester (Lab)
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I rise to speak briefly in support of Amendment 20, to which the noble Baronesses, Lady Deech and Lady Shackleton, and the noble and learned Lords, Lord Mackay and Lord Walker, have put their names. From a lay, non-legal perspective, it has much to commend it.

While political parties and Governments hesitate to legislate on family matters, in particular divorce, the Matrimonial Causes Act 1973 has persisted over the legal landscape of marriage and divorce without being substantially updated by statute for far too long. For example, in recent times, uncertainty around the implementation in law of prenuptial agreements has resulted in bringing misery to many families, adding to the unpleasantness so often experienced at the difficult time of separation.

The noble Baronesses, Lady Deech and Lady Shackleton, are to be congratulated on their sustained attempts to bring greater legal certainty to couples through their Private Members’ Bills on financial provision on divorce. Resolution around finance should not be dependent on which judge may be allocated to a case, which even now can predictably lead to wildly differing quantitative outcomes. New Clause 1(c), proposed by Amendment 20, could lead to one party seeking to add financial pressure through the cost burden of legal pursuit and representation, knowing full well that the other party will have to bear a proportion, often a large one, of any litigation.

Although some may argue that a deep examination of each individual situation will bring forward the relative merits of each case and each issue, custom and practice is not a useful or fair guide to society’s changes in family life. It should be a matter for Parliament, not the legal profession. The next legal battle is already developing over cohabitation. The decision to conduct a review of sections of the Matrimonial Causes Act 1973 under proposed new Clause 1 must be taken by the Government.

I am grateful to the noble Baroness, Lady Deech, for tabling the amendment. I am also grateful to the other signatories to the amendment for sharing their experience and expertise with the Committee, as well as for highlighting the areas for review under the second part of the amendment. It is certainly unfortunate that the noble Baroness, Lady Shackleton, is unable to be in her place.

I urge the Government to think carefully about this amendment.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames
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My Lords, I will first address Amendments 7 and 17A, tabled by the noble Lord, Lord Farmer. These would prevent the commencement of financial provision proceedings, except for maintenance pending suit, for 20 or even 12 weeks on his alternative, in the absence of the consent of the other party.

I suggest that these amendments—like earlier amendments that restrict the choice and autonomy of parties to a marriage that has failed—are patronising. As I understand it, they are supposed to allow for periods of reflection. I am all for periods of reflection where they will do any good, but they usually do good if they happen before any divorce proceedings are under way.

There are many cases where, by the time divorce proceedings are commenced, a financial provision application has become urgent. This is particularly so where one partner to a broken marriage has remained in an unhappy marriage or is enduring financial hardship, and even in cases where both parties agree to a divorce, but not to the timing or the form of financial provision. One example is when a home should be sold.

It is very important not to hold up financial provision applications on a blanket basis, given that parties frequently stay together long after their marriages have in reality failed, either because they have to live together in one home for financial reasons, or because they decide to stay together for the sake of their children. Why should parties in their position then be made to wait further for financial relief, when delay may cause considerable hardship and unhappiness?

There is, of course, no compulsion on a party to commence financial provision proceedings immediately. I suggest that the timing should remain within the choice of the parties and—where there are such—their advisers.

There are many other cases where, by the time the proceedings are commenced, the parties are living apart. One spouse may be with someone else. Generally speaking, such parties know of the issues between them relating to financial provision before proceedings are brought.

Take for example a currently well-known case. It would be appallingly high-handed to tell a practicing QC, married to a prominent figure—who was very publicly living with someone else, whom he had committed to marry and who was expecting his child—that she would have to delay for 20 weeks before taking steps to secure financial provision in divorce proceedings without his agreement.

There is no good reason to debar financial proceedings once divorce proceedings are under way, so I oppose these amendments.

On Amendment 20, which calls for the review to which the noble Baroness, Lady Deech, has spoken so eloquently, I agree that a review of the law on financial provision is desirable. However, I do not think that the statutory requirement for such a review sits comfortably within this legislation, which is, and should be, limited to removing fault from the divorce process.

I take the view, eloquently expressed by the noble and learned Baroness, Lady Butler-Sloss, that the process of divorce ought generally to be kept separate from issues of financial provision. I would be happier for the Minister to commit to commissioning, in the near future, a wide-ranging consultation with a review of financial provision on divorce, with a view to updating an area of law that has become, for many, out of date and out of step with modern social mores.

I find in the terms of the noble Baroness’s amendment, borne out in her speech, and discerned and spoken to by the noble and learned Lords, Lord Walker and Lord Mackay, an element of prejudgment of what should come out of such a review. I am not sure that picking out the desirability of importing something like the Scottish provisions, the term of periodical payments and the enforceability of prenuptial and post-nuptial agreements, into what should be a wide-ranging and full review is the best path to conducting it.

I do not share the noble Baroness’s cynicism about the Bar, my profession, nor her view that no barristers support reform of the law in this area. Indeed, I support reform of the law in this area, in many ways on the same basis that she does. I certainly support her view that the law on financial provision is too complex and expensive. I endorse her view and that expressed by the noble and learned Lord, Lord Mackay, that there is scope for some kind of a framework or model for use in the generality of cases.

However, there is room for discussion on the extent of judicial discretion, as the noble and learned Lord, Lord Mackay, pointed out. On the term of maintenance payments, I am particularly concerned about the position of older applicants or those in ill health who would normally expect and be entitled to long-term provision. Cutting maintenance off in the short term might be a bad idea.

While I support the idea of a general review of financial provision, I hope the Bill will not be amended to incorporate a statutory requirement in the terms of the noble Baroness’s amendment—but I would welcome a commitment from the Minister to carry out a consultation and review.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I begin with Amendments 7 and 17A tabled by the noble Lord, Lord Farmer, which seek to allow one party to block applications for financial provision on divorce throughout all the new 20-week minimum period referred to in the Bill. That is an entirely new restriction for which we have seen no justifying evidence. Nor do we know the potential financial impact it could have on people’s lives. These amendments would still allow financial applications by agreement of the other party, of course, and would also allow applications for maintenance pending suit, but financial orders are not there just for one or the other party to the marriage. They are also there to make sure that, for example, the children’s needs can be met. I appreciate that applications for financial provision in respect of children can be made at any time under Schedule 1 to the Children Act 1989, but we hardly want to promote a solution that pushes people towards yet a further set of legal proceedings.

There is no reason to delay applying for an order that in most cases can come into effect only when the divorce order is made final. Of course, the financial adjustment between the parties has to be made at some stage, but it is in no one’s interests to restrict when an application can be put in train. Indeed, it is worth noting that only once an application has been made can the court direct the parties to undertake full and frank disclosure of their assets and liabilities. Furthermore, these amendments could have the rather perverse effect of allowing one party to effectively coerce or control the other by frustrating attempts to secure a financial settlement and essentially to use that as a delaying tactic.

We are not in favour of this amendment at all. The Bill seeks to set out a very clear revised process for divorce within the existing legal framework. That is what we are anxious to implement, without being diverted by additional qualifications or controls.

I turn to Amendment 20 tabled by the noble Baroness, Lady Deech. As I said at Second Reading, the Government are considering how to approach any reform of the law with regard to financial settlement. My officials on this Bill are already at work on how best to take this forward. Drawing on that, it will be necessary to essentially lay the parameters for a review that will require, among other things, knowledge and expertise from outside government, to build an evidence base and to assess the problems that the present situation creates.

I hear what is said about the wide diversity of awards that can be made under the existing law, and the potential benefits of embracing a system such as that reflected in the Family Law (Scotland) Act 1985 as a solution, but it is not a case simply of abandoning the present process of financial provision in the law of England and Wales and embracing that of another jurisdiction. There will be a great deal more than that to do. Therefore, to set a fixed period for review is not, I suspect, helpful, because we are going to have to produce very robust recommendations and proposals that will pass in this House and the other place, and that will require detailed consideration and detailed evidence. I cannot say that such a process would be concluded within a year.

At this stage I do not suggest that the Government will embrace the sort of solution reflected in the Scottish legislation. It may have been relatively successful there, but there are issues that arise in that context and which will arise when we come to address prenuptial agreements, and assets acquired before the marriage, and there will be a diversity of views on that.

We consider this Bill a necessary first step to reducing conflict in marriage and divorce. We consider it appropriate to commence, when we can, a review regarding financial provision upon divorce. I hear what has been said across the House about the scope for such a review, but setting the parameters of a review before assessing what needs to be done is not the way forward. At this stage, in light of the commitment I have sought to give the House about commencing a consideration of a review, I invite the noble Baroness to withdraw her amendment.

Lord Beecham Portrait Lord Beecham
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Can the Minister respond to my request for the Government to look again at the issue of legal aid in matrimonial cases?

Lord Keen of Elie Portrait Lord Keen of Elie
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The matter of legal aid is not within the scope of the Bill, and it is not the present intention to address it.

Lord Farmer Portrait Lord Farmer
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My Lords, I thank noble Lords for their contributions. I am saddened that mine was not welcomed more than it was, but at this stage I beg leave to withdraw my amendment.

Amendment 7 withdrawn.

Baroness Deech Portrait Baroness Deech
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I have not withdrawn Amendment 20 yet.

Baroness Finlay of Llandaff Portrait The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
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For the convenience of the House, when the amendment tabled by the noble Baroness is called, she may then have the opportunity to speak to it.

Amendments 8 and 9 not moved.

Clause 1 agreed.

Amendment 10

Moved by

10: After Clause 1, insert the following new Clause—

“Recording lack of consent

After section 1 of the Matrimonial Causes Act 1973 (divorce on breakdown of marriage) insert—“1A Supplemental provision in cases where one party does not consent(1) In the case of an application by only one party to the marriage for a divorce order, it must be recorded on the divorce order if the other party to the marriage did not consent to the divorce.(2) For the purposes of subsection (1) the other party shall only be taken to not have consented to the divorce if they have made this known to the court prior to the divorce order being made final.””Member’s explanatory statement

This would allow a party to a marriage who did not consent to divorce to have it on record.

Baroness Howe of Idlicote (CB)
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My Lords, the modest but important point of this amendment would be to permit a spouse who does not want to divorce to have that fact placed on the public record. As I explained at Second Reading, I am concerned that this Bill facilitates a significant shift in power from the respondent to the petitioner, without proper regard either for the best interests of the respondent or any children involved.

This Bill as defined is a petitioner’s charter. Under it, the departing spouse will be able to apply for divorce without citing any reason and will get their divorce in six months. The other party to the marriage will not be able to do anything about it. They will find themselves on a high-speed conveyor belt to divorce with no way of slowing it down, no opportunity to contest, no way to seek justice and not even a reasonable period to prepare themselves for life after the marriage ends.

New subsection (3) in Clause 1 makes it clear that the court cannot seek to examine or verify the departing spouse’s assertion that the marriage has broken down irretrievably. The other spouse may think it is retrievable —and may be right—but under the Bill their option must be ignored completely by the court. Like many couples who contemplate divorce, the right kind of counselling advice may get them through their current difficulties and they might emerge with their relationship strengthened and their understanding deepened.

I suspect many noble Lords will know of those who have experienced such times, but this Bill totally disempowers spouses trying to save their marriages. For some in such circumstances—perhaps for reasons of faith or other personal reasons—being able to record that it was not they but their spouse who sought divorce will be important mentally, emotionally and perhaps even spiritually, but the Bill allows no recognition that it was their spouse who walked away, no acknowledgement of the wrong the innocent party has suffered.

A fundamentally different approach to the respondent is required and I hope that the Government will register the concerns that I have set out today and at Second Reading in this regard. I do not really regard this modest amendment as a satisfactory solution to the problem but it is a way of drawing attention to it. People in such a situation should at least be able to have a line on the divorce order to say that they did not consent to the divorce. If you are stripping people of the right to contest a divorce or get the justice of their situation recognised, this is the least we can do. I beg to move.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, the Bill introduces the new option of both parties to a marriage making a joint application for divorce, which will allow them to approach divorce on the basis of a mutually agreed decision to bring a legal end to their marriage.

Consent in the context of divorce is a sensitive issue and I appreciate that it is unfortunate when one party does not wish to become divorced. The changes within this Bill rightly recognise that marriage is a voluntary union of two people who both wish to be with each other and it is therefore a marriage, not a divorce, that requires consent. The current court decree made under the existing law does not record whether or not the divorce has been contested, and the present concern may proceed upon a misapprehension that being a respondent to a divorce means accepting the blame for the breakdown of the marriage. That is not the case. The existing legal process seeks to determine only that a decree of divorce can be granted following the irretrievable breakdown of the marriage.

The law itself does not—indeed cannot—say who, if anyone, was to blame for that breakdown. It would not be helpful to allow the respondent to come forward in circumstances where they were content to be divorced but wanted to make clear their views about the cause of the breakdown. That would not assist. Indeed, it could provide the foundation for greater disharmony than would otherwise be the case if we were to maintain the present provisions of the Bill.

Giving a married couple the choice to make a joint application strikes the appropriate balance in these circumstances, and I invite the noble Baroness to withdraw her amendment.

Baroness Howe of Idlicote
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My Lords, I am grateful to the Minister for what he has said. It is a probing amendment and has afforded me an opportunity to make an important point about speaking up for the respondent. I will reflect on the Minister’s response but, for the moment, I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

Clause 2: Judicial separation: removal of factual grounds

Amendments 11 to 13 not moved.

Clause 2 agreed.

Clause 3: Dissolution: removal of requirement to establish facts

Amendment 14 not moved.

Clause 3 agreed.

Clause 4: Dissolution orders: time limits

Amendments 15 to 18 not moved.

Clause 4 agreed.

Clause 5 agreed.

Amendment 19

Moved by

19: After Clause 5, insert the following new Clause—

“Report on the impact on divorce applications and marriage support

(1) The Secretary of State must publish an annual report on the impact of this Act on divorce proceedings and marriage, with the first report to be published no later than 18 months after the day on which this section comes into force.(2) The report under subsection (1) must include, but is not limited to—(a) the number of divorce applications made under the provisions of this Act by the sex and income of the applicant and respondent;(b) the number of married couples or civil partners who seek relationship counselling during the divorce process, broken down by the demographics of the parties and geographic location;(c) the number of children in the relationships subject to the divorce applications; and (d) a statement on the support services and marriage counselling available to married couples or civil partners as an alternative to divorce proceedings under this Act.(3) The report under subsection (1) must be laid before each House of Parliament.”

Lord Farmer Portrait Lord Farmer
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My Lords, I am not at all convinced by the Government’s family test statement for the Bill, which says that there will be next to no long-term impact on divorce rates and that marriage will be unaffected. They again draw on Exeter University:

“Concerns that the removal of fault will undermine marriage and prevent reconciliation are not consistent with the research evidence or international experience.”

As I said at Second Reading, research relied on by the Ministry of Justice found that marriage rates reduce by about 3% to 4% following the introduction of no-fault divorce, and the likelihood of divorcees remarrying declines by around one-third to one-half. As Professor Justin Wolfers says,

“the benefits of marriage (tying your spouse to a contract) are reduced in a no-fault world.”

Less marriage will tend to mean more cohabitation, an inherently less stable relationship form. The whole of society is affected when the contract of marriage becomes devoid of meaning.

How will it impact divorce rates? Such reform leads to an immediate spike in the divorce rate that apparently dissipates over time. Let us be clear: that spike is made up of people, adults and children. If couples are struggling to persevere, the introduction of no-fault divorce undermines an important cultural underpinning of assumed permanence to marriage which could push such marginal couples into divorce. I am not, of course, arguing that couples should stay together if there is irresolvable violence, abuse or conflict. It is unsurprising if the numbers drop back, given that people are marrying less and that the divorce rate is calculated as a percentage of married couples.

Because of the many and varied ramifications of family breakdown which we have heard about this evening, which include education failure, poor mental health in children, increased pressure on housing stock, loneliness and fatherlessness, which can lead to gangs and county lines, the Government should commit to tracking the trends that follow this legislation. It is very important to do so. It is not enough that the Office for National Statistics collects the data. That is not the same thing as the data being laid before both Houses. The Government need to publish reports on family stability, as they committed to do when the Welfare Reform and Work Act was discussed in this House.

History has shown that we need to pin the Government down when it comes to tracing family stability. During the passage of the then Welfare Reform and Work Bill, the coalition Government promised to introduce a new duty to report on worklessness and educational attainment. They said that

“alongside these statutory measures we will develop a range of non-statutory indicators to measure progress against the other root causes of child poverty, which include but are not limited to family breakdown, addiction and problem debt. Anyone will be able to assess the Government’s progress here. The Government are saying, ‘Judge us on that progress’.”—[Official Report, 9/12/15; col. 1585.]

We have gone backwards rather than forwards in this regard. The family stability indicator has been discarded in favour of measures that look at the quality of parents’ relationships. Of course, these are also important, but parental relationship breakdown is the forgotten adverse childhood experience. Even—and, perhaps, especially—when there is no conflict, it is very difficult for children to come to terms with their parents’ separation. In fact, when there is no conflict, it is harder to understand, so they blame themselves, and that is where much of the mental health harm comes from. There might be different data between different parts of the United Kingdom, perhaps between London and the new Conservative seats in the Midlands and the north-east of England. That could be instructive. It is important that the impact of this radical new divorce Bill is assessed and laid before Parliament. I beg to move.

Lord McColl of Dulwich Portrait Lord McColl of Dulwich (Con)
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My Lords, Amendment 19A is in my name. One of the headline Conservative Government commitments in the relatively recent past was abolishing the couple penalty. The couple penalty, noble Lords will recall, was the unintended fiscal incentive for a couple with children on low to modest incomes not to live together or marry because of the benefits that would be lost. Abolishing this was a headline Conservative manifesto commitment in the 2010 general election. At that time the Government’s primary concern with respect to marriage was the removal of obstacles to marriage, whereas today, their focus in this Bill seems to be on removing obstacles to divorce.

In this context, I have tabled this amendment for two reasons. First, I think that as the Government engage with this new task, it would be wise to pause to reflect on the progress made in relation to the earlier task of abolishing the couple penalty. Given both the importance of removing the couple penalty to help couples commit, and the potential for easier divorce to inflame the commitment problem in the presence of an ongoing couple penalty problem, it would be premature to prioritise making divorce any easier until we have dealt with the couple penalty problem.

Secondly, we must understand the impact of the couple penalty on divorce itself. If a couple on low or modest income manage to marry despite the couple penalty, they will none the less feel the negative impact on their marriage in that, if they were to terminate it, they would experience some fiscal benefits. For this reason, it is very important that we understand the impact of the couple penalty on divorce rates.

The main mechanism identified by the Government for addressing the couple penalty was the marriage allowance. A fully transferable marriage allowance was proposed by the Centre for Social Justice, commissioned by the Conservative Party and chaired by the right honourable Iain Duncan Smith MP in 2007, and adopted by the then Conservative Party leader, David Cameron.

Some upper- and middle-class people scoffed at this proposal, stating sarcastically that they got married for love. The idea that anyone would fall in love for fiscal reasons was plainly nonsense, and the suggestion that the purpose of the couple penalty was to assist in this regard only helped demonstrate just how out of touch with reality the wealthy scoffers were.

The point was simply that, when a couple fall in love and decide that they want to be together, they have a choice about what form their relationship should take. If formalising their commitment through a “till death us do part” marriage commitment would cause them to lose benefits, they would be more likely to formalise their relationship in some other, less stable way.

The point of dealing with the couple penalty was that, if the tax and benefit design had the unintended consequence of making it harder for couples on low to modest incomes to formalise their commitment through marriage, with all its benefits for adult and child well-being, the couple penalty was a bad thing and should be removed. However, at the beginning of the 2010 general election campaign, Mr Cameron explained that a fully transferable allowance could not be afforded immediately and that we would start with a provision allowing a non-earning spouse to transfer 11.6% of his or her allowance to an earner spouse. He added that he wanted the allowance to be increased and that he was sure that in the course of the Parliament it could be.

The marriage allowance was not actually introduced until the very end of the Parliament, in 2015, and then only as an even more meagre 10% allowance. It has continued to be just 10% ever since. At 10%, the marriage allowance is so small that it barely makes any impression on the couple penalty, which remains very considerable. In this context, we must assume that the couple penalty continues to act both as an obstacle to entering marriage and as a pressure for divorce.

As the Government have moved on to prioritising helping people to leave marriages with greater ease, there is now an urgent need for them to address the couple penalty problem in order both to remove an obstacle to marriage and to remove a strain on marriages that we must assume provides a fiscal incentive for divorce. If the Government want to get this Bill through, they would be well advised to use the Budget to significantly increase the marriage allowance in order to be seen to balance their efforts to help people to leave marriages more quickly with efforts to strengthen marriage.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, I put my name to the amendment of my noble friend Lord Farmer with the view that, if it is easy to produce those results, it might be quite wise to do so.

So far as the amendment of my noble friend Lord McColl of Dulwich is concerned, I noticed that he said that the Bill was intended to remove an obstacle to divorce, but I do not really think that that is a fair way to describe it. As far as I am concerned, the Bill deals principally with an unnecessary irritant to the relationship between divorcing parties. It does no good: it does not establish fault or anything of the kind; it just creates the possibility of renewed ill feeling as a result of a rehearsal of what one party to the marriage thinks about the other party. That is often not particularly flattering and certainly not particularly comforting, and removing it does not seem to remove an obstacle to divorce at all.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I begin with the amendment moved by my noble friend Lord Farmer. The requirement sought within the amendment to report annually on the number of divorce applications is unnecessary, as this data is already publicly available and published in the Family Court Statistics Quarterly.

The amendment also seeks a requirement to gather data on the sex of applicants for divorce. This is also unnecessary, as official statistics already break down the number of divorces per year by the gender of the applicant. In addition, the amendment seeks a requirement to collect data on the income of applicants. However, such data would be unduly onerous for the courts service to collect and, more so, unduly intrusive for the applicants to supply.

The amendment also seeks a requirement to report on the number of divorcing couples who seek relationship counselling during the divorce process alongside relevant demographic information. Such information could not be provided without forcing divorcing couples to declare it, thus introducing an unnecessary burden at what is already a difficult time for them. The choice to seek such counselling during the divorce process would be a personal one for those involved.

In summary, as much of the information referenced in this amendment is already publicly available, the requirement to report on it would be unnecessary. As regards the other kinds of information referenced by the amendment, they would be not only onerous to collect but raise very real issues around what is appropriate from the point of view of demand placed upon applicants for the divorce process. I therefore respectfully invite the noble Lord to withdraw that amendment.

I turn to Amendment 19A. The noble Lord, Lord McColl of Dulwich, is persuaded that marriage brings many social benefits. The Government agree. However, if a marriage is broken down irretrievably, there is no virtue for the family involved or society at large in it continuing. This amendment would mandate an annual report to Parliament, which I presume the noble Lord, Lord McColl, intends to complement the data sought by the noble Lord, Lord Farmer, in Amendment 19. However, it is not clear how the survey would operate or exactly what it would seek to demonstrate beyond, perhaps, interest in the married couple’s allowance.

Divorce is something in which society rightly takes an interest, but it is also a deeply personal and often distressing matter for the individuals involved. While I respect the courtesy of the noble Lord, Lord McColl, in proposing that participation in his survey would be voluntary and anonymous, the Government believe that such an invitation would be unnecessarily intrusive in any event. At worst, many of those questioned might feel that they were being asked to justify the state of the ending of the marriage, which strikes against the whole intention of the reform, for which it would appear to me that wide support has already been demonstrated in the House.

There is also an issue of the point at which the survey would be conducted. People’s perceptions of the divorce process will change between the time that they make an application and secure the divorce—or some time after, when they have gone through the process and been able to address it with the benefit of hindsight. The Government believe that this amendment would reintroduce an element of conflict into the divorce process. It would certainly be intrusive for those engaged in the divorce application. In these circumstances, we would not be prepared to accept it, so I invite the noble Lord not to press it.

Lord Farmer Portrait Lord Farmer
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My Lords, I am again saddened at the response from my noble friend the Minister. I may have misunderstood something but, to my knowledge, my amendment did not seek to find out any financial information. This report was to be put before Parliament so that it could respond to this Bill—the unilateral or no-fault divorce Bill—when it becomes law.

It is quite a big Bill on marriage to come through Parliament and become law. It is very important to me that Parliament can respond to the response to the Bill shown in marriages. How many people are getting divorced? Is it more? How many children are involved? What sort of support services are involved? Is there marriage counselling? There are all those things. It is important for both Houses of Parliament to look back and say, “Is this good? Is it working as we intended?” I am sure that my noble friend the Minister is right that this information is available here, there and everywhere. However, we want it brought back to us in one body related to this Bill.

Therefore, I am saddened at that response. Obviously, I will go no further on this occasion but this may come back on Report. In the meantime, I beg leave to withdraw my amendment.

Amendment 19 withdrawn.

Amendment 19A not moved.

Amendment 20

Moved by

20: Before Clause 6, insert the following new Clause—

“Review of operation of certain sections of the Matrimonial Causes Act 1973

(1) The Secretary of State must conduct a review of the operation of sections 25, 25A and 34 to 36 of the Matrimonial Causes Act 1973 (the “Act”) to determine whether they—(a) properly reflect the patterns of family life of the present day,(b) provide for a system which is reasonably predictable in its outcomes from case to case, and(c) act to exacerbate the costs of legal representation which must be expended by parties litigating thereunder.(2) The review must in particular consider—(a) whether it would be appropriate for provisions akin to sections 9, 10 and 24 to 26 of the Family Law (Scotland) Act 1985 to be incorporated into the Act to assist the court in its determination of the matters to which the court is to have regard pursuant to section 25 thereof,(b) whether the operation of sections 25 and 25A of the Act in relation to the quantum and term of periodical payments is appropriate in the context of changes in the labour market since their entry into force, (c) whether agreements between parties (or prospective parties) to a marriage in relation to their financial arrangements should be presumptively binding on the court,(d) whether the provisions of subsection 25(1) of the Act are of meaningful effect in the majority of cases, and(e) any amendments to sections 25, 25A and 34 to 36 of the Act which may be necessary in consequence of the review.(3) The Secretary of State must begin the review before the end of the period of six months beginning with the day on which this Act is passed.(4) The Secretary of State must lay before both Houses of Parliament a report of the conclusions of the review and of any proposals which it makes within one year of the commencement of the review.”

Baroness Deech Portrait Baroness Deech
- Hansard - - - Excerpts

My Lords, I thank the Minister for having spent some time with me and other supporters a week ago to discuss this. It was very constructive. If I do not press my amendment, it will be on the basis that he has given a commitment here to carry out a broad consultation on financial provision law, and indeed a speedy one. I offer a word of warning. I am worried about strong lobby groups that will try to take this over. Some of my best friends are barristers—I studied with them, taught them, regulated them, and I have been represented by them—but the eyewatering amounts that they charge in divorce is upsetting. I am married to a solicitor and I know that they get in on this act as well. I am not saying that they do not deserve it, but for poor couples who have no legal aid the legal costs are exorbitant. That is why I am worried about a consultation that is too heavily weighted towards the views of the legal profession. We need to hear from women’s groups and, indeed, from men; we need to hear from people who have been through a divorce—members of the public—and how it has affected them. We need also to remember that there is more than one feminist view on this. Indeed, as we might expect, there is a split between feminists on quite what the right outcome should be, financially, at the end of the divorce. I am grateful that the Minister has undertaken to have a wide-ranging and speedy review, so that the financial law will eventually get into line with the new divorce law.

Amendment 20 disagreed.

Clauses 6 to 9 agreed.

Schedule: Minor and consequential amendments

Amendment 21 not moved.

Schedule agreed.

House resumed.

Bill reported without amendment.

House adjourned at 9.33 pm.

Divorce, Dissolution and Separation Bill [HL]

(Committee: 1st sitting (Hansard))
(Committee: 1st sitting (Hansard): House of Lords)
Tuesday 3rd March 2020

(1 year, 1 month ago)

Lords Chamber

Read Hansard Text
Ministry of Justice

Committee

Clause: 1: Divorce: removal of requirement to establish facts etc

Amendment 1

Moved by

1: Clause 1, page 1, line 7, leave out from “court” to end of line 15 and insert “to initiate the process for an order (a “divorce order”) which will dissolve the marriage on the ground that the marriage has broken down irretrievably.

(2) The divorce process under subsection (1) consists of three stages and must be accompanied by—(a) for the first stage, a statement by the applicant or applicants, if a joint application, on the filing of the application for a divorce order that they think that the marriage may have broken down irretrievably,(b) for the second stage, a statement by the applicant or applicants on applying for a conditional order asserting that the marriage has broken down irretrievably, and(c) for the third stage, an application for the final divorce.(3) The court dealing with an application under subsection (2)(c) must—(a) take the statement given under subsection (2)(b) to be conclusive evidence that the marriage has broken down irretrievably, and(b) make a final divorce order.”

Lord McColl of Dulwich Portrait Lord McColl of Dulwich (Con)
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My Lords, I am very pleased to speak to Amendment 1 in my name. The Government have said there should be a minimum timeframe between petition and conditional order

“to give couples sufficient time to consider the implications of the decision to divorce and to agree practical arrangements for the future.”

They acknowledged that this is especially important because the digitisation of the divorce process could result in some parties rushing to divorce before the prospect of reconciliation has been fully explored. Importantly, they argue that the minimum timeframe provides

“opportunities for couples to change course.”

There are 27 references to reconciliation in the Government’s document, which includes the statement:

“But the law can—and should—have a role in providing couples with an opportunity to reflect on that momentous decision and to pull back from the brink if they decide that reconciliation is achievable.”

All of the Government’s sentiments about the proposed reforms sound well intentioned. However, proposed new Section 1(2) provides that a respondent who receives notice at the start of the divorce proceedings will do so with a statement from their spouse that

“the marriage has broken down irretrievably.”

The law is thereby designed to begin the divorce process with a statement that makes it inevitable. I cannot see how a respondent would feel that such a statement does indeed provide opportunities to change course. They will feel that the hammer has already fallen.

I do not believe that the wording of proposed new Section 1(2) is in any way consistent with the hopes for reconciliation expressed by the Government’s Reducing Family Conflict paper. A statement of irretrievable breakdown must clearly come at the end of the process, immediately prior to divorce, but designing the law in a way that asks one party to a marriage to make this very strong assertion right at the start of the divorce process is counterproductive.

We must never lose sight of the fact that just because a divorce process begins does not mean it will conclude in divorce. For some couples it will become a means of highlighting a problem that can then be addressed, such that the divorce is never concluded and the marriage endures. In this regard, as I mentioned in my Second Reading speech, it is noticeable that between 2003 and 2016 the court records show that each year, on average, 12,702 more divorce processes were initiated than ever concluded. This underlines the importance of not assuming that it is all over from the beginning of the divorce process and the need for the law and the Government to do everything they can during the divorce process to help save as many marriages as possible.

Quite apart from anything else, I do not believe that the current wording of proposed new Section 1(2), requiring a statement of irretrievable breakdown from the outset, engages with the requirements of the Government’s family test. It fails to answer question five of the family test:

“How does the policy impact those families most at risk of deterioration of relationship quality and breakdown?”

The policy of asking one party to a marriage to deliver their spouse a statement of irretrievable breakdown before any attempt at reconciliation within the divorce process plainly will have the worst possible impact on those families most at risk of deterioration of relationship quality and breakdown. It will make reconciliation more difficult and divorce more likely than if the law were to ask the unhappy spouse to register the problem and commence a divorce process in terms that do not effectively make it sound as if it is too late to consider reconciliation.

My Amendment 1 makes very clear the three stages of the process—application, conditional order and final divorce order—but proposes a fundamental change that, I hope the Minister and noble Lords will acknowledge, is in line with the government intentions set out last April and the family test. I propose replacing the first three subsections of proposed new Section 1. Under my Amendment 1, the initial application—the petition, in the current language—would be accompanied by a statement that the petitioner thinks the marriage may have broken down, but not definitely irretrievably. This would be the start of the minimum time period. My intention was expressed by Relate, which in the consultation process said

“that this could support opportunities for reconciliation by removing any sense that divorce was a ‘foregone conclusion’.”

It would give the respondent an opportunity to suggest reconciliation with some hope of changing course.

The Government have indicated their support for reconciliation by stating that they intend to keep Section 6 of the Matrimonial Causes Act, in which legal practitioners must certify whether they have discussed the possibility of reconciliation. However, the reforms proposed by this Bill are not aiding any attempt at reconciliation when the application for a divorce must state at the very start of the process that the marriage has broken down irretrievably. Under my amendment, it would be at the conditional order stage—or decree nisi, as it is now—that the party or parties seeking a divorce could make a statement that the marriage has irretrievably broken down, a statement that is more reasonable to make after a time of reflection and conversations on reconciliation than before. There would then be a six-week period, after which the party or parties could apply for a final divorce order or decree absolute.

I end where I started. The Government say that the

“key policy objectives are to ensure that the decision to divorce is a considered one, with sufficient opportunity for reconciliation.”

I am of the view that the proposal before us in this Bill mitigates against any opportunity for reconciliation. Therefore, I have put before your Lordships an alternative that opens up the room for dialogue between partners to a marriage. I beg to move.

Baroness Howe of Idlicote (CB)
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My Lords, I am pleased to speak in support of Amendment 1 in the name of the noble Lord, Lord McColl, which I very much hope the Minister accepts. This amendment has two important virtues.

First, as has been noted, it creates an environment for the 20-week period during which there is a chance for genuine reconciliation. The divorces between 2003 to 2016 tell their own very important story. It must be right not to condemn the process to failure from the start by encouraging a statement of irretrievable breakdown without the need for any prior warning. Under the current law, the only way to move to irretrievable breakdown in the absence of unreasonable behaviour, such as adultery, is through a prolonged period of separation, such that a formal notice of divorce cannot come as a surprise. By contrast, under this Bill, being presented with a statement of irretrievable breakdown could be the first you know of a difficulty. How did such an extraordinary proposal get past the family test? I rather suspect that we are still waiting for the family test to take place.

The second virtue of this arrangement is that it treats the respondent with greater respect. One of the things that disturbs me most about this Bill is that it seems to have been fashioned with the interests of one party in mind—the petitioner—and demonstrates little or no regard for the respondent, or any children who might be caught up in the divorce process. It currently stands as a petitioner’s charter. The Bill gives the petitioner the power to suddenly announce that the marriage has broken down irretrievably, from which point there is absolutely nothing that the respondent can do to get any kind of fair hearing if they disagree. While this amendment does not completely reverse the shift in power from the respondent to the petitioner, it will at least give the respondent the opportunity to have a voice and express their perspective during the reflection period in the limited but important sense that the termination of the relationship is, for that time, not a foregone conclusion. The petitioner has made a statement that they think the relationship may have broken down but there is, in this statement, something of a question and an opportunity for the respondent to engage: they are not being presented with a fait accompli.

It may be that at the end of the 20-week period the response of the respondent has not resulted in the petitioner feeling that the marriage can continue. It may have brought them both to a place where they conclude that they need to make a statement of irretrievable breakdown but, crucially, the respondent will have been given a period of time during which they will be fully aware that the future of their marriage is in the balance and during which they can take steps, if they wish to do so, to see whether the relationship can be saved.

As our law, in providing the option of marriage, gives a couple the opportunity to make a lifelong commitment, something would be very wrong if that same law allowed one party to make without any prior warning a statement of irretrievable breakdown, from which point the other party would have no kind of credible voice to express a contrary view. This cannot be right, which is why I strongly support Amendment 1.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss (CB)
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My Lords, I was a family judge for 35 years and spent a great deal, if not most, of my time dealing with families who were divorcing. This is an excellent Bill and few of the amendments ought to go through, except for those of the noble Baroness, Lady Chakrabarti, on the Henry VIII clauses, which require consideration.

The view that I take about this Bill is strongly supported by Exeter University and the Nuffield Foundation’s detailed research, led by Professor Liz Trinder at Exeter, and by Resolution, which has 6,500 family solicitor members who care deeply about looking after their clients, as I know as an honorary member. I am sorry to disagree with the noble Lord, Lord McColl, and what has just been said, but the evidence from the research is that the majority of people know perfectly well when a marriage has irretrievably broken down. A respondent to whom such a matter comes as a complete surprise would be very much the exception.

The research shows that the current system, and any system that takes a long time, is likely to be adverse for the children. Children are extremely important and play an important part in the background to the Bill. One of its purposes is to get the divorce over so that children suffer less. There are various ways in which we could help the children more than we do, particularly through information. Parents who are deciding to divorce—the petitioner and the respondent—should be given an information pack which would explain the impact on the children of disagreements between the parents. Perhaps the most important thing I learned as a judge is that in almost every case the children love both parents, and if parents are seriously at odds with each other, they do not realise that the children love the other parent as much as they love them. Such an information pack would be extremely helpful.

The way in which the noble Lord, Lord McColl, wants to delay this is contrary to the current detailed research and earlier research in the 1980s and 1990s. All these amendments will not be helpful—other than, as I have said, the two amendments of the noble Baroness, Lady Chakrabarti—and I hope your Lordships will think that the Bill should go through largely unopposed.

Lord Morrow Portrait Lord Morrow (DUP)
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My Lords, I rise to speak in support of the amendment moved by the noble Lord, Lord McColl. I do so because I fear that a fundamental pessimism underpins Clause 1. It is an attitude that we have heard in speeches from Ministers and others to the effect that once a person files for divorce a marriage has by definition broken down. The Minister in the other place said that

“the moment one person decides that the marriage is over, it is indeed over.”—[Official Report, Commons, 25/6/19; col. 602.]

I question that. I do not think it is inevitable that a marriage, even one that has come to that point, is over. I prefer to allow room for reconciliation.

People can change their minds, and often do. Marriages can go through very rocky periods, yet come out the other side stronger than before. I am sure many noble Lords can think of examples. In my view, hope for reconciliation should be maintained for as long as possible, including into the divorce process. I believe reconciliation remains possible. I think that is borne out by the figures showing that each year the number of completed divorces is considerably lower than those applied for. At present, approximately 10% of divorce petitions that start each year are subsequently dropped. Couples do give their marriage another chance. I know that other explanations are offered for the shortfall: cross-petitions, petitions being re-filed on a different basis, and so on. I acknowledge all that, but are we really to believe that there are not some reconciliations within the thousands of divorces that do not complete? If there are any at all, they expose as false the assumption that divorce is inevitable after a divorce application is made. A Bill designed on that false assumption would clearly be flawed, so I am uncomfortable with Clause 1 as it stands.

At the very outset, the divorce process requires a definitive statement by the applicant or applicants that the marriage has broken down irretrievably. As I see it, that can serve only to close minds, inhibit dialogue and reduce the chance of reconciliation. The Minister in the other place described the 20-week period as “a period of reflection” but, under the Bill, the 20-week period starts out with assertion by one or both parties that the marriage has broken down irretrievably. That encourages not reflection but defeatism.

The modest change this amendment seeks to make is to reduce the sense of inevitability ever so slightly. Rather than applicants stating at the outset that the marriage has broken down irretrievably, they would have to state that it “may” have broken down irretrievably. Only at the stage of applying for the conditional order would we get to the assertion that the marriage has broken down irretrievably. This change would make the 20-week period one of genuine reflection in the hope of saving marriages. I believe it deserves noble Lords’ support, so I support the amendment.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull (LD)
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My Lords, I agree with the wise words of the noble and learned Baroness, Lady Butler-Sloss, and think that Amendment 1 is not helpful. It replaces the proof of irretrievable breakdown on the basis of a sworn statement at the outset, with that being proven only after a second sworn statement has been made after the time has elapsed for the conditional order to be made. I also dislike the wording,

“they think that the marriage may have broken down”.

It is a bit patronising. Leaving a further 20 weeks could make it more difficult for a spouse to leave an abusive relationship: “You only think our marriage is over, dear. Why don’t you come home with me and think again?” I realise that this is not consistent with my remarks at Second Reading when I spoke about periods of reflection, but I have had my own period of reflection in the intervening time. I have listened to the research findings already referred to by the noble and learned Baroness, such as those from the Finding Fault? study, which established that people do not initiate divorce proceedings unless they are sure that, for them, the marriage is over. We from these Benches will not support this amendment.

Baroness Shackleton of Belgravia Portrait Baroness Shackleton of Belgravia (Con)
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My Lords, I rise to support the noble and learned Baroness, Lady Butler-Sloss. I have been doing this work for 40 years. If the amendment is successful, people will file quicker: they know they will have to wait 20 weeks, or however many weeks, so they will put in their petition sooner. When a marriage has broken down, it is necessary to sort it out cleanly and without blame and delay. Delay causes grief. Uncertainty causes grief. Children get destroyed by uncertainty, which is why I have jointly tabled an amendment related to finance.

In relation to the breakdown of a marriage, I agree with the noble Baroness that it is patronising. It is not a charter for petitioners but a mutual charter to let people get divorced without the blame and shame of naming the person who is more at fault. For most marriages, it is not as simple as one party being 90% at fault and the other being 10% at fault, or one party being 100% at fault. There is mutual blame, so to suggest that that one party has to take the responsibility for being, effectively, the aggressor, causes grief. It causes grief to people who cannot operate on their own. Some people have the luxury of going to solicitors, but I really object to the suggestion that this is a solicitors’ or a lawyers’ charter to make money. When it is done online, it will be a great deal cheaper. There is a nice little industry in colluding with the solicitor on the other side to try to dream up grounds that neither party finds objectionable so that it can go through unopposed—but unfortunately, those grounds now have to be sufficiently serious to get past the very high bar that is being imposed, which means that blame has to be made. I do not see any benefit at all when one party—generally both parties—wants to get out of marriage in there being any further delays, so I do not support this amendment.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con)
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My Lords, I was not wishing to push myself forward too soon, but one has to look quite closely at the wording of this amendment, which says:

“The divorce process under subsection (1) consists of three stages and must be accompanied by … for the first stage, a statement by the applicant or applicants, if a joint application, on the filing of the application for a divorce order that they think that the marriage may have broken down irretrievably.”

The general rule is that one applicant is sufficient, and therefore there is no question of a requirement that they should agree that the marriage has broken down irretrievably at that stage.

I have not been a family judge for 40 years, but I have been concerned with this matter for even longer than that. As I said at Second Reading, I was concerned with cases where there were long debates and proofs about who was responsible for the breakdown of the marriage. I never found them to be of any practical use: they did not reconcile people—very much the reverse—and they were absolutely useless.

I am as strong supporter of the institution of marriage as I can be, and I have made that plain. Indeed, so plain was it when I introduced the corresponding Bill 20 years ago that I was invited to be interviewed on the “Today” programme—Ministers went in those days—by no less a person than John Humphrys. One of the first questions that he asked was whether I would care to be called the “Minister for Marriage” instead of Lord Chancellor. That suggested pretty plainly that he thought that I was trying to support the ordinance of marriage as far as practicable.

The situation here is that you are asking for a divorce, not applying for a consideration of something else. What is a divorce? It is an order that finds that the marriage has broken down irretrievably. Therefore, if you are going to ask for that, you must ask for it. There is no sense in saying, “I’m considering whether I should apply.” You either do or do not apply. If you apply, the process starts. However, of course I am all in favour of the idea that during that process people might come together. That happens, and there is nothing in the Bill that I know of to discourage it, except possibly the length of time involved. As I understand it, the result of the consultation process was that it should be a year, but a period of six months was chosen for the Bill. When my Bill went forward, I chose a year and Parliament increased it to 18 months. So it is not the first time that an attempt has been made to lengthen that period—something that will be considered later. However, the amendment does not appear to me to be right. If you are asking for a divorce order, the statement must state the ground on which the law allows a divorce.

Sadly, I agree entirely with what the noble and learned Baroness said about the children. Over the years, my experience in talking about and dealing with this issue in various ways is that, generally speaking, the children are devoted to both parents. They love them both, and when the parents separate in life or in the way that they treat one another, it tears the heart of the children, which is a terrible result. It is important that, before parents get involved in divorce proceedings, they think seriously about the effect on their children. On the other hand, there is nothing worse for children than being in a situation where their parents are continually at loggerheads. Sadly, the institution of marriage is such that it requires the loyalty of both parents all the time. If that stops, the result is, sadly, inevitable.

I entirely accept that my noble friend Lord McColl and those who support him would like to see reconciliation. I am entirely in favour of that, but I think that reconciliation is sometimes assisted when the parties see that what is required is an answer to the situation—when the marriage has broken down irretrievably and they are prepared to reach a conciliation. That does happen and there is every reason to support it happening during the divorce procedure, but I do not think that you can start the divorce procedure on the basis that it is going to happen.

Lord Harries of Pentregarth (CB)
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My Lords, leaving aside the fundamental principle behind this amendment, there seems to me to be a real weakness in the wording of the proposed new subsection (2)(a), which says that,

“they think that the marriage may have broken down irretrievably”.

That seems so vague and unsatisfactory. Does the noble Lord think that this amendment would be improved and be worth further serious discussion if it instead said that they “intend to apply for an order on the grounds that the marriage has broken down”—in other words, that the first application would be a statement of intent?

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, the unfortunate thing about that is that it is the application: once you have applied, you have carried out the intent. It is an application for a divorce, and the divorce procedure lays out what has to happen before the divorce is granted. When you apply, you are applying for a divorce. I cannot see any other possible way of proceeding. It does not seem to make sense to say, “I was thinking of applying—I was thinking of suing you—but I am still considering the matter.” If you want an order, you have to ask for it. That is essentially why I think this amendment has grammatical difficulties but also an enormous underlying theoretical difficulty.

Lord McCrea of Magherafelt and Cookstown Portrait Lord McCrea of Magherafelt and Cookstown (DUP)
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My Lords, I support the amendment moved by the noble Lord, Lord McColl, and the remarks of my noble friend Lord Morrow.

I have never been a judge to grant people a divorce, but I have been a minister for over 50 years, marrying people and endeavouring to keep families together. I am delighted that, over those years, people have come to me with the intention of divorce but made another decision on reflection. To this day, they are very happy families. After reflection, speaking to me and receiving advice, they were able to make another decision and heal the breach in the relationship.

The Government were elected on a promise to strengthen families and acknowledge that a strong society needs strong families. To the best of my knowledge, there was no mention in the manifesto of the no-fault divorce. I believe that time for reflection would be helpful. I would like this Committee and the Government to consider the amendment that the noble Lord, Lord McColl, has brought before us.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I agree with the noble and learned Lord, Lord Mackay, not for the first time. I particularly want to associate myself with the very humble reflections of the noble Baroness, Lady Burt, and the unparalleled expertise of the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss. I do not want to repeat what has been said. However, I might shorten what I say about other amendments if I make a few comments now, because I think the noble and learned Baroness, Lady Butler-Sloss, is broadly right: this is a good Bill that will generally not benefit from much amendment, subject to concerns of the Delegated Powers Committee.

As was rehearsed by many in your Lordships’ House at Second Reading, divorce is not generally a happy matter. I suspect that it is mostly in Hollywood cinema that people celebrate and have parties upon divorce. I have heard of such things, but they are perhaps the exception and not the rule. This is therefore an unhappy subject and an unhappy moment in lots of people’s lives—as it happens, a very significant portion of the population. For some people, it is a story of liberation after trauma; for others, it will be a matter of loss and trauma. It is not a happy matter. The law should be about legal protection and not legal fiction.

I understand the sentiments of noble Lords who would like people to reflect before they put themselves through this trauma. But I would have more in common with that sentiment if we were seeking to provide counselling for every adolescent and adult in the country, or, indeed, if we were seeking to reinstate the availability of legal aid for people contemplating and going through divorce. In my experience, good family lawyers will always go through a process of reflection with their clients before advising them to go through this traumatic process. Those matters, unfortunately, are beyond the scope of the Bill—I know this because I had a go. I am told by the Public Bill Office that reinstating legal aid for people with contested contact matters is also unfortunately not in the Bill.

In the future, I would happily talk to any noble Lords who want to persuade the Government that legal aid should be reinstated, at least for matters concerning the children. That would be a very good thing. As I said to the Minister, who very kindly met me yesterday, it seems perverse that if the state seeks to take your children you have access to a lawyer, but if your ex-partner is depriving you of contact you do not. That is a real concern, as are the issues about adequate provision for counselling, mediation and so on; provision is needed. I do not see how people will reflect and reconcile when they have extra hoops to jump through by way of legal process. For that reason, I hope the noble Lord, Lord McColl, will think again about this amendment.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, just as he did at Second Reading, the noble Lord, Lord McColl of Dulwich, has expressed his desire to ensure that those intent on divorce should have the opportunity to consider reconciliation. Of course, we agree with that, which is one reason we are building in a statutory pause: the new 20-week period between application and conditional order. It is also why we are retaining the two-stage order, as well as the bar on divorce applications in the first year of the marriage.

The noble Lord expressed concern, as did others, that the Government’s statistics give the impression that a significant number of divorce petitions never reach decree absolute. There is, however, no evidence that these represent cases of reconciliation. Indeed, analysis of court data by the Nuffield Foundation, referred to by the noble and learned Baroness, Lady Butler-Sloss, shows that the majority of non-completions are due to the technical difficulties of the legal process for unrepresented parties, the obstruction of respondents and, in some cases, protracted negotiations over finances. Indeed, a sample of 300 undefended cases were analysed, in which 51 were found not to have completed. Only one of those cases was identified as having ended in an attempted reconciliation. It is not only the recent Nuffield research that indicates this. Research undertaken by the University of Newcastle, following the Family Law Act 1996, also found that the decision to divorce was not taken lightly or impetuously; it was typically a protracted one based on months, if not years, of painful and difficult consideration.

I appreciate the intention behind the amendment; the noble Lord, Lord McColl of Dulwich, spoke of the profound importance of marriage to society and I could not possibly disagree with that. However, we believe that this amendment would have the potentially perverse effect of encouraging speculative applications. Someone facing marital difficulties might file an application saying, “I think my marriage may be over, though I’m not sure. I can always make my mind up after 20 weeks, or after as long as it takes.” As the noble Baronesses, Lady Burt and Lady Shackleton, observed, that is not the process that parties go through in reality. Indeed, as the noble and learned Lord, Lord Mackay of Clashfern, observed, it is inconsistent with the idea that you are applying on the grounds of irretrievable breakdown.

Applying for divorce should, of course, always be a last resort; certainly, we have seen no evidence that it is anything else. In the vast majority of cases, the applicant reaches the decision after considerable soul-searching and, indeed, after attempts have been made to mend difficulties in the marriage. It should never be seen as a warning shot. Divorce is not a remedy for marital difficulties; it is a remedy for a marriage that is no longer functioning because it has irretrievably broken down. It is right, we suggest, to continue to demand irretrievable breakdown at the point of the initial application as the grounds on which decree could then proceed. Of course, divorce should never be automatic, but again neither this Bill nor any other is going to make divorce easier for those affected by it.

We consider that the existing ground for divorce, namely irretrievable breakdown, should remain, and I urge the noble Lord to withdraw this amendment.

Lord McColl of Dulwich Portrait Lord McColl of Dulwich
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My Lords, I am very grateful for all noble Lords who have taken part in this debate. I have been practising medicine for more years than I care to remember, and I have, almost every day, had to break bad news. I took a great deal of time to get over to medical students that this had to be done gently and with respect. Although my amendment does not seem to have much support, I hope that there is some way in which a person who wants a divorce can indicate to his partner what is in his mind long before he puts down an official request. Breaking bad news does not cost too much money. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by

2: Clause 1, page 1, line 12, at end insert “first consider whether a divorce order is in the interests of any child of the family and, if the court is satisfied that it is, then”

Member’s explanatory statement

This amendment would require the courts to take the wellbeing of any children in the family into account before granting a divorce order to end a marriage.

Baroness Howe of Idlicote
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My Lords, I shall also speak to my Amendment 14 to Clause 3.

At Second Reading, I expressed concerns about how the proposals in this Bill would bring a profound shift in power from the respondent to the petitioner, because they propose that the petitioner should be able to initiate the divorce with no notice and that the respondent should have no right to contest.

Rather than exhibiting a balanced concern for both parties to the marriage, this Bill is, to a greater a degree than is wise, a petitioner’s charter. In its fervour to create a good outcome for the petitioner and the busy court system, however, this Bill demonstrates not only a lack of regard for the respondent but a complete lack of credible regard for any children involved.

We must not forget that this momentous life event we are debating in this Bill is not merely a life event for children but is officially classified as an ACE—an adverse childhood experience. Adverse childhood experiences greatly increase the likelihood of children facing damaging impacts on health and other social outcomes, such as alcoholism, misuse of prescription drugs, depression, heart disease and intimate partner violence.

My concern in tabling my amendment is that we must have the best interests of the children at the forefront of our thinking, not the objective of delivering the petitioner his divorce as quickly as possible. I am, of course, very aware that some have sought to argue that the proposals in this Bill—in removing fault—are motivated by a desire to minimise acrimony and to make the divorce process as amicable as possible, precisely because this will help any children involved. As I will demonstrate, however, this assertion, which at first glance seems to make sense, is in fact deeply problematic.

First, we need to understand that the vast majority of marriages that end at the moment are already low in conflict. Data from the survey Understanding Society shows that high-conflict warring couples are a rarity among married couples who split in the UK, comprising only 9% of those who split up. In contrast, 60% of married couples who split up were low-conflict and had reported a degree of happiness. Notwithstanding this fact, however, Judith Wallerstein, who conducted a 25-year study on the impact of divorce on children concluded:

“Findings from this study challenge the central assumption of our court policy: namely, that if parents refrain from conflict, issues around custody, contact, and economic support will be settled expeditiously, both parents will resume their parenting roles, and the child will resume her normal developmental progress. But it is manifestly misguided to expect that muting conflict between divorced parents by itself will reinstate the course of parenting observed in intact families.”

When considering the well-being of children and what is in their best interest, we must remember the reality that the post-divorce family, no matter the level of conflict, is an entirely new form of family that radically changes what it means to experience childhood. Elizabeth Marquardt’s research in this regard is particularly powerful. She found in her work that children of divorce are more than twice as likely to agree that “I felt like a different person with each of my parents”; that just over a tenth of young people from intact families can identify with the experience “I was alone a lot as a child”, whereas close to half of those from divorced families can; and that over 18% of children from divorced families agreed that “Sometimes I felt like I didn’t have a home”, compared to only 4% of children from intact families. It may well be nicer for lawyers and parents to sort things out amicably, but it is what the divorce means to a child in the long term that really matters. We must have their well-being at the centre of all our discussions on this matter.

Secondly, we need to understand that it is not high-conflict divorces that damage children but low-conflict ones. Research from Amato, Loomis and Booth using a 12-year longitudinal study found that in low-conflict families, children have higher levels of well-being if their parents stayed together than if they divorced. This makes sense when we step back and think for a moment. Divorce is viewed through the lens of what went before. A low-conflict relationship that ends in divorce simply does not make sense to the child; it comes out of the blue. They start asking why their parents split up when their marriage was good. Was it their fault or did they—the children—cause a rift between their parents? In this context the overriding objective for the Government, if they approach this subject from the perspective of children, should not primarily be removing grounds for acrimony in divorce but taking steps to limit, rather than expand, the actual numbers of divorces.

I understand, of course, that the Government have acknowledged that if the Bill becomes law there will be a short-term spike in divorces, because a number of divorces that are already in play under the current system will be able to conclude very rapidly, together with whatever new divorces are initiated. That would certainly happen. My concern, however, is rather that the Bill will also result in a long-term increase in divorce rates because of the significant reduction in time for reconciliation that it will create.

Between 2003 and 2016, an average of 12,702 more divorces were commenced each year than were ever concluded. Those figures tell the stories of many divorces that did not happen in the context of a divorce timetable that was two or five years, during which there was an incentive to try to save the relationship. Under this Bill, however, people will be able to end their lifelong commitment in just six months. In that very different timeframe, it is inconceivable that the 12,702 figure will not go down, possibly quite radically, resulting in significantly more divorce. While it will help the petitioner get what he wants, it will have quite the opposite effect for many children.

I make three suggestions on the way forward. First, Amendments 2 and 14 are important, because whatever system is in play is only right that someone should be charged with the responsibility of asking whether the divorce is in the best interests of the children. The rights of children must be placed on the face of this legislation, as well as the rights of the petitioner and respondent. I argue that where children are involved, as the most vulnerable party their best interests should trump any considerations of the petitioner or respondent until such time as they have left home.

Secondly, we need to step back and ask whether this Bill, particularly the general timeframe for divorce it proposes, is in the best interests of children, given that it will radically reduce the time for reconciliation the current system provides. Under the current system, over a 13-year period, an average of 12,702 more divorces are started annually than are ever concluded.

Finally, I have a copy of the Government’s guidance for the application of the family test. I do not believe that the Government have yet published their family impact test report, and I suggest to the Minister that we do not proceed to Report stage until it has been published. Furthermore, I suggest that the report must engage directly with the research showing that, first, the main cost to children is not the divorce process, but the consequences of the divorce once concluded; secondly, that conflictless divorce is more damaging for children; thirdly, the impact on the scope for reconciliation of the radical reduction in the minimum time for divorce to just six months; and the likely increase in the divorce rate that will result from this in the long term. I beg to move.

Lord Framlingham Portrait Lord Framlingham (Con)
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I entirely support the amendment of the noble Baroness. Does she agree that while we talk about the reasons for the mental health of young people, austerity, local councils and educational support, we rarely talk about family? We never talk about parents and we never talk about absent fathers. Does she agree that as a country we are in grave danger of completely ignoring the huge distress and permanent damage done to children every year?

Baroness Howe of Idlicote
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I entirely and completely agree with the noble Lord.

Baroness Shackleton of Belgravia Portrait Baroness Shackleton of Belgravia
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Some of the damage could be avoided by proper education before people have children, to avoid the distress of having children with the wrong person. There is very little education in school to support that.

Baroness Meyer Portrait Baroness Meyer (Con)
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My Lords, I will speak to Amendments 2 and 14, in my name and that of the noble Baroness, Lady Howe of Idlicote. Before I do so, I welcome the new concept of divorce by mutual decision through a joint application. Anything that reduces the stress, cost and emotional aggravation of a broken-down relationship must be for the good. In previous debates, many noble Lords have attested to the psychological and emotional damage done to children from broken homes. It is one of the Bill’s strengths that a joint application keeps the door open to reconciliation. I very much support the amendment to Clause 1 tabled by the noble and right reverend Lord, Lord Harries of Pentregarth, for the court to send information about mediation and relationship support services, as this could result in reconciliation, particularly in this type of divorce.

However, there is another dimension to the Bill which has made me really anxious: the treatment of divorce instigated by one party alone. In contrast to the provisions of divorce by mutual decision, the possibility for one party unilaterally to apply for divorce is a step backwards, at odds with our manifesto commitment to strengthen families. As I see it, the Bill’s fundamental weakness, as repeated by noble Lords many times in previous debates, is to discriminate in favour of the applicant against the recipient. I call them the recipient because this person has no right to respond. In practice, it would allow divorce by unilateral denunciation. It removes all rights and protections from the recipient and ignores two of the most contentious issues when a marriage breaks down: the financial settlement and arrangements for the children.

It could result in a situation where the recipient is left without financial provision and even access to his or her children, tantamount in extreme cases to parental abduction. This is unacceptable. It would contravene the UN Convention on the Rights of the Child to see and have access to both parents. It is also especially cruel to those of modest means who cannot afford to hire a lawyer to try to remedy the situation. It is hard to see how such a narrow focus on divorce, excluding money and children, can be justified when they are inextricably linked.

The Bill claims to remove family conflict as much as possible when reconciliation is impossible, but you do not need to go through a contentious divorce, as I have—some noble and learned Lords in this House know about my case—to know that the greatest source of conflict between couples is not about whether or not you want to divorce but about financial settlements and with whom and where the children will live. This is the moment when children really become embroiled in litigation between their parents and find themselves put in an impossible position. This is particularly so today, as children are more and more involved in court proceedings. Judges tend to interview them to find out how they feel and with which parent they want to live —in other words, asking children to choose between their parents. This can often lead to one parent manipulating the child against the other parent, so that when the child speaks in court, they will say bad things about the other parent. Sometimes children are even convinced that they have been sexually abused by one parent.

I speak from experience. I am not a judge; I have not been looking at other people’s cases from the outside. I have been on the inside: I founded a charity called Action Against Abduction. I have spoken to many parents and, indeed, adult children who have grown up after horrible experiences when they were young. We made a documentary about it, and I can tell noble Lords—and this is why I feel quite strongly about the Bill—that the effect on children is devastating. The point about the Bill is that it is fine if people agree, but that does not apply to everybody. The law should protect the most vulnerable, and the most vulnerable are the children. The most complicated cases are those in which parents do not agree. Giving one parent the right to divorce without the courts having even looked at the financial situation or the welfare of the children is very difficult. I hope most noble Lords will help me support this amendment.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss
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My Lords, I absolutely disagree that this is a petitioner’s charter. It is a way of bringing a failed marriage to an end. If noble Lords think about it, if one member of a couple says, “This marriage is at an end; in my view it has irretrievably broken down,” what on earth can you do about it? I am not sure whether noble Lords who have been speaking are expecting a couple who cannot get on to go on living together. If one side says that it is at an end, there is no longer a consensual marriage. Having been happily married for many, many years—

Lord Framlingham Portrait Lord Framlingham
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Is the noble and learned Baroness actually saying that there is no possibility of that person changing their mind?

Baroness Butler-Sloss Portrait Baroness Butler-Sloss
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Of course there are wonderful situations where reasonable couples talk it through and decide not to do it, whether for themselves or for their children. In some cases, that works and in some cases it does not. But there is no doubt that there are many, many people who seek to bring a marriage to an end because, from the point of view of that person, their marriage is no longer one that that they can endure. A lot of people leave. In the famous Owens divorce case that went to the Supreme Court, the couple are still married because five years is not up and there was no consent by the husband. The wife did not stay: she is not living with the husband who would not allow a divorce; she has moved out. There they are living separately, but not divorcing. Is that a happy situation?

The Bill is not a petitioner’s charter; it is an opportunity taken by the Government—and I congratulate them—to deal with the very important research that shows that unhappy marriages are not good for children. I do not understand how, if a couple do not get on, or if it is a case of domestic abuse—and we know how serious domestic abuse is—and the victim of the abuse wants to bring it to an end, they should not be allowed to do so. I cannot believe what is happening to the children while she—it is usually a she, but not always—remains in the house with the children and the domestic abuser. There is a great deal of evidence about that.

Fortunately, most parents, when they bring their marriage to an end, are civilised about it and about the children. The important thing about this Bill is that it is dealing with the issue of divorce and leaving the two extremely important issues—the most important issues of all—of what happens to the children and the financial outcome to be dealt with, I hope, in further legislation. The issue of children does not have to be dealt with in further legislation; the various Children Acts have dealt with that, whether they are the children of those who are married or of those who are not. Finance desperately needs changing—I suspect that the noble Baroness, Lady Shackleton, will say more about that today. It absolutely needs to be looked at, and I hope that the Government will go for a consultation paper on how we can improve legislation that dates back to as long ago as 1973, and which certainly needs an update. However, that is not a reason not to have the Bill.

Baroness Shackleton of Belgravia Portrait Baroness Shackleton of Belgravia
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This is not about the finances. When the noble and learned Lord, Lord Mackay, brought in the Children Act, it took away the stigma of custody. That Act as been a godsend to all of us, as we do not have to identify which party has care and control—custody. It has been the most enormous success, for which everybody who practises in this field is eternally grateful. I suspect that it was considered very novel at the time.

People forget that most responsible solicitors, when somebody who wants a divorce comes to see them, go through with their clients the possibility of not getting a divorce. I believe passionately in marriage—I am a patron of the Marriage Foundation, which supports the Bill—but by the time somebody wants out, they want out. I cannot tell your Lordships how many people are shocked when I say to them, “Are you sure you really want this? It’s not necessarily greener on the other side.” They say, “Do you really think I saved up the courage to come and see you to be told to go back and try a bit harder?” Once the game is up and the marriage is over—once it is dead—clinging on to it is not in the children’s interest at all. People need to move on. You cannot make somebody who is unhappy happy. It takes one person to make the marriage unhappy and two people to make it happy. The Bill goes some way towards addressing that problem.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss
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I will just finish with the two further points I wanted to make.

On the amendment moved by the noble Baroness, Lady Howe, with which, as noble Lords may have gathered, I do not agree, I cannot see how a court can adequately assess whether the children will be better off if the parents, one of whom wants a divorce, are still together or separated. There will be a difficult balancing act for the judge, and it will take a long time, because the family courts are seriously overburdened. How on earth will you find time to do this, and between a couple who will not be represented? As the noble Baroness, Lady Chakrabarti, said, there is no legal aid for couples who divorce, so the judge will have two people at odds with each other, with one or perhaps both determined to be divorced, and the children in the middle. The children ought to be informed of what is going on, but very often they are not. They need help at that time from parents who do not realise that they need help, and they particularly need information. But how on earth is the judge—or the magistrates, but in particular the judge—to say to the couple, “What is going to happen if you’re together or if you’re parted? How on earth am I to find out which way the children would want it to be?”? Particularly in cases where there is domestic abuse, the sooner that couple is parted, the better. So I am very concerned about this proposal.

Of course, we should be very careful about what we do regarding the welfare of children. However, research from the University of Exeter and the Nuffield Foundation found that where the parents cannot agree, very often the children would be better off by having them separate, and what their future ought to be can then be dealt with under the Children Acts.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull
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My Lords, I can see the sentiment behind considering the interests of the children in this matter. We will all have been moved by the testimony of the noble Baroness, Lady Meyer, about the terrible experience that she and her children underwent, but this amendment would hand the court the impossible task of deciding what is in the children’s interests without the mechanisms to do so, as the noble and learned Baroness, Lady Butler-Sloss, just said.

How would you implement a judgment forcing parents to stay together in the children’s interests? You cannot force a couple to stay together any more than you can order warring parents to create a loving environment. I hope that we are past the stage where parents stay together for the sake of the children—unless it is a mutual voluntary agreement—because, on the whole, that has been shown to do more harm than good. Children may fare better from having two loving parents who live in different places, often with different families of all kinds. Love and the secure knowledge that they are loved are what matters, no matter who makes up their family. Research has shown that parents are usually the best judge of what is in their children’s interests. Where this is not feasible, the family courts are there to help.

I am afraid that we will not support the amendment from these Benches.

Lord Browne of Belmont Portrait Lord Browne of Belmont (DUP)
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My Lords, I am pleased to support Amendments 2 and 14 in the name of the noble Baroness, Lady Howe.

I note with interest that these amendments were tabled in the last Session in another place by the right honourable Frank Field, who served with great distinction from 1979 until last November as the Member of Parliament for Birkenhead. He made a significant contribution to children’s issues and chaired the Field review on early years intervention. I am sure he will be pleased that the noble Baroness has taken up these amendments, which could not be debated in the other place.

Divorce affects a community: the adults involved, their friends and families and, of course, the children. The likelihood is that the effects on most children will be long-lasting. Children have to watch their parents go through a divorce, then continue their lives afterward. The research base demonstrating the damage to children from divorce is so widespread—the fact that it is now recognised as an adverse children experience, or ACE, has already been alluded to—that I will not detain the House by looking at it in any detail other than to note that family breakdown is now recognised as the biggest factor behind the UK’s child mental health crisis. More than a third of children whose parents had split up reported poor mental health, compared with a fifth of children with parents who were still together. Moreover, Hetherington and Kelly’s research interviewing the children of divorce later in life revealed that 20% to 25% of children of divorce continue to suffer lasting social and psychological problems in adulthood, compared with just 10% of children from intact families.

The fact is that, after a divorce, children find themselves in a difficult situation. As has been referred to, Cockett and Tripp’s work in The Exeter Family Study demonstrates how divorce changes family life. Their research showed that in parental conflict during marriage, the child may be able to remain on the sidelines, whereas after divorce, they may be obliged to take a central role; for example, carrying messages between resident and non-resident parents who find that they are unable to communicate face to face. Children in re-ordered families reported that their parents frequently told tales about each other or each other’s new partners. Children also sometimes felt that they had to suppress telling one parent about enjoyable times they had had with the other, or had actually been asked by one parent to keep something secret from their former partner.

Inevitably, the child’s relationship with their parents changes; for example, one may move away and the other may become more prominent in their life while finding their own way after the divorce, potentially with less financial resources. The child might find that they have to move to be with a parent and change school. A recent article on parental divorce or separation and children’s mental health said:

“Marital instability presents not a single risk factor, but a cascade of sequelae for children.”

Much of the debate today has focused on helping lawyers and parents to sort things out amicably. I do not think we can disagree with that, but it is what the divorce means to a child in the long term that really matters. We must have their well-being at the centre of all our discussions, which is why these amendments are so important. We need to understand that, when viewed from the perspective of the best interests of the child, our number one priority should be not low-conflict divorce but promoting reconciliation and—where possible —avoiding divorce. The evidence suggests that low-conflict divorce can be more traumatic for children than divorce with conflict. Research by Amato, Loomis and Booth, who use a 12-year longitudinal study, found that the break-up of a low-conflict family is more harmful to a child than that of a high-conflict family. As Harry Benson explained:

“It’s not the ‘high conflict’ divorce that damages children but the low conflict ones. A low conflict relationship that ends in divorce makes no sense to a child. They don’t see it coming. It comes out of the blue.”

Social scientist Elizabeth Marquardt, the author of Between Two Worlds: The Inner Lives of Children of Divorces, states that

“two-thirds of divorces end low-conflict marriages, in which the parents divorce because they are unhappy or unfulfilled, or have other problems that are not seriously threatening. The children of low-conflict couples fare worse after divorce because the divorce marks their first exposure to a serious problem. One day, without much warning, their world just falls apart.”

I ask the Government to support these amendments, and call on them to publish their full and detailed family test impact assessment on all aspects of the Bill, and particularly its impact on children. I commend these amendments—without which there would have been no focused debate on children—to this House.

Baroness Meyer Portrait Baroness Meyer
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My Lords, I will make one correction. This amendment is not about forcing parents to stay together. It asks for the courts to be satisfied that the well-being of the children has been considered before the final divorce is granted.

Baroness Benjamin Portrait Baroness Benjamin (LD)
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My Lords, I support Amendments 2 and 4. First, I would like to say how much I agree with the noble Baroness, Lady Shackleton, when she talks about education, because I too have been an advocate and supporter of education on marriage, parenting and relationships for many years. I believe that it would make such a difference to the outcome of the pain and suffering that too many people go through, and which directly affects children.

However, in all our debates on the Bill we must not forget children. They are innocent parties in family break-ups, and everything we decide in this House, or in the other place, must not neglect their interests. So much of our family policy is built on the principle of what is in the best interests of the child. But when it comes to divorce, which can be devastating for children, the focus is too often solely on the interests of adults. This is why I am supporting these amendments.

The stated aim of the Bill is to reduce acrimony in divorce proceedings. The former Minister of Justice stated in the Government’s response to the consultation in April 2019 that this will

“support better outcomes for children.”—[Official Report, Commons, 9/4/19; col. 8WS.]

Supporters of the Bill claim that children of married parents who argue will be better off if their parents can divorce more easily, without having to allege fault. The logic is that parents continuing their marriage is more damaging to children than simply ending the relationship. The truth is that children need not be involved in any consideration of fault, but they are necessarily involved in the fact of divorce. It is the fact of divorce, not the process, that is harmful to children.

The Exeter Family Study found that divorce does not usually reduce conflict for the children. In fact, the opposite is true. The study says that

“the experience of most children whose parents have divorced is of increased conflict over an extended period, with the child involved to an extent that may not have been the case while the marriage lasted.”

Once parents have officially split, the door is open to children being the subject of disagreements in a way they never were before. These findings are corroborated by a US study that shows that children suffer negative consequences even if their parents divorce amicably. The authors express concern that

“some parents are lulled into believing”

that a good divorce will mean

“that their children are adequately protected from all of the potential risks of union disruption.”

There are of course exceptions, where divorce is the only and best alternative, especially when it comes to domestic violence and abuse. However, there is so much research that shows the benefits for children of living with their married parents, and the harm the divorce does to children. For example, having married parents increases the chances of getting a university degree. It is better for teenagers’ mental health and increases a person’s chances of getting married themselves. Young people whose parents separate are much more likely to become homeless and get into trouble with the law. Behavioural and emotional problems are also more likely to be found in children from broken homes.

There have been studies suggesting that children suffer more from divorce than from the death of a parent, and that this continues long term. Various reasons are offered for this. One is that divorce is seen as a choice. From a child’s perspective, their parent chooses to leave them, resulting in a sense of deliberate abandonment. There is also the ongoing yearning for reconciliation, while death is final. Children often cling for many years to the hope of their parents reconciling, causing reoccurring disappointment. I state all this to emphasise the importance of children’s interests in these debates. They should be front and centre in decisions about divorce, including in the court’s consideration of a divorce application.

I fear that this Bill will make divorce quicker and easier, leaving less time and motivation to compromise or attempt to reconcile—and children will suffer. I believe that these amendments help to focus on these innocent victims—because, remember, childhood lasts a lifetime.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, I need no conviction that children are better when their parents continue together, undivorced. I am strongly in favour of helping people who run into difficulties in their marriage. Various things can happen that require help. One of the amendments today refers to part of the 1996 Act that is still in force, providing money to help people to overcome these difficulties.

I need no conviction that divorce is bad for children, but I do need conviction that, if the parents are determined to divorce, nothing can be done to make it better for the children. That is where the arrangements under the Children Act are important. I believe that they are as good as can be achieved, but the important thing is that I would much prefer no divorce at all. We must concentrate on trying to keep parents together and keep the marriage going as a marriage and not in any other way.

I cannot see that the court can say, “This divorce is not good for the children” or “This divorce is good for the children”. Can noble Lords imagine a judge having to decide whether a divorce is good for the children? The answer is no in every case I know of: it is not a good thing for children that their parents have reached the conclusion that they have to divorce, as I said earlier. It is like tearing the children apart, because they love both parents and are very upset when anything happens to part them—but, sadly, the responsibility for staying together is with the parents. I strongly believe that doing everything that can be done to help them to stay together is the best help for the children.

Baroness Chakrabarti Portrait Baroness Chakrabarti
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My Lords, as I said, it has taken decades of distinguished professional experience for some noble Lords to make the contributions they are making to this debate. However, I have no doubt that it has taken a mountain of courage and not a small amount of eloquence and self-possession for the noble Baroness, Lady Meyer, to make her contribution—for which I am sure we all thank her. I thank her and the noble Baroness, Lady Howe, for giving us the opportunity to talk about children with what I hope will prove to be a probing amendment that puts the interests of children into this discussion.

However, for the reasons stated by other noble and learned Lords, the place and moment for a court to consider the best interests of the child—for example, under the Children Act—should be in matters of contact and finance. At the risk of sounding like a broken record, I say once more that the place for your Lordships’ House to consider what we should do ought to be in putting back legal aid for such contested family matters.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I begin by correcting a misapprehension disclosed by a number of noble Lords. We have produced a family impact assessment in respect of the Bill. Indeed, it was published with the Bill and can be found on GOV.UK. I invite those noble Lords who expressed an interest to have regard to that.

I have no doubt that this amendment is well intentioned, but its effects could be quite draconian. It would in effect require the court to weigh up whether the interests of the marriage’s children should override the autonomous decision of one parent—or indeed both parents, in a joint application—to seek a divorce. It could result in a parent being trapped in a failed or even abusive marriage. It could also reintroduce contested divorce in cases where there are children, because it would allow a parent to put forward arguments that divorce is not in the children’s best interests. It is difficult to see how this would serve the best interests of the children or even the parents. Indeed, this amendment could cause a worsened parental conflict through the legal process of divorce, with further damaging consequences for the children involved.

I understand why some may regard it as important for the court to consider the impacts on children of the decision to divorce, but that ought not to be a matter for the divorce process. The decision to marry or divorce is an autonomous one. It is not for the law to stand in the way of one or both parties who no longer wish to be in a marriage. The legal process of divorce should focus only on ending the legal relationship between the adult parties. Issues that may arise from the divorce, such as disputed arrangements for children, can and are dealt with now under separate statutory provision.

Of course, not every parent who divorces needs an order about child arrangements, but the law is there for those who require it. Divorce, at least in terms of the legal process, is of limited duration, and a statutory requirement to consider a child’s welfare as part of that process can only ever provide a snapshot of their needs, which are bound to change over time. I notice that this amendment, in its objective, has some similarities to Section 41 of the Matrimonial Causes Act 1973, which, prior to its repeal in 2014, imposed a restriction on the court that it should not grant the final decree of divorce unless satisfied with the arrangements for any children. Practically, that meant that one or both parties had to file a written statement with the court. Evidence submitted to the Justice Select Committee during pre-legislative scrutiny of the Children and Families Bill, which became an Act in 2014 and ultimately repealed Section 41, showed that the courts had only limited opportunity in practice to scrutinise the statement of arrangements for children which had been submitted. The statement itself was non-binding as to what would happen after divorce, and disputes about contact or residence have therefore tended to be settled through separate legislation. Indeed, some 16 years after the Matrimonial Causes Act, we introduced the Children Act 1989, which has been a considerable success.

A number of noble Lords have said that we must have regard to the best interests of the children. That is precisely what the Children Act 1989 does. It is the cornerstone of legislation to protect children’s welfare. Orders under that Act are flexible and binding and can be applied for by either parent at any time, whether before, during or after divorce. Most importantly, the court can be asked to vary any such order in the future in response to changing circumstances. I notice that Part 2 of the Children Act 1989 provides the power for the court to make a range of orders to meet the welfare needs of a child, and Section 8 of the Act makes provision for child arrangements orders.

We have all the flexibility that we require. We have the means by which the court can have regard to the best interests of the children—whether arising before, during or after divorce—and there is no call to contaminate the divorce process with the interests of the children process, which is already addressed very fully and, as some noble Lords have observed, very effectively, by the legislation introduced by the noble and learned Lord, Lord Mackay of Clashfern, when he was Lord Chancellor. It is in these circumstances that I invite the noble Baroness to withdraw her amendment.

Baroness Howe of Idlicote
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My Lords, I am most grateful to all noble Lords who have taken part in this debate, which has been extremely interesting and wide-ranging. Despite what has been said, the role of children and the effect on them of divorce proceedings would not have had anything like the prominence that it has had but for this amendment. I did not realise that the family test assessment is available; I was going to suggest having a meeting before Report with that as a central feature. Maybe noble Lords on all sides of the argument could come together. Clearly, we need to discuss all this on Report. All noble Lords who have taken part, with their very strong feelings and differing views, must be glad that children are a central part of all the proceedings. With that in mind, unless the Minister would like meetings for further discussion before Report, I will withdraw the amendment.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - - - Excerpts

I am perfectly happy to have meetings on this or any other issues that may arise before Report, and to have the relevant officials present. I hope I have expressed clearly our position regarding the distinction between the divorce process and the interests of children, but I am perfectly content to have a meeting.

Baroness Howe of Idlicote
- Hansard - - - Excerpts

It would be desirable to have some meetings. Under the circumstances, I beg leave to withdraw my amendment.

Amendment 2 withdrawn.

Amendment 3

Moved by

3: Clause 1, page 1, line 12, at end insert—

“( ) send, to the applicant and to the other party to the marriage, information about—(i) relationship support services, and(ii) mediation services,”Member’s explanatory statement

This amendment seeks to ensure that divorcing couples have access to information about relationship support and mediation so that they can think again about the best way forward before being issued a final divorce order.

Lord Harries of Pentregarth
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My Lords, this is a very simple amendment designed to give those divorcing or separating some basic information. It would require a court to

“send, to the applicant and to the other party to the marriage, information about—(i) relationship support services and, (ii) mediation services”.

As I mentioned at Second Reading, the concept of irreversible breakdown as a basis for divorce goes back to the recommendation of a Church of England Commission in 1966, which was accepted by the Law Commission in the same year and passed into law. Since then, however, up to the present time, as we know, it has been necessary to provide evidence of that breakdown, either by a period of separation or behaviour. Thirty years later, the Family Law Bill, introduced by the noble and learned Lord, Lord Mackay of Clashfern, in 1996, sought to do away with those tests. I strongly supported that Bill, but it met fierce opposition at the time, although it was finally passed by both Houses of Parliament.

The reason why many people who might otherwise have opposed that Bill did in the end support it, was the key role played by information sessions in the process of divorce. These involved meetings with the divorcing couple, who had the opportunity to avail themselves of relationship support or mediation should they need it. Though, as I say, that Bill was passed, it was not implemented by the incoming Labour Government and was eventually repealed. One reason for its repeal was that the information sessions as initially conceived were judged unable to achieve the objectives for which they were set up. Six pilot programmes were tried but none was judged successful.

It is clear that doing away with the need to provide objective evidence of breakdown is much more widely supported now than it was in 1996—and that is a good thing—and in the light of experience this Bill has much broader support now than it did then. However, we should not lose sight of the fact that while most divorces rightly go through, there are some marriages that can and should be held together even at a late stage of the process, or that might benefit from mediation.

I believe that the role of lawyers is essential in most marriage break-ups. However, the process appears from the outside to be essentially adversarial. A recent film now available on Netflix—“Marriage Story”—shows the process at work. It does not, I am afraid, depict lawyers in a very pretty light. As one lawyer in the film says, “If you start from a place of reasonable and they start from a place of crazy, when we settle we’ll be somewhere between reasonable and crazy”. The point is, of course, that both sides will think that they are reasonable and the other side is crazy. Yet, even in that unhappy story, one has to admit that the wife, in the end, benefited from having the issue settled by a court.

That said, I was talking recently to a friend about the Bill at present before the House. She revealed that she was a lawyer and that her first job in a law firm was dealing with divorces because, as she said, that was the sort of work thought appropriate to women in those days. She tried with her clients first to get them talking and exploring what they really wanted—in other words, she did what the noble Baroness, Lady Shackleton, said all good solicitors should do. Eventually, she was very surprised to be hauled in by her bosses and told that she was being transferred to another branch of the law as she was losing the firm too much money. I assure noble Lords that I did not make that up; it emerged spontaneously out of the blue and I was rather surprised. I quote it not as an anti-lawyer statement—I do not want to be a Daniel in a den of lawyers, because there are so many lawyers in the House that we feel inadequate anyway about not being a lawyer. The point I am making is that there are other ways forward and it is important that a divorcing couple of fully aware of this, even at a late stage.

The noble Lord, Lord McNally, for the coalition Government, told the House in 2013:

“The research concluded that none of the six models of information meeting tested was good enough for implementation nationally. For most people, the meetings came too late to save marriages and tended to cause parties who were uncertain about their marriages to be more inclined towards divorce.”—[Official Report, 23/10/13; col. GC 365.]

I agree that this is likely to be a true reading of the situation, but the phrase the noble Lord used was “for most people”—it is not all people. There is a minority for whom, even at a late stage, there might be a better way forward. Nor is the conclusion the noble Lord drew from the other point as useless as he suggested. It caused, he said, some parties who were uncertain about their marriage to be more inclined towards divorce. The proper conclusion to be drawn from this is that, if it was right for them to divorce, a final chance to have this conviction strengthened is a good thing. We want couples to be clear about what they want after a final chance to consider the options before them.

As I say, I am not arguing for a reinstatement of the information sessions of the 1996 Act. It would be unrealistic to do so. However, what I am proposing is simple and cheap: it simply requires the court to send both parties some basic information which, I imagine, would be provided at no cost by the relationship support and mediation services. Those who receive such information might glance at it and throw it in the wastepaper basket; others might read it carefully and conclude that it is not for them—they are clear that divorce is the right way forward. There will be some, however, who read the information not having properly considered options other than divorce, and who wish to follow this information up.

Society has a big stake in stable marriages and stable civil partnerships. Divorce or separation is sometimes absolutely necessary and essential, but, if there is a chance of a few marriages that would otherwise split up being saved by the simple provision of information, this chance should be taken. I beg to move.

Baroness Meacher Portrait Baroness Meacher (CB)
- Hansard - - - Excerpts

My Lords, I shall speak briefly to Amendment 3. I regret to speak in disagreement with the noble Lord, Lord McColl, for whom I have great respect. I also have some disagreement with my noble and right reverend friend Lord Harries.

Amendment 3 is, like Amendment 1, based on the assumption that, even after divorce proceedings are under way, there is a reasonable number of couples who can be reconciled. My reading of the research on this issue suggests that such reconciliation is rare once divorce proceedings are under way. Nobody starts divorce proceedings unless they are pretty desperate.

Having provided relationship support services as a social worker many decades, never mind many years, ago, I am, of course, a supporter of this approach to marriage problems. However, in response to this amendment, I suggest that a couple would benefit far more from such a service long before either parent considers divorce. A divorce petition is sought only once at least one of the partners is clear that the relationship has broken down irretrievably. It is very likely, although it is not always the case, that one partner will by that time be well involved with a third party and have little interest in perpetuating the marriage. At that stage reconciliation is very unlikely, although of course it is possible.

The most important need of a couple going through the divorce process when there are children of the marriage is for them to be helped to ensure effective parenting throughout the proceedings and following the divorce. I agree with the Resolution position that relationship support needs to be funded and provided long before people take the decision to divorce. Indeed, I agree with the noble Baroness, Lady Shackleton, that preparation to prevent divorce needs to start at school. We teach kids geography and history, but it is much more important that we teach sixth-formers the importance of relationships, parenting responsibility, the terrible impact of divorce on children and all the things that are being discussed here today. That is when it should start, and then throughout marriage there should be ready access to advice, support, marriage guidance and the rest of it.

My basic position is that the Bill is perhaps not the right place for consideration of this issue. It has to happen long before. However, I would support an amendment on Report that focused on the need to fund support for effective parenting for divorcing couples. As many noble Lords have said, we know that divorces have terrible consequences for children. If parents can be helped as they go through divorce to be more responsible and careful, that would be a valuable step forward. If successful, such support could avert serious problems—mental health problems and others—for the children of divorced couples in the years ahead. However, I cannot support this amendment.

Lord Farmer Portrait Lord Farmer (Con)
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My Lords, I shall speak to Amendment 21, which is grouped with Amendment 3. It is also about marriage counselling once the application for divorce has been made. My amendment requires the Government to offer relationship and marriage counselling before and during the divorce procedure.

Marriage is the specific relationship form being directly affected by the Bill so it should be the focus of additional support. Much weight has been put on the evidence from research at the University of Exeter funded by the Nuffield Foundation, Finding Fault? It describes itself as the first empirical study since the 1980s of how the divorce law in England and Wales is operating. It is a piece of grey literature—that is, it has not been peer reviewed. The Government very rarely act on single studies, especially those that have not been peer reviewed by academics from other universities, which often challenge the conclusions of whichever study it is. The reliance of the Government and noble Lords on this research is surprising, to say the least. In reality, it is one study with 81 interviews and an analysis of 300 divorces. There was a survey in which around half the participants were divorcees and the other half were nationally representative: 71% of them supported retaining fault, which was ignored. I put that at the beginning of what I am saying because, in the Government’s argument, an awful lot of weight is being put on this research.

In the early 2000s, there was a healthy marriage initiative in the United States. Many of the programmes were focused on unmarried couples. It taught them the basics of commitment and how to resolve conflict and brought many to a point where they perhaps knew enough to separate because they realised the relationship did not have a future, or where both partners felt able to make the formal commitment of marriage. I notice a right reverend Prelate is in his place. The Church of England and many other churches run good marriage preparation courses which go into gritty detail of the problems that marriages can present.

Much has been said about the need to avoid the complexity of the Family Law Act. My amendment does not reintroduce information meetings, but makes it more likely that a couple who see no alternative to divorce, perhaps because both sides of the family have been through it, will, by going through counselling, have their eyes opened to the possibility that times can get better if you stick together. It allows people to reflect on the possible implications of what they are doing. Wealthy people can often access divorce consultants who dispassionately lay out the implications of staying together or splitting up. Many people pull back when they have someone dispassionately explain to them, for example, what has been termed the indissolubility of parenthood—that their relationships with their children, which the vast majority are absolutely determined to maintain, will require them to have ongoing relations with their ex-spouse not only to ensure the smooth running of day-to-day contact arrangements, but to negotiate every future major family event.

Professor Janet Walker led the evaluations of the pilots following the passage of the Family Law Act 1996. She interviewed more than 6,000 people. She commented that funding for relationship services was identified as a necessary part of divorce reform during the passage of the Family Law Bill and remains necessary today. She goes on to say that knowledge and understanding of what works in supporting relationships at times of change, challenge and crisis has also grown, and it is apparent that early intervention to support relationships increases opportunities for relationship ruptures to be repaired and for partnerships to thrive and endure. Therefore, we need to be sure that the opportunity to seek support is provided when relationships begin to deteriorate as well as in the period after an application for divorce is made, when the focus is likely to be on helping couples to reduce conflict and to focus on the ways in which they will continue to parent in a life apart. Relationship support, she says, must be accessible, affordable and available when it is first needed and at any time when families are seeking to repair or manage difficult relationships. In a follow-up study, which involved over 1,500 people, she found that, two years on from divorce, many people wished they had been warned beforehand of the harsh realities of post-separation life. If they had been forewarned, they might have sought reconciliation. They now have to work harder than ever to get on with their ex, given the need to maintain harmonious arrangements around finances and children.

US researchers, in the early 2000s, found that people who are unhappy in their marriage are more likely to be happy five years later if they did not divorce than if they did. Two out of three who were unhappily married but avoided divorce ended up happily married after five years. The problem is that, in our society, it is still stigmatised to ask for help with one’s couple relationship. When he was on “Desert Island Discs”, the American ambassador to the UK, Matthew Barzun, was very up front about the ongoing relationship counselling he and his wife had to maintain a good status quo in their relationship. Let us hope he is an early adopter, but the broad culture is not there yet. Marriage support and counselling can create a context where the root of the conflict can be addressed and terminated, rather than the relationship itself.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, I support both amendments. I want to look at Amendment 21 first; it contains a reference to Section 22 of the Family Law Act 1996 and one of the provisions supported by Professor Walker in the passage that my noble friend quoted. I regard it as absolutely essential that the Government should support families in difficulties. There are plenty of reasons for difficulty in family relationships, perhaps more than there were. But in any case, whether that is so or not, there are still difficulties, and help in overcoming these is essential as early as possible. Amendment 21 deals with Section 22 and the need for counselling in relation to the later stage.

I also support the provisions in Amendment 3, which are a last resort. It is so important that people really consider what is happening and get what help they can before it happens. The idea that it is always too late is not quite right. Sometimes reconciliation can come quite late—and better late than never—which is what Amendment 3 supports. The noble and right reverend Lord, Lord Harries of Pentregarth, was Bishop of Oxford when the 1996 Act was considered and ultimately passed. I think it was he who put this amendment in form first. The Government fully supported it, as I do now. I also support its continuation, which is in the amendment.

There are some quite interesting amendments. Section 22 of the Act says:

“The Lord Chancellor may, with the approval of the Treasury”.

I am not sure why I had to put that text in the Bill, but it must have been part of the price I paid for getting that section into it, which remains law. The amount provided for it now has fallen. I would like to press on Her Majesty’s Government that one of the most important things for the present is that our family life is preserved and strengthened. I am sure that, as was said on earlier amendments, a good deal of difficulty has arisen from the failure to support family life in the way that the Government should. Therefore, I am very much in favour of Amendments 3 and 21.

Lord Browne of Belmont Portrait Lord Browne of Belmont
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My Lords, I am pleased to support Amendment 21 in the name of the noble Lord, Lord Farmer, which focuses on marriage support services. It requires the Secretary of State to make grants for marriage support services

“before and during a marriage.”

The public policy benefits of marriage are such that this is a very appropriate use of public funds. Indeed, in terms of the public finances, investment in relationships is good value for money. The estimated cost of family breakdown to the public purse is £51 billion a year. In January 2018, the Government said in another place that between April 2015 and March 2017 they had invested £17.5 million in relationship support services. That is a very small sum, given the scale of the costs of family breakdown. It is estimated that Relate’s couple counselling work delivers £11.40 of benefits for every £1 spent. Surely this should make the Chancellor consider upping the Government’s investment in supporting married couples and those in civil partnerships.

Given that Section 22 already exists, one might ask why we should bother amending it. I suggest that there are three main reasons. First, an Answer to a Parliamentary Written Question given just yesterday, ahead of today’s debate, demonstrates that Section 22 is not being used by the Government to invest in marriage support, to allocate grants to gain a better understanding of the reasons for marital breakdown or to gain a better understanding of how to prevent marital breakdown.

Secondly, Section 22 does not currently expressly engage with the divorce process. The England and Wales court data from 2003 to 2016 shows that, across that 13-year period, each year on average 12,702 more petitions were filed than were ever concluded. That amounts to a significant number of marriages saved during the divorce process. We must ensure that some Section 22 money is invested in a very focused way during the reflection period to enhance the chances of reconciliation and save more marriages.

Thirdly, the need for more focused marriage investment during the divorce process will be greatly compounded by the fact that across the 13-year period from 2003 to 2016, when each year, on average, 12,702 more petitions were filed than were ever concluded, there was often up to two years or more for reconciliation. Under the Bill, however, the scope for reconciliation will be greatly reduced because the time for it will be cut significantly. In this context, to make the shorter timeframe for reconciliation deliver better, there will again need to be more focused provision of reconciliation to make the most of the limited time available.

Again, in answer to yesterday’s Parliamentary Written Question, it was suggested that the issue was being covered by the Reducing Parental Conflict programme. This is politically unsustainable for two reasons. First, if the Government think that investing in addressing parental conflict apart from marriage is an appropriate substitute for using Section 22, they have lost sight of the public policy benefits of marriage. The money that Parliament mandated when passing Section 22 was not for the purpose of addressing conflict between spouses only when they are parents and regardless of whether they are married; it was about supporting marriage so that we could benefit to the greatest possible extent from the public policy benefits of marriage through investment in marriage preparation before marriage, through marriage enrichment programmes during marriage and through marriage guidance counselling for marriages in difficulty.

Secondly, if the Government are to radically reduce the time for reconciliation within the divorce process, they need to make the much shorter period available work better. That requires greater and more focused investment in it—hence the importance of Amendment 21.

The simple fact is that the law changes proposed by this Bill will impact only on marriage and civil partnerships, regardless of whether children are involved. Opportunities for terminating marriages and civil partnerships, rather than any other kind of relationship, will be expedited by this Bill. Therefore, a focused marriage-specific provision is required—hence the importance of Section 22—so that, even in the expedited process, proposed marriages can still be saved.

Section 22, which Amendment 21 amends, is also very significant because it allows for the provision of grants for

“research into the causes of marital breakdown”

and

“research into ways of preventing marital breakdown.”

Again, Answers to Written Questions suggest that no grants have been allocated for research into the causes of marriage breakdown or research into ways of preventing it. Given the huge cost of family breakdown and the fact that the Government have seen fit to introduce effectively the biggest change to divorce law in 50 years, it is regrettable that they did not inform their approach to divorce law reform with a better understanding of the causes of marital breakdown and ways of preventing it. I end by suggesting that support for marriage should somehow be provided through a programme to help parents, regardless of whether they are married.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I support Amendment 21, which aims to put relationship support funding on a firmer basis. At the outset I should declare an interest as a former chief executive and current vice-president of the relationship counselling charity Relate, and I am also a former chair of Cafcass.

Many of the reforms contained in the Bill are certainly to be welcomed, but—this is a real gap—the Bill is silent on the provision of relationship support, which in my view needs to be available much earlier in the process of relationship breakdown, as well as at the later stages, which we are very much focusing on today. As the noble and learned Lord, Lord Mackay, has already said, funding for relationship support services was identified as a necessary part of divorce reform during the passage of the Family Law Bill, and I agree with him that it remains just as necessary today. In fact, I should like, very briefly, to take us back to the Denning report of 1947. As Lord Denning said, there should be a marriage welfare service “sponsored by the State but not a State institution”. It should be a function of the state to support marriage guidance as a form of social service. I underline the words “as a form of social service” because they are germane to my argument.

Over the years, successive Governments have taken their responsibilities in this area seriously—to a greater or lesser extent, I contend—to ensure the availability of relationship support services for those who want and need them. It has been my personal experience that some Ministers and, indeed, some Prime Ministers have shown a much greater interest in this area than others: some have really wanted to champion the need for proper relationship support services, while others have taken much less interest. I think that it is genuinely a real problem that proper funding for relationship support—which I see as a core responsibility of government in providing necessary social services—has sometimes felt over the years as if it has come down to the whim of a particular Minister or Prime Minister.

Over the years, responsibility for funding relationship support services has moved between a large number of departments—frankly, having been quite involved in some of those moves, I feel that I could write a book on it. It currently rests with the DWP. Funding over that time has steadily been eroded and now focuses—very narrowly, I think—on interventions to do with workless households and helping to give support where there are high levels of parental conflict. I am not saying that there is anything wrong with focusing on high levels of parental conflict or workless households, but there is a much broader need to support relationships across the rest of the general population. This particularly helps families and children to thrive, which we discussed very eloquently in last Thursday’s debate.

I also feel that having properly functioning families with good relationships within them and trying to minimise relationship and family breakdown whenever we can is so fundamental to so many of the Government’s broader social policy objectives, be they in education, health or employment. It really deserves to be taken a lot more seriously than it sometimes feels that it is. It is clear that early intervention to support relationships—again, the subject of our debate last week—increases the chances for relationship difficulties at the early stages to be repaired. We therefore need to make sure that those chances to seek support are provided when a relationship begins to deteriorate, as well as in the period after an application for divorce is made, when the focus is likely to be on helping the couples to reduce conflict and on ways in which they can continue to successfully co-parent but live apart. Those things can have long-lasting benefits for children, particularly for their emotional well-being.

As has already been said by the noble Lord, Lord Farmer, relationship support must be accessible, affordable and available when it is needed to help families seeking to repair or manage relationship difficulties. This is a really key point for me: relationship counselling must not just be seen as a middle-class preserve. It has to be available and affordable for all, irrespective of income or ability to pay. As far as I am concerned, I have always seen the availability of relationship support services as a social justice issue.

Government funding for relationship support services must be recognised as an essential component of the Government’s new approach to divorce and separation if the aims of this Bill are to be fully recognised. The Government really must take core responsibility for ensuring that there is good relationship support available and not just see it as a fluffy little discretionary add-on.

Lord Bishop of Salisbury Portrait The Lord Bishop of Salisbury
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My Lords, I rise in support of Amendments 3 and 21 and to provide a brace of bishops. I want to observe the seriousness and the quality of this debate as we as a House navigate the support of marriage as an institution and of couples in keeping their vows while recognising that marriages break down and trying to provide adequately for those circumstances. If the noble Baroness, Lady Tyler, is right that support for the relationship support services sometimes depends on the whim of a Minister or Prime Minister, one might hope that the present occupant of 10 Downing Street would take a particular interest in these matters.

On average, the Church of England conducts about 1,000 weddings a week. We have experience of conducting, preparing people for and supporting them in marriages. Quite often, couples that I have prepared say that they want to get married in church because they know that they are standing and making their vows in a solemn and serious place that has significance in the community and before God. They want the support of the community gathered around them. In the modern marriage service, we say, “Will you support them in what they are doing?” The congregation comes back with, “We will”. The role of gathering around a couple to support them in keeping what we know to be quite difficult things to keep is a very significant part of the service. Marriage is a gift of God in creation. A marriage in civil ceremony is, therefore, as big a deal. That means that we need to gather around these couples too and support them in upholding their vows.

However, marriages break down. That is costly in the way that the noble Lord, Lord Browne, itemised; there is a financial cost to society. It is also emotionally costly to the individuals in the couples. This is not done lightly: there is a real cost to this, as well as a financial cost to the family concerned. It needs good support to wrap around it. Tolstoy observed that all happy families are alike; each unhappy family is unhappy in is own way. That is a good reason for saying that the support of marriages is complex and that we need to put in relationship counselling provision early on to support that.

Both amendments seem valuable to me for the support that they give individuals but also because they make a point in a Bill that, as my right reverend friend the Bishop of Portsmouth observed at Second Reading, might better be focused on kinder divorce rather than easier divorce. Through these amendments, we would be making a statement about the seriousness and importance of marriage, and the support that needs to be wrapped around it, both at an earlier stage and, by noting the availability of resources, at this last stage before the matter is finalised.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull
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My Lords, I am fully in support of having strong support services for couples but, by the time they decide to divorce, I would suggest that that stage is passed and it is already too late for conciliation, as the noble Baroness, Lady Meacher, has pointed out.

I totally support Amendment 21 and the comments of my noble friend Lady Tyler. It is just the question of timing that I dispute. Professor Liz Trinder points out that practical help and advice would be of value, and financial help for these services would be most welcome, especially on benefits, housing and child support. In the vast majority of cases, mediation would not only be too late, it could be harmful. The Finding Fault? study found that more than a third of behaviour divorces included allegations of domestic abuse, some of an extremely serious nature. Why would you give the perpetrator a golden opportunity to browbeat—or worse—the victim by suggesting that the marriage may not be over, and present the spectre of having to return to the site of the abuse?

We on these Benches will not support the amendments other than Amendment 21, well intentioned though we believe they are.

Lord Morrow Portrait Lord Morrow (DUP)
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My Lords, I rise to speak in support of Amendment 21 tabled by the noble Lord, Lord Farmer, and the noble and learned Lord, Lord Mackay of Clashfern.

The Bill’s family impact test issued by the Ministry of Justice stresses multiple times that a central policy intention behind the legislation is to promote opportunities for reconciliation where that is possible. I admire the stated aim, but this amendment reflects the view that the Bill as it currently stands lacks ambition in this respect. Without funding for essential marriage support services, this policy goal will mean little to struggling families across the country. Families who desperately want to stay together, but are at a loss as to how to move forward, need support. It is one thing to provide an opportunity for reconciliation, but another thing entirely to provide a means of reconciliation.

According to Relate, the UK’s largest provider of relationship support:

“Evidence suggests that low income families are likely to experience increased strains on their relationships because of financial pressures. Their financial vulnerability also means they are less able to afford relationship support.”

This may well be having a very real bearing on family breakdown statistics. By the age of five, almost half of children in low-income households have seen their families break apart, compared to only 16% of children in higher-income households. Funding for counselling services could make all the difference to families who struggle to get by financially—families like Laura’s, on a household income of £16,000 per year, who told Relate:

“I want my husband and I to stay together because I know we truly love each other, as well as for the sake of the family, but desperate situations push people towards desperate measures, such as contemplating divorce. I am trying to stay strong for my family by blocking things out emotionally, which I know isn’t healthy but I have nowhere to turn. What we need is to speak to somebody objective who can help us to find a way forward. I agree there should be more funding for relationship support—healthy relationships create healthy families which in turn creates healthy citizens.”

Unfortunately, loving someone is not always enough and there may come a time where we all need more support and guidance. In a context where the Government are moving to reduce the time for reconciliation by promoting divorce within six months, it is vital that we invest more in marriage support and focus some of that money specifically on the shortened divorce process. This amendment rises to this challenge and is particularly important because, unbelievably, answers to Parliamentary Questions reveal that the Government are not allocating any funds for marriage support through Section 22. This is extraordinary, especially when we consider previous government undertakings in this regard. On 1 February 2017, for example, the Minister in the other place stated that

“the Department intends to continue to work very hard to ensure that marriage gets the support it needs to continue being a strong bedrock for the families and the children for whom we want to secure the best possible outcomes in the future.”—[Official Report, Commons, 21/02/17; col. 389WH.]

It also makes no sense. The Relationships Foundation’s Cost of Family Failure Index in 2018 estimated the annual cost to the Government of family or relationship breakdown to stand at £51 billion—my colleague and noble friend Lord Browne has already referred to this figure—which is up from £37 billion 10 years ago. The scale of this crisis demonstrates that proper investment in marriage support services is long overdue. The move would also be in line with public opinion. ComRes polling from 2017 showed that 76% of British adults believe that extra money should be spent strengthening families.

In this context, where the Government are proposing to reduce the time for divorce and thus reduce the opportunity for reconciliation within divorce, it is especially vital that they now adopt a new approach to marriage support. Providing funding to parents in conflict, who do not have to be married, is no substitute for marriage support, which should not be limited to those who have children. We need a significant, serious focus on marriage support.

When difficulties arise in relationships, giving up often seems easier than going on. This Bill risks making giving up easier, while doing little to meaningfully support those who want to go on. It communicates the message that marriage breakdown is often a sad inevitability and that, if you get to that point, the law will make it easier for you to “get the relationship over with”. I suggest to noble Lords that we can do better than that. Let us be a country that believes in fighting to rescue relationships, so that when they hit the rocks our response is not simply to mitigate the fallout, but to offer a lifeline of support to families in the form of counselling. Amendment 21, and indeed Amendment 3, will help us rise to this challenge. I very much hope that the Government will support this.

Lord McCrea of Magherafelt and Cookstown Portrait Lord McCrea of Magherafelt and Cookstown
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My Lord, I support Amendment 21 and Amendment 3. Amendment 21 speaks about funding for marriage support services, and says:

“In subsection (1)(a), at the end insert ‘, both before and during a marriage’.”

The reality is that many young people are not really prepared for marriage. Many go into it with great expectations: that everything will be rosy, everything is going to be beautiful, and that they are going to have a great life. They do not realise that the reality of life for everyone can be facing difficulties and hardships—not only financially, but in family circumstances.

There are many reasons for family breakdown and, certainly, each one is a tragedy. There used to be an old statement in our home: “a family that prays together, stays together”. It is also true that a family that talks together can stay together. The tragedy today is that families no longer talk together the way that they once did, because they are talking into an iPhone or an iPad. I was raised on a farm, and when I was a child there was a large family table we sat around and talked together. The reality is that, in the homes built today, you could not do this because the kitchen or living room is so small the family could not get around the same table. So where do they go? They go to their rooms. They used to sit before a computer but it is not like that any more; they just sit with an iPad. I sat in a home recently, where a family was gathered for a family bereavement. There was a young person of 17 years of age there. We were having conversations about the grandmother at the home, the background of the family and their upbringing and the day that young person’s mother got married. That young person heard nothing. We sat for 35 minutes. He did not speak, and neither was he listening because he was completely absorbed in his phone.

The Government should do more to encourage families to talk together. Then, I believe, many of them will stay together. The tragedy is, even within relationships, husbands and wives no longer converse as they used to. If you have a problem, the best way is to share it because a problem shared is a problem halved. Therefore, there should be more preparation for young people before marriage, and during marriage they should receive more encouragement. Certainly, when it comes to the possibility of a family breakdown, society should encourage the family unit to stay together—not to make them unhappy, but to build relationships again.

Baroness Chakrabarti Portrait Baroness Chakrabarti
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My Lords, I am so grateful to all noble Lords who spoke about this group. We do not support families by lecturing them, hectoring them or even creating obstacles to divorce. We support families with fellowship, with community, with solidarity and with social infrastructure. As I have said, I would like people to have access to lawyers—we wicked lawyers, but when you need us we are not so wicked—in time times of trouble, but also to counselling and relationship support long before there is trouble and, indeed, all through their lives. I really have taken on board the points that were made by two noble Baronesses at least about timing, because this support should be available very early in life and, as noble Lords opposite have said, perhaps even before people entertain the idea of marriage. That was the reason for supporting the noble and right reverend Lord, Lord Harries, in Amendment 3, although I take the points about timing and do not want to delay noble Lords further on this.

I hope the Minister will take the opportunity, in responding to this group, to set out what the Government propose more generally by way of this kind of provision for counselling and relationship support, because it seems, to me at least, all-too scant at the moment.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I will begin with Amendment 3, moved by the noble and right reverend Lord, Lord Harries of Pentregarth. I am grateful to the noble and right reverend Lord, not only for his thoughtful contribution to the debate and the scrutiny of the Bill but for meeting me to discuss his proposals.

The Government share the sentiment underlying this amendment, and the observations of a number of noble Lords that couples considering divorce should have available to them information about the services in question, and that where reconciliation is still possible, the legal process should not dim that prospect. On the second point, the Bill introduces for the first time a minimum timeframe of 20 weeks from the application to when the court can be asked to make the conditional order of divorce. The Bill also retains the two-stage procedure for obtaining a divorce under the distinctive procedure of English law, so that each step on the way to divorce requires an intentional and, indeed, conscious decision to end the marriage.

The Government’s view is that best prospect of saving a marriage is when difficulties first arise, not much later when divorce proceedings have begun. In the University of Newcastle evaluation of pilots to test the information-meeting provision that was central to the no-fault provisions in the now-repealed Part II of the Family Law Act 1996, the report noted:

“If the objective of providing information is to facilitate marriage saving, the evidence suggests that it will be more effective if it is provided while spouses are still together and before they make the decision to live apart.”

The Government share the desire to encourage more couples to resolve any disagreements about children or financial arrangements through mediation, avoiding, wherever possible, the need to seek a court adjudication. For these reasons, the Government do not support this amendment but believe that its laudable ends can be achieved by other means.

On relationship support services, we will work with the Department for Work and Pensions, which is now the relevant department responsible for these services, as the noble Baroness observed, to see what more can be done to improve the information about and signposting to such services, and in places where couples experiencing relationship difficulties can best access that information. That has long been a challenge. I reassure the Committee that the Government are highly motivated to make sure that the signposting of mediation services, in particular, is available. It is not only desirable in itself that couples receive the best information available about mediation; it helps to realise the Government’s stated aim to reduce conflict when a marriage gets into trouble, which is particularly important where children are involved.

Her Majesty’s Courts & Tribunals Service has already created a successful online system for applying for divorce. To allow for implementation of the provisions in the Bill, that system will need to be updated. The Government fully intend to use this updating process as an opportunity to signpost applicants, where appropriate, to relationship support services and mediation services. I cannot at this stage provide operational details but I am happy to make that commitment to the noble and right reverend Lord. We will take this opportunity to ensure that information about mediation, in particular, is given at the earliest stage: when divorce begins and before any ancillary application is made in respect of children or financial arrangements.

Information provided through the online divorce service might be supplied in an intelligent way. For example, information about relationship support might be withheld from applicants or respondents if domestic abuse is flagged up as an issue because we need to consider the needs of vulnerable spouses. If a victim of domestic abuse has applied for a divorce, having mustered the courage to do so, is it right that information should come back from the court suggesting marriage counselling, or if the court sends their abusive partner what may be construed as official encouragement to reconcile? Digital technology will provide us with a useful opportunity to tailor information. We will address how best to protect the interests of victims of domestic abuse, as an example, when developing these systems. In addition to the online system, court forms will need to be updated for those who still need to make paper-based applications. Again, we will use that as an opportunity to signpost services by putting information on the forms.

Finally, Her Majesty’s Courts & Tribunals Service will be consolidating and streamlining information on the website about how to approach the matter of divorce. That will be a first port of call for many people considering bringing their marriage to an end. I hope that the commitments I have given will reassure noble Lords that we will take steps to improve information and signposting to relationship support and mediation, and that we are beginning to address ways in which to do that.

Amendment 21 seeks to amend the existing discretionary power available to the Secretary of State through Section 22 of the Family Law Act 1996, which is a power to provide grants for support services and marriage counselling. The amendment makes it mandatory that such grants be made under this power. That power is 25 years old and it sat alongside an attempt at broader reform for no-fault divorce, with a key objective of saving saveable marriages. The Government now fund these services in various ways—some of them, I suggest, quite innovative.

Section 22 has not been used to make block grants directly to voluntary-sector organisations for some time. Indeed, in delivering the £39 million Reducing Parental Conflict programme, the Department for Work and Pensions has found that making grants to voluntary-sector organisations has not always produced the best results. Working in partnership with local authorities and local providers, often using contracts rather than grants, has proved more successful at reaching those who are most in need of such support.

Amendment 21 would require funding to provide for marriage support services to be available when an application for divorce has been made. As I mentioned, a previous attempt to legislate for no-fault divorce had at its core mandatory attendance at information meetings, prior to making a statement of marital breakdown. The purpose of that meeting included providing the parties with information about marriage counselling. Academic research into various models of information meetings found that they came too late to save marriages and tended to incline parties who were unsure towards divorce. The Government do not believe that making provision for counselling within the legislative framework of divorce is the best way to support marriage. Relationship support at that point will most often be too late.

The amendment also seeks to make grants mandatory for marriage support services to be available at unspecified points before and during marriage. There is a much wider debate to be had as to how government as a whole can address the issues that lead to relationship breakdown. Simply funding marriage support services may not get to the heart of the matter, nor reach the right people at the right time. However, I agree that there is a need to test what works in helping couples stay together, where appropriate. The Government are open to the evidence on this. The Reducing Parental Conflict programme is currently gathering evidence on what works in relationship support. Around a third of the programme’s budget is used to deliver support to families through contracts with specialist suppliers of relationship support services. Funding for different ways to support relationships will be a cross-government issue, to be considered alongside other steps being taken to support families.

I understand the desire of noble Lords to see that the marriage relationship can be supported, but it has to be supported at the right time. That is not at the point of an application for divorce on the grounds of irretrievable breakdown, which is why we do not consider that the Bill is the right vehicle for tackling the wider issues that lead to relationship breakdown. It is targeted at reform to reduce conflict within the legal divorce process. I am obliged to noble Lords for their input to this debate. I understand the desire to ensure that we can address relationship breakdown at the right time. I recognise that a cross-government initiative will be required but, at this stage, I invite the noble and right reverend Lord to withdraw Amendment 3.

Lord Harries of Pentregarth
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I thank all noble Lords who have spoken to these amendments. I was slightly surprised that my noble friend Lady Meacher was so hostile to my amendment, as it would not require the divorcing couple to do anything and would not in itself delay the process of divorce. It would mean simply that they receive information, treating them as mature human beings who are aware of the information available.

As the Minister said, I had a very useful meeting with him, in which he outlined some ways of making people more aware of relationship support and mediation services through the internet. We talked about the possibility of there being a question on the original application form asking the applicant whether they are aware of these services. Perhaps when he comes back on Report he could spell out in more detail what he has said to the Committee and to me. I realise that this is not a matter for legislation, but perhaps he could put on the record the kind of thing which might appear on either the original application or online. With that in mind, I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

House resumed. Committee to begin again not before 7.30 pm.

Divorce, Dissolution and Separation Bill [HL]

(2nd reading (Hansard): House of Lords)
(2nd reading (Hansard))
(2nd reading (Hansard): House of Lords)
Wednesday 5th February 2020

(1 year, 2 months ago)

Lords Chamber

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Ministry of Justice

Second Reading

Moved by

Lord Keen of Elie Portrait Lord Keen of Elie
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That the Bill be read a second time.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, this is a Bill for every family going through the upheaval of divorce. No one marries or forms a civil partnership expecting it to break down. No one wants a marriage or civil partnership to fail, but the unfortunate reality is that some marriages and civil partnerships do fail. The irreparable damage will have been done long before an application to the court to bring a legal end to the relationship. The Government believe that the law should deal with that reality in a way that not only protects society’s interests in marriage but avoids making the legal process of divorce or civil partnership dissolution unnecessarily antagonistic. The end of a marriage will always be difficult for the couple and children involved. It cannot be right that the law adds to that by incentivising the attribution of fault. Marriages fail for many reasons, and the responsibility may be shared. The simplistic allocation of blame cannot reflect reality and does not protect marriages.

In developing the proposals before the House today, Ministers have reflected on views that emerged during the Government’s consultation last year and on what legal practitioners and couples themselves have said. The Bill has a clear purpose in seeking to reduce the conflict that can arise from the current requirements for obtaining a divorce. That is all the Bill does. It will not make divorce painless or an easy choice. It will not take away the difficult decisions couples have to make about their future lives, but it will pluck out the legal sting whose effects can be felt long into the future. This is a matter on which there is wide support for change from the public as well as from legal practitioners. Removing unnecessary conflict from the legal process of divorce will, we believe, create a more amicable environment in which a couple can agree their future arrangements. There is a strong evidence base and consensus underlying the proposals in this Bill. It intentionally does not seek to change other aspects of divorce law where the evidence in support of reform has yet to be gathered and for which a consensus on the nature of the reform needed has yet to emerge. Those are quite separate issues on which we are open to be led by evidence.

Although it is 50 years since the Divorce Reform Act 1969 gave rise to the law we now have, the existing law is often misunderstood by couples when they come to use it. Couples are often surprised to discover that the law requires either a period of separation of at least two years or one party to allege fault against the other. A couple who want to divorce amicably can find the law pulling them in a different direction.

The Government’s reform allows divorce and civil partnership dissolution only on the ground that the marriage or civil partnership has broken down irretrievably, a ground we will retain. Under the existing law, however, the person who seeks a divorce must currently satisfy the court of at least one of five facts, as the statute calls them, before the court can hold that the marriage has broken down irretrievably and grant the divorce. In the dissolution of a civil partnership, the material difference is that the adultery fact is not available. It will be convenient to speak in terms of marriage and divorce, but the principles and effects apply equally to civil partnerships and their dissolution.

About two out of five divorces take a separation route. If both spouses agree to the divorce, they must have been separated for at least two years before an application to the court can be made. If the other spouse does not agree to the divorce, five years is the only separation fact available. It seems to us very unlikely that a marriage can be patched up when the people in it have been living separate lives for years. The marriage is likely to have been over by the time they separated, but a separation fact is the only route available if someone is unwilling to make allegations about the other spouse’s conduct. For victims of domestic abuse, including controlling or coercive behaviour, doing so may well be difficult and, indeed, unsafe. Having to live apart for so long will for many people only delay the inevitable legal ending of the marriage. It can also be difficult, not least because the court can make final orders on the financial position of the parties only on divorce.

Some people will say that the Government are introducing divorce without blame, but the truth is that we have had for half a century a route that allows couples to divorce without blame and by mutual consent. That route, however, requires them to be in the limbo of separation for at least two years: living separate lives, but still legally married and unable to make arrangements for the future. The Government do not believe that this requirement serves a useful purpose. Furthermore, the complex rules around what counts as a continuous period of separation can deter people from trying to move back together lest they have to start the separation period anew.

About three out of five divorces proceed on the basis of the conduct facts: the person seeking the divorce must evidence behaviour, adultery or, in rare cases, desertion on the part of the other spouse. With no prior period of separation needed, the law incentivises making allegations about conduct for those who do not want to wait. Sometimes, one spouse has behaved despicably. As I have said, that does not always mean it is safe for the other to put the details to the court, knowing their spouse will see them. Sometimes neither spouse has done anything particularly wrong and a series of trivial incidents might be presented so that they pass muster. The court itself has no practical means by which to investigate allegations made about a failed marriage and must take these at face value. A mere handful of cases proceed to trial, even among the 2% of cases in which respondents indicate their initial intention to contest the divorce. Only some of those dispute the irretrievable breakdown of the marriage; for most, it is the choice of fact and the supporting detail of the allegations. It is plainly absurd that the law facilitates conflict over the detail when the couple agree that the marriage is over.

Nothing in this legal drama gets to the real reasons why the marriage failed or helps people to move on. Worse, allegations can grind away at the majority of respondents who do not contest the divorce. No one wants to face a catalogue of real or perceived failings in their most intimate relationship—allegations that can sour attempts to make arrangements about the future. Conflict can have a particularly damaging and, indeed, lasting impact on children and their view of each parent. It can undermine good co-parenting; in fact, research shows that it is conflict between parents that is linked to greater social and behavioural problems among children rather than the separation and divorce itself. The law is also completely out of step with the constructive conciliatory approach that family law takes in other areas and that practitioners take every day.

This Government believe it is time to change this damaging situation. The Bill creates the conditions for a better prospect of moving forward more amicably and constructively, which is also the approach taken by members of Resolution. Indeed, Resolution’s chair, Margaret Heathcote, has said that

“because of our outdated divorce laws”

practitioners have effectively been working

“with one arm tied behind their backs.”

This Bill will change that. It is also a Bill with children’s best interests at heart.

With all this in mind, I turn briefly to the main provisions in the Bill, to explain the revision of the current process within the framework of the existing law. It is not a new process, merely an adjustment of what already takes place. The Bill therefore keeps the two-stage process that will be familiar to your Lordships as the decree nisi and decree absolute. In a modernisation of language to help couples, these will be called “conditional orders” and “final orders”, in line with civil partnership law. However, we are introducing for the first time the option for an application for divorce to be made jointly by both parties where the decision to divorce is a mutual one. The need to confirm to the court that it may make the conditional order as well as to apply to the court for the final order means that a divorce or dissolution is never automatic but remains intentional at each stage and within the control of the party, or the parties where an application is made jointly.

This is what the reform will do. It will retain irretrievable breakdown as the sole legal ground for divorce and dissolution. It will replace the current requirement to evidence irretrievable breakdown through a conduct or separation fact with a statement of irretrievable breakdown of the marriage or civil partnership. Couples will for the first time have the option to make this a joint statement, reflecting for some couples their mutual decision to divorce.

It will remove the possibility of contesting the decision to end the legal relationship. A statement of irretrievable breakdown will be conclusive evidence to the court that the marriage or civil partnership has irretrievably broken down. It will introduce a new minimum period of 20 weeks from the start of proceedings to when the applicant or the joint applicants can confirm to the court that a conditional order may be made. There is currently no minimum period, meaning that decrees nisi are reached as quickly as couples and the court process allow.

Our proposal will allow time to consider the implications of the divorce. Between 2011 and 2018, around two-thirds of cases reached conditional order in less than our proposed 20-week minimum period. About one in 10 cases did so within eight weeks, and four in 10 cases between nine and 16 weeks. Our reform is in no measure introducing so-called quickie divorce; for around 80% of couples the divorce will actually take longer than it does currently. In addition to the new minimum period of 20 weeks, the six-week minimum period between conditional and final orders will remain. As is the case now, the divorce will not be able to proceed to conditional order unless the court is satisfied in relation to service on the respondent.

It is time to end what has been termed the blame game. It is time to minimise the harm to children that can arise from the legal process and not give it a chance to worsen where conflict already exists. The reforms that we have set out today will deliver a revised process of divorce that protects all our interests in marriage, reduces the potential for conflict and its impact on children, and is fit for the 21st century. I commend the Bill to the House, and I beg to move.

Lord Anderson of Swansea Portrait Lord Anderson of Swansea (Lab)
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My Lords, the Minister based his speech on what he termed realism, and he gave a number of figures to that effect. I think he was less sure-footed on the points of principle and where dangers or problems might possibly arise from the trend that he now accepts—although I say from the start that I broadly accept the case for the Bill. Your Lordships will be aware of the ecclesiastical law basis of much of our family law—“wives, wills and wrecks”. In the past it was linked with the concern of marriage as a sacrament—“Let no man put asunder that which God has ordained”—and I try, albeit very imperfectly, to look at issues through Christian spectacles.

The worthy aim in the past was permanence, however unrealistic in actual situations. Today we are moving in a different direction, with its own dangers. I saw one—perhaps absurd—example of such dangers in yesterday’s Daily Mail relating to a case in the US. The “Baywatch” star Pamela Anderson, who is a serial monogamist and perhaps an eternal optimist, was married on 20 January in what we are told was for both parties the fifth time. The marriage, we are told, lasted for about 12 days. That is perhaps the ultimate cheapening of the institution of marriage.

My experience is limited, but divorce was the bread and butter of young barristers when they started on their career. I was called to the Bar in 1969, between the Divorce Reform Act 1969, which established irretrievable breakdown, and the consolidation Act, the Matrimonial Causes Act 1973. It was of course the time of the remarkable Lord Denning, who, in spite of the legislation, pushed beyond the frontiers the case for vulnerable people, particularly women. He was extraordinarily progressive in his field, but extraordinarily reactionary in other fields—in what he might have called the “law of master and servant”, which I think we now call industrial relations law.

The procedure for a new barrister was very simple at the time. I had my precedents from Rayden ready and to hand in chambers. Solicitors would send me a brief to settle the divorce petition, with perhaps a dozen examples of conduct during, say, a 10-year marriage, with none of the 10 cases being particularly strong in itself but in aggregate making a case that appeared at first sight to be possibly formidable. Yet surely it is only in heaven that there is a marriage without such incidents over such a period—I speak as someone who has been married happily for 56 years.

As a young barrister, I began to doubt whether what I was doing corresponded with the realities of married life, with the 100% to 0% position on fault. In particular, I doubted whether this adversarial method was justified in the public interest, because of its effect on children and on the ultimate financial settlement. I regretted that there was no provision for mediation. Perhaps in closing the Minister might indicate the Government’s position on mediation—of trying to find, in very difficult personal situations and if possible, some means of reconciliation. It figures in no way in the Bill.

Further, in my early experience, I was asked to advise on whether legal aid should be granted to a petitioner on the facts and often said no in the public interest, because the grounds appeared to me to be so flimsy. I remember one case in which the potential petitioner said, “I am a doggy person; he is not a doggy person” and thought that this was simple grounds. Clearly, the state has an interest in not continuing an empty shell of a relationship, particularly if children are involved, but equally in not encouraging easy divorce. One is led to ask, what are the next steps? Is this the end of a process? Where ultimately will this trend lead? Therefore, although I broadly support the main thrust of the Bill, I have certain hesitations.

There is the question of time, for example, which was considered during the passage of the Family Law Act 1996, which was never brought into force. The then Government had proposed a minimum period of one year. Parliament disagreed, considering that not long enough, and amended the period to 18 months. Under this proposed system of unilateral divorce on demand, the period would be reduced to six months. That is 20 weeks between the start of proceedings and a further six weeks from the conditional to the final order. Further, the Bill gives the Government power to promise to change the period by SI. Could the Minister indicate whether he agrees with my analysis? It appears that the court may indeed reduce the period even further. What guidance do the Government propose to give to judges on the principles on which they should consider reducing the period further? Could the Minister confirm that my reading of Clause 1 in terms of timing is correct?

Yes, the Bill is broadly acceptable, but if the trend continues further along this road, I hope that the Government accept that there are real dangers.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull (LD)
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My Lords, from these Benches, I wholeheartedly welcome the Bill, enabling as it does no-fault divorce to be introduced to potentially take some of the tension and emotional strain out of leaving a marriage. It also enables joint petitions to take the sting out of what is already a difficult time. Having fault as a ground for divorce can lead to recriminations—something children traumatised enough at the break-up of their parents do not need to witness.

Another aspect is that one partner can petition and the other will no longer have the power to contest, even when it is apparent to all that the marriage has irretrievably broken down. Contested divorces are relatively uncommon, with only about 2% contesting the petition for divorce and only a handful of those going on to contest at the final hearing, but these are sad cases indeed and much unnecessary suffering can be caused.

If I may pray for the Minister’s patience, I will ask about the relevance of the spousal veto for trans people. As I understand it, when the Bill becomes law, if the spouse who has not transitioned refuses to grant permission for gender recognition, the transitioning spouse can petition for divorce; their spouse who has refused to sign cannot stop the divorce, or subsequently stop their spouse from formal recognition of the transition. It just seems wrong to me that, in some cases, recognition cannot take place unless the transitioning spouse gets divorced. I understand that the Government are adamant that the spousal veto is without the scope of the Bill, but I am sure the Minister is aware of the strength of feeling and sense of injustice felt by trans people—indeed, by anyone who supports their rights—not to be discriminated against in this way.

I see that the noble Baroness, Lady Hunt, is in her place today. I welcome her to this place and thank her for all the brilliant campaigning work that she has done for the LGBT+ community. I see that her name is on the speakers’ list to make her maiden speech in this debate; I know she will make a great contribution towards furthering the cause of equalities in this place.

I would like to raise a few other concerns for people who may conceivably be disadvantaged by these changes, and I would appreciate the assurances of the Minister on these points. First, I will address the 26-week overall period. There is currently no minimum time in which a divorce can be granted. The introduction of a minimum overall timeframe of 26 weeks seems helpful in ensuring that couples wishing to divorce do not act in haste and repent, as the saying goes, at leisure. We know that both partners need to have been married for at least a year, in most circumstances, but there is no period of reflection built into the divorce process, as recommended by the Law Society and mentioned by the noble Lord, Lord Anderson.

A couple could have a row, then if one partner completes the petition application—maybe online—the whole legal process would commence. Most marriages have their rocky patches but, in my view, a period of reflection would facilitate sober consideration of the enormity of the step to be taken, enabling them to think about it and discuss it with a marriage counsellor. If they still feel the same at the end of the period of reflection—the Law Society recommends that the first three months be litigation-free—then nothing is lost. The Law Society also recommends wider support, information and signposting to marriage and relationship support services, and to non-court-based dispute resolution services.

Secondly, I know that financial settlements are deemed outside the scope of the Bill, but the Law Society briefing is clear:

“We also strongly recommend that there is very clear signposting within the online divorce and dissolution process to the need to properly resolve financial matters before final decree.”

If the final decree is awarded before a financial order is made, there must be clear evidence that there will be no meaningful financial prejudice. I do not know how we build this into the Bill, but I think it is exceptionally important, given the tortuous lengths to which some people will go to advantage themselves financially in the divorce settlement.

Thirdly, there is the question of when the six months starts. In my view, that has to be when the petition is served, not when it is filed. Professor David Hodgson, of the International Family Law Group, says:

“There is no duty to serve at the start of the 20 weeks. It can be any time before the start of the first decree.”

He makes the point that one party could conceivably have only six weeks to respond. However, if the six months starts on the date of service, what would happen in the case of abandonment, where the other party cannot be traced, or where they are away for weeks at a time? In such exceptional circumstances, I think there would need to be a phrase saying that every reasonable effort must have been made to serve the petition before the 20-week first-stage clock starts ticking.

Those are the main issues that I wanted to raise. However, the Law Society has also raised a number of smaller issues. One is the cost of applying for a divorce. To my mind—and that of the Law Society—at £550 the application fee is too much and is discriminatory to couples without that sort of money available. It would be pretty counterproductive if a couple had to stay together, with all the misery and distress that entails, because they could not afford to get divorced.

The Law Society also thinks that simpler language would help people, particularly where English is not their first language. I appreciate that some simplification has already been made to the terms, such as replacing “decree nisi” and “decree absolute” with “conditional order” and “final order” and replacing “petitioner” with “applicant”. In a society where, for some, English is not their first language, simple and straightforward language throughout would be particularly helpful. Let us have language that anybody—even totally non-legal people like me—can understand. And the issue is not just language but the complexity of the application process. It needs to be as simple and straightforward as possible to be fully inclusive to all.

I will leave Professor Liz Trinder of the Nuffield Foundation with the final word:

“Divorce will always be an extremely difficult time for couples, but these reforms will help make sure that the law does not make it worse”.

Lord Bishop of Carlisle Portrait The Lord Bishop of Carlisle
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My Lords, I am greatly looking forward to the maiden speech of the noble Baroness, Lady Hunt of Bethnal Green, and I welcome her to this House, which I am sure will benefit greatly from her expertise, campaigning zeal and commitment to debates on justice and equality.

Let me begin by saying that I appreciate the motivation behind the Government’s Divorce, Dissolution and Separation Bill. As we have already heard, they want to make divorce less complicated, less acrimonious and less harmful. Who could possibly argue with that? I like the revised terminology that the Bill suggests, and I agree that, at first sight, this looks like a sensible response to shortcomings in a process that is currently unsatisfactory and often seems to lack transparency or fairness.

However, this deceptively simple piece of legislation actually creates more difficulties than it resolves. One has to do with the nature of marriage itself and our commitment to it as a society—I shall confine my comments to marriage rather than civil partnership.

Marriage, as we all know, is not just a social arrangement between two adults or even a contract that can be ended at will. It involves solemn binding vows and has for centuries been a significant building block for social cohesion. Its benefits are generally recognised, not least for the upbringing of any children resulting from the marriage. While in certain circumstances divorce may well be the least-worst option for some couples, the Bill promotes individual choice over and at the expense of the sort of commitment, self-giving and sacrifice that lie at the heart of the marriage covenant.

Reducing divorce to a statement made by one party that the marriage has broken down undermines the seriousness with which marriage and divorce are regarded and has the unfortunate effect of shifting any power in the process away from the respondent to the person initiating the divorce. What is more, studies suggest that making divorce quicker and easier will significantly increase the already high divorce rate, with all the implications that has both for human misery and financial cost. The Relationships Foundation estimates that family breakdown costs the UK as much as £51 billion every year.

The people experiencing that human misery most acutely will be precisely those who are most vulnerable, in particular children, but also those partners who wish to contest a divorce but would now no longer be able to do so. It may well be that only 2% of divorces are currently contested, but that still a