Divorce, Dissolution and Separation Bill [HL]
Tuesday 7th January 2020
(4 years, 10 months ago)
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Divorce, Dissolution and Separation Bill [HL]
Wednesday 5th February 2020
(4 years, 9 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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 (Lab)
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 (LD)
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”.
The Lord Bishop of Carlisle
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 amounts to more than 2,500 cases each year. It hardly seems just that someone who wants to challenge irretrievable breakdown should no longer be able to do so. If the Bill simply proposed that divorce could happen when both parties agreed, which is one option, that would be one thing, but to suggest, as it does, that the divorce can go ahead when only one party wants it seems perverse. As for the children, it will further threaten the stability that marriage is meant to provide and contribute still further to the growing incidence of mental health issues among our young people. Divorce is far more than just a temporary crisis; it has long-term effects, as I know well from experience in my own family. I am quite sure that, in this respect, I will not be alone in your Lordships’ House.
A further issue concerns what the Family Law Act 1996 called taking
“take all practicable steps … to save the marriage”,
not least since the respondent may not even hear about the divorce until as little as seven weeks before a court issues the final decree. Little time or consideration is given to any attempt at mediation, reconciliation or the restoration of what has been lost, as the noble Lord, Lord Anderson, pointed out.
It therefore comes as no surprise to learn that the outcome of the Government’s consultation on the Bill, mentioned by the Minister, was a majority not agreeing with the replacement of the so-called five facts with a notification process. People realise that when there is no longer any need to demonstrate irretrievable breakdown, and when there is no longer any possibility of contesting the alleged breakdown, we will in effect be introducing unilateral, no-reason divorce.
We need to reduce the divorce rate in this country, not increase it. I cannot therefore support the Bill as it stands.
Lord Mackay of Clashfern (Con)
My Lords, in view of my having introduced the Family Law Act in its previous form, it will not surprise your Lordships that I entirely support this Bill.
I think that I understand the nature of marriage and in my long-ago youthful days I took part in quite a number of defended divorce cases. The idea that these were conducive to saving marriage, elevating its status or anything of that kind is absolute nonsense. I was involved in one divorce case that attracted a great deal of notoriety at the time: the Duke of Argyll against the Duchess. Those of your Lordships who are old enough will remember that it was anything but helpful to the cause of marriage.
It is important to realise, as is obvious, that marriage involves two people and that their continued working together is essential for the continuation of the marriage. The idea that a marriage can continue when one party has lost interest in it is a complete fallacy. The marriage stops, in effect, if one of the parties acts in such a way that they no longer perform the marital obligations. As I have said, the idea that anything can come out of a defended divorce seems extraordinary; I shall be very interested to hear if anybody taking part in this debate is able to say that they have been involved in a defended divorce which, in the result, had good effects for the parties to the marriage and for any children.
It is essential that some detail of this Bill should be looked at in Committee; it is not my purpose today to do that, because this is Second Reading, which deals with the principles of the Bill. I could not be otherwise than in favour of removing the idea that divorce is based upon fault—it is a completely superfluous idea, really, in the present situation. There have been very few, if any, judicial adjudications on that subject in recent years. One was a very unproductive case that I think has in some ways stimulated the need for this Bill. There should be time for both parties to know what is going on. The question of when the case starts is therefore quite important. There is no full definition in the Bill and, as has been pointed out, that service could be quite late is a somewhat dangerous aspect, which can easily be changed in Committee.
Another general point, which is also a subject for Committee, is that marriage in our generation—I am talking about those who are younger as well as the generation to which I belong—is subject to severe stresses, or very severe stresses in some cases. One of the most common is finance, though there are others also: interest in other people and all that kind of thing. These things can bring about problems in marriage. I think that very few people who have been long in marriage can say that there has never been any problem of any sort whatever. It is important, therefore, that the state provides help in that situation. The Bill that I put forward in the past, which became an Act of Parliament, provided for state help. Most of the provisions are still in place and can therefore be utilised.
Something that I think may be dealt with later in more detail is that, although at the very last minute it can look pretty hopeless—my experience has been that if it gets to almost the last minute, it is very difficult to save the situation—the statistics show that about 10% of the cases in which a petition has been lodged never go forward to completion. That suggests that about 10% of these are settled in some way. It is important to use every possible opportunity to try to save a marriage, and therefore it would be very useful, for example, to look to introduce knowledge and information about that at the very last stage and of course before. They should not give up until the last minute.
That is really all I want to say. I should mention that the Christian Institute sent me a kind letter explaining its attitude to this Bill and that it was sending it to me knowing that I did not agree with what it was saying. I expect we will hear some of that later, but the real point is that scripture, with which I am reasonably familiar, requires a code of conduct for those who observe it but also provides for civil law which may deal with another situation. Moses was dealing with a particular situation, our Lord said, in relation to the problems of divorce in his day. We have a duty to do that, whatever our view may be of the sanctity of marriage, which I strongly believe in. I also strongly believe that it is best for all of us if we can observe it and keep it. I have the great blessing, due to the long-suffering nature of my spouse, of having been married happily for 62 years.
It is also my privilege not to stand any longer in the way of the maiden speech to which we are all looking forward.
Baroness Hunt of Bethnal Green (CB) (Maiden Speech)
My Lords, it is a great honour to address your Lordships’ House for the first time. My introduction was followed swiftly by a general election and the EU withdrawal Act. Neither presented ideal opportunities for a non-controversial maiden, and I beg your Lordships’ forgiveness that I have waited until now to speak.
I thank your Lordships for such a universally warm welcome. In my previous roles at Stonewall, particularly as CEO, I was able to witness the work of this House. I have seen the Lords work together across the Benches and make the world a better place for those who are so often left behind by society. It is the way your Lordships’ House works, with courtesy, consideration and determination to do the right thing, that led me to accept the invitation to serve here. I am grateful to the right honourable Theresa May for giving me this opportunity. I am sure the noble Lord, Lord Woolley, who was introduced at the same time as me, would agree that who we are matters as much as what we do. I know from the letters and emails I have received, particularly from young women, that my being here matters to them. Seeing somebody like them on these Benches makes them curious about what we do here. That is important for all of us.
In the spirit of celebrating relationships, I take this opportunity to thank my partner Caroline. Caroline has always stood by my side. Sometimes I stand behind her, and sometimes she stands behind me, but mainly we stand next to each other. I know that I would not be here without her support and love. I am also very grateful to my supporters, the noble Lord, Lord Cashman, and the noble Baroness, Lady Bull. If I am able to make half the contribution that they make to this House, I will be satisfied. My thanks also to the noble Baroness, Lady Watkins, for her guidance and of course to the noble and learned Lord, Lord Judge, and his exceptional staff, who have answered all my questions, from the mundane to the profound, with patience and warmth.
We are here to talk about divorce, and I will refrain from talking about my own youthful experiences. Nor will I reflect on how a no-fault divorce would have been helpful to me. What I will say is that, as a young gay woman, neither civil partnership nor marriage was an option for me. When it therefore became an option, I—and many others, I suspect—thought I should give it a go. Just because a person can enter a civil partnership or marriage does not mean they necessarily should.
I welcome an opportunity to simplify our institutions and how we use them. Making it easier to divorce when a relationship has broken down is vital. Your Lordships will be aware that in this country we now have four partnership models: marriage for opposite-sex couples, marriage for same-sex couples, civil partnership for opposite-sex couples and civil partnership for same-sex couples. This House heard the compelling arguments to extend civil partnerships to opposite-sex couples, and I agree with them. I also know how important civil partnerships are to same-sex couples. But do we need four separate models?
I take this opportunity to declare an active interest in God, and, as a practising Christian, I understand how important it is to some people that marriage for same-sex couples is different from marriage for opposite-sex couples. I am not sure whether it remains necessary, however, to make the legal distinction between the two; the so-called “quad lock” that prevents the Church of England marrying same-sex couples could remain in place without the need to maintain two separate legal institutions. I am also aware that, as the Minister referenced, some specific issues apply to opposite-sex marriages but not to same-sex marriages. This is my maiden so I will, in keeping with the title, refrain from giving a precise explanation as to why only opposite-sex couples can commit adultery. Like the quad lock, adultery for opposite-sex couples could be retained—your Lordships are most welcome to it—but I still think that we could simplify our institutions.
As the noble Baroness, Lady Burt, has already outlined, there is an unintended consequence of retaining these multiple models. The Gender Recognition Act 2004 pre-dates the Marriage (Same Sex Couples) Act 2013. When a couple is married and one person in that marriage transitions—that is, changes sex—and wishes to receive a gender recognition certificate, their partner must consent to change their marriage from an opposite-sex one to a same-sex one, or vice versa. If the partner refuses, their spouse cannot receive a gender recognition certificate. So if Laura is married to Michael—they have an opposite-sex marriage—and Laura changes and becomes Simon, Michael has to agree that their opposite-sex marriage can become a same-sex marriage. If Michael refuses, Simon cannot receive a gender recognition certificate.
Of course, Simon and Michael may not want to stay married. It currently takes two years to receive a gender recognition certificate, and the introduction of no-fault divorce will make it easier for them to separate before Simon applies for his new certificate. If Michael does not want a divorce, however, he currently has the power to stop his spouse transitioning. This does not seem fair or right, and his right of veto exists because marriage for same-sex couples is a different institution from marriage for opposite-sex couples.
Making divorce easier is common sense. It helps couples navigate more easily what is often a distressing time. However, I would ask government that we explore opportunities to simplify things further. Marriage is marriage in the eyes of the law, and as a nation we are proud that we extended it to same-sex couples. Anything we can do to help trans people, and their families, navigate the changes that are happening in their lives seems sensible too.
Lord Hope of Craighead (CB)
My Lords, it is a very real privilege for me to follow the noble Baroness and to be the first to congratulate her on an excellent and indeed compelling maiden speech. As we gathered from what she said, she served for 14 years with Stonewall, for much of it as its chief executive. The name Stonewall calls to mind a fixed, immovable object. But under her leadership—we have heard about her campaigning skills—that was very far from the case.
“I grew up, learnt, fought, cried, cajoled, persuaded and sometimes we triumphed. All with the most amazing group of people you can imagine”,
she has said of her time with that organisation. It is no exaggeration to say that during her time and under her leadership, far from standing still, the organisation transformed the way that LGBT rights are respected and understood across the country, to a degree that only a few years earlier seemed almost unattainable.
The organisation gave support to the development of the law by, among other things, helping to promote what became the Marriage (Same Sex Couples) Act 2013 for England and Wales, and the Marriage and Civil Partnership (Scotland) Act 2014. Partnerships were developed with many organisations across the public and private sectors too, and she has spoken in favour of bridging the gap that, sadly, still remains between faith leaders and LGBT communities. Given that unique background, and the insight into the subject which she demonstrated to us in her maiden speech, she has much to contribute to the work of the House, and we look forward very much to hearing from her many times in the future.
At first sight, to one who was brought up in the tradition of fault-based divorce, the reform introduced by the Bill is startling, but it does not require much thought and reflection to appreciate the benefits that will flow from it, so I support the Bill and hope that it will proceed on its way with the minimum of delay.
Rather like the noble Lord, Lord Anderson of Swansea, my experience as a beginner in the profession was in the early days of fault-based divorce—the undefended divorce. I was not as fortunate as my noble and learned friend Lord Mackay of Clashfern, who had defended divorces. My experience was always that they were undefended, but fault in one way or another still had to be proved. The concept of the irretrievable breakdown of a marriage had not yet been invented, nor had separation with consent. Adultery, desertion or cruelty were the grounds available.
The easiest way to divorce where both parties were reconciled to the fact that the marriage was at an end was to allege adultery. All you needed, if you were bringing proceedings, was for the other party to book a hotel room, arrange to be there with the paramour on a given date, provide a photograph to enable him—it was almost always him—to be identified and employ two private investigators to visit the room on the prearranged date. It was a bit of a charade, but it was in fact no laughing matter. The stigma of having committed adultery was unavoidable; so, too, if this was the ground relied on, was that of cruelty.
Happily, the grounds currently available in Scotland are based on irretrievable breakdown, matching those available in England and Wales, which the Bill seeks to replace. As far as I know, a similar reform has not yet been proposed for Scotland, but it might make sense for it to follow this example.
Why do I support the Bill? Its immediate effect is to remove the elements of blame and conflict from the process. Those practitioners who are much closer to the realities than I ever was will know far better than I do what this means. A chance conversation which I had the other day with a recently qualified lawyer who now handles divorces in London brought this point home to me. “Please, please, pass the Bill,” she said. “The culture of blame does so much damage. It makes sorting out all the other things that need to be sorted out so much more bitter and difficult.” The fact is that the process is hard enough without having to attribute and prove blame for the breakdown. The same can be said where a civil partnership breaks down irretrievably, so I support what the Bill seeks to do there, too.
I have, however, two concerns about possible effects of the Bill in Scotland. I am conscious that this is a Second Reading debate, not Committee, but I should like to make these points. The first relates to Clause 6, which extends to Scotland under Clause 7(2). Surprisingly wide delegated powers are to be conferred on the Lord Chancellor in relation to Scotland, including the power to amend, repeal or revoke an Act of the Scottish Parliament if that is consequential on any provision made by the Bill. These powers are surprising, given that the subject matter of the Bill has nothing to do with divorce, dissolution and separation in that jurisdiction. Why is this needed and what will it be used for? Have the Scottish Government been consulted and can the noble and learned Lord assure the House that their consent will be sought if the power is ever to be exercised?
I must stress that that is not an idle question. I take as an example paragraph 58 of the schedule, which amends the definition of exempt transactions in Schedule 1 to the Land and Buildings Transaction (Scotland) Act 2013. Under paragraph 4, a transaction is exempt if it is in connection with a divorce that is effected in pursuance of a court order or an agreement made in contemplation of the divorce. Paragraph 58 removes the words in paragraph 4(a), which describe the orders that are currently made in divorce cases in Scotland, and replaces them with words that do not. That seems to be designed to accommodate in Scots law the reformed system being introduced for England and Wales, but the way this is being done is surely a mistake. It creates a gap in the definition which may well deprive parties in Scotland of the benefit of the exemption. I should be grateful if the Minister would look again at this provision and consider carefully whether it should be amended, or perhaps removed. I cite that as an example of my concern about the scope of Clause 6.
My second point is on a jurisdiction issue. The availability of divorce on the basis of a unilateral, unchallengeable statement may seem an attractive way out of an unhappy marriage by people living in Scotland, but they should have access to it only if they are subject to the jurisdiction of the English courts. The same can be said of Northern Ireland. The easier the system is, the more important it is to be sure that it is available only to those who are entitled to take advantage of it. We can recall the attraction of Scotland in earlier days when it was possible to obtain a divorce there on the ground of adultery alone, whereas in England there had in addition to be proof of cruelty or desertion for two years. From time to time, attempts by people from England to take advantage of that system were rejected by the Scottish courts because they were unable to show that the court had jurisdiction to hear the case.
Jurisdiction in England and Wales in those cases under what is now retained EU law is based on the partners’ residence or domicile. So persons who are resident in Scotland or Northern Ireland and domiciled there should not have access to this simplified system, even if they agree. So how is this to be controlled, if at all? How is the maximum period laid down in Clause 1(7) to accommodate the time needed to seek and obtain advice—possibly with the benefit of legal aid in Scotland—where the other party to the marriage wishes to challenge the proceedings on the ground of lack of jurisdiction? I would welcome some reassurance from the Minister on these points.
Leaving them aside, however, I repeat that I welcome the Bill and wish it success as it passes through this House.
Lord Farmer (Con)
My Lords, I join the noble and learned Lord in congratulating the noble Baroness, Lady Hunt of Bethnal Green, on a lucid, thoughtful and challenging maiden speech. I also welcome her to this House.
I am, uncharacteristically, in almost complete disagreement with the Government on the main measure of the Bill: the introduction of no-fault divorce. It is fundamentally flawed because it not only ignores the urgent need to strengthen families but weakens them. It is an inconvenient truth that, as we seek to make the United Kingdom match-fit for a competitive global market, we are a world leader when it comes to family breakdown. We have high rates of single parenthood, divorce and separation, and large numbers of children entering local authority care. Across the OECD, the average proportion of children growing up with both their parents is 84%. We are fourth from bottom on this metric, with a little over two-thirds of our children living in intact families, compared with Finland, for instance, where that figure is over 95%.
British adults brought up by one biological parent are two and a half times more likely than those brought up by both to be in trouble with the police or in prison. Similarly, the Newcastle study tracking more than 1,000 babies born in 1947 showed that a boy’s likelihood of conviction before his early 30s was doubled if he had experienced divorce or separation before the age of five. Broken and dysfunctional family lives drive so many of the social problems that this Government are grappling with, particularly knife and gang crime; county lines; mental ill health in children, young people and adults; educational underachievement; early pregnancy; drug and alcohol addiction; and poor productivity.
Father absence is having a terrible impact. Recently, Croydon looked at 60 children in deep trouble to identify and learn from any patterns in their experiences. Most startling was the scale of father absence. In more than two-thirds of homes, fathers had walked out; this was often the turning point in a child’s behaviour.
The Government were elected on a manifesto that explicitly recognised that a strong society requires strong families. This will have resonated with the electorate. The Onward pamphlet, The Politics of Belonging, emphasises:
“While Westminster and Whitehall are still locked into a paradigm that places the extension of liberty above all other ends of public policy, the public mood has changed … If the price of greater freedom is rootlessness and disconnection, voters no longer seem to think it is worth the cost.”
They prioritise
“not rugged individualism but resilient communities.”
Given the scale of our family breakdown challenge, we should be pressing ahead with our manifesto commitment to strengthen families by championing family hubs and improving the Troubled Families programme. Stabilising families has to be high on the agenda. The Croydon report concluded that if targeted support and a holistic family plan had been provided earlier, these children might have achieved better outcomes.
What was not in our manifesto is no-fault divorce. Allegedly, there is a lot of support for this Bill. Lawyers and judges will of course be in favour of sanitising the messiness of divorce. Picking through people’s private lives must be harrowing. Yet when the general public were asked recently, “Should fault continue to be one of the possible grounds for divorce?” 71% thought that it should. A very different YouGov survey question found that 69% did not agree with the statement, “People should be able to seek a divorce without having to show their spouse is at fault.” Such a response is not at all surprising as I suspect that most people are aware that it is already possible to divorce without showing fault. Yet the Ministry of Justice relied on this survey result when dismissing the strength of feeling in response to its own consultation where 83% wanted to retain the right for an individual to contest a divorce. Only 15% stated that this right should be removed. Some 80% did not agree with the proposal to replace the five facts with a notification process, while a mere 17% were in favour.
The Government decided that certain, perhaps religiously motivated, interest groups had responded negatively in response to a campaign and should therefore be ignored, yet it was a campaign by lawyers and the Times that launched this Bill in the first place. The elites must be heard but not the “ordinary people”, who are deeply affected. Does that sound familiar? It is hardly meaningful consultation.
I understand that the fault cited may bear no resemblance to the reason the marriage faltered, but the removal of fault sends a very strong signal that marriage can be unilaterally exited with no available recourse for the party who has been left. Commitment within marriage will become illusory and unreliable. The Government’s plans create de jure unilateral divorce on the grounds that we already have it de facto. No-fault divorce is state-approved unilateral divorce.
Where does it leave the weaker party—often the primary carer, often the woman, and often the financially disadvantaged? University of Essex research found that women tend to experience a 12% drop in income after divorce compared with men who experience more than a 30% increase in income.
Where does it leave the institution of marriage? Some argue that it will strengthen marriage because the barrier to entry is lower if parties know they can exit cleanly. That suggests that in reality, people are making a much more contingent and shaky commitment, so why go to the bother of getting married at all? Research relied on by the Ministry of Justice found that marriage rates reduce following the introduction of no-fault divorce by about 3% to 4% 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 does lead to an immediate spike in the divorce rate that “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 the divorce rate is calculated as a percentage of married couples.
Regardless, the Government should commit to tracking the trends that follow this legislation. It is not enough that the Office for National Statistics collects the data. 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.
How will it affect children? I support this Government’s broad policy intent to reduce parental conflict, which can affect children’s well-being so profoundly when it is frequent, intense and unresolved. However, the idea that removing the need to cite fault drains an appreciable level of conflict out of a separating family seems naive in the extreme. Conflict heightens around financial and children issues, which of course are considered separately.
A spouse deserted by an unfaithful partner, whose path to a new life with his lover has been made smoother by the state, will hardly entertain warm and fuzzy feelings about him just because he did not conjure up allegations of fault against her to achieve that end—especially if she, as the respondent, has less than 20 weeks to adjust to her new position because the clock starts the minute he applies. This might be intentionally when she is on holiday, abroad or otherwise out of contact. Such an imbalance between applicant and respondent must be addressed. I know there is concern about coercive and controlling respondents who might trap the applicant by refusing to be served notice, but yet again we are warping family policy in response to domestic abuse, instead of seeking a more nuanced approach that would benefit society more broadly.
This issue lies at the root of previous Governments’ general agnosticism about family stability, despite evidence that parental separation—not just parental conflict—is an adverse childhood experience. Moreover, the ending of low-conflict rather than high-conflict marriages is more damaging to children. They blame themselves and internalise the sense that no relationships can be relied on, even those that seemed fine on the surface.
Another imbalance needs to be addressed, and we have heard of it today already: the Bill only assists couples to divorce, despite all the negative social ramifications this can entail. There is no support to help struggling couples stay together. This sends a terrible signal: we are on your side if you want easier divorce, but if you want help to face your marital difficulties you are on your own. If we have to have this Bill—I sincerely wish we do not—it has to come with an expansion of support for relationships.
We should listen to those who have been through the pain of divorce. Two-thirds of divorcees agree that family breakdown is a serious problem in Britain today and that more should be done to prevent families breaking up. The DWP has established an important bridgehead in this area with its Reducing Parental Conflict programme. This should be expanded in the spending review and delivered across the country in the promised family hubs.
Nearly two-thirds of British adults in their second or more marriage agree that it is too easy to get a divorce today—and that was before this unnecessary Bill. What good will it accomplish that comes even close to remedying the harm it will inflict by further emptying marriage vows of meaningful promise? The argument that it will benefit marriage by removing the need to cite fault to exit is shameless casuistry—which, according to a quote in the Oxford English Dictionary,
“destroys by Distinctions and Exceptions, all Morality, and effaces the essential Difference between Right and Wrong.”
I return to my opening remarks. This Bill blurs the distinction between right and wrong. The public did not vote for it or support it at consultation so, as is the function of this House, I urge the Government to think again.
The Lord Bishop of Portsmouth
My Lords, I add my warm welcome to the noble Baroness, Lady Hunt, and congratulations on her fine maiden speech. I hope that ordained speakers can bring a distinct perspective to the deliberations of your Lordships’ House today, since—unless I do noble Lords a grave disservice—the right reverend Prelate the Bishop of Carlisle and I from this Bench and the noble and right reverend Lord, Lord Harries, are the contributors to our debate who conduct marriages. I have never lost the sense of immense privilege of being with two people at such a significant moment in their lives, and of the joyfulness of the occasion, their commitment to one another and the commitments they make so significantly together and before others. Such commitments are integral to the foundations of their lives together, but also to the lives of their friends, communities and society as a whole. If your Lordships will forgive my brief lapse into theological jargon, marriage represents not just a contract but a covenant between two people, and between them and society. It is about not contractual rights but covenantal generosity. It represents a good for them and for us all.
Moreover, my sense of privilege has also extended to helping couples get ready for their marriage and then for their journey beyond—sometimes, of course, with pain, separation and divorce. Perhaps I am saying nothing more than that marriage is a very solemn thing and a very big deal, that the vows couples make are serious and must be treated seriously. This means that, while I wholeheartedly endorse the overall aspiration of reducing conflict when marriages break down, which is a good one, I hope the Government will recognise that the Bill by itself will not succeed as claimed in removing—a very strong claim indeed—issues that create conflict.
Creating divorce by fiat and assertion might lead to conflict. I have been reminded of the important provision quoted in part already from the Family Law Act 1996 that
“parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage”.
That seems a laudable approach and one ignored by the Bill. The possibility—even the probability—that a marriage has broken down is best explored by the couple together with the support and guidance of others before any definitive conclusion is reached. Reducing the process of divorce to a single simple statement by one party risks squeezing out such exploration. In seeking to minimise pain, the Bill also risks removing the opportunity for reflection and the chance of reconciliation.
I wonder too whether the Bill risks creating the sort of strain it seeks to avoid. As I understand it, it is entirely feasible that one party in a marriage might know that the other considers that the marriage has come to an end when they receive a statement via the court. That seems wholly undesirable and does not match the Government’s stated intention that the decision to divorce is a “considered one”.
Perhaps my biggest concern about the Bill is that it is partial reform. Yes, it seeks to reduce conflict and remove the requirement to allege fault when marriage breaks down, but a significant strain, often with acrimony and hardship, is arguments over the division of assets and the arrangements made for the children of a marriage. If we are truly to address the financial and emotional fallout, to reduce family conflict and to minimise the impact on children, which again are the Government’s laudable intentions, I suggest that fuller and wider reforms be considered. Divorce needs to be kinder to all involved, rather than easier.
Sometimes relationships no longer work, and marriages break down. It is right that some marriages come to an end with the least degree of animosity possible between the different parties. My concern is that the Bill before the House discourages reflection and hence the possibility of reconciliation, and will not have the effect which the Government desire. It represents a missed opportunity for wider and vital reforms.
Baroness Janke (LD)
My Lords, I too congratulate the noble Baroness, Lady Hunt, on the clarity and eloquence of her maiden speech, and I welcome her to the House.
In this debate, I wish to raise the issue of pensions in relation to divorce. There is a significant pensions gender gap. The average pension pot of a woman aged 65 is one-fifth that of a 65 year-old man’s, and over 20 years, women receive £29,000 less in state pension than men. This deficit is set to continue, with all else being equal, closing by only 3% by 2060. Women are often most acutely disadvantaged by divorce. Therefore, I believe that pension-sharing should routinely be considered in divorce cases.
The ABI points out that of 369 court files studied, 80% revealed at least one relevant pension, yet only 14% contained a pension-sharing order. Silver splitters—people divorcing in their 50s—is the largest increasing trend in divorcing couples. Women at this point are at particular risk, as they do not have many working years left to build up an independent savings pot or pension. They are also more likely to live with the children.
I suggest that the following issues need consideration under the Bill. The lack of awareness or understanding of pensions among divorcing couples is consistently an issue; this knowledge gap extends to family lawyers and judges and means that the lack of inclusion of pension assets is not being considered when the judge is granting a settlement. Pension schemes are not obliged to allow an ex-spouse to join in their own right, with their pension share on divorce. Furthermore, for defined benefit transfers, pension trustees are not obliged to obtain consent from the partner to a pension-sharing order before transferring a defined benefit pension. Therefore, wives are at risk if ex-husbands take the money out without informing them.
Costs of an expert valuation can be prohibitive and put people off including pensions in divorce proceedings, leaving ex-spouses exposed to making decisions regarding which route is best for them and what to do with their pension share without advice. There is no standard practice for calculating pension valuations, and historical wide variances between expert pension report valuations, depending on the basis used for the calculations, has led to mistrust in the system and the potential for ex-spouses to miss out.
Timing and delays in obtaining relevant information for the expert reports from trustees and pension providers cause significant issues for solicitors, leading many to abandon considering pensions as part of the settlement. Pensions are a joint asset, so pension sharing is a clean break for all parties, setting out how much the ex-spouses will receive, and giving each spouse their own pension pot to manage as they wish. Future pension payments are not affected by the death or remarriage of either spouse, and the awardee can take a pension from the age of 55, rather than waiting until their ex-spouse retires. Making pension sharing the default option on divorce will provide both parties with retirement savings and help to ease the pensions gender gap.
Consideration of pension rights is consistent with other measures in the Bill, such as the joint approach, the removal of blame and the seeking of fairness. I hope that these issues will be fully considered in the passage of the Bill, including measures to address the injustice of the pension gender gap, which affects such large numbers of women in later life.
Baroness Meacher (CB)
My Lords, I too welcome my noble friend Lady Hunt to this House and look forward very much to working with her. I congratulate her on her excellent speech. I welcome this limited but important Bill. It has always been obvious, to me anyway, that the requirement in divorce proceedings to show irretrievable breakdown of a marriage by declaring a so-called legal fact of fault—very often adultery—has been deeply hurtful to a respondent when the so-called fact may not be a fact at all.
I do not accept that the Bill will lead to an increase in the overall number of divorces over time. I refer to this having been through a divorce. There was no financial conflict or conflict over parental responsibilities, yet the divorce, for me and, I think, for my husband, was a deeply and profoundly painful experience. I believe that every divorce is. One could say that ours was as good as it could be but it was terrible, and I will never forget it.
The right reverend Prelate the Bishop of Portsmouth said that the Bill should make the law kinder not easier. In my view, that is exactly what the Bill does. It makes the law kinder. It does not make it easier; it is purely kinder, and I very much support it for that reason.
I am grateful to Exeter University, which sent us the research evidence to support what most of us already know from our personal experience of the divorces of family and friends if not our own. A legal fact of fault is not a fact at all: it is simply an allegation. As one lawyer put it, “It’s a farce. You cobble up some words that will do the business.” I do not support law that is a farce, and I am very grateful that the Government are trying to deal with and eliminate that farce.
Nearly 60% of English and Welsh divorces are granted on a fault fact basis—usually adultery or behaviour—which, significantly, is 10 times more than the rate in neighbouring France and Scotland. Of course, these national differences do not reflect differences in marital morality between different countries: they simply reflect that our current law incentivises people to game the system to secure a divorce in a reasonable timeframe.
Of course, there are significant longer-term consequences of the current law on fault divorce for the couple and, most importantly, their children, as others have alluded to. Inevitably, divorce involving children will generally—not in my case—involve a financial settlement and arrangements for parenting the children, which are highly contentious issues for most. However, having heightened the feelings of animosity between the couple at the very start of the process by requiring allegations—only allegations—to be made, will result in that higher level of animosity carrying all the way through those divorce proceedings and their painful and difficult debates, probably prolonging those proceedings at vast cost, both financial and emotional.
Sadly, my noble friend Lady Deech is unable to be with us today. However, according to her planned speech, she would have expressed her scepticism about the likelihood of the Bill being of any real benefit in reducing the blame game. Of course, no fault is not a magic bullet. If a couple is in conflict about finance or parenting issues, that conflict will exist—the Bill will not eliminate it. However, any reform that reduces the strength of animosity driving the conflict is to be welcomed. I agree with my noble friend that the law will not save marriages, and she is of course right that our main concern should be the children of the divorcing couple.
I personally support the proposed six-month minimum period for a divorce, although I understand that the Government are considering introducing a degree of flexibility in exceptional circumstances. I hope the Minister can explain to the House what those exceptional circumstances might be. A degree of flexibility is probably necessary, but it would be important not to open up the possibility of unnecessary and unwanted delays. I am sure that the Government have borne in mind the research evidence that couples are more likely to settle once they have become accustomed to the notion of separation. The proposed quick process based on no fault might, others have argued, be counterproductive by shortening the period during which a couple might begin to come to terms with the divorce and to settle. Has the Minister considered this possibility? Does he have a response to that concern? I do not share it, but I know others are concerned.
Some apparently argue that the 26-week period is too short to allow parties to reconcile. I do not accept that argument. In my view, reconciliation at that stage is unrealistic. It is argued that up to 10% of petitioners each year abandon the divorce, perhaps due to reconciliation. Such a view fails to take account of the long period of thinking and wondering “should we, shouldn’t we?” before people start the process of seeking a divorce. Successful reconciliation is highly unlikely once proceedings have commenced. Relevant here is the nationally representative court file analysis of 300 cases where only one had ended in an attempted reconciliation. The other withdrawn cases had been due to death or probably a need to delay because of financial problems. I would not put any money on the attempted reconciliation having succeeded.
I understand the Government’s wish to keep this Bill simple. However, a seemingly superfluous requirement at present is that the applicant must reaffirm their intention to divorce on three separate occasions. Comparable jurisdictions apparently require the applicant to confirm their intention to proceed on only one occasion, or perhaps two. Can the Minister indicate whether the Government might look favourably on a little amendment to reduce that number from three to two, or perhaps even one? Perhaps the Government might introduce an amendment themselves.
Finally, there is the law surrounding the financial settlement in divorce cases. I understand that the Government are planning a consultation exercise on this issue. Can the Minister tell the House when the consultation will take place, for how long it will proceed and whether it will include consideration of prenups? I know there are reasonable concerns about prenups, but they deserve serious consideration as a means of reducing conflict over money at the time of a divorce. Also, are the Government committed to allowing parliamentary time to implement reform in that area in this Parliament?
In conclusion, I reaffirm my support for the Bill.
Lord Morrow (DUP)
My Lords, this has been, to put it mildly, a fascinating debate. I listened very carefully to the noble and learned Lord, Lord Mackay, making the case for removing fault from the divorce procedure. I listened equally attentively to the noble Lord, Lord Farmer, arguing that fault should be maintained. On the one hand, I completely understand how removing fault will make divorces less acrimonious, which may be a good thing. On the other hand, I completely understand that if marriage is a lifelong commitment, with all its extensive public policy benefits, there must be constraints on the freedom to exit. It does not make sense that one should be able to walk out of a serious “till death us do part” commitment unless there has been a serious event, such as adultery, to justify doing so.
I very much believe that marriage is a mutual institution, and so I agree that if one party wants to leave, they cannot be compelled to remain. My concern is that if we change the law simply to give one party the power to end the marriage just because he or she wants to, it will have the effect of making divorce very much more accessible. The truth is that, while it would plainly be unwise and quite wrong for the state to try to hold people in marriages against their will, marriages have been saved and made strong again because divorce was not immediately accessible, and in that context it made complete sense for the couple to exhaust all other options before turning to the very difficult process of divorce.
My concern is that this Bill, in making divorce more accessible, is likely to elicit a greater readiness to turn to divorce and will thereby foster a lower dissatisfaction threshold within marriage when previously couples would have exhibited a greater willingness to stay and fight for their marriage.
I have no doubt at all that, from the narrow administrative perspective of the court, removing fault makes sense. My point, however, is that while we are considering a legal process in which the interests of the courts are very important, this process has potentially huge consequences for society at large. Studies certainly suggest that the provision of easier divorce is likely to give rise to a long-term increase in the divorce rate by up to 10% to 20%. Douglas Allen’s survey of no-fault divorce between 1995 and 2006 suggests an increase of up to 10%, while a study by González and Viitanen suggests an increase of up to 20%. This would constitute a social development that we could well do without.
In addition to this concern, I feel very uncomfortable about the impact of the Bill on the standing of the relevant parties. It seems—albeit unintentionally, I am sure—to create a vulnerable party, which I do not think will resonate with Workington’s sense of fair play. On the one hand, we have the person who wants to leave the marriage—the petitioner. Rather than the petitioner being constrained by the serious nature of the commitment he made on entering the marriage, the Bill enables him to call it a day simply because he is bored. The legislation will greatly enhance his autonomy, enabling him to do what he wants to do regardless of any commitment he may have made on his wedding day. For the petitioner, the Bill as currently framed will extend his personal freedom.
On the other hand, we have the person in the marriage who is not initiating divorce proceedings—the respondent. For them, the divorce could well come as a complete bolt from the blue, because there is now no need for it to be preceded by the conflict inherent in adultery and unreasonable behaviour. Their position is also weakened because the Bill proposes removing their right to contest the divorce—something that 83% of responses to the Government’s consultation preceding the Bill opposed.
If the petitioner wants to leave, he can leave, and within just 26 weeks. The salutary thing about this is the insecurity it would bring to marriages; on the passing of this Bill, anyone who is married would become a potential respondent and could be divorced in just 26 weeks simply because their spouse has changed their mind and no longer wants to be married. As if this were not enough, the Bill will also make the respondent vulnerable to being divorced in what is from their perspective a seven-week process, as Professor Hodson has pointed out. There is no mechanism to compel the petitioner to serve notice on the respondent until he wants the first decree of divorce at the end of the 20-week reflection period. Far from removing conflict, it seems to me that the Bill as currently drafted is likely to greatly exacerbate it.
I am also very concerned about the way in which the interests of the petitioner have been prioritised over those of the children. There has been an attempt to argue that this Bill will help children by liberating them more quickly from unhappy marriages, and without as much conflict as they would witness if fault remained. On both grounds I find this problematic. First, there is an extensive body of literature that shows that divorce does not free children from conflict; it makes conflict a permanent feature of their lives as they are split over two households. Secondly, rather than helping children, conflict-free divorces can be the most difficult to process because they come as a bolt from the blue for no apparent reason. As the social scientist Elizabeth Marquardt has observed:
“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.”
Another thing that I find concerning is the way the Bill designs the divorce process to expedite divorce rather than save marriages. The initial consultation document on divorce reform said:
“The need to make allegations can lay the ground for confrontation with the other spouse right from the start of proceedings. It becomes ingrained as the practical need arises to evidence details of the other spouse’s conduct.”
Mindful of this, it seems unfortunate to me that the statement of irretrievable breakdown is made at the start of the 20-week reflection period, given that between 2003 and 2016 on average more than 12,000 more divorce processes were commenced each year than ever concluded. It is very clear that we should seek to promote reconciliation during the divorce process as well as before it. With this in mind, it would make far more sense to commence the divorce process with a 20-week reflection period that culminated in a declaration of irretrievable breakdown if reconciliation could not be secured, rather than beginning with this very stark statement. There is a similar point to be made about a statement of irretrievable breakdown at the start of the proceedings rather than after the 20-week period.
The problems raised in the Bill as currently drafted are of such a serious nature and so far-reaching that there is a good case for remitting it to a Select Committee for an inquiry.
Baroness Howe of Idlicote (CB)
My Lords, I too congratulate the noble Baroness, Lady Hunt, on her excellent maiden speech and welcome her to our Cross Benches.
I shall concentrate on two issues: first, the place of children within the divorce process anticipated by the Bill and the need to uphold their best interests throughout; and, secondly, the way in which the Bill proposes to change the rights of the respondent—that is, the spouse who has not initiated the divorce.
The social science evidence is clear that child development benefits enormously from the stability brought about by marriage. In this context, the state has two important responsibilities. First, it should create a public policy context that positively supports marriage through the provision of proper marriage support services and a fiscal environment that makes marriage an accessible option to all, including those on low to average income. Secondly, it should uphold marriage and divorce legislation in such a way that it facilitates divorce without needlessly aggravating conflict, on the one hand, and which does not thereby undermine the marriage commitment on the other.
I am aware that the justification for the Bill before us today is that it will help to reduce conflict. That may benefit the adults concerned but we should not overemphasise the benefits for children. In the first instance, there are some impressive studies suggesting that the long-term consequence of divorce is far more damaging for child development than the divorce process. That really needs to be understood if one is not to get the benefits of minimising conflict in the divorce process out of perspective. Beneath that, however, there is some important research suggesting that conflict is better than no conflict because divorce without conflict makes no sense to children who, in the absence of better explanations, are apt to blame themselves when things go wrong for no apparent reason. Social scientist Elizabeth Marquardt found that
“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.”
Similarly, research by Alan Booth and Paul Amato found that the break-up of a low-conflict family is more harmful to a child than the break-up of a high-conflict family. If the Bill is to proceed, a lot more thought needs to be given to the role of children in this process and how they will be affected by the proposed change in the law.
I now turn to the way the Bill treats the respondent. It effectively introduces a shift in power towards the person wanting to initiate divorce proceedings, the petitioner, and away from the other party to the marriage, the respondent. In the past, the seriousness of the marriage commitment meant that marriage could not be exited at will but only if circumstances demonstrated that the commitment had been broken. There were consequently some external constraints. Under this Bill, however, marriages are released from these constraints, such that if either party wishes to exit the relationship, they can do so simply by starting divorce proceedings, stating that the relationship has irretrievably broken down. No evidence is required to back up this assertion, so while the statement may, on some occasions, mean that the relationship has indeed irretrievably broken down, on other occasions, it may be nothing more than a euphemism for “I do not like being married to you any more.”
Moreover, the Bill removes from the respondent the right to contest the divorce. This means that once the petitioner initiates proceedings he can be confident that, unless he changes his mind, he should be divorced in just 26 weeks. In creating an unconstrained right to divorce, alongside the removal of the respondent’s right to contest it, it seems to me that, as currently drafted, the Bill is vulnerable to being characterised as constituting a “petitioner’s charter” when in truth it should be a charter for all concerned, the petitioner, the respondent and their children.
I am, however, concerned that this shift in power to the petitioner is greatly exaggerated by the failure of the Bill to require the petitioner or the court to tell the respondent when the divorce process begins. Under the Bill, once the petitioner has initiated the divorce, the 20-week reflection and consideration period will begin. The Government have previously stated in their response to the 2018 consultation that this 20-week period is intended
“to ensure that the decision to divorce remains a considered one, providing opportunities for couples to change course.”
I am sure we all agree that that is a laudable aim. It is vital that both parties in a divorce have equal time to consider the decision, reflect upon their marriage and, if possible, see if there are ways that it can be saved.
Under the proposed arrangements in the Bill, however, the 20 weeks start running from when the divorce petition is first lodged, not when both parties are aware of it. This means that the spouse responding to the petition may not receive notice of the petition until a number of weeks later, for reasons such as issues in delivering notice, delays at the court or being overseas. In fact, if the petitioner does not want to tell the respondent, there is nothing—as Professor Hodson has pointed out—to require this until the end of the 20-week reflection period.
When the 20-week period is complete, the court must confirm that the petitioner has informed the respondent before issuing the first decree of divorce. If the petitioner says no, the court will tell him that it cannot issue the decree until he notifies the respondent. In this context, therefore, it is possible that the respondent will find out that they are being divorced only six or seven weeks before they are.
Professor Hodson has anticipated the damage this will bring about:
“Everyone can anticipate the trauma, distress and anger this will cause. The previous four months will be regarded by a respondent as a deceitful lie … It will badly affect opportunities to negotiate terms of any separation. It will set back the chance of resolving financial implications. It encourages the worst sort of marital behaviour.”
I anticipate that in response to this concern, the Minister may reply that moving to a system where the 20 weeks starts when the respondent receives notice could incentivise them to avoid being served notice, and thereby delay the divorce. This, however, is no defence for accepting the current arrangements in the Bill, especially as it already seeks disproportionately to empower the petitioner.
One solution to this problem would be to remove the ability of the petitioner to effect service and place it, instead, in the hands of the court. This would give the court control of the process and appropriate levers to incentivise response to service, including the warning of possible default judgments, if a response is not provided, and written warnings on court paper that the respondent may be liable to additional costs if they do not respond to service. There are also options of deeming service has been provided through proof of delivery at a registered address or a sworn affidavit of service by hand, filed by the server, either lay or professional.
In its analysis of other jurisdictions’ divorce laws, the Nuffield Foundation noted that there was a high level of consistency about when the notification period should commence. It said:
“Starting the clock only once the second party is aware of the application ensures that all parties have the same minimum period of notice. This is an important safeguard where the divorce is an unexpected and unwelcome event.”
The details of reforming the delivery of service in such cases must be sorted out by the Government. If this matter is not addressed, I am advised that the law would be vulnerable to an Article 8 human rights challenge because of the difference in treatment meted out on the respondent vis-à-vis the petitioner, and the difference in treatment experienced by those respondents who are notified by their petitioners at the start of the 20-week period and those who are not until the end.
I am concerned that the Bill is shifting power to the petitioner, leaving the respondent and, importantly, children in a very vulnerable position. As things stand, the Bill leaves a lot to be desired and it needs a lot of revision. I look forward to what I hope the Minister will say when he comes to reply: that this is indeed what is needed.
Baroness Wyld (Con)
My Lords, it is pretty rare for me these days to feel like a newlywed, after nearly 11 years as Mrs Wyld, but I knew that your Lordships would cheer me up. I congratulate my noble and learned friend Lord Mackay; I have only 49 years to go before I catch up with him, and I will do my best to get there. I warmly congratulate the noble Baroness, Lady Hunt of Bethnal Green, on such a thoughtful maiden speech and very much welcome her to the House.
I confess that I have gone back and forth in my view of this Bill. I am therefore grateful to my noble and learned friend the Minister for last week’s briefing session, to all who have provided clear and comprehensive briefings, and for the wealth of expertise that we draw on in this House. The breadth of support for the Bill would suggest that no further questions are needed but I confess that, on first sight of it, I was instinctively worried. I asked myself, as others do, whether by removing fault we send a message—to young people in particular—that marriage or a civil partnership is a relatively basic transaction, from which you can walk away without too much trouble.
I am not a lawyer and am fortunate never to have met a matrimonial lawyer for personal reasons, although I very much enjoy their company in your Lordships’ House. Some of my own policy interests are youth mental health, welfare reform and improving education outcomes; I refer to my interests in the register. I have consistently argued that we need to spend much more time thinking about the golden thread that shapes our relationships with others and our self-worth, and about what happens when that thread breaks.
The golden thread is family and home. Of course, many people raise happy and stable families outside of marriage, and marriage does not guarantee happiness or stability. Equally, we should not be afraid to celebrate the marriages at the heart of so many families or to acknowledge the statistical evidence that married couples are more likely to stay together. At the very least, no Government would be forgiven for doing anything, even inadvertently, to weaken this golden thread.
For that reason, I have not taken the Bill as given. I have listened carefully to the wealth of legal expertise that we are lucky enough to have in the House, and I have read thoroughly the arguments that were put forward in the other place during the last Parliament. Although their numbers may be fewer, we must listen carefully to those who question this Bill and those who express misgivings. I have reached the conclusion that I accept the need for this Bill but with the caveat that its passage must also shine a spotlight on the Government’s wider approach to family policy.
I would probably feel a bit more comfortable with the position that I have reached if I felt assured that, as policymakers and as a society, we spent more time thinking about how to support marriage and family stability. I believe that we made great strides in celebrating and reinforcing marriage through the same-sex marriage Act in 2013, recognising that when two people love each other and choose to make a lifelong commitment, this is for the benefit of all. As policymakers, we must ensure that we do not simply think in terms of weddings and divorce, missing the whole point of the reality of marriage.
We rightly acknowledge that divorce is complex, that every divorce is different, and that both couples and children need support. It feels to me that we spend far less time thinking and talking about the complexities of the journey that is marriage. It may seem as though I am conflating issues; after all, this Bill is about the technicalities of the legal process once the decision has already been taken to divorce. But we do not legislate in silos.
So let us look at this in two parts. First, I will briefly outline my take on the proposed changes to the legal framework, and then I will return to the bigger picture and try to offer a view on a constructive way forward.
On the content of the Bill, I have real sympathy with those who worry that the removal of fault will make divorce easier. But the flip side is that, as it stands, the law is clearly not working. Having given this extremely careful consideration, I accept the argument that, in practice, many couples feel that they have no choice but to engage in intellectual and emotional dishonesty in fault-based divorce. I have no doubt that we could all cite examples of this happening. It is impossible to see how this benefits anyone, least of all children. I cannot believe that the law as it stands allows couples to navigate the hardest process they will ever go through in a thoughtful or constructive way. On that basis, I am persuaded that reform is necessary.
On the details of the proceedings, I echo concerns expressed by others about the 20-week notification period. My personal view is that this is too short, and I would genuinely be interested to know how the Government arrived at the minimum time period. I have factored in the point that there is no current minimum and a significant number of divorces are concluded faster, but that does not in itself make the 20-week total sufficient. Is my noble and learned friend completely content to assure the House that this leaves enough time for reflection, cooling off and even potential reconciliation? There seems to be an acceptance that reconciliation cannot happen, but I have personal experience within my own family that it can—it may be rare, but we must not do anything to stop that happening. Many others have expressed concern about when the 20 weeks begins. I share those concerns, and I ask whether the Government will look at this again.
I would also be grateful to hear my noble and learned friend’s analysis of the likely impact on marriage and divorce rates. Opinion seems to be mixed. I ask myself to what extent couples make the decision to marry armed with an intricate knowledge of divorce law; but changes to legislation send broad-brush messages, whether we like that or not. We might not immediately be able to assess the impact. Therefore, we have to ensure that this Bill is part of a holistic approach to family policy.
Given that the Government are giving such urgent attention to the end of relationships, should this same urgency not be applied to the beginning and to the day-to-day experience of marriages and family life? Of course there is a debate to be had about the role of government in family policy—and some may feel that government should keep out of it—but we need to have that conversation. For instance, where couples automatically seek help from trusted advisers within public services, such as midwives, health visitors or early learning workers, they should also have the opportunity to seek relationship support. I welcome the Government’s manifesto commitment to champion family hubs. There is much evidence that bringing together targeted and universal services in a family hub can help to identify relationship problems earlier than may previously have been possible. I hope that the Government will ensure that policy decisions always take family stability into account, and I pay tribute to my noble friend Lord Farmer’s work in this area.
Policymakers have been too timid about extolling the virtues of marriage; we do not take anything away from other life choices by saying that. Yes, let us deal in a considered way with divorce law, but let us also all be stronger in our support for one of the most precious tenets of our society.
Lord Harries of Pentregarth (CB)
My Lords, the Church of England has sometimes been too slow in recognising needed changes in the law. Occasionally, however, it has pioneered the way. The idea of irretrievable breakdown as the sole ground for divorce was first put forward in an official document produced by a commission set up by the former Archbishop of Canterbury, Michael Ramsey, and chaired by the former Bishop of Exeter, Dr Robert Mortimer. The report, Putting Asunder, was published as long ago as 1966. That notion of irretrievable breakdown as the sole ground for divorce was then picked up and put forward by a Law Commission report published in the same year. At the request of the then Lord Chancellor, Lord Gardiner, the Bishop of Exeter introduced both reports to this House on 23 November 1966. His substantial, lengthy speech is still worth reading, and as the Lord Chancellor said in his response, it would in future be regarded as a historic occasion. So it proved, and irretrievable breakdown was incorporated in the 1973 Act, which is still the basis of our divorce law. At the moment, however, and as we know, the existence of such breakdown has to be shown by the evidence of one or more of five facts, three based on conduct—adultery, unreasonable behaviour or desertion—and two relating to periods of separation: two years if both parties consent and five years without consent.
In 1996, the noble and learned Lord, Lord Mackay, brought his Family Law Bill before this House. It sought to do away with the establishment of one or more of the facts as evidence of the breakdown and sought to give the couple an opportunity to think again about their marriage through the use of relationship support services, and to see whether it might be saved and, if not, whether mediation might provide a better way forward. Information sessions in which these issues were to be discussed were a key feature of that Bill. It was a Bill that encountered great opposition both from those who wanted to retain the wrongly termed “fault clauses” and for other reasons. It was a Bill that I strongly supported.
When the Blair Government came to power, they piloted six models of these information sessions. The noble and learned Lord, Lord Irvine, announced to the House that the preliminary results were disappointing. Then, following a final evaluation, he said on 16 January 2001 that they were unworkable and that he would invite the Government to repeal Part 2 of the Bill. With a different Administration, this was done, and the noble Lord, Lord McNally, then Justice Minister, set out his reasons for not going ahead with these vital information sessions. Such meetings, he said, came too late to save the marriage, and the range of information provided about marriage counselling, mediation and lawyers, for example, was too general and not tailored to particular circumstances. Furthermore, only one of the partners tended to attend the meeting, and of course any counselling or conciliatory work depended on both parties being involved. That was on 23 October 2013.
I deeply regret that Part 2 of the Family Law Act was repealed, and that no similar or improved version of those information sessions is in the present Bill. Nevertheless, I have to accept that the then Government judged the results of those pilots to be disappointing and not achieving what they set out to do. Realistically, I have to accept that they will not be brought back in that form.
That said, I think that before people apply for a divorce, dissolution or separation, they should at least be made aware of the availability of relationship support and mediation services. I will be putting forward a modest amendment in Committee to the effect that, when someone first applies for an order, the court is under an obligation to send them information. This does not require a meeting or significant expense, just the obligation for the court to send them details of the availability of the registered organisation where they could obtain further help or advice should they need it. There may well be amendments coming from other parts of the House that relate to the timing, which might slot in with that.
Some will argue that, by that stage, people will already have done all they intend to do to save their relationship, but there are relationships, even if only a few, that break up too early. I will never forget Lord Phillips of Sudbury, sadly no longer a Member of this House, saying how, as a solicitor, he was rung up by someone who wanted to put in for a divorce. Lord Phillips asked him to say more about what the trouble was and, after listening for a while, he blurted out in his characteristic way “My God, you’ve only just started”, and invited the man to come in and see him. The story has a happy ending. He was invited to dinner every year with the man and his wife to celebrate that telephone call. I hope that we can find a way of getting people, even at that late hour, to reflect on whether there might be a better way forward, and making certain information available, as I say, not in physical meetings but in some other way.
One principle of Part 1 of the Family Law Act 1996 was supporting marriage, saving the saveable marriage and, where marriages have broken down, bringing them to an end with minimum distress. When I was Bishop of Oxford, I proposed an amendment to the Bill which became the basis of Section 22 of the Family Law Act 1996. This led to relationship support services receiving funding to fulfil the aim of Section 22. The Family Law Act 1996 therefore facilitated support for thousands of families, together with enhanced research and expert evaluation, that created decades of successful interventions to strengthen relationships. Section 22, I am glad to say, was not repealed and remains in force so that those organisations can receive public money. However, the department that gives such grants has changed over the years. Originally, it was the Ministry of Justice, now it is the Department for Work and Pensions. It is, I believe, time for a major review of this funding and how it is best granted. These organisations continue to do fundamental work which is essential to the stability of relationships and hence society as a whole, and I believe they need more support. Relationship support 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.
A marriage welfare service was established for the first time in 1947 as “a service sponsored by the State but not a State institution”. Successive Governments have taken their responsibility seriously to ensure the availability of relationship support to everyone in society who needs it. More recently, the Relationships Alliance, which consists of the main providers of relationship support services in England and Wales—Marriage Care, OnePlusOne, Relate and Tavistock Relationships—has developed, and continues to develop, a wide range of relationship support services for individuals, couples, families and children. Support is available in a variety of ways, including face to face, by telephone and online, and by training professionals and practitioners who work with families. If the aims of this Bill are to be realised, funding for these services must be recognised as an essential component of the Government’s new approach to divorce, dissolution and separation, so that family breakdown is minimised and parental conflict reduced.
More widely, while totally agreeing with the aim of this Bill to take as much acrimony out of a break-up as possible, especially for the sake of the children, I have one particular concern. In his speech in 1966, the Bishop of Exeter, contrasted his proposal of irretrievable breakdown as the basis for divorce with divorce based simply on mutual consent. This, he said, would reduce marriage to a contract and would fail to do justice to the fact that a marriage involves not just the couple concerned but the children and wider society.
My worry about the present Bill is that relying simply on a statement by one or both of the parties might create the impression that marriage is only a contract. Contracts are an essential feature of many aspects of life, but they include conditions. An employment contract is based on the assumption that people will turn up to work and perform it to the required standard, for example. The point about marriage as it has traditionally been understood in this country and as it is reflected in law is that the couples commit themselves to one another unconditionally.
It has the same character as the oath most of your Lordships swear in this House. We do not pledge loyalty to Her Majesty provided she chooses a Government to our liking. The oath is unconditional. The couples do not say to each other that they will stay with each other provided certain conditions are fulfilled. They say that they will be with each other through thick and thin, through joys and through the sorrows of unemployment, poverty, depression and Alzheimer’s. It is an unconditional commitment which has an abiding claim on the couple. Mind you, I have heard of one retired wife who brought in a condition: she said to her husband when he retired “For better, for worse; for richer, for poorer; in health and in sickness”—“Yes”; “Home for lunch every day”—“No.”
More seriously, it is an unconditional commitment—what the Bible calls a covenant, a solemn, binding, valid pledge which, once made, has a moral force in its own right. Sometimes, as we all recognise, we fail, and that moral claim has to be set aside as the lesser of two evils. But it is not simply a contract from which we can withdraw at will. Marriage is not something that has been invented by the Church. It is a natural human commitment of two people who have come to love each other. As the great Orkney poet Edwin Muir put it
“Where each asks from each
What each most wants to give
And each awakes in each
What else would never be.”
I would like an assurance from the Government, which need not be given now but perhaps in Committee, that marriage according to the law of the land, whether in church or by a registrar, is not simply a contract but an unconditional commitment. In the phrase of the linguistic philosophers, the words of commitment are performative; they actually bring about a new state of being, with its related obligations which are unconditional in character.
Baroness Eaton (Con)
My Lords, it is a pleasure to add my welcome to the noble Baroness, Lady Hunt of Bethnal Green, and congratulate her on her excellent maiden speech.
I believe that strong marriages and stable families are the bedrock of a healthy society. This is a view that I am sure many noble Lords across the House will agree with. It is imperative that in the work we do here in Parliament we carefully scrutinise the legislation that comes before us to ensure that it does not undermine that bedrock—marriage and the families that are formed through it.
Divorce law has a purpose not only in managing the end of a marriage but in setting out ideals about marriage. It recognises that marriage is an enduring commitment for life. As such, it is entirely logical that there must be serious and compelling reasons why what was hoped to be a lifelong union has come to an end. Under the current system, one spouse needs to allege adultery or unreasonable behaviour for the divorce to be considered immediately.
I do not believe that it is credible to propose a change in divorce law that maintains “irretrievable breakdown” as the sole ground for divorce when what is actually proposed is unilateral no-reason divorce. Under the proposed law there is no requirement to prove irretrievable breakdown. It can be a legal fiction asserted by one party who is simply bored of the marriage.
This empowering of the petitioner, the person initiating divorce proceedings, is further compounded by the fact that this Bill proposes removing the ability of the other party, the respondent, to contest the divorce. This leaves the respondent in a very vulnerable position. Because the importance of the marriage commitment is no longer expressed in the fact that it can be undone only in exacting circumstances, but rather whenever the petitioner wants to, the Bill creates the opportunity for divorce to come as a bolt from the blue. In the absence of any actual problems, one spouse could be blissfully unaware that her husband or wife is planning to divorce her because they feel that their relationship has lost some of its sparkle. The petitioner might appreciate this enhanced autonomy of freedom but the respondent has every reason to feel very insecure. Therein lies the rub. Anyone in a marriage is a potential respondent and thus, if the Bill becomes law, it will inevitably heighten the sense of insecurity in marriage.
We are told by the leading Conservative think tank Onward in its seminal publication The Politics of Belonging that the country has actually had enough of more and more autonomy, and that it now wants more security. The Bill, however, is no surprise, since that publication contends that the sympathies of Whitehall are indeed very much out of kilter with this new mood. In this context, I cannot help but wonder whether we are misjudging the mood of the country with the Bill.
Social science research has repeatedly found that marriage brings stability to the lives of children. One paper from 2015 found that families are most stable if parents are married before having children: 24% of couples who married before having children split up, compared to 56% of couples who married later and 69% of couples who never married at all. Regardless of socioeconomic status and education, cohabiting couples are between two and two and a half times more likely to break up than equivalent married couples. Furthermore, having married parents boosts self-esteem for teenagers. UK research from 2016 found that teenage boys living with continuously married parents have the highest self-esteem, while teenage girls living with continuously cohabiting parents have the lowest. Children from broken homes are nine times more likely to become young offenders, accounting for 70% of all young offenders.
I appreciate that the purpose of bringing forward the Bill is not to promote more divorce and thus more difficulty for children. However, I have two difficulties with its proposed approach. First, it is hard to see how making marriage a relationship that one can exit unilaterally, simply by saying that you want out, will not undermine the ability of marriage to bring stability to the lives of children. Secondly, of course I appreciate that part of the justification for changing the rules of exit is that it is supposed to help children by minimising conflict. That is certainly a laudable aim. However, I am concerned that that will not be achieved through the Bill. Conflict between parents will simply be shifted to arguments over finances and where the children will end up. No provision is made in the Bill, as was provided for in the 1996 reforms, for mediation or counselling for couples facing the possibility of divorce—other Members have mentioned that important fact this evening.
Central to our assessment of the Bill must be the question: to what extent will it facilitate divorce without increasing the rate of divorce and marriage breakdown? Obviously, the change in the law proposed by the Bill would lead to a spike in divorces as people waiting for divorces in the context of the current legislative framework are able to access divorce much more quickly. The important point is not whether there will be a short-term spike—that seems inevitable. The question is whether the new law would facilitate increased divorce rates beyond the first couple of years. The evidence on this from abroad is not encouraging. Leora Friedberg found in her research that unilateral divorce laws were responsible for about 17% of the increase in divorce rates in the US during the 1970s and 1980s. In a context where the annual cost of family breakdown is deemed to be more than £50 billion, it is hard to understand why one would embark on a policy that is likely to increase divorce.
Finally, given all the concerns I have set out, I am also concerned by the way in which the Government appear to have dealt with the consultation process that preceded the Bill. Consultations are intended to ensure that the Government have listened to the public and adjusted their proposals in the light of the concerns expressed. In the consultation on divorce reform, 80% of those who responded did not agree with the proposal to replace the five facts demonstrating that a marriage had irretrievably broken down with a notification process. A mere 17% were in favour of the proposed change.
Furthermore, 83% of those who responded disagreed with the Government’s proposal to remove the ability of a spouse who does not want divorce to contest the assertion that their marriage has irretrievably broken down, while only 15% supported the plans. Can the Minister please explain how much of the consultation was taken into consideration, because this appears to conflict with the process that the Government are taking forward? I have serious concerns that the Bill will have negative consequences for families.
Lord Walker of Gestingthorpe (CB)
My Lords, I warmly welcome the Bill as the final step in the long and arduous process of getting away from the concept of the matrimonial offence, or, as the Minister put it, the blame game.
This problem has occupied law reformers and Parliament for well over a century and a half—to be precise, the 163 years since the Matrimonial Causes Act 1857. It would be a wearisome task indeed to go through every step of that history, but it is worth revisiting some of its high points, many of which were mentioned by my noble and right reverend friend Lord Harries of Pentregarth.
The 1857 Act, which first introduced divorce, properly so called, by a civil court, was opposed in this House by Bishop Samuel Wilberforce on the ground that he did not approve of divorce at all. It was opposed in another place by Mr Gladstone, then the leader of the Opposition, who very properly objected to its discriminating between husband and wife regarding grounds for divorce. A husband could petition on the ground of adultery by his wife. His wife could petition on the ground of his adultery only if it was of a particularly grave sort—involving either incest or bigamy—or if it had been accompanied by cruelty or desertion or both.
That particular injustice was not cured until 1910, but it continued to be the law that adultery was the only ground for seeking a divorce, notwithstanding the obvious attractions that that situation held as an encouragement to perjury and collusion. This was in the days when collusion, connivance, condonation and conduct conducing—fiercely overseen by the Queen’s or the King’s Proctor—were an absolute bar to divorce.
The fact that divorce could be sought on the ground of adultery and nothing else continued, astonishingly, until the late 1930s, despite its obvious drawbacks, given the amount of lying and deception that was involved. Two books published in 1934 had a great effect in moving public opinion. One was the novel A Handful of Dust by Evelyn Waugh and the other was Holy Deadlock by A P Herbert, which sold 90,000 copies and had the profound effect of bringing home to the public just what a sham divorce only on the ground of adultery had become. A P Herbert did not only write a book about it; he also stood and was elected as an independent Member of Parliament for the University of Oxford, which in those days had two seats allotted to it. In 1937 he drafted, fought for and ultimately won one of the most important ever victories for private legislation, which became the Matrimonial Causes Act 1937. That introduced the grounds of cruelty and desertion, which were enacted in 1937, consolidated in the 1973 Act, and remained until recent times.
It became apparent, however, especially after the war, that these grounds were insufficient. Many marriages were simply unhappy ones that ought to be brought to an end but were not covered by any of the grounds unless people started exaggerating their complaints of cruelty, building small troubles into large ones. As my noble and right reverend friend Lord Harries has said, this led to the emergence—particularly during the archbishopric of Archbishop Ramsey—of a concordat between the Church and the law reformers that there should be a movement towards the irreversible breakdown of marriage as the sole ground for divorce. The Act passed in 1964 aimed to do that, but although it said that the only ground was to be the irreversible breakdown of marriage, it then set out, as before, what that was to consist of: adultery, cruelty and desertion, adding only separation for two years or five years, depending on whether the respondent agreed to two years being sufficient. That Act, in a way, was three steps forward and two steps back. It introduced irreversible breakdown of marriage in theory, but in practice it added very little to the existing law.
That was the target of the Family Law Act 1996, which was brought before Parliament by my noble and learned friend Lord Mackay of Clashfern, to whom it has been a privilege to listen this evening. Part II, which was the essential part of the Act, had a curious history. It could not be brought into force at once because various trials of conciliation methods were being undertaken. The Government fell and a new Government came in. As the noble and right reverend Lord, Lord Harries, said, Mr Blair’s Lord Chancellor—the noble and learned Lord, Lord Irvine—first postponed, then ultimately decided to abandon, the whole of Part II. It was said that it would be repealed; it eventually was, but only by a statute in 2014—nearly 20 years after it was passed—without ever having been in force.
The principal aim of this new Bill is to bring back irreversible breakdown of marriage as the sole ground. It does that by completely replacing Section 1 of the consolidating Act. Whatever its drawbacks—some have been mentioned by speakers this evening—in my view it would be a great step forward. The drawbacks of the present system that it would remove are much greater than the drawbacks—serious though they are—that it may possibly entail.
In 1956 Lord Hodson, a Law Lord, said to the then sitting royal commission on marriage and divorce:
“The history of divorce is one of conflict between those who believe that divorce is an evil thing, destructive of family life and accordingly of the life of the community”—
no doubt all that is true—
“and those who take the ‘humanitarian’ view that when a marriage has irretrievably broken down it should be dissolved.”
Lord Hodson put “humanitarian” in inverted commas —or at any rate, the transcriber of his address did—which suggests that he took the traditional side in the conflict. I urge your Lordships to take a more enlightened view and to welcome this Bill.
That is all I have to say for myself, but perhaps I could be permitted to say that last night, at a very late hour, I received an email from the noble Baroness, Lady Deech, whose name has already been mentioned this evening, to say that she was in the United States. She very much regretted that she was not able to participate in this debate and sent me four pages of what she would have said if she were here. I have no intention of reading even one of those to your Lordships, but it is perhaps right to mention that she may well intervene at a later stage in the passage of the Bill to suggest that more should be done to bring the financial provision that can be made on divorce in line with the new change in the grounds for divorce. That would go some way to meeting the points raised by the right reverend Prelate the Bishop of Portsmouth and the Liberal Democrat side. However, that is a matter for a later stage.
Lord McColl of Dulwich (Con)
My Lords, I very much congratulate the noble Baroness, Lady Hunt of Bethnal Green, on her maiden speech; she is most welcome.
I suggest that one cannot alter the terms for undoing a marriage without engaging with how the law understands marriage and the norms associated with it. This is actually a very important matter for the Government, because the social science evidence is so clear that marriage has such far-reaching positive public policy consequences for both adult and child well-being, irrespective of income. The evidence is far too extensive to cite at any length now, but by way of merely providing a sample I draw attention to the following claims from recent research. The size of the health gain from marriage might be as large as the benefit from giving up smoking. Marital status is a predictor of survival in patients with lung cancer, leading researchers to suggest that if marriage were a drug it would be hailed as a miracle cure. Studies consistently indicate that marriage reduces heavy drinking and overall alcohol consumption. Those who are married have the lowest risk of suicide—a difference that has persisted for over the last 25 years.
For children, meanwhile, recent studies show, among other things, that strong relationships exist between their mother’s marital status at the time of birth and birth weight. The prevalence of mental health issues among children of cohabiting parents is over 75% higher than among those of married parents. Growing up with married parents is associated with better physical health in adulthood and increased longevity. Children from broken homes are nine times more likely to become young offenders, accounting for 70% of all young offenders.
I am aware of course that at this point someone might seek to argue that the stability and attendant benefits have nothing to do with marriage and everything to do with the income of the couple in question. However, this does not stand up to scrutiny. That marriage is an independent benefit is seen in the fact that the poorest 20% of married couples are more stable than all but the richest 20% of cohabiting couples.
While we should always keep in mind the huge public policy benefits of marriage, it does not change the fact that, sadly, some marriages do not last. In this case, we need to ensure that the legislation in place governing the process by which marriage is ended works as smoothly as possible. The argument for the Bill is that the current law is needlessly conflictual. Under the current divorce law, the right to be released from the serious marriage commitment necessitates that something equally serious must have happened, be it adultery or unreasonable behaviour, both of which have to be acknowledged. The Bill removes that requirement and instead enables one person to initiate divorce proceedings simply because they want to leave the marriage, without any need to acknowledge or verify the serious development. If one person wants out, all they would need to do under the Bill is assert that the relationship has broken down, irrespective of whether it has, beyond the fact that he or she has asserted the statement and started divorce proceedings.
In this context, I will make two suggestions. The first relates to the length of the divorce process and the second to how the process is utilised. First, on the length of the divorce process, it seems that there are two elements in the current law that seek to reflect the serious nature of the marriage commitment. The first is the fact that this serious commitment cannot be swept away without an equally serious development that merits it, the raising of which necessitates the attribution of fault.
The second is that, having made this commitment, one cannot simply walk away. The serious nature of the commitment is reflected in the fact that terminating the marriage commitment takes time. The Bill, as currently construed, conflates these two things. Removal of fault is linked to a much faster divorce process, but it does not need to be. One option would be to remove fault but require significantly longer than the 26 weeks between initiating a divorce and potentially being divorced, as has been mentioned by others.
How will it seem if we propose that people have a general right to expect that they can exit a lifelong commitment in 26 weeks, when we are tied to our mobile phone contracts for 12 months? No doubt I could get out of my mobile phone contract if I paid, but we need to think very carefully about the message that we would be sending if we endorsed the Bill in its current form. If we can exit a lifelong commitment in less than a year, we are crossing a line and making what has been a lifelong commitment a much weaker, indefinite commitment.
I have no doubt that, in response, some will say, “But I know of a situation where it would just be better to terminate the relationship as quickly as possible.” I have no objection to allowing this in specific circumstances—if there are personal safety concerns—but we must not allow hard cases to define our norms. It is not possible to study the social science evidence on the benefits of a lifelong marriage commitment without feeling deeply concerned about the consequences of opening the door to its termination at such speed.
Secondly, how should we use the divorce process? The other benefit of having a longer divorce process is that it will provide more time to offer help to couples who have started the divorce process. In this regard I was rather troubled when, in another place on 25 June 2019, the Member of Parliament for Mid Dorset and North Poole, intervened on the then Lord Chancellor, David Gauke, and asked what the Government were doing to help prevent marriages breaking down.
Mr Gauke responded:
“Once the point of a divorce is reached, it is likely—the evidence suggests this—that it is too late.”
On that basis, he told the House that there was no basis for reaching out to help marriages once the divorce process had begun. Indeed, his response suggested that seeking to do anything on this once the divorce process had begun would be a mistake. To be precise, what he said was,
“but where someone is going through the divorce process, making that process more difficult and confrontational is counter- productive.”—[Official Report, Commons, 25/6/19; col. 578.]
This is simply not supported by the facts. Ministry of Justice family court statistics show that between 2003 and 2016, an average of 9.5% of divorce petitions that were started did not reach decree absolute. That is an astonishing 12,709 couples each year who did not complete the divorce process. So the idea that once the divorce process has begun it is too late does not stand up to scrutiny; 12, 709 marriages per annum is a lot of marriages.
Our objective should be, through good public policy interventions, to increase that 12,709 figure, mindful of the benefit of doing so both for the adults concerned and their children. Moreover, we must be aware that, as an increasing number of divorce petitions are filed online, the number culminating in divorce seems to be decreasing. Provisional results from a freedom of information request by the International Family Law Group last year found that online divorces were less likely to proceed to a final decree than paper divorces. That makes the need for maximising counselling options during the process of a divorce that much more important. We must provide couples who have commenced the divorce process with the opportunity to reconcile where possible, not put them on a conveyor belt towards certain divorce.
Baroness Shackleton of Belgravia (Con)
My Lords, I congratulate the noble Baroness, Lady Hunt, on her excellent maiden speech and I welcome her to your Lordships’ House. I listened very carefully to what everyone has said. I am a passionate believer in marriage. I am a patron of the Marriage Foundation. As noble Lords have probably realised, I am at the seedier end of this. I do not have the enjoyment that the right reverend Prelates have of marrying people, but rather am undoing that at the other end. It is a sad business for anyone who has to conduct it on a daily basis.
I am fortunate that in my 40-year career I have never had to do a defended divorce because I have been able to persuade my client or my opponent that that would lend itself to a pyrrhic victory. There is absolutely no point in resisting when one party has checked out of a marriage and insisting that you can continue it. You can control only your own behaviour, not that of your spouse.
Unfortunately, one of my partners did take a case where the result was a defended divorce and the decree was not given. As a consequence, the usual practice, which has gone on for years—and I have practised at the Hammersmith and Fulham Law Centre and at the top end of the game—was to collude with anodyne behaviour particulars that were ticked, which is what the noble Baroness, Lady Meacher, referred to as a farce. The farce is now over because the law as handed down by the Supreme Court requires fault to be proven to such a high standard that you effectively have to trump up the behaviour to get your decree. In those circumstances, a stigma is attached which causes a lot of heartbreak and unnecessary grief at a time when many other things are to be sorted out, most importantly the children of any relationship, and the money.
Having listened to the contributions made, I fully support the Bill as beginning a review of the faults in our system of dissolving people’s failed relationships. No one has ever come to me saying that they are happy to be getting a divorce. Everybody regards divorce as a failure. When you are looking at the carcass of a broken marriage, it is better that people do not pick over it for ever. Because the law is so uncertain—and I am ashamed to say that I practise in it—there is an industry of contested ancillary relief. You cannot get a decree absolute and move on with your life without sorting out the children and the money. The Government urgently need to look at reform in relation to dealing with the consequences of finance. It is no good having a decree absolute while living in the same house as the person from whom you are trying to get divorced and separated. The court has too much discretion over the money, which means that more cases go to court than necessary.
I have another invitation for the Government. Over my 40-year career, at least 50% of people who I have advised have told me that they married the wrong person in the first place. Perhaps more thought should go into something other than counselling people when they realise that their marriages are on the rocks or done, although I do not discourage that at all. If it makes life easier, I welcome it, but prevention is better than cure. Could education spend a nanosecond on relationships, what you look into when you marry somebody and the fact that, like the proverbial dog being not just for Christmas, marriage is not just for the white dress? We educate children on sex, gender, alcohol and drugs, but half an hour in sixth form on permanent relationships when you are going to have children would be money very well spent.
Lord Marks of Henley-on-Thames (LD)
My Lords, as the House has heard, the present law on the grounds for divorce dates from the Divorce Reform Act 1969, which was then reflected in Matrimonial Causes Act 1973. Parliament legislated for no-fault divorce in the Family Law Act 1996, as the noble and learned Lords, Lord Mackay of Clashfern and Lord Walker of Gestingthorpe, and the noble and right reverend Lord, Lord Harries of Pentregarth, have explained, but, partly because of its complexity, the change was never implemented, so the present law has persisted for 50 years.
From these Benches, and in concert with a substantial majority of family lawyers and judges—in that context, I welcome the important longer historical perspective of the noble and learned Lord, Lord Walker—we have consistently campaigned for no-fault divorce, and so, subject to one or two qualifications to which I will turn, we warmly welcome the Bill, which makes a change that is seriously overdue. The noble Baroness, Lady Shackleton, spoke in the gap from all her experience of practising divorce law.
Before turning to the detail of the arguments on the Bill, I will just say how impressive I found the thoughtful and persuasive maiden speech of the noble Baroness, Lady Hunt of Bethnal Green. I greatly look forward to her future contributions to the work of this House on areas that are sadly not as well understood by us as they should be.
Under the present law, to end a failed marriage without waiting two years, one party has to claim that the other party is to blame for the breakdown so, unsurprisingly, most divorces—57% in England and Wales—are based on unreasonable behaviour or adultery, when human experience tells us that most marriage breakdowns result not just from the conduct of one spouse but from failures of both.
I agree with the right reverend Prelate the Bishop of Portsmouth that divorce should be an overall process of securing a collaborative resolution of the difficult issues facing the couple and their family—their children in particular—including financial issues and issues concerning children, but I part company with the right reverend Prelate in his view that the Bill stands in the way of kinder divorce, and I agree with the noble Baroness, Lady Meacher, on the effect of the Bill. Under the present law, the divorce process is kicked off with a hostile and unproductive blame game, one in which the children are often caught in the middle, which sharply aggravates the strain and anxiety of coping with their parents’ divorce, a point well made by my noble friend Lady Burt of Solihull.
The approach of family lawyers in this jurisdiction to the management of securing a divorce decree has largely been conciliatory. Resolution, formerly the Solicitors Family Law Association, has developed a collaborative culture in which allegations of unreasonable behaviour in petitions are reduced in number and often limited to relatively trivial conduct—certainly that was true before the Owens case, as the noble Baroness, Lady Shackleton, said. Then the allegations are, or were, agreed with the other side and the divorce proceeds on that basis. Resolution is to be commended for that approach, which is also pursued by the Family Law Bar Association, but it has gone nowhere near addressing the fundamental objections to a fault-based system, some of which were canvassed in today’s debate.
First, the present system is dishonest. It is based on the fiction that the conduct of one party alone is to blame for the breakdown, and the allegations set out in the petition are the true reason for the breakdown, when both propositions are generally false. To base divorce proceedings—legal proceedings in a court—on falsehood brings the law into disrepute and alienates the parties. As Sir James Munby, former President of the Family Division put it:
“The hypocrisy and lack of intellectual honesty which is so characteristic a feature of the current law and procedure differs only in magnitude from the hypocrisy and lack of intellectual honesty which characterised the ‘hotel divorce’ under the old law”—
a process mentioned by the noble and learned Lord, Lord Hope.
Secondly, in the Owens case, the courts at every level held that the behaviour proved against the husband was insufficiently serious to establish unreasonable behaviour. Mrs Owens was denied a divorce when her marriage had clearly long ago broken down. She had to sit out the balance of five years’ separation before she could secure a decree. That was clearly intolerable but, frankly, the judges were right in their application of the present law and their understandable reluctance to usurp our role as parliamentarians by changing it. It is now up to us to make the change required. It follows from what I have said that I cannot accept the view expressed by the right reverend Prelate the Bishop of Carlisle, the noble Lords, Lord Farmer and Lord Morrow, and others, that one party to a marriage should be able to contest a divorce so as to tie the other into a marriage against his or her will. That point was ably made by the noble Baroness, Lady Shackleton.
There is no persuasive evidence that the Bill would increase the divorce rate, except in the very short term by advancing the date of divorce in the case of parties who are already separated and waiting out the two or five-year periods under the present law; this is the spike acknowledged by the noble Baroness, Lady Eaton. I stress that there is no credible evidence either that no-fault divorce undermines or weakens marriage or the respect in which it is held. I believe that the evidence supports the contrary view: making divorce honest and improving our support for marriage, family stability and relationship support are, as the noble Baroness, Lady Wyld, and the noble and right reverend Lord, Lord Harries, argued, the best ways of expressing society’s commitment to marriage.
I stress, however, that I share the Government’s view that the Bill should be kept within its present compass—making the securing of a divorce order more honest and kinder to the parties—and that improvements to arrangements for financial provision, children’s arrangements and relationship support should be the subject of a fresh consultation, to which I hope the Government will commit, and possible future legislation.
Thirdly, since the decision in the Owens case, we hear of district judges rejecting petitions where they find the allegations made too insubstantial or anodyne to sustain a finding of unreasonable behaviour; so, harsher and more contentious petitions now have to be—and regularly are—filed.
Fourthly, while blame may not matter to the lawyers, because conduct or fault is generally irrelevant to financial proceedings or any issues affecting children, it does matter to the parties. They do not want to be seen as responsible for the breakdown, by the law, the other party, their children, their friends or the world at large. Yet, in most divorces, the present law pins responsibility on the respondent, regardless of reality and truth, and even though many respondents deny the truth of the allegations against them. On the basis of the research carried out by Professor Trinder, only 29% of respondents believe that the facts alleged in the divorce petitions against them represent the real reason for divorce.
To avoid the allocation of blame, we get cross-petitions, even where a marriage is clearly over, whereby each party digs out incidents, often long-forgotten, to try to prove the other at fault. So, we have the absurd position where two adults who once chose to marry each other and now both seek the same remedy and outcome—divorce—but nevertheless poison the early stages of the process in a pointless battle over blame. This depletes their scarce financial resources, aggravates their emotional fragility and severely distresses their children, all for no practical purpose, until one of them is persuaded to give up or they run out of time and can proceed on the basis of two years’ separation and consent to divorce.
Fifthly, the need to make allegations of conduct against a violent or abusive spouse scares many victims of domestic violence or coercive behaviour out of proceeding with a divorce, trapping them in obviously failed marriages. Worse still, abusive spouses often insist that the price of a divorce will be that the victim of the violence allows the abuser to present the petition, while the victim must accept the blame. That is one reason why Women’s Aid and other women’s charities strongly support the Bill.
I move to one improvement to the Bill that we wish to see. With the Bill as it stands, under new Section 1(5)(a) of the Matrimonial Causes Act, the court may make a conditional order after 20 weeks from the start of proceedings by the applicant. However, there is nothing to stop a court making a conditional order once the 20 weeks have passed, even though the applicant has not established that the respondent has been served with or knows of the proceedings, or that the court has sanctioned an order being made without proof of service. It is simply unfair that a respondent may be hit with a divorce when he or she has known nothing about the proceedings before the making of the conditional order or before the 20-week period has run, or nearly run, its course. This is a point that the Law Society, in its helpful briefing, and others, including the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady Howe of Idlicote, have made today.
We have discussed this point with the Minister, to whom I am very grateful for arranging an all-Peers’ drop-in meeting last week, and he has assured us that the Government will consider it. I would like to see a proviso that the court may not make a conditional order unless it is satisfied either that the respondent has been served at least 12 weeks before the making of the order or that deemed or substituted service has been approved by the court in an appropriate case and effected. I pick on 12 weeks because the 20-week period is intended to allow time for reflection and discussion prior to the making of an order, and it seems right that the respondent should have the benefit of the majority of that time to consider his or her position and for any discussions. I have suggested that 60% of that time is an appropriate proportion of the overall period, but of course we are not dogmatic about that.
There will be cases where a respondent evades service and generally will not co-operate with the applicant or the court. However, I suggest that such cases can be dealt with by making provision for deemed or substituted service and ensuring that the rules provide for an extension of the 26-week period to final order where necessary, where service has been effected late. That would require changes to proposed new Sections 1(5) to 1(8) and 17 of the Matrimonial Causes Act set out in Clauses 1 and 2 of this Bill and corresponding changes to the proposed new provisions of the Civil Partnership Act.
We have considered the proposal by the Law Society that there should be a bar to litigation during the first three months of the 20-week period, during which time the parties would not be able to commence any applications for financial provision without agreement. We look forward to further discussion on this suggestion. As yet I am not yet persuaded that delaying proceedings for financial provision is always a good idea, though sometimes it may be.
I agree with my noble friend Lady Burt that the fee for obtaining a divorce, at £550, is far too high. A fee set at that level might generally require savings before proceedings can be commenced. That is unfair to less well-off applicants.
There is a great deal in the Bill that deserves discussion. We have had a very good debate today, and I look forward to meeting the Minister and others and discussing the Bill further during the rest of its passage.
Baroness Chakrabarti (Lab)
My Lords, it has been an absolute privilege to sit through the three hours of this debate. I particularly thank the noble Baroness, Lady Shackleton, for speaking in the gap and giving us the benefit of her pre-eminent expertise in these matters in this country. Once more, this is an example of the quality of contributions that can be made in a Chamber of this kind, for which we can all be incredibly grateful. I also join all noble Lords in welcoming the noble Baroness, Lady Hunt, and marvelling at such a spectacular maiden speech. I think she described your Lordships’ House at its best as demonstrating courtesy, consideration and a determination to do the right thing. All of this could be said of the noble Baroness, both in her former career and in what will no doubt be a wonderful career as a legislator in your Lordships’ House.
I also take great pleasure in welcoming this Bill, as the Opposition did when it was first introduced in the other place. I thank the Minister for returning with the Bill and the way in which he spoke about it, with great humility and reason. Both have been features of the debate in general. However, I have occasionally worried that some of your Lordships have thought of this Bill as a deliberate or perhaps accidental slight on marriage, or a measure which seeks to undermine or trivialise marriage, or facilitate divorce for those who do not take their obligations, promises, covenants and faith seriously. I think that is a misunderstanding of the legislation as it is and as it is intended.
It was WH Auden who famously and rather beautifully compared the law to love in the poem “Law Like Love”. It might be a beautiful poem, but none the less, it is very difficult, if not impossible, to legislate for love. What we attempt to do instead is legislate to protect people. I understand that law has a moral content and that we are concerned about sending signals to people through the law, but the primary, practical purpose of legislation is to protect people. That means protecting people when they get things wrong, screw up and break their covenants, or when the act of faith was in error or made in good faith but things went wrong. It seems to me that no-fault divorce is a no-brainer, for all the reasons eloquently set out in this debate. Unhappy, miserable and traumatic though it is—the great leveller of misery across society—divorce is neither a crime nor a civil wrong. It is a trauma and a very unhappy thing and we should not prolong the agony.
Divorce is neither a crime nor a civil wrong, yet within it, crimes and wrongs take place. We should act to protect people from those crimes and wrongs, particularly the vulnerable and victims of domestic abuse. I have noticed that in the many submissions that we have all received in relation to this Bill, the bulk of those working with vulnerable women and victims of domestic abuse, in particular, seem to support this legislation. That is to be taken seriously, and certainly as seriously as any poll based on percentages of the population as a whole. I am prepared to accept that many, or perhaps the majority of, people believe that there is fault in divorce, but that is because there was fault in their divorces. We can recognise fault without it being enshrined in law in a very unproductive way, prolonging the agony or, as the noble Baroness, Lady Shackleton, said, picking over the carcass of a marriage. I noticed that in some noble Lords’ remarks, there was a reference to broken homes. But homes are broken within marriages, as well as by divorce. Locking people into a legal relationship when they do not want to be there is not a practical or sensible legislative policy.
I was particularly charmed, as I often am, by the remarks of the noble and learned Lord, Lord Mackay of Clashfern. Listening to him, one can well imagine why he has had such a happy union for 62 years—yet there was no hubris, just humanity, compassion, reason and practicality about how to protect people, rather than promote a morality that does not always succeed in practice. There is a difference between the world as we want it to be and the world as it is; between humans as we want them to be and humans as they, sadly, too often are. For the most part the law should deal with the latter, particularly with that aim of protecting people.
I broadly and warmly support the Bill but in relation to some people’s concerns about the vulnerable, and whether it might undermine rather than protect them, I would predictably remind your Lordships of the cuts in the justice system and how those have affected family law, in particular. There is especially the fact that since 2013, legal aid has been removed from divorce cases. That is a terrible mistake if one is trying to protect abandoned people and children, and be equitable in relation to resources and so on. I really urge the Minister to reflect on that as much as he can, and speak to his colleagues about whether, in this new moment when people want to support the vulnerable and hold people to their obligations, it can be fair or right that those who cannot afford a lawyer will not get the protection of the law. That is whether it is in relation to pensions or access to their children, or to the other horrible things that people argue about at this traumatic time in their lives. We can craft the most perfect divorce legislation but it will be a dead letter—a sealed book—if people do not have access to early and consistent advice and representation, so that everyone can benefit from the kind of wisdom and expertise we heard from the noble Baroness, Lady Shackleton, this evening. That must be the right thing.
As I said, I have been particularly moved by the charities and NGOs which work with the vulnerable and support this legislation. They know what they are doing; they deal with these people at the sharp end. In addressing other concerns, can the Minister say something about what the Government plan by way of additional support, beyond this legislation, in public education, advice and so on for people going through these most difficult times? It should be not just legal support but counselling, too, and not just counselling in crisis but—as once more recommended by the noble Baroness, Lady Shackleton—much earlier in life. There should be guidance and education about the inner self, and about what a relationship of such gravity looks like; what it means and what it takes. It may not be that divorce is too easy. It may be that marriage is taken by some too young, too lightly and with the wrong person. That might be a better target for action than trying to lock people into an already broken home.
There are so many other pressures on families in breakdown, as described once more by the noble and learned Lord, Lord Mackay, such as inadequate finance or social housing. All sorts of other social infrastructure are needed to back up the unit of the family. The family is a vital building-block in society but there is such a thing as society outside the family, and families need support.
On the concerns expressed by noble Lords who were less than supportive of the Bill, I think that many of these things can be looked at outside the legislation. I share some of the concerns expressed about online divorce procedure in particular. In responding to this debate, perhaps the Minister might comment on the Law Society’s recommendation in particular, given that there are risks associated with online divorce procedures as opposed to divorce of the more conventional kind. I am concerned about relying on online legal provision rather than advice, representation, judgment and so on.
Generally speaking, it is a great pleasure to be on the same side as the noble and learned Lord the Minister for once—perhaps for the first time, I do not know, but maybe and hopefully not for the last—and to have heard the general humanity, humility and often wisdom and experience that your Lordships have brought to this debate. I commend the Bill as a start, as a part of the kind of process that the noble Baroness, Lady Shackleton, welcomed and advised. I hope that we can, if necessary, improve the Bill but do so in a cross-party, non-party and constructive spirit.
Lord Keen of Elie
My Lords, I am grateful to everyone who has spoken in this debate, and I express particular thanks to the noble Baroness, Lady Hunt of Bethnal Green, for a cogent and perceptive maiden speech. I am encouraged by those, from all sides of the House, who have indicated their support for the Government’s proposals, which in turn reflect overwhelmingly the views of those in the other place. This Bill will bring long-overdue reform—a point made by the noble and learned Lord, Lord Walker—that directly benefits divorcing couples and, importantly, any children that they may have.
Of course the Government share the belief that marriage and civil partnership are vitally important to the well-being of our society, but I am very aware that there are some differing views about divorce, and I recognise that some noble Lords have misgivings about the proposals in the Bill—or, indeed, about proposals that are not in the Bill. But I would like to reiterate what I said in my opening speech, which is that this Bill is intentionally narrow because it focuses on the evidence for reform of particular aspects of divorce law on which there is a broad consensus. That seems to me a sensible and proportionate approach for the Government to take at this stage, acknowledging that there may be further matters to be addressed.
Many points have been raised today. I will consider some of those further between now and Committee and I have no doubt that they will also be the subject of consideration in Committee. But perhaps I might comment on a number of points that were raised.
The noble Lord, Lord Anderson of Swansea, began by referring to the apparent marital experiences of the actor Pamela Anderson. Some would consider that those experiences compare not unfavourably with those of the late Henry VIII, who was after all Defender of the Faith.
My noble and learned friend Lord Mackay of Clashfern made the point that marriage is essentially a voluntary union. I understand the point made by the noble and right reverend Lord, Lord Harries of Pentregarth, that marriage is not simply a contract, but requires the willingness of both parties to adhere, and that has to be borne in mind.
The noble Lord, Lord Anderson of Swansea, raised a further point about Clause 1(8), which allows the court in exceptional circumstances—the point was also raised by the noble Baroness, Lady Meacher—to alter the periods in question. That is part of the existing law, albeit on the matter of the gap between decree nisi and decree absolute. It is done only in exceptional circumstances. Perhaps the easiest example to give is where somebody is suffering from a terminal illness. The court may be prepared to step in to foreshorten the relevant period so that the divorce can be secured before a person is deceased. But it is employed only in such exceptional circumstances. I hope that the noble Lord will accept that.
The noble Lord and many others referred to the 20-week period, and in particular to its commencement. There are arguments about whether it should commence on application or at the point at which a respondent acknowledges service. The difficulty with the latter approach is that an unresponsive respondent, if I can put it in those terms, might well frustrate the entire process and delay it unconscionably. However, we are open to discussion on how we should approach the question of the 20-week period. I have no doubt that there will be an opportunity to do that between now and Committee.
The noble Baroness, Lady Burt of Solihull, raised the question of transgender people, or persons who wish to transition, which she acknowledged was outwith the scope of the Bill—which it certainly is. However, if and when we come to address that, I think that we would have carefully to approach her use of the unqualified term “veto” in respect of this matter. The noble Baroness, Lady Hunt, very charmingly used a “Jack and Jill” kind of illustration of certain matters; perhaps I may seek to deploy a similar approach. Mary marries Paul; Paul decides that he will transition to become Pauline. To complete that process, he will either require the consent of Mary or he will have to secure a declarator of nullity of marriage—so there is no actual veto. The point of the present situation is this: Mary who married Paul should not find herself married to Pauline without her consent. There are counter-arguments and it is a delicate and difficult issue; it is not one for this Bill, but I respond to the noble Baroness’s suggestion that I should say something on the topic. I simply underline that it is a delicate subject that will have to be approached with care and without using such unqualified terms as “veto”.
Financial settlement was also raised by the noble Baroness, Lady Burt. We are at present considering an appropriate form of consultation on how we might approach any reform of the law with regard to financial settlement, but we have no desire to derail the Bill by trying to draw in a rather more complex area—one underlined by the noble Baroness, Lady Janke, when she alluded to pensions. That will require wide-ranging consideration before we can bring forward any possible legislation. It is not something that we would seek to address in the context of the present Bill.
The noble and learned Lord, Lord Hope of Craighead, raised a number of points to which he said he would return in Committee. He referred first to the wide delegated powers in Clause 6, which would include powers in relation to Acts of the Scottish Parliament. I am confident that no such steps, which could be taken only where amendment consequential on this Bill was required, would be taken without consultation with the Scottish Government.
He also raised a point about paragraph 58 of Schedule 1 to the Bill. That is intended to apply existing legislation to the new form of order that will arise under this Bill. If there is a deficit of some kind in the wording of that proposed amendment, I would be happy to discuss it with the noble and learned Lord in advance of Committee, so that it can be properly addressed. It is not immediately apparent to me from my reading of paragraph 58 that there is a deficiency—but, as I say, I am perfectly content to discuss that.
The noble Baroness, Lady Meacher, raised a question about having to reaffirm your desire to end a marriage. The present Bill simply reflects existing law in that regard. We do not consider that this is a deficiency. There is no reason why, in our view, if someone has determined that a marriage has irretrievably broken down, they should not be able to reaffirm that when requested by our court procedures to do so. Indeed, there may be some merit in requiring them to do so.
The noble Lord, Lord McColl of Dulwich, alluded to mobile phone contracts and their length—but, of course, one is able to proceed with what is termed pay-and-go. We do not wish to introduce that in the context of marriage or divorce, but it just shows that such comparatives can sometimes be a little less than entirely convincing.
I am encouraged that many have welcomed the Bill. Many have suggested that there are points of detail that they will wish to raise in Committee, and I would welcome discussion with noble Lords in advance of Committee on any points of detail that we can address. Clearly, no law can make the breakdown of marriage painless. What a reform of the law can do is minimise the pain and difficulties that arise not from the breakdown of the marriage but from the legal process itself. The law should not compel people to continue in the empty shell of a marriage for longer than is absolutely necessary. The fact is that divorce and dissolution will continue to happen regardless of what legal process we put in place; the irretrievable breakdown of some marriages and civil partnerships is inevitable. The Bill deals with the reality that, with the minimum of acrimony, it should be possible for people to leave such arrangements in an orderly and hopefully sometimes constructive manner.
I certainly share the concern expressed by many of your Lordships that the legal process itself should not exacerbate the conflict that has driven divorcing couples to the point of seeking the termination of a marriage. I take the point made by the noble Baroness, Lady Shackleton, that we should, in a sense, contemplate addressing not how you end a marriage but how you begin it, and educating people as to what they are entering into rather than what they are about to leave. There is a great deal of force in that.
We believe that this Bill will make a genuine difference to the lives of many, including children, who have to experience divorce either at first hand or as witnesses. It is for that reason that I beg to move that this Bill be now read a second time.
Divorce, Dissolution and Separation Bill [HL]
Tuesday 3rd March 2020
(4 years, 8 months ago)
Lords ChamberRead Full debate Divorce, Dissolution and Separation Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-I(Rev) Revised marshalled list for Committee - (2 Mar 2020)
Lord McColl of Dulwich
(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 (Con)
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.
Baroness Howe of Idlicote (CB)
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 (CB)
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 (DUP)
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 (LD)
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 (Con)
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 (Con)
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)
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
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 (DUP)
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 (Lab)
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.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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
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.
Baroness Howe of Idlicote
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
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.”
Lord Framlingham (Con)
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
I entirely and completely agree with the noble Lord.
Baroness Shackleton of Belgravia
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 (Con)
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
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
Is the noble and learned Baroness actually saying that there is no possibility of that person changing their mind?
Baroness Butler-Sloss
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
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
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
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 (DUP)
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.”
Baroness Meyer
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 (LD)
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
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
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
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.
Baroness Howe of Idlicote
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
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
It would be desirable to have some meetings. Under the circumstances, I beg leave to withdraw my amendment.
“( ) 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
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 (CB)
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.
Lord Farmer (Con)
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
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
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.
Baroness Tyler of Enfield (LD)
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.
The Lord Bishop of Salisbury
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
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 (DUP)
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
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
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
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.
Lord Harries of Pentregarth
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.
Divorce, Dissolution and Separation Bill [HL]
Tuesday 3rd March 2020
(4 years, 8 months ago)
Lords ChamberRead Full debate Divorce, Dissolution and Separation Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-I(Rev) Revised marshalled list for Committee - (2 Mar 2020)
Lord Mackay of Clashfern
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 (Con)
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 (LD)
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 (Con)
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.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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
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.
Lord Farmer
“( ) 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 Mackay of Clashfern
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
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
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.
Lord Keen of Elie
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
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.
Baroness Chakrabarti
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 (Lab)
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 (CB)
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
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
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.
Lord Farmer
“( ) 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
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 (DUP)
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 (CB)
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.
Lord Walker of Gestingthorpe (CB)
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 (Lab)
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
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.
Lord Grantchester (Lab)
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
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
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.
Lord Beecham
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
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
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.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
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.
“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)
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
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
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.
Lord Farmer
“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
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.]
Lord McColl of Dulwich (Con)
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
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
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
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.
Baroness Deech
“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
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.
Divorce, Dissolution and Separation Bill [HL]
Tuesday 17th March 2020
(4 years, 8 months ago)
Lords ChamberRead Full debate Divorce, Dissolution and Separation Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-R-I(Rev) Revised marshalled list for Report - (16 Mar 2020)
Lord McColl of Dulwich
“(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 (Con)
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.
Baroness Howe of Idlicote (CB)
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 (CB)
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 (Con)
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 (LD)
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)
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 (DUP)
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.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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
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.
Lord Farmer
“(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 (Con)
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?
Baroness Butler-Sloss (CB)
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
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
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
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
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.
Baroness Meyer
“(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 (Con)
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
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
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
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
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
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
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
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
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
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
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
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.
Lord Keen of Elie
Lord Keen of Elie
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 (Lab)
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.
Lord Keen of Elie
I note that the noble Lord supports the amendment and I hear what he says with regard to ancillary matters.
Baroness Howe of Idlicote
“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
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 (Non-Afl)
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
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.
The Lord Bishop of Carlisle
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 (DUP)
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
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
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”.
Baroness Burt of Solihull
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
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
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 (DUP)
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
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.
Lord Harries of Pentregarth
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
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
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.
“Impact on marriage
Nothing in this Act changes the understanding of marriage as established by law.”
Lord Harries of Pentregarth
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
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
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.
Baroness Howe of Idlicote
“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
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
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
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.
Lord Browne of Belmont
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
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.
Lord Keen of Elie
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
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.
Divorce, Dissolution and Separation Bill [HL]
Tuesday 24th March 2020
(4 years, 8 months ago)
Lords ChamberRead Full debate Divorce, Dissolution and Separation Act 2020 Read Hansard Text Amendment Paper: HL Bill 2-R-I(Rev) Revised marshalled list for Report - (16 Mar 2020)
Divorce, Dissolution and Separation Bill [Lords]
Monday 8th June 2020
(4 years, 5 months ago)
Commons ChamberRead Full debate Divorce, Dissolution and Separation Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-R-I(Rev) Revised marshalled list for Report - (16 Mar 2020)
22:00 - The House divided: - Ayes: 231 / Noes: 16 - Question accordingly agreed to.
The Lord Chancellor and Secretary of State for Justice (Robert Buckland)
I beg to move, That the Bill be now read a Second time.
Marriage will always be one of the most vital institutions in our society, but we also have to face the sad reality that marriages sometimes breakdown. No one sets out thinking that their marriage is going to end. No one wants their marriage to break down. None of us is therefore indifferent when a couple’s lifelong commitment has sadly deteriorated. It is a very sad circumstance, but I believe that the law should reduce conflict when it arises. Where divorce is inevitable, this Bill seeks to make the legal process less painful, less traumatic. It does not, and cannot, seek to make the decision to divorce any easier. The evidence is clear that the decision to divorce is not taken lightly or impetuously. Indeed, it is typically a protracted decision based on months, if not years, of painful and difficult experience and consideration. The sad reality is that it is often too late to save a marriage, once the legal process of divorce has started. Once that decision has been reached, the parties need to move forward constructively. The Bill focuses on that very legal process.
Jim Shannon (Strangford) (DUP)
My wife and I have been married for 33 years and my mum and dad and were married for almost 61 years. The sanctity of marriage is very important. Does the Minister not agree that more funding must be allocated to counselling services to provide trained help for those in marriage difficulties and to prioritise saving a marriage where there is still the will to do so but perhaps not the means to do so? The waiting list for free counselling with Relate stands at seven weeks in some areas of the country, and families cannot afford to pay for private counselling. Relate and counselling are so important in trying to save a marriage.
Robert Buckland
I am grateful to the hon. Gentleman. He cuts to one of the most important issues in the debate about divorce, and I absolutely agree with him on the merit of organisations such as Relate and the work that they do to support marriages that have run into difficulties. However, it is the sad experience that, by the time a decision to issue a divorce petition has been made, matters have gone beyond that, to a great extent—not in every case, but in my view, in the vast majority of cases.
The Government are working hard to support initiatives such as the troubled families programme and, in the last Budget, to invest more money into proper research into effective family hubs where work can be done to support families in conflict who are struggling and having difficulty keeping together. The work of the Department for Work and Pensions in the £39 million reducing parental conflict programme, even at this time of covid, is an example of the Government’s strong commitment to supporting families. We believe that the family is a vital component of what it takes to be a civilised society. It is the source of stability, safety, love and all those things that we should be cherishing as a society.
Andrew Selous (South West Bedfordshire) (Con)
We are in the final year of that £39 million, and there is no guarantee as to what will happen in the next financial year. Could the Lord Chancellor reassure us that he will be a doughty champion with the Treasury and at the Cabinet table to ensure that that programme is renewed, reinvigorated and properly funded?
Robert Buckland
I am grateful to my hon. Friend. I can make the assurance that I, in my position as Lord Chancellor, will do everything I can to reinforce the important messages about the values of family. As a Conservative, they are particularly important to me, but I know that Members of all parties in this House share those values and from their own experiences believe in the family.
I want to add this comment: it is because I believe in the family that I think these measures are the right approach. Some people might think that is contradictory, but I do not believe so, because I think it is our responsibility in the legal process to try to reduce conflict, because conflict leads to emotional difficulty. It can lead to damage. It can lead to serious consequences, not just for the adults in the relationship but, let us face it, the children, too. We owe it to them to minimise in our legal processes, rather than maximise, the damage that can be caused.
Mr Jonathan Djanogly (Huntingdon) (Con)
One of the most important things for ensuring that families, when they do sadly break up, do so in an ordered way is an ordered financial process. We are one of the few countries in the world that I know about that does not have a process for pre and post-marital contracts. Does my right hon. and learned Friend not agree that this would have been the perfect opportunity to have brought in the wording that the Law Commission has already provided? It is sitting there and could be put into the Bill. Rather than leaving the courts to dictate the issue, this place should be dictating the issue. Will he consider that?
Robert Buckland
I am very grateful to my hon. Friend, who served for a considerable period in the Department I now have the honour of leading. He is right to talk about the financial consequences of breakdown. It is important to note the commitment made by my noble and learned Friend Lord Keen in the other place by way of a letter dated 16 March to Baroness Deech, which has now been placed in the Library of each House, that we will consider how a review of the law governing financial remedies provision on divorce may take place. I give him that undertaking.
Sir John Hayes (South Holland and The Deepings) (Con)
I am extremely grateful to my right hon. and learned Friend for giving way. The Law Commission also recommended that rather than reducing the time that people can get divorced within from two years to six months, it should be reduced to nine months. Given his willingness to concede on the previous point, will he at least look at that again?
Robert Buckland
I am very grateful to my right hon. Friend. I know that he, like me, is a doughty champion not only for the family, but the need to reduce conflict. I know that he makes his point passionately, but I would argue that the way in which this Bill is constructed makes the so-called quickie divorce a thing of the past. The minimum terms that we are talking about provide an equality of approach that will no longer discriminate in favour of those couples who perhaps have the means and the wherewithal to either separate and live separately or to employ the sort of lawyers who can, shall we say, get things done in a more expeditious way.
I stress to the right hon. Gentleman that the six-month term that has been naturally focused upon is a minimum. There will be divorces that take longer than that for reasons of complexity relating to each relationship. The point is that there will not be divorces that can take place in as quick a time as eight weeks, as is currently the case.
Reform of divorce law is supported not only by the lawyers, judges and mediators, but by the Marriage Foundation and, importantly, by evidence from academic research. It is evident that the law does not do what many people think it does. It cannot save a marriage that has broken down, nor can it determine who was responsible for that breakdown. Allegations made in a divorce petition by one spouse about the other’s conduct give no advantage in any linked proceedings about arrangements for children or financial provision for a spouse, yet the current law can perversely incentivise conflict. It requires an applicant for divorce or for the dissolution of a civil partnership to provide details to the court of the respondent’s unreasonable behaviour if their circumstances mean that they need to divorce before a two-year separation period. The incentive at the very start of the legal divorce process to attribute blame can only serve to antagonise parties at the most difficult time in their lives. Moreover, the court in practice has limited means by which to inquire into such alleged behaviour and must often accept what is said by one spouse at face value. This can be a source of real resentment for the other spouse.
Mr Toby Perkins (Chesterfield) (Lab)
I congratulate the Secretary of State on what he has said so far. This is an important Bill that we look forward to supporting. Does he agree that this legislation is needed all the more because of the huge backlog in the court system right now, and that, alongside the important measures that he is introducing, we really need some Government heft to support our legal system and clear away that backlog?
Robert Buckland
The hon. Gentleman is right to talk about the caseload, which covid has exacerbated. He will be reassured to know that the senior judiciary and Her Majesty’s Courts and Tribunals Service are working every day to expand the current capacity, to open more courts as we move away from the peak, and to look at alternative capacity in order to get as many cases running as possible and to deal with what must be an agonising wait for many families and victims. I would say—and I know that the hon. Gentleman would agree—that this Bill is not about the immediate crisis. It has been brought forward after long consideration, and has been dealt with very carefully in the other place. Indeed, it went through most of its stages in this House during the last Parliament, and represents an important milestone in the evolution of our approach to the sensitive and difficult subject of divorce.
I was talking about the perverse position whereby the current attribution of blame does not benefit anyone or serve society’s wider interests. Instead, it can create long-lasting and often bitter resentment at the outset, precisely at a time when couples need to work together to agree arrangements for their children and their finances. Furthermore, the simplistic allocation of blame to meet a legal threshold does not really reflect the reality that responsibility for a marriage breakdown may be shared. Marriages sadly end for a multitude of reasons. Existing law does not reflect that reality, and the truth is that we have stretched the law for a number of years in order to set out behaviour particulars sufficient to satisfy the court and obtain a divorce—a form described by the former president of the family division, Sir James Munby, as intellectual dishonesty.
Andrew Griffith (Arundel and South Downs) (Con)
I accept the immense good faith with which my right hon. and learned Friend brings this Bill to the House, but does he share my concern, sadness and pain for the grandparents involved in any situation where there is family separation?
Robert Buckland
My hon. Friend is absolutely right to remember the wider family concerns, and the difficult position that grandparents—often on both sides of the divide—face when it comes to issues of contact and the welfare of much-loved grandchildren. He is right to remind us that that is a real dimension of the situation.
Robert Buckland
I will give way to my hon. Friend the Member for Winchester (Steve Brine) first, but I will come back to the hon. Member for Chesterfield (Mr Perkins).
Steve Brine
I have to be honest with the Lord Chancellor: I am troubled by his Bill, but I am not yet entirely sure why and I am listening for him to give me a reason. It almost feels as if we are trying to prevent something from pulling apart by seeking to bind it together even tighter—almost “What the law has bound together let no one put asunder.” Does he agrees that, as a society, we should invest more heavily in relationships, in preparation for marriage and in conflict resolution? I remember myself and Mrs Brine doing that, which is why we are so happily married—17 years next week. If that were the case, maybe fewer relationships would fail.
Robert Buckland
My hon. Friend makes the point extremely eloquently that all of us are concerned about the institution of marriage. Those of us who value it and who are part of it can see its benefits, but we are concerned to see a decline in its use—a decline in committed relationships. This Bill will not solve those problems. It will not stop those problems. This is a Bill about the legal process. I do not pretend that, through this legislation, we can solve some of the sociological issues that he raises, but he is right to look through the telescope the right way. My worry is that, however well-intentioned those who are properly concerned about the details of the Bill might be, we are in danger of looking through the telescope the wrong way if we focus our attention on this process, as opposed to what might happen at the beginning.
Mr Perkins
The Secretary of State is right about the conflict caused by the current system. Does he agree that the old adage is true, that it is a good man who can keep a wife happy, but it is an amazing man who can keep an ex-wife happy?
Robert Buckland
I could not put it better myself, and the hon. Gentleman makes his point with characteristic force.
Sir Robert Neill (Bromley and Chislehurst) (Con)
Will my right hon. and learned Friend give way?
Sir Robert Neill
I am grateful to the Lord Chancellor, and I support the Bill. Is it not an important argument, which I hope my hon. Friend the Member for Winchester (Steve Brine) will take on board, that it is clear from research by practitioners and academics that the requirement to allege fault does nothing to protect the institution of marriage or alter the divorce rate or the breakdown rate? That is exactly why it is right to look through the right end of the telescope, not the wrong one.
Robert Buckland
My hon. Friend will recall his Court of Appeal appearances, where the tribunal might have said, “Mr Neill, that’s your best point. You needn’t go any further.” He makes an important point on the issue of blame; it does not help anybody when it comes to these issues.
The clear purpose of the Bill is to reduce conflict, because conflict does not help when it comes to the legal end of a marriage. That can only be to the advantage of divorcing couples and their children, because children’s best interests are most clearly served by the reduction of conflict and the co-operation of divorcing parents who work together to ensure that they co-parent effectively. The Bill will help couples to focus on a more constructive way of collaborating in making future arrangements that are best for their family—in essence, looking forward rather than backward.
Sir John Hayes
I am grateful to my right hon. and learned Friend for giving way a second time. The acid test is: as a result of this legislation, will there be more divorces or fewer? It is my contention that if we make something easier, people are more likely to do it.
Robert Buckland
I understand entirely my right hon. Friend’s concerns. The number of divorces has declined in recent years, but that perhaps goes back to the point made by my hon. Friend the Member for Winchester about the beginning of it, because the number of marriages has declined in proportion since 1972, just under 50 years ago. Taking the long view, one should focus upon the beginning of the process—the nature of the commitment, the solemnity of that commitment and the importance of that relationship and that commitment—rather than the detail of the end process.
This Government’s proposals will apply equally to married couples and civil partners. While I conveniently refer to the concept of marriage and divorce, the principles and effects apply equally to civil partnerships and their dissolution. Husbands, wives and civil partners will no longer need to produce or face a real or perceived catalogue of failings in respect of their most intimate relationship. There is a strong common view underlying the proposals in the Bill, built upon the foundation of a significant evidence base.
Sir Edward Leigh (Gainsborough) (Con)
Of course, it is not necessary to make any allegation under the present law—people do not have to prove fault if they rely on separation. In addition to the present grounds for divorce, why do we not go down the Scottish route of having a no-fault provision, perhaps of a year? In Scotland, all but 5% of divorces are no-fault. Why do we not have a moderate measure such as the one in Scotland?
Robert Buckland
As ever, I am grateful to my right hon. Friend for his constructive approach. He quite properly seeks to make a comparison with a nearby jurisdiction—a next-door jurisdiction—but I believe that taking a more comprehensive approach will cure problems for the long term. Rather than encouraging a piecemeal approach to divorce reform—in other words, coming back to it in very short order—we are creating a Bill that will, I believe, endure for a considerable period of time.
Let us remember that the evolution of divorce law has involved significant moments in parliamentary history: there was the Matrimonial Causes Act 1857 and the Divorce Reform Act 1969, which of course led to the Matrimonial Causes Act 1973, which brought together a lot of the legislation on such issues. These things are not done, and I do not think they should be done, from Parliament to Parliament; they should have a longer shelf life, bearing in mind the gradual evolution of the law in this area.
Martin Vickers (Cleethorpes) (Con)
Will my right hon. and learned Friend give way?
Robert Buckland
I will just make some progress. I will of course allow for interventions in a proportionate way, remembering the time pressures that we are all under.
The Bill purposefully does not seek to change the other aspects of divorce law for financial provision—I dealt with that issue in my response to an intervention from my hon. Friend the Member for Huntingdon (Mr Djanogly). It is more than half a century since the Divorce Reform Act 1969 gave rise to the current law. There is only one legal ground for divorce or dissolution—namely that the marriage has broken down irretrievably—but existing law requires that the petitioner must satisfy the court of at least one of five facts before the court will hold that the marriage has broken down irretrievably. Three of those facts—unreasonable behaviour; adultery, which does not apply in respect of civil partnerships; and desertion—rely on the conduct of the respondent. Two of those facts rely on the parties’ separation—namely two years, if both parties consent, and otherwise on the basis of five years’ separation.
Around two out of five divorces in England and Wales currently rely on the two years’ separation fact. The parties must have been separated for at least two years before the presentation of the divorce petition. However, that route to divorce can be used only if the respondent consents; if the respondent does not agree, it is a five-year wait before the divorce can be granted.
Around three out of five petitioners for divorce rely on the conduct facts—that is, unreasonable behaviour, adultery or, in rare cases, desertion. In only around 2% of cases does a respondent indicate an initial wish to contest a petition. Such initial opposition can often be driven by strong disagreement with what has been said about them by the other spouse in the petition. Of those contested petitions, each year a mere handful proceed to a trial at which the respondent’s case is heard. It is abundantly clear that marriages are not saved by the ability of a respondent to contest a divorce, because marriage is—has to be—above all things a consensual union.
I set out at the beginning that the current law incentivises many divorcing couples to engage in proceedings that quickly become acrimonious, even if it had been the intention to divorce amicably. Research shows that spouses are often surprised when told by a solicitor that they must either choose to wait a minimum of two years to divorce or be prepared to make allegations about the other spouse’s conduct. Although this is no longer the world of the staged scene of adultery in a hotel so criticised by the great A. P. Herbert, former Member of Parliament in this House and the author of the Matrimonial Causes Act 1937, it is right that we pause for thought about a situation wherein the law and circumstances are stretched in a way that does not help anybody, least of all the lawmakers themselves. It is a great poetic irony that A. P. Herbert went on to write the smash-hit musical “Bless the Bride” some years after he helped to author that major reform to the law of divorce, but perhaps that story itself makes an eloquent point: those of us who seek to make changes in this sensitive area of the law can, in the same breath, absolutely celebrate the institution of marriage and the values that surround it.
Steve Brine
I have found the reason I referred to. I think the unease that many feel about this legislation is the timing of it—the so-called lockdown break-ups. I can understand why that is a sensitive issue at a sensitive time on what the Lord Chancellor rightly says is a sensitive matter. What would he say to those who oppose this legislation on the grounds that it is a difficult time to be introducing so-called quickie divorces?
Robert Buckland
First of all, no time is an easy time. This is a sensitive matter at all times. Secondly, these are not quickie divorces. We are regularising the position to end the so-called quickie and to equalise the position with regard to minimum terms. We must, I believe, accept that divorce is a sad and unhappy consequence of relationship breakdown, not a driver for it.
Martin Vickers
I thank my right and learned hon. Friend for giving way. I am listening hard to what he is saying in the hope that he might be able to persuade me to support his Bill. I know that he brings it forward with exactly the right motives. He talks about the evolution of our divorce laws and the long-term view and so on, but will he accept that over the past 30 or 40 years, each time that we have made a change, we have said that we are putting in safeguards and putting additional support into mediation or whatever it had to be, but the trend has continued in the same direction? This Bill has been labelled, for better or worse, the quickie divorce Bill and labels stick. Will he accept that that gives the wrong signal to society?
Robert Buckland
I entirely agree with my hon. Friend on his last point.
This is not—I repeat not—a quickie divorce bill, and he is right to say that we in this House owe it to all our constituents to send the right message. Let me put it straight—this is a matter that he might not agree with: I do not believe that issues of reform of the process of divorce are germane to the issue of marriage itself. The question that was posed by my hon. Friend the Member for Winchester (Steve Brine) is indeed the right one, about society’s attitudes to relationships, the values that are inculcated in young people, and the level of understanding and insight into the nature, degree and complexity of the commitment to join in union, whether it is marriage or civil partnership. All of those are actually the relevant issues to the future of marriage and this Bill will not, should not, and does not have a consequence for those issues.
Jonathan Gullis (Stoke-on-Trent North) (Con)
As someone who is tragically going through the divorce process and has had to put blame on my partner when I would have preferred to have had a no-fault divorce, I ask my right hon. and learned Friend to reaffirm the message that this is, in no way, a quick decision. As someone going through this process, I can say how painful it is. It was not a decision that I came to easily, but this type of legislation would not require the burden of guilt to be applied to one person or the other.
Robert Buckland
My hon. Friend has shared a difficult and sensitive experience with the House, for which we are grateful, and he puts it extremely powerfully. This is not about blame or guilt; it is about acknowledging the fact that the causes of divorce are very complex and will evolve often over a long period of time. I am grateful to him for his powerful contribution. No one benefits, least of all the children of the relationship, from the requirement for parties to dredge up the past in order to end a legal relationship that is no longer beneficial or functioning. It is not in the public interest and cannot be right that the law would encourage one parent to be pitted against the other, when we all know the deeply damaging impact that parental conflict has on children.
Indeed, the limitations of the court process are not particularly well understood by the public. Under existing law, the legal fact that many people choose as their route to divorce bears little resemblance, as my hon. Friend says, to the reality of why a marriage has broken down. A respondent may have behaved despicably, yet a petitioner may reluctantly decide to rely on two years’ separation through fear of abusive repercussions should he or she allege unreasonable behaviour. Likewise, a petitioner may, from a desire not to have to wait for two years, feel compelled to embellish the unreasonable behaviour of a respondent beyond what one might ordinarily expect in normal marital discord. The concept of unreasonable behaviour is also purely subjective, so that what is unreasonable to one spouse in a marriage may not be at all unreasonable to another spouse in a different marriage.
Alexander Stafford (Rother Valley) (Con)
Will my right hon. and learned Friend give way?
Robert Buckland
I need to make some progress, because I am conscious of time.
The lack of transparency and objectivity means that a spouse who is trying not to cause unnecessary hurt risks not meeting the legal threshold. That has consequences, for example, for victims of domestic abuse and can lead to the manufacture of blame between couples who might have grown apart entirely amicably.
What we are creating is a level playing field. Our equal-handed approach will allow all couples to use the same legal process and will not favour couples who can afford to live apart before their divorce. Vulnerable parties will no longer have to work out whether they can afford to be separated for two years, or face the danger of presenting conduct particulars in respect of an abusive spouse. Our proposals remove many obstacles currently faced by victims of domestic abuse in the legal process of divorce. Victims will not have to place themselves in danger by detailing their abuser’s conduct; they will not have to remain in a legal relationship for a further two or more years in order to rely on a separation fact; and they will not have to fear an abusive spouse exerting their control by contesting the divorce. This position has to be changed, and divorcing couples must be given every opportunity to avoid conflict.
In developing our proposals, we have reflected on a wide range of views, including from the profession, the judiciary and couples themselves, that emerged during our consultation process and from evidence given during consideration of the Bill in the previous Session of Parliament. We have also considered and continue to consider carefully the views of those who oppose reform, although, with respect, I think that there is something of a disconnection between what some think the current law does and what it actually does.
With all that in mind, I will talk briefly about the measures in the Bill. The two stages of divorce and dissolution are maintained. The current decree nisi and decree absolute become a conditional order and then the final order. Always, the intention is to make the process more understandable and more accessible to everyone who seeks to use it, but we have retained the two-stage process because it ensures that a divorce is never automatic; rather, the decision should be considered and intentional at each stage. The reform will retain irretrievable breakdown as the sole legal ground for divorce and dissolution, but replace the current requirement to evidence that with a conduct or separation fact, as outlined in the statement of irretrievable breakdown. Indeed, the statement itself will be conclusive evidence that the marriage or civil partnership has irretrievably broken down; it therefore removes the possibility of contesting the decision to end that relationship, which currently only 2% of spouses do. Importantly, and for the first time, couples will be able to make a joint application where the decision to divorce is mutual. That will create a level playing field for joint applicants and encourage them to work together from the very beginning of the process.
As I have said, the new minimum period of 20 weeks is all part of the drive to create an equal, level approach. It ends any suggestion of so-called quickie divorce. In addition to the 20-week minimum period, the current six-week minimum period between conditional and final orders will remain, so six months is a minimum, not a maximum or absolute time limit. As is currently the case, a conditional order may not be pronounced unless the court is satisfied in relation to service on the respondent.
We are aware of the concerns of hon. and right hon. Members and the Law Society about the question of delayed service where this is done by the applicant’s spouse, and we will of course work with the Family Procedure Rule Committee on that point, and indeed on the point about making sure that divorce does not end up being a complete surprise to a respondent who perhaps knew nothing about service. We will, through the Family Procedure Rule Committee, make sure that those important concerns are dealt with.
Our proposals allow time for the applicant to consider the practical implications of the important decision to divorce. We estimate that, under the new law, the legal process of divorce will take longer for about four fifths—80%—of couples, after taking account of the projected impact of the take-up of the streamlined, digitised divorce service. That means that the question of quickie divorce is one that is wholly refuted, I believe, by the provisions and, indeed, the evidence that underlies this new reform.
The Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), will, in his summing up, deal with other points that arise through the Bill. I know hon. Members will have read its provisions and it would perhaps be idle of me to go through all of them in order. This is not a long Bill, but it is, I concede, a significant one—no, I do not concede; I make no apology for the fact that it is a significant Bill, because we are talking about the lives of people we represent, and about making this sensitive and difficult process an easier one.
Importantly, apart from maintaining the balance, we will retain the existing triple lock that requires an applicant to confirm the decision to proceed with the divorce at each of the three stages, meaning that divorce will never be, to coin a phrase, automatic. First, the applicant must apply for the divorce; secondly, they must, after the end of the minimum 20-week period, confirm to the court that it should make the conditional order; and, thirdly, following the expiration of a further minimum six-week period, the applicant must apply for the final order of divorce.
This, I believe, is a measured Bill, which we shall implement in a measured way. I pray in aid the spirit of one of my predecessors, the great Tory Lord Lyndhurst, who, as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) will know, was no lover of reform. But at the end of his long and distinguished parliamentary career in the other place, he spoke passionately about the rights of women and the abandoned party in Victorian marriages, and paved the way, as a Tory, for the Matrimonial Causes Act 1857. He is a predecessor whom I invoke today, and in whose spirit I move the Second Reading of this Bill.
Several hon. Members rose—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. Before I call the shadow Secretary of State, I need to inform hon. and right hon. Members that I will need to impose a time limit because the debate has to finish by 10 o’clock. I will start the time limit at five minutes for Back Benchers. In the meantime, I call David Lammy.
Mr David Lammy (Tottenham) (Lab)
I thank the Secretary of State for his speech introducing this important piece of legislation. Labour welcomes this Bill, which offers a common-sense approach that continues to respect the institution of marriage and civil partnerships, but avoids unnecessary antagonism and costs for people dealing with an often incredibly difficult time in their lives.
Sir James Munby, the former eminent president of the family division, has described the current divorce laws and procedures as “hypocritical” and based on “intellectual dishonesty”. As Sir James pointed out in his damning judgment in the infamous case of Owens v. Owens, the requirement of many couples to evidence unreasonable behaviour can lead to farce.
It was 30 years ago now that I studied Evelyn Waugh’s “A Handful of Dust” for A-level English, and as the Secretary of State might recall, in the case in Waugh’s novel, the character Tony is forced to spend a platonic weekend in Brighton with a sex worker to fake evidence to allow his divorce. That, of course, was set in the early period of the 20th century. It is surprising that it has taken that long to update these laws.
Divorce is an unhappy event in the lives of many. It has a profound effect on families, and on children in particular. It is important that the law does not force couples into an adversarial contest when a breakdown in a relationship occurs, but allows and encourages them to resolve matters in a constructive way. The Bill modernises the law, which has been fundamentally unchanged for more than half a century, so that it better reflects the realities of a breakdown in a relationship, better protecting the most vulnerable who attempt to come out of an abusive relationship and simplifying the process of ending a marriage or civil partnership without undermining its social and cultural importance.
The divorce process today is archaic and confusing to most people as they enter into an emotionally fraught process. The law forces parties who are going through a divorce to choose between evidencing one of the three fault-based facts about their partner: unreasonable behaviour, adultery or, less commonly, desertion. If neither party is willing to make such an application, the parties must separate but remain married for a period of two years, or five years if one party disputes the divorce. The option for couples today is entering into a lengthy and costly adversarial legal proceeding, or delay and legal limbo.
Both routes lead to difficulties for all and a real risk of harm to others. Couples who enter the process amicably can be quickly pulled apart by the law. There is an incentive for each party to make accusations about the other’s conduct, and that cannot be right. Some couples can easily live apart and bide their time, but for others, moving into separate accommodation without a finalised divorce and any financial settlement is impossible. That is why so many charities and campaign organisations that work with victims of domestic abuse have called for reform in this area for many years.
The new law will allow and promote conciliation and compromise. That will be of real help for families and children of broken relationships. Importantly, it will reduce legal costs that can quickly reach eye-watering sums, quite unnecessarily.
Sir John Hayes
I am so pleased to see the right hon. Gentleman back on the Opposition Front Bench. He is a dear old friend, but he is quite wrong about this. These provisions declare at the outset that the marriage is irreconcilable. If that happened at the end of the process rather than the beginning, he would be right; an opportunity for reconciliation, and perhaps rethinking, as a result of counselling might be possible. That is not the case with the proposals we have before us tonight.
Mr Lammy
I am grateful to the right hon. Gentleman. Ever since I first came into this House, it is true: we have had a sort of friendship across the aisle. I say that with a degree of humour, to which I know he is disposed himself. He raises an important issue, but I think the point is that the Bill allows for a period in which couples can reflect, and for mutuality between partners. We in this country are taking an important step, whereby two adults contemplating the breakdown of their relationship can reflect and pause, or come to a mutual agreement and step away from some of the antagonism that the system used to create.
First, the new law does not force couples into an adversarial dispute, but allows for an account of the breakdown in the relationship to reflect nuanced reasoning. That is provided by a simple statement. Importantly, for the first time couples will be able to make this statement jointly. In many circumstances, this will help couples to work together constructively to put a legal end to a relationship that is already broken. Indeed, the new law means that couples will now have the option of a joint application for divorce—a welcome and sensible new provision that must be good for children in particular.
This approach strikes the right balance between respecting the profound role marriage and civil partnerships play in our society, while also allowing for amicable resolution to relationships ending. This is not the introduction of shotgun divorces. The process will still take time, providing for reflection and perhaps a reunion. The new law has been welcomed by many relationship and family charities, such as Relate, which has long called for reform in this area. The minimum time for the application to a final divorce will be 26 weeks, which Relate has welcomed as providing the time to reflect, to give things another go if appropriate, and to access counselling and mediation. In reality, of course, couples have often contemplated and discussed separation for a long time before legal proceedings begin.
Secondly, the Bill ends a reliance for amicable couples unwilling or unable to make allegations about one another to separate and remain married for a further two or sometimes five years. This leaves couples in limbo, married but unable to make other arrangements. The current law is often counterproductive to any hope of reconciliation, as it can put off couples from moving back in with one another for fear of having to start the separation process once more. This can also be incredibly dangerous. Women’s Aid has highlighted the barrier for many women leaving abusive relationships, which is compounded by current divorce law. With over half of survivors of abuse shown to be unable to afford to leave the family home and with the decline of refuge accommodation, women are forced to rely on fault-based facts in any divorce proceedings, making accusations in litigation that can often increase their risk of harm. Indeed, figures show that 77% of women killed by their partners are killed in the year following separation. The current law also drags out the process of separation, which can affect the vulnerable in society. Many women have reported that lengthy divorce proceedings, and the adversarial nature of them, have given an opportunity to abusers to continue to torment them. It may be claims of a lost marriage certificate, not attending court or issuing spurious cross-allegations, but a perpetrator can prolong proceedings, causing more harm. Some people’s circumstances require a faster conclusion to the legal relationship. The Bill will go some way to helping them.
More broadly, the law as it stands discriminates against those on low incomes. For some who can afford to live separately, a no-fault divorce is perfectly viable, but others must make accusations of the other’s behaviour if they cannot afford such an arrangement. The Law Commission recognised that all the way back in 1990, stating:
“It is unjust and discriminatory of the law to provide for civilised ‘no-fault’ ground for divorce, which, in practice, is denied to a large section of the population.”
This Bill rights that wrong and it is long overdue.
Thirdly, the Bill removes the opportunity to contest a divorce. However, in reality, even now a party cannot simply argue that they want to remain in the marriage, but must identify a legal reason why the divorce must be refused. The law as it stands does not prevent disputes or help to bring about reconciliation, but instead only serves to aggravate a conflict that can be manipulated by perpetrators of domestic violence to further torment a partner. The Bill safeguards important procedural challenges—jurisdiction, fraud, coercion—but it will prevent the unnecessary dragging out of traumatic proceedings.
Finally, the Bill modernises the language of divorce. While a modest reform, many family practitioners in this area speak of their clients’ bewilderment at terms such as decree nisi and decree absolute. More accessible phrasing is important. It is a reminder that the law must serve all people, not just those who are legally trained.
Therefore, Labour welcomes this Bill, but these reforms must be put into context. The cuts to legal aid over the past decade mean that parties do not receive any support—none at all—in divorce proceedings, whatever their financial circumstances. In the year immediately preceding the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 58% of parties were recorded as having legal representation in family cases that had at least one hearing, but that has reduced to just 36%, which means more people are acting as litigants in person during the divorce process. If a separation is acrimonious, the lack of legal advice can make an already stressful situation even worse. In courts across the country the effects of that are being felt: hearings take longer; more are emotionally heated without a focus on the law, because there are no lawyers representing the parties; and the process is more burdensome and stressful for all concerned—the judiciary, who have to hand-hold the parties through the process, and the parties who have to represent themselves.
The lack of legal advice can also lead to delay. Despite the Government introducing online divorce applications, the average time from the first stage to completing the divorce was 58 weeks last year, an increase of three weeks. The delays have effects on the couples, who often want to get on with their lives but are held back by a lack of early legal advice. Without such professional advice, the process for the parties, their families and, in particular, children, is inevitably emotionally strenuous. As Baroness Hale said, upon leaving the bench:
“It’s unreasonable to expect a husband and wife or mother and father who are in crisis in their personal relationship to make their own arrangements without help”.
She has also highlighted something else that is not fair, which is the potential for an imbalance in resources because of the lack of access if, for example, there is a wealthy applicant and a respondent without access to funds. Some studies suggest that legal fees for divorces can cost £8,000, on average. That is simply unaffordable for large groups in the population, but there is no legal aid provision at all. Ironically, the legal aid system introduced by the Attlee Government with the aim of guaranteeing access to justice was initially focused on divorces, where numbers rose exponentially after the war; after a decade of a Conservative Government, it is not provided for at all in these circumstances. The Bill will certainly help couples going through this process, but further investment in legal aid is necessary to ensure that justice is being done fairly for all. I hope that the Secretary of State might say something about the position on legal aid during the course of this Bill, but Labour supports this Bill and will support the Government in the Lobby.
Sir Robert Neill (Bromley and Chislehurst) (Con)
This is an important Bill and I support it, because I am a practising Anglican and because I take marriage seriously. If I thought it undermined marriage, I would not support it, but I genuinely do not think it does. I do not believe that anyone embarks upon a marriage intending it to break up—I did not with my first marriage, but it did. As my wife and I were both people of faith, that created heartbreak for us, as it would create concern for many of my right hon. and hon. Friends who have concerns about the Bill, but the sad reality is that divorce often comes at the end of a lengthy period of breakdown and is not, of itself, the catalyst.
It behoves those of us who wish to have a civilised justice system to make it possible for that sad reality to be dealt with in as civilised, compassionate, swift, and humane way as possible, not least if there happen to be children from the marriage, or where one of the parties might be vulnerable, financially or in other ways.
The requirement to prove fault as one of the facts to show irretrievable breakdown unhappily does not help that process—hence my intervention on the Lord Chancellor —and regrettably it imports, at the very beginning, a degree of antagonism into a legal process. Indeed, it goes further than that, as Sir James Munby, a distinguished former president of the Family Division observed, because it almost encourages people to be intellectually dishonest and to game the system. It cannot be right that all too often—I say this having spoken to many practitioners in the field—the first discussions between the two parties’ solicitors will be along the lines of, “What is the minimum allegation that my client can make against your client, that will meet the test but will not cause undue offence?” That is a pretty painful, and rather sad and dishonest process for people to have to go through, and it detracts from what ought to be the real point of saying, “Can we make sure that the parties are left in the best possible position, either financially or in terms of the children?” Removing that degree of antagonism, delay, and cost seems to me a civilised thing to do.
It is neither humane nor particularly Christian to trap people in an unhappy marriage, particularly if one of the parties is unable to move out of the matrimonial home and that prolongs matters. I therefore welcome the Bill, and it is significant that it is supported by Resolution, which represents 6,500 family law practitioners. The Bill is also supported by every senior member of the judiciary with experience in the family field, and it chimes with my experience as a young barrister, when I did some family work before moving on to other spheres of activity.
Finally in support of the reasons for the Bill, I say this. If there is to be protection, it is important that the Lord Chancellor retains the protection in paragraph 10 of the schedule for the financially vulnerable claimant, given that under the Bill, conduct can be taken to the courts when assessing the appropriate measures to take. The right place for any conduct to be considered is when working out arrangements thereafter; we should not be creating an antagonistic start to recognising the breakdown of the marriage, yet that has happened. If conduct is relevant—often it is not—let us consider it in the right place, and that is what the Bill does.
Finally, I will pray in aid someone whom I quoted in an earlier debate on a Bill almost exactly like this one during the previous Parliament. That Bill was not opposed at Second Reading, and I hope that my right hon. and hon. Friends will reflect before opposing this Bill tonight. Sir Paul Coleridge, chairman of the Marriage Foundation, and a former High Court judge of the Family Division, practised family law throughout the whole of his career—again, he happens to be a practising Christian. His conclusion was that the current situation is an intolerable block on people’s ability to move on with their lives. Waiting for the five or two-year period of consent does not reflect the fact that if there has been a lengthy breakdown, people may already have met other partners or be hoping to have new families and move on. Indeed, he went further than that and said that we now have a system that drives people to lie to the court if they are not prepared to wait for two years or longer. That is wrong—we cannot have a justice system that encourages that. Sir Paul Coleridge said:
“An intelligent process to end unsustainable marriage is good for the reinvigoration of the most important social arrangement yet devised for mankind.”
That is a broad and humane view, and I endorse it in the House.
Stella Creasy (Walthamstow) (Lab/Co-op)
I rise to join my colleagues on the Front Bench in supporting the Bill, which recognises the tragedy that happens when a relationship breaks down. The last thing anybody wants is for the state to be a barrier to people being able to move forward from that. I also rise on behalf of a small number of young people—indeed, Ministers could be advocates for them—who are those affected by their parents’ status of divorce, and the way that we see marriage within broader public policy making. We do not often get legislation on marriage, so I hope the Minister will forgive me for taking the opportunity to make this plea when discussing the Bill. He talked about sending signals. I think we are quick to jump to send signals to the parents and we must not, at the expense of the children, damage the children’s lives.
I am talking about, in particular, the group of children who may not only face their parents becoming divorced but then might also lose a parent—and, in particular, their entitlement to support under our current system through the bereavement support system. There are 2,000 families every single year who face the horror of losing a parent, whether through a terminal illness or a sudden death. Indeed, in our current circumstances, there may be families right now who are facing this situation through the horror of the virus that has taken over this country. Those families discover that because of their status under our current legislation, they are not entitled to support, so the children face destitution.
Many of us will have seen these families in our constituencies, given the 3.5 million people who choose to have children and decide not to get married. I know that marriage is something people feel very strongly about in this debate. There are also families where, when the parent gets divorced, those same entitlements are lost to the child. We are unusual as a country in attaching the entitlement to support to the parent rather than the child. When we talk tonight about the financial situation that divorce might create and how we might support families, I ask Ministers please not to forget these children and not to forget the opportunity that we might have through this Bill to learn from other countries which have what they call orphans’ pensions.
Five families every single day find, when a family member dies, that their child cannot seek to benefit from the entitlements built up through the state pension. It is the same for children of divorced parents if a divorced parent dies; the child loses that entitlement. I think of families such as the family of Laura Rudd. She was not married to her partner, who went out for a jog and did not come home, and her son Noah has been left destitute as a result. Children in my constituency also face that experience.
It would be very easy simply to reflect that when we want to support marriage we do that with the parents—with the consenting adults—but the way in which our financial system works serves to penalise children for the choices that their parents may make. I know from listening to this debate that that is not the intention of Ministers, but it is the outcome of the way in which we see marriage, and thereby the laws around divorce.
Ministers talk about supporting families, so will the Secretary of State work on this with his colleagues in the Department for Work and Pensions? Will he use the opportunity of legislation that looks at divorce, families and the entitlements that parents might have with their children and not miss the chance to right a historical wrong? Indeed, when he talks to his colleagues in the DWP, they will tell him of legal cases—human rights cases—that have recognised the discrimination as a result of bereavement support allowance against children of parents who are not married, or who have divorced. The Government have been asked to address this issue for over a year now, and yet we have not had a resolution to it. That is because of the way in which we construct marriage within our public policy making.
This Bill will help to support people in that terrible moment when they find that their relationship cannot continue any longer. That is a tragedy for all concerned. It is a tragedy whether people have spent many years together and decided not to marry, or have married and decided that their marriage should break down. But in all of this, we all have a concern for the children. It surely cannot be the intention of any decent Government to put into destitution children who suffer through no fault of their own the double tragedy of a parent dying and a relationship breaking up. I therefore ask Ministers: please do not miss this opportunity finally to do something about bereavement support allowance and to make sure that we support every child in every family so that no child is penalised for the choices of their parents.
Andrew Selous (South West Bedfordshire) (Con)
This Bill is aimed at minimising conflict between separated couples to make divorce not easier, but kinder. Divorce will take a minimum of six months, with an average of four out of five divorces taking longer than under the existing law.
The Family Law Act 1996 identified funding for relationship support services as a necessary part of divorce reform—an approach that has been sustained by successive Governments since the Denning report of 1947. In 1999, the then Lord Chancellor, Lord Irvine, said that the three objectives of the 1996 Act were, first, supporting marriage; secondly, saving saveable marriages; and, thirdly, where marriages had sadly broken down, bringing them to an end with minimum distress. I will always stand up and fight for people, whether they are married, never married or divorced. I also passionately believe that marriage is one of our most important and valued institutions, which we neglect at our peril. The benefits of a couple pooling their resources, time and energy are fantastic.
On the first objective of supporting marriage, marriage rates are at their lowest level since records began in 1862. Even more worryingly, the Marriage Foundation points out that 87% of mothers from higher income groups are married, compared with only 24% of mothers at the bottom of the income scale, so the marriage gap is widening, which is a social justice disaster. We need marriage for the many, not the few.
The Bill is silent on marriage and relationship support, which is not good enough, given that there is no assurance of funding for this work after the end of this financial year. We know from research concluded after the 1996 Act that one in 10 marriages was saved at the point of divorce by offering counselling, and that half those offered counselling took it up and better managed the divorce process. Much greater provision of the separated parents information programme is something that we owe children, to reduce the distress that many will experience when the divorce process is badly managed. Prevention is always better than cure, which is why the provision of marriage and relationship support services is so vital. We should celebrate much more the work of the Relationships Alliance and its constituent members—Relate, Marriage Care, OnePlusOne and Tavistock Relationships. They are all on the frontline, battling for social justice and a better society.
Local authorities such as Rochdale, with its relationships champions programme, which I visited, lead the way among local authorities. Charities, voluntary groups and faith groups, such as Toucan, with its “build a happier, healthier life together” work; the inspirational Nicky and Sila Lee, with their marriage preparation course and marriage coursework; and Soulmates Academy, run by the redoubtable Jonathan and Andrea Taylor-Cummings, all do brilliant work and should be commended.
The Government need a cross-departmental programme to bring the work of the brilliant antenatal charity Dads to Be into every NHS hospital, not only the three that it operates in at the moment. We should ensure that marriage registrars provide signposting to the very best marriage preparation; that all GPs are as good as the very best in signposting to relationship support; and that brilliant charities such as Explore, which does such excellent work in our schools in giving children good role models for what healthy, happy, committed and respectful relationships and marriages look like, are supported. All these individuals, groups, churches and other faith organisations are doing brilliant work on the frontline and deserve our thanks and support.
As we look to rebuild our economy after the ravages of covid-19, it is not only economic matters that need our attention but the fractured and hurting relationships that we need to repair to a healthier, more respectful and more committed state. Next month, it will be 19 years since I made my maiden speech in the House. On that occasion, I spoke of the importance of the family and of strengthening family relationships, and it grieves me that the situation has got worse, not better, in those 19 years. I stand here saying the same as I said to Labour Governments in those first nine years and to coalition and Conservative Governments since: we need the political will—together across this House, from all our political traditions—to put this issue higher up the political agenda. It is a social justice matter, and it is for everyone. I implore the Government to take it seriously, and to remember that we stood on a manifesto that said strong families are the key to a strong society.
Mr Toby Perkins (Chesterfield) (Lab)
I very much enjoyed the speech by the hon. Member for South West Bedfordshire (Andrew Selous), who gave us all food for thought, and I welcome entirely the spirit in which this debate has taken place so far. I do not know whether I ought to declare an interest, because after 21 years of marriage, I am sadly in the process of going through a divorce.
The primary concern of everyone who has children and is going through such an unhappy incident is the impact that it will have on their children. I think that the current legislation does lead to unnecessary additional conflict and blame, so the Government are right to pursue this important legislation at a time when they are extremely busy.
In speaking in this debate, I am carrying on in the family way, because my great-grandfather, A. P. Herbert, was the original author of the Matrimonial Causes Act 1937. Some unkind remarks may be made to the Minister in Committee, but A. P. Herbert would have thought of that as a very easy ride, compared with what was said in 1937 when he brought that legislation through. The Secretary of State was right to stress that wanting to assist couples to split in as amicable and blame-free a fashion as possible does not in any way undermine what marriage is all about, or fail to recognise the crucial role that that institution plays in our society.
It is important to recognise what the current process does. It not only moves couples down the route of having to find blame and conflict, but includes the role of the court—the state—in deciding whether or not people should be married. The state does not consider that it has anything like the same level of responsibility for deciding whether a couple get married in the first place—if they meet at 4 o’clock and decide at 8 o’clock that night that they want to be married, the state considers that none of its business. So why, if a couple come to the conclusion that they should no longer be together, should the state consider that it is its business to investigate whether they are right?
I will leave it there, but I welcome what the Government and my right hon. Friend the Member for Tottenham (Mr Lammy) said and the spirit in which this debate is taking place. I hope that we will all keep in mind the need to ensure that couples who sadly reach the conclusion that they must separate are able to do so in as amicable a fashion as possible.
Sir Desmond Swayne (New Forest West) (Con)
The law should have majesty; it should be awesome. May I ask the Secretary of State to resist this fetish for translating everything into newspeak?
There is fault in divorce. We all know that. It is a question not just of unreasonable behaviour, but of abominable, disgraceful and outrageous behaviour. But I accept the principle of the Bill—namely, that by trying to attribute fault, we vastly magnify the bitterness and unpleasantness of the conflict that divorce creates. We have all experienced in our surgeries those parents who continue to use their children as weapons in prosecuting a continuing war against their former partners. The removal of fault will not remove that entirely, but I am confident that it will certainly diminish it.
My problem with the Bill is with respect to the streamlining and potential shortening of the process. The difficulty I have is this: by making divorce more straightforward and easier, it becomes the first resort, rather than the last. It becomes the easy and quicker way out, vastly reducing the potential for counselling and reconciliation. We should remember that divorce is the swiftest route to poverty. Of the people who might come through the door during one of my morning surgeries, if you scratch the surface of their problem—whether the problem presents as debt, housing, education or access to children—nine times out of 10, divorce and family breakdown are the root cause. And the easier we make divorce, the more we shall have of it.
Sir Edward Leigh (Gainsborough) (Con)
I have been married to the Conservative party for a very long time, and I have no intention of divorcing her, but I have to say that she drives me to distraction. I do not know why I do not have a calm partner who can get on with doing the things we do best, such as providing a smaller state, lower taxes and strong defence. Why do we always think that we have to adopt an extreme liberal agenda? This Bill is part of a liberal agenda, because it is saying is that we can remove the ultimate pain by making things easier, but that simply does not happen very often in life.
We could have brought in a moderate measure. No one has to allege fault under our present law. If there is a separation, no fault is alleged. As I said in my intervention on the Secretary of State, we could have done what the Scots do—how sensible they are—and brought in a provision that, in addition to the existing provisions, someone would simply have a no-fault divorce after, say, a year. But no, we are rushing this through. We are saying that people can get their divorce after six months. They will not even have to prove proper service. They could be divorced within a matter of weeks. Really, the Secretary of State has to do better in reassuring us, because the message we are sending out tonight is that we are engaged in making quickie divorces easier, and I am not sure that that is the right message for us to be sending out, particularly at this time of family stress during lockdown.
In the last Parliament, this Bill was promoted by David Gauke. How much we all miss him! He carried out a consultation, but he ignored what the consultation said. We know that 80% of the people who were consulted opposed this measure. In another poll, 72% said that if we were to bring in compulsory no-fault divorce, people would get more blasé about divorce. I return to the point made by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes): it is obvious that if we make something easier, it will happen more often. That point was also made by my right hon. Friend the Member for New Forest West (Sir Desmond Swayne). I assure you, Madam Deputy Speaker, that this is the lesson of history. If we bring in compulsory no-fault divorce in a six-month time frame, the result will be more divorces. And, as my right hon. Friend the Member for New Forest West said, the best way to propel women into poverty is through family breakdown and divorce. We already have one of the highest levels of family breakdown in the world, and now, rather than putting more money into supporting marriage and sending a message that we support marriage, we are sending a message that we want to make divorce even easier. Is that the sort of message that we want to send out to people?
Hon. Members might think that this is an obsession of the right, but listen to Hillary Clinton. She said:
“For much of the 1970s and 1980s, many believed that a bad marriage was worse than a good divorce. Now, however, we know that children bear the brunt of failed marriages…Divorce has become too easy because of our permissive laws and attitudes.”
That is not me speaking; that is Hillary Clinton, hardly an icon of the socially conservative right. But how wise she is! I assure you, Madam Deputy Speaker, that the result of this Bill will be more pain, more suffering, children seeing less of—usually—their fathers and more women propelled into poverty. Is this really what we want to achieve? The Secretary of State could have given some concessions. He could have said to my right hon. Friend, “I hear what you say, and I think perhaps I will be prepared to look again at the provision of six months.” He could have said that he was prepared to do what the Law Society suggested or to do what the Government were going to do 25 years ago, when I opposed a similar Bill, and have a one-year provision. But no, he is ploughing ahead. Everybody will get their divorce in six months. He could have told me, when I intervened on him, that he was prepared to think again about keeping some of the existing provisions. After all, there are many religious people—and maybe many who are not so religious—who would like to be given a reason why they are being divorced. Many people feel that marriage is a most important thing in their life. But no, the Secretary of State is ploughing ahead with the most extreme and most radical measure he could dream of. This is one of the most radical and most extreme divorce laws in the whole of the European continent. Why are we doing this now? Why are we not prepared to compromise? Why are we not prepared to give an unequivocal message that we believe in marriage and will support it to the hilt?
Danny Kruger (Devizes) (Con)
I accept the virtue of this Bill on its own terms. The Lord Chancellor has said that the Bill is concerned only with divorce, and if we are concerned only to make divorce smoother and less painful, I accept the Government’s case. However, I do not judge the Bill just on its own terms. It is not just about divorce, it is about marriage, and that is the crucial difference that I have with the Government.
What will this Bill do? Its practical effect is simply that couples will not have to wait for two years for a no-fault divorce, but will have to wait for only six months. I can appreciate that two years must feel like an eternity for someone who wants to move on with their life, but I suggest that the damage done to society and future generations by this Bill will be far greater than the distress of some people waiting 18 months longer, because what is really proposed is not just the speeding up of no-fault divorce, but the effective abolition of the marriage vow.
What is the difference between marriage and any other romantic relationship? It is this: people promise, in front of their friends and family and in a legally binding commitment, not to walk out. That is basically what it is, and it is an enormous promise. It is why the wedding service has these portentous words: marriage is
“a solemn, public and life-long covenant…No one should enter into it lightly or”
unadvisedly but reverently and soberly. This Bill proposes to abolish all of that—centuries upon centuries of precedent, upon which our society has been built—to say instead that the vows do not have to be kept; that it is not solemn, public and lifelong, but trivial, private and as long or short as people want it.
At the moment, a marriage can end only when the facts—the word “facts” is in our current law—show that the marriage is really over, either because of fault or a separation of at least two years.
Ian Paisley (North Antrim) (DUP)
If it is six months in 2020, is the hon. Gentleman concerned that in 2025 or 2030 it could be a handful of months?
Danny Kruger
The hon. Gentleman makes a good point. Indeed, there is already provision in the Bill to reduce the six months in exceptional circumstances, and we know where that could tend in future.
The reliance on objective facts is now being abolished in favour of a subjective declaration that one party wants out of the marriage, and that effectively means that the vows made at the beginning have no legal force and no moral value. That is why the Bill is about more than divorce.
Much has been made of the hypocrisy that fault-based divorce involves, with people claiming all sorts of things to prove the breakdown, but in trying to remove hypocrisy at the end of the marriage, we are introducing hypocrisy at the start. In the attempt to improve the integrity of the law, the Government are undermining the integrity of marriage.
I fear that this Bill is a great surrender. There were other ways to achieve the ends that the Government seek, namely to let people move on with their lives sooner than two years. We could have judicial separation after six months, so that people can settle their affairs before a divorce, including moving out of the family home. We could have the Scottish system, which is the same as ours, but with shorter periods—one-year separation for no-fault divorce by consent, two years for unilateral divorce. If we really want to reduce the conflict at the end of marriages, we should reform the law around financial provisions, as one of my hon. Friends said earlier, and improve child custody arrangements. These are really the sources of conflict, not the terms of the divorce.
All that said, I accept that this Bill is going to pass, although I hope the Government will consider some changes. They include extending the notification period from six months to 12 months; only starting that period once both parties are aware of it; making the declaration of irretrievable breakdown come at the end, not the beginning of the notification period, so that it is a meaningful period in which people can change their mind and reconciliation can be effected; and, to that end, agreeing proper funding of family hubs and couple counselling, which hon. Members have raised, including once an application has been made, because, contrary to myth, counselling can be effective, even at this late stage. I appreciate that the Bill reflects changing attitudes to marriage. I regret those changing attitudes, and I think my right hon. and learned Friend regrets them. Indeed, I think everybody does. In this place we need to lead the culture, not to follow. I hope that Ministers will reflect on the cultural effect of the Bill and think again.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
I very much agree with many of the sentiments that have been expressed in the Chamber tonight, but I wholeheartedly support my right hon. and learned Friend the Lord Chancellor in bringing this legislation forward. I want to explain why, with particular reference to the impact that conflict in relationships has on children. It seems to me that it is a fundamental tenet of the rule of law that it intends to ensure fair dealings between people, and where that is absent, that conflict is clearly going to have a much wider impact.
Department for Work and Pensions estimates show that currently 12% of all children, and as many as 21% of children in workless families, have parents who are in a distressed relationship. The Government’s national programme on reducing parental conflict has given many organisations, including some of those mentioned by my hon. Friend the Member for South West Bedfordshire (Andrew Selous), and the Early Intervention Foundation, the Association of Directors of Children’s Services and the Local Government Association, the opportunity to assess the impact on children of parental conflict—something hitherto little researched, but of increasing interest to local authorities that are the lead agency in supporting children in family breakdown situations.
When we look at the evidence garnered from this research, it is clear that the country’s divorce hotspots are not obviously linked to any other form of persistent social issue that we recognise. Those divorce hotspots across the country are represented by politicians of all colours, and they are areas both of great affluence and great poverty. That research demonstrates consistently, however, that the co-parenting relationships of the two adults are incredibly important for children’s outcomes in life. Whatever measures we can take in this House to support those co-parenting relationships, such as support for families and counselling where difficulties strike, are really significant.
The research also identifies that it is the conflict between the parents, rather than the break-up itself, that is most significant in the child’s experience and development. That is a crucial reason to support this Bill; when that decision is made, regardless of the issues that have been highlighted about the duration and the context of a relationship, the Bill makes it possible for separation to occur in a more civilised manner. That will enable the co-parenting relationship that supports those children’s life chances to be preserved intact as far as possible, and that should be a key concern for Members who are looking at the interests of future generations.
Fiona Bruce (Congleton) (Con)
“Can’t we just talk about it? Can I just know why?” Silence. Silence because there is no one to answer the young woman with a baby in her arms and a toddler at her feet, who has just received a notice in the post—a notice that says, “I am divorcing you. I am divorcing you in a few short weeks, and I do not have to give you a reason. I am giving you notice to quit on our relationship.” Of course, he could not do this to an employee. Well, certainly not after two years. That would be called unfair dismissal. He would have to give them a reason. He would have to talk. But this is not an employment relationship. It is a marriage, so unfair dismissal does not apply—a marriage entered into with the words, “For richer, for poorer, in sickness and in health, to love and to cherish, till death us do part”.
I cannot support this Bill. Legislation sends out a message, and the message that this Bill sends out is that divorce will be quicker and easier, regardless of what the Minister has said. This Bill will undermine an important understanding of the assumed permanence of marriage. I want to associate myself with the comments made in the excellent speeches by my right hon. Friends the Members for New Forest West (Sir Desmond Swayne) and for Gainsborough (Sir Edward Leigh) and my hon. Friend the Member for Devizes (Danny Kruger), because there is so much more I would like to say tonight that I cannot.
Of course, Government should be investing much more in relationship support—many of us have argued that for years, and this Bill should not be silent on that. The six-month period is simply too short, even as a minimum. I note what the Lord Chancellor says about the Family Procedure Rule Committee, but we need the Bill to be amended to provide for a longer period. There is no requirement, as there is now in divorce proceedings, for proof of service of the statement that the marriage has broken down before the 20-week clock starts ticking. That cannot be right. Technically, as I read the Bill, there could be a divorce shorter than eight weeks. The Secretary of State kept saying that these are not quickie divorces; I disagree. The Bill needs amending in that respect.
Ministers argue that the Bill will “remove the conflict flashpoints” inherent within the current legal process and
“minimise the potential for couples to entrench positions against each other”.
That simply fails to address the fact that conflict exists and is frequently exacerbated during negotiations relating to financial settlements and childcare arrangements, which the Bill does nothing to address. Ask any family lawyer, and they will tell you so. I spoke with one only today, who told me that he knows of no practising family lawyer enthusing about the Bill.
The Government make great play of the fact that removing any reason for a marriage breakdown will improve children’s life chances. This simply does not acknowledge that it is the very fact of parental separation which can be, and often is, an adverse childhood experience with long-term consequences. Moreover, the break-up of a low-conflict family can be just as, if not more, harmful to a child than a high-conflict one. Children who do not see conflict played out in front of them can be more likely to blame themselves when parents separate or assume they cannot rely on relationships, as they are likely to end for no apparent reason, and that family breakdown is more or less inevitable, with the sad consequence of their repeating that behaviour in their own lives.
There is likely to be an immediate increase in divorces—a spike that could last for a decade or more. People experiencing marital difficulties in the coronavirus crisis may be more likely to bail out following the introduction of no-fault divorce, under the impression that divorce is being made easier. Some of those marriages may well be saveable.
Citing fault on a divorce petition is unpleasant, and what is stated may, in some cases, not bear a resemblance to what has gone on. The Secretary of State said that such statements bear very little resemblance to reality. However, the Nuffield Foundation report, on which the Government rely, does not bear that out.
Sir John Hayes (South Holland and The Deepings) (Con)
When my party won an 80-seat majority in the election, I knew that it was about much more than getting Brexit done; it was also about responding to the working-class community’s desire for an alternative to the liberal agenda which has dominated politics for so long. So it is with deep regret that I see this Bill brought to the House tonight. We need a Government prepared to back communities, build families and cement social solidarity, and this Bill is injurious to all those objectives.
The biggest shake-up of divorce law in half a century is based on a misunderstanding of what marriage is and the human ideals from which marriage derives its meaning. This Bill reduces marriage to the legal status of a tenancy contract—one that can be dissolved at minimal notice by either party, without any expectation of permanence or any explanation.
Hegel said that marriage is a “substantial tie” that “begins in contract” to “transcend” contract, by abolishing the separation between the parties. Hegel’s point can be put more simply: essentially, a marriage is not a contract but, as my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) said, a vow. That is why it has such great significance to us and why it is traditionally surrounded by so much ceremony. Roger Scruton put it this way:
“That we can make vows is one part of the great miracle of human freedom; and when we cease to make them, we impoverish our lives by stripping them of lasting commitment.”
It is through our ability to limit and constrain ourselves that we express our true freedom.
Life is not a dreary succession of consumer choices, but a journey marked by moments of transcendental significance, and marriage is one such commitment.
Our existing law is founded on the ancient understanding of what marriage is: a vow. Progressive activists for the Bill, such as the Lord Chancellor’s old ally, David Gauke, say that alleging fault increases acrimony in a divorce, but that notion is based on a misunderstanding of marriage. Changing the law may cheapen marriage, but it cannot change the idealism in which the commitment of one human being to another is founded. Acrimony is almost bound to follow the breaking of such a vow. Regardless of what the law may say, enmity is not a product of the process, but a characteristic of human relations when they break down, and to pretend otherwise is to attempt to deceive this House and the people who vote for us. The current law reflects these facts of life and reflects the significance of the vow that has been made. Fault necessitates expectation.
Sir Edward Leigh
It is said by the supporters of this Bill that the divorce process can damage children, but that is only if parents seek to involve children. One thing that is absolutely certain is that divorce itself damages children, and if we make something easier, it will happen more often.
Sir John Hayes
I agree, and the Bill essentially turns divorce into an administrative formality, removing the breathing space that allows around 10% of divorces that are initiated to be averted. About one in 10 divorces that are started are never actually completed, and that is because of the time available for counselling, for reconciliation, for reconsideration and for trying again. The Bill removes that opportunity. It removes protections for individuals whose spouses seek to terminate their marriage in times of hardship or illness. For many, the changes could mean that faithful, committed husbands lose access to their children, while women cruelly abandoned by errant husbands will have no way of marking that betrayal and no reason offered for why their marriage has ended.
What is most disappointing is that the Government ignored their own consultation. Some 83% of public respondents opposed change. The Bill provides a 20-week period at the start of proceedings, which Ministers say will allow time for reflection, but 20 weeks is not long enough to settle the matters of property or to secure the welfare of children. In any event, the Law Society points out that most of the 20-week period could pass without one respondent to the divorce even knowing about it. Unbelievably, the Bill does not require the applicant to serve a notice on the respondent at the start of the 20 weeks. When that matter was raised in the House of Lords, Lord Keen gave a lukewarm response. He is never the most persuasive Minister. I say it is a basic injustice that must be remedied, not by the Family Procedure Rule Committee, as he suggested, but on the face of this Bill.
We are in perhaps the most challenging time that anyone can remember, yet we bring forward a Bill with such insensitivity that we challenge not only the stability of families, but the very nature of marriage itself. Divorce marks the end of a partnership—the death of a love. As a family ends, all of society is a little weaker. The Lord Chancellor will come to regret this Bill because it is fundamentally un-Conservative. As it makes divorce easier, it makes marriage less significant and will make it less valued, and that is a price that no one here can afford to pay.
Duncan Baker (North Norfolk) (Con)
One of the greatest assets of becoming a Member of Parliament is that you can speak on matters that you have experienced first-hand and matters that have affected you deeply. For those who have actually experienced a long, protracted and acrimonious divorce, it leaves an indelible mark on them and, in many cases, on their families and children forever.
I want to speak today on this Bill because it resonates with me personally. I have wrestled, as many Members have, with the potentially difficult connotations that this law has specifically around the devaluing of marriage, which I absolutely do not want to see happen at all. However, as the Lord Chancellor set out, the Government have brought the Bill before us with a specific aim: to ease the unnecessary conflict for couples and children.
Growing up, I experienced my family going through divorce not once but twice: once when I was a toddler and again in my final years of school. This is not the arena to open up those experiences, but this is none the less a policy area in which I am passionate to see the law improve. I am able to speak on behalf of so many people who are affected by the current system, and for the children and families affected by the deep and lasting trauma that a difficult divorce leaves, and I am fully supportive of the ability to change the law and make it better.
I am 100% committed to the values of marriage. Perhaps witnessing that painful divorce was the driving force behind my wanting to have such a happy and fulfilling marriage with my wife and my children. That is one of my proudest achievements and even my wife, who disagrees with me many times, would probably say that it is one of my better achievements. It has been going for 10 and a half years—I know I do not look old enough to have a 10-and-a-half-year marriage. For so many people, that is not the case. To continue to bind people together for years in an irretrievable situation just exacerbates the pain for the parties.
It is a good decision to deal with the consequences. Any ability to remove some of the outdated requirements to allege fault or show evidence of separation will promote a less antagonistic process. However, as some people have said, although removing the ability to lay blame may expediate the process when one party will not accept that there is a problem, we have to balance that carefully with the values of marriage.
As many Members have said, all marriages are worth fighting for. We must not make them overridingly easy to exit, so I am pleased with the measure that ensures that there will be a minimum of 20 weeks from the start of proceedings before someone can give confirmation to the court that the conditional order may be made. Together with the existing six-week period, that will mean that the legal process for obtaining a divorce under the new process will take a minimum of six months. That comforts some of the concerns that I had.
In the breakdown of a marriage, the accompanying ancillary relief procedures are often the bitter and acrimonious parts of the divorce. Like many Members, I would welcome some kind of compulsory marriage guidance within the six-month window to act as a brake—to provide reflection and, indeed, evidence that a marriage has irreversibly broken down.
Ian Paisley
Given that the Government carried out a consultation and more than 70% of respondents indicated a concern about where Government policy was going, is the hon. Gentleman as concerned as I am that when it comes to practice the reassurances being given by the Government will be cast aside as casually as the consultation process was?
Duncan Baker
I take the hon. Gentleman’s concerns into consideration but, as has been set out, the overriding ambition in all this is not to quicken up the divorce process but to take away some of the exacerbating issues that cause pain and suffering in the breakdown of a marriage. That is the essence of the legislation that the Lord Chancellor has brought to us.
At the very core of the legislation is the goal of minimising conflict and promoting a more amicable resolution. I do not believe that, given the consideration necessary to get married, the measures before us will end up culminating in a speedier divorce process. I think of the absolute difficulty of going through that pain to end up in such a position. It will do more good to help to alleviate the deep conflict that can arise. Above all, if implementing the Bill can do anything to significantly lessen the damage to children’s life chances, I will wholeheartedly support the Government.
Jonathan Gullis (Stoke-on-Trent North) (Con)
I welcome hearing the wide-ranging views from across the House, but I absolutely wholeheartedly support the Government and my right hon. and learned Friend the Lord Chancellor. When I say that it is time to modernise, I am not doing down marriage in any way whatever. When a person enters into a marriage, they do so thinking about the lifelong impact that it will have on them. The same applies when they take the tragic decision to divorce. They come to realise and understand the pain and suffering that it will cause them, their partner, and, obviously, any children that they may have. The decision is not taken lightly in any shape or form.
It is important that we move away from the blame culture. I have heard many comments in this Chamber tonight that, somehow, divorce is damaging to children. As someone who was six months old when their parents divorced, I do not feel damaged. I was very lucky and appreciate that, while some had acrimonious relationships, I was able to access my mother and my father equally. I am aware that that is not always the case for others, but to use the word “damage” is quite extreme and it can be easily thrown around. I do not like to see that word being used so lightly.
The Bill is an important step forward. One of my hon. Friends made a really good point when they said that we were moving with the times.
Alexander Stafford
My hon. Friend talks about moving with the times, but does he not believe that, as marriage has been with us since time immemorial, it is something that we need to keep precious? We cannot just let it go.
Jonathan Gullis
Like my hon. Friend, I would call myself a strong social conservative, but who is arguing from a socially liberal perspective. He puts me in a difficult spot. What I would say is that although marriage is indeed ancient and should be treated with respect, courtesy and recognition, we also have to understand that we are in a very different cultural time. There does not always need to be infidelity. There does not always need to be one person to blame over another. Sometimes, tragically, the relationship simply does not work. In such instances, it should be for the individuals to make a decision that allows them both to part ways in a non-acrimonious way, without causing harm.
On the length of the proceedings, for people to be going through a divorce beyond 12 months, and in some cases for two years, does not allow either party to move on. It is keeping them trapped in something that they fundamentally no longer wish to be a part of. Therefore, we must understand that, with this law, six months is a positive step forward, because it allows those who, on a personal level, wish to take a step in a new direction to do so. Although I understand that this measure is contentious, and that, for some, it will be seen as challenging the institution of marriage, I also think that it will create less acrimony and mean that we have a more harmonious society, which, ultimately, means that the impact on children will be more positive.
Alex Cunningham (Stockton North) (Lab)
Having listened intently to the contributions made by colleagues today, I can say that this Bill has proved to be a little more contentious that I personally was expecting. It is clear that the Government have more problems with their own Back Benchers than they have with ours. We agree that this is a good Bill. It must be, because it is directly in line with Labour party policy.
We have had a good debate with some really excellent interventions and speeches. In answer to my hon. Friend the Member for Chesterfield (Mr Perkins), who was concerned about court delays, the Secretary of State spoke of expanding capacity. Given the current backlog, I would be interested to hear a little more about that, so that the benefits of this Bill can be realised. My hon. Friend also spoke about his pride in his grandfather, A. P. Herbert, author of the Matrimonial Causes Act 1937. I am sure that his grandfather would be as proud of him today.
The hon. Member for Winchester (Steve Brine) spoke about the values of marriage and expressed concerns about the timing of the Bill, given the potential for lockdown break-ups. The hon. Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee, spoke as an Anglican, a person of faith, who was supporting the Bill because he believes in marriage. He spoke of other organisations, church and secular, that do likewise.
My hon. Friend the Member for Walthamstow (Stella Creasy) talked about how the last thing that families need is the state being a barrier. She went on to speak about children, as many others did—in her case, children who lost a parent but, because of our current system, lose out on the support available to those whose parents were married. I will come back to that subject later. Several Members spoke at great length about children and the impact of divorce on children, but it was the right hon. Member for New Forest West (Sir Desmond Swayne) who spoke of children being used as weapons by their parents in a war against each other. He felt that making divorce easier would lead to more poverty in our society.
This Parliament has a duty to ensure that the decisions we make here and the laws that we create are laws of the real world. In an ideal world, marriage would be the result of two people falling in love and wanting to be together forever and to have that recognised in law. It is a lovely image and it does happen. My own parents have already been married for 66 years, and Evaline and I for 43. In fact, my right hon. Friend the Member for Tottenham (Mr Lammy), the shadow Secretary of State, could have been a four-year-old page boy at our wedding. However, it would be naive of the House to think that it happens like this all the time, and it would be ignorant of the House to assume there is always a fault when it comes to the breakdown of a marriage. People change over time and can be very different, apart from the physical signs of older age, from how they were 10, 20 or more years ago. There should not have to be blame on one of the two consenting adults wishing to end their marriage, and as we have heard, it is significantly better for any children involved that their parents are not embroiled in a nasty split.
This Bill is a common-sense approach to the reality of people’s lives and how they choose to live them. The option of not having to lay the blame at the door of one of the parties also means that obtaining a divorce can be simpler for those who are vulnerable or the victims of abuse. Many married couples are close friends and can continue to be friends after a divorce, but a divorce process that requires pointing fingers and blame can cause irreparable damage and prevent a co-operative and constructive relationship that could have been a positive thing, particularly where children are involved.
It is also not good enough that the current law says that, if a couple agree mutually to have a divorce, they have to be separated for a minimum of two years. As others have said, the very fact that one person can lock the other person in a marriage against their wishes for five years from separation by prolonging the process is nonsense. I do not believe that the decision to divorce comes lightly for either spouse. I do not believe that people simply wake up one day and both parties opt for a divorce. This is a deliberate, delicate and difficult decision, born out of months, perhaps years, of anguish before they decide to take the route to divorce.
Yes, I agree with people who have stood up today and said that they think support and counselling services should be stronger, and I believe that, but the law simply should not be forcing people to remain tied to each other for two years just to make sure that divorce is what they really want. If a couple do want to reconcile, that is their private business to do so, and I would certainly wish them well in their search for happiness. However, reconciliation is made even more difficult if they have to blame each other in order to start the divorce process. What must run through our divorce procedures is the aim of encouraging co-operation, and what we have now is a system that encourages conflict. When there are issues to do with financial support and childcare, the last thing we should want for that family is more conflict and unnecessary hurt.
The academic study called “Finding Fault?” found that 43% of those identified by their spouse as being at fault for the marriage breakdown disagreed with the reasons cited in the divorce petition. This is not a fair system and it is certainly not a decent one either. It can also be costly, with thousands of pounds spent on legal costs that could have been retained by the individuals and used to help them to get on with their lives. My right hon. Friend the Member for Tottenham outlined in great detail other financial issues that show disadvantage for people at the lower end of the income scale and, of course, the lack of legal aid.
The changes made in the Bill are ones backed by policy makers, judges, stakeholders and the public, but there is more the Government can do to ensure protection for families that are modern in their image. For example, my hon. Friend the Member for Walthamstow spoke in detail about bereavement support for children where one parent dies and the parents were not married. When I wrote to the Government about this, I received a reply saying that
“A key principle of the National Insurance system is that all rights to benefits derived from another person’s contributions are based on the concept of legal marriage or civil partnership.”
But why? Can the Government explain their rationale further? What impact does this have on families where the parents are divorced? If they are no longer married, is that support lost? I would appreciate it if the Minister who winds up clarified the Government’s position on financial support for families where the parents are divorced, to which they would be entitled were they married.
Families do not look like they did 50 or even 10 years ago. We have moved forward in so many ways. People can marry whoever they love, irrespective of gender. Many children have been given permanent, safe and stable homes by same-sex parents; others have been brought up by unmarried parents who then split up. Why does the system not fully recognise modern families when it comes to these relationships ending? The world has changed for the good, but we need to keep going. How are the Government going to change other areas of family law to ensure that reality is reflected in our laws, and we embrace the many ways that a modern family can be? I know the Bill may not be the vehicle to deliver these particular changes, but I think it is time we did the best for our families.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
I am grateful to all Members who have contributed to this debate with such powerful speeches. A wealth of insight and poignant personal experience has been brought to bear, and this debate on such an important issue has been enriched by it. I thank my hon. Friends the Members for Stoke-on-Trent North (Jonathan Gullis) and for North Norfolk (Duncan Baker) and the hon. Member for Chesterfield (Mr Perkins) for sharing their experiences with the House.
Before responding to the points raised, let me make some brief introductory remarks. Marriages and civil partnerships are vital to society as a way in which couples can formally express their commitment to each other. I support marriage. The Government support marriage. This Bill is not anti-marriage; rather, it is anti-bitterness. In those sad cases where a marriage has irretrievably broken down, the Bill removes unnecessary and artificial flashpoints to reduce the scope for pain, recrimination and, crucially, harmful impact on children. We must accept the reality that some marriages do end. The Bill replaces a broken system which for decades has not operated as its framers intended. I note that it is supported by Resolution, which represents over 6,000 family justice professionals in England and Wales who have to grapple with the current framework every day.
One of the principal problems of the current statute is that it incentivises conflict. It does so in relation to those who wish to divorce before a two-year separation period because of the specific need to particularise the respondent’s unreasonable behaviour and to do so in a way that fits a 50-year-old statute’s prescriptive categories. The trouble is that words have consequences; they can do damage, so that where once there was grief, anger comes; where once there was sadness, bitter resentment follows. The academic study, “Finding Fault?” found that 43% of those identified by their spouse as being at fault disagreed with the reasons cited in the petition. That resentment is not just damaging for the parties themselves; others, particularly children, can be harmed by it too, because it toxifies the atmosphere in which a couple then approach negotiations over arrangements for children and finances. No wonder the president of the Law Society has said:
“For separating parents, it can be much more difficult to focus on the needs of their children when they have to prove a fault-based fact against their former partner… Introducing a ‘no-fault’ divorce…will change the way couples obtain a divorce—for the better.”
Sir John Hayes
Leaving aside the issue of fault, will my hon. Friend commit to looking, during the passage of this legislation, at increasing the six-month period, at dealing with the issue of both parties being notified at the outset of the divorce, and at ensuring that there is properly funded counselling and support for reconciliation? If he looks at those things, I think he will satisfy some of the critics of this Bill.
Alex Chalk
I thank my right hon. Friend for his question, and I pay tribute to the characteristic clarity and eloquence with which he made his representations. Although I cannot give any commitment to specific points, he has made powerful points. On behalf of the Government, I commit to continuing the conversation in Committee.
Part of the problem is that the court has limited means to investigate the circumstances. Having marched the parties up to the top of the hill by requiring petitioners to make allegations, the system rarely inquires into whether those allegations are true. It simply does not have the means to do so. In fact, just 2% of cases are contested, and only a handful progress to a contested court hearing. For more than 40 years, English and Welsh courts have not routinely held divorce trials to prove the allegations set out. That is because most people nowadays recognise that marriage is a voluntary union. When consent disappears, so, too, does its legitimacy.
That lack of inquiry is a problem because allegations may bear little resemblance to reality, but they are presented as established facts. The scope for injustice is obvious. To satisfy the statutory provisions, minor incidents may have to be dredged up and artificially repackaged as a pattern of behaviour. A respondent who, in truth, is a perfectly reasonable individual will have their behaviour branded unreasonable. Conversely, a respondent may have behaved despicably—a point made by the Lord Chancellor —but because of the fear of repercussions, a petitioner may seek to rely on two years’ separation instead. At the end of it all, in the eyes of the law, the culpable respondent will never have been publicly rebuked, and will exit the relationship apparently blameless.
All too often, the law does not do what people think it does. That is not just the Government’s view. Sir Paul Coleridge, a former family judge and chair of the Marriage Foundation, no less, said that the current system
“is, and always has been, a sham”.
I think I may be the fifth person to quote him this evening, but Sir James Munby, former president of the family division, criticised the current law for being
“based on hypocrisy and lack of intellectual honesty”—
a point powerfully made by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). The same is true of academia. Professor Liz Trinder, who has conducted extensive research on the divorce process, has branded the current arrangements “a meaningless charade”.
I want to address the points that have been made with great force by my hon. Friends the Members for Cleethorpes (Martin Vickers) and for Devizes (Danny Kruger), and my right hon. Friends the Members for Gainsborough (Sir Edward Leigh), for New Forest West (Sir Desmond Swayne) and for South Holland and The Deepings (Sir John Hayes). To paraphrase—I will not do justice to the way in which they expressed it—the concern that they have raised is that the Bill will undermine the institution of marriage by making divorce more attractive. That is an important argument, and it has to be addressed.
The point is that it is a very sad circumstance indeed when a marriage breaks down, but some marriages do end. The legal process of divorce is not the driver for a marriage breaking down; it is the consequence. That is the point that my right hon. and learned Friend the Lord Chancellor was making about the telescope. Petitioners do not issue speculative applications for divorce. In the overwhelming majority of cases, they take that step only after reaching a settled conclusion. In those circumstances, we must do all we can to mitigate the pain experienced by the couple and their family, especially the children. We cannot have a system where the legal process works to exacerbate acrimony and suffering where divorce is simply the process of bringing a legal end to a personal relationship that has ceased to function for both parties.
The point that is so often made by practitioners is that very often, individuals are surprised by the convoluted and artificial process that they are presented with. International evidence shows that long-term divorce rates are not increased by removing fault from the process of obtaining a divorce. In short, divorce and dissolution are a sad reality, but one that is sometimes unavoidable. This Bill prevents hardship and misery, and it will help people at a vulnerable time. I commend this Bill to the House.
Madam Deputy Speaker (Dame Rosie Winterton)
Hon. Members should now be familiar with the Division process, but I ask all hon. Members other than Front Benchers and Tellers to leave the Chamber by the doors behind me. I will not give the instruction to lock the doors earlier than probably 28 minutes after I call the Division.
Question put, That the Bill be now read a Second time.
Divorce, Dissolution and Separation Bill [Lords]
Wednesday 17th June 2020
(4 years, 5 months ago)
Commons ChamberRead Full debate Divorce, Dissolution and Separation Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 17 June 2020 - large font accessible version - (17 Jun 2020)
18:01 - The Committee having divided: - Ayes: 31 / Noes: 400 - Question accordingly negatived.
The Chairman of Ways and Means (Dame Eleanor Laing)
I should explain that in these exceptional circumstances, although the Chair of the Committee would normally sit in the Clerk’s Chair during the Committee stage, in order to comply with social distancing requirements I will remain in the Speaker’s Chair although I will be carrying out the role not of Deputy Speaker but of Chairman of the Committee. If Members obey the rules to the letter, the occupant of the Chair at this time should be addressed not as Deputy Speaker but as Chairman of the Committee. Just before we commence, I should inform the Committee that there has been a production error on the amendment paper. The names of Bob Blackman and Nick Fletcher should not have been published in support of new clause 4 and new clause 5.
Clause 1
Divorce: removal of requirement to establish facts etc
Fiona Bruce (Congleton) (Con)
I beg to move amendment 1, page 2, line 8, leave out “20” and insert “46”
This amendment 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).
The Chairman of Ways and Means (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
Amendment 2, page 2, line 9, at end insert—
‘(5A) 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 an order 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 the notice of an application for a divorce order has been received by the other party to the marriage.’
This amendment would define the start of divorce proceedings so that it is clear when the 20-week period would start.
Amendment 3, page 2, line 19, at end insert—
‘(8A) 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.’
This amendment would ensure that there are no discussions about financial settlement in the 20 week period unless both parties agree or there is an application to the court for interim maintenance and financial injunctions.
Clause stand part.
Clauses 2 and 3 stand part.
Amendment 4, in clause 4, page 4, line 9, at end insert—
‘(2A) For the purposes of subsection (2), “the start of the proceedings” means—
(a) in the case of an application that is to proceed as an application by both civil partners, the date on which those persons apply for an order under section 44(1), or
(b) in the case of an application that is to proceed as an application by one civil partner only, the date when the notice of an application for a dissolution order has been received by the other civil partner.’
This amendment would define the start of dissolution proceedings so that it is clear when the 20-week period would start.
Amendment 5, page 4, line 18, at end insert—
‘(5A) In the case of an application that is to proceed as an application by one civil partner 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 civil partner agrees to the commencement of financial provision proceedings, or
(b) there is an application under schedule 5, paragraph 2(1) for maintenance pending suit.’
This amendment would ensure that there are no discussions about financial settlement in the 20-week period for the dissolving of a civil partnership unless both parties agree or there is an application to the court for interim maintenance and financial injunctions.
Clauses 4 to 8 stand part.
Government amendment 6.
Clause 9 stand part.
New clause 1—Increased support for marriage and civil partnerships—
‘(1) Section 22 of the Family Law Act 1996 (Funding for marriage support services) is amended as follows.
(2) In subsection (1), for “may” substitute “must”.
(3) In subsection (1)(a), at end insert “, both before and during a marriage”.
(4) After subsection (1)(a) insert—
“(aa) marriage counselling for any partners to a marriage where an application has been made to the court to dissolve the marriage under section 1 of the Matrimonial Causes Act 1973.”
(5) After subsection (3) insert—
“(4) Any reference to marriage or marital breakdown in this section also applies to civil partnerships.”’
This new clause would ensure increased support for marriages and new support for couples where an application for divorce has been made to the court.
New clause 2—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 and dissolution proceedings and marriage and civil partnership 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 and dissolution applications made under the provisions of this Act by the sex and income of the applicant and respondent, and
(b) the number of children in the relationships subject to the divorce and dissolution applications, and
(c) the number of married couples or civil partners who seek counselling during the divorce process, broken down by geographic location, 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, broken down by geographic location.
(3) The report under subsection (1) must be laid before both Houses of Parliament.’
New clause 3—Divorce after one year separation with consent—
‘(1) The Matrimonial Causes Act 1973 is amended as follows.
(2) In section 1(2), omit subsection (d) and insert—
“(d) that the parties to the marriage have lived apart for a continuous period of at least one year immediately preceding the presentation of the petition (hereafter in this Act referred to as “separation for one year”) and the respondent consents to a decree being granted;”
(3) In section 10(1), substitute “separation for one year” for “two years’ separation”;
(4) In section 10(2)(a), substitute “separation for one year” for “two years’ ”;
(5) In section 10(2)(b), substitute “separation for one year” for “two years’ ”.’
The intention of this new clause is to adopt in England and Wales the approach currently available in Scotland allowing a no-fault divorce to be granted on consent grounds in just one year.
New clause 4—Civil legal aid for divorce, dissolution or separation—
‘(1) Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) After paragraph 18, insert—
18A Civil legal services provided in relation to the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.’
This new clause would add divorce, dissolution and separation proceedings to the list of civil legal services qualifying for legal aid.
New clause 5—Legal aid for divorce proceedings report—
‘(1) The Secretary of State must conduct a review of the cost and benefits of providing legal aid for divorce proceedings.
(2) In conducting the review under subsection (1), the Secretary of State must take account of the disparity between men and women in their capacity to afford legal advice in matrimonial proceedings.
(3) The Secretary of State must make arrangements for a copy of the report of the review to be laid before both Houses of Parliament no later than six months after the date on which this Act is passed.’
This new clause would require the Secretary of State to carry out a review within six months of the impact of extending legal aid for divorce proceedings, taking account of any disproportionate effect on women of lack of access to legal aid.
New clause 6—Financial abuse qualifying condition in legal aid family matters—
‘(1) Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In paragraph 12 (1) (a) after “violence” insert “or financial abuse”.
(3) In paragraph 12 (1) (b) after “violence” insert “or financial abuse”.
(4) In paragraph 9, at the end insert—
““financial abuse” includes—
(a) having money or other property stolen,
(b) being defrauded,
(c) being put under pressure in relation to money or other property, and
(d) having money or other property misused.”’
This new clause would add financial abuse (as defined in section 42 of the Care Act 2014) to the domestic violence condition under which civil legal aid may be provided in a matter arising out of a family relationship.
New clause 9—Review of Act in relation to children’s financial status—
‘(1) The Secretary of State must conduct a review of the financial effects of this Act on families where the marital status (including a current or dissolved civil partnership) of a parent explicitly determines the eligibility for benefits for dependant children.
(2) The Secretary of State must make arrangements for a copy of the report of the review to be laid before both Houses of Parliament no later than six months after the date on which this Act is passed.’
This new clause would require the Secretary of State to publish by the end of this year a report on how this Act will affect the financial status of children and families where benefit entitlement is linked to the civil partnership or marriage status of one or both parents.
Amendment 7, in the schedule, page 19, line 4, at beginning insert—
‘( ) Section 22 of the Family Law Act 1996 (funding for marriage support services) is amended as follows.
( ) In subsection (1), leave out “may, with the approval of the Treasury,” and insert “must”.
( ) In subsection (1)(a), at the end insert “, both before and during a marriage”.
( ) After subsection (1)(a) insert—
(i) marriage counselling for any partners to a marriage where an application has been made to the court for a divorce order under section 1 of the Matrimonial Causes Act 1973.”
( ) After subsection (3) insert—
“(4) Any reference to marriage or marital breakdown in this section also applies to civil partnerships.”’
That the schedule be the schedule to the Bill.
Fiona Bruce
This Bill is a bad Bill. It sends out the wrong message at the wrong time. No-fault divorce is really state-approved unilateral divorce. Ministers like to say that it is all about the divorce process and not about marriage. They are wrong. The removal of fault sends out the signal that marriage can be unilaterally exited with no available recourse for the party who has been left. The public get it, even if Ministers do not. In the “Finding fault?” national opinion survey, 71% thought that fault should remain in law. That is a survey on which, in other respects, the Government have relied in bringing forward this legislation. Even in the Government’s own consultation, 80% opposed the proposals, and the Bill was not even in our manifesto.
Jim Shannon (Strangford) (DUP)
I thank the hon. Lady for her considerable contribution in setting the scene for us. She and I have a very similar outlook on life, as I believe others in this House have as well. Is it her intention to ensure, through her amendments and new clauses, that services to save marriages—Relate and others—are available from the very beginning of a relationship breaking down to almost the end of it, so that every person at every stage will have a chance and an opportunity to save a marriage, rather than let it fall apart?
Fiona Bruce
I absolutely agree—indeed, not just from the very beginning of a marriage, but from before it, as I shall mention shortly when I refer to new clause 1.
I return to the important point that a great many family breakdowns may be a lot more salvageable than is commonly assumed, and therefore help towards that is important. Statistics bear this out: only 9% of married couples who split one year later could be categorised as high conflict couples who reported quarrelling a lot in the year before the split, and 60% of married couples who split were low conflict couples who also reported some degree of happiness. This Bill should have focused on helping to keep them together, not least, as has just been mentioned, by offering every couple going into marriage a pre-marriage course.
Such courses would help couples to appreciate that it is not all plain sailing; to understand what the commitment they are making will involve in practice and how to resolve conflict; to understand that better times do not always follow a break-up; and to equip themselves to persevere through difficulties to better times within their marriage. Such difficulties include the disruption a first child can bring, which is so often a crunch point in a marriage, and the current lockdown crisis, which has understandably exacerbated stress in some relationships. Indeed, lawyers report an increase in divorce inquiries of over 40% at present. The last solution offered by the Government for this should be a quick, spur-of-the-moment escape route.
This Bill is not focused on helping to keep marriages and families together; it does exactly the opposite. That is why new clause 1 is so important, and I am also minded to test the will of the Committee on it. New clause 1 would ensure increased funding for relationship counselling and new support for couples where an application for divorce has been made to a court. The availability of marriage support services in this country is wholly inadequate and requires substantially greater Government investment. This is no doubt one of the reasons why we have one of the highest rates of relationship breakdown in the western world.
It was encouraging that, in the last Budget, the Chancellor committed £2.5 million towards this, but much more is needed. Importantly, it is needed for less well-off couples, who cannot afford the private relationships counselling that better-off people can afford. The Government say that they want to remove conflict flashpoints and reduce areas of conflict in the divorce process. Improved relationship support and counselling would help achieve that. The Bill should have focused on it, and new clause 1 will amend this omission. I was encouraged by the support from those in many parts of the House for this on Second Reading.
Jim Shannon
The hon. Lady is most gracious in giving way. She will understand and agree with me and probably others that churches offer such services. Is it possible within this legislation, with the extra money that will come through if the new clause is accepted, for the Government to work alongside churches to ensure that relationships can survive?
Fiona Bruce
I thank the hon. Gentleman. Some excellent marriage counselling and, indeed, pre-marriage courses are supplied through church organisations. They are very popular, and I personally think it would be marvellous to see a lot more of them and to see some Government-funded support for them.
Counsellors help parties to understand the implications of what marriage means and, when difficulties occur, of what splitting up would mean for them, their children, and their wider families. They help people to consider what a split will involve practically, regarding contact arrangements and finances, and whether the option of staying together might be something that they could look at. Counsellors give people tools to help work through the problems, since they may not have had a role model to copy in earlier life. Critically, if the divorce goes ahead, such help can assist a couple to navigate their future relationship in a way that is best for the future wellbeing of their children, and that will, hopefully, foster continued co-operation and constructive communication, while avoiding, or at least minimising, unnecessary acrimony and relationship acidity over the many years—often decades—to come, for the benefit of all involved. It might help people who receive such counselling to know two interesting facts. First, in a study that involved more than 1,500 people, Professor Janet Walker found that two years on from a divorce, many people wished they had been warned beforehand of the harsh realities of life after separation, and said that if they had been forewarned, they might have sought reconciliation. Another piece of research from the US in the early 2000s found that people who are unhappy in their marriage are more likely to be happier five years later if they do not divorce than if they do.
Richard Fuller (North East Bedfordshire) (Con)
I am learning a lot from my hon. Friend, and I am grateful for her contribution. She will be able to inform me better, but one thing that occurred to me is that in the process of divorce—I am talking about friends of mine who have been through this—all the voices are about separation. That could come from the legal profession, to which I mean no disrespect, or from friends who get drawn into separate camps, but there does not seem to be much space for conciliation in the most important contract that two people will ever make. Does new clause 1 seek to address that disparity, and the way that such forces work in those difficult circumstances?
Fiona Bruce
That is exactly its point—very much so. That goes to the heart of the key purpose of new clause 1. Relationship support for couples in difficulty can help them to work together, so that the roots of their conflict can be addressed and terminated, rather than the relationship itself. Investment in relationship counselling would help not just the parties, but their children and wider society. Strikingly, the one provision of the Family Law Act 1996 that was retained is section 22, which enables the Government to provide funding for marriage support services, research into the causes of marital breakdown, and research into ways of preventing marital breakdown. Sadly, in recent years it seems that those provisions have not been used, and no funding has been provided specifically for marriage support. In February 2020 the Government said that between 2014 and 2019 they had invested £46.9 million in relationship support services. With family breakdown costing the UK at least £51 billion each year, surely it is now time to increase support specifically for marriage with this new clause.
On Second Reading, the Lord Chancellor said that he is a supporter of the institution of marriage. I encourage him to take a leaf out of the forward to the consultation response written by his predecessor, who stated:
“I believe that we should do everything we can to try to rebuild relationships before they become irretrievably broken down…This includes, where possible, helping to ensure that relationships can be saved before they are legally ended.”
Will my right hon. and learned Friend pass what might be called the “Gauke test”, by doing everything he can to support saveable marriages and support new clause 1?
Let me turn to amendments 2 and 4. Amendment 2 would define the start of divorce proceedings, so that it is clear when the 20-week period would start. This is an important concern about the Bill. Amendment 2, and amendment 4 with regard to civil partnerships, seek to deal with a serious defect of the Bill. At present, the petitioner for a divorce must prove service on the other party before proceedings get under way. That means that they must prove, on the record, that the other party has received notice and knows that they are being divorced. This Bill contains no such requirement. The applicant can simply lodge his application at court and the 20-week clock referred to in the Bill for proceedings to commence starts ticking.
The Bill needs amending to provide for the 20-week period not to start until the application for a divorce has been received by the other party to the marriage and this has been confirmed at court. Otherwise, as the Bill now reads, one party to the marriage could have far less than 20 weeks’ notice—if, for example, they are away from home, ill, or for some other reason the notice is not effectively served on them—prior to a court making a conditional order, leaving only six weeks left before a final order. Worse still, the Bill, as currently worded, gives a green light to unscrupulous petitioners to ambush their spouse by ensuring that by one means or another, their spouse does not receive the notice of claim filed at court promptly—so-called bombshell applications—because proposed new section 1(3)(b) of the Matrimonial Causes Act 1973 says that if the 20-week clock has ticked, the court
“must…make a divorce order”.
That can leave as little as only six weeks, or a few days more. It is possible for a devious partner to give a vulnerable spouse little over six weeks’ notice that they are being divorced—as I have said, a petitioner’s charter. That mischief needs correcting.
The Government will say that the Bill limits the opportunity for respondents to delay, control or frustrate the divorce application, and I should be grateful if the Minister would clarify where in the Bill it states that.
John Redwood (Wokingham) (Con)
On the very good point that people need to know that the proceedings have commenced, what does my hon. Friend think would be good service so that we can be satisfied on that matter?
Fiona Bruce
In my view, it is important to ensure that service is recorded. Service can be made by someone who professionally serves notice and then registers that fact at court. At present, the process of service has to be evidenced before the divorce proceeding process continues any further. All I am asking is that we have the same regulations now.
Even the Law Society, which supports the broad principles of the Bill—to my regret, as I am a member—is supportive of both parties having the same minimum period, so this is a very serious point, which needs to be addressed. As it stands, the 20-week period starting on application is, I believe, defended by Ministers because it makes the process simple. However, in this Bill’s simplicity lies its harshness or, as the noble and learned Baroness Deech has said in another place, its brutality. The shock for many people of being divorced within six months will be hard enough. The shock of being divorced in little over six weeks would be wholly unjust.
The Lord Chancellor has said that he will work with the Family Procedure Rule Committee to address this point. I await the Minister’s reassurance on this, which will need to be very strong to counter my view that this amendment to protect vulnerable respondents needs to be on the face of the Bill.
I now turn briefly to amendments 3 and 5 and new clause 2. Amendments 3 and 5 would ensure that there are no discussions about financial settlements in the 20-week period— or ideally, a longer period if amendment 1 is passed—unless both parties agree, or there is an application to court for interim maintenance and financial injunctions. The point of these amendments is that they give a breathing space for the parties to dialogue. Sadly, there is no requirement for this in the Bill—a litigation- free period in which it is hoped the parties may take counsel and try to establish whether they could be reconciled.
New clause 2 would require the Government to report annually on the impact of this Bill on divorce applications and marriage support. It would require them to report to this place on the impact of the Bill and, importantly, on those who are vulnerable, whether financially or otherwise, including children, and, equally importantly, on the availability and take-up of counselling and support services for those involved in divorce proceedings across the country.
In conclusion, as I am sure colleagues will now be aware, I fundamentally oppose this Bill. It does not promote fairness or justice, as I have sought to explain. What is fair or just about someone being able to just walk swiftly away from their relationship responsibilities, especially if children are involved, with no dialogue and without being held to account? Nothing in this Bill will help to reduce the inherent pain of the ending of so many relationships—of the rejection, the loss, the severance of a relationship that started with so many high hopes. This is a sad day for this House and my saddest in 10 years here.
Alex Cunningham (Stockton North) (Lab)
Put simply, Labour supports this Bill. It is in line with Labour party policy. It sends the right message, we believe, many years later than it should have arrived in this place.
We support reforming some of the archaic and outdated hoops that people have to jump through if they want their marriage to end. People who may never have sought or needed a divorce may not know that there is currently no such thing as a no-fault divorce and that one of the parties must be “to blame” for a relationship ending. They may not know that if there is no blame to be laid, people must spend two years separated before they can file for divorce. They may not know that if one of the parties objects to divorce, the other must remain married to them for five years. That is why we hope that Ministers will reject amendment 1. I will turn specifically to that soon.
Marriage is supposed to be a happy and special occasion where two people come together in front of their loved ones and commit themselves to each other, and then set up their lives together. But we would be naive to think that all marriages will last forever. People change and life changes. Something that may have once seemed perfect will not necessarily be that way forever. There is no reason why, in situations where there is no fault, two people should be forced into a hostile situation where they have to find blame, keeping them married for long periods and preventing them from moving on with their lives.
Sir John Hayes (South Holland and The Deepings) (Con)
Of course what the hon. Gentleman says is entirely reasonable—that where there is no fault it is right that that should be acknowledged. Where there is fault, should that be acknowledged, or ignored or concealed, or what?
Alex Cunningham
I think that is a matter for the individuals involved. Adults who are embarking on divorce are supposedly mature people and they should be able to sort these things out for themselves. If they want to blame somebody for some reason, that is very much a matter for them.
It is right that this Parliament is taking action to bring divorce law into the 21st century and recognise that in many cases there is no blame—there is just no desire to be together any more. We should be facilitating peaceful endings of marriages where that is possible. I am pleased that this Bill makes excellent moves towards achieving that.
Yet the Opposition have identified several related matters that we felt needed to be heard and considered. From the list of amendments, I see that some Conservative Members also felt that some changes were needed. I plan to address these in turn. Amendment 1 would extend the minimum legal period for a divorce from the six months in the Bill to a year. Wo did not see what value or benefit this would provide; it would simply force two people together for longer than they need to be.
Fiona Bruce
I do not know whether the hon. Gentleman listened to my speech when I was talking about the opportunity for more time to discuss potential reconciliation.
Alex Cunningham
I think that when people embark on divorce proceedings, it is not because they have just changed their mind overnight—relationships break down over a long period and they get to that point. So extending the period anywhere beyond six months does not serve any great further purpose.
I know that it is up to the Government to defend their Bill, but we hope that Ministers will not give way on this issue. Amendment 1 is not within the spirit of the Bill, and it fails to recognise that, by the time a married couple reach the stage of deciding to file for a divorce, they have already made their decision. It is highly unlikely that they will change their minds simply because they have to wait longer for the divorce to be finalised. We are talking about adults—adults who were deemed to have the ability to consent to get married in the first place, and adults who still have the capacity to consent to end that marriage.
Andrea Leadsom (South Northamptonshire) (Con)
What does the hon. Gentleman make of the surveys that show that up to 50% of people who divorce come to regret it? Does he think that they are merely deluded, or are those surveys wrong? What is his assessment of that?
Alex Cunningham
I will address that later in my speech, but I am in favour of greater support for people who want to see whether they can reconcile their relationship.
Let us not prolong the hurt and difficulty that people inevitably go through when they decide that their marriage is no longer what either of them wants. As the Secretary of State said on Second Reading, a minimum period of six months provides
“an equality of approach that will no longer discriminate in favour of those couples who perhaps have the means and the wherewithal to either separate and live separately”—[Official Report, 8 June 2020; Vol. 677, c. 97.]
We must take into consideration the impact of our decisions on people’s lives. I see no reason why six months would be too short a time for this process to take place. Dragging out the proceedings would not be fair to either party, and it certainly would not be fair on any children involved; we have a duty to take their welfare into consideration too. It would be infinitely better for children to have two parents who separated and divorced quickly and quietly, rather than those children enduring years of something that can be very traumatic and have a lasting impact on them and their future relationships.
On Second Reading, the right hon. Member for New Forest West (Sir Desmond Swayne) said:
“We have all experienced in our surgeries those parents who continue to use their children as weapons in prosecuting a continuing war against their former partners. The removal of fault will not remove that entirely, but I am confident that it will certainly diminish it.”—[Official Report, 8 June 2020; Vol. 677, c. 113.]
He was right. Why should anyone’s children be used as weapons for years on end, causing more pain, distress and doubtless illness as well? Let us not delay proceedings even further. Let us acknowledge that, by the time a divorce has been filed, the parties have already made up their mind and should be allowed to dissolve their marriage without having the legal period extended to a year.
Amendments 3, 4 and 5 appear to be an attempt to frustrate the process of a speedy resolution to divorce proceedings. Amendments 3 and 5 would strengthen the hand of the person who has control of the financial resources in situations where there is financial abuse. Maybe I have missed something, but it seems to me that it would do nothing to help the party who does not have the financial upper hand. Financial settlements are needed as quickly as possible to enable a divorcing couple to live apart. If the intent is for divorcing couples to remain living together during the period of the divorce due to financial restrictions on one party preventing them from moving out, this would be ill-advised. It would not lead to some miraculous reconciliation, but will allow for even greater friction, and it would be counterproductive to the aims of the Bill to encourage amicable divorce and separation. The Law Society has said:
“There can be severe, sometimes irretrievable, financial prejudice to an applicant if final divorce is granted before a financial settlement is reached.”
It is important for discussions on financial settlements not to be delayed, which would only delay divorce proceedings and cause further hurt and frustration.
I turn to new clause 1. I do not think anyone can fail to agree that increased support for marriages is a good thing, but we need much more clarity on how it would work and how it would be funded. I certainly do not think it is something that could or should be made mandatory for couples who are petitioning for divorce. The availability of support for people who wished to access it would be welcome, and I am mindful that couples who would like support may not have the resources that others are able to pay for. If the Government are not minded to adopt this new clause, perhaps the Minister could commit to bringing his own plan to the House designed to provide more support for couples petitioning for a divorce, as well as support for couples who want help to try to put things right before they petition for a divorce.
On new clause 2, we would be in favour of a report on the impact on divorce applications and marriage support. This House works best when it is informed by facts and the reality of people’s lives, and the hope is that this report would give us a true insight into the impact of the Bill. I hope the Minister will comment on that.
Jim Shannon
I probably have a different opinion on this from the hon. Gentleman, but if we are dealing with facts, I understand that there is an evidential base of facts that shows that 50% of people who have divorced, as the right hon. Member for South Northamptonshire (Andrea Leadsom) referred to earlier, wish to have had the opportunity not to have divorced. If there is an evidential base and the facts are there, why not take those on board?
Alex Cunningham
We do take the facts on board. People may feel that they have got it wrong, and we have all seen examples of people who get married, get divorced and get remarried. We have seen examples where people have done that more than once, which is remarkable. People have the choice, but that does not mean we should lengthen the period that people have to wait before they can divorce. It will be particularly interesting to see how many couples opt for no-fault divorces as an alternative to laying the blame at the feet of one person in the relationship.
Some of the impact of this Bill may be unmeasurable, but it does not make that impact less important. For example, we might not know the true impact of quicker and more amicable divorces on children and how that affects their wellbeing and future lives, but I am confident in saying that having two parents apart but happy is infinitely better for a child than having parents stuck in an unhappy marriage for years on end. I hope the Minister will comment on that.
That leads me to new clause 3, which would reduce the time period to allow a divorce with consent from two years to one. I do not believe the new clause is needed, as the provisions within the Bill are better than what the new clause would achieve. It would still require couples to stay married for a year before they can petition for divorce, and it completely ignores the reality in which people live their lives. To be separated, people have to live apart and at least sleep apart, which simply is not possible for many people. Many homes do not have the luxury of extra bedrooms, and I doubt that 12 months on a sofa is very acceptable. Many couples do not have the disposable income for them to live separately and they have nowhere else to go, so I am not sure what benefit the new clause is supposed to have. Allowing a no-fault divorce is infinitely preferable to forcing an unhappy couple to stay married for a year before they can divorce.
New clause 4, which stands in the name of the Leader of the Opposition, me and other hon. and right hon. Members, relates to funds and income. It is undeniable that there is a problem with access to legal aid, not just in divorce, but across a wide spectrum of areas. The huge cuts made to funding over the past 10 years have led to unfairness and a lack of justice across our nation. Without adequate legal aid for divorce proceedings, we have a situation where some people cannot afford to petition for divorce. We are essentially forcing people to stay married to someone they do not want to be married to simply because they do not have enough money to take legal action.
If the Minister agreed to act, he would have the support of the Law Society. In a briefing, it told me that respondents should have sufficient time to respond to a petition and seek advice. It also stated:
“In our evidence to the Joint Committee on Human Rights in regard to the human rights implications of the Bill, we highlighted that there is the potential for issues under article 14 of the Human Rights Act 1998 due to its potential to have a particularly detrimental impact on women, who due to a range of societal issues are more likely to be less resilient to financial risks…While divorce affords some protections to women at the end of a marriage, they can only make best use of these legal safeguards if they can participate in the proceedings fully.”
It is right and just that we extend legal aid to divorce, dissolution and separation proceedings to allow people to escape unhappy marriages and civil partnerships. While we welcome the provisions in the Bill to make divorce easier, will the Government acknowledge that without legal aid, we are simply making divorce easier for those who have the funds to petition, while little change will be made for those who do not have such funds? I hope the Minister will go away and consider that, as we must do better for those who do not have the resources to use the legal system.
New clause 5 would require the Secretary of State to carry out a review within six months on the impact of extending legal aid for divorce proceedings. We on this side of the House are particularly interested in the disproportionate impact that an absence of legal aid has on women and how Government can help put a stop to that. Does the Minister agree that we should be conducting research to collect facts about the impacts of decisions made by this House and the potential impacts that decisions made by this House could have? With this in mind, I hope the Minister will accept that we must actively seek out areas where a group of people are being disproportionately negatively impacted, and make the necessary changes to fix that.
We know that legal aid is available in some circumstances, but, as we say in new clause 6, we would like to see financial abuse listed as a specific condition under which civil legal aid may be provided in matters arising out of family relationship. If a person is being financially abused, they simply do not have the funds to petition for a divorce. Does the Minister accept and acknowledge this fact? If he does, perhaps we can make some progress. This could be transformational change for those who have been essentially kept from having their freedom by their partners because they do not have the resources to pursue a divorce. Can the Minister tell me now whether he will seek to introduce financial abuse as a part of the domestic abuse conditions that allow access to legal aid? If not, is it the case that the Government do not wish to provide real and tangible assistance to those who are being financially abused and cannot escape an abusive relationship without that assistance?
There are other areas of family law that I would like to be addressed in the Bill, such as the out-of-date, archaic approach which means that families are entitled to bereavement support only if the parents are married. Not only does this fail to recognise that many families have happy and secure lives without the need for marriage, but it means unhappy couples may be discouraged from petitioning for a divorce because of the potential financial consequences. However, it goes much wider than that.
I have a constituent who when living with her partner had a child with him. Sadly, the relationship was not sustained but her partner, who left, kept up regular maintenance payments for his child until his death. Despite having those regular payments, my constituent is denied bereavement support. When I wrote to the Government seeking clarity on this, the Under-Secretary of State for Work and Pensions, Baroness Stedman-Scott, responded by simply saying that marriage was a key part of benefit entitlement. This is an outdated approach, and we must reframe our public policy on it. We live in a society where families come in all shapes and sizes, and we should not be deeming one shape or size as preferable to another.
The chief executive of Child Bereavement UK said:
“The inequality that unmarried parents face in the bereavement system denies them access to this financial support at a time of great distress and anxiety on many levels following the death of a partner…It is a gross injustice that the current system ultimately disadvantages bereaved children, who have no influence over their parents’ marital status.”
For bereavement support when one parent dies to be permitted only if the parents were married is backwards, and I hope the Government recognise that and will take action to right this wrong.
New clause 9, which is in the name of my hon. Friend the Member for Walthamstow (Stella Creasy) and in mine, is an important one. I will not steal my hon. Friend’s thunder, but it is absolutely right that the Secretary of State publish by the end of this year a report on how this legislation will affect the financial status of children and families where benefit entitlement is linked to the civil partnership or marriage status of one or both parents. As I have said, basing benefit entitlement on marital status is outdated and not representative of the modern society in which we live.
Naz Shah (Bradford West) (Lab)
Is my hon. Friend aware of the YouGov poll commissioned by Resolution, which represents more than 6,000 family lawyers and family law professionals? It shows that 71% of the population agrees that no-fault divorce is urgently needed to protect the long-term interests of children.
Alex Cunningham
I have seen that particular information. It cuts to the very core of what this is about. It is not just about the two partners in a relationship; it is about the children. The hon. Member for Congleton (Fiona Bruce) spoke about the extended family and the need for grandparents to be involved with their grandchildren. It would absolutely break my heart if I were to lose contact with my grandson. It is very important that we recognise that this will actually make life easier for children, which is why we support it.
As I was saying, basing benefit entitlement on marital status is outdated, so I hope the Minister will go away and collect the information to share with the House. The Government have acknowledged that we need to make divorce easier and more straightforward, which this Bill does, but the Government cannot and should not ignore the negative repercussions of the positive changes being brought in with this Bill.
In conclusion, this is a good Bill that will change people’s lives for the better. But there is always room for improvement, especially changes in the spirit of this Bill recognising modern relationships and families as well as legal aid. I hope the Minister will agree that there is much more change needed in this area of family law, but this is a good first step.
Sir Robert Neill (Bromley and Chislehurst) (Con)
It is a pleasure to see you in the Chair, Dame Rosie, and to follow the hon. Member for Stockton North (Alex Cunningham).
I listened with great care to the speech by my hon. Friend the Member for Congleton (Fiona Bruce). I have great respect for the sincerity with which she expresses her views. I have to say that I profoundly disagree with the fundamental basis of her analysis, but I do not mean that with any disrespect to her or others who take a different view. This is not a Bill on which we should be judgmental, any more than we should be judgmental in relation to divorce itself. The Bill is, to my mind, a sensible one. It reflects reality, which is often painful—painful not least for the parties and for their families. As I said on Second Reading, I start from the proposition—it also informs my approach to these amendments—that nobody gets married setting out to get divorced. Divorce arises only as a result of a great deal of hardship, heartache and heart searching.
In my experience, as a constituency MP and lawyer—I did not predominantly practise family law as a lawyer, although I did a bit at one time, and I have many friends who continue to do it at every level—divorce is not undertaken lightly, any more than any relationship breakdown is undertaken lightly. When it happens, however, it is better that it should be done with the minimum of conflict and the minimum of confrontation. Over the years, we have made reforms to the law of divorce to try to make it closer to the reality of the society in which we live, because, ultimately, that is what law has to serve. In this regard, I support the Bill for attempting, and succeeding in large measure, to do that. So although I understand that the amendments are well intentioned, I cannot support them.
Sir John Hayes
My hon. Friend will, of course, understand from the personal experience of his constituents and from other experience that he has enjoyed that the acrimony he described is often about the dispersal of assets and the custody of children. It is not about the process of divorce; it is about the business of divorce. The custody of children and the agreement about assets will continue regardless of the process. Acrimony is a feature of the human condition, not a legal process.
Sir Robert Neill
The only part that I agree with my right hon. Friend about is the fact that acrimony can be a feature of the human condition. I am afraid that I have to profoundly disagree with the rest of his analysis. I regret to have to say that a divorce process that entrenches confrontation absolutely has the reverse effect to that which he suggests. The reality is that the acrimony, sadly, has arisen in the course of the breakdown, which, all too often, may have been a long time coming and may have happened for a number of reasons, which cannot be laid necessarily always at the door of one party or the other. But the law, as it stands, does not fit that reality fairly and sensibly. Whatever its intention, it actually makes matters worse, so I do have to part company with my right hon. Friend on that.
There is much to be said— I will take it out of turn but I think it relates to the principle of this—for the various amendments that relate to improving the attempts to support marriage and conciliation. I understand that and hope the Minister will have more to say about what more we can do in that regard. The truth is that, by the time we get to the issuing of the proceedings for divorce, the horse has bolted. We should do more to prevent that from happening and help couples when they run into difficulties at the beginning, but that is not what this Bill is changing.
Andrew Selous (South West Bedfordshire) (Con)
Do I detect from what my hon. Friend has said that he is supportive of new clause 1 and amendment 7, which are, in fact, identical in terms of marriage and relationship support? That has always been a feature of this aspect. It was part of the Family Law Act 1996. Is he supportive of what those two amendments are trying to do?
Sir Robert Neill
I am supportive of the objective, but I would like to hear the Minister’s comments on whether those are the best means of achieving it in the context of the Bill. I entirely accept what my hon. Friend says about the objective, and he and I share views on a number of issues. I would prefer to see the Bill pass cleanly and then to work constructively with the Government to find means of giving that sort of support, because there are other methods that I think could be used to do that. However, I take on board the importance of the point he makes.
Against that background, it is important that we seek to minimise conflict and that we face the fact that, however much we might wish it were otherwise, a bond that is no longer meaningful to a couple is not best served by forcing them together. That is neither socially desirable nor just; nor is it Christian or ethical in terms of any faith.
Fiona Bruce
My hon. Friend used the phrase “the horse has bolted” in reference to the time the petition is initiated. In fact, in recent years tens of thousands of petitions have been abandoned after being lodged at court; the marriages have remained intact. Is not that something we should celebrate and encourage?
Sir Robert Neill
I think it rather depends on the grounds on which the petition is abandoned. If someone was coerced into abandoning a petition, I would not regard it as something to celebrate, to be perfectly frank, as that would be allowing a coercive party to win. That may not be the case in most instances, but that is a reality as well. The evidence also shows that about 10% of petitions do not proceed to their final conclusion, but that is very often because of procedural reasons, and sometimes because of no co-operation on the part of the respondent. With respect, I am not sure that that is the best argument.
Unfortunately, and as has been pointed out, amendment 1 appears simply to delay dealing with an issue that needs to be resolved. It is merely reinserting and increasing the time period. The longer the period goes on, the greater is the likelihood of conflict and hardship, and the greater is the risk that the stronger partner—whether financially or emotionally—in a relationship that has not always been happy and who may have verged on being coercive or been outright coercive, will have all the cards in their hands. The longer it goes on, the more they can push back against the person who is seeking to leave an unhappy relationship and genuinely move their life on. I do not believe the amendment would have the effect my hon. Friend seeks of making the divorce process easier or better.
Naz Shah
The hon. Gentleman is making very valid points, which I agree with. Does he agree with me that, especially where domestic violence is involved, that partner has the power to prolong cases for up to two years —in some cases, five years—which has a negative impact on both the abused partner and on the children?
Sir Robert Neill
Unfortunately, that is also true. I think most of us will have seen that in our surgeries.
It is also worth saying that the pilot information meetings held under the Family Law Act 1996, which was passed but never brought into force, indicated very strongly that, by this stage, very often people have made a decision and want to move on. In reality, there may be another family, or a new relationship has started. People should not be forced to point a finger of blame. A law that requires that is doing no social or ethical good.
Amendment 3, in effect, restates and retains the fault- based approach. That is opposed by Resolution—an admirable body—and not supported by the Marriage Foundation either. I simply do not think that professionals believe that anything is gained by this approach.
Ian Paisley (North Antrim) (DUP)
The hon. Gentleman has reiterated that certain professionals will not gain out of this, but is not the unfortunate fact that some professionals in the legal field will set themselves up as the expert in finding the loophole, the expert in the quickie divorce, the person who can get people over the hurdles even faster? As we have seen in other fields, there will be some unscrupulous individuals who market themselves on that basis. That is a problem that the Bill introduces.
Sir Robert Neill
I do not think the Bill adds to that problem at all. If it exists, it can exist in any profession and can be dealt with by proper regulation. I suggest to the hon. Gentleman, for whom I have great respect, that the current situation makes that problem worse, because people have to go through what is rightly described by the research from the University of Exeter as a legal farce—a legal ritual of saying, “What is the minimum form of words that your client will accept that will meet the legal test to enable us to get divorced?” That is the sort of thing that can be taken advantage of and it is where the unscrupulous will come in. Removing fault removes the ability for the unscrupulous person to play upon fault, be they a purported adviser or a party to the divorce. Maintaining that approach and resisting these amendments, however well intended, is important and I urge the Government to do so.
It is important to look at the international comparisons. In England, a disproportionate amount of reliance is placed upon fault as the grounds for divorce. There are other grounds for divorce, but because it is complicated at the moment some 60% of divorces in England are based upon allegations of adultery. By that stage, people have split up and are often living apart. There is the business of having to point the finger about who did what. My old pupil master, whom I believe I mentioned on Second Reading, was around when we still had to go through the charade of getting an affidavit from a chambermaid or the receptionist in a hotel to prove divorce. It was a demeaning business and thank God we got rid of that. Maintaining a fault system, which, as I say, entrenches conflict, does us no credit as far as that is concerned.
Sir Christopher Chope (Christchurch) (Con)
Does my hon. Friend accept that there is only one ground for divorce, which is irretrievable breakdown, and there are five areas where one can adduce evidence of that irretrievable breakdown? Should we not be concentrating on that one issue: irretrievable breakdown?
Sir Robert Neill
It seems to me that that is precisely what the Bill is seeking to do. The problem is the requirement to prove the following facts to support that because, inevitably, that evidential requirement elides into the grounds, and the conflict created by the need to prove one or other of those facts is the difficulty. So I think that the Bill is moving in the direction that my hon. Friend, with his own experience in the law, will probably wish us to go.
Fiona Bruce
So now we are substituting the requirement to prove a fact with someone merely being able to state their opinion and that being accepted as fact. Does my hon. Friend think that is right?
Sir Robert Neill
If the ground is made out that the marriage has irretrievably broken down, I think most people would say that there is no merit in seeking to go beyond that. I know it is suggested that there ought to be some finding of fault on the record. This is not a criminal process and I do not think that helps anyone. Ultimately, the court process is not there even to assist someone in a measure of trauma, I have to be blunt about that. That is not what the court process is there for. By all means, help people when their relationships get into trouble and do more than we already do. I would not support the Opposition’s amendment in the form in which it currently appears, but I hope the Minister will have more to say about what can be done to make access to legal advice more readily available to people when their relationships start to fall apart and when divorce looms. Legal aid was withdrawn from divorce overall. I understand the financial reasons behind that and I understand the argument that, if we move to a system where we do not have the level of confrontation, it may not be necessary in many cases, given the other changes—the online portal and other matters—to go down the route of requiring lawyers at every stage.
Alex Cunningham
Would the hon. Gentleman support the idea that information relating to financial abuse should be specifically categorised in the law so that people get legal aid in those circumstances?
Sir Robert Neill
That is an interesting point and I would like to see what the Government can come up to deal with that, but I am not convinced that it needs to be in the Bill. I do, though, think that the Government need to look at it, not least because under the existing legislation that is retained there is, very properly, the ability to take conduct into account when dealing with financial matters. To me, that is where conduct ought to be relevant, rather than in proving the fact of an irretrievable breakdown. That is the way I would look at it.
I know that the Minister is particularly alert to these matters, and I hope he will want to think about how we can have greater access to early legal advice for people. Legal aid may be one route for that, but there may be other means that we can use to supplement it. One of the things that was said when we withdrew legal aid from family cases was that many more will go to mediation; that never happened, and the reality is that that is because lawyers are normally the gateway to mediation. Unless someone has some form of legal assistance to go to a lawyer in the first place, they are not going to end up moving into mediation, which is where we want people to be. That is where I am in agreement with the shadow Minister, the hon. Member for Stockton North (Alex Cunningham), but I hope that there is another means of achieving what he is looking for in a proportionate way.
I hope I have set out why I think Members will resist the amendments—not because they are not serious issues, nor because every one of us does not want to try get the Bill into the best possible condition, but because they would muddy the waters of the Bill and, in fact, would undermine it in a number of important respects by adding back in much of the confrontational process, and they would cause delay when delay is many people’s biggest concern. In particular, some of the technicalities of the amendments would actually strengthen the arm of the spouse who wants to exert influence on the petitioner either not to proceed with the divorce or, even worse, to settle for an unsatisfactory financial arrangement or an unsatisfactory arrangement for the children.
I do not see how, whatever their intention, amendments that have the practical result of strengthening the hand of the party who is putting pressure on someone at a time like that are in the public interest. For those reasons, I hope very much that the House will not accept the amendments but will take on board some of the legitimate points made by my hon. Friend the Member for South West Bedfordshire (Andrew Selous) and by the shadow Minister, which I think would chime with many people throughout the House, about how best we give people support at such a difficult period in anyone’s life.
Stella Creasy (Walthamstow) (Lab/Co-op)
First, I associate myself with the comments from my colleague and good friend on the Front Bench, my hon. Friend the Member for Stockton North (Alex Cunningham), who gave us a clear outline of where the Labour party and the Opposition are on the amendments that have been tabled.
I rise to speak in particular to new clause 9 and to ask the Ministers to consider the financial status of children. I also associate myself with the comments from Members from all parties about the importance of supporting people with marriage, because it is obviously an issue for people to access support.
New clause 9 speaks to the conversation that we appear to want to have as a House. We should talk about marriage, and we should talk about how marriage and divorce are seen in public policy making, because there are ramifications, and there are ramifications that go far beyond the straightforward question of whether and how people can get married.
I wish to start with a wonderful quote that struck me very strongly:
“People stay married because they want to, not because the doors are locked.”
Those words were said by a gentleman who had a 50-year marriage: the great actor Paul Newman. Many of us are aware of Paul Newman’s marriage to Joanne Newman, which was celebrated throughout Hollywood—perhaps an area to which the hon. Member for Congleton (Fiona Bruce) would not look for marriage guidance, and I probably agree with her about that. Nevertheless, when we think about our role as parliamentarians in law, it is worth reflecting that even Paul Newman was married to somebody else when he met Joanne Newman and had three children.
The reality is that sometimes relationships do not work out, and sometimes people choose not to use marriage as a way of cementing their relationship. In the 21st century, it is right that, when we look at legislating on marriage and divorce, we ask ourselves what the consequences of any changes we might make will be for people’s real lives. It is right that we never lose sight of what really matters here, which is the people we represent and their families and day-to-day lives, and what the consequences would be. Indeed, it was Nietzsche who said that it was
“not a lack of love, but a lack of friendship that makes unhappy marriages.”
An environment is created when we say that we are either standing up for or detracting from marriage, because forcing people to stay unhappy or, as some are suggesting with this Bill, making divorce easier and therefore traducing the concept of marriage, misses out something fundamental about this legislation and about how we treat marriage within the legislative process. That is where new clause 9 is coming from.
New clause 9 seeks to take up the test that the hon. Member for Congleton set out in her amendments. She suggested that people will marry less and cohabit more and that somehow, therefore, we need to act against that. My point in tabling this new clause, with the support of my hon. Friend the Member for Stockton North, who feels strongly about this too, is that we can lose sight of what really matters here and, in particular, lose sight of the consequences for children. I would wager that the hon. Member for Congleton and I may have differences of opinion on many things, but we would agree that children should matter and that we should never legislate in this place without thinking through the consequences for children.
The challenge here, and the reason why I tabled new clause 9, is that the way in which marriage it is portrayed in our legislative process, in particular how it is explicitly referenced when it comes to benefits, has consequences. It has very real consequences for the destitution of children. I agree with the hon. Member for Congleton that marriage breakdown is hard on children, but imagine a child who loses a parent and how awful that must be for that child. The trouble here is the way in which we think about marriage has consequences for children who are already facing the trauma of having lost a parent.
I hope that new clause 9 is actually a relatively straightforward piece of work, because there is a hangover from the Beveridge report, which sought to support widows, particularly widowed women who lost their husbands and, therefore, were having to look after children after losing the family income. The challenge for this piece of legislation, because I know Dame Rosie would say, “Well, this is a separate issue,” is that when we change the way in which we talk about marriage—or when we change the way in which we talk about divorce, because this will affect the children of divorced parents, too—the knock-on consequences may have severe financial effects for children. If we do not give them a voice in this process, we miss a trick. New clause 9 asks us to do precisely that.
Although the hon. Member for Congleton and I may have different views on marriage, we would find common cause in saying, “Well, actually, we should look and see whether this is going to affect that group of children,” because right now we know that the way the law is cast does affect those children. It affects thousands of people in this country who are already facing the trauma of losing a family member, whether through terminal illness or through sudden death, and who suddenly find that they are not entitled to support because of the marital status of their parents,
The widows legislation was in the Beveridge report, and it was updated in 2001 to take in fathers—some hon. Members will be pleased to hear that, and I would agree that we should not discriminate between fathers and mothers. Having worked on this issue for a number of years, with some fantastic organisations such as the Child Poverty Action Group, the Grieving Parents Support Network, and Widowed & Young, I have heard some horrific stories about families and the impact of the changes upon them.
Crucially, this is based on national insurance contributions. That is why when we change access to marriage or change the rules around divorce, it has a knock-on effect on this particular piece of welfare policy. There are few other areas of policy that I can see that have such an explicit connection to marriage and divorce. The benefit is specifically not available—this is written into law—to partners who were not married or who were divorced. In earlier incarnations, it was also not eligible to parents whose partner was in prison— I am not quite sure why that was—or if the parent marries or cohabits. It was changed again in 2017 to the bereavement support allowance, and it was altered to shorten the amount of time that a family might be eligible to it, not to recognise the families who may miss out.
However, those are the very families about which I am sure the hon. Member for Congleton would say, “Well, actually, they should be getting married, and what we should be doing is having legislation that encourages and promotes marriage.” The challenge that I have here is that unless we recognise that people may choose for their own private reasons not to marry or may be in the process of getting married, we hit those families when we change the law on marriage and divorce. We are talking about a not inconsequential sum of money. Over the course of 18 months it adds up to £10,000, so we can see immediately that for families who lose a parent and a breadwinner, whether through terminal illness, which might have already caused problems for their finances, or through sudden death, the loss of £10,000 on top of the loss of a partner is a huge cataclysmic shock to them and their family. The reality is that in modern Britain one in five parents are raising children who cannot claim this benefit if their partner dies. That is about 2,000 families a year, which is about 3,500 children in total.
Some 49% of cohabiting couples believe that being in a cohabiting relationship gives them legal rights, which obviously is incorrect. The Bill will reinforce some of those challenges. Crucially, that number rises if they have children: 55% of cohabiting couples believe erroneously that, were the worst happen, they would still have the same right as if they had been married to that support which they have, after all, paid for with their national insurance contributions. I think that is why the Government have lost several court cases on this issue, yet we have not seen any progress being made. I believe we have not seen any progress being made because of the idea, to which the Bill speaks, that somehow we must cement marriage to the exclusion of all other concerns within our public policy-making process.
In August 2018, the Supreme Court ruled that denying the widowed parent’s allowance to unmarried parents was incompatible with human rights legislation. In February this year, the High Court ruled that denying the new bereavement support allowance to bereaved parents was also incompatible. Every day that we delay resolving this situation, recognising that how we talk about and legislate on marriage has practical implications for families who face the trauma of losing a parent, there are more children in this position. Indeed, in the current circumstances where people cannot have marriages unless in extreme circumstances—it is only recently that we have seen that—we face the vision of families losing someone to this awful virus and then discovering that they are in a financial crisis moment because they cannot get the support that they reasonably thought they were entitled to, because their family member had paid their national insurance contribution.
Other countries, which have strong feelings and strong legislation on marriage and divorce, have treated the matter differently. Other member states of the Council of Europe and Canada either pay a survivor’s pension direct to the partner or pay what is called an orphan’s pension to the child. They explicitly say, “However strongly we may feel that we want to promote marriage and however strongly we may feel that divorce in itself should not be something that the state is propagating, we do not punish the child for the decisions of the parent. We do not push the child into financial destitution. Whenever we change the law on marriage or divorce, we seek to put the child at the heart of the decisions we make.” If the Minister wishes, he can read the stories of women like Laura Rudd or Joanna Niemeyer from my community in my constituency, or the examples raised by my hon. Friend the Member for Stockton North, about the human consequences of talking about marriage and divorce to the exclusion of all concerned, for children who may have to deal with the aftermath.
If my new clause is about anything, it is about understanding the true effect of everything that we are doing. The Minister may say to me, “Well, it would not just cover bereavement support payments.” That is true. We would probably have to look at the married couple’s allowance, which is our previous attempt to promote, encourage and sustain the concept of marriage. I am very mindful that that is not claimed by the vast majority of people who are entitled to it. This is a small change to protect bereaved families. We are not talking about hundreds of thousands of people: a few thousand people every year could be covered by it. If only 1.7 million of the 4.2 million families who are entitled to the married couple’s allowance claim it—one question the review could consider is whether the ways in which the Minister is changing access to marriage and divorce might affect that—then the £20 million we estimate it would cost to put this right could come from that budget and we would not be asking little children who face the loss of a parent to deal with a double financial blow because their parents were not married. After all, when their parents are alive we recognise their relationship in the tax credit system. It is a hangover from a previous era in how we dealt with benefits and marriage. It is right, when we are looking at legislation on marriage, to ask whether there will be a further consequence.
I ask the Minister—I recognise that he may say the Bill is not the right place for this debate—not to forget those children in this debate.
Will he go to the Department for Work and Pensions and say, “It’s been two years since the courts said that this was a human rights breach. That’s thousands more children who have been left out and left in destitution, who have missed out on that money, which their families need at a crucial, vulnerable time”? Whether their parents would choose not to get married because the law is changed to make it easier to get divorced, or whether that would not make any difference, they deserve to be heard in this place, they deserve an answer, and they deserve our support. It is never right to tell a child that the sins of the father should be prosecuted on them, and yet by default the way we treat marriage in public policy will do that to these children.
Sir Christopher Chope
It is a pleasure to follow the hon. Member for Walthamstow (Stella Creasy), who made a compelling argument in support of new clause 9. I am convinced by it, and I hope that others will be as well.
I wish to speak in support of the amendments and new clauses tabled by my hon. Friends the Members for Congleton (Fiona Bruce) and for South West Bedfordshire (Andrew Selous) and my right hon. Friend the Member for Gainsborough (Sir Edward Leigh). If any more evidence was needed that our Government have lost their moral compass, this Bill provides it. I never thought that I would be asked by a Conservative Government to support a change in the law that gives unilateral access to the courts without any requirement to establish facts. It is completely at odds with the values of justice that I hold and which I think most members of the Conservative party, if not the nation, also hold.
I was a pupil in chambers specialising in family law around the time that the 1969 legislation was introduced that changed the divorce laws to say there was only one ground for divorce, and that was that a marriage had broken down irretrievably. There were five ways in which that irretrievable breakdown could be satisfied on the evidence. The Bill retains irretrievable breakdown as the ground for divorce but enables that to be proved by mere assertion by one of the parties to the marriage without the need to provide any evidence in support, even if the other party profoundly disagrees.
We know that our courts are under pressure, but how can this justify the expedient of removing the requirement to adduce any facts as evidence? Reliance on mere assertion was how we used to deal with witches, and it is still a favourite tool among dictators such as Putin and Erdoğan, who govern by decree. I did not think we were going to venture down that route in this Parliament under a Conservative Government.
I am particularly attracted to the provisions of new clause 3, which skilfully avoids the use of summary justice. It adopts the Scottish approach to separation with consent by reducing the separation period from two years to one. My right hon. Friend the Member for Gainsborough has told us that some 95% of divorces in Scotland are now on the basis of that provision—in other words, with consent after one year. The Law Commission recommended that instead of one year or six months, the right time would be nine months. The Lord Chancellor has arbitrarily rejected that suggestion. The argument deployed was merely that the approach to divorces in Scotland is piecemeal. I profoundly disagree with that conclusion. I think the approach in Scotland is a much more sensible one, and I do not say that just because I had the benefit of a Scottish university education when I studied Scots law, among other things.
Many marriage breakdowns are temporary and not irretrievable. That is why the issue of evidence for irretrievable breakdown is so important. Sometimes the parties interpret a breakdown as irretrievable, they get divorced and they live to regret it later. Who can doubt that many divorcees on their own during the covid-19 lockdown desperately wish that they had persisted with their marriage? My right hon. Friend the Member for South Northamptonshire (Andrea Leadsom) referred to some 50% of people who get divorced having regrets about having done so. I suspect that, following this lockdown, that percentage might increase even further.
Andrea Leadsom
Further to the statistic that up to 50% of people said they regretted divorcing, the reasons they gave were things like they felt they still loved their partner and that they missed their partner, so for all the huge number of comments that it is all financial, it is very genuinely emotions.
Sir Christopher Chope
This is a very emotional subject, and we ignore that at our peril.
The Bill and the lack of response by the Government to the criticisms that were made on Second Reading lead me to believe that the Government do not really accept the important role that family life has to play in maintaining social cohesion in this country, with the institution of marriage at its heart. The Government almost seem to be venturing down the same route as those who support cultural Marxism. Are the Government inadvertently collaborators with cultural Marxism in seeking to undermine nuclear families?
In the opening speech on Second Reading, the Lord Chancellor said that
“it is often too late to save a marriage, once the legal process of divorce has started.”—[Official Report, 8 June 2020; Vol. 677, c. 95.]
but he sought to avoid the concerns of the Member for Strangford (Jim Shannon) about access to free counselling for those with marriage difficulties, and he cited the Department for Work and Pensions programme of £39 million on reducing parental conflict as the solution.
Jim Shannon
The hon. Gentleman mentions my comments to the Secretary of State last week. I do feel that the opportunity for Relate and marriage guidance should be available, as the hon. Member for Congleton (Fiona Bruce) said, before the marriage starts but also as the process comes to its end. It should not just be available in the early stages—I understood from what the Secretary of State said that it would only be available early. Is it not important that at all stages the chance to reconcile and save a marriage should be paramount and should be tried in every case?
Sir Christopher Chope
I agree with the hon. Gentleman. My regret is that the Marriage Guidance Council ever changed its name to Relate because I do not think that as many people understand what Relate is actually about. Of course, after the hon. Gentleman put that point to the Lord Chancellor, there was a non-response—I think that is the generous way of putting it. Then my hon. Friend the Member for South West Bedfordshire intervened and asked about guarantees that the DWP programme would continue, because at the moment it is only funded for the next nine months. Again, there was no willingness to give any assurance from the Front Bench that that programme would be renewed or even that the Lord Chancellor would support such a renewal. That is why I am sceptical about all this.
The Lord Chancellor said that the aim of the Bill is to “reduce conflict”. He described it as being about the “legal process”, not about stopping the decline in the institution of marriage or, as he put it, “committed relationships”. He also conceded that this Bill is not going to make divorce less attractive, and he did not think it was intended for that end. However, surely this is a golden opportunity to expand marriage guidance services and to make them more easily accessible. It is an opportunity that has been missed, and that is why I shall be supporting new clause 1 if it is put to the vote.
Marriage is something that people have to work at, and I think most marriages will have had their ups and downs. The temptation now is that a party to a marriage going through a bad spell can suddenly, arbitrarily, unilaterally and without consulting their spouse terminate the marriage, and then within six months have a divorce, and I think that is highly unsatisfactory.
The Lord Chancellor seems to believe that nobody embarks on divorce other than in circumstances where the marriage has ended. May I draw his attention to the fact that one of the side-effects of this will be to facilitate the development of more sham marriages? A sham marriage can then result in a sham divorce, and sham divorces will be able to follow on much more quickly than they have been able to do hitherto. Ironically, I think this is going to promote sham marriage and all the abuse of our immigration law and other laws that that leads to.
This Bill is essentially introducing what I would call marriage shorthold, a legal agreement that can be terminated unilaterally after six months, without any evidence of fault. Is it not ironic that, while the Government are introducing marriage shorthold, they are seeking to abolish tenancy shorthold? Section 21 of the Housing Act 1988 allows a six-month housing tenancy to be terminated unilaterally after six months, without evidence of fault. What is the justification that the Government are putting forward for ending tenancy shortholds? It is because tenancy shortholds undermine security. What does this lead us to conclude? It leads me to conclude that the Government value housing security above marriage security, and I think that is a really perverse order of priorities.
I suppose, as a supply side supporter, I could be arguing that, in the same way that the supply side reforms in the 1988 Act—I was privileged to be a Minister in the Department of the Environment when we bought it in—had the consequence of increasing the number of tenancies and the availability of rental options, perhaps the supply side changes to our divorce law will have the consequence that people will feel they can enter into marriage more easily because they are going to be able to end it after six months if it does not work out. That is not a justification so far put forward by the Government, but I would be interested to hear from the Minister how he finds consistency in the approaches to shorthold tenancies and to shorthold marriage.
I think this Bill lacks ambition, and that is another reason why I am not going to be able to support it. I think it should be used as an opportunity to help address conflicts in marriage and between married partners, but it should not be designed, as I think it is, to undermine the institution of marriage in itself.
In conclusion, let me just say this. My right hon. and learned Friend the Lord Chancellor has repeatedly described himself as a doughty champion of family values, but I think it is significant that throughout the debates we have had on this Bill, he has been remarkably diffident about promoting the positive benefits of marriage, as many of my right hon. and hon. Friends have done during the course of this debate. Unless the Government accept the amendments before the House today—particularly, in my view, new clause 1—there will be no evidence to back up the Lord Chancellor’s assertion of being a champion of family values. Indeed, like a party to a divorce under this Bill, he will have absolved himself of any requirement to establish the facts. What a sad state of affairs that is.
Several hon. Members rose—
The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)
Order. Before I call the next speaker, I remind right hon. and hon. Members that because we are in Committee I cannot impose a time limit, but I am sure that everyone can see from the call list that there are still nine speakers. The debate has to finish at 6 o’clock. I am sure that hon. Members will want the Minister to have a good chunk of time to address the points that have been raised and the hon. Member for Congleton (Fiona Bruce) to have some time to respond. If everyone continues to speak for 15 minutes, not everyone is going to get in. I am just pointing that out and will leave colleagues to adjust their speeches appropriately.
Andrea Leadsom
I went into politics to make the world a better place. It has been my lifelong ambition since I was a kid to try to improve the world around me. The problem I have with this Bill is that it is just not clear that it does that. When I was four years old, my parents divorced, so I know first-hand what it is like to be the child of divorced parents. I have met so many of these people in my constituency surgeries. There are the estranged wives who say, “He’s a beep beep beep, he’s been horrendous, he does not turn up when he says he will, he’s been a terrible father.” Then the men come into my surgery saying, “She denies me access to the kids, she was unfaithful, she was this, she was that.” I have seen the problem of warring couples. Of course, as many colleagues have said, the children are often the ones to suffer.
Now we also have the more modern case where a couple cohabit and either do or do not have children, with the challenges for them of relationship breakdown and how they solve that. In recent years, since I have been a Member of Parliament, we have introduced civil partnerships for same-sex couples and then for opposite-sex couples, all designed to give people options, but ultimately, in my view, to help people have strong and happy relationships.
What do we do in this place if it is not to try to help people have better, happier lives—and what does that mean? I have heard an awful lot of, frankly, lawyers talking about the problems of this and the problems of that, the legal position here and there, and the financial position and so on, but ultimately this is about human happiness. What all of us in this place know is that human beings need to be together in communities. Just over the past few months, we have tested to destruction the idea of separating people into their single units to be lonely and isolated. We know that people want to be together, and yet what we never do in this Chamber is say, “We stand up for people being together and sticking together and loving each other, and we want to help them in every way we can.”
I really do not know what to make of this Bill, as someone who experienced divorce myself, and whose kids, now in their teens or early 20s, have friends whose parents split up and whose lives have been wrecked by the experience. I know so many people who have been through traumatic relationships. I also know lots of people who have divorced and got back together again—people whose relationships have been severely challenged and they have managed to find a way through it. I cannot see in this Bill any attempt to help them to stay together, to help them to get through a rough period, or to encourage them to stay together to focus on the children. It does not seem to me to do any of those things, which we all absolutely know are in the interests of a stronger and a happier society.
Jim Shannon
The right hon. Lady is outlining the issues clearly. I understand that when relationships break down there is anger, pain, and hurt, but at the same time there are also children, grandparents, and other family relationships. How important is it to ensure that there is time for people to consider those matters before the final step, which could be a detrimental and backward one, is taken?
Andrea Leadsom
I am grateful to the hon. Gentleman, because he brings me to my key point: I totally support the idea of minimising the angst, pain, and further acrimony of a terrible divorce, as that is in no one’s interests—it is not in the interests of the warring couple, and it is certainly not in the interests of any children—but we are not talking about the other side of the coin. We are saying to people, “You can get divorced much more easily”, and that, in my view, is a good thing, because if the relationship is irretrievably broken down, it is right to make the process much easier. However, statistics show that up to 50% of people later come to be sorry about their divorce, and as I said to my hon. Friend the Member for Christchurch (Sir Christopher Chope), that is because they still love their partner, or miss them, or because they are lonely. Yes, it might be because they are financially deprived. They might now be in a one-bedroom flat, whereas previously they were in a nice three-bedroom house with a garden. People may regret a divorce for all sorts of reasons, so why would we make this provision for six months? I literally do not get it.
Why not say that a couple can judicially separate after six months—they can move out of the family home, divide up their possessions, sort out arrangements for any children, decide who gets the cat and so on—but that they should at least then have a period of reflection? I simply do not understand. I think all the points have been made, and as a non-lawyer, I do not propose to get into that area, but I just feel that we are missing an opportunity to add to human happiness.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. I have now to announce the result of today’s deferred division on the Abortion (Northern Ireland) (No.2) Regulations 2020. The Ayes were 253 and the Noes were 136, so the Question was agreed to.
[The Division list is published at the end of today’s debates.]
Scott Benton (Blackpool South) (Con)
It is a pleasure to follow my right hon. Friend the Member for South Northamptonshire (Andrea Leadsom), with whose comments I completely agree. The community I represent contains some of the most deprived wards in England, and the magnitude of some of the social challenges in Blackpool is frankly enormous. When I visit our local soup kitchens, or work with community groups who help the most marginalised in society, I speak to many of those who are reaching out for support. There are, of course, a wide variety of different personal circumstances, and a plethora of reasons why people need additional help. It always strikes me, however, that some form of family breakdown usually lies at the heart of it.
The traditional family is a cornerstone of a strong society, and marriage is the glue that holds families together. Marriage creates a stable environment in which children can thrive, and we know that children born to married parents are more likely to go to university, get married themselves, and find long-term employment. Strong families and marriage provide the support and stability that benefits not just the individuals concerned, but society as a whole. Indeed, it is a sad fact that anything we do to weaken the family unit and marriage by making a divorce easier to obtain will result in greater family breakdown, and there will be more people falling on hard times and invariably presenting themselves for support at those community groups and food banks that I visit in my constituency.
The benefits of marriage speak for themselves. There is so much more that I would like to say on this, but I would like to associate myself with the comments made in the excellent speeches on Second Reading by my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) and my hon. Friend the Member for Congleton (Fiona Bruce), who highlighted many of the points that I would make this afternoon, had I more time.
I have reservations about this Bill and the message that it sends out to society. As a Government, we should be encouraging marriage and supporting the principle of the traditional family. If we introduce compulsory no-fault divorce in a six-month timeframe, the result will inevitably be an increase in the divorce rate and the problems within society that family breakdown creates.
One obvious way of mitigating the impact of the Bill is the provisions in new clause 1, which would ensure increased support for marriages and new support for couples where an application for divorce has been made to the court. Of course, there will be sad occasions when it may not be in the couple’s best interests to stay together, but I am speaking more generally when I say that it is in the national interest for couples to stay together.
Surely it would be an effective use of public funds for the Government to make available grants for marriage support services before marriage and during a marriage—that is, before couples appear before a court seeking a divorce. The estimated cost of family breakdown is £51 billion per year. In stark contrast, the Government’s forecast spending on relationship support in the last financial year was a paltry £10.2 million. So family break- down costs us £51 billion, yet we spend only £10 million trying to fix the source of it. Sadly, I am not sure that will make much of a difference.
A number of Government Members have expressed concerns about the Bill. It would go some way to show the Government’s support for marriage if they were minded to invest in relationship support, counselling and marriage preparation. Those programmes will make a significant difference. The Government’s own commissioned evaluation of relationship support provided in the UK found that counselling and relationship education resulted in statistically significant
“positive changes in individuals’ relationship quality, well-being and communication”,
and that couple counselling and certain types of marriage preparation were
“cost effective, providing substantially greater savings to society than they cost to deliver.”
The Relationships Alliance, a group that includes Relate, has published evidence on why good-quality couple and family relationships matter. In that publication, it stated:
“International evidence, including several randomised control trials, shows that relationship counselling or therapy can be effective in improving relationship quality, relationship satisfaction, conflict resolution skills, and wellbeing and mental health.”
Relationship support really does work, and it is clear that it would make a significant and effective difference. Services offered should be local and able to respond to a couple’s needs within days, especially given the minimum timeframe that the Bill currently specifies. I sincerely hope that the Government will see that the proposal in new clause 1 fits with their key policy objectives on divorce law reform, which include sufficient opportunity for reconciliation, and will therefore ensure that marriage counselling is made available to spouses when an application has been made for divorce.
Andrew Selous
When we had the Second Reading debate on the Bill not so long ago, the Lord Chancellor made the very good observation that if we were serious about strengthening marriages and relationships in this country, we needed to do so through what was termed
“the right end of the telescope”.—[Official Report, 8 June 2020; Vol. 99, c. 677.]
I think he meant that we needed to have a greater focus on three areas: marriage preparation; marriage enrichment; and marriage counselling when marriages get into difficulty and relationship support for all couples. I like the phrase used in the Family Law Act 1996, which talks about marriage and relationship support, and as I said on Second Reading, although I am an enormous fan of marriage and always will be, I will always stand up for people who have never been married and those who are divorced as well as those who are married. I think that that would go for all my hon. and right hon. Friends on the Conservative Benches and no doubt across the House.
Returning to the Family Law Act 1996, a previous Lord Chancellor, Lord Mackay, was absolutely clear at that time that marriage and relationship support services were an entirely necessary part of divorce reform. That was a good, sensible point, and I do not want this Government, of whom I am an enormous supporter, to depart from that principle. What worries me a little is that the Government’s position appears to have moved slightly away from wanting to try to support saveable marriages. I say that because the previous Lord Chancellor, talking of these reforms, said:
“Sometimes, a marriage will still be reparable at the point at which one spouse seeks the divorce”.—[Official Report, House of Lords, 17 March 2020; Vol. 802, c. 1431.]
The current law offers little opportunity for repair, but it was a clear commitment by the previous Lord Chancellor, not so long ago, that we should look at being able to save marriages even when a divorce is potentially imminent.
However, what the previous Lord Chancellor says contrasts with the view of the current Lord Chancellor, of whom I am also a great fan. I believe him when he says that he supports marriage and family life, but he did say that
“by the time a decision to issue a divorce petition has been made, matters have gone beyond that, to a great extent—not in every case, but in my view, in the vast majority of cases.”—[Official Report, 8 June 2020; Vol. 677, c. 95.]
I am a huge fan of the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk) , and I know that he is personally a great supporter of strengthening marriages and couple relationships, but perhaps he could explain why the Government’s position seems to have hardened a little in this area of marriage and relationship support over the past six months.
Looking at the figures, I note that in 2018 in England and Wales, there were 91,299 divorces. My parents also divorced, so I know the pain and grief that that causes. In some ways, I think it is a greater pain even than a bereavement. We know from academic studies that around 10% of people who engage in marriage counselling services, even when a divorce is starting to be undertaken, decide not to divorce. That would be around 9,000 divorces a year that potentially would not take place, were we to offer services that the previous Lord Chancellor seemed to say were sensible; Lord Mackay of Clashfern said they were an absolutely essential part of divorce law reform.
Sir John Hayes
My hon. Friend is making a compelling argument on an amendment that seeks to make what most sensible people would regard as a modest change to the Bill, which is simply to say that where we can support reconciliation, we will do so. The Government have been offered that compromise, and I am astounded, frankly, that they have not accepted it.
Andrew Selous
I agree with what my right hon. Friend says.
Eagle-eyed observers of the amendment paper will have noted that new clause 1, in the name of my hon. Friend the Member for Congleton (Fiona Bruce), and amendment 7 are identical. In fact, I have a confession to make to the House: neither my hon. Friend nor I wrote it. In case we are accused of plagiarism, I think it came from Lord Michael Farmer in the other place. It was a good amendment; it was raised in the other place a couple of months ago, and it has stood the test of time. When it was in the other place, I noted that it had the support of Conservatives, a Member of the Democratic Unionist party, the Liberal Democrat Front Bench and the Bishop of Salisbury.
From what the shadow Minister, the hon. Member for Stockton North (Alex Cunningham), said today, I think he supports the spirit of the amendment—not perhaps the actual words, but the objectives, as far as I understood him. My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee, also said he supported the spirit of the amendment, so I think we have a great deal of cross-party consensus on this issue, which I really hope we can take forward.
New clause 1 and amendment 7 need not actually cost the Government anything. Although “may” changes to “must”, the measure just says “make grants” in respect, effectively, of marriage preparation, marriage enrichment and marriage support, and the same for civil partnerships and more widely for relationship support. However, it does not specify an amount. We are not imposing a financial requirement on a Government who, my goodness me, are already struggling with enormous financial demands on them at the moment, but we are specifying where this work should take place, and on a very good evidential basis.
It was noted in another place, when the Bill was debated there, that support for marriage and relationship support has seemed to depend a bit over the years on the whim of whoever was Prime Minister and whichever set of Ministers were in place. That is a pity because, until recently, there has been cross-party support on this issue. Labour and Conservative Governments, ever since the Denning report of 1947, have seen it as core business, and there is a greatly increased need for it, not least because of lockdown, which has been referred to.
We know that family relationships are under enormous pressure in the pressure-cooker environment of lockdown at the moment. We also know that families coming through lockdown perhaps slightly better than others are often those where there are strong family relationships, and they have helped children and others to cope well. I know that Marriage Care, which contacted me after Second Reading, is having many people come to it asking for support that it and other members of the Relationships Alliance, which my hon. Friend the Member for Blackpool South (Scott Benton) quite properly mentioned, are unable to provide, because the financial means is not there, as Government support in the reducing parental conflict programme is quite narrowly focused on working couples where there is parental conflict—a laudable objective, but not actually wide enough.
Understandably, the Government are always nervous about new requests for spending, but the fact is that when these relationships go wrong, the Government pick up the tab big time. There is no debate about the benefits, the extra housing costs, the mental health support and other health support that will be paid out. We pay that out in our billions without question, so, as my hon. Friend said—and, indeed, as the Lord Chancellor said on Second Reading—let us put a bit more emphasis on the other end of the telescope to try to strengthen these relationships in the first place.
As we—hopefully—emerge from the pandemic, we need to rebuild not just a strong economy, but a strong society. All my hon. Friends were elected only last December on a manifesto that said absolutely clearly that a strong society is built on strong families. As one or two of my colleagues have said, we need evidence of that. That is a grand statement, with which we all agree. What are the actual building blocks to put that in place? I do hope that my hon. Friend the Minister, of whom I am a great fan—I was absolutely thrilled to see him be promoted—will give us some comfort on that, because very many of us really want to see it.
Sir David Amess (Southend West) (Con)
I rise to speak in support of amendment 1 tabled by my hon. Friend the Member for Congleton (Fiona Bruce), and in so doing I take this opportunity to praise her, particularly for all the work that she does in this and so many other areas, and our former colleague, David Burrowes, who also has done a huge amount of work on this issue. Amendment 1 would increase the minimal legal time period for divorce to 12 months, instead of the six months proposed in the Bill, and it is both necessary and sensible.
I toyed with thinking that I would not speak in this debate, because it would be a waste of time. I have been a Member of Parliament for a little while, and I have been a member of my party for more than 50 years, and when I first joined, the view that I have was the majority view. As each Parliament has gone by, I have seen some slippage, certainly among my colleagues, but I am delighted to be speaking now, because I have heard a number of speeches that I have been particularly encouraged by, including from a new colleague, my hon. Friend the Member for Blackpool South (Scott Benton). What a joy it was to hear my right hon. Friend the Member for South Northamptonshire (Andrea Leadsom) speak. My goodness am I glad that I supported her in her first attempt to become leader of my party. She addressed a whole range of issues in a succinct way, and I entirely agreed with everything she said.
This is not a debate about whether it is right that people live together and do not get married; it is not that sort of debate. It is a debate about marriage itself. Marriage is very popular in the Amess household at the moment. Last year, one of my daughters got married in America. It was one of these new-style weddings, where it is an open venue. Next week, I have another daughter in America who is getting married. My wife and I cannot be there, and it is saving us a huge amount of money. Next year, we will have another wedding here, which will be slightly over the top. Another daughter was due to get married this year in August, but as with many other colleagues, that wedding cannot go ahead and will be taking place next year.
I have many constituents who have been married for 70 years, and I say to them, “Aren’t you sick of each other?” They say, “No, we still love each other just as much as when we first got married.” I can hear my own father being asked whether he had ever had a row with my mother. He would say, “Only once, and that row hasn’t finished yet.” In my own household, my wife and I never row, because she is right about everything. Well, I give her the impression, anyway, that she is right about everything.
I say to my hon. Friend the Minister—I agree with my hon. Friend the Member for South West Bedfordshire (Andrew Selous)—that I and other colleagues are delighted to see him as a Minister, but, as my right hon. Friend the Member for South Northamptonshire said earlier, the Bill seems to treat this as a legal matter, and the emotional side just is not there at all.
When the House debates anything that can slightly be termed “moral”, the general public are not enamoured by that, because we as a class of politicians are seen as big-time sinners who should not have a view. I so agreed with what my right hon. Friend said, having represented first the constituency of Basildon, which in those days had the highest number of single parents in the country, and now Southend West. So many of us in our surgeries can see the impact of divorce at a practical level, and it seems crazy that we have people planning for their marriage for a year, two years or three years and it can now end in six months. That is quite extraordinary.
On Second Reading, the Secretary of State said that under the new law,
“the legal process of divorce will take longer for about four fifths—80%—of couples”.—[Official Report, 8 June 2020; Vol. 677, c. 104.]
There is a crucial caveat in that sentence that the House must be aware of, namely that the Secretary of State is talking about the legal process of divorce—that is only the time from the first application to the final decree. The problem with that analysis is that it does not take into account that the proposals in the Bill operate in a fundamentally different way from the current law.
In the current system the period of two years’ separation with or without fault or five years’ living apart comes before the legal process of divorce, and that accounts for about 40% of divorces. In the proposed system, the period of separation starts after the legal process has begun, so it is disingenuous to compare the length of legal divorce proceedings under the Bill and under the current law.
That is comparing the Pope with Donald Trump, frankly. It is simply not defensible to say that 80% of divorces would take longer under a six-month separation period, when 40% of divorces currently take more than two years.
Several hon. Members rose—
The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)
Order. A reminder that there is pressure on time. There are still quite a few speakers, who would be well advised to take pretty well under 10 minutes to allow everyone to speak. I call Sir Edward Leigh.
Sir Edward Leigh (Gainsborough) (Con)
I rise to speak to new clause 3, which stands in my name. It would replicate Scottish law, which replaces the two and five-year separation with a no-fault divorce after one year. It is a moderate compromise and I have no doubt that the Government will accept it.
I believe the Government are making a huge mistake. That is not just my opinion; the research is clear that liberalisation and expansion of no-fault divorce, wherever it has been introduced, has led to the most vulnerable in society being worse off. Look at the evidence from Sweden, Canada, and various US states—it all points in the same direction: we will have more divorces, and the worst-off will be hurt the most.
The Brining study in the US showed that 75% of low-income divorced women had not been poor when they were married. The Parkman studies show that, overall, women living in American states with no-fault divorce work, on average, 4.5 more hours a week than their counterparts in states with fault-based divorce. In this country in 2009, the then Department for Children, Schools and Families produced an evidence review that showed that a child not growing up in a two-parent household was more likely to be living in poor housing, to experience more behavioural problems, to perform less well in school, to need more medical treatment, to leave school and home when young, to become sexually active, pregnant or a parent at an earlier age, to report more depressive symptoms, and so on.
We now understand the intent behind the Bill: it is to make divorce easier and to propel more families, and particularly more women, into poverty. We know that, in reality, the Government’s intention is to speed up the divorce process, which they say will make it more efficient, but look at the side-effects I just described. Surely the cure is much worse than the disease? I realise that I am out of alignment with Government policy—a rare event for me—so I want to outline the purpose and rationale of the new clause. I admit it would constitute a rewrite of the Bill, but I think it is quite a moderate rewrite, and it accords with the central purpose of the Bill, which is to encourage no-fault divorce and, like it or not, to speed up the process.
Hon. Members will recall that the current law sets down the five facts that must be established before a divorce is granted. The separation ground does not require proof of fault, so we already have no-fault divorce, but the Government say the period is too lengthy. The problem campaigners have with the current no-fault divorce law is that it takes too long, and I agree. As Baroness Deech in the other place has said,
“the essence of the demand for reform is speed.”
I think the Government should be honest about wanting to speed up the whole process. Ministers do not like to be reminded that they are making divorce easier, but we must be honest: if a process is made easier, human nature being as it is, more people will do it. Of course, for many divorce is an agonising decision, but when married couples are having problems, the quicker and easier it is to get a divorce, the more likely they are to choose divorce, instead of choosing the hard work of talking out their problems.
My parents met at Bletchley Park during the war, and it was a great pleasure to attend their 50th wedding anniversary celebration in 1994, shortly before my father’s death. It was a shock for my sister and me to find some extraordinary and poignant letters written in the 1940s that showed our parents were clearly having enormous problems, but it was just as obvious that they were determined to make a go of it. People might say, “It was a previous generation,” but there were many couples like my parents in their generation. I owe them so much for keeping together and looking after us, and always being ready to help my brother, my sister and me. I am proud of what they did and the sacrifices their generation made, and I worry about what my own Government are doing in sending the wrong signal—sending the signal that marriage is not one of the most precious things in the world.
It has already been said that people can sign up to a mobile phone contract and be stuck with it for two years, in which they have to fulfil the obligations of the contract, but they can have a church or civil ceremony, profess lifelong fidelity before the law, before God, before friends and neighbours, and after just six months walk away. Basically, they just say, “I divorce you, I divorce you, I divorce you,” and that is that. What sort of message is our own Conservative Government sending to society? I believe we should be Conservative with a big “C” and conservative with a small “c”—socially conservative. I know that not a lot of people in Parliament agree with that message, but I have no difficulty with it. People out there understand what is at stake. In one poll, 72% of people said that no-fault divorce may make people more blasé about divorce. We do not need to look at a poll; it is obvious that it will make people more blasé about divorce.
Clause 1 abolishes all five fact grounds and replaces them with a system where one spouse can simply resign from a marriage and get a divorce in six months. My new clause would make a much less dramatic rewrite of the law. We can maintain the fault grounds for those who wish to use them, while substantially speeding up no-fault divorces, but still giving people time to reconsider. Far from giving couples in difficulty more options, this Bill takes them away. Is it a Conservative option to take away options, rather than keep them to provide people with different ways of getting a divorce if that is what they really want to do, and give them more time to reconsider?
We should think of the wife who is faithful to her husband for 30 years only for him to run off. She will have no way of getting a divorce that recognises who was in the right and who was in the wrong—that is taken away. Abolishing fault deprives spouses who wish to obtain a divorce on fault grounds any opportunity of doing so. We should think of the man or woman who is mentally or physically abused by his or her spouse. He or she will be unable to get any recognition of that through the divorce process. This new system will be blind to all suffering and to all injustice. The spouse being divorced against his or her wishes will have zero opportunity of contesting the divorce to try to save the marriage or to slow things down and plan for the future.
Sir John Hayes
But it is even worse than that because, as the Law Society points out, the respondent might not even know that they were being divorced. It will usually be a lady who is divorced by a man who has gone, as my right hon. Friend has described, and they might not know and then they would be divorced by January. That is the harsh reality we are facing and it is appalling that a Conservative Government should impose that on us.
Sir Edward Leigh
Some of our amendments make it clear that there must be proper service and a reasonable length of time, and the respondent must know that the service is being made. Those are quite reasonable amendments, and I suspect that they will all be resisted by the Government.
My new clause simply mirrors the approach taken in Scotland—quite a sensible jurisdiction, you might think. It would leave open the option of seeking a fault-based divorce, while reducing the separation periods to one year with consent and two years without consent. Just 5% of divorces in Scotland now take place on fault-based grounds, so it is there for the minority who need it, while the majority can choose a no-fault option. This is Scotland. It works and it is not unreasonable. I see no reason why we should not replicate Scottish law, and that is what my new clause does. I cannot understand why the Government have not chosen a more sensible route such as that, as it would be far less controversial. Members will recall that the public consultation on these proposals met with considerable resistance—80% did not agree with the proposals, but they were ignored.
One argument made in support of the Bill has been that the waiting periods for separation encourage or force couples who want a divorce quickly to use fault facts rather than separation facts. If we really are worried about people using the fault grounds to speed up their divorces and allegations of fault increasing acrimony, what is wrong with the Scottish approach, where people can get a no-fault divorce on consent grounds in just one year and where only 5% of divorces now allege fault? Why not make no-fault divorce an option for those who want it, rather than forcing everyone to do it the Government’s way?
Again, we should think of the most vulnerable in society. Let us consider what happens in Sweden, a place that many Opposition Members praise. Even the extremely generous Swedish welfare state has proved totally ineffective at breaking the link between family breakdown and poverty. The incidence of poverty among children in single-parent families is more than three times that in families with two parents. The number of Swedish households in poverty headed by a single parent is more than four times the number of households in poverty headed by couples. It must be emphasised that Parliament does not exist in a vacuum. The laws that we make here will have repercussions in every community in the country. Do we want more children to be disadvantaged? Do we want to see women poorer and working longer hours? Do we want to deprive innocent spouses of having their blame business being recognised in the divorce process? I hope that the answer is no.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
We have had a very wide-ranging debate this afternoon with some very impressive contributions from Members. I wish to focus on two particular areas of concern for me, which are my driving motivation for supporting the Government in bringing forward this legislation. They are the significance of fault in the context of divorce and, most importantly from a personal perspective, the impact that it has on children and their future life chances.
On the significance of fault, it is very clear from all the contributions made by hon. and right hon. Members in the Chamber that there is strong cross-party consensus about the importance of supporting effective, strong and stable relationships for the benefit of our society. All of us will have seen in our constituency casework those situations where relationships have broken down. For a variety of reasons, they may well not be the reasons that end up being cited as couples seek to part through the process of divorce. An example of that is domestic violence, which can be enormously difficult to prove. Abuse may have been going on for a long time behind closed doors, but the requirement to demonstrate fault and to demonstrate that through the legal process may lead to other issues being used as a proxy in a way that demonstrates something that is deeply unproductive for people who are seeking to bring an end to a relationship in the best possible interests of each party. For society as a whole, it may lead to us pushing our citizens down a route that forces them to bring about an acrimonious end to a relationship with all the damage that that causes to their family and their wider community of friends and neighbours when there is an alternative available to us that is represented in this Bill. Therefore, it seems that it is a positive step that we will no longer require people who wish to separate to enter into this deeply conflictual and damaging process.
Sir John Hayes
We are already in that place. There was a time when what my hon. Friend says is right—that fault had to be established to get divorced at all. But for a very long time now, we have had a legal circumstance where people could get divorced without fault by being separated, and the significant majority go down that road.
David Simmonds
My right hon. Friend makes a very powerful point, but we also need to recognise that the context of our society today is very much of the view that five years is a long time to wait and that the process that is required where fault is established in order to undertake the divorce more quickly is one that inevitably leads to this degree of conflict. Let me move on to the key point—
David Simmonds
If I may, in respect of others who wish to speak and time being short, I will move on.
This issue of conflict and the impact that it has on children is at the heart of the concern that I feel and, for me, the significance and the value of pressing ahead with this legislation. The organisations that I have cited previously in the discussions on this issue—the Early Intervention Foundation, Tavistock Relationships and the Local Government Association—have a huge stake in supporting children in our society. They may have a political or a religious affiliation or no affiliation whatever, but all identified that it is not the fact that a divorce is taking place, but the fact that there is conflict in the relationship between those two parents that causes the damage to children and their life chances. For me, that is incredibly important, and it is backed up not just by the evidence on the relationship damage caused by divorce, but, conversely, by very good evidence about the significance of really effective and positive co-parenting. Society, I think, has already moved in that direction. We see many, many examples of non-traditional couples, who are brilliant and effective parents, giving children a fantastic start in life. Of course, many of us enjoy and are positive about seeing that in the context of traditional marriage. However, we need to recognise that, when such a relationship runs into difficulty, the opportunity we can create through this Bill for a less acrimonious separation—to help preserve and support that effective co-parenting relationship between the two separating adults—is incredibly important for the future opportunities and life chances of those children.
Finally, I would like to make the point that I very much support what a number of colleagues have said about the significance and importance of counselling. When people have made the enormously important decision to get married, it is a very significant decision to move away from that, and counselling should be supported and made available as far as possible. However, that is not a reason not to support this legislation.
I am extremely passionate about the significance that the absence of conflict will have for ensuring that children, who could benefit from a constructive co-parenting relationship with adults who have none the less sought to divorce, is available to those children, rather than potentially perpetuating a situation in which acrimonious division between separating parents has a lifelong impact on those children for their futures. For those reasons, I remain strongly in support of the direction that the Government are taking.
Derek Thomas (St Ives) (Con)
Twenty-two years ago, I did a silly thing—I got married. It was not the marriage that was the problem; it was a fact that I coincided it with my wife’s birthday, thinking it would be a money-saving tip. It has been nothing of the sort, and it has caused me hardship on 27 June ever since. However, in tune with my hon. Friend the Member for Southend West (Sir David Amess), when we talk about the marriage, I say, “I would never leave my wife—I just couldn’t go through this again.” Again, that is not a negative; it is because I know the hard work that we have both had to put in to get to what is now a rich and fulfilling marriage, which is also raising three fantastic children.
The truth is that, in 22 years of marriage, the only involvement of the state has been when we signed the register and when we received the marriage certificate. I am fortunate to be one of those who still received a certificate when it was handwritten, and beautifully handwritten at that. The only thing I have received from the Government in support of my marriage is the certificate.
It is true that Parliament has played quite a big part in my marriage. It has not always helped. In fact, looking back, the last three years have made it somewhat stronger. However, I often think of my wife, as well as the many wives, husbands and partners around the House, having to go through a pretty torrid time because of the life that we have chosen.
I have some sympathy with the intention of the Bill, because if it can lead to easing additional acrimony in family breakdown, I would support that. However, I have risen to speak today in support of amendment 1 and new clause 1, basically because I believe there is an argument, as has been said already, for extra time and for extra money. I appreciated a lengthy conversation with the Minister before the debate last week—it was really helpful—and I appreciated and listened carefully to all that was said on Second Reading last Monday, but I believe there is something of an identity crisis for marriage, which has partly been exposed by this Bill.
I guess the question is: who owns responsibility for marriage—is it the Government, the Church or faith groups, the spouses themselves, or close family, close friends and society as a whole? I would suggest that all share some responsibility and some part, but today we are talking about the arrangements made in law when a marriage fails. Because the state sets the rules for the marriage to start and, sadly, at its end, it is my view that the state and the Government cannot shrug off responsibility for marriage itself.
As I have said, in 22 years of marriage, the state’s involvement has only been the certificate and signing the register at the time, and, as I have said, I am one of the fortunate people who received a handwritten certificate. My wife and I have enjoyed the support of the Church, close friends and family. That is not the privilege of many. Even if it was, the state has, over time, increasingly taken a back seat when it comes to helping marriages thrive.
With that in mind, it is imperative that the Government adopt these amendments, to give more time, to offer appropriate support, to give an opportunity for a marriage to be restored before it is too late and to commit much more finance towards tools and proven methods that help to strengthen marriage and family life, to avoid the devastating and acrimonious divorce proceedings that the Bill attempts to address. The arguments on those points have been made well this afternoon.
I will conclude, because I appreciate that time is short. The state taught me maths, English, science, rugby and even the Cornish language. It has never taught me how to have a strong marriage or any other relationship, how to manage my money or how to raise my children. As the Government consider how marriages can be brought to an end when necessary, we should also look at the causes of marriage breakdown and ensure that we provide support in all areas of life, not just academic support. Marriage, raising children and managing money are such a big part of today’s society—a part that the Government could do more to support.
Dehenna Davison (Bishop Auckland) (Con)
I rise to support the Bill and to outline my concerns about some of the amendments that have been tabled. As a proud Conservative, I fundamentally believe in individual freedoms, and I believe that current divorce laws inhibit that freedom in the broad, vague name of keeping families together. In reality, these laws foster conflict and blame, driving families even further apart and affecting children the most. To be the child of a broken home is not easy, but nor is it easy being the child of parents forced to stay together, witnessing their arguments, the sheer unhappiness and the downward spiral of their parents’ mental health. That can be even more damaging for a child than a divorce, particularly a divorce that can be carried out swiftly and without blame, as the Bill intends, allowing both parents to move on, regain their happiness and provide not one unhappy home but two happy and loving homes for their children.
Nobody enters into a marriage lightly. As my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) outlined in his typically well-considered speech, nobody gets married setting up to get divorced. Nobody enters into a marriage imagining or hoping that it will fail. Marriage vows often say, “until death do us part”, and that is taken very literally by many, but I believe that the death spoken of in marriage vows can occur without the loss of life; it can occur in the death of a relationship itself. It is a fact of life that sometimes relationships fail—marriages fail. Sometimes this is recognised by both parties, but in some circumstances, only one partner sees it. In those circumstances, the unhappy partner may be trapped in that marriage, with their spouse unwilling to accept it, ready to contest it or even to dither and delay and refuse to sign papers.
The hon. Member for Walthamstow (Stella Creasy) spoke about the importance of considering how the legislation we discuss in this place will have very real consequences for people in our communities. For our constituents—those we are here to represent—our existing outdated divorce laws can have real impacts. Let me give an example. A couple of days ago, I received a Twitter message from a young man thanking me for supporting the Bill on Second Reading, because for over two years, his mum had been trying to divorce his dad, but his dad refused to give consent. He spoke of the devastating impact that this had on his mum and on him, and of the bitterness, anger and hardship of living in a friction-filled home. In this place, we can help those people by passing this Bill.
I personally know people who are deeply unhappy in their marriages and are desperate to separate but are fearful of filing for divorce because they cannot afford the legal costs, should it be contested. Let me make this point really clear: a divorce should not be a luxury item. Our constituents on low incomes—those we are here to represent—should not be priced out of their happiness. Allowing blameless divorces and divorces without contest in the courts reduces the amount of legal representation needed and will help to keep the cost of divorce down.
For some in our society, our existing and outdated divorce laws mean being trapped in abusive relationships. There are women in our country behind closed doors pulling down their sleeves and putting on extra make-up to cover up bruises—women checking their bank statements, fearing that they cannot afford a divorce were it to be contested, and knowing that if it were, they would have to battle through the courts and face potential repercussions from their partner before they can escape. This Bill is for them.
On that note, I cannot support amendments 2 or 4. Giving those in abusive relationships the breathing space of submitting their divorce petition, knowing it cannot be unfairly dragged out by abusive partners, is a way to help them escape that coercive control.
Sir John Hayes (South Holland and The Deepings) (Con)
C S Lewis said:
“We are all fallen creatures and all very hard to live with.”
Since the fall from the state of grace, the prevailing condition of humankind has been imperfection. Because we are imperfect creatures the relationships we form are imperfect too. They are full of the joys, triumphs, disappointments and disasters that perpetuate through the human condition and that everyone in this place will have known during the course of their lives. So it is preposterous to suggest that a change in the process of divorce will iron out enmity or acrimony. The end of a love is by its nature acrimonious. It is full of disappointment and sorrow, and it will ever more be so. Let us not pretend that we are in a fairy tale, whereby if we change the business of divorce, we will change the content of that doubt and disappointment, for we will not.
As I said in an earlier intervention, the principal cause of that enmity is issues over children, and they will remain. The second cause is the sharing out of assets, and that will remain. Arguably the period of time that currently prevails gives a chance to sort that out, and certainly it gives a chance to take advice, to consider carefully, to contemplate and to reflect. One in 10 divorces that are begun do not end for that very reason—people do think again and when they think again, they often try again.
We are condemning many women, in particular, to a very sorry future, because for the most part it will be women who are left by men—not always, of course, but for the most part—and many will not even know they are being divorced, as the Law Society points out in its analysis of the Bill; divorce will be initiated, and women will learn that they will be divorced in a few months, but they will be given no cause, no reason, no justification and no explanation. That is what this Bill does. Thus I regard it as extraordinary that the imperfections that, as I say, have always been so are not recognised by this House as being bound to prevail regardless of this Bill.
Governments are imperfect, too. I spent 19 years on my party’s Front Bench, many of them as a Minister, so I know how imperfect Governments are. Governments bring legislation to the House that is ironed out during its scrutiny. I do not blame for a moment the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, because he is a new Minister, a good man and a fine fellow, and he would not be calling the shots on this, but I find it extraordinary that the Government have not compromised.
All the time I was in government—people on both sides of the House will remember this—I used to listen to arguments from both sides to allow legislation to develop and mature through scrutiny and argument. Many times, I would go to my civil servants and say, “Well, the point that the shadow Minister is making is right, isn’t it? We ought to take that on board.” Yet this Government have remained entirely resistant to the measured overtures of the Bill’s critics. We conceded on the point about fault, but all we asked was that the Government think again about the time. The duration could be 12 months, as recommended.
Jim Shannon
The right hon. Member will be aware that the Government have said that they are going to reduce it to six months, but is he aware that the pilot scheme was able to do divorce proceedings in three months? In other words, a quick divorce could become a really, really quick divorce if we follow the process proposed by the Government.
Sir John Hayes
Yes, if the Government carry on down this road, we will have Las Vegas-style drive-through divorces. The hon. Gentleman is right. The Law Society suggested 9 months, and it was 12 months the last time reform of the law was suggested some years ago, so I am astounded, frankly, that we have come up with six months. It is an imperfect world, but a still more imperfect Government and, most of all, a wholly imperfect proposal, on which the Government have been resistant to amendment or change in any way.
The second thing I want to talk about is learning, because we learn from listening. The Government issued a consultation, and completely ignored the fact that most of the respondents did not want what the Bill now proposes. Most people felt that, even where they believed that the law should be changed, it should not be changed in this way. This is the most radical reform of divorce, with no public appetite for it, which completely contradicts the Government’s own consultation. That is how bad this is. I have seen many pieces of legislation come before this House as I have endured and enjoyed many Governments of many colours, but I can rarely remember a Bill that I would be less likely to vote for than this one.
Sir John Hayes
I will happily give way briefly, but I do not want to truncate the Minister’s time.
Carla Lockhart
The Government did consult, and does he agree that, with three quarters of respondents disagreeing with the Government plans, this Government are making people disenchanted about consultations on such issues?
Sir John Hayes
With a mix of assiduity and diligence, for which she is becoming well known in this House, the hon. Lady has fleshed out my argument with the facts that I did not have at my disposal, so I am grateful. She is right. I mentioned that the consultation was not listened to, but she has shown just how much the Government ignored what they were advised by the people they consulted.
The third thing I want to talk about is time. It is absolutely right that we should take time over this sort of legislation, which is challenging by its very nature. The Bill is being rushed through the House at a time when we are enduring one of the worst health crises of all time—certainly, the worst in our memory—and families are under intense pressure and relationships are strained, inevitably. Yet the Government regard this as the right time to bring this Bill before us for consideration? I find that quite extraordinary—quite astounding.
In respect of time, let me say this. My hon. Friend the Member for Congleton (Fiona Bruce), who spoke at the beginning of the debate, is absolutely right that time is necessary so that people can engage with those services designed to encourage the very reflection I recommended. Counselling does matter. Time to think about how you are going to sort your life out, even if you cannot rebuild your relationship, matters. To limit that to a few months—what amounts, in practice, to a few weeks, because of the way the process is now going to work—seems to fly in the face of all experience, given what we hear from those engaged in that process of mediation and counselling.
Dehenna Davison
Does my right hon. Friend not agree, though, that a lot of that consideration is done before the point at which people will initially file for divorce? That six-month period is not really a six-month period, but is more prolonged.
Sir John Hayes
Yes, that is certainly true. Relationships do decline over time. Of course, my hon. Friend is right that in some cases the process of beginning a divorce will not be the start, but a fingerpost to a destination that had been established long before. In some other cases, however, a divorce will come as a complete surprise, because the Bill moves the emphasis towards the person who initiates the divorce and away from the respondent to such a degree that the respondent—usually, in my judgment, a woman—will be profoundly disadvantaged by this legislation.
Mr Evans, what a delight to have you in the Chair and to speak under your benevolent guidance. Finally, let me deal with the matter of family breakdown and children. A lot has been made of that in this debate. We know from all the evidence—I saw my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) in his place a few moments ago—and in particular the evidence from the Centre for Social Justice, that typically children do considerably worse in broken families. In broken families, children tend to do worse educationally and in all kinds of other ways. It is our job as a society to build strong and stable communities which comprise strong and stable families, and the Bill just will not support that objective. We want a better society. That is why we are all here across the House. Marriage is a key component in building that more wholesome and better society which will allow us to bring up children in a responsible and dutiful way to be the citizens of tomorrow.
The Bill undermines marriage, weakens families and risks weakening social solidarity. It is being rushed through the House by Ministers who refuse to listen to measured and moderate argument. If hon. Members do not agree with any of that, they can vote for it. On the other hand, if hon Members think that any of what I have said is meaningful, they should certainly vote against it. In doing so, they will be sending a signal from this House to the people that we care about marriage and, because we care about marriage, we want fewer people to be divorced.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
It has been a genuine privilege to hear the speeches today. They have been powerful, poignant and humorous, but above all, on every single occasion, principled. From whichever point of view people have approached this argument, it has been from a position of principle. As I say, it has been an enormous privilege to have heard it.
Before I respond to the amendments and new clauses, let me make some brief introductory remarks. First, there is a suggestion that the Government are somehow diffident about marriage; that is not so. We recognise—and we are not diffident about saying it—that marriages and civil partnerships are vital to society. Why? It is because they are a way in which couples can not only formally express their commitment to each other but, yes, contribute, through stable relationships, to stable communities. I support marriage and the Government support marriage.
Paul Girvan (South Antrim) (DUP)
On speedy divorce, the difficulty is that there is a statistic available that states that in 50% of divorces that have taken place—that is quite a high percentage—people regret going through the divorce process. The Bill will just make it all the more easy for it to happen.
Alex Chalk
If that is right—I do not suggest that the hon. Gentleman is wrong about the statistics, although I have not seen the study—surely if we are in favour of reconciliation, we should be in favour of a process that does not so irretrievably toxify relations, so that there may be the chance of reconciliation. Instead, we are accessories to a system that encourages people to sling mud—mud that ultimately they cannot substantiate, which means that people can end up branded as unreasonable without the court having made a finding to that effect. That, in and of itself, reduces the chances of reconciliation.
Sir John Hayes
I say this in the spirit of generosity that characterises my view of the Minister, but we conceded that point about fault. The amendment suggests that the Government support reconciliation, irrespective of the fact that the Bill gets rid of fault. The amendments are incredibly measured and moderate—the Minister must know that.
Alex Chalk
I do not suggest that any of the amendments are improper or immoderate, but not all of them would have the impact that my right hon. Friend calls for.
Alexander Stafford (Rother Valley) (Con)
The Minister knows my grave concerns with the Bill, especially about the quickie nature of divorce. Will he reassure me that the Bill does not undermine the sacred marriage vows that I, and so many hon. Members, have taken?
Alex Chalk
My hon. Friend is another example of an extremely principled individual who I know has misgivings about this Bill. I can give him that assurance, but I want to deal with that point specifically in the course of my remarks. He has spoken to me; he has principled objections that I have listened to carefully.
On amendment 1, let me begin by noting what appears to be common ground between all parties—namely, all are agreed that introducing a minimum period before someone can apply for a conditional order is a sensible way forward. Currently—this bears some emphasis—there is no minimum period. Using the online service, a divorce can currently be secured in a matter of weeks—it is currently an average of 17 weeks up to the conditional order, which the Government think is too short. That is why we have prescribed a minimum period of 20 weeks before the conditional order, and six months in total, to allow time to reflect and, in appropriate circumstances, to think again. Crucially, however, as a result of the Bill, that reflection need not take place in an atmosphere that is toxified by hurtful accusations.
I also stress the word “minimum”, because issuing an application does not start a sort of countdown clock, or a ticking bomb that proceeds remorselessly to the dissolution of a marriage; no, it simply imposes a minimum period which, on expiry, changes nothing. The court makes no order, until such time as the further active step is taken to apply for a conditional order. At that point, the marriage still endures, and a further minimum period is triggered. Once again, at the end of that period the marriage does not automatically dissolve; it persists until such time as a further active step is taken to apply for a final order. In other words, it takes three active steps before a marriage can be dissolved. It is no wonder that the impact assessment prepared in advance of this Bill—here I am in the unhappy position of gently disagreeing with my hon. Friend the Member for Southend West (Sir David Amess) who gave such a brilliant speech—indicated that around 80% of divorces are expected to take longer as a result of these measures. I respectfully suggest that that gives the lie to the “quickie divorce” label.
My hon. Friend the Member for Congleton (Fiona Bruce) wishes to extend the 20-week element to 46 weeks, so that a marriage cannot be legally ended until more than a year after the initial application, averring that it has irretrievably broken down. My first concern is that the amendment would not affect civil partners—that cannot be right, although I do not suppose it was deliberate. On the wider issue of the appropriate minimum period, to make a fair judgment we need an appreciation of the state of relations between the parties that typically prevails at the time a petition is issued—my hon. Friend the Member for Bishop Auckland (Dehenna Davison) made this point. Is it the case, as my hon. Friend the Member for Congleton said, that applications—which, by the way, cost £550—tend to be issued in a fit of pique after a row, or as she powerfully put it, on the “spur of the moment”, or does the issuing of a petition tend to come at the end of many months, or even years, of sorrow, pain, periods of separation and attempts at reconciliation, counselling, or all of the above? Overwhelmingly, I respectfully submit, it will be the latter. The solemn and grave decision to seek a petition is rarely taken lightly or impetuously. That assessment does not only reflect our lived experience of the world that we bring to these proceedings; it also reflects empirical evidence from the 2017 study by the Nuffield Foundation, which is the only recent large-scale study on this issue in England and Wales.
Fiona Bruce
I do not believe that I gave the impression, and if I did I wish to correct it, that the majority of cases would be issued on the spur of the moment, but I did say that I believed that some would be.
Alex Chalk
I am grateful to my hon. Friend.
On that issue, though, the 2017 Nuffield study noted that for people who have come to the hard decision to divorce and have begun the legal process of divorce, only one of 300 cases was known to have ended in attempted reconciliation. We believe that a total minimum period of six months, mindful of the circumstances that prevail at the time that it starts, is the proper—difficult, but proper—balance. We should bear in mind, too, that for those applicants who take the step after years of domestic abuse—again something that we have not really considered in this debate—six months may feel markedly or even unfairly onerous. Some people need to move on with their lives. Let us not forget the point made by the hon. Member for Stockton North (Alex Cunningham)—that 12 months would be especially harsh for couples who had already been separated for any length of time, not least because of the potential financial hardship. That, as I say, has a particular application for victims of domestic abuse, as they may be left in dire financial straits. Put simply, until they can sort out the divorce—until they can finish the process—how can they then move on with their lives, fund their lives, and fund the lives of their children?
Amendment 2 talks about joint applications. I will not go into that because I simply do not have time, but let me talk about sole applications. This is a really important point, and I have enormous sympathy with it. My hon. Friend the Member for Congleton effectively says that we should start the period when notice of proceedings has been received by the other party. I absolutely get this point. We entirely understand that no one wants to see respondents being ambushed; it would be nonsensical. I listened very carefully to what she said about this so powerfully on Second Reading. I will return shortly to the measures to address the risk. In fact, I will have to do it now because I am running out of time. In short compass, I spoke to the chair of the Family Procedure Rule Committee only this week. We would like, through that committee, to ensure that timings are imposed when people should serve these notices. That is a really good thing.
I anticipate that my hon. Friend will say, “Well, that’s very interesting, but why didn’t you put it on the face of the Bill?” My simple point about that is that overwhelmingly, whether in the criminal jurisdiction, the civil jurisdiction or the family jurisdiction, it is left to the rule committees to provide these rules. Indeed, there are rules for service of claim forms, particulars of claim and so on. It would create a strange imbalance if we had some rules in statute and some in the rules. It would create inconsistency that would be difficult for practitioners as well as, most importantly, for the individuals concerned. However, we entirely sympathise with the point and would want to see it addressed.
Amendment 3 seeks to prevent either party to a sole application for divorce from making any financial applications, pending suit, if the other party agrees to a financial application during the 20-week minimum period. While acknowledging the intention behind the amendment, such a restriction would introduce the scope for significant adverse financial impact on one or both of the parties, and, most importantly, on any children.
There is so much that I would love to go into, but I cannot, and I will have to write to my hon. Friends to give time for my hon. Friend the Member for Congleton to respond. We are unable to accept the amendments or new clauses. The points have been made very powerfully, but we are left with the position that this Bill, in the words of my right hon. Friend the Member for South Northamptonshire (Andrea Leadsom), will be pro-happiness because it is anti-bitterness. I commend it to the Committee.
Fiona Bruce
I thank the Minister for his comments about addressing with the Family Procedure Rule Committee the very great concerns that I have regarding shortage of notice. I look forward to hearing from him as to how that issue will be addressed. Obviously I would have preferred it to have been in the Bill, but I thank him for his assurance.
I am sure that the Minister will have heard the grave and fundamental concerns about this Bill, particularly among Conservative Members. By my reckoning, more than half of today’s speakers have spoken with deep concern about the implications of the Bill. Given, in particular, the weight and volume of opposition during this debate on the shortage of funding support for relationships, for marriage and for reconciliation, I am minded to test the will of the House on that issue and, in due course, to press new clause 1 to a vote. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)
I now have to say something, because we are moving into new territory. The Speaker announced yesterday that we will be using the new system in the voting Lobby, recorded by pass readers. I will not give the instruction to lock the Doors earlier than 25 minutes after this Division has now been called, although I expect that time to be reduced as the new system beds down. I urge all hon. Members to be patient during this process and, in particular, to observe the requirements of social distancing. I ask all hon. Members, other than the Front Benchers and Tellers, to leave the Chamber by the Doors behind me. Members should join the queue to vote in Westminster Hall to vote. Members should enter the Lobby and swipe their pass on one of the pass readers.
Robert Buckland
I beg to move, That the Bill be now read the Third time.
I thank hon. and right hon. Members from all parts of the House for their careful scrutiny of the Bill throughout its passage. I am deeply grateful to all those who have contributed to the debate in Committee today and on Second Reading last week. I acknowledge that there have been some dissenting voices on reform of the law—first, as a matter of principle—and differing opinions as to precisely how to reform it, but I am happy to make it clear that those contributions have been of no less value than those that have supported the purpose of the Bill and its approach to reform. We have been fortunate to have these debates enriched by the variety of viewpoints expressed.
During the passage of the Bill, Members have rightly raised questions about its potential impact on families, but I believe that it actually has marriage and families at its heart. It is for that reason that I believe so strongly in the measures contained within it. While no one wants marriages to break down, the proposals in the Bill are based on the very sad reality that some do. When they do, the law should seek to reduce conflict and to create the best opportunity for the parties to agree future arrangements. It is not for the law to try to keep a couple in a loveless marriage, and nor can the law in practice adjudicate on who was to blame for its breakdown. That is an intensely private and personal matter between the couple themselves.
This is a measured Bill that will bring much-needed reform. It is reform that many of its supporters believe is long overdue. It will allow parties to move forwards, not backwards, and it will deliver a legal process that reduces conflict and its impact on children while safeguarding the importance of marriage.
During its passage through both Houses, the Government have listened with interest and care to the issues raised. In the other place, there was debate concerning the law on financial provision on divorce and concerns that it, too, can drive conflict. Some Members in this place have also made that important point. My noble and learned Friend Lord Keen gave assurances that the Government would conduct a review of that area of law, which has remained unchanged for nearly 50 years. That is a substantial undertaking where we will need to be led by the evidence, which is yet to be gathered, and it is thus not a matter for this Bill.
We have also listened to concerns about the start point of the new 20-week minimum period prior to the conditional order of divorce, and we have given an undertaking that we will work with the Family Procedure Rule Committee to consider how court rules may provide for a requirement on applicants to serve notice within a specified period. We listened to concerns from the Delegated Powers and Regulatory Reform Committee about two delegated powers in the Bill that would allow the legal minimum periods for divorce orders and dissolution orders to be amended. Those powers will now be subject to the enhanced scrutiny procedure via the affirmative mechanism.
Beyond the Bill, many detailed changes will be needed to divorce procedure, court IT systems, online information and guidance. We will take the opportunity to look at ways to improve signposting to the services that can help couples when facing the prospect of a divorce and during the subsequent legal process. We recognise the value of relationship support and mediation services, which can play a vital role in addressing relationship breakdown. The Chancellor announced £2.5 million to fund research into how best to integrate family services, including the emerging family hub model. The Department for Education will ensure that strengthening relationship support is part of that research programme, so that vital work is completed in that area.
It is important to take a moment to focus on what the Bill does not do. I believe that that is necessary because I have been concerned about certain misconceptions that have arisen about it. First, it is not a quickie divorce Bill—quite the contrary. It will, for the first time, provide a new 20-week minimum period between the start of proceedings and the conditional order. Secondly, the Bill does not undermine marriage. It is a Bill to reform the legal process for divorce once the sad stage of irretrievable breakdown has already been reached.
Thirdly, the Bill does not in any way undermine the hugely valuable and vital mediation, counselling and relationship support services that can and do assist reconciliation. Finally, the Bill definitely does not come at the wrong time. Its current stage is the culmination of a lengthy process.
Andrew Selous
I apologise for missing the start of my right hon. and learned Friend’s remarks. I do not know whether he had a chance to watch any of the Committee stage, but looking at what his predecessor said on the Bill, there seems to have been a slight hardening of the Government’s stance in relation to counselling provision. The previous Lord Chancellor was open to that, but it seems that my right hon. and learned Friend is not quite as keen or does not think that there are so many possibilities at that stage. Could he address that specific point?
Robert Buckland
I am grateful to my hon. Friend for his continuing interest in, support of and commitment to issues relating to the family. They are values and views that he and I share. I take the view that this legislation is not the vehicle to deliver the sort of services and support that he and I want to see. This is very much about the end of the process, as opposed to what he and I think needs to be done well before that, to support families to help themselves, to enrich family life and to ensure that every proper assistance is given to couples who perhaps do not have the benefit of wise advice from parents or other support circles and might be dealing with the problems and challenges of every relationship alone, and who, frankly, could benefit from the wherewithal and the support that I know he believes in so passionately.
For that reason, I take what I would regard as a more direct and straightforward approach. I make no apology for that. I think it is important to be direct about these issues and not to conflate legislative process with policy progress. My commitment to my hon. Friend and to all others who are legitimately concerned about these issues is that, as a Government, we will work harder to co-ordinate, to bring together the strands of policy that sit with various Departments and to ensure that we have a family policy that is fit for the 2020s, in the way that he wants to see. I look forward to that continuing dialogue with him.
As I was saying, the Bill does not come at the wrong time, because its current stage is the culmination of a lengthy process that was delayed by a general election and a new Parliament. Its timing has nothing to do with the current covid-19 emergency. The Bill’s reforms will not come into force on Royal Assent, because time needs to be allowed for careful implementation. At this early stage, we are working towards an indicative timetable of implementation in autumn 2021. As I have said, the Bill will deliver much-needed reform in respect of which there is clear, strong and broad consensus. I again thank all right hon. and hon. Members for their contributions. I commend the Bill to the House.
Alex Cunningham
I thank colleagues who contributed to the robust debates we have had on Second Reading and in Committee. The Opposition are pleased to support the Bill at its final stage. We are correcting an outdated notion that the only reason two people should get divorced is if there is some blame to be laid. We know that that is not always the case in every relationship. Sometimes marriages break down over time—not always because one great wrong has been committed by one party, but because people change, situations change, and compatibility at one time is not always permanent.
It will always be a difficult time in any relationship for two people to acknowledge that the marriage is over, but it is still best for them to part ways. The best role that we as law makers can play in such a situation is to make sure that they are able to part quickly and amicably. This is not just in the best interests of the spouses; it is crucial in limiting the emotional pain felt by children left in the middle as their parents’ marriage is split apart. The Bill will help to limit the turmoil of divorce because it acknowledges that sometimes there just is no fault.
I have enjoyed the specific discussions on the amendments and new clauses and on how the Bill could be improved. Although the proposed changes did not make it into the final Bill, I hope Members will agree that there was real merit in many if not all the issues raised. On some cases, such as families in which the parents are unmarried not getting benefit payments, I hope that the Government will go away and reconsider their position.
I was a little disappointed that the Under-Secretary of State for Justice, the hon. Member for Cheltenham (Alex Chalk), did not have sufficient time when he summed up to address the issue of legal aid. I hope the Government will take that away and look particularly at the issues when there is financial abuse in a relationship.
As I have said, we have made great progress with the Bill in recognising how modern marriages, relationships and families are; it would be a great shame if we failed to recognise that across other policy areas. We do not oppose Bills for the sake of it; we want to do what is right. Today, we have achieved real progress that will have a real and positive effect on people at one of the most vulnerable points in their lives.
Sir Robert Neill
It is pleasure to see the Lord Chancellor in his place. I am sorry if the queue—or perhaps short legs—meant that I arrived just as he was getting to his feet. I did not get the chance earlier, but I pay tribute to the work of the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), who dealt with the Committee stage with great skill and commitment.
I welcome the Bill because, as I said on Second Reading, I am a one nation, mainstream Conservative who believes that it is as well to legislate for the world as it is rather than the world as it should be. That is what we have done with this Bill. Ultimately, a law that does not reflect the way people live their lives falls into disrepute. We are avoiding that situation with this legislation. I know that that is genuinely painful for a number of Members in this House, but it is also genuinely painful for anyone to go through the matter of divorce.
I was glad that my right hon. and learned Friend gave the indication that he did to my hon. Friend the Member for South West Bedfordshire (Andrew Selous), because he raised an important point about how we deal with assisting people through this most difficult of situations. I know of my hon. Friend’s good faith in this matter and that he will pursue that; many people have much sympathy with that point.
I wish to say one other thing. We will rightly remove the question of the need to prove fault and the contention and antagonism that that causes. I hope that we can now concentrate on the question of financial orders and children, and that we make sure that that can be done as expeditiously as possible. The other thing that could perhaps remove antagonism in the process is access to early legal advice.
I have always taken the view, as the Lord Chancellor knows, that we perhaps took too much out of legal aid funding in some areas; the removal of legal aid support for early advice in matrimonial matters was, I think, an error, and it does no harm to admit that. The Justice Committee has called in a number of reports for it to be reinstated. I accept that this Bill is not the vehicle for it, but I hope that, when the Lord Chancellor has discussions with the Chancellor and others, he will bear in mind that that would be a sensible, humane and civilised thing to do. In practical terms, it will be much better if mediation can be used to resolve many of those matters once the process of divorce is dealt with in a much less stringent manner, and it has been demonstrated clearly in evidence to our Select Committee that the best gateway to mediation and a much more collaborative approach to achieving resolution is through early access to a lawyer, because the lawyers are the gatekeepers of the mediation process. Money spent on that would, I submit, be money well spent both in terms of savings of court time and burdens on social services when having to resolve confrontational custody and child-related applications, and in terms of society as a whole. It would also be the decent thing to do. With those comments and with the knowledge that my right hon. and learned Friend the Lord Chancellor will take them on board, I commend the Bill the House.
Sir Edward Leigh
Introducing Third Reading, the Lord Chancellor said that this is not a quickie divorce Bill. It is a quickie divorce Bill—six months sounds pretty quick to me. The Lord Chancellor said it does not undermine marriage. This Bill does undermine marriage, because it can be dissolved without people giving any reasons at all—indeed, it forces people to get divorced without giving any reasons. The Lord Chancellor said it does not undermine reconciliation. Well, it certainly does nothing for reconciliation.
The amendments we proposed were moderate. We simply asked for more time—from six months to nine months or one year. All our amendments have been swept aside by the Government. In the last vote, we asked for more money to be given for reconciliation. The Government brought the full might of their machine to vote down our amendment—a very moderate amendment. Divorce costs us £50 billion a year, but we are spending only £10 million. In his introduction, the Secretary of State said that the Bill is not coming at the wrong time. It is the wrong time—precisely the wrong time, when relationships are under so much strain.
We have a fundamental principal objection to the Bill. The Bill furthers the claim that the present law is based on hypocrisy. Leaving aside the fact that no one has to allege fault, this is part of a liberal point of view that getting rid of any sort of moral compass in society and any pain means that society will suddenly become painless. No doubt the next argument used by our Government will be that our present abortion laws are based on hypocrisy, because anyone can get an abortion but they have to give a reason, so why not have abortion on demand all the way through? Or they will say that our present laws on euthanasia are based on hypocrisy, because in reality we all know that many people are not kept alive and their lives are quietly ended painlessly, so let us have euthanasia. We will have abortion on demand and euthanasia on demand, and we have divorce on demand.
I tell right hon. and hon. Members that if they get rid of pain, if they get rid of all moral compass, they will find that it is not the process of divorce that causes the pain; it is the fact of divorce and the fact that we have one of the highest rates of marital breakdown in the world. It is a bad Bill, it is a quickie divorce Bill, it comes at the wrong time, and we do not agree with it.
Sir David Amess
I am not a lawyer and I make no apology for that. We who are elected here come from all sorts of backgrounds, and whatever our background, we are equal and our voices should all be heard.
I heard what my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) said about fashions and all of that. When I was first elected to Parliament, Margaret Thatcher was the Prime Minister and Lord Hailsham was the Lord Chancellor. I fully accept that the world was different then. When I and people like me compare what our party is doing now to what it did then, it is a bit of a shock. If I fast forward to when Lord Mackay of Clashfern was Lord Chancellor—a wonderful Lord Chancellor, who is very much on the ball these days, even though he is over 90—and remember the position he took in 1996, I share his worries.
As I said earlier, I do not think this debate is about saying that people should not live together, or that it is about celebrating marriage. Regardless of how my right hon. and learned Friend the Lord Chancellor has explained the situation, I am worried that my party is giving out a message, and when messages are put out on social media and in the newspapers, that is what people grab. I am just a little worried that, although my right hon. and learned Friend, to whom I listened carefully, has reassured us about reconciliation and all other matters, it may just make a margin. I go back to what I said, to pick up on the point made by my hon. Friend the Member for Bromley and Chislehurst, that yes, people change, but at the end of it all, human beings are human beings and relationships are relationships. It is a big step to get married, and the fallout of divorce is truly shocking. The Minister, who did a wonderful job in summing up, responded to the amendments earlier, but I repeat that I would much prefer fewer people getting married, if marriage is no longer going to be fashionable, than see divorce increase.
The final thing I would say to my right hon. and learned Friend is that I think the whole House wants him to succeed with this legislation, but if he is wrong and I am right, and we see more divorces, I would be very interested to learn how the Government will deal with that situation. Obviously, I hope that my right hon. and learned Friend is right about what he wants to achieve, but I have been here and listened to many Ministers state things before, and of course there is a huge gap between their saying something and learning how it impacts five, 10, 15 or 20 years later. I just hope that on this occasion I am wrong.
Mr Richard Holden (North West Durham) (Con)
I intend to speak only briefly, but I would like to reflect a lot of the wisdom that my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) has brought to bear not only on this Bill, but on other Bills, such as on the Counter-Terrorism and Sentencing Bill the other day.
I speak as a supporter of marriage, but also as a supporter of the Bill. I think that, wherever possible, divorce needs to be amicable, and we need to remove blame as a necessity. In earlier stages of the legislation, we heard some hon. Members, including from my recent intake, speak personally of the pain they are going through at the moment with the blame levels in divorce. I disagree with my right hon. Friend the Member for Gainsborough (Sir Edward Leigh). I think the Bill does help remove some of that pain by removing some of the blame, and we are doing an important thing today in removing that.
I conclude by saying that I support the Bill, and I am glad the Government have brought it forward. As somebody with grandparents who have been married for 66 years and parents who are rapidly approaching their 40th wedding anniversary, I hope they continue, but I also hope, for others who are not in such a lucky situation, that the Bill will help remove some of the burden on them.
Question put and agreed to.
Bill accordingly read the Third time and passed, with amendments.
Jim Shannon (Strangford) (DUP)
On a point of order, Mr Deputy Speaker. Earlier, the deferred Division on abortion legislation for Northern Ireland was announced, and the votes were Ayes 253, Noes 136. My mathematical calculations indicate that there were 261 abstentions. My understanding would be that many of those people abstained because they felt the Northern Ireland Assembly should have been the body that looked at this. If we add the Noes, who voted against the abortion legislation in this House, and the abstentions, it comes to a figure of 397 out of 650. My point of order is: has the House expressed its true wishes in relation to this legislation?
Mr Deputy Speaker (Mr Nigel Evans)
I thank the hon. Member for his point of order. The short answer to that is yes: we only count the votes of those who actually vote. We do not know what lies behind those who abstain.
Divorce, Dissolution and Separation Bill [HL]
Thursday 18th June 2020
(4 years, 5 months ago)
Lords ChamberRead Full debate Divorce, Dissolution and Separation Act 2020 Read Hansard Text Amendment Paper: Committee of the whole House Amendments as at 17 June 2020 - large font accessible version - (17 Jun 2020)
Royal Assent
Thursday 25th June 2020
(4 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: HL Bill 114-I Marshalled list for Report - (18 Jun 2020)