Divorce, Dissolution and Separation Bill [HL]
Wednesday 5th February 2020
(4 years, 10 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.