Divorce, Dissolution and Separation Bill [HL]
Tuesday 3rd March 2020
(4 years, 9 months ago)
Lords ChamberDivorce, Dissolution and Separation Act 2020 View all Divorce, Dissolution and Separation Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-I(Rev) Revised marshalled list for Committee - (2 Mar 2020)
Lord Mackay of Clashfern
Member’s explanatory statement
This would extend the minimum legal period for a divorce from six months to one year (with the additional six weeks between the conditional and final orders).
Lord Mackay of Clashfern (Con)
My Lords, I understand that the question to which this clause is an answer was in the consultation and that the answer in consultation was 12 months, whereas here it is six. I just wonder what superior knowledge the Government had in mind in going to six months when the consultation seemed to say 12.
I have had some experience in this area, 20-something years ago. When I proposed the 1996 Bill, I put in 12 months—that is what I am asking for now; I am nothing if not consistent—but on that occasion Parliament decided that it should in fact be 18 months. Putting it up by six months is something with which I am fairly familiar, so I invite my noble and learned friend to explain the situation.
Lord Marks of Henley-on-Thames (LD)
My Lords, this amendment more than doubling the period before conditional order seems to be based on the proposition that the law obliging people to stay married for longer will either help children or encourage more reconciliations. In the debate on Amendment 2, speakers on all sides of the House demonstrated the fundamental commitment of us all to the welfare of children, who—as we all agree—suffer badly from family breakdown and its consequences. The noble and learned Lord spoke eloquently on that. For all the reasons given by many noble Lords in the earlier debate, I agree with those who have said there is no basis for saying that the children’s interests would be best served by denying or delaying divorce to one or both parties to a marriage who have determined on a divorce.
As for the second proposition, that keeping unwilling couples tied into a failed marriage for a longer period may lead to more reconciliations, the evidence is overwhelmingly to the contrary. The decision to divorce is a hard one, rarely taken lightly. Of course, changes of mind occur. Separated couples often get back together—sometimes successfully and sometimes not, as the noble and learned Baroness, Lady Butler-Sloss, pointed out earlier—but in every such case they make the decision to reconcile willingly, not because they are obliged by law to try to do so. In some cases, of course, divorced couples even remarry each other. Again, that step is open to couples after divorce and is dependent on free will, not obligation.
Once the decision to divorce has been made, forcing parties to stay married for longer than is necessary to confirm that decision serves no purpose. Enforced delay rarely leads to reconciliation. It extends the unhappiness and uncertainty. It infringes on the parties’ autonomy, preventing them making decisions for themselves, arranging their new personal lives and futures, making safe and secure arrangements for their children and organising their family finances. It also—most significantly, I suggest—extends the hostility between the parties, who are frequently embittered by divorce proceedings and whose embitterment starts to heal only when the divorce is finalised and they go about the business of joint but separate parenting or building new, separate lives. This Bill is all about reducing bitterness by removing fault from the actual process of divorce.
The Government have proposed a 20-week period—reflecting other jurisdictions, such as New York and Finland—as appropriate for the confirmation of the decision to divorce. No period will ever be perfect to the week, but my belief is that the 20-week period to a conditional order is about right and is supported by the evidence. I commend the Government for choosing it.
Lord Farmer (Con)
My Lords, I have attached my name to Amendment 21 tabled by my noble and learned friend Lord Mackay of Clashfern. As he said, his original Family Law Act 1996 required this longer period, and explicitly stated that this enabled the children and the finances to be resolved. Importantly, this meant that someone was not free to remarry before these important responsibilities from the former marriage had been put to bed. To quote my noble and learned friend, at Second Reading on the Family Law Bill, he said:
“A very important requirement in the Bill is the requirement that parties decide all arrangements relating to their children, finance and home before a separation or divorce order can be made… In making this change the Government have been influenced by those who responded to their consultation paper who were of the view that parties who marry should discharge their obligations undertaken when they contracted their earlier marriage, and also their responsibilities which they undertook when they became parents, before they become free to remarry.” [Official Report, 30/11/95; col. 703.]
I am fully aware that the report Finding Fault? Divorce Law and Practice in England and Wales states that the average length of divorce proceedings is currently six months. A six-month minimum period would therefore mirror current practice. A longer period would be punitive for those who need to divorce quickly. This would include those experiencing domestic abuse, as we have heard, with 15% of Finding Fault? petitioners citing physical violence.
To this I say two things. First, it seems that when it suits the researchers, behaviour patterns are accurate, so when 15% cite domestic violence, what they say is accurate. Yet as I understand it, one of the main reasons for this no-fault divorce—for removing fault from divorce—is that in the majority of cases, the reason given is either false or inaccurate.
Secondly, in the consultation preceding the Bill before us, in response to the question: “What minimum period do you think would be most appropriate to reduce family conflict, and how should it be measured?”, 1,044 people—33% of the 3,128 responses—said a year. Only 297—9%—said six months.
In their response to the consultation, the Government said:
“Those opposed to reforms proposed a minimum period of one or two years, depending on whether the application was joint or sole, or on whether the couple had children.”
In other words, those opposing the reforms should be ignored, even though they were in the majority. Remember the bigger picture of the consultation: 83% wanted to retain the right for an individual to contest a divorce. Only 15% stated that this right should be removed. Also, some 80% did not agree with the proposal to replace the five facts with a notification process. A mere 17% were in favour. However, the Government also said:
“Those who selected nine months or longer felt that this would enable counselling or mediation and proper reflection to enable reconciliation where possible. In particular, those suggesting a year or more felt that this would more properly reflect the importance of both marriage and divorce as significant life decisions, particularly in cases involving children or where one party wishes to remain in the marriage.”
This Bill takes account only of the worst-case scenario—domestic violence—and deems the application for divorce to be a one-way street towards a final order.
The Bill should also take account of good things happening. The Government have said that they wish to make sure that couples have sufficient time to reflect on the decision to divorce and that that reflection period may result in them pulling back from the brink. I have heard noble Lords say today that when someone applies for a divorce because of irretrievable breakdown there is no going back, but we are introducing a new element into divorce proceedings based on the applicant saying that there is one-fault divorce. For example, a husband who is having an affair with someone in the office and his wife has no idea about it, knows that all he needs to do is write a letter to the court and say that the marriage has irretrievably broken down. The wife has not been advised and this comes as a bombshell to her. There could be many instances like this where, because of the new procedure, a unilateral request for a divorce is not recognised by both parties.
Many people initiate divorce early in the new year, which is also a popular time for booking one’s summer holidays six months hence. We all know that that six months goes extremely quickly and, before you know where you are, you are in June when it was January. Likewise, a divorce which gathers momentum and is all over at the end of six months will seem to come around very quickly, especially for the party who has been unilaterally divorced. Time for reflection and reconciliation will be squeezed out.
If the Government were to accept the amendment, I would expect it to extend to Clause 4 and to civil partnerships.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, when the Government consulted in 2018 on the Bill’s proposals, a number of headlines suggested that we were introducing quickie divorces; indeed, in some quarters, that misapprehension may linger. However, in a sense, we are putting an end to them. Under our reform Act, applicants cannot apply for a conditional order until at least 20 weeks have passed from the start of the divorce proceedings, along with the current six weeks between conditional and final orders, and that is a minimum period. Of course, progression from one stage to the next will never be automatic.
Applications for divorce are increasingly made online and the Government’s updated impact assessment, which was published last April, projected that, under these reforms, on average we would be adding between nine and 10 weeks to the divorce process based on the expected impact of full implementation of online divorce. So we are certainly not reducing the overall time for the average divorce. Indeed, at present rather more than 80% of divorces take place sooner than the timescale set out in the Bill.
I acknowledge that there is no magic number as far as this timing is concerned. A single divorce law must work for everyone and, in introducing the new minimum period before conditional order, we have carefully considered what period would most effectively help applicants consider the implications of divorce and allow couples to reach an agreement on practical matters without unduly lengthening the process. That is the purpose of the minimum period. It is certainly not intended to be punitive in any way.
The question then arises: why six months overall rather than a year or even a month? The Government have reflected on the different views put forward during the consultation and, at that time, some key organisations broadly supported six months as a reasonable period to meet the emotional and practical needs of divorcing couples. However, they also noted that there could be problems if that period was longer. Indeed, a period substantially longer than at present could unduly delay necessary financial arrangements, for example, and it would be particularly unhelpful if a couple had already been separated for a long period of time before the application is made. We therefore made the judgment that six months strikes an appropriate balance that allows a better opportunity for parties to adjust and a reasonable period for them to consider the implications of the step that they are taking.
As I say, there is no magic number. It is a case of exercising judgment and we consider that the period of 20 weeks, together with the six-week period, is appropriate in the circumstances, and we would not propose to extend that period by way of amendment to the Bill. In these circumstances, I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Clashfern
My Lords, of course it is a matter of judgment. I had to do the judgment some time ago. The other angle which has to be taken into account is that when the divorce proceedings are finished, parties are apt to lose interest in their responsibilities under the marriage that has been terminated. I have seen that as a matter of fact from time to time. For example, fathers who desert find it very difficult to remember to pay the necessary support money to the deserted lady. That kind of thing can be made worse if the divorce has been completed before all the financial matters have been settled. However, I agree that this is a matter of judgment, and I beg leave to withdraw the amendment.
Lord Farmer
“( ) For the purposes of subsection (5), “the start of the proceedings” means—(a) in the case of an application that is to proceed as an application by both parties to the marriage, the date on which both parties apply for a divorce order, or(b) in the case of an application that is to proceed as an application by one party to the marriage only, the date when the notice of an application for a divorce order has been served to the other party to the marriage.”Member’s explanatory statement
This amendment seeks to address that, if the 20-week period begins as soon as the application is made, the respondent may have less than 20 weeks by the time they have been served notice.
Lord Mackay of Clashfern
My Lords, I support this amendment on the basis that it is not right that the length of the notice should be determined solely by the applicant. The present definition of the start of the application is settled by the rules of court. It would be a good idea if the rules of court committee examined this matter because if it is willing to change the present rule to a rule that accommodates the need to make sure that the respondent has received some kind of notice, either as a deemed service or as an actual service, at the start of the proceedings, that would be satisfactory. It would also be satisfactory if it were left to the rules committee because who knows what difficulties might arise? Nobody can forecast every possibility. If it was with the rules committee it could make the necessary adjustment later without recourse to Parliament. It is good idea that the rules committee decides this question. I think that is the best answer to it.
Lord Marks of Henley-on-Thames
My Lords, I rise to speak to the amendments standing in my name and that of my noble friend Lady Burt of Solihull. Amendments 8 and 9 concern applications for divorce orders, Amendments 11 to 13 concern applications for judicial separation orders, and Amendments 17 and 18 concern applications for dissolution orders in respect of civil partnerships. In speaking, I shall address the applications for divorce orders, but the others run in parallel.
Our amendments have one theme: the Bill starts the 20-week period leading to the conditional order with the start of proceedings. I see the point the noble and learned Lord, Lord Mackay, makes that that is not technically defined, but on any ordinary construction—the construction intended by the drafters of the Bill—the start of the proceedings is the issue of the application.
Concern was expressed at Second Reading and publicly that, under the Bill as drafted, the respondent may not receive notice of the application for a conditional order—this the point the noble and learned Lord was making—before much or all of the 20-week period has passed. He or she may not, therefore, have had time to consider his or her position before the proceedings are effectively determined, so the respondent could find himself or herself subject to a conditional order before even knowing of the proceedings. To that concern, some supporters of the Bill—which I strongly support—respond that to start the 20-week period only on service of the proceedings would encourage, or at the very least enable, unco-operative respondents to evade service or to refrain from acknowledging service, and that would frustrate the proceedings. This concern was mentioned by the noble and learned Lord at Second Reading. Our probing amendments are designed to encourage a search for a compromise by requiring an applicant to serve his or her application for a divorce order quickly, with provision for that applicant to apply to dispense with service, or to apply for an order that service be deemed. Those provisions would involve an obligation to ensure that the applicant knows of the proceedings well before a conditional order is made and, at the same time, to prevent respondents from seeking to frustrate the proceedings by avoiding service or not responding to them.
We have suggested a time limit of six weeks for service by the applicant—of the application for an order or for an alternative order—dispensing with or deeming service. We recognise the concerns of some, including those of Professor Trinder from the University of Exeter—I completely endorse her views on every other aspect of the Bill—but it is difficult, at present, to secure an order dispensing with or deeming service within a six-week time limit. I agree with the noble and learned Lord that rule changes could be made to speed up those procedures. There is a possible concern, also mentioned by some, that “service” needs better definition for this Bill. Perhaps it does, but that can be achieved.
Neither I nor any other noble Lord who supports these amendments is dogmatic about the precise definitions or time limits. At Second Reading, the Minister indicated an openness to discussion on this issue. I am very grateful to him for the time he and his officials have given to the discussions we have had between Second Reading and Committee. I hope that discussions with and within the department will enable a compromise to be reached which will achieve an acceptable balance between applicants and respondents and between simplifying procedures and avoiding injustice. We hope to discuss these issues further, including any necessary rule changes to implement a compromise and the procedures needed to bring about or clarify those rule changes, before Report.
Lord Farmer
My Lords, I shall speak now to my Amendments 5 and 15, which includes civil partnerships. If the 20-week period begins as soon as the application is made, the respondent may have less than 20 weeks by the time they have been served notice. There is even the possibility that they may not hear about it until the end of the period. We can all imagine scenarios in which this could have very negative consequences for the respondent in a sole petition who may have been unaware that the marriage was in the dire straits that a divorce application suggests. It also gives the applicant the advantage. One hears of parental alienation syndrome, where one party can persuade the children to come round to their way of thinking. Also, when it comes to talking about and arranging the finances, one party can find that they have been hidden away.
Lord Keen of Elie
My Lords, as I believe I indicated previously, we accept that we should address the service issue in the context of the Bill. Therefore, I can advise the Committee that my right honourable and learned friend the Lord Chancellor raised this issue with the President of the Family Division last week. The Family Procedure Rule Committee will be invited to consider the matter when reviewing the rules required to implement the Bill, including a rule requiring service of the application within a specific period following the issue of proceedings.
The rule committee has a statutory duty to consider whether to consult on rule changes. I hope it will decide to do so in order that wider scrutiny can be given to any proposals for achieving timely service. I also hope that through the increasing use of an online divorce service many respondents will be served quickly and efficiently by email, as the noble Lord, Lord Farmer, suggested. However, I am clear that the provisions in the Bill will need to work for the many cases that, at least in the short term, will continue to be dealt with through paper applications to the court.
Amendments 5 and 15 seek to provide in the Bill different definitions for the start of proceedings in respect of joint and sole applications. For sole applications, the practical effect will be to define the starting point for the 20-week period as the date on which notice of the proceedings is served on the respondent party. However, that will create the potential for new disputes as to when notice is served or received. The only certain way to evidence this is through an acknowledgement of service, if one is returned by the respondent. Such an approach risks handing too much power to a respondent party who wishes to frustrate the divorce proceedings by avoiding or disputing service or delaying the entire process.
Resolution, the leading body in England and Wales, representing over 6,000 family justice professionals, has identified this as the greater mischief. Its concerns are underpinned by evidence. The noble Lord, Lord Marks, referred to the work of Professor Liz Trinder. In her study, she found that no acknowledgement of service was returned by the respondent in a sample number of cases representing 13.7% of the total. That was only a sample, but it would amount to about 14,000 cases annually if extrapolated nationally. In the majority of cases where there was no return in the sample, this appeared to reflect a decision of the respondent not to co-operate with the process, whether they were opposed to the divorce in principle or simply wanted to make the process difficult for the petitioner.
The amendment creates new potential for mischief from a respondent who is not co-operative. The Government are concerned to avoid introducing new opportunities into the revised legal process for divorce for a perpetrator of, for example, domestic abuse to exercise coercive or controlling behaviour. It is a question of achieving the right balance. We consider that the right way to achieve this is by working with the Family Procedure Rule Committee to address the issue.
I shall deal with the entirety of the group of amendments beginning with Amendment 8, moved by the noble Lord, Lord Marks, and consisting also of Amendments 9, 11, 12, 13, 17 and 18. I thank the noble Lord for his consideration of this issue and our discussion of it. Amendments 8, 11 and 17 would amend the Bill to insert a new delegated power into Section 1 of the Matrimonial Causes Act 1973 and a new Section 37A into the Civil Partnership Act to enable the Lord Chancellor to make provision by order to set out a further minimum period within which a sole applicant must effect service of notice. Amendments 9, 13 and 18 would make that power subject to the negative resolution procedure and Amendment 12 would apply in judicial separation cases.
These amendments would add to the Bill further delegated powers that are simply not needed. We consider that the best way to achieve resolution of the service issue is to work with the Family Procedure Rule Committee to address the rules around service. The provisions of the Courts Act 2003 already provide a power for the Family Procedure Rule Committee to make rules of court regulating matters governing the practice and procedure to be followed in family proceedings, including the requirements for service. I am quite happy today to give a commitment that we will work with the Family Procedure Rule Committee to address these concerns over service. They already have the relevant statutory powers to address this. In these circumstances, understanding that these were put forward as probing amendments, I invite noble Lords not to press them.
Lord Farmer
My Lords, I thank the Minister for his explanations. I am to some degree heartened by him wanting new advice to be gained from the rule committee. In this instance, we wish him well and hope we can come to a sound agreement. I beg leave to withdraw the amendment.
Baroness Chakrabarti
Member’s explanatory statement
Omits new section 1(6) of the Matrimonial Causes Act 1973, as recommended by the Delegated Powers and Regulatory Reform Committee.
Baroness Chakrabarti (Lab)
My Lords, in moving Amendment 6 I shall speak also to Amendment 16, both amendments having been recommended by the Delegated Powers and Regulatory Reform Committee. The reasons set out in the DPRRC report are, in a nutshell, that the matters dealt with under the Henry VIII powers in the Bill are too central to its purpose and therefore not appropriate for the procedure, at least not as currently set out in the Bill. I hope that, in the light of that report, the Minister will consider either accepting my amendments or, perhaps, subjecting these powers to the affirmative procedure.
Baroness Meacher (CB)
My Lords, I rise to speak to Amendment 6, proposed by the noble Baroness, Lady Chakrabarti. I apologise to the noble Baroness that I did not get a chance to have a chat with her before this evening, as I had originally added my name to the amendment. As the noble Baroness explained, the Bill as it stands proposes minimum periods of 20 weeks and six weeks for the two stages of divorce and dissolution proceedings. I thank the Minister for the very helpful meeting we had last Wednesday, where he clarified that a statutory instrument to shorten the period for divorces would indeed be subject to the affirmative procedure. The question has been whether there is any reason at all why the Lord Chancellor should be given a Henry VIII power to reduce the length of either of the two periods through delegated legislation.
The Bill is very clear that, in a particular case, an application may be made to the court to shorten the period for the proceedings. For example, if one of the partners is dying and wants to sort out their affairs before they die, it would of course be perfectly reasonable for them to make an application to the court to reduce the period required. Also, if there is a need to protect an abused spouse, time may be of the essence. However, to shorten the minimum period for divorce or dissolution in all cases is quite another matter. We have to think about that.
The then Minister for Justice, Paul Maynard MP, emphasised in the Commons Public Bill Committee on 2 July 2019:
“The 20 week period is a key element in a reformed legal process.”
There is currently no minimum period, and with respect to the second stage, the Minister said that part of the objective was
“to improve the financial arrangements. People may wish to delay a little longer until such a point. It is not a maximum period; it is a minimum, and the process might well take longer.”—[Official Report, Commons, Public Bill Committee, 2/7/19; col.35.]
As the Minister knows, I expressed my concern at Second Reading about a future Lord Chancellor having the power to allow for a more rushed process, without proper parliamentary scrutiny. Certainly, the decision to apply the affirmative procedure to any statutory instrument reducing the time period is, in my view, an important improvement. The Government argued in a memorandum that the Lord Chancellor
“will be able to make adjustments to the time periods, for example, if policy considerations meant that it would be appropriate to shorten one or both of the time periods.”
I do not want to be difficult, but when I asked the Minister during his presentation to the Cross-Bench meeting what policy considerations might justify reducing the timeframe for divorces in a general sense, neither he nor the civil servants present could provide an answer. However, during the meeting last Wednesday, the noble and learned Lord, Lord Mackay of Clashfern, came—probably quite inadvertently—to the rescue and suggested a justification for the use of this power. The noble and learned Lord suggested that if, for example, there were repeated applications to the court to reduce the length of time from 26 weeks, then a more general reduction in the minimum period would be helpful. Repeated applications to the court are unhelpful to the people immediately affected; I imagine there are delays and all sorts of things, including perhaps costs.
This sounds a very sensible justification for the Henry VIII power. The concern of the Delegated Powers Committee, on which I sit, had been that Ministers at that point had offered no rationale for the Henry VIII power. Now, thanks to the noble and learned Lord, Lord Mackay, to whom I must give due credit, we have such a rationale, as well as confirmation from the Minister that the affirmative procedure would be applicable. I am therefore personally satisfied that this matter has been acceptably resolved—I had intended to say “satisfactorily resolved”, but it has certainly at least been acceptably resolved. However, I must emphasise that I am not, of course, speaking for the Delegated Powers Committee as a whole; I am speaking purely as one member.
Lord Keen of Elie
My Lords, under the procedures set out in this new Bill, something like 80% of divorces will now take longer than they otherwise would have done. Having regard to that, it is considered prudent that the Lord Chancellor should have the opportunity as matters develop to be able to adjust the timeframes under which provision is made for divorce in this Bill. What I refer to are future, unforeseen policy considerations, which might indicate that it is appropriate to shorten the length. As was observed, the noble and learned Lord, Lord Mackay of Clashfern, cited, as an example, a situation in which there were a multitude of applications to reduce the timeframe and it was felt that this directed us towards a conclusion that there should be an overall reduction in the timeframe, because it was creating particular difficulties. That is why these powers exist.
There are essentially there of them: one in respect of divorce, one in respect of partnership and one in respect of nullity of marriage. As the Bill was drafted, these statutory instruments would have been subject to the negative procedure, but, as I indicated during meetings with a number of noble Lords, it is our intention to amend that and to apply the affirmative procedure in order that Parliament may have oversight of any such proposed step. In these circumstances, and with that undertaking to amend before Report stage of the Bill, I invite the noble Baroness to withdraw her amendment.
Baroness Chakrabarti
My Lords, I am hugely grateful to the Minister and to the noble Baroness, Lady Meacher, who does not speak for the committee but is clearly a very important member of that committee. In the light of the assurances given, I beg leave to withdraw the amendment.
Lord Farmer
“( ) In the case of an application that is to proceed as an application by one party to the marriage only, there shall be no commencement of financial provision proceedings until the end of the period of 20 weeks from the start of the proceedings for the divorce order unless—(a) the other party to the marriage agrees to the commencement of financial provision proceedings, or(b) there is an application under section 22 for the court to make an order for maintenance pending suit.”Member’s explanatory statement
This amendment would ensure that there are no discussions about financial settlement for 20 weeks unless both parties agree or there is an application to the court for interim maintenance and financial injunctions.
Lord Farmer
My Lords, this amendment would ensure that there are no discussions about financial settlement for 20 weeks unless both parties agree, or unless there is an application to the court for interim maintenance and financial injunctions.
The 20-week period I refer to is dependent on the longer period argued for in Amendment 4, which was 46 weeks. If the minimum period is only 20 weeks before a conditional order is granted, a shorter legislation-free period would be appropriate. However, as I am arguing with my noble friend for a 46-week minimum period, waiting 20 weeks before even starting to sort out finances allows the genuine pause for reflection the Government say they are committed to.
There are already many divorces initiated which are not pursued to final order. That number might reduce considerably under a legislative framework that has no natural brake pedal. The Law Society supports the concept of a litigation-free period. I beg to move.
Lord Morrow (DUP)
My Lords, I support Amendment 7. It would carve out a specific 12-week period at the beginning of the divorce process where no financial provision proceedings may take place. Of course, this would not include cases where both parties agree to commencement of such proceedings, or where there is an application for maintenance.
This is a vital amendment, as it would act in the interests of vulnerable respondents and improve the chances of reconciliation. It serves to recognise that the parties to a marriage might have very different perceptions of the marriage at the point when a divorce application is made. It may come out of the blue for one party—we have heard that referred to earlier. They will need time, and it is not helpful to be plunged into the heat of battle over finances. Financial provision proceedings are by nature contentious and would serve only to undermine the chances of meaningful conversation between spouses in the initial weeks. I believe that keeping the first 12 weeks free from litigation would increase the possibility of the parties being able to discuss their marriage without having to take up entrenched positions.
All couples should be given an opportunity, perhaps even be incentivised, to consider the ramifications of divorce carefully and work towards saving their marriage. Some divorcing couples do reconcile and most of those do so in the initial weeks of an application for divorce. This initial 12 weeks is a key period to try to save the marriage.
Ministers in the other place have said that once one party has asked for a divorce, inevitably—in 100% of cases—it means that the marriage is over. But they fail to mention the more than 10,000 divorce proceedings that are dropped each year, while this position is also counter to their own policy objective of making space for reconciliation. I know that we could argue all day about the reasons for that and whether some of them are attributable to cross-petitioning, but no one can deny that some people embark on a divorce and then change their mind because they reconcile with their spouse.
In evidence to a committee in the other place last year, David Hodson OBE, a distinguished family lawyer and spokesman for the Law Society, argued strongly for a 12-week litigation-free zone. He told the committee:
“We are very keen for there to be a period of reflection and consideration, which is what we had in the 1996 legislation in another form, to give an opportunity to pause, reflect, talk, maybe to have counselling, maybe in some cases to have reconciliation and maybe for one party to get up to speed with the other party. It is the constant experience of divorce lawyers that one party may have come to terms with the ending of a marriage before the other, so we are dealing with a very different emotional timetable. This three months will not be of any prejudice. If urgent applications have to be made for interim provision, that is fine. It will not affect children or domestic violence, which are always separate proceedings. It just is a litigation-free zone for three months.”—[Official Report, Commons, Divorce, Dissolution and Separation Bill Committee, 2/7/19; col. 9.]
Writing into divorce law the concept of a three-month litigation-free period will send a vital signal of hope to divorcing couples that perhaps they can work out their differences. It will give them the time and space to attempt to do so. Most of the debate on the Bill has focused on the barriers to divorce which couples face when their marriage has broken down, but not much time has been spent discussing how many couples reconcile and want to have a strong marriage.
I do not think I need to remind the Committee of the impact of family breakdown in the United Kingdom. We have one of the highest rates of family breakdown in the developed world. Surely this shocking fact places a duty upon us, as legislators, to do something to keep families together if possible. We all recognise that some marriages are unsavable but the Government should not focus on those alone. In addition, we must do all that we can to save marriages which are savable. They exist: why else would we have a proliferation of marriage counselling services? Does our own experience of marriage not tell us that, too? Many marriages go through rocky periods where the spouses, and their family and friends, fear that the writing is on the wall. But then conversations take place, apologies are offered and accepted, and changes are made to behaviour and circumstances—and a few years later, the couple are happier than ever. Let us do something for them, not just the ones where all hope is lost.
Baroness Deech (CB)
My Lords, the phrase “the heat of the battle”, just used by the noble Lord, Lord Morrow, provides a very succinct and appropriate introduction to my amendment. Everyone who has spoken so far has been in agreement. We support the institution of marriage and civil partnership. We want people to be stable and happy, to avoid disputes, and to provide security and warmth for their children. We differ only on the detail of how best to do it.
The difference between the context of today and that of the last time divorce was debated is the social context: more varieties of relationship, more avoidance of marriage, less disapproval when things go wrong, and more individualism within and outside of the couple’s relationship. The enduring problem is the effect on children of the break-up and how to cope with the dismantling of the housing and financial structure created by the parents. They used to say, “Marry in haste, repent at leisure”; this Bill will put an end to that. It will be “Marry at leisure”—because so many people prefer to cohabit first—and “Repent or divorce in haste”.
I accept that the wish of nearly everyone is to remove as much dispute as possible from the divorce process: to get it over and done with, as quickly as possible, to reduce the pain. It is in that spirit that I am introducing Amendment 20. In their good intentions, the Government have put the cart before the horse. Divorce, whatever its basis, will be over and done with perhaps in weeks or months. But the financial settlement for the couple and their children will have a lifelong effect and is likely to take much longer to arrange than the divorce. It will contain all the bitterness and antagonism that this Bill tries to remove from the substantive divorce.
I have spoken many times about the iniquities of our outdated financial provision law and I will not rehearse them here, save to remind noble Lords that distinguished lawyers—and more importantly members of the public—find that law uncertain and overly judge-made, with little resemblance to the governing statute. The law has no public input, remains unreformed for half a century of social changes and is very costly. I have a list of cases where the legal costs amount to half or more of the couple’s assets. We must also remember that there is no legal aid, as the noble Baroness, Lady Chakrabarti, has reminded us. Those who must represent themselves are left to flounder without even the most basic knowledge of what principles of division they should adopt.
Children’s needs are neglected while the adults fight. Only this week, the Times reported that one-third of separated parents are avoiding child payments. The Government will not succeed in removing hostility from the divorce proceedings unless they bring the financial provision law into line. It is almost oven-ready, as they say, as a few years ago the Law Commission drafted a Bill to put prenuptial agreements on a statutory basis. All who know Scottish law can see that its system is far better, cheaper and fairer, with much less recourse to litigation.
I have on several occasions set out proposals for reform, now taken up by the noble Baroness, Lady Shackleton, in her Private Member’s Bill—the Divorce (Financial Provision) Bill. She is unable to be in her place at this moment, but she is in full support of everything that I am saying.
With the Government’s Bill before us relating to substantive divorce as distinct from the money element, there are further urgent reasons to achieve reform of the financial element of divorce. I will set these out, as they underlie my amendment. In brief, there is no point in trying to achieve the aims of the divorce Bill—to make divorce less acrimonious and harmful to children—if the laws relating to the division of money on divorce remain as uncertain, expensive and acrimonious as they are. Research has shown that the quicker the divorce, the less likely the parties are to come to an agreed settlement, and that they will be more likely to settle on financial matters when more time has elapsed. This does not augur well for consensus in the proposed new law.
Twenty-six weeks is a brutally short period, after which one can well imagine that the unsuspecting spouse is still in the house, reeling with shock, utterly without plans about where to live or how to manage in the future, and without legal advice. The time taken to reach financial settlement is often far longer than the divorce itself, and even more prolonged if the couple cannot agree and must go before a judge. Financial orders can take years, as we read recently in the media about the highest in the land. It is not advisable to apply for the decree absolute, or final divorce order, until the finances are settled, as there may be tax disadvantages if there is a considerable gap between the end of the marriage and the consequential financial transfers.
As explained to me by that experienced noble Baroness, Lady Shackleton, the court can adjudicate capital only when a conditional decree—what we used to call the decree nisi—has been obtained. The Bill enables a conditional decree to be obtained faster, but disengagement from marriage can occur only when finances are sorted. Thus the acceleration of the decree is valuable only if the law relating to finance is overhauled, and that too can provide some certainty.
Moreover, if a spouse is not satisfied with the financial settlement on offer at the time of a conditional decree, he or she may apply for the final divorce to be postponed. This is provided for in the Matrimonial Causes Act 1973 and carried over into the Bill, paragraph 10 of the Schedule to which says that
“the court hearing an application by the respondent … must not make the divorce order final unless it is satisfied”
that there should be no
“financial provision for the respondent, or … that the financial provision”—
the offer—
“made by the applicant … is reasonable and fair or the best that can be made in the circumstances.”
Again, the quick divorce may be thwarted by a spouse who is not happy with whatever has been offered and wishes to delay matters.
Lord Walker of Gestingthorpe (CB)
My Lords, the noble Baroness, Lady Deech, has spoken so fully and clearly on her amendment that it is difficult to find much to say in support of it without repetition. However, three points are entitled to a bit of expansion or repetition: first, prenuptial agreements; secondly, the extraordinary flexibility—or, one might say, disarray—of the reasons the court has to take into account at present in making a financial provision order under Section 25 of the Matrimonial Causes Act 1973; and, thirdly and lastly, the suggestion, which the noble Baroness modestly did not refer to, that her drafting of this amendment shows a degree of favour for her own preferred solution to the very difficult problem of general rules for financial provision.
I will take these points in turn. First, on prenuptial agreements, in the early days of divorce, the notion that an engaged couple might think about and discuss a future divorce was regarded as so shocking that it was ruled in English law as a matter of public policy that a prenuptial agreement was unenforceable. That rule has gradually diminished in importance and has certainly now disappeared, as was confirmed by the Supreme Court of the United Kingdom in the important case of Radmacher v Granatino about 10 years ago. What the Supreme Court did in Radmacher v Granatino was to take account of the premarital agreement, not to enforce it.
The suggestion is—and it is a powerful suggestion—that the courts should now go further and treat any premarital agreement as to the division of property and resources on divorce as being valid and enforceable so long as it was entered into fairly and so long as it was based on full disclosure of assets by each side of the marriage and full access to independent legal advice for each partner to the marriage. The Law Commission has made a very clear recommendation to that effect, which was in striking contrast to its failure to agree any other part of the changes that might usefully be made to financial provision.
Secondly, turning to the court’s discretion under the existing law as to what financial provision to make, there is an extraordinary provision that has been in force for many years. Section 25(2) of the Matrimonial Causes Act 1973 sets out a confusing list of eight disparate factors with no clear hierarchy or pecking order between them and no clear guidance to first-instance judges as to how they are to take account of these eight disparate factors in ordering financial provisions. Moreover, these eight factors were there long before 1973, since the 1973 Act was, of course, a consolidating Act. It has been very difficult to provide reliable and clear guidance to first-instance judges who have had to deal with these matters, sometimes on inadequate presentation of the facts and considerations in order to do justice.
In the case of White v White, which was decided about 20 years ago, the Law Lords, as they then were —and since then the Supreme Court—did their best to spell out, of the eight disparate factors, some sort of coherent code to be followed. The top court of this country has made heroic efforts to do that, but the result has been, I regret to say, singularly disappointing. It is also necessary to try to relate these factors, which have been part of the law for half a century, to the very different social conditions that we have today.
Surveys and research undertaken by numerous bodies—some working in conjunction with the Law Commission—have shown that there are wide variations in the way the eight factors in Section 25(2) are applied in different parts of the country and by different judges in the same parts of the country. That is not good for the administration of justice. It adds further stress and expense to what is in any event a sufficiently stressful and expensive procedure, especially if one has to take account of the possibility of appeals to higher courts because of the different ways in which the discretion is exercised. By contrast, the new rules for financial provision in Scotland, which are much clearer and which limit much more the extent of judicial discretion, are working well, as a recent survey has revealed.
Thirdly and finally, it has been suggested—I think politely—that the noble Baroness’s amendment is tilted in favour of her own views as to the amendments that should be made to the law. One simple answer to that is that it would be unsurprising if that were so, because she has of course spent a great deal of time thinking about it. However, she has been somewhat modest about the fact that they are not only her own views. The points mentioned specifically in her amendment, including the rule on prenuptial agreements, are not simply her thoughts. She was too modest to mention the fact that they have been embodied in two Bills which passed twice through all stages in this House without a single adverse vote, but which have never passed into law because neither Bill succeeded in finding a sponsor and getting through the House of Commons before the end of the relevant Parliament. Therefore, the matters specified in the amendment reflect the views which have twice been before this House and which have twice been approved by it, without becoming law. I support the amendment and commend it to your Lordships.
Lord Beecham (Lab)
The provisions of Amendments 7 and 17A clearly relate to an important aspect of matrimonial proceedings; namely, the financial settlement. The amendments seek to ensure that there are no discussions about such financial settlements for 20 weeks unless both parties agree. However, does this not illustrate the need for legal advice to be available to the parties, or at any rate to at least one of the parties, in the situation of a divorce? I understand that attempts were made to amend the Bill in that respect, but it was ruled that it was not possible to do so. However, will the Minister undertake to look again, or to persuade his colleagues in the Government to do so, at the issue of providing legal aid for matrimonial matters, particularly of this kind, where one party may well have insufficient resources to procure the necessary advice in this important area of the consequences of a divorce?
Lord Mackay of Clashfern
My Lords, I very much support Amendment 20, which the noble Baroness, Lady Deech, spoke to. Not very long ago, I got a fairly impassioned letter from a gentleman I knew who had recently been involved in a divorce. He said that one of the great difficulties in approaching that, which he found by no means easy, was that it was not easy to find out what was likely to happen in relation to finance, and that it was extremely difficult to guess. The reason for that primarily is that the present structure involves a very large amount of judicial discretion. Those of your Lordships who have had the experience of prophesying how a judge will react will understand the difficulty that you encounter with that kind of thing.
Discretion, as I think Lord Bingham said, is a departure from the rule of law, because the discretion becomes the rule not of law but of the judge’s wisdom or lack of it. I remember the old judge in the Court of Session when I first went there: Lord Carmont. He used to say that if you give a thing to a man’s discretion —he was not thinking of women at that time—you commit it also to his indiscretion. The limit of discretion is quite wide.
I thought about trying to do something about this in 1996, but I concluded that it was too difficult to try to mould it to what I was trying to do then. It is probably right that it should not be attempted as part of this Bill. On the other hand, it is mightily necessary to get on with it and get a framework that can be used in the majority of cases. It is true that some discretion may be required—you do not want the framework to be too rigid—but you want it to be fairly clear that this is the way the thing will work unless there are special reasons requiring the exercise of judicial discretion.
Lord Grantchester (Lab)
I rise to speak briefly in support of Amendment 20, to which the noble Baronesses, Lady Deech and Lady Shackleton, and the noble and learned Lords, Lord Mackay and Lord Walker, have put their names. From a lay, non-legal perspective, it has much to commend it.
While political parties and Governments hesitate to legislate on family matters, in particular divorce, the Matrimonial Causes Act 1973 has persisted over the legal landscape of marriage and divorce without being substantially updated by statute for far too long. For example, in recent times, uncertainty around the implementation in law of prenuptial agreements has resulted in bringing misery to many families, adding to the unpleasantness so often experienced at the difficult time of separation.
The noble Baronesses, Lady Deech and Lady Shackleton, are to be congratulated on their sustained attempts to bring greater legal certainty to couples through their Private Members’ Bills on financial provision on divorce. Resolution around finance should not be dependent on which judge may be allocated to a case, which even now can predictably lead to wildly differing quantitative outcomes. New Clause 1(c), proposed by Amendment 20, could lead to one party seeking to add financial pressure through the cost burden of legal pursuit and representation, knowing full well that the other party will have to bear a proportion, often a large one, of any litigation.
Although some may argue that a deep examination of each individual situation will bring forward the relative merits of each case and each issue, custom and practice is not a useful or fair guide to society’s changes in family life. It should be a matter for Parliament, not the legal profession. The next legal battle is already developing over cohabitation. The decision to conduct a review of sections of the Matrimonial Causes Act 1973 under proposed new Clause 1 must be taken by the Government.
I am grateful to the noble Baroness, Lady Deech, for tabling the amendment. I am also grateful to the other signatories to the amendment for sharing their experience and expertise with the Committee, as well as for highlighting the areas for review under the second part of the amendment. It is certainly unfortunate that the noble Baroness, Lady Shackleton, is unable to be in her place.
I urge the Government to think carefully about this amendment.
Lord Marks of Henley-on-Thames
My Lords, I will first address Amendments 7 and 17A, tabled by the noble Lord, Lord Farmer. These would prevent the commencement of financial provision proceedings, except for maintenance pending suit, for 20 or even 12 weeks on his alternative, in the absence of the consent of the other party.
I suggest that these amendments—like earlier amendments that restrict the choice and autonomy of parties to a marriage that has failed—are patronising. As I understand it, they are supposed to allow for periods of reflection. I am all for periods of reflection where they will do any good, but they usually do good if they happen before any divorce proceedings are under way.
There are many cases where, by the time divorce proceedings are commenced, a financial provision application has become urgent. This is particularly so where one partner to a broken marriage has remained in an unhappy marriage or is enduring financial hardship, and even in cases where both parties agree to a divorce, but not to the timing or the form of financial provision. One example is when a home should be sold.
It is very important not to hold up financial provision applications on a blanket basis, given that parties frequently stay together long after their marriages have in reality failed, either because they have to live together in one home for financial reasons, or because they decide to stay together for the sake of their children. Why should parties in their position then be made to wait further for financial relief, when delay may cause considerable hardship and unhappiness?
There is, of course, no compulsion on a party to commence financial provision proceedings immediately. I suggest that the timing should remain within the choice of the parties and—where there are such—their advisers.
There are many other cases where, by the time the proceedings are commenced, the parties are living apart. One spouse may be with someone else. Generally speaking, such parties know of the issues between them relating to financial provision before proceedings are brought.
Take for example a currently well-known case. It would be appallingly high-handed to tell a practicing QC, married to a prominent figure—who was very publicly living with someone else, whom he had committed to marry and who was expecting his child—that she would have to delay for 20 weeks before taking steps to secure financial provision in divorce proceedings without his agreement.
There is no good reason to debar financial proceedings once divorce proceedings are under way, so I oppose these amendments.
On Amendment 20, which calls for the review to which the noble Baroness, Lady Deech, has spoken so eloquently, I agree that a review of the law on financial provision is desirable. However, I do not think that the statutory requirement for such a review sits comfortably within this legislation, which is, and should be, limited to removing fault from the divorce process.
I take the view, eloquently expressed by the noble and learned Baroness, Lady Butler-Sloss, that the process of divorce ought generally to be kept separate from issues of financial provision. I would be happier for the Minister to commit to commissioning, in the near future, a wide-ranging consultation with a review of financial provision on divorce, with a view to updating an area of law that has become, for many, out of date and out of step with modern social mores.
I find in the terms of the noble Baroness’s amendment, borne out in her speech, and discerned and spoken to by the noble and learned Lords, Lord Walker and Lord Mackay, an element of prejudgment of what should come out of such a review. I am not sure that picking out the desirability of importing something like the Scottish provisions, the term of periodical payments and the enforceability of prenuptial and post-nuptial agreements, into what should be a wide-ranging and full review is the best path to conducting it.
I do not share the noble Baroness’s cynicism about the Bar, my profession, nor her view that no barristers support reform of the law in this area. Indeed, I support reform of the law in this area, in many ways on the same basis that she does. I certainly support her view that the law on financial provision is too complex and expensive. I endorse her view and that expressed by the noble and learned Lord, Lord Mackay, that there is scope for some kind of a framework or model for use in the generality of cases.
However, there is room for discussion on the extent of judicial discretion, as the noble and learned Lord, Lord Mackay, pointed out. On the term of maintenance payments, I am particularly concerned about the position of older applicants or those in ill health who would normally expect and be entitled to long-term provision. Cutting maintenance off in the short term might be a bad idea.
While I support the idea of a general review of financial provision, I hope the Bill will not be amended to incorporate a statutory requirement in the terms of the noble Baroness’s amendment—but I would welcome a commitment from the Minister to carry out a consultation and review.
Lord Keen of Elie
My Lords, I begin with Amendments 7 and 17A tabled by the noble Lord, Lord Farmer, which seek to allow one party to block applications for financial provision on divorce throughout all the new 20-week minimum period referred to in the Bill. That is an entirely new restriction for which we have seen no justifying evidence. Nor do we know the potential financial impact it could have on people’s lives. These amendments would still allow financial applications by agreement of the other party, of course, and would also allow applications for maintenance pending suit, but financial orders are not there just for one or the other party to the marriage. They are also there to make sure that, for example, the children’s needs can be met. I appreciate that applications for financial provision in respect of children can be made at any time under Schedule 1 to the Children Act 1989, but we hardly want to promote a solution that pushes people towards yet a further set of legal proceedings.
There is no reason to delay applying for an order that in most cases can come into effect only when the divorce order is made final. Of course, the financial adjustment between the parties has to be made at some stage, but it is in no one’s interests to restrict when an application can be put in train. Indeed, it is worth noting that only once an application has been made can the court direct the parties to undertake full and frank disclosure of their assets and liabilities. Furthermore, these amendments could have the rather perverse effect of allowing one party to effectively coerce or control the other by frustrating attempts to secure a financial settlement and essentially to use that as a delaying tactic.
We are not in favour of this amendment at all. The Bill seeks to set out a very clear revised process for divorce within the existing legal framework. That is what we are anxious to implement, without being diverted by additional qualifications or controls.
I turn to Amendment 20 tabled by the noble Baroness, Lady Deech. As I said at Second Reading, the Government are considering how to approach any reform of the law with regard to financial settlement. My officials on this Bill are already at work on how best to take this forward. Drawing on that, it will be necessary to essentially lay the parameters for a review that will require, among other things, knowledge and expertise from outside government, to build an evidence base and to assess the problems that the present situation creates.
I hear what is said about the wide diversity of awards that can be made under the existing law, and the potential benefits of embracing a system such as that reflected in the Family Law (Scotland) Act 1985 as a solution, but it is not a case simply of abandoning the present process of financial provision in the law of England and Wales and embracing that of another jurisdiction. There will be a great deal more than that to do. Therefore, to set a fixed period for review is not, I suspect, helpful, because we are going to have to produce very robust recommendations and proposals that will pass in this House and the other place, and that will require detailed consideration and detailed evidence. I cannot say that such a process would be concluded within a year.
Lord Beecham
Can the Minister respond to my request for the Government to look again at the issue of legal aid in matrimonial cases?
Lord Keen of Elie
The matter of legal aid is not within the scope of the Bill, and it is not the present intention to address it.
Lord Farmer
My Lords, I thank noble Lords for their contributions. I am saddened that mine was not welcomed more than it was, but at this stage I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
For the convenience of the House, when the amendment tabled by the noble Baroness is called, she may then have the opportunity to speak to it.
“Recording lack of consent
After section 1 of the Matrimonial Causes Act 1973 (divorce on breakdown of marriage) insert—“1A Supplemental provision in cases where one party does not consent(1) In the case of an application by only one party to the marriage for a divorce order, it must be recorded on the divorce order if the other party to the marriage did not consent to the divorce.(2) For the purposes of subsection (1) the other party shall only be taken to not have consented to the divorce if they have made this known to the court prior to the divorce order being made final.””Member’s explanatory statement
This would allow a party to a marriage who did not consent to divorce to have it on record.
Baroness Howe of Idlicote (CB)
My Lords, the modest but important point of this amendment would be to permit a spouse who does not want to divorce to have that fact placed on the public record. As I explained at Second Reading, I am concerned that this Bill facilitates a significant shift in power from the respondent to the petitioner, without proper regard either for the best interests of the respondent or any children involved.
This Bill as defined is a petitioner’s charter. Under it, the departing spouse will be able to apply for divorce without citing any reason and will get their divorce in six months. The other party to the marriage will not be able to do anything about it. They will find themselves on a high-speed conveyor belt to divorce with no way of slowing it down, no opportunity to contest, no way to seek justice and not even a reasonable period to prepare themselves for life after the marriage ends.
New subsection (3) in Clause 1 makes it clear that the court cannot seek to examine or verify the departing spouse’s assertion that the marriage has broken down irretrievably. The other spouse may think it is retrievable —and may be right—but under the Bill their option must be ignored completely by the court. Like many couples who contemplate divorce, the right kind of counselling advice may get them through their current difficulties and they might emerge with their relationship strengthened and their understanding deepened.
I suspect many noble Lords will know of those who have experienced such times, but this Bill totally disempowers spouses trying to save their marriages. For some in such circumstances—perhaps for reasons of faith or other personal reasons—being able to record that it was not they but their spouse who sought divorce will be important mentally, emotionally and perhaps even spiritually, but the Bill allows no recognition that it was their spouse who walked away, no acknowledgement of the wrong the innocent party has suffered.
A fundamentally different approach to the respondent is required and I hope that the Government will register the concerns that I have set out today and at Second Reading in this regard. I do not really regard this modest amendment as a satisfactory solution to the problem but it is a way of drawing attention to it. People in such a situation should at least be able to have a line on the divorce order to say that they did not consent to the divorce. If you are stripping people of the right to contest a divorce or get the justice of their situation recognised, this is the least we can do. I beg to move.
Lord Keen of Elie
My Lords, the Bill introduces the new option of both parties to a marriage making a joint application for divorce, which will allow them to approach divorce on the basis of a mutually agreed decision to bring a legal end to their marriage.
Consent in the context of divorce is a sensitive issue and I appreciate that it is unfortunate when one party does not wish to become divorced. The changes within this Bill rightly recognise that marriage is a voluntary union of two people who both wish to be with each other and it is therefore a marriage, not a divorce, that requires consent. The current court decree made under the existing law does not record whether or not the divorce has been contested, and the present concern may proceed upon a misapprehension that being a respondent to a divorce means accepting the blame for the breakdown of the marriage. That is not the case. The existing legal process seeks to determine only that a decree of divorce can be granted following the irretrievable breakdown of the marriage.
The law itself does not—indeed cannot—say who, if anyone, was to blame for that breakdown. It would not be helpful to allow the respondent to come forward in circumstances where they were content to be divorced but wanted to make clear their views about the cause of the breakdown. That would not assist. Indeed, it could provide the foundation for greater disharmony than would otherwise be the case if we were to maintain the present provisions of the Bill.
Giving a married couple the choice to make a joint application strikes the appropriate balance in these circumstances, and I invite the noble Baroness to withdraw her amendment.
Baroness Howe of Idlicote
My Lords, I am grateful to the Minister for what he has said. It is a probing amendment and has afforded me an opportunity to make an important point about speaking up for the respondent. I will reflect on the Minister’s response but, for the moment, I beg leave to withdraw my amendment.
Lord Farmer
“Report on the impact on divorce applications and marriage support
(1) The Secretary of State must publish an annual report on the impact of this Act on divorce proceedings and marriage, with the first report to be published no later than 18 months after the day on which this section comes into force.(2) The report under subsection (1) must include, but is not limited to—(a) the number of divorce applications made under the provisions of this Act by the sex and income of the applicant and respondent;(b) the number of married couples or civil partners who seek relationship counselling during the divorce process, broken down by the demographics of the parties and geographic location;(c) the number of children in the relationships subject to the divorce applications; and (d) a statement on the support services and marriage counselling available to married couples or civil partners as an alternative to divorce proceedings under this Act.(3) The report under subsection (1) must be laid before each House of Parliament.”
Lord Farmer
My Lords, I am not at all convinced by the Government’s family test statement for the Bill, which says that there will be next to no long-term impact on divorce rates and that marriage will be unaffected. They again draw on Exeter University:
“Concerns that the removal of fault will undermine marriage and prevent reconciliation are not consistent with the research evidence or international experience.”
As I said at Second Reading, research relied on by the Ministry of Justice found that marriage rates reduce by about 3% to 4% following the introduction of no-fault divorce, and the likelihood of divorcees remarrying declines by around one-third to one-half. As Professor Justin Wolfers says,
“the benefits of marriage (tying your spouse to a contract) are reduced in a no-fault world.”
Less marriage will tend to mean more cohabitation, an inherently less stable relationship form. The whole of society is affected when the contract of marriage becomes devoid of meaning.
How will it impact divorce rates? Such reform leads to an immediate spike in the divorce rate that apparently dissipates over time. Let us be clear: that spike is made up of people, adults and children. If couples are struggling to persevere, the introduction of no-fault divorce undermines an important cultural underpinning of assumed permanence to marriage which could push such marginal couples into divorce. I am not, of course, arguing that couples should stay together if there is irresolvable violence, abuse or conflict. It is unsurprising if the numbers drop back, given that people are marrying less and that the divorce rate is calculated as a percentage of married couples.
Because of the many and varied ramifications of family breakdown which we have heard about this evening, which include education failure, poor mental health in children, increased pressure on housing stock, loneliness and fatherlessness, which can lead to gangs and county lines, the Government should commit to tracking the trends that follow this legislation. It is very important to do so. It is not enough that the Office for National Statistics collects the data. That is not the same thing as the data being laid before both Houses. The Government need to publish reports on family stability, as they committed to do when the Welfare Reform and Work Act was discussed in this House.
History has shown that we need to pin the Government down when it comes to tracing family stability. During the passage of the then Welfare Reform and Work Bill, the coalition Government promised to introduce a new duty to report on worklessness and educational attainment. They said that
“alongside these statutory measures we will develop a range of non-statutory indicators to measure progress against the other root causes of child poverty, which include but are not limited to family breakdown, addiction and problem debt. Anyone will be able to assess the Government’s progress here. The Government are saying, ‘Judge us on that progress’.”—[Official Report, 9/12/15; col. 1585.]
Lord McColl of Dulwich (Con)
My Lords, Amendment 19A is in my name. One of the headline Conservative Government commitments in the relatively recent past was abolishing the couple penalty. The couple penalty, noble Lords will recall, was the unintended fiscal incentive for a couple with children on low to modest incomes not to live together or marry because of the benefits that would be lost. Abolishing this was a headline Conservative manifesto commitment in the 2010 general election. At that time the Government’s primary concern with respect to marriage was the removal of obstacles to marriage, whereas today, their focus in this Bill seems to be on removing obstacles to divorce.
In this context, I have tabled this amendment for two reasons. First, I think that as the Government engage with this new task, it would be wise to pause to reflect on the progress made in relation to the earlier task of abolishing the couple penalty. Given both the importance of removing the couple penalty to help couples commit, and the potential for easier divorce to inflame the commitment problem in the presence of an ongoing couple penalty problem, it would be premature to prioritise making divorce any easier until we have dealt with the couple penalty problem.
Secondly, we must understand the impact of the couple penalty on divorce itself. If a couple on low or modest income manage to marry despite the couple penalty, they will none the less feel the negative impact on their marriage in that, if they were to terminate it, they would experience some fiscal benefits. For this reason, it is very important that we understand the impact of the couple penalty on divorce rates.
The main mechanism identified by the Government for addressing the couple penalty was the marriage allowance. A fully transferable marriage allowance was proposed by the Centre for Social Justice, commissioned by the Conservative Party and chaired by the right honourable Iain Duncan Smith MP in 2007, and adopted by the then Conservative Party leader, David Cameron.
Some upper- and middle-class people scoffed at this proposal, stating sarcastically that they got married for love. The idea that anyone would fall in love for fiscal reasons was plainly nonsense, and the suggestion that the purpose of the couple penalty was to assist in this regard only helped demonstrate just how out of touch with reality the wealthy scoffers were.
The point was simply that, when a couple fall in love and decide that they want to be together, they have a choice about what form their relationship should take. If formalising their commitment through a “till death us do part” marriage commitment would cause them to lose benefits, they would be more likely to formalise their relationship in some other, less stable way.
The point of dealing with the couple penalty was that, if the tax and benefit design had the unintended consequence of making it harder for couples on low to modest incomes to formalise their commitment through marriage, with all its benefits for adult and child well-being, the couple penalty was a bad thing and should be removed. However, at the beginning of the 2010 general election campaign, Mr Cameron explained that a fully transferable allowance could not be afforded immediately and that we would start with a provision allowing a non-earning spouse to transfer 11.6% of his or her allowance to an earner spouse. He added that he wanted the allowance to be increased and that he was sure that in the course of the Parliament it could be.
The marriage allowance was not actually introduced until the very end of the Parliament, in 2015, and then only as an even more meagre 10% allowance. It has continued to be just 10% ever since. At 10%, the marriage allowance is so small that it barely makes any impression on the couple penalty, which remains very considerable. In this context, we must assume that the couple penalty continues to act both as an obstacle to entering marriage and as a pressure for divorce.
As the Government have moved on to prioritising helping people to leave marriages with greater ease, there is now an urgent need for them to address the couple penalty problem in order both to remove an obstacle to marriage and to remove a strain on marriages that we must assume provides a fiscal incentive for divorce. If the Government want to get this Bill through, they would be well advised to use the Budget to significantly increase the marriage allowance in order to be seen to balance their efforts to help people to leave marriages more quickly with efforts to strengthen marriage.
Lord Mackay of Clashfern
My Lords, I put my name to the amendment of my noble friend Lord Farmer with the view that, if it is easy to produce those results, it might be quite wise to do so.
So far as the amendment of my noble friend Lord McColl of Dulwich is concerned, I noticed that he said that the Bill was intended to remove an obstacle to divorce, but I do not really think that that is a fair way to describe it. As far as I am concerned, the Bill deals principally with an unnecessary irritant to the relationship between divorcing parties. It does no good: it does not establish fault or anything of the kind; it just creates the possibility of renewed ill feeling as a result of a rehearsal of what one party to the marriage thinks about the other party. That is often not particularly flattering and certainly not particularly comforting, and removing it does not seem to remove an obstacle to divorce at all.
Lord Keen of Elie
My Lords, I begin with the amendment moved by my noble friend Lord Farmer. The requirement sought within the amendment to report annually on the number of divorce applications is unnecessary, as this data is already publicly available and published in the Family Court Statistics Quarterly.
The amendment also seeks a requirement to gather data on the sex of applicants for divorce. This is also unnecessary, as official statistics already break down the number of divorces per year by the gender of the applicant. In addition, the amendment seeks a requirement to collect data on the income of applicants. However, such data would be unduly onerous for the courts service to collect and, more so, unduly intrusive for the applicants to supply.
The amendment also seeks a requirement to report on the number of divorcing couples who seek relationship counselling during the divorce process alongside relevant demographic information. Such information could not be provided without forcing divorcing couples to declare it, thus introducing an unnecessary burden at what is already a difficult time for them. The choice to seek such counselling during the divorce process would be a personal one for those involved.
In summary, as much of the information referenced in this amendment is already publicly available, the requirement to report on it would be unnecessary. As regards the other kinds of information referenced by the amendment, they would be not only onerous to collect but raise very real issues around what is appropriate from the point of view of demand placed upon applicants for the divorce process. I therefore respectfully invite the noble Lord to withdraw that amendment.
I turn to Amendment 19A. The noble Lord, Lord McColl of Dulwich, is persuaded that marriage brings many social benefits. The Government agree. However, if a marriage is broken down irretrievably, there is no virtue for the family involved or society at large in it continuing. This amendment would mandate an annual report to Parliament, which I presume the noble Lord, Lord McColl, intends to complement the data sought by the noble Lord, Lord Farmer, in Amendment 19. However, it is not clear how the survey would operate or exactly what it would seek to demonstrate beyond, perhaps, interest in the married couple’s allowance.
Divorce is something in which society rightly takes an interest, but it is also a deeply personal and often distressing matter for the individuals involved. While I respect the courtesy of the noble Lord, Lord McColl, in proposing that participation in his survey would be voluntary and anonymous, the Government believe that such an invitation would be unnecessarily intrusive in any event. At worst, many of those questioned might feel that they were being asked to justify the state of the ending of the marriage, which strikes against the whole intention of the reform, for which it would appear to me that wide support has already been demonstrated in the House.
There is also an issue of the point at which the survey would be conducted. People’s perceptions of the divorce process will change between the time that they make an application and secure the divorce—or some time after, when they have gone through the process and been able to address it with the benefit of hindsight. The Government believe that this amendment would reintroduce an element of conflict into the divorce process. It would certainly be intrusive for those engaged in the divorce application. In these circumstances, we would not be prepared to accept it, so I invite the noble Lord not to press it.
Lord Farmer
My Lords, I am again saddened at the response from my noble friend the Minister. I may have misunderstood something but, to my knowledge, my amendment did not seek to find out any financial information. This report was to be put before Parliament so that it could respond to this Bill—the unilateral or no-fault divorce Bill—when it becomes law.
It is quite a big Bill on marriage to come through Parliament and become law. It is very important to me that Parliament can respond to the response to the Bill shown in marriages. How many people are getting divorced? Is it more? How many children are involved? What sort of support services are involved? Is there marriage counselling? There are all those things. It is important for both Houses of Parliament to look back and say, “Is this good? Is it working as we intended?” I am sure that my noble friend the Minister is right that this information is available here, there and everywhere. However, we want it brought back to us in one body related to this Bill.
Therefore, I am saddened at that response. Obviously, I will go no further on this occasion but this may come back on Report. In the meantime, I beg leave to withdraw my amendment.
Baroness Deech
“Review of operation of certain sections of the Matrimonial Causes Act 1973
(1) The Secretary of State must conduct a review of the operation of sections 25, 25A and 34 to 36 of the Matrimonial Causes Act 1973 (the “Act”) to determine whether they—(a) properly reflect the patterns of family life of the present day,(b) provide for a system which is reasonably predictable in its outcomes from case to case, and(c) act to exacerbate the costs of legal representation which must be expended by parties litigating thereunder.(2) The review must in particular consider—(a) whether it would be appropriate for provisions akin to sections 9, 10 and 24 to 26 of the Family Law (Scotland) Act 1985 to be incorporated into the Act to assist the court in its determination of the matters to which the court is to have regard pursuant to section 25 thereof,(b) whether the operation of sections 25 and 25A of the Act in relation to the quantum and term of periodical payments is appropriate in the context of changes in the labour market since their entry into force, (c) whether agreements between parties (or prospective parties) to a marriage in relation to their financial arrangements should be presumptively binding on the court,(d) whether the provisions of subsection 25(1) of the Act are of meaningful effect in the majority of cases, and(e) any amendments to sections 25, 25A and 34 to 36 of the Act which may be necessary in consequence of the review.(3) The Secretary of State must begin the review before the end of the period of six months beginning with the day on which this Act is passed.(4) The Secretary of State must lay before both Houses of Parliament a report of the conclusions of the review and of any proposals which it makes within one year of the commencement of the review.”
Baroness Deech
My Lords, I thank the Minister for having spent some time with me and other supporters a week ago to discuss this. It was very constructive. If I do not press my amendment, it will be on the basis that he has given a commitment here to carry out a broad consultation on financial provision law, and indeed a speedy one. I offer a word of warning. I am worried about strong lobby groups that will try to take this over. Some of my best friends are barristers—I studied with them, taught them, regulated them, and I have been represented by them—but the eyewatering amounts that they charge in divorce is upsetting. I am married to a solicitor and I know that they get in on this act as well. I am not saying that they do not deserve it, but for poor couples who have no legal aid the legal costs are exorbitant. That is why I am worried about a consultation that is too heavily weighted towards the views of the legal profession. We need to hear from women’s groups and, indeed, from men; we need to hear from people who have been through a divorce—members of the public—and how it has affected them. We need also to remember that there is more than one feminist view on this. Indeed, as we might expect, there is a split between feminists on quite what the right outcome should be, financially, at the end of the divorce. I am grateful that the Minister has undertaken to have a wide-ranging and speedy review, so that the financial law will eventually get into line with the new divorce law.