Divorce, Dissolution and Separation Bill [HL]
Tuesday 3rd March 2020
(4 years, 1 month 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 McColl of Dulwich
(2) The divorce process under subsection (1) consists of three stages and must be accompanied by—(a) for the first stage, a statement by the applicant or applicants, if a joint application, on the filing of the application for a divorce order that they think that the marriage may have broken down irretrievably,(b) for the second stage, a statement by the applicant or applicants on applying for a conditional order asserting that the marriage has broken down irretrievably, and(c) for the third stage, an application for the final divorce.(3) The court dealing with an application under subsection (2)(c) must—(a) take the statement given under subsection (2)(b) to be conclusive evidence that the marriage has broken down irretrievably, and(b) make a final divorce order.”
Lord McColl of Dulwich (Con)
My Lords, I am very pleased to speak to Amendment 1 in my name. The Government have said there should be a minimum timeframe between petition and conditional order
“to give couples sufficient time to consider the implications of the decision to divorce and to agree practical arrangements for the future.”
They acknowledged that this is especially important because the digitisation of the divorce process could result in some parties rushing to divorce before the prospect of reconciliation has been fully explored. Importantly, they argue that the minimum timeframe provides
“opportunities for couples to change course.”
There are 27 references to reconciliation in the Government’s document, which includes the statement:
“But the law can—and should—have a role in providing couples with an opportunity to reflect on that momentous decision and to pull back from the brink if they decide that reconciliation is achievable.”
All of the Government’s sentiments about the proposed reforms sound well intentioned. However, proposed new Section 1(2) provides that a respondent who receives notice at the start of the divorce proceedings will do so with a statement from their spouse that
“the marriage has broken down irretrievably.”
The law is thereby designed to begin the divorce process with a statement that makes it inevitable. I cannot see how a respondent would feel that such a statement does indeed provide opportunities to change course. They will feel that the hammer has already fallen.
I do not believe that the wording of proposed new Section 1(2) is in any way consistent with the hopes for reconciliation expressed by the Government’s Reducing Family Conflict paper. A statement of irretrievable breakdown must clearly come at the end of the process, immediately prior to divorce, but designing the law in a way that asks one party to a marriage to make this very strong assertion right at the start of the divorce process is counterproductive.
Baroness Howe of Idlicote (CB)
My Lords, I am pleased to speak in support of Amendment 1 in the name of the noble Lord, Lord McColl, which I very much hope the Minister accepts. This amendment has two important virtues.
First, as has been noted, it creates an environment for the 20-week period during which there is a chance for genuine reconciliation. The divorces between 2003 to 2016 tell their own very important story. It must be right not to condemn the process to failure from the start by encouraging a statement of irretrievable breakdown without the need for any prior warning. Under the current law, the only way to move to irretrievable breakdown in the absence of unreasonable behaviour, such as adultery, is through a prolonged period of separation, such that a formal notice of divorce cannot come as a surprise. By contrast, under this Bill, being presented with a statement of irretrievable breakdown could be the first you know of a difficulty. How did such an extraordinary proposal get past the family test? I rather suspect that we are still waiting for the family test to take place.
The second virtue of this arrangement is that it treats the respondent with greater respect. One of the things that disturbs me most about this Bill is that it seems to have been fashioned with the interests of one party in mind—the petitioner—and demonstrates little or no regard for the respondent, or any children who might be caught up in the divorce process. It currently stands as a petitioner’s charter. The Bill gives the petitioner the power to suddenly announce that the marriage has broken down irretrievably, from which point there is absolutely nothing that the respondent can do to get any kind of fair hearing if they disagree. While this amendment does not completely reverse the shift in power from the respondent to the petitioner, it will at least give the respondent the opportunity to have a voice and express their perspective during the reflection period in the limited but important sense that the termination of the relationship is, for that time, not a foregone conclusion. The petitioner has made a statement that they think the relationship may have broken down but there is, in this statement, something of a question and an opportunity for the respondent to engage: they are not being presented with a fait accompli.
It may be that at the end of the 20-week period the response of the respondent has not resulted in the petitioner feeling that the marriage can continue. It may have brought them both to a place where they conclude that they need to make a statement of irretrievable breakdown but, crucially, the respondent will have been given a period of time during which they will be fully aware that the future of their marriage is in the balance and during which they can take steps, if they wish to do so, to see whether the relationship can be saved.
As our law, in providing the option of marriage, gives a couple the opportunity to make a lifelong commitment, something would be very wrong if that same law allowed one party to make without any prior warning a statement of irretrievable breakdown, from which point the other party would have no kind of credible voice to express a contrary view. This cannot be right, which is why I strongly support Amendment 1.
Baroness Butler-Sloss (CB)
My Lords, I was a family judge for 35 years and spent a great deal, if not most, of my time dealing with families who were divorcing. This is an excellent Bill and few of the amendments ought to go through, except for those of the noble Baroness, Lady Chakrabarti, on the Henry VIII clauses, which require consideration.
The view that I take about this Bill is strongly supported by Exeter University and the Nuffield Foundation’s detailed research, led by Professor Liz Trinder at Exeter, and by Resolution, which has 6,500 family solicitor members who care deeply about looking after their clients, as I know as an honorary member. I am sorry to disagree with the noble Lord, Lord McColl, and what has just been said, but the evidence from the research is that the majority of people know perfectly well when a marriage has irretrievably broken down. A respondent to whom such a matter comes as a complete surprise would be very much the exception.
The research shows that the current system, and any system that takes a long time, is likely to be adverse for the children. Children are extremely important and play an important part in the background to the Bill. One of its purposes is to get the divorce over so that children suffer less. There are various ways in which we could help the children more than we do, particularly through information. Parents who are deciding to divorce—the petitioner and the respondent—should be given an information pack which would explain the impact on the children of disagreements between the parents. Perhaps the most important thing I learned as a judge is that in almost every case the children love both parents, and if parents are seriously at odds with each other, they do not realise that the children love the other parent as much as they love them. Such an information pack would be extremely helpful.
The way in which the noble Lord, Lord McColl, wants to delay this is contrary to the current detailed research and earlier research in the 1980s and 1990s. All these amendments will not be helpful—other than, as I have said, the two amendments of the noble Baroness, Lady Chakrabarti—and I hope your Lordships will think that the Bill should go through largely unopposed.
Lord Morrow (DUP)
My Lords, I rise to speak in support of the amendment moved by the noble Lord, Lord McColl. I do so because I fear that a fundamental pessimism underpins Clause 1. It is an attitude that we have heard in speeches from Ministers and others to the effect that once a person files for divorce a marriage has by definition broken down. The Minister in the other place said that
“the moment one person decides that the marriage is over, it is indeed over.”—[Official Report, Commons, 25/6/19; col. 602.]
I question that. I do not think it is inevitable that a marriage, even one that has come to that point, is over. I prefer to allow room for reconciliation.
People can change their minds, and often do. Marriages can go through very rocky periods, yet come out the other side stronger than before. I am sure many noble Lords can think of examples. In my view, hope for reconciliation should be maintained for as long as possible, including into the divorce process. I believe reconciliation remains possible. I think that is borne out by the figures showing that each year the number of completed divorces is considerably lower than those applied for. At present, approximately 10% of divorce petitions that start each year are subsequently dropped. Couples do give their marriage another chance. I know that other explanations are offered for the shortfall: cross-petitions, petitions being re-filed on a different basis, and so on. I acknowledge all that, but are we really to believe that there are not some reconciliations within the thousands of divorces that do not complete? If there are any at all, they expose as false the assumption that divorce is inevitable after a divorce application is made. A Bill designed on that false assumption would clearly be flawed, so I am uncomfortable with Clause 1 as it stands.
At the very outset, the divorce process requires a definitive statement by the applicant or applicants that the marriage has broken down irretrievably. As I see it, that can serve only to close minds, inhibit dialogue and reduce the chance of reconciliation. The Minister in the other place described the 20-week period as “a period of reflection” but, under the Bill, the 20-week period starts out with assertion by one or both parties that the marriage has broken down irretrievably. That encourages not reflection but defeatism.
The modest change this amendment seeks to make is to reduce the sense of inevitability ever so slightly. Rather than applicants stating at the outset that the marriage has broken down irretrievably, they would have to state that it “may” have broken down irretrievably. Only at the stage of applying for the conditional order would we get to the assertion that the marriage has broken down irretrievably. This change would make the 20-week period one of genuine reflection in the hope of saving marriages. I believe it deserves noble Lords’ support, so I support the amendment.
Baroness Burt of Solihull (LD)
My Lords, I agree with the wise words of the noble and learned Baroness, Lady Butler-Sloss, and think that Amendment 1 is not helpful. It replaces the proof of irretrievable breakdown on the basis of a sworn statement at the outset, with that being proven only after a second sworn statement has been made after the time has elapsed for the conditional order to be made. I also dislike the wording,
“they think that the marriage may have broken down”.
It is a bit patronising. Leaving a further 20 weeks could make it more difficult for a spouse to leave an abusive relationship: “You only think our marriage is over, dear. Why don’t you come home with me and think again?” I realise that this is not consistent with my remarks at Second Reading when I spoke about periods of reflection, but I have had my own period of reflection in the intervening time. I have listened to the research findings already referred to by the noble and learned Baroness, such as those from the Finding Fault? study, which established that people do not initiate divorce proceedings unless they are sure that, for them, the marriage is over. We from these Benches will not support this amendment.
Baroness Shackleton of Belgravia (Con)
My Lords, I rise to support the noble and learned Baroness, Lady Butler-Sloss. I have been doing this work for 40 years. If the amendment is successful, people will file quicker: they know they will have to wait 20 weeks, or however many weeks, so they will put in their petition sooner. When a marriage has broken down, it is necessary to sort it out cleanly and without blame and delay. Delay causes grief. Uncertainty causes grief. Children get destroyed by uncertainty, which is why I have jointly tabled an amendment related to finance.
In relation to the breakdown of a marriage, I agree with the noble Baroness that it is patronising. It is not a charter for petitioners but a mutual charter to let people get divorced without the blame and shame of naming the person who is more at fault. For most marriages, it is not as simple as one party being 90% at fault and the other being 10% at fault, or one party being 100% at fault. There is mutual blame, so to suggest that that one party has to take the responsibility for being, effectively, the aggressor, causes grief. It causes grief to people who cannot operate on their own. Some people have the luxury of going to solicitors, but I really object to the suggestion that this is a solicitors’ or a lawyers’ charter to make money. When it is done online, it will be a great deal cheaper. There is a nice little industry in colluding with the solicitor on the other side to try to dream up grounds that neither party finds objectionable so that it can go through unopposed—but unfortunately, those grounds now have to be sufficiently serious to get past the very high bar that is being imposed, which means that blame has to be made. I do not see any benefit at all when one party—generally both parties—wants to get out of marriage in there being any further delays, so I do not support this amendment.
Lord Mackay of Clashfern (Con)
My Lords, I was not wishing to push myself forward too soon, but one has to look quite closely at the wording of this amendment, which says:
“The divorce process under subsection (1) consists of three stages and must be accompanied by … for the first stage, a statement by the applicant or applicants, if a joint application, on the filing of the application for a divorce order that they think that the marriage may have broken down irretrievably.”
The general rule is that one applicant is sufficient, and therefore there is no question of a requirement that they should agree that the marriage has broken down irretrievably at that stage.
I have not been a family judge for 40 years, but I have been concerned with this matter for even longer than that. As I said at Second Reading, I was concerned with cases where there were long debates and proofs about who was responsible for the breakdown of the marriage. I never found them to be of any practical use: they did not reconcile people—very much the reverse—and they were absolutely useless.
I am as strong supporter of the institution of marriage as I can be, and I have made that plain. Indeed, so plain was it when I introduced the corresponding Bill 20 years ago that I was invited to be interviewed on the “Today” programme—Ministers went in those days—by no less a person than John Humphrys. One of the first questions that he asked was whether I would care to be called the “Minister for Marriage” instead of Lord Chancellor. That suggested pretty plainly that he thought that I was trying to support the ordinance of marriage as far as practicable.
The situation here is that you are asking for a divorce, not applying for a consideration of something else. What is a divorce? It is an order that finds that the marriage has broken down irretrievably. Therefore, if you are going to ask for that, you must ask for it. There is no sense in saying, “I’m considering whether I should apply.” You either do or do not apply. If you apply, the process starts. However, of course I am all in favour of the idea that during that process people might come together. That happens, and there is nothing in the Bill that I know of to discourage it, except possibly the length of time involved. As I understand it, the result of the consultation process was that it should be a year, but a period of six months was chosen for the Bill. When my Bill went forward, I chose a year and Parliament increased it to 18 months. So it is not the first time that an attempt has been made to lengthen that period—something that will be considered later. However, the amendment does not appear to me to be right. If you are asking for a divorce order, the statement must state the ground on which the law allows a divorce.
Sadly, I agree entirely with what the noble and learned Baroness said about the children. Over the years, my experience in talking about and dealing with this issue in various ways is that, generally speaking, the children are devoted to both parents. They love them both, and when the parents separate in life or in the way that they treat one another, it tears the heart of the children, which is a terrible result. It is important that, before parents get involved in divorce proceedings, they think seriously about the effect on their children. On the other hand, there is nothing worse for children than being in a situation where their parents are continually at loggerheads. Sadly, the institution of marriage is such that it requires the loyalty of both parents all the time. If that stops, the result is, sadly, inevitable.
I entirely accept that my noble friend Lord McColl and those who support him would like to see reconciliation. I am entirely in favour of that, but I think that reconciliation is sometimes assisted when the parties see that what is required is an answer to the situation—when the marriage has broken down irretrievably and they are prepared to reach a conciliation. That does happen and there is every reason to support it happening during the divorce procedure, but I do not think that you can start the divorce procedure on the basis that it is going to happen.
Lord Harries of Pentregarth (CB)
My Lords, leaving aside the fundamental principle behind this amendment, there seems to me to be a real weakness in the wording of the proposed new subsection (2)(a), which says that,
“they think that the marriage may have broken down irretrievably”.
That seems so vague and unsatisfactory. Does the noble Lord think that this amendment would be improved and be worth further serious discussion if it instead said that they “intend to apply for an order on the grounds that the marriage has broken down”—in other words, that the first application would be a statement of intent?
Lord Mackay of Clashfern
My Lords, the unfortunate thing about that is that it is the application: once you have applied, you have carried out the intent. It is an application for a divorce, and the divorce procedure lays out what has to happen before the divorce is granted. When you apply, you are applying for a divorce. I cannot see any other possible way of proceeding. It does not seem to make sense to say, “I was thinking of applying—I was thinking of suing you—but I am still considering the matter.” If you want an order, you have to ask for it. That is essentially why I think this amendment has grammatical difficulties but also an enormous underlying theoretical difficulty.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I support the amendment moved by the noble Lord, Lord McColl, and the remarks of my noble friend Lord Morrow.
I have never been a judge to grant people a divorce, but I have been a minister for over 50 years, marrying people and endeavouring to keep families together. I am delighted that, over those years, people have come to me with the intention of divorce but made another decision on reflection. To this day, they are very happy families. After reflection, speaking to me and receiving advice, they were able to make another decision and heal the breach in the relationship.
The Government were elected on a promise to strengthen families and acknowledge that a strong society needs strong families. To the best of my knowledge, there was no mention in the manifesto of the no-fault divorce. I believe that time for reflection would be helpful. I would like this Committee and the Government to consider the amendment that the noble Lord, Lord McColl, has brought before us.
Baroness Chakrabarti (Lab)
My Lords, I agree with the noble and learned Lord, Lord Mackay, not for the first time. I particularly want to associate myself with the very humble reflections of the noble Baroness, Lady Burt, and the unparalleled expertise of the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss. I do not want to repeat what has been said. However, I might shorten what I say about other amendments if I make a few comments now, because I think the noble and learned Baroness, Lady Butler-Sloss, is broadly right: this is a good Bill that will generally not benefit from much amendment, subject to concerns of the Delegated Powers Committee.
As was rehearsed by many in your Lordships’ House at Second Reading, divorce is not generally a happy matter. I suspect that it is mostly in Hollywood cinema that people celebrate and have parties upon divorce. I have heard of such things, but they are perhaps the exception and not the rule. This is therefore an unhappy subject and an unhappy moment in lots of people’s lives—as it happens, a very significant portion of the population. For some people, it is a story of liberation after trauma; for others, it will be a matter of loss and trauma. It is not a happy matter. The law should be about legal protection and not legal fiction.
I understand the sentiments of noble Lords who would like people to reflect before they put themselves through this trauma. But I would have more in common with that sentiment if we were seeking to provide counselling for every adolescent and adult in the country, or, indeed, if we were seeking to reinstate the availability of legal aid for people contemplating and going through divorce. In my experience, good family lawyers will always go through a process of reflection with their clients before advising them to go through this traumatic process. Those matters, unfortunately, are beyond the scope of the Bill—I know this because I had a go. I am told by the Public Bill Office that reinstating legal aid for people with contested contact matters is also unfortunately not in the Bill.
In the future, I would happily talk to any noble Lords who want to persuade the Government that legal aid should be reinstated, at least for matters concerning the children. That would be a very good thing. As I said to the Minister, who very kindly met me yesterday, it seems perverse that if the state seeks to take your children you have access to a lawyer, but if your ex-partner is depriving you of contact you do not. That is a real concern, as are the issues about adequate provision for counselling, mediation and so on; provision is needed. I do not see how people will reflect and reconcile when they have extra hoops to jump through by way of legal process. For that reason, I hope the noble Lord, Lord McColl, will think again about this amendment.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, just as he did at Second Reading, the noble Lord, Lord McColl of Dulwich, has expressed his desire to ensure that those intent on divorce should have the opportunity to consider reconciliation. Of course, we agree with that, which is one reason we are building in a statutory pause: the new 20-week period between application and conditional order. It is also why we are retaining the two-stage order, as well as the bar on divorce applications in the first year of the marriage.
The noble Lord expressed concern, as did others, that the Government’s statistics give the impression that a significant number of divorce petitions never reach decree absolute. There is, however, no evidence that these represent cases of reconciliation. Indeed, analysis of court data by the Nuffield Foundation, referred to by the noble and learned Baroness, Lady Butler-Sloss, shows that the majority of non-completions are due to the technical difficulties of the legal process for unrepresented parties, the obstruction of respondents and, in some cases, protracted negotiations over finances. Indeed, a sample of 300 undefended cases were analysed, in which 51 were found not to have completed. Only one of those cases was identified as having ended in an attempted reconciliation. It is not only the recent Nuffield research that indicates this. Research undertaken by the University of Newcastle, following the Family Law Act 1996, also found that the decision to divorce was not taken lightly or impetuously; it was typically a protracted one based on months, if not years, of painful and difficult consideration.
I appreciate the intention behind the amendment; the noble Lord, Lord McColl of Dulwich, spoke of the profound importance of marriage to society and I could not possibly disagree with that. However, we believe that this amendment would have the potentially perverse effect of encouraging speculative applications. Someone facing marital difficulties might file an application saying, “I think my marriage may be over, though I’m not sure. I can always make my mind up after 20 weeks, or after as long as it takes.” As the noble Baronesses, Lady Burt and Lady Shackleton, observed, that is not the process that parties go through in reality. Indeed, as the noble and learned Lord, Lord Mackay of Clashfern, observed, it is inconsistent with the idea that you are applying on the grounds of irretrievable breakdown.
Applying for divorce should, of course, always be a last resort; certainly, we have seen no evidence that it is anything else. In the vast majority of cases, the applicant reaches the decision after considerable soul-searching and, indeed, after attempts have been made to mend difficulties in the marriage. It should never be seen as a warning shot. Divorce is not a remedy for marital difficulties; it is a remedy for a marriage that is no longer functioning because it has irretrievably broken down. It is right, we suggest, to continue to demand irretrievable breakdown at the point of the initial application as the grounds on which decree could then proceed. Of course, divorce should never be automatic, but again neither this Bill nor any other is going to make divorce easier for those affected by it.
We consider that the existing ground for divorce, namely irretrievable breakdown, should remain, and I urge the noble Lord to withdraw this amendment.
Lord McColl of Dulwich
My Lords, I am very grateful for all noble Lords who have taken part in this debate. I have been practising medicine for more years than I care to remember, and I have, almost every day, had to break bad news. I took a great deal of time to get over to medical students that this had to be done gently and with respect. Although my amendment does not seem to have much support, I hope that there is some way in which a person who wants a divorce can indicate to his partner what is in his mind long before he puts down an official request. Breaking bad news does not cost too much money. I beg leave to withdraw the amendment.
Baroness Howe of Idlicote
Member’s explanatory statement
This amendment would require the courts to take the wellbeing of any children in the family into account before granting a divorce order to end a marriage.
Baroness Howe of Idlicote
My Lords, I shall also speak to my Amendment 14 to Clause 3.
At Second Reading, I expressed concerns about how the proposals in this Bill would bring a profound shift in power from the respondent to the petitioner, because they propose that the petitioner should be able to initiate the divorce with no notice and that the respondent should have no right to contest.
Rather than exhibiting a balanced concern for both parties to the marriage, this Bill is, to a greater a degree than is wise, a petitioner’s charter. In its fervour to create a good outcome for the petitioner and the busy court system, however, this Bill demonstrates not only a lack of regard for the respondent but a complete lack of credible regard for any children involved.
We must not forget that this momentous life event we are debating in this Bill is not merely a life event for children but is officially classified as an ACE—an adverse childhood experience. Adverse childhood experiences greatly increase the likelihood of children facing damaging impacts on health and other social outcomes, such as alcoholism, misuse of prescription drugs, depression, heart disease and intimate partner violence.
My concern in tabling my amendment is that we must have the best interests of the children at the forefront of our thinking, not the objective of delivering the petitioner his divorce as quickly as possible. I am, of course, very aware that some have sought to argue that the proposals in this Bill—in removing fault—are motivated by a desire to minimise acrimony and to make the divorce process as amicable as possible, precisely because this will help any children involved. As I will demonstrate, however, this assertion, which at first glance seems to make sense, is in fact deeply problematic.
First, we need to understand that the vast majority of marriages that end at the moment are already low in conflict. Data from the survey Understanding Society shows that high-conflict warring couples are a rarity among married couples who split in the UK, comprising only 9% of those who split up. In contrast, 60% of married couples who split up were low-conflict and had reported a degree of happiness. Notwithstanding this fact, however, Judith Wallerstein, who conducted a 25-year study on the impact of divorce on children concluded:
“Findings from this study challenge the central assumption of our court policy: namely, that if parents refrain from conflict, issues around custody, contact, and economic support will be settled expeditiously, both parents will resume their parenting roles, and the child will resume her normal developmental progress. But it is manifestly misguided to expect that muting conflict between divorced parents by itself will reinstate the course of parenting observed in intact families.”
Lord Framlingham (Con)
I entirely support the amendment of the noble Baroness. Does she agree that while we talk about the reasons for the mental health of young people, austerity, local councils and educational support, we rarely talk about family? We never talk about parents and we never talk about absent fathers. Does she agree that as a country we are in grave danger of completely ignoring the huge distress and permanent damage done to children every year?
Baroness Howe of Idlicote
I entirely and completely agree with the noble Lord.
Baroness Shackleton of Belgravia
Some of the damage could be avoided by proper education before people have children, to avoid the distress of having children with the wrong person. There is very little education in school to support that.
Baroness Meyer (Con)
My Lords, I will speak to Amendments 2 and 14, in my name and that of the noble Baroness, Lady Howe of Idlicote. Before I do so, I welcome the new concept of divorce by mutual decision through a joint application. Anything that reduces the stress, cost and emotional aggravation of a broken-down relationship must be for the good. In previous debates, many noble Lords have attested to the psychological and emotional damage done to children from broken homes. It is one of the Bill’s strengths that a joint application keeps the door open to reconciliation. I very much support the amendment to Clause 1 tabled by the noble and right reverend Lord, Lord Harries of Pentregarth, for the court to send information about mediation and relationship support services, as this could result in reconciliation, particularly in this type of divorce.
However, there is another dimension to the Bill which has made me really anxious: the treatment of divorce instigated by one party alone. In contrast to the provisions of divorce by mutual decision, the possibility for one party unilaterally to apply for divorce is a step backwards, at odds with our manifesto commitment to strengthen families. As I see it, the Bill’s fundamental weakness, as repeated by noble Lords many times in previous debates, is to discriminate in favour of the applicant against the recipient. I call them the recipient because this person has no right to respond. In practice, it would allow divorce by unilateral denunciation. It removes all rights and protections from the recipient and ignores two of the most contentious issues when a marriage breaks down: the financial settlement and arrangements for the children.
It could result in a situation where the recipient is left without financial provision and even access to his or her children, tantamount in extreme cases to parental abduction. This is unacceptable. It would contravene the UN Convention on the Rights of the Child to see and have access to both parents. It is also especially cruel to those of modest means who cannot afford to hire a lawyer to try to remedy the situation. It is hard to see how such a narrow focus on divorce, excluding money and children, can be justified when they are inextricably linked.
The Bill claims to remove family conflict as much as possible when reconciliation is impossible, but you do not need to go through a contentious divorce, as I have—some noble and learned Lords in this House know about my case—to know that the greatest source of conflict between couples is not about whether or not you want to divorce but about financial settlements and with whom and where the children will live. This is the moment when children really become embroiled in litigation between their parents and find themselves put in an impossible position. This is particularly so today, as children are more and more involved in court proceedings. Judges tend to interview them to find out how they feel and with which parent they want to live —in other words, asking children to choose between their parents. This can often lead to one parent manipulating the child against the other parent, so that when the child speaks in court, they will say bad things about the other parent. Sometimes children are even convinced that they have been sexually abused by one parent.
I speak from experience. I am not a judge; I have not been looking at other people’s cases from the outside. I have been on the inside: I founded a charity called Action Against Abduction. I have spoken to many parents and, indeed, adult children who have grown up after horrible experiences when they were young. We made a documentary about it, and I can tell noble Lords—and this is why I feel quite strongly about the Bill—that the effect on children is devastating. The point about the Bill is that it is fine if people agree, but that does not apply to everybody. The law should protect the most vulnerable, and the most vulnerable are the children. The most complicated cases are those in which parents do not agree. Giving one parent the right to divorce without the courts having even looked at the financial situation or the welfare of the children is very difficult. I hope most noble Lords will help me support this amendment.
Baroness Butler-Sloss
My Lords, I absolutely disagree that this is a petitioner’s charter. It is a way of bringing a failed marriage to an end. If noble Lords think about it, if one member of a couple says, “This marriage is at an end; in my view it has irretrievably broken down,” what on earth can you do about it? I am not sure whether noble Lords who have been speaking are expecting a couple who cannot get on to go on living together. If one side says that it is at an end, there is no longer a consensual marriage. Having been happily married for many, many years—
Lord Framlingham
Is the noble and learned Baroness actually saying that there is no possibility of that person changing their mind?
Baroness Butler-Sloss
Of course there are wonderful situations where reasonable couples talk it through and decide not to do it, whether for themselves or for their children. In some cases, that works and in some cases it does not. But there is no doubt that there are many, many people who seek to bring a marriage to an end because, from the point of view of that person, their marriage is no longer one that that they can endure. A lot of people leave. In the famous Owens divorce case that went to the Supreme Court, the couple are still married because five years is not up and there was no consent by the husband. The wife did not stay: she is not living with the husband who would not allow a divorce; she has moved out. There they are living separately, but not divorcing. Is that a happy situation?
The Bill is not a petitioner’s charter; it is an opportunity taken by the Government—and I congratulate them—to deal with the very important research that shows that unhappy marriages are not good for children. I do not understand how, if a couple do not get on, or if it is a case of domestic abuse—and we know how serious domestic abuse is—and the victim of the abuse wants to bring it to an end, they should not be allowed to do so. I cannot believe what is happening to the children while she—it is usually a she, but not always—remains in the house with the children and the domestic abuser. There is a great deal of evidence about that.
Fortunately, most parents, when they bring their marriage to an end, are civilised about it and about the children. The important thing about this Bill is that it is dealing with the issue of divorce and leaving the two extremely important issues—the most important issues of all—of what happens to the children and the financial outcome to be dealt with, I hope, in further legislation. The issue of children does not have to be dealt with in further legislation; the various Children Acts have dealt with that, whether they are the children of those who are married or of those who are not. Finance desperately needs changing—I suspect that the noble Baroness, Lady Shackleton, will say more about that today. It absolutely needs to be looked at, and I hope that the Government will go for a consultation paper on how we can improve legislation that dates back to as long ago as 1973, and which certainly needs an update. However, that is not a reason not to have the Bill.
Baroness Shackleton of Belgravia
This is not about the finances. When the noble and learned Lord, Lord Mackay, brought in the Children Act, it took away the stigma of custody. That Act as been a godsend to all of us, as we do not have to identify which party has care and control—custody. It has been the most enormous success, for which everybody who practises in this field is eternally grateful. I suspect that it was considered very novel at the time.
People forget that most responsible solicitors, when somebody who wants a divorce comes to see them, go through with their clients the possibility of not getting a divorce. I believe passionately in marriage—I am a patron of the Marriage Foundation, which supports the Bill—but by the time somebody wants out, they want out. I cannot tell your Lordships how many people are shocked when I say to them, “Are you sure you really want this? It’s not necessarily greener on the other side.” They say, “Do you really think I saved up the courage to come and see you to be told to go back and try a bit harder?” Once the game is up and the marriage is over—once it is dead—clinging on to it is not in the children’s interest at all. People need to move on. You cannot make somebody who is unhappy happy. It takes one person to make the marriage unhappy and two people to make it happy. The Bill goes some way towards addressing that problem.
Baroness Butler-Sloss
I will just finish with the two further points I wanted to make.
On the amendment moved by the noble Baroness, Lady Howe, with which, as noble Lords may have gathered, I do not agree, I cannot see how a court can adequately assess whether the children will be better off if the parents, one of whom wants a divorce, are still together or separated. There will be a difficult balancing act for the judge, and it will take a long time, because the family courts are seriously overburdened. How on earth will you find time to do this, and between a couple who will not be represented? As the noble Baroness, Lady Chakrabarti, said, there is no legal aid for couples who divorce, so the judge will have two people at odds with each other, with one or perhaps both determined to be divorced, and the children in the middle. The children ought to be informed of what is going on, but very often they are not. They need help at that time from parents who do not realise that they need help, and they particularly need information. But how on earth is the judge—or the magistrates, but in particular the judge—to say to the couple, “What is going to happen if you’re together or if you’re parted? How on earth am I to find out which way the children would want it to be?”? Particularly in cases where there is domestic abuse, the sooner that couple is parted, the better. So I am very concerned about this proposal.
Of course, we should be very careful about what we do regarding the welfare of children. However, research from the University of Exeter and the Nuffield Foundation found that where the parents cannot agree, very often the children would be better off by having them separate, and what their future ought to be can then be dealt with under the Children Acts.
Baroness Burt of Solihull
My Lords, I can see the sentiment behind considering the interests of the children in this matter. We will all have been moved by the testimony of the noble Baroness, Lady Meyer, about the terrible experience that she and her children underwent, but this amendment would hand the court the impossible task of deciding what is in the children’s interests without the mechanisms to do so, as the noble and learned Baroness, Lady Butler-Sloss, just said.
How would you implement a judgment forcing parents to stay together in the children’s interests? You cannot force a couple to stay together any more than you can order warring parents to create a loving environment. I hope that we are past the stage where parents stay together for the sake of the children—unless it is a mutual voluntary agreement—because, on the whole, that has been shown to do more harm than good. Children may fare better from having two loving parents who live in different places, often with different families of all kinds. Love and the secure knowledge that they are loved are what matters, no matter who makes up their family. Research has shown that parents are usually the best judge of what is in their children’s interests. Where this is not feasible, the family courts are there to help.
I am afraid that we will not support the amendment from these Benches.
Lord Browne of Belmont (DUP)
My Lords, I am pleased to support Amendments 2 and 14 in the name of the noble Baroness, Lady Howe.
I note with interest that these amendments were tabled in the last Session in another place by the right honourable Frank Field, who served with great distinction from 1979 until last November as the Member of Parliament for Birkenhead. He made a significant contribution to children’s issues and chaired the Field review on early years intervention. I am sure he will be pleased that the noble Baroness has taken up these amendments, which could not be debated in the other place.
Divorce affects a community: the adults involved, their friends and families and, of course, the children. The likelihood is that the effects on most children will be long-lasting. Children have to watch their parents go through a divorce, then continue their lives afterward. The research base demonstrating the damage to children from divorce is so widespread—the fact that it is now recognised as an adverse children experience, or ACE, has already been alluded to—that I will not detain the House by looking at it in any detail other than to note that family breakdown is now recognised as the biggest factor behind the UK’s child mental health crisis. More than a third of children whose parents had split up reported poor mental health, compared with a fifth of children with parents who were still together. Moreover, Hetherington and Kelly’s research interviewing the children of divorce later in life revealed that 20% to 25% of children of divorce continue to suffer lasting social and psychological problems in adulthood, compared with just 10% of children from intact families.
The fact is that, after a divorce, children find themselves in a difficult situation. As has been referred to, Cockett and Tripp’s work in The Exeter Family Study demonstrates how divorce changes family life. Their research showed that in parental conflict during marriage, the child may be able to remain on the sidelines, whereas after divorce, they may be obliged to take a central role; for example, carrying messages between resident and non-resident parents who find that they are unable to communicate face to face. Children in re-ordered families reported that their parents frequently told tales about each other or each other’s new partners. Children also sometimes felt that they had to suppress telling one parent about enjoyable times they had had with the other, or had actually been asked by one parent to keep something secret from their former partner.
Inevitably, the child’s relationship with their parents changes; for example, one may move away and the other may become more prominent in their life while finding their own way after the divorce, potentially with less financial resources. The child might find that they have to move to be with a parent and change school. A recent article on parental divorce or separation and children’s mental health said:
“Marital instability presents not a single risk factor, but a cascade of sequelae for children.”
Baroness Meyer
My Lords, I will make one correction. This amendment is not about forcing parents to stay together. It asks for the courts to be satisfied that the well-being of the children has been considered before the final divorce is granted.
Baroness Benjamin (LD)
My Lords, I support Amendments 2 and 4. First, I would like to say how much I agree with the noble Baroness, Lady Shackleton, when she talks about education, because I too have been an advocate and supporter of education on marriage, parenting and relationships for many years. I believe that it would make such a difference to the outcome of the pain and suffering that too many people go through, and which directly affects children.
However, in all our debates on the Bill we must not forget children. They are innocent parties in family break-ups, and everything we decide in this House, or in the other place, must not neglect their interests. So much of our family policy is built on the principle of what is in the best interests of the child. But when it comes to divorce, which can be devastating for children, the focus is too often solely on the interests of adults. This is why I am supporting these amendments.
The stated aim of the Bill is to reduce acrimony in divorce proceedings. The former Minister of Justice stated in the Government’s response to the consultation in April 2019 that this will
“support better outcomes for children.”—[Official Report, Commons, 9/4/19; col. 8WS.]
Supporters of the Bill claim that children of married parents who argue will be better off if their parents can divorce more easily, without having to allege fault. The logic is that parents continuing their marriage is more damaging to children than simply ending the relationship. The truth is that children need not be involved in any consideration of fault, but they are necessarily involved in the fact of divorce. It is the fact of divorce, not the process, that is harmful to children.
The Exeter Family Study found that divorce does not usually reduce conflict for the children. In fact, the opposite is true. The study says that
“the experience of most children whose parents have divorced is of increased conflict over an extended period, with the child involved to an extent that may not have been the case while the marriage lasted.”
Once parents have officially split, the door is open to children being the subject of disagreements in a way they never were before. These findings are corroborated by a US study that shows that children suffer negative consequences even if their parents divorce amicably. The authors express concern that
“some parents are lulled into believing”
that a good divorce will mean
“that their children are adequately protected from all of the potential risks of union disruption.”
There are of course exceptions, where divorce is the only and best alternative, especially when it comes to domestic violence and abuse. However, there is so much research that shows the benefits for children of living with their married parents, and the harm the divorce does to children. For example, having married parents increases the chances of getting a university degree. It is better for teenagers’ mental health and increases a person’s chances of getting married themselves. Young people whose parents separate are much more likely to become homeless and get into trouble with the law. Behavioural and emotional problems are also more likely to be found in children from broken homes.
There have been studies suggesting that children suffer more from divorce than from the death of a parent, and that this continues long term. Various reasons are offered for this. One is that divorce is seen as a choice. From a child’s perspective, their parent chooses to leave them, resulting in a sense of deliberate abandonment. There is also the ongoing yearning for reconciliation, while death is final. Children often cling for many years to the hope of their parents reconciling, causing reoccurring disappointment. I state all this to emphasise the importance of children’s interests in these debates. They should be front and centre in decisions about divorce, including in the court’s consideration of a divorce application.
I fear that this Bill will make divorce quicker and easier, leaving less time and motivation to compromise or attempt to reconcile—and children will suffer. I believe that these amendments help to focus on these innocent victims—because, remember, childhood lasts a lifetime.
Lord Mackay of Clashfern
My Lords, I need no conviction that children are better when their parents continue together, undivorced. I am strongly in favour of helping people who run into difficulties in their marriage. Various things can happen that require help. One of the amendments today refers to part of the 1996 Act that is still in force, providing money to help people to overcome these difficulties.
I need no conviction that divorce is bad for children, but I do need conviction that, if the parents are determined to divorce, nothing can be done to make it better for the children. That is where the arrangements under the Children Act are important. I believe that they are as good as can be achieved, but the important thing is that I would much prefer no divorce at all. We must concentrate on trying to keep parents together and keep the marriage going as a marriage and not in any other way.
I cannot see that the court can say, “This divorce is not good for the children” or “This divorce is good for the children”. Can noble Lords imagine a judge having to decide whether a divorce is good for the children? The answer is no in every case I know of: it is not a good thing for children that their parents have reached the conclusion that they have to divorce, as I said earlier. It is like tearing the children apart, because they love both parents and are very upset when anything happens to part them—but, sadly, the responsibility for staying together is with the parents. I strongly believe that doing everything that can be done to help them to stay together is the best help for the children.
Baroness Chakrabarti
My Lords, as I said, it has taken decades of distinguished professional experience for some noble Lords to make the contributions they are making to this debate. However, I have no doubt that it has taken a mountain of courage and not a small amount of eloquence and self-possession for the noble Baroness, Lady Meyer, to make her contribution—for which I am sure we all thank her. I thank her and the noble Baroness, Lady Howe, for giving us the opportunity to talk about children with what I hope will prove to be a probing amendment that puts the interests of children into this discussion.
However, for the reasons stated by other noble and learned Lords, the place and moment for a court to consider the best interests of the child—for example, under the Children Act—should be in matters of contact and finance. At the risk of sounding like a broken record, I say once more that the place for your Lordships’ House to consider what we should do ought to be in putting back legal aid for such contested family matters.
Lord Keen of Elie
My Lords, I begin by correcting a misapprehension disclosed by a number of noble Lords. We have produced a family impact assessment in respect of the Bill. Indeed, it was published with the Bill and can be found on GOV.UK. I invite those noble Lords who expressed an interest to have regard to that.
I have no doubt that this amendment is well intentioned, but its effects could be quite draconian. It would in effect require the court to weigh up whether the interests of the marriage’s children should override the autonomous decision of one parent—or indeed both parents, in a joint application—to seek a divorce. It could result in a parent being trapped in a failed or even abusive marriage. It could also reintroduce contested divorce in cases where there are children, because it would allow a parent to put forward arguments that divorce is not in the children’s best interests. It is difficult to see how this would serve the best interests of the children or even the parents. Indeed, this amendment could cause a worsened parental conflict through the legal process of divorce, with further damaging consequences for the children involved.
I understand why some may regard it as important for the court to consider the impacts on children of the decision to divorce, but that ought not to be a matter for the divorce process. The decision to marry or divorce is an autonomous one. It is not for the law to stand in the way of one or both parties who no longer wish to be in a marriage. The legal process of divorce should focus only on ending the legal relationship between the adult parties. Issues that may arise from the divorce, such as disputed arrangements for children, can and are dealt with now under separate statutory provision.
Baroness Howe of Idlicote
My Lords, I am most grateful to all noble Lords who have taken part in this debate, which has been extremely interesting and wide-ranging. Despite what has been said, the role of children and the effect on them of divorce proceedings would not have had anything like the prominence that it has had but for this amendment. I did not realise that the family test assessment is available; I was going to suggest having a meeting before Report with that as a central feature. Maybe noble Lords on all sides of the argument could come together. Clearly, we need to discuss all this on Report. All noble Lords who have taken part, with their very strong feelings and differing views, must be glad that children are a central part of all the proceedings. With that in mind, unless the Minister would like meetings for further discussion before Report, I will withdraw the amendment.
Lord Keen of Elie
I am perfectly happy to have meetings on this or any other issues that may arise before Report, and to have the relevant officials present. I hope I have expressed clearly our position regarding the distinction between the divorce process and the interests of children, but I am perfectly content to have a meeting.
Baroness Howe of Idlicote
It would be desirable to have some meetings. Under the circumstances, I beg leave to withdraw my amendment.
“( ) send, to the applicant and to the other party to the marriage, information about—(i) relationship support services, and(ii) mediation services,”Member’s explanatory statement
This amendment seeks to ensure that divorcing couples have access to information about relationship support and mediation so that they can think again about the best way forward before being issued a final divorce order.
Lord Harries of Pentregarth
My Lords, this is a very simple amendment designed to give those divorcing or separating some basic information. It would require a court to
“send, to the applicant and to the other party to the marriage, information about—(i) relationship support services and, (ii) mediation services”.
As I mentioned at Second Reading, the concept of irreversible breakdown as a basis for divorce goes back to the recommendation of a Church of England Commission in 1966, which was accepted by the Law Commission in the same year and passed into law. Since then, however, up to the present time, as we know, it has been necessary to provide evidence of that breakdown, either by a period of separation or behaviour. Thirty years later, the Family Law Bill, introduced by the noble and learned Lord, Lord Mackay of Clashfern, in 1996, sought to do away with those tests. I strongly supported that Bill, but it met fierce opposition at the time, although it was finally passed by both Houses of Parliament.
The reason why many people who might otherwise have opposed that Bill did in the end support it, was the key role played by information sessions in the process of divorce. These involved meetings with the divorcing couple, who had the opportunity to avail themselves of relationship support or mediation should they need it. Though, as I say, that Bill was passed, it was not implemented by the incoming Labour Government and was eventually repealed. One reason for its repeal was that the information sessions as initially conceived were judged unable to achieve the objectives for which they were set up. Six pilot programmes were tried but none was judged successful.
It is clear that doing away with the need to provide objective evidence of breakdown is much more widely supported now than it was in 1996—and that is a good thing—and in the light of experience this Bill has much broader support now than it did then. However, we should not lose sight of the fact that while most divorces rightly go through, there are some marriages that can and should be held together even at a late stage of the process, or that might benefit from mediation.
I believe that the role of lawyers is essential in most marriage break-ups. However, the process appears from the outside to be essentially adversarial. A recent film now available on Netflix—“Marriage Story”—shows the process at work. It does not, I am afraid, depict lawyers in a very pretty light. As one lawyer in the film says, “If you start from a place of reasonable and they start from a place of crazy, when we settle we’ll be somewhere between reasonable and crazy”. The point is, of course, that both sides will think that they are reasonable and the other side is crazy. Yet, even in that unhappy story, one has to admit that the wife, in the end, benefited from having the issue settled by a court.
That said, I was talking recently to a friend about the Bill at present before the House. She revealed that she was a lawyer and that her first job in a law firm was dealing with divorces because, as she said, that was the sort of work thought appropriate to women in those days. She tried with her clients first to get them talking and exploring what they really wanted—in other words, she did what the noble Baroness, Lady Shackleton, said all good solicitors should do. Eventually, she was very surprised to be hauled in by her bosses and told that she was being transferred to another branch of the law as she was losing the firm too much money. I assure noble Lords that I did not make that up; it emerged spontaneously out of the blue and I was rather surprised. I quote it not as an anti-lawyer statement—I do not want to be a Daniel in a den of lawyers, because there are so many lawyers in the House that we feel inadequate anyway about not being a lawyer. The point I am making is that there are other ways forward and it is important that a divorcing couple of fully aware of this, even at a late stage.
The noble Lord, Lord McNally, for the coalition Government, told the House in 2013:
“The research concluded that none of the six models of information meeting tested was good enough for implementation nationally. For most people, the meetings came too late to save marriages and tended to cause parties who were uncertain about their marriages to be more inclined towards divorce.”—[Official Report, 23/10/13; col. GC 365.]
I agree that this is likely to be a true reading of the situation, but the phrase the noble Lord used was “for most people”—it is not all people. There is a minority for whom, even at a late stage, there might be a better way forward. Nor is the conclusion the noble Lord drew from the other point as useless as he suggested. It caused, he said, some parties who were uncertain about their marriage to be more inclined towards divorce. The proper conclusion to be drawn from this is that, if it was right for them to divorce, a final chance to have this conviction strengthened is a good thing. We want couples to be clear about what they want after a final chance to consider the options before them.
As I say, I am not arguing for a reinstatement of the information sessions of the 1996 Act. It would be unrealistic to do so. However, what I am proposing is simple and cheap: it simply requires the court to send both parties some basic information which, I imagine, would be provided at no cost by the relationship support and mediation services. Those who receive such information might glance at it and throw it in the wastepaper basket; others might read it carefully and conclude that it is not for them—they are clear that divorce is the right way forward. There will be some, however, who read the information not having properly considered options other than divorce, and who wish to follow this information up.
Society has a big stake in stable marriages and stable civil partnerships. Divorce or separation is sometimes absolutely necessary and essential, but, if there is a chance of a few marriages that would otherwise split up being saved by the simple provision of information, this chance should be taken. I beg to move.
Baroness Meacher (CB)
My Lords, I shall speak briefly to Amendment 3. I regret to speak in disagreement with the noble Lord, Lord McColl, for whom I have great respect. I also have some disagreement with my noble and right reverend friend Lord Harries.
Amendment 3 is, like Amendment 1, based on the assumption that, even after divorce proceedings are under way, there is a reasonable number of couples who can be reconciled. My reading of the research on this issue suggests that such reconciliation is rare once divorce proceedings are under way. Nobody starts divorce proceedings unless they are pretty desperate.
Having provided relationship support services as a social worker many decades, never mind many years, ago, I am, of course, a supporter of this approach to marriage problems. However, in response to this amendment, I suggest that a couple would benefit far more from such a service long before either parent considers divorce. A divorce petition is sought only once at least one of the partners is clear that the relationship has broken down irretrievably. It is very likely, although it is not always the case, that one partner will by that time be well involved with a third party and have little interest in perpetuating the marriage. At that stage reconciliation is very unlikely, although of course it is possible.
Lord Farmer (Con)
My Lords, I shall speak to Amendment 21, which is grouped with Amendment 3. It is also about marriage counselling once the application for divorce has been made. My amendment requires the Government to offer relationship and marriage counselling before and during the divorce procedure.
Marriage is the specific relationship form being directly affected by the Bill so it should be the focus of additional support. Much weight has been put on the evidence from research at the University of Exeter funded by the Nuffield Foundation, Finding Fault? It describes itself as the first empirical study since the 1980s of how the divorce law in England and Wales is operating. It is a piece of grey literature—that is, it has not been peer reviewed. The Government very rarely act on single studies, especially those that have not been peer reviewed by academics from other universities, which often challenge the conclusions of whichever study it is. The reliance of the Government and noble Lords on this research is surprising, to say the least. In reality, it is one study with 81 interviews and an analysis of 300 divorces. There was a survey in which around half the participants were divorcees and the other half were nationally representative: 71% of them supported retaining fault, which was ignored. I put that at the beginning of what I am saying because, in the Government’s argument, an awful lot of weight is being put on this research.
In the early 2000s, there was a healthy marriage initiative in the United States. Many of the programmes were focused on unmarried couples. It taught them the basics of commitment and how to resolve conflict and brought many to a point where they perhaps knew enough to separate because they realised the relationship did not have a future, or where both partners felt able to make the formal commitment of marriage. I notice a right reverend Prelate is in his place. The Church of England and many other churches run good marriage preparation courses which go into gritty detail of the problems that marriages can present.
Much has been said about the need to avoid the complexity of the Family Law Act. My amendment does not reintroduce information meetings, but makes it more likely that a couple who see no alternative to divorce, perhaps because both sides of the family have been through it, will, by going through counselling, have their eyes opened to the possibility that times can get better if you stick together. It allows people to reflect on the possible implications of what they are doing. Wealthy people can often access divorce consultants who dispassionately lay out the implications of staying together or splitting up. Many people pull back when they have someone dispassionately explain to them, for example, what has been termed the indissolubility of parenthood—that their relationships with their children, which the vast majority are absolutely determined to maintain, will require them to have ongoing relations with their ex-spouse not only to ensure the smooth running of day-to-day contact arrangements, but to negotiate every future major family event.
Professor Janet Walker led the evaluations of the pilots following the passage of the Family Law Act 1996. She interviewed more than 6,000 people. She commented that funding for relationship services was identified as a necessary part of divorce reform during the passage of the Family Law Bill and remains necessary today. She goes on to say that knowledge and understanding of what works in supporting relationships at times of change, challenge and crisis has also grown, and it is apparent that early intervention to support relationships increases opportunities for relationship ruptures to be repaired and for partnerships to thrive and endure. Therefore, we need to be sure that the opportunity to seek support is provided when relationships begin to deteriorate as well as in the period after an application for divorce is made, when the focus is likely to be on helping couples to reduce conflict and to focus on the ways in which they will continue to parent in a life apart. Relationship support, she says, must be accessible, affordable and available when it is first needed and at any time when families are seeking to repair or manage difficult relationships. In a follow-up study, which involved over 1,500 people, she found that, two years on from divorce, many people wished they had been warned beforehand of the harsh realities of post-separation life. If they had been forewarned, they might have sought reconciliation. They now have to work harder than ever to get on with their ex, given the need to maintain harmonious arrangements around finances and children.
US researchers, in the early 2000s, found that people who are unhappy in their marriage are more likely to be happy five years later if they did not divorce than if they did. Two out of three who were unhappily married but avoided divorce ended up happily married after five years. The problem is that, in our society, it is still stigmatised to ask for help with one’s couple relationship. When he was on “Desert Island Discs”, the American ambassador to the UK, Matthew Barzun, was very up front about the ongoing relationship counselling he and his wife had to maintain a good status quo in their relationship. Let us hope he is an early adopter, but the broad culture is not there yet. Marriage support and counselling can create a context where the root of the conflict can be addressed and terminated, rather than the relationship itself.
Lord Mackay of Clashfern
My Lords, I support both amendments. I want to look at Amendment 21 first; it contains a reference to Section 22 of the Family Law Act 1996 and one of the provisions supported by Professor Walker in the passage that my noble friend quoted. I regard it as absolutely essential that the Government should support families in difficulties. There are plenty of reasons for difficulty in family relationships, perhaps more than there were. But in any case, whether that is so or not, there are still difficulties, and help in overcoming these is essential as early as possible. Amendment 21 deals with Section 22 and the need for counselling in relation to the later stage.
I also support the provisions in Amendment 3, which are a last resort. It is so important that people really consider what is happening and get what help they can before it happens. The idea that it is always too late is not quite right. Sometimes reconciliation can come quite late—and better late than never—which is what Amendment 3 supports. The noble and right reverend Lord, Lord Harries of Pentregarth, was Bishop of Oxford when the 1996 Act was considered and ultimately passed. I think it was he who put this amendment in form first. The Government fully supported it, as I do now. I also support its continuation, which is in the amendment.
There are some quite interesting amendments. Section 22 of the Act says:
“The Lord Chancellor may, with the approval of the Treasury”.
I am not sure why I had to put that text in the Bill, but it must have been part of the price I paid for getting that section into it, which remains law. The amount provided for it now has fallen. I would like to press on Her Majesty’s Government that one of the most important things for the present is that our family life is preserved and strengthened. I am sure that, as was said on earlier amendments, a good deal of difficulty has arisen from the failure to support family life in the way that the Government should. Therefore, I am very much in favour of Amendments 3 and 21.
Lord Browne of Belmont
My Lords, I am pleased to support Amendment 21 in the name of the noble Lord, Lord Farmer, which focuses on marriage support services. It requires the Secretary of State to make grants for marriage support services
“before and during a marriage.”
The public policy benefits of marriage are such that this is a very appropriate use of public funds. Indeed, in terms of the public finances, investment in relationships is good value for money. The estimated cost of family breakdown to the public purse is £51 billion a year. In January 2018, the Government said in another place that between April 2015 and March 2017 they had invested £17.5 million in relationship support services. That is a very small sum, given the scale of the costs of family breakdown. It is estimated that Relate’s couple counselling work delivers £11.40 of benefits for every £1 spent. Surely this should make the Chancellor consider upping the Government’s investment in supporting married couples and those in civil partnerships.
Baroness Tyler of Enfield (LD)
My Lords, I support Amendment 21, which aims to put relationship support funding on a firmer basis. At the outset I should declare an interest as a former chief executive and current vice-president of the relationship counselling charity Relate, and I am also a former chair of Cafcass.
Many of the reforms contained in the Bill are certainly to be welcomed, but—this is a real gap—the Bill is silent on the provision of relationship support, which in my view needs to be available much earlier in the process of relationship breakdown, as well as at the later stages, which we are very much focusing on today. As the noble and learned Lord, Lord Mackay, has already said, funding for relationship support services was identified as a necessary part of divorce reform during the passage of the Family Law Bill, and I agree with him that it remains just as necessary today. In fact, I should like, very briefly, to take us back to the Denning report of 1947. As Lord Denning said, there should be a marriage welfare service “sponsored by the State but not a State institution”. It should be a function of the state to support marriage guidance as a form of social service. I underline the words “as a form of social service” because they are germane to my argument.
Over the years, successive Governments have taken their responsibilities in this area seriously—to a greater or lesser extent, I contend—to ensure the availability of relationship support services for those who want and need them. It has been my personal experience that some Ministers and, indeed, some Prime Ministers have shown a much greater interest in this area than others: some have really wanted to champion the need for proper relationship support services, while others have taken much less interest. I think that it is genuinely a real problem that proper funding for relationship support—which I see as a core responsibility of government in providing necessary social services—has sometimes felt over the years as if it has come down to the whim of a particular Minister or Prime Minister.
Over the years, responsibility for funding relationship support services has moved between a large number of departments—frankly, having been quite involved in some of those moves, I feel that I could write a book on it. It currently rests with the DWP. Funding over that time has steadily been eroded and now focuses—very narrowly, I think—on interventions to do with workless households and helping to give support where there are high levels of parental conflict. I am not saying that there is anything wrong with focusing on high levels of parental conflict or workless households, but there is a much broader need to support relationships across the rest of the general population. This particularly helps families and children to thrive, which we discussed very eloquently in last Thursday’s debate.
I also feel that having properly functioning families with good relationships within them and trying to minimise relationship and family breakdown whenever we can is so fundamental to so many of the Government’s broader social policy objectives, be they in education, health or employment. It really deserves to be taken a lot more seriously than it sometimes feels that it is. It is clear that early intervention to support relationships—again, the subject of our debate last week—increases the chances for relationship difficulties at the early stages to be repaired. We therefore need to make sure that those chances to seek support are provided when a relationship begins to deteriorate, as well as in the period after an application for divorce is made, when the focus is likely to be on helping the couples to reduce conflict and on ways in which they can continue to successfully co-parent but live apart. Those things can have long-lasting benefits for children, particularly for their emotional well-being.
As has already been said by the noble Lord, Lord Farmer, relationship support must be accessible, affordable and available when it is needed to help families seeking to repair or manage relationship difficulties. This is a really key point for me: relationship counselling must not just be seen as a middle-class preserve. It has to be available and affordable for all, irrespective of income or ability to pay. As far as I am concerned, I have always seen the availability of relationship support services as a social justice issue.
Government funding for relationship support services must be recognised as an essential component of the Government’s new approach to divorce and separation if the aims of this Bill are to be fully recognised. The Government really must take core responsibility for ensuring that there is good relationship support available and not just see it as a fluffy little discretionary add-on.
The Lord Bishop of Salisbury
My Lords, I rise in support of Amendments 3 and 21 and to provide a brace of bishops. I want to observe the seriousness and the quality of this debate as we as a House navigate the support of marriage as an institution and of couples in keeping their vows while recognising that marriages break down and trying to provide adequately for those circumstances. If the noble Baroness, Lady Tyler, is right that support for the relationship support services sometimes depends on the whim of a Minister or Prime Minister, one might hope that the present occupant of 10 Downing Street would take a particular interest in these matters.
On average, the Church of England conducts about 1,000 weddings a week. We have experience of conducting, preparing people for and supporting them in marriages. Quite often, couples that I have prepared say that they want to get married in church because they know that they are standing and making their vows in a solemn and serious place that has significance in the community and before God. They want the support of the community gathered around them. In the modern marriage service, we say, “Will you support them in what they are doing?” The congregation comes back with, “We will”. The role of gathering around a couple to support them in keeping what we know to be quite difficult things to keep is a very significant part of the service. Marriage is a gift of God in creation. A marriage in civil ceremony is, therefore, as big a deal. That means that we need to gather around these couples too and support them in upholding their vows.
However, marriages break down. That is costly in the way that the noble Lord, Lord Browne, itemised; there is a financial cost to society. It is also emotionally costly to the individuals in the couples. This is not done lightly: there is a real cost to this, as well as a financial cost to the family concerned. It needs good support to wrap around it. Tolstoy observed that all happy families are alike; each unhappy family is unhappy in is own way. That is a good reason for saying that the support of marriages is complex and that we need to put in relationship counselling provision early on to support that.
Both amendments seem valuable to me for the support that they give individuals but also because they make a point in a Bill that, as my right reverend friend the Bishop of Portsmouth observed at Second Reading, might better be focused on kinder divorce rather than easier divorce. Through these amendments, we would be making a statement about the seriousness and importance of marriage, and the support that needs to be wrapped around it, both at an earlier stage and, by noting the availability of resources, at this last stage before the matter is finalised.
Baroness Burt of Solihull
My Lords, I am fully in support of having strong support services for couples but, by the time they decide to divorce, I would suggest that that stage is passed and it is already too late for conciliation, as the noble Baroness, Lady Meacher, has pointed out.
I totally support Amendment 21 and the comments of my noble friend Lady Tyler. It is just the question of timing that I dispute. Professor Liz Trinder points out that practical help and advice would be of value, and financial help for these services would be most welcome, especially on benefits, housing and child support. In the vast majority of cases, mediation would not only be too late, it could be harmful. The Finding Fault? study found that more than a third of behaviour divorces included allegations of domestic abuse, some of an extremely serious nature. Why would you give the perpetrator a golden opportunity to browbeat—or worse—the victim by suggesting that the marriage may not be over, and present the spectre of having to return to the site of the abuse?
We on these Benches will not support the amendments other than Amendment 21, well intentioned though we believe they are.
Lord Morrow (DUP)
My Lords, I rise to speak in support of Amendment 21 tabled by the noble Lord, Lord Farmer, and the noble and learned Lord, Lord Mackay of Clashfern.
The Bill’s family impact test issued by the Ministry of Justice stresses multiple times that a central policy intention behind the legislation is to promote opportunities for reconciliation where that is possible. I admire the stated aim, but this amendment reflects the view that the Bill as it currently stands lacks ambition in this respect. Without funding for essential marriage support services, this policy goal will mean little to struggling families across the country. Families who desperately want to stay together, but are at a loss as to how to move forward, need support. It is one thing to provide an opportunity for reconciliation, but another thing entirely to provide a means of reconciliation.
According to Relate, the UK’s largest provider of relationship support:
“Evidence suggests that low income families are likely to experience increased strains on their relationships because of financial pressures. Their financial vulnerability also means they are less able to afford relationship support.”
This may well be having a very real bearing on family breakdown statistics. By the age of five, almost half of children in low-income households have seen their families break apart, compared to only 16% of children in higher-income households. Funding for counselling services could make all the difference to families who struggle to get by financially—families like Laura’s, on a household income of £16,000 per year, who told Relate:
“I want my husband and I to stay together because I know we truly love each other, as well as for the sake of the family, but desperate situations push people towards desperate measures, such as contemplating divorce. I am trying to stay strong for my family by blocking things out emotionally, which I know isn’t healthy but I have nowhere to turn. What we need is to speak to somebody objective who can help us to find a way forward. I agree there should be more funding for relationship support—healthy relationships create healthy families which in turn creates healthy citizens.”
Unfortunately, loving someone is not always enough and there may come a time where we all need more support and guidance. In a context where the Government are moving to reduce the time for reconciliation by promoting divorce within six months, it is vital that we invest more in marriage support and focus some of that money specifically on the shortened divorce process. This amendment rises to this challenge and is particularly important because, unbelievably, answers to Parliamentary Questions reveal that the Government are not allocating any funds for marriage support through Section 22. This is extraordinary, especially when we consider previous government undertakings in this regard. On 1 February 2017, for example, the Minister in the other place stated that
“the Department intends to continue to work very hard to ensure that marriage gets the support it needs to continue being a strong bedrock for the families and the children for whom we want to secure the best possible outcomes in the future.”—[Official Report, Commons, 21/02/17; col. 389WH.]
It also makes no sense. The Relationships Foundation’s Cost of Family Failure Index in 2018 estimated the annual cost to the Government of family or relationship breakdown to stand at £51 billion—my colleague and noble friend Lord Browne has already referred to this figure—which is up from £37 billion 10 years ago. The scale of this crisis demonstrates that proper investment in marriage support services is long overdue. The move would also be in line with public opinion. ComRes polling from 2017 showed that 76% of British adults believe that extra money should be spent strengthening families.
In this context, where the Government are proposing to reduce the time for divorce and thus reduce the opportunity for reconciliation within divorce, it is especially vital that they now adopt a new approach to marriage support. Providing funding to parents in conflict, who do not have to be married, is no substitute for marriage support, which should not be limited to those who have children. We need a significant, serious focus on marriage support.
When difficulties arise in relationships, giving up often seems easier than going on. This Bill risks making giving up easier, while doing little to meaningfully support those who want to go on. It communicates the message that marriage breakdown is often a sad inevitability and that, if you get to that point, the law will make it easier for you to “get the relationship over with”. I suggest to noble Lords that we can do better than that. Let us be a country that believes in fighting to rescue relationships, so that when they hit the rocks our response is not simply to mitigate the fallout, but to offer a lifeline of support to families in the form of counselling. Amendment 21, and indeed Amendment 3, will help us rise to this challenge. I very much hope that the Government will support this.
Lord McCrea of Magherafelt and Cookstown
My Lord, I support Amendment 21 and Amendment 3. Amendment 21 speaks about funding for marriage support services, and says:
“In subsection (1)(a), at the end insert ‘, both before and during a marriage’.”
The reality is that many young people are not really prepared for marriage. Many go into it with great expectations: that everything will be rosy, everything is going to be beautiful, and that they are going to have a great life. They do not realise that the reality of life for everyone can be facing difficulties and hardships—not only financially, but in family circumstances.
There are many reasons for family breakdown and, certainly, each one is a tragedy. There used to be an old statement in our home: “a family that prays together, stays together”. It is also true that a family that talks together can stay together. The tragedy today is that families no longer talk together the way that they once did, because they are talking into an iPhone or an iPad. I was raised on a farm, and when I was a child there was a large family table we sat around and talked together. The reality is that, in the homes built today, you could not do this because the kitchen or living room is so small the family could not get around the same table. So where do they go? They go to their rooms. They used to sit before a computer but it is not like that any more; they just sit with an iPad. I sat in a home recently, where a family was gathered for a family bereavement. There was a young person of 17 years of age there. We were having conversations about the grandmother at the home, the background of the family and their upbringing and the day that young person’s mother got married. That young person heard nothing. We sat for 35 minutes. He did not speak, and neither was he listening because he was completely absorbed in his phone.
The Government should do more to encourage families to talk together. Then, I believe, many of them will stay together. The tragedy is, even within relationships, husbands and wives no longer converse as they used to. If you have a problem, the best way is to share it because a problem shared is a problem halved. Therefore, there should be more preparation for young people before marriage, and during marriage they should receive more encouragement. Certainly, when it comes to the possibility of a family breakdown, society should encourage the family unit to stay together—not to make them unhappy, but to build relationships again.
Baroness Chakrabarti
My Lords, I am so grateful to all noble Lords who spoke about this group. We do not support families by lecturing them, hectoring them or even creating obstacles to divorce. We support families with fellowship, with community, with solidarity and with social infrastructure. As I have said, I would like people to have access to lawyers—we wicked lawyers, but when you need us we are not so wicked—in time times of trouble, but also to counselling and relationship support long before there is trouble and, indeed, all through their lives. I really have taken on board the points that were made by two noble Baronesses at least about timing, because this support should be available very early in life and, as noble Lords opposite have said, perhaps even before people entertain the idea of marriage. That was the reason for supporting the noble and right reverend Lord, Lord Harries, in Amendment 3, although I take the points about timing and do not want to delay noble Lords further on this.
I hope the Minister will take the opportunity, in responding to this group, to set out what the Government propose more generally by way of this kind of provision for counselling and relationship support, because it seems, to me at least, all-too scant at the moment.
Lord Keen of Elie
My Lords, I will begin with Amendment 3, moved by the noble and right reverend Lord, Lord Harries of Pentregarth. I am grateful to the noble and right reverend Lord, not only for his thoughtful contribution to the debate and the scrutiny of the Bill but for meeting me to discuss his proposals.
The Government share the sentiment underlying this amendment, and the observations of a number of noble Lords that couples considering divorce should have available to them information about the services in question, and that where reconciliation is still possible, the legal process should not dim that prospect. On the second point, the Bill introduces for the first time a minimum timeframe of 20 weeks from the application to when the court can be asked to make the conditional order of divorce. The Bill also retains the two-stage procedure for obtaining a divorce under the distinctive procedure of English law, so that each step on the way to divorce requires an intentional and, indeed, conscious decision to end the marriage.
The Government’s view is that best prospect of saving a marriage is when difficulties first arise, not much later when divorce proceedings have begun. In the University of Newcastle evaluation of pilots to test the information-meeting provision that was central to the no-fault provisions in the now-repealed Part II of the Family Law Act 1996, the report noted:
“If the objective of providing information is to facilitate marriage saving, the evidence suggests that it will be more effective if it is provided while spouses are still together and before they make the decision to live apart.”
The Government share the desire to encourage more couples to resolve any disagreements about children or financial arrangements through mediation, avoiding, wherever possible, the need to seek a court adjudication. For these reasons, the Government do not support this amendment but believe that its laudable ends can be achieved by other means.
Lord Harries of Pentregarth
I thank all noble Lords who have spoken to these amendments. I was slightly surprised that my noble friend Lady Meacher was so hostile to my amendment, as it would not require the divorcing couple to do anything and would not in itself delay the process of divorce. It would mean simply that they receive information, treating them as mature human beings who are aware of the information available.
As the Minister said, I had a very useful meeting with him, in which he outlined some ways of making people more aware of relationship support and mediation services through the internet. We talked about the possibility of there being a question on the original application form asking the applicant whether they are aware of these services. Perhaps when he comes back on Report he could spell out in more detail what he has said to the Committee and to me. I realise that this is not a matter for legislation, but perhaps he could put on the record the kind of thing which might appear on either the original application or online. With that in mind, I beg leave to withdraw my amendment.