Divorce, Dissolution and Separation Bill [HL]

Debate between Baroness Butler-Sloss and Baroness Howe of Idlicote

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Tuesday 17th March 2020 Lords Chamber

[Baroness Howe of Idlicote (CB)]

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

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

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

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

“would be more facilitative of reconciliation.”

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

[Baroness Butler-Sloss (CB)]

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

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

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

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

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

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

Divorce, Dissolution and Separation Bill [HL]

Debate between Baroness Butler-Sloss and Baroness Howe of Idlicote

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

[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.