Divorce, Dissolution and Separation Bill [HL]

Lord Farmer Excerpts

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

Moved by

[Lord Farmer]

2: Clause 1, page 1, leave out lines 9 to 15 and insert—
“(2) On an application for a divorce order the court must inquire, so far as it reasonably can, into—(a) the facts alleged by the applicant or applicants, and(b) if the application is by one party to the marriage only, any facts alleged by the respondent.(3) The court hearing an application for a divorce order must not hold that the marriage has broken down irretrievably unless the applicant or applicants satisfy the court of one or more of the facts described in subsection (3A), in which case it must make a divorce order.(3A) The facts referred to in subsection (3) are— (a) if the application is by both parties to the marriage, that the applicants have lived apart for a continuous period of at least one year immediately preceding the making of the application;(b) if the application is by one party to the marriage only—(i) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent, including where the respondent has committed adultery;(ii) that the applicant and the respondent have lived apart for a continuous period of at least two years immediately preceding the making of the application;(iii) that the respondent has deserted the applicant for a continuous period of at least two years immediately preceding the making of the application.”

[Lord Farmer (Con)]

My Lords, I shall speak also to the other amendments in this group. It is not at all the norm for me to table amendments that appear to strike at the heart of what the Government, on whose Benches I sit, are trying to achieve. It is not something that I relish in any way. However, I feel compelled to keep challenging the introduction of no-fault divorce in this country. This is, in fact, because I support the two key principles set out in the original consultation paper and do not believe that removing the ability to cite fault fulfils them.

Those principles are, first, that the decision to divorce continues to be a considered one, giving spouses the opportunity to change course, and, secondly, that spouses are not put through legal requirements that do not serve their or the state’s interests and can lead to ongoing conflict and poor outcomes for children.

I realise that the various Front-Bench justice spokespersons, many of whom are lawyers, are for this Bill. However, I have become aware that many Back-Benchers and even some Front-Benchers are not truly cognisant of its contents and implications. I have a great respect for the legal profession but it is deliberate and appropriate that this House welcomes and appreciates those from different backgrounds who can provide a wider view.

The purpose of all my amendments—2, 5A, 6A, which supersedes Amendment 6, and 7, 8, 9, 11 and 12—is to retain the good things in this Bill and reject the bad. I am referring to those elements which I do not think will serve the best interests of families in our country. They aim better to fulfil the laudable principles with which the Government embarked on divorce reform. My amendments will retain the option for both parties in the marriage or civil partnership to make a joint application for a divorce, judicial separation or dissolution. They will also retain the minimum time period before which a divorce or dissolution cannot be granted. I heard what my noble and learned friend Lord Keen said about many fault-based divorces taking less time than the six months currently proposed.

My amendments would also retain the ability in the current law to cite fault to obtain a divorce or dissolution and to contest a divorce. I know that this happens rarely and that only 2% of respondents state intention to defend, with fewer than half of these going through the formal process. I also know that the number contesting may be less than 1,000 every year and that many are resisting the particulars of unreasonable behaviour and other fault-based facts. However, some will be trying to keep their marriage vows alive by resisting being unilaterally divorced.

At least the current law enables them to mount that defence. The removal of this facility ushers in, de jure, unilateral divorce with the full approval of the state. This is justified on the dubious grounds that we already have unilateral divorce de facto. This is where a reluctant respondent, who might have much preferred to attempt reconciliation, is more or less forced to accept that their marriage is over when fault facts of dubious veracity are used to establish the ground for divorce. Would it not be better to curtail the motivation and ability of people to do this through the minimum time limits proposed in the Bill and by significantly reducing the separation periods with and without consent so that they more closely resemble the Scottish system? That is what my amendments would also achieve.

A couple could jointly apply after one year’s separation. There would then be another six months to run, during which time, one hopes, much progress could be made on real areas of conflict—finances and children. A sole applicant could apply after just two years’ separation. In 2015-16, only 6% of divorces in Scotland were fault based because of these other remedies.

I have already alluded to the support of noble and learned Members of this House for the more draconian measures proposed in the Bill, so I know what I am up against, and I have very rarely experienced in this House an argument that has changed people’s minds. I still want to take the time to explain why I believe that these amendments will more adequately fulfil the Government’s stated principles.

On the first principle—

“that the decision to divorce continues to be a considered one, giving spouses the opportunity to change course”—

how does a sole application leading to a divorce after a 20-week reflection period, plus six weeks, achieve this? Leaving aside the important issue of both parties having the full extent of that period, I simply ask noble Lords whether no-fault divorce really does allow for reflection.

If fault is discarded, people can simply go online, late at night, after what may have been a rather trivial or resolvable argument—or possibly too many drinks—and apply within minutes. The irretrievable breakdown of the marriage would, in effect, be proven by the impetuous completion of that form. As one mediator writing on the Family Law website expressed it:

“Our culture has changed, and we must be alive to the unalterable fact that our online world can eliminate vital processing and reflection time.”


To those who argue that online completion allows that already anyway, I say this. The need to cite a fault fact will in itself be a moment of pause, even a deterrent, for many who might be all too well aware when they are doing so that their spouse could counter-accuse them of far worse.

I have also been told that it is patronising to suggest that those who come through the door, particularly of our top lawyers, to arrange a divorce are not doing it with very careful consideration. For this cohort, I am in complete agreement that this move will have been well thought through, not least as there is often so much money and property at stake. However, there will be many who think that they have far less to lose, and who may have given the issue far less thought.

Again, I am aware of Professor Janet Walker’s research, cited by the Nuffield Foundation’s Finding Fault? report, in defence of the argument that divorce is rarely initiated lightly. The report states that the research showed that the decision to divorce is not taken lightly or impetuously. Indeed, it is a typically protracted decision, based on months, if not years, of painful and difficult consideration. However, once that decision has been reached, the parties need to move forward without lengthy delays. Professor Walker’s study was a valuable analysis of provisions made in Part 2 of the Family Law Act, which was repealed. She followed thousands of people who took part in the pilots of the information meetings that would have become mandatory once the Act was brought into force. These, however, were volunteers, who had actively put themselves forward, not only to attend the meetings but to take part in research. So, despite my sincere respect for Professor Walker, I am not at all convinced that her subjects can be treated as representative of the overall divorcing population, including in terms of the level of consideration they had given to the decision to divorce.

On the second principle—that spouses

“are not put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children”—

this Bill falls very far short. I agree that the current system could be improved, but if the proposed reforms were enacted, respondents would be defenceless, in every sense of the word, and many of these are already the more vulnerable party, in financial and other ways. How are their interests served?

The assumption in debates during the passage of this Bill, as we have heard again today from the noble and learned Baroness, appears to have been that the abuser is often the respondent—but the abuser might also be the applicant. This law might penalise many more women than men, given that women are 12% worse off financially after divorce, while men are more than 30% better off.

How are the state’s interests served by this bad law, which cheapens the commitment of marriage? I have already cited research that shows that unilateral divorce leads to fewer marriages, fewer remarriages and more cohabitation, precisely because it makes marriage more like cohabitation. Does the state really want the greater instability that more cohabitation will bring, and higher numbers of children growing up without both parents? How is conflict significantly reduced when most of it is either prior to the divorce procedure or separate from it, at the stages when issues of money and children are being resolved?

--- Later in debate ---

[Lord Farmer]

My Lords, I thank all noble Lords who contributed to the debate on my amendments. They backed up my argument that opinions do not change much in this House when you put forward a case. I thank the Minister for the commitments he just made.

It was said that these amendments go back to the dark ages. In a way, what I was saying when I spoke to them was that they line up very well with what is going on in Scotland, which seems to work very well. In Scotland, there are reduced time periods of one year and two years instead of two years and five years. I am not suggesting that we go back to 1973. The Minister also defended the Finding Fault? review from my criticisms. The process of peer review should be ruthlessly rigorous. It should involve at least two academics reading an anonymised script and aim to be as objective as possible. Other Nuffield Foundation research has been turned into peer-reviewed journal articles. I can give my noble friend at least one example: “Reforming family law—the case of cohabitation: ‘things may not work out as you expect’”, by Jo Miles, Fran Wasoff and Enid Mordaunt.

Ms Miles is on record as saying:

“Divorce law has not got anything to contribute; it is changes in society”


which have led to increased divorce. She is entitled to her opinion, but that is a contested view. The Nuffield Foundation did not ask someone with a different view who could have provided a profound challenge to its assumptions, methodology et cetera, but someone who was of the view that this legal change would not have an adverse effect on society. Unsurprisingly, the research assumes that divorce rates will be unaffected by the law. I just mention that in reply to the Minister.

In any event, I must join my noble friend Lord McColl in waiting to hear what the elected Members of the other place make of this. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, in response to my amendment on children in Committee, the Minister said:

“Divorce, at least in terms of the legal process, is of limited duration”.—[Official Report, 3/3/20; col. 549.]


It may be seen in those terms by parents but I suggest to the Minister that that is not the case for children. He also suggested that I should review the family test for the Bill in response to the research evidence that I presented in Committee. I have done so and it seems largely to focus on reducing conflict between parents. The document refers to one specific study, which is described as highlighting the fact that

“frequent, intense, poorly resolved and child related interparental conflict adversely affects long-term emotional, behavioural, social, academic development, and future intergenerational/interpersonal relationship behaviours for”

children and young people.

Much has been made in this House of the damage done to children by warring parents staying together—I think that message will have reached the public loud and clear—and I am sure that in those situations children are not surprised to find their parents choosing to divorce. However, I am concerned that both our parliamentary debate and general public discourse have been less informed of the fact that where there is no conflict between parents, divorce can be more harmful to their children than their staying together. Children can face a divorce that comes out of nowhere.

I quoted extensively in Committee from research that highlighted this issue. I hope the House will also allow me to summarise that again. First, of those who split up, low-conflict families tare in the majority—that is, 60% compared to 9% high-conflict couples. Secondly, a 12-year longitudinal study found that children in low-conflict families had higher levels of well-being if their parents stayed together than if they divorced. The noble Lord, Lord Browne, quoted social scientist Elizabeth Marquardt, who said:

“The children of low-conflict couples fare worse after divorce because the divorce marks their first exposure to a serious problem. One day, without much warning, their world just falls apart.”


Thirdly, it is the new reality that children find themselves in that brings them stress after parents with low conflict split up—possibly in a new home, a new school and a new relationship with both parents as one moves away and the other takes on more responsibility.

My amendment does not say that parents must not divorce. Rather, it would require the Secretary of State to

“publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending when there is either no conflict or low conflict between the parties.”

So far the Government have chosen to adopt the rather un-nuanced approach that conflict is always bad for children and that minimising it to the greatest possible extent is always good. They have not demonstrated any willingness to engage with the research that suggests that, first, while of course conflict is generally negative, there are occasions when a lack of conflict can make things even worse for children; and, secondly, that in a low-conflict context the interests of the children are best served by the marriage continuing. In that context, it makes sense that the Government should do more to encourage couples to fight for their marriage, rather than say, “It’s an autonomous decision” and go out of their way to remove obstacles to its termination.

In this context, I am moving this amendment because I want to ask the Lord Chancellor to engage formally with this research. The family test is inadequate because it does not do so. This is a major problem. There is a strong argument for saying that, until such time as the Lord Chancellor has engaged with this research, this legislation should proceed no further. I beg to move.

[Lord Farmer]

My Lords, I will speak to my Amendment 16. I have brought back this amendment on the need for an annual report on the impact of the Bill because I disagree with the Minister’s reasons for rejecting it in Committee.

As I said, we could have moved to a divorce system that more closely resembled that of Scotland, which has much to recommend it, given that it sees so few fault applications. However, the Government have chosen to undertake an uncharted course, to a system described as enabling possibly the fastest divorce in the world, certainly for recipients of an application. Therefore, it seems irresponsible not to keep very careful track of any changes in our divorce, dissolution and separation patterns which ensue from this very significant change, especially given the existing high rates of family breakdown in this country.

I mentioned in Committee that research on which the Government have relied to justify removing fault points to how this degrades the commitment of marriage. Professor Wolfers says that its benefits are reduced; therefore cohabitation, which is widely agreed to be a less stable relationship form, becomes more common. So this will, very likely, have a knock-on effect on the number of children who experience the breakdown of their parents’ relationship.

I disagree with the Minister that the requirement to report annually on the number of divorce applications, including by gender, is unnecessary, given that the data is already publicly available and published in the Family Court Statistics Quarterly. The point of reporting is to be accountable for changes in that data and to draw Parliament’s attention to it. If the Government are not convinced that the Act will have a detrimental effect on any of these patterns, they should have no qualms about reporting on it.

I also disagree that it would be unduly onerous for the courts service to collect income data, or unduly intrusive for the applicants to supply it. The collection of income data is easily achieved by including this in standard demographic data income bands, the completion of which would of course be voluntary. We are constantly told that data collection is important to the Government, to help understand why people make choices, and to help make forecasts for the future. Understanding how different income brackets are affected by a policy is therefore not unusual or shocking. It makes no sense to me that in this area the Government are so coy about asking people to give them this information.

In conclusion, there is an inconsistency in the Government’s approach to informing themselves when it comes to tracking the effects of this Bill, despite the heavy social costs of relationship failure and the ramifications across the whole of government. I encourage the Minister to see the constructive point of this amendment in helping the future outworking of this law.

[Lord McColl of Dulwich]

My Lords, I wish to speak to Amendment 17 in my name. It seeks to address some confusion that emerged during debate in Committee. I will not press this amendment to a vote but I hope that, as a result of this debate, we may gain greater clarity about the place for reconciliation during the divorce process.

We have heard very mixed messages from the Government on their commitment to reconciliation in the divorce process. On the one hand, there have been repeated statements of interest in promoting it. I have found no fewer than 30 occasions where the Government have said that promoting reconciliation during divorce is part of the policy intention behind these reforms.

I would like to highlight a few of these statements. The initial consultation document from September 2018 stated:

“The reformed law should have two objectives: to make sure that the decision to divorce continues to be a considered one, and that spouses have an opportunity to change course”.


The Government’s response to the consultation in April last year stated:

“Sometimes, a marriage will still be reparable at the point at which one spouse seeks the divorce … But the law can—and should—have a role in providing couples with an opportunity to reflect on that momentous decision and to pull back from the brink if they decide that reconciliation is achievable.”


At Second Reading of the Bill in the other place in June last year, the then Justice Minister stated:

“The Government believe that the need to confirm to the court that it may make the conditional order, and to apply to the court for the final order, means that a divorce or dissolution is never automatic and that the decision to divorce is a considered one, with opportunities for a change of heart right up to the last moment.”—[Official Report, Commons, 25/6/19; col. 580.]


This is consistent with the family impact test assessment, which suggests that one of the strengths of the new system is the increased scope that it will provide for reconciliation. It states:

“The current law works against reconciliation by incentivising (in order to get a divorce more quickly) a spouse to make allegations about the other spouse’s conduct which can create conflict … The current law also offers little opportunity for reflection and conciliation, as the initial decree of divorce can come only a matter of weeks after the divorce proceedings have started.”


It then says that the Government want to exploit the new opportunities for reconciliation under a no-fault system, saying:

“We want to create conditions for couples and parents to reconcile if they can”.


Yet despite these repeated statements in support of reconciliation, and the suggestion that the scope of reconciliation will be enhanced in the no-fault system, there is little or no evidence of a political will to exploit this. On the contrary, there have instead been contradictory statements that reconciliation is not possible once the divorce process has started. I was concerned that, in response to my amendment in Committee, the Minister replied:

“The noble Lord expressed concern, as did others, that the Government’s statistics give the impression that a significant number of divorce petitions never reach decree absolute. There is, however, no evidence that these represent cases of reconciliation.”—[Official Report, 3/3/20; col. 537.]


Later in the proceedings, he said:

“I understand the desire of noble Lords to see that the marriage relationship can be supported, but it has to be supported at the right time. That is not at the point of an application for divorce on the grounds of irretrievable breakdown, which is why we do not consider that the Bill is the right vehicle for tackling the wider issues that lead to relationship breakdown.”—[Official Report, 3/3/20; col. 565.]


There seems to be some conflict between these two sets of statements, so I am probing the Government’s intention. If one believes that reconciliation, once divorce begins, is so unlikely that it makes no sense to prioritise it, then the statements in the consultation, consultation response, press releases, family impact assessment and at previous readings of this Bill all seem misplaced.