Divorce, Dissolution and Separation Bill [HL]

Debate between Lord Farmer and Lord Marks of Henley-on-Thames

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

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this amendment more than doubling the period before conditional order seems to be based on the proposition that the law obliging people to stay married for longer will either help children or encourage more reconciliations. In the debate on Amendment 2, speakers on all sides of the House demonstrated the fundamental commitment of us all to the welfare of children, who—as we all agree—suffer badly from family breakdown and its consequences. The noble and learned Lord spoke eloquently on that. For all the reasons given by many noble Lords in the earlier debate, I agree with those who have said there is no basis for saying that the children’s interests would be best served by denying or delaying divorce to one or both parties to a marriage who have determined on a divorce.

As for the second proposition, that keeping unwilling couples tied into a failed marriage for a longer period may lead to more reconciliations, the evidence is overwhelmingly to the contrary. The decision to divorce is a hard one, rarely taken lightly. Of course, changes of mind occur. Separated couples often get back together—sometimes successfully and sometimes not, as the noble and learned Baroness, Lady Butler-Sloss, pointed out earlier—but in every such case they make the decision to reconcile willingly, not because they are obliged by law to try to do so. In some cases, of course, divorced couples even remarry each other. Again, that step is open to couples after divorce and is dependent on free will, not obligation.

Once the decision to divorce has been made, forcing parties to stay married for longer than is necessary to confirm that decision serves no purpose. Enforced delay rarely leads to reconciliation. It extends the unhappiness and uncertainty. It infringes on the parties’ autonomy, preventing them making decisions for themselves, arranging their new personal lives and futures, making safe and secure arrangements for their children and organising their family finances. It also—most significantly, I suggest—extends the hostility between the parties, who are frequently embittered by divorce proceedings and whose embitterment starts to heal only when the divorce is finalised and they go about the business of joint but separate parenting or building new, separate lives. This Bill is all about reducing bitterness by removing fault from the actual process of divorce.

The Government have proposed a 20-week period—reflecting other jurisdictions, such as New York and Finland—as appropriate for the confirmation of the decision to divorce. No period will ever be perfect to the week, but my belief is that the 20-week period to a conditional order is about right and is supported by the evidence. I commend the Government for choosing it.

[Lord Farmer (Con)]

My Lords, I have attached my name to Amendment 21 tabled by my noble and learned friend Lord Mackay of Clashfern. As he said, his original Family Law Act 1996 required this longer period, and explicitly stated that this enabled the children and the finances to be resolved. Importantly, this meant that someone was not free to remarry before these important responsibilities from the former marriage had been put to bed. To quote my noble and learned friend, at Second Reading on the Family Law Bill, he said:

“A very important requirement in the Bill is the requirement that parties decide all arrangements relating to their children, finance and home before a separation or divorce order can be made… In making this change the Government have been influenced by those who responded to their consultation paper who were of the view that parties who marry should discharge their obligations undertaken when they contracted their earlier marriage, and also their responsibilities which they undertook when they became parents, before they become free to remarry.” [Official Report, 30/11/95; col. 703.]


I am fully aware that the report Finding Fault? Divorce Law and Practice in England and Wales states that the average length of divorce proceedings is currently six months. A six-month minimum period would therefore mirror current practice. A longer period would be punitive for those who need to divorce quickly. This would include those experiencing domestic abuse, as we have heard, with 15% of Finding Fault? petitioners citing physical violence.

To this I say two things. First, it seems that when it suits the researchers, behaviour patterns are accurate, so when 15% cite domestic violence, what they say is accurate. Yet as I understand it, one of the main reasons for this no-fault divorce—for removing fault from divorce—is that in the majority of cases, the reason given is either false or inaccurate.

Secondly, in the consultation preceding the Bill before us, in response to the question: “What minimum period do you think would be most appropriate to reduce family conflict, and how should it be measured?”, 1,044 people—33% of the 3,128 responses—said a year. Only 297—9%—said six months.

In their response to the consultation, the Government said:

“Those opposed to reforms proposed a minimum period of one or two years, depending on whether the application was joint or sole, or on whether the couple had children.”


In other words, those opposing the reforms should be ignored, even though they were in the majority. Remember the bigger picture of the consultation: 83% wanted to retain the right for an individual to contest a divorce. Only 15% stated that this right should be removed. Also, some 80% did not agree with the proposal to replace the five facts with a notification process. A mere 17% were in favour. However, the Government also said:

“Those who selected nine months or longer felt that this would enable counselling or mediation and proper reflection to enable reconciliation where possible. In particular, those suggesting a year or more felt that this would more properly reflect the importance of both marriage and divorce as significant life decisions, particularly in cases involving children or where one party wishes to remain in the marriage.”


This Bill takes account only of the worst-case scenario—domestic violence—and deems the application for divorce to be a one-way street towards a final order.

The Bill should also take account of good things happening. The Government have said that they wish to make sure that couples have sufficient time to reflect on the decision to divorce and that that reflection period may result in them pulling back from the brink. I have heard noble Lords say today that when someone applies for a divorce because of irretrievable breakdown there is no going back, but we are introducing a new element into divorce proceedings based on the applicant saying that there is one-fault divorce. For example, a husband who is having an affair with someone in the office and his wife has no idea about it, knows that all he needs to do is write a letter to the court and say that the marriage has irretrievably broken down. The wife has not been advised and this comes as a bombshell to her. There could be many instances like this where, because of the new procedure, a unilateral request for a divorce is not recognised by both parties.

Many people initiate divorce early in the new year, which is also a popular time for booking one’s summer holidays six months hence. We all know that that six months goes extremely quickly and, before you know where you are, you are in June when it was January. Likewise, a divorce which gathers momentum and is all over at the end of six months will seem to come around very quickly, especially for the party who has been unilaterally divorced. Time for reflection and reconciliation will be squeezed out.

If the Government were to accept the amendment, I would expect it to extend to Clause 4 and to civil partnerships.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I rise to speak to the amendments standing in my name and that of my noble friend Lady Burt of Solihull. Amendments 8 and 9 concern applications for divorce orders, Amendments 11 to 13 concern applications for judicial separation orders, and Amendments 17 and 18 concern applications for dissolution orders in respect of civil partnerships. In speaking, I shall address the applications for divorce orders, but the others run in parallel.

Our amendments have one theme: the Bill starts the 20-week period leading to the conditional order with the start of proceedings. I see the point the noble and learned Lord, Lord Mackay, makes that that is not technically defined, but on any ordinary construction—the construction intended by the drafters of the Bill—the start of the proceedings is the issue of the application.

Concern was expressed at Second Reading and publicly that, under the Bill as drafted, the respondent may not receive notice of the application for a conditional order—this the point the noble and learned Lord was making—before much or all of the 20-week period has passed. He or she may not, therefore, have had time to consider his or her position before the proceedings are effectively determined, so the respondent could find himself or herself subject to a conditional order before even knowing of the proceedings. To that concern, some supporters of the Bill—which I strongly support—respond that to start the 20-week period only on service of the proceedings would encourage, or at the very least enable, unco-operative respondents to evade service or to refrain from acknowledging service, and that would frustrate the proceedings. This concern was mentioned by the noble and learned Lord at Second Reading. Our probing amendments are designed to encourage a search for a compromise by requiring an applicant to serve his or her application for a divorce order quickly, with provision for that applicant to apply to dispense with service, or to apply for an order that service be deemed. Those provisions would involve an obligation to ensure that the applicant knows of the proceedings well before a conditional order is made and, at the same time, to prevent respondents from seeking to frustrate the proceedings by avoiding service or not responding to them.

We have suggested a time limit of six weeks for service by the applicant—of the application for an order or for an alternative order—dispensing with or deeming service. We recognise the concerns of some, including those of Professor Trinder from the University of Exeter—I completely endorse her views on every other aspect of the Bill—but it is difficult, at present, to secure an order dispensing with or deeming service within a six-week time limit. I agree with the noble and learned Lord that rule changes could be made to speed up those procedures. There is a possible concern, also mentioned by some, that “service” needs better definition for this Bill. Perhaps it does, but that can be achieved.

Neither I nor any other noble Lord who supports these amendments is dogmatic about the precise definitions or time limits. At Second Reading, the Minister indicated an openness to discussion on this issue. I am very grateful to him for the time he and his officials have given to the discussions we have had between Second Reading and Committee. I hope that discussions with and within the department will enable a compromise to be reached which will achieve an acceptable balance between applicants and respondents and between simplifying procedures and avoiding injustice. We hope to discuss these issues further, including any necessary rule changes to implement a compromise and the procedures needed to bring about or clarify those rule changes, before Report.

[Lord Farmer]

My Lords, I shall speak now to my Amendments 5 and 15, which includes civil partnerships. If the 20-week period begins as soon as the application is made, the respondent may have less than 20 weeks by the time they have been served notice. There is even the possibility that they may not hear about it until the end of the period. We can all imagine scenarios in which this could have very negative consequences for the respondent in a sole petition who may have been unaware that the marriage was in the dire straits that a divorce application suggests. It also gives the applicant the advantage. One hears of parental alienation syndrome, where one party can persuade the children to come round to their way of thinking. Also, when it comes to talking about and arranging the finances, one party can find that they have been hidden away.