Divorce, Dissolution and Separation Bill [HL]

Debate between Lord Keen of Elie and Baroness Shackleton of Belgravia

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

[Baroness Shackleton of Belgravia]

My Lords, I wish to speak against the amendment. There is a practicality that is overlooked here, and that is the question of living separate and apart. It is not feasible financially or possible, particularly with children, for one party to up sticks and leave the matrimonial home; often this means returning to their parents and different schooling. It is just not viable.

The real problem with divorce is that it is now socially acceptable; there is no stigma on divorce. I believe passionately in marriage. I am also a patron of the Marriage Foundation, which supports this measure. In an earlier speech, my noble friend referred to the elite readers of the Times running a campaign to support the Bill. It was actually spearheaded by Sir Paul Coleridge, who is the head of the Marriage Foundation, because he believes the Bill is pro-marriage. It stops the agony when one party needs to exit a marriage. The amendment would effectively wreck a Bill that most practising lawyers support.

I will add that the very rich have something in common with the very poor: they are the least affected by divorce. So the people at the bottom of the scale are going to be no more inhibited from getting a divorce than those at the top.

[Lord Keen of Elie]

My Lords, I thank my noble friend Lord Farmer and other noble Lords for their contributions to the debate. I will speak to Amendment 2 and the other amendments in the group: 5A, 6, 6A, 7, 8, 9, 11 and 12. These amendments seek to retain the requirement on the court to inquire into any facts alleged by the applicant or indeed the respondent, and to be satisfied as to the facts alleged before holding that a marriage or civil partnership has broken down irretrievably. The exception would be that it would retain the approach under the Bill for joint applications.

With the greatest of respect, these amendments would drive a coach and horses through the Government’s measured and progressive Bill; the Government cannot accept them. They seek to maintain the status quo and deny any meaningful reform of the law—reform that is long overdue and which commands broad support in both Houses and beyond. Removing the use of blame in the legal process of divorce, dissolution and separation is a key objective of the Government. We know from the evidence that incentivising a spouse to make allegations about the other spouse at the outset of the legal process can simply worsen conflict. That conflict can then play out not only during the legal process of divorce but in any linked proceedings about financial matters or children.

In Committee, my noble friend said that much weight has been put on the evidence from research by the University of Exeter, funded by the Nuffield Foundation. He referred to the Finding Fault? study as

“a piece of grey literature … that … has not been peer reviewed.”—[Official Report, 3/3/2020; col. 553.]

and said that the reliance of the Government and, indeed, noble Lords, on this research was in his view surprising. He further noted that it was based on one study involving 81 interviews and an analysis of 300 divorces.

I am bound to say that the Government and many others find the evidence from this important research compelling. The Finding Fault? project, led by Professor Trinder, was peer-reviewed at application stage and scrutinised throughout by an expert advisory group, and the final report was reviewed by a senior academic and two members of the Nuffield research team. It has since been widely cited in academic family law textbooks. Indeed, I note that it has been referred to with approval by those with considerable experience in this area of the law, including my noble friend Lady Shackleton and the noble and learned Baroness, Lady Butler-Sloss.

I agree that that research has been influential. Its messages—that the current law increases conflict, encourages dishonesty and undermines the aims of the family justice system—are consistent with a body of evidence going back about 40 years, not least the Law Commission report of 1990, which led to the enactment, although not the implementation, of the Family Law Act 1996. The Finding Fault? study shows that the problems with fault-based divorce persist today. We cannot ignore that message.

Although the survey component of the study did find evidence of public support for retaining fault as part of the divorce law, this was not universal and indeed was inconsistent with other beliefs expressed by respondents—for example, that it is unfair to blame just one spouse for a marriage breakdown. The survey was only one component of the research, which also included interviews with people going through divorce, focus groups with lawyers, observation of the court scrutiny process, analysis of divorce court files and comparative analysis in other countries.

I appreciate and acknowledge the conviction of my noble friend and those who support his views that this Bill is bad for marriage, families and society, but I profoundly disagree. These reforms are measured, progressive and necessary. They are formulated on evidence that the current law works to fuel conflict, which is damaging for couples, parents and children. The law does not do what people think it does. It does not keep a party to a marriage in a relationship against their will. Marriage is a consensual union between two people. Unilateral divorce has been available under the current law for over 40 years. This Bill seeks to remove elements of the current law that can drive conflict. It does not and cannot make the painful decision to divorce any easier.

In light of this, I simply cannot agree with the terms of the amendment. We have, of course, listened to the concerns expressed about some provisions in the Bill. At this early stage, I would note this: I have committed the Government to work with the Family Procedure Rule Committee to address the issue of timely service on the respondent of the notice of proceedings by the applicant party. I have also tabled amendments to the Bill to make the delegated powers in Clauses 1 and 4, to amend the 20-week and six-week minimum periods under the Bill, subject to the affirmative resolution procedure, which will provide greater scrutiny of the measures. Finally, I have given a commitment that the Government will use the opportunity of amending court processes, including the online divorce service, to improve information about, and signposting to, important services such as marriage counselling and mediation. With those commitments in mind, I urge noble Lords to support the Bill in its present form and invite my noble friend to withdraw his amendment.

Brexit: Justice for Families, Individuals and Businesses (EU Committee Report)

Debate between Lord Keen of Elie and Baroness Shackleton of Belgravia

Wednesday 20th December 2017 Lords Chamber

[Lord Keen of Elie]

Indeed so. I am familiar with it—absolutely ghastly stuff.

It is not stuck; it so happens that the convention has moved more slowly than Brussels in this context. Lugano was essentially in parallel with Brussels I. When Brussels moved on to Brussels Ia Lugano did not accelerate at the same speed, but that is not to say that it is in aspic.

I may have misheard the noble Baroness, but she suggested, in the context of arbitration, that there was no allowance for enforcement of arbitral judgments. That is not the case, because the New York convention provides for enforcement of arbitral judgments. That applies right across the world. It is not limited in any sense to the EU. Again, it seems arbitration—and commercial arbitration, which is particularly important in the context of the City of London, for example—is not affected by these issues of reciprocal judicial agreement and enforcement.

The noble Baroness, Lady Shackleton of Belgravia, suggested that the Government’s response was disappointing. I hope we have moved on from that point. She suggested that the reference to things being wound down would not do, but with great respect, we have no desire to see any of this wound down. We seek certainty, predictability and an outcome that we can say is in parallel with Brussels Ia, Brussels II and the other regulations referred to.

The noble Lord, Lord Cashman, referred to the Brussels regulations having a significant role. He is absolutely correct about that and we acknowledge it. Indeed—I believe I can get this far—we certainly agree as to our goal. He may feel that we are a little less certain than others about how we get to it, but there is no suggestion or intention of us walking away from these regulations. We will have to address the question of the direct jurisdiction of the CJEU and we acknowledge that.

[Baroness Shackleton of Belgravia]

I apologise for interrupting, but I did not invent the phrase “wound down”. I can quote it directly back to the noble and learned Lord. The Government’s reaction to our report was,

“in the event that we do not agree an arrangement for future civil judicial cooperation with the EU, it will be important to have reached a common view on the general principles that would govern how ongoing cooperation in this area could be wound down”.

[Lord Keen of Elie]

That is absolutely correct, but the noble Earl, Lord Kinnoull, brought this out more fully when he distinguished between cases in the pipeline and those that arise post Brexit. As paragraph 91 of the joint report points out, there will essentially be agreement—or consensus; let me put it that way—on how we deal with existing cases at the point when we leave the European Union. But there is no desire to see us walk away or wind down the existing regulatory regime.

The noble and learned Lord, Lord Hope of Craighead, posed two questions in the context of the Government’s response, where we talk about a “close and comprehensive agreement”. It cannot be a mirror of what is already there, because of the jurisdiction of the CJEU, but “close and comprehensive” is what we seek.

The noble and learned Lord’s first question was whether we could give an assurance that the aim is to achieve the same degree of certainty and predictability. The answer, I would suggest, is yes. The aim is most certainly to achieve that. I assure him that there will be no cliff edge. We have no desire for there to be any cliff edge anywhere, but that will be the subject of negotiation because we are now entering the second phase. Perhaps it is more important to point out that the Government’s aim in this context is to ensure that we have certainty, predictability and continuity.