Divorce, Dissolution and Separation Bill [HL]

Debate between Lord Mackay of Clashfern and Baroness Shackleton of Belgravia

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

[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.