Divorce, Dissolution and Separation Bill [HL]

Lord McColl of Dulwich Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

[Lord McColl of Dulwich (Con)]

My Lords, I very much congratulate the noble Baroness, Lady Hunt of Bethnal Green, on her maiden speech; she is most welcome.

I suggest that one cannot alter the terms for undoing a marriage without engaging with how the law understands marriage and the norms associated with it. This is actually a very important matter for the Government, because the social science evidence is so clear that marriage has such far-reaching positive public policy consequences for both adult and child well-being, irrespective of income. The evidence is far too extensive to cite at any length now, but by way of merely providing a sample I draw attention to the following claims from recent research. The size of the health gain from marriage might be as large as the benefit from giving up smoking. Marital status is a predictor of survival in patients with lung cancer, leading researchers to suggest that if marriage were a drug it would be hailed as a miracle cure. Studies consistently indicate that marriage reduces heavy drinking and overall alcohol consumption. Those who are married have the lowest risk of suicide—a difference that has persisted for over the last 25 years.

For children, meanwhile, recent studies show, among other things, that strong relationships exist between their mother’s marital status at the time of birth and birth weight. The prevalence of mental health issues among children of cohabiting parents is over 75% higher than among those of married parents. Growing up with married parents is associated with better physical health in adulthood and increased longevity. Children from broken homes are nine times more likely to become young offenders, accounting for 70% of all young offenders.

I am aware of course that at this point someone might seek to argue that the stability and attendant benefits have nothing to do with marriage and everything to do with the income of the couple in question. However, this does not stand up to scrutiny. That marriage is an independent benefit is seen in the fact that the poorest 20% of married couples are more stable than all but the richest 20% of cohabiting couples.

While we should always keep in mind the huge public policy benefits of marriage, it does not change the fact that, sadly, some marriages do not last. In this case, we need to ensure that the legislation in place governing the process by which marriage is ended works as smoothly as possible. The argument for the Bill is that the current law is needlessly conflictual. Under the current divorce law, the right to be released from the serious marriage commitment necessitates that something equally serious must have happened, be it adultery or unreasonable behaviour, both of which have to be acknowledged. The Bill removes that requirement and instead enables one person to initiate divorce proceedings simply because they want to leave the marriage, without any need to acknowledge or verify the serious development. If one person wants out, all they would need to do under the Bill is assert that the relationship has broken down, irrespective of whether it has, beyond the fact that he or she has asserted the statement and started divorce proceedings.

In this context, I will make two suggestions. The first relates to the length of the divorce process and the second to how the process is utilised. First, on the length of the divorce process, it seems that there are two elements in the current law that seek to reflect the serious nature of the marriage commitment. The first is the fact that this serious commitment cannot be swept away without an equally serious development that merits it, the raising of which necessitates the attribution of fault.

The second is that, having made this commitment, one cannot simply walk away. The serious nature of the commitment is reflected in the fact that terminating the marriage commitment takes time. The Bill, as currently construed, conflates these two things. Removal of fault is linked to a much faster divorce process, but it does not need to be. One option would be to remove fault but require significantly longer than the 26 weeks between initiating a divorce and potentially being divorced, as has been mentioned by others.

How will it seem if we propose that people have a general right to expect that they can exit a lifelong commitment in 26 weeks, when we are tied to our mobile phone contracts for 12 months? No doubt I could get out of my mobile phone contract if I paid, but we need to think very carefully about the message that we would be sending if we endorsed the Bill in its current form. If we can exit a lifelong commitment in less than a year, we are crossing a line and making what has been a lifelong commitment a much weaker, indefinite commitment.

I have no doubt that, in response, some will say, “But I know of a situation where it would just be better to terminate the relationship as quickly as possible.” I have no objection to allowing this in specific circumstances—if there are personal safety concerns—but we must not allow hard cases to define our norms. It is not possible to study the social science evidence on the benefits of a lifelong marriage commitment without feeling deeply concerned about the consequences of opening the door to its termination at such speed.

Secondly, how should we use the divorce process? The other benefit of having a longer divorce process is that it will provide more time to offer help to couples who have started the divorce process. In this regard I was rather troubled when, in another place on 25 June 2019, the Member of Parliament for Mid Dorset and North Poole, intervened on the then Lord Chancellor, David Gauke, and asked what the Government were doing to help prevent marriages breaking down.

Mr Gauke responded:

“Once the point of a divorce is reached, it is likely—the evidence suggests this—that it is too late.”


On that basis, he told the House that there was no basis for reaching out to help marriages once the divorce process had begun. Indeed, his response suggested that seeking to do anything on this once the divorce process had begun would be a mistake. To be precise, what he said was,

“but where someone is going through the divorce process, making that process more difficult and confrontational is counter- productive.”—[Official Report, Commons, 25/6/19; col. 578.]

This is simply not supported by the facts. Ministry of Justice family court statistics show that between 2003 and 2016, an average of 9.5% of divorce petitions that were started did not reach decree absolute. That is an astonishing 12,709 couples each year who did not complete the divorce process. So the idea that once the divorce process has begun it is too late does not stand up to scrutiny; 12, 709 marriages per annum is a lot of marriages.

Our objective should be, through good public policy interventions, to increase that 12,709 figure, mindful of the benefit of doing so both for the adults concerned and their children. Moreover, we must be aware that, as an increasing number of divorce petitions are filed online, the number culminating in divorce seems to be decreasing. Provisional results from a freedom of information request by the International Family Law Group last year found that online divorces were less likely to proceed to a final decree than paper divorces. That makes the need for maximising counselling options during the process of a divorce that much more important. We must provide couples who have commenced the divorce process with the opportunity to reconcile where possible, not put them on a conveyor belt towards certain divorce.