Divorce, Dissolution and Separation Bill [HL]

Lord Morrow Excerpts

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

[Lord Harries of Pentregarth (CB)]

My Lords, I would suggest that there are two issues behind the amendment moved by the noble Lord, Lord McColl, and I am not sure that the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss, have really addressed them. One is whether there should be a sort of extended time period—“I think the marriage may have broken down”—to allow for reconciliation, while the other is the situation where a woman is pretty certain that her marriage has broken down. She is living apart from her husband with her children, but she still has some hope. Then, out of the blue, a note comes through, perhaps rather late in the day, that her husband has actually petitioned for divorce.

I think that outside of this House there is quite a widespread worry about what the noble Lord, Lord McColl, has called the rights and the dignity of a person in that situation. I accept all the other arguments that have been put forward, but will the Government address the situation where something might come, if not as a total surprise then as rather a bitter blow that it should have reached this stage and the party has heard about it so late?

[Lord Morrow (DUP)]

My Lords, the noble Lord, Lord McColl, has intimated that he will not be testing the opinion of the House on this matter, but nevertheless, I rise to support Amendment 1. There are some things worth saying in relation to this important amendment and on this very important issue.

The noble Lord listened carefully to the previous debate and his new amendment now seeks only to avoid use of the term “irretrievable breakdown”—nothing more, nothing less—at the start of a divorce application when it is made by one party to a marriage. Where the couple have decided by mutual agreement, and it is clear that they have discussed the matter in advance and come to a view, this amendment does not propose a different statement at the start of the procedure from that which is made on actually applying for the conditional order. This is positive for two reasons. First, it means that the amendment focuses on the particular group of people who are likely to be disadvantaged by this Bill: namely, the respondents in the case of a unilateral divorce application in the absence of fault.

As the noble Lord explained, under the current system, around 40% of divorces are made in the absence of fault through a prior period of separation of either two years in cases where there is agreement or five years in cases of disagreement. In the context of these divorces, at present the respondent gets at least two years’ warning before the statement of irretrievable breakdown can be made. Under the Bill, they could get no warning at all and they will also lose their right to contest the divorce, which is a double whammy, truncating their rights on two fronts simultaneously.

Before I talk about the important service that Amendment 1 provides in addressing these difficulties, I would like to comment briefly on them, and particularly on their political significance.

The noble Lord, Lord McColl, expressed his worry about the psychological impact of the heightened insecurity that the Bill will visit on some marriages. People in marriages today who judge that it is not beyond the bounds of possibility that their spouse might suggest divorce, although neither party has committed adultery or behaved unreasonably, know that, even if they were unable to persuade their spouse to change their mind, they could not have a declaration of irretrievable breakdown visited on them for at least two years. There is in this a certain security, which this Bill will remove for 40% of current divorces.

It seems strange that the Government should want to associate with such a proposal. Last year, before the general election, the Conservative think tank Onward published its seminal paper The Politics of Belonging, which suggested that if the party was to win the election it must seek to engage with “Workington Man”. One of the central arguments of the report is that, having for many years prioritised freedom, the public now attach greater importance to security. On the basis of its extensive polling, the report stated that,

“by a ratio of 2-to-1, voters want to live in a society that provides greater security not greater freedom.”

It is this realignment of focus away from being primarily about freedom to a far greater emphasis on security that causes the report to argue that what is needed now is the “politics of belonging”—greater togetherness rather than greater separation.

In this context, the Bill before us today, the practical impact of which is to emphasise greater freedom for the petitioner and greater insecurity for the respondent, seems strangely out of place. Amendment 1 restores some dignity and security to the respondent by ensuring that they will not be presented with a statement of irretrievable breakdown right at the start of the process, potentially as a bolt from the blue. This means that, while they will understand that their marriage has been put on notice, they will not be presented with a form of words suggesting that it is all over from the outset.

This has two benefits. First, it treats them more gently and with greater dignity than moving straight to a statement of irretrievable breakdown. Secondly, while not restoring to the respondent a right to contest the divorce, it restores to them the opportunity to have a voice. If you present them with a statement of irretrievable breakdown, you are effectively telling them that it is all over and preventing them having a voice. If, by contrast, they are told that the marriage is on notice and that in 20 weeks a statement of irretrievable breakdown will be made unless they can persuade their spouse that their relationship is worth saving, they will at least have an opportunity to respond constructively.

Another reason this amendment is very positive is that it helps the Government fulfil their stated objective to promote reconciliation in the divorce process. This is significant because, having recognised that the current law makes reconciliation harder, the family test assessment in the new law states:

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


Under the current law, which is based on fault, one has to begin the divorce process with a declaration of irretrievable breakdown because it involves citing adultery or unreasonable behaviour.

However, in considering a new system where one does not need to prove fault, that is not necessary. We have the opportunity to bring forward new legislation and therein a new approach. Given the stated commitment to foster better conditions to promote reconciliation than we have at the moment, an obvious place to start is this amendment and its proposal not to make a statement of irretrievable breakdown until after the reflection period when applying for the conditional order.

On this point I note that the Nuffield report—which some have quoted selectively to justify not prioritising reconciliation during the divorce process—states that, under a system where one party is notified of the intention to divorce, as proposed by this Bill,

“there is also the possibility that notification would be more facilitative of reconciliation.”

In other words, we should recognise that, in moving to the new system, there is the potential for greater scope for reconciliation than under the current system, because of the notification system.

Finally, it seems that the noble Lord, Lord McColl, has managed through the amendment to identify a means to use non-fault notification that is more facilitative of reconciliation. In this context, to reject the amendment because, up until this point, the divorce process had always started with a statement of irretrievable breakdown would be very odd, given that the whole point of this exercise is to change divorce law. I very much hope that the Government will not dismiss the amendment but give it proper consideration.

--- Later in debate ---

[Lord Browne of Belmont]

My Lords, I rise to speak to Amendment 15 in the name of the noble Baroness, Lady Howe. As I noted in my speech in Committee, in all our debates on the Bill we must not forget children. The Family Impact Test assessment affirms the Bill on the basis that it seeks to “reduce conflict”. However, while I fully understand the Government’s desire to reduce conflict in the divorce process, it is telling that the majority of couples who divorce are in low-conflict relationships.

The figure mentioned by the noble Baroness, Lady Howe, is that 60% of couples that split are in low-conflict relationships. This research comes from Professor Spencer James of Brigham Young University. He states that these low-conflict couples are

“largely indistinguishable before they split from couples that remain together”.

These findings challenge the assumption that the majority of couples that split up are in constant conflict with one another, yet that assumption seems to underpin this legislation. James’s research comes from the UK’s largest household panel survey, Understanding Society. He found that only 9% of married couples in the United Kingdom who split could be described as high-conflict couples. He states:

“Both unhappiness and conflict are far less prevalent among couples who are about to split than one might reasonably expect.”


All of this is important when we return to research on the impact on children of family breakdown. Parents are more likely fall into poverty following separation. Therefore, they need much greater levels of state support. Some 60% of lone parents receive housing benefit, compared to just 10% of couple parents. Even when income and education are taken into account, studies find negative effects on children from divorce. One study, from Lee and McLanahan, looking at 2,952 mothers and children, revealed that instability especially affects children’s socioemotional development.

Yet the impact of divorce on children seems to depend on what came before. Children tend to do better if their parents exit a high-conflict relationship and worse if they exit a low-conflict one. As James notes in the research I mentioned earlier:

“This potentially counterintuitive finding in fact makes great sense. The break-up of a low conflict relationship comes largely out of the blue for the children. They are then left to conclude either that relationships are profoundly unpredictable or that they are somehow responsible. It’s easy to see how either of these conclusions can then undermine and sabotage their own future prospects of a loving committed relationship”.


This amendment would require the Government simply to look further into the impact of no or low-conflict divorce on children. It is a significant failing that the Family Impact Test assessment has not engaged with this. I think there will be a good deal of benefit in gaining greater understanding of why these couples divorce and therefore in investing more effort in helping them. If these married couples are saying they are relatively happy one year before divorce, what pushes them to make that decision? Understanding that would enable targeted support and help.

The research I have talked about should give us hope. If 60% of couples of are low-conflict and many of them are happy one year before they divorce, perhaps those marriages could be saved. Divorce is generally not in the best interests of the children of those families, so keeping them together would be a great benefit to them. I support Amendment 15.

[Lord Morrow]

My Lords, I wish to speak in support of Amendment 17, which was tabled by the noble Lord, Lord McColl. I am aware that he does not intend to test the opinion of the House on it, but nevertheless I think there are some things that merit being said.

The noble Lord noted in Committee that there are no less than 27 references to reconciliation in the Government’s comments setting out their response to their consultation on divorce law reform. They include the statement that,

“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”.

If we look beyond that document there are plenty of other examples, including in the Family Impact Test assessment of this Bill, which states:

“The current law works against reconciliation by incentivising … a spouse to make allegations about the other spouse’s conduct which can create conflict. The alternative option which requires the couple to live apart for a substantial period of time can disincentivise efforts at reconciliation because the separation period can be affected if the couple try living together again. 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.”


In promoting a no-fault system, the Family Impact Test states:

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


In this context, it seems to me that commissioning research on how reconciliation is best facilitated under the new regime proposed by the Bill compared to the fault-based system that we have now is vital. The Minister might be preparing to tell me that reconciliation rarely happens during the divorce process, as he did in Committee when he said that there was little evidence that divorces that do not proceed do so because the couple have reconciled. If the Government really think that, it seems completely contradictory to all their statements about reconciliation.

I hope the Minister will not try to square this circle by simply saying that the Government’s position is that while it is not worth prioritising reconciliation, of course they support reconciliation when it is possible. Multiple statements of commitment to the promotion of reconciliation in the Government’s response to the consultation, press releases and family test are such that it does not make sense for the Government then to say that, by the time the divorce process starts, it is too late for reconciliation.

I note that when the Minister suggested this argument in Committee, he cited in defence the Newcastle University study of the Family Law Act 1996 pilots. He told the House about the information meetings that were part of the Family Law Act 1996 and said:

“The purpose of that meeting included providing the parties with information about marriage counselling. Academic research into various models of information meetings found that they came too late to save marriages and tended to incline parties who were unsure towards divorce.”—[Official Report, 3/3/20; col. 564.]


He also implied elsewhere in Committee that the information meetings were not effective.