Divorce, Dissolution and Separation Bill [HL]

Debate between Lord Morrow and Lord Bishop of Oxford

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.