Divorce, Dissolution and Separation Bill [HL]

Baroness Burt of Solihull Excerpts

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

[Baroness Burt of Solihull (LD)]

My Lords, from these Benches, I wholeheartedly welcome the Bill, enabling as it does no-fault divorce to be introduced to potentially take some of the tension and emotional strain out of leaving a marriage. It also enables joint petitions to take the sting out of what is already a difficult time. Having fault as a ground for divorce can lead to recriminations—something children traumatised enough at the break-up of their parents do not need to witness.

Another aspect is that one partner can petition and the other will no longer have the power to contest, even when it is apparent to all that the marriage has irretrievably broken down. Contested divorces are relatively uncommon, with only about 2% contesting the petition for divorce and only a handful of those going on to contest at the final hearing, but these are sad cases indeed and much unnecessary suffering can be caused.

If I may pray for the Minister’s patience, I will ask about the relevance of the spousal veto for trans people. As I understand it, when the Bill becomes law, if the spouse who has not transitioned refuses to grant permission for gender recognition, the transitioning spouse can petition for divorce; their spouse who has refused to sign cannot stop the divorce, or subsequently stop their spouse from formal recognition of the transition. It just seems wrong to me that, in some cases, recognition cannot take place unless the transitioning spouse gets divorced. I understand that the Government are adamant that the spousal veto is without the scope of the Bill, but I am sure the Minister is aware of the strength of feeling and sense of injustice felt by trans people—indeed, by anyone who supports their rights—not to be discriminated against in this way.

I see that the noble Baroness, Lady Hunt, is in her place today. I welcome her to this place and thank her for all the brilliant campaigning work that she has done for the LGBT+ community. I see that her name is on the speakers’ list to make her maiden speech in this debate; I know she will make a great contribution towards furthering the cause of equalities in this place.

I would like to raise a few other concerns for people who may conceivably be disadvantaged by these changes, and I would appreciate the assurances of the Minister on these points. First, I will address the 26-week overall period. There is currently no minimum time in which a divorce can be granted. The introduction of a minimum overall timeframe of 26 weeks seems helpful in ensuring that couples wishing to divorce do not act in haste and repent, as the saying goes, at leisure. We know that both partners need to have been married for at least a year, in most circumstances, but there is no period of reflection built into the divorce process, as recommended by the Law Society and mentioned by the noble Lord, Lord Anderson.

A couple could have a row, then if one partner completes the petition application—maybe online—the whole legal process would commence. Most marriages have their rocky patches but, in my view, a period of reflection would facilitate sober consideration of the enormity of the step to be taken, enabling them to think about it and discuss it with a marriage counsellor. If they still feel the same at the end of the period of reflection—the Law Society recommends that the first three months be litigation-free—then nothing is lost. The Law Society also recommends wider support, information and signposting to marriage and relationship support services, and to non-court-based dispute resolution services.

Secondly, I know that financial settlements are deemed outside the scope of the Bill, but the Law Society briefing is clear:

“We also strongly recommend that there is very clear signposting within the online divorce and dissolution process to the need to properly resolve financial matters before final decree.”


If the final decree is awarded before a financial order is made, there must be clear evidence that there will be no meaningful financial prejudice. I do not know how we build this into the Bill, but I think it is exceptionally important, given the tortuous lengths to which some people will go to advantage themselves financially in the divorce settlement.

Thirdly, there is the question of when the six months starts. In my view, that has to be when the petition is served, not when it is filed. Professor David Hodgson, of the International Family Law Group, says:

“There is no duty to serve at the start of the 20 weeks. It can be any time before the start of the first decree.”


He makes the point that one party could conceivably have only six weeks to respond. However, if the six months starts on the date of service, what would happen in the case of abandonment, where the other party cannot be traced, or where they are away for weeks at a time? In such exceptional circumstances, I think there would need to be a phrase saying that every reasonable effort must have been made to serve the petition before the 20-week first-stage clock starts ticking.

Those are the main issues that I wanted to raise. However, the Law Society has also raised a number of smaller issues. One is the cost of applying for a divorce. To my mind—and that of the Law Society—at £550 the application fee is too much and is discriminatory to couples without that sort of money available. It would be pretty counterproductive if a couple had to stay together, with all the misery and distress that entails, because they could not afford to get divorced.

The Law Society also thinks that simpler language would help people, particularly where English is not their first language. I appreciate that some simplification has already been made to the terms, such as replacing “decree nisi” and “decree absolute” with “conditional order” and “final order” and replacing “petitioner” with “applicant”. In a society where, for some, English is not their first language, simple and straightforward language throughout would be particularly helpful. Let us have language that anybody—even totally non-legal people like me—can understand. And the issue is not just language but the complexity of the application process. It needs to be as simple and straightforward as possible to be fully inclusive to all.

I will leave Professor Liz Trinder of the Nuffield Foundation with the final word:

“Divorce will always be an extremely difficult time for couples, but these reforms will help make sure that the law does not make it worse”.

Divorce, Dissolution and Separation Bill [HL]

Baroness Burt of Solihull Excerpts

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

[Lord Morrow (DUP)]

My Lords, I rise to speak in support of the amendment moved by the noble Lord, Lord McColl. I do so because I fear that a fundamental pessimism underpins Clause 1. It is an attitude that we have heard in speeches from Ministers and others to the effect that once a person files for divorce a marriage has by definition broken down. The Minister in the other place said that

“the moment one person decides that the marriage is over, it is indeed over.”—[Official Report, Commons, 25/6/19; col. 602.]

I question that. I do not think it is inevitable that a marriage, even one that has come to that point, is over. I prefer to allow room for reconciliation.

People can change their minds, and often do. Marriages can go through very rocky periods, yet come out the other side stronger than before. I am sure many noble Lords can think of examples. In my view, hope for reconciliation should be maintained for as long as possible, including into the divorce process. I believe reconciliation remains possible. I think that is borne out by the figures showing that each year the number of completed divorces is considerably lower than those applied for. At present, approximately 10% of divorce petitions that start each year are subsequently dropped. Couples do give their marriage another chance. I know that other explanations are offered for the shortfall: cross-petitions, petitions being re-filed on a different basis, and so on. I acknowledge all that, but are we really to believe that there are not some reconciliations within the thousands of divorces that do not complete? If there are any at all, they expose as false the assumption that divorce is inevitable after a divorce application is made. A Bill designed on that false assumption would clearly be flawed, so I am uncomfortable with Clause 1 as it stands.

At the very outset, the divorce process requires a definitive statement by the applicant or applicants that the marriage has broken down irretrievably. As I see it, that can serve only to close minds, inhibit dialogue and reduce the chance of reconciliation. The Minister in the other place described the 20-week period as “a period of reflection” but, under the Bill, the 20-week period starts out with assertion by one or both parties that the marriage has broken down irretrievably. That encourages not reflection but defeatism.

The modest change this amendment seeks to make is to reduce the sense of inevitability ever so slightly. Rather than applicants stating at the outset that the marriage has broken down irretrievably, they would have to state that it “may” have broken down irretrievably. Only at the stage of applying for the conditional order would we get to the assertion that the marriage has broken down irretrievably. This change would make the 20-week period one of genuine reflection in the hope of saving marriages. I believe it deserves noble Lords’ support, so I support the amendment.

[Baroness Burt of Solihull (LD)]

My Lords, I agree with the wise words of the noble and learned Baroness, Lady Butler-Sloss, and think that Amendment 1 is not helpful. It replaces the proof of irretrievable breakdown on the basis of a sworn statement at the outset, with that being proven only after a second sworn statement has been made after the time has elapsed for the conditional order to be made. I also dislike the wording,

“they think that the marriage may have broken down”.

It is a bit patronising. Leaving a further 20 weeks could make it more difficult for a spouse to leave an abusive relationship: “You only think our marriage is over, dear. Why don’t you come home with me and think again?” I realise that this is not consistent with my remarks at Second Reading when I spoke about periods of reflection, but I have had my own period of reflection in the intervening time. I have listened to the research findings already referred to by the noble and learned Baroness, such as those from the Finding Fault? study, which established that people do not initiate divorce proceedings unless they are sure that, for them, the marriage is over. We from these Benches will not support this amendment.

[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.

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[Baroness Butler-Sloss]

I will just finish with the two further points I wanted to make.

On the amendment moved by the noble Baroness, Lady Howe, with which, as noble Lords may have gathered, I do not agree, I cannot see how a court can adequately assess whether the children will be better off if the parents, one of whom wants a divorce, are still together or separated. There will be a difficult balancing act for the judge, and it will take a long time, because the family courts are seriously overburdened. How on earth will you find time to do this, and between a couple who will not be represented? As the noble Baroness, Lady Chakrabarti, said, there is no legal aid for couples who divorce, so the judge will have two people at odds with each other, with one or perhaps both determined to be divorced, and the children in the middle. The children ought to be informed of what is going on, but very often they are not. They need help at that time from parents who do not realise that they need help, and they particularly need information. But how on earth is the judge—or the magistrates, but in particular the judge—to say to the couple, “What is going to happen if you’re together or if you’re parted? How on earth am I to find out which way the children would want it to be?”? Particularly in cases where there is domestic abuse, the sooner that couple is parted, the better. So I am very concerned about this proposal.

Of course, we should be very careful about what we do regarding the welfare of children. However, research from the University of Exeter and the Nuffield Foundation found that where the parents cannot agree, very often the children would be better off by having them separate, and what their future ought to be can then be dealt with under the Children Acts.

[Baroness Burt of Solihull]

My Lords, I can see the sentiment behind considering the interests of the children in this matter. We will all have been moved by the testimony of the noble Baroness, Lady Meyer, about the terrible experience that she and her children underwent, but this amendment would hand the court the impossible task of deciding what is in the children’s interests without the mechanisms to do so, as the noble and learned Baroness, Lady Butler-Sloss, just said.

How would you implement a judgment forcing parents to stay together in the children’s interests? You cannot force a couple to stay together any more than you can order warring parents to create a loving environment. I hope that we are past the stage where parents stay together for the sake of the children—unless it is a mutual voluntary agreement—because, on the whole, that has been shown to do more harm than good. Children may fare better from having two loving parents who live in different places, often with different families of all kinds. Love and the secure knowledge that they are loved are what matters, no matter who makes up their family. Research has shown that parents are usually the best judge of what is in their children’s interests. Where this is not feasible, the family courts are there to help.

I am afraid that we will not support the amendment from these Benches.

[Lord Browne of Belmont (DUP)]

My Lords, I am pleased to support Amendments 2 and 14 in the name of the noble Baroness, Lady Howe.

I note with interest that these amendments were tabled in the last Session in another place by the right honourable Frank Field, who served with great distinction from 1979 until last November as the Member of Parliament for Birkenhead. He made a significant contribution to children’s issues and chaired the Field review on early years intervention. I am sure he will be pleased that the noble Baroness has taken up these amendments, which could not be debated in the other place.

Divorce affects a community: the adults involved, their friends and families and, of course, the children. The likelihood is that the effects on most children will be long-lasting. Children have to watch their parents go through a divorce, then continue their lives afterward. The research base demonstrating the damage to children from divorce is so widespread—the fact that it is now recognised as an adverse children experience, or ACE, has already been alluded to—that I will not detain the House by looking at it in any detail other than to note that family breakdown is now recognised as the biggest factor behind the UK’s child mental health crisis. More than a third of children whose parents had split up reported poor mental health, compared with a fifth of children with parents who were still together. Moreover, Hetherington and Kelly’s research interviewing the children of divorce later in life revealed that 20% to 25% of children of divorce continue to suffer lasting social and psychological problems in adulthood, compared with just 10% of children from intact families.

The fact is that, after a divorce, children find themselves in a difficult situation. As has been referred to, Cockett and Tripp’s work in The Exeter Family Study demonstrates how divorce changes family life. Their research showed that in parental conflict during marriage, the child may be able to remain on the sidelines, whereas after divorce, they may be obliged to take a central role; for example, carrying messages between resident and non-resident parents who find that they are unable to communicate face to face. Children in re-ordered families reported that their parents frequently told tales about each other or each other’s new partners. Children also sometimes felt that they had to suppress telling one parent about enjoyable times they had had with the other, or had actually been asked by one parent to keep something secret from their former partner.

Inevitably, the child’s relationship with their parents changes; for example, one may move away and the other may become more prominent in their life while finding their own way after the divorce, potentially with less financial resources. The child might find that they have to move to be with a parent and change school. A recent article on parental divorce or separation and children’s mental health said:

“Marital instability presents not a single risk factor, but a cascade of sequelae for children.”

--- Later in debate ---

[Baroness Burt of Solihull]

My Lords, I am fully in support of having strong support services for couples but, by the time they decide to divorce, I would suggest that that stage is passed and it is already too late for conciliation, as the noble Baroness, Lady Meacher, has pointed out.

I totally support Amendment 21 and the comments of my noble friend Lady Tyler. It is just the question of timing that I dispute. Professor Liz Trinder points out that practical help and advice would be of value, and financial help for these services would be most welcome, especially on benefits, housing and child support. In the vast majority of cases, mediation would not only be too late, it could be harmful. The Finding Fault? study found that more than a third of behaviour divorces included allegations of domestic abuse, some of an extremely serious nature. Why would you give the perpetrator a golden opportunity to browbeat—or worse—the victim by suggesting that the marriage may not be over, and present the spectre of having to return to the site of the abuse?

We on these Benches will not support the amendments other than Amendment 21, well intentioned though we believe they are.

[Lord Morrow (DUP)]

My Lords, I rise to speak in support of Amendment 21 tabled by the noble Lord, Lord Farmer, and the noble and learned Lord, Lord Mackay of Clashfern.

The Bill’s family impact test issued by the Ministry of Justice stresses multiple times that a central policy intention behind the legislation is to promote opportunities for reconciliation where that is possible. I admire the stated aim, but this amendment reflects the view that the Bill as it currently stands lacks ambition in this respect. Without funding for essential marriage support services, this policy goal will mean little to struggling families across the country. Families who desperately want to stay together, but are at a loss as to how to move forward, need support. It is one thing to provide an opportunity for reconciliation, but another thing entirely to provide a means of reconciliation.

According to Relate, the UK’s largest provider of relationship support:

“Evidence suggests that low income families are likely to experience increased strains on their relationships because of financial pressures. Their financial vulnerability also means they are less able to afford relationship support.”


This may well be having a very real bearing on family breakdown statistics. By the age of five, almost half of children in low-income households have seen their families break apart, compared to only 16% of children in higher-income households. Funding for counselling services could make all the difference to families who struggle to get by financially—families like Laura’s, on a household income of £16,000 per year, who told Relate:

“I want my husband and I to stay together because I know we truly love each other, as well as for the sake of the family, but desperate situations push people towards desperate measures, such as contemplating divorce. I am trying to stay strong for my family by blocking things out emotionally, which I know isn’t healthy but I have nowhere to turn. What we need is to speak to somebody objective who can help us to find a way forward. I agree there should be more funding for relationship support—healthy relationships create healthy families which in turn creates healthy citizens.”


Unfortunately, loving someone is not always enough and there may come a time where we all need more support and guidance. In a context where the Government are moving to reduce the time for reconciliation by promoting divorce within six months, it is vital that we invest more in marriage support and focus some of that money specifically on the shortened divorce process. This amendment rises to this challenge and is particularly important because, unbelievably, answers to Parliamentary Questions reveal that the Government are not allocating any funds for marriage support through Section 22. This is extraordinary, especially when we consider previous government undertakings in this regard. On 1 February 2017, for example, the Minister in the other place stated that

“the Department intends to continue to work very hard to ensure that marriage gets the support it needs to continue being a strong bedrock for the families and the children for whom we want to secure the best possible outcomes in the future.”—[Official Report, Commons, 21/02/17; col. 389WH.]

It also makes no sense. The Relationships Foundation’s Cost of Family Failure Index in 2018 estimated the annual cost to the Government of family or relationship breakdown to stand at £51 billion—my colleague and noble friend Lord Browne has already referred to this figure—which is up from £37 billion 10 years ago. The scale of this crisis demonstrates that proper investment in marriage support services is long overdue. The move would also be in line with public opinion. ComRes polling from 2017 showed that 76% of British adults believe that extra money should be spent strengthening families.

In this context, where the Government are proposing to reduce the time for divorce and thus reduce the opportunity for reconciliation within divorce, it is especially vital that they now adopt a new approach to marriage support. Providing funding to parents in conflict, who do not have to be married, is no substitute for marriage support, which should not be limited to those who have children. We need a significant, serious focus on marriage support.

When difficulties arise in relationships, giving up often seems easier than going on. This Bill risks making giving up easier, while doing little to meaningfully support those who want to go on. It communicates the message that marriage breakdown is often a sad inevitability and that, if you get to that point, the law will make it easier for you to “get the relationship over with”. I suggest to noble Lords that we can do better than that. Let us be a country that believes in fighting to rescue relationships, so that when they hit the rocks our response is not simply to mitigate the fallout, but to offer a lifeline of support to families in the form of counselling. Amendment 21, and indeed Amendment 3, will help us rise to this challenge. I very much hope that the Government will support this.

Divorce, Dissolution and Separation Bill [HL]

Baroness Burt of Solihull Excerpts

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

[Baroness Shackleton of Belgravia (Con)]

My Lords, I support what the noble and learned Baroness, Lady Butler-Sloss, said. Although I have absolute sympathy with the well-intentioned objectives of my noble friend Lord McColl, I fear that they will fall far short of what any practitioner can deliver.

Speaking from the coalface, when a person books an appointment with a divorce solicitor, it is often in absolute trepidation and recognition that they have failed. Sending that person away means, if I might say so, that we are getting into a situation like talaq, where you say, “I divorce you, I divorce you”, then the third time, you say, “Yes, you are divorced.” Putting down a warning in circumstances where there may be violence and it may have taken a great deal of courage to come to the conclusion that the marriage is over would, in my experience, just be delaying the evil day.

As we have seen in our recent politics with Brexit, as we are seeing now with coronavirus and as we see with marriage and its breakdown, uncertainty is a set of very disturbing circumstances, the innocent victims of which are children. Children need certainty. Often, when they know that their parents’ marriage is on the rocks, they are relieved to find some sort of consensus to sort out the problems that have been going on in their house for some time. Dignified separation without naming and shaming and blaming can only be to their advantage. I wonder how many of those who marry people look at two people whom they know are fundamentally incompatible and have the courage to say, “I will not marry you because I think that this will end in disaster.”

It takes only one party to get divorced, not two; one person can check out of the marriage and there is simply nothing that the other party can do to make them change their view. This amendment would delay what is in most circumstances an inevitable consequence. There is nothing to stop responsible practitioners suggesting that a couple try harder, go to mediation or have help, but to suggest that a practitioner or the law can keep together a marriage that has fundamentally failed is pie in the sky. The sooner the consequences of a fallout can be sorted, the better it is for everybody.

[Baroness Burt of Solihull (LD)]

My Lords, I associate myself totally with the wise and experienced words of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Shackleton. I can well remember our discussion in Committee about the petitioner “thinking” that the relationship “may” have irretrievably broken down. This amendment inserts a third stage into the process. The noble and learned Baroness, Lady Butler-Sloss, who is hugely experienced in the field of divorce, said, along with others, that in their experience, by the time someone files for divorce, it is not done lightly and their mind is made up. If there was a possibility that the marriage was retrievable, they would have explored it before filing.

I think that this step is unnecessary. The timeframes as set out in the Bill are appropriate, so adding another stage would not be helpful. Therefore, we will not support this amendment.

[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?

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I entirely understand the best intentions of the noble Lord, Lord Farmer, in putting forward this amendment, but my heart sinks to hear it. It is really an effort to rewrite the Matrimonial Causes Act 1973, which we are trying very hard to get away from. I do not know whether the noble Lord understands—I hope he will forgive me for saying it like this—just what a farce the current divorce situation is. The majority of divorces are now completed on fault, and the fault has to be something that is important enough for the judge to sign off. Some judges sign off something which is very limited indeed, but if it is actually a fault of any significance, it upsets the respondent, and the respondent very often finds that he or she is being accused of things that have really not arisen during the marriage but are necessary for the current farcical situation to create a divorce. The exacerbation of the respondent inevitably has a marked effect on the children.

I have to say that Professor Liz Trinder, whom I know, is entirely independent. The report Finding Fault? is in line with lots of earlier research. In its comments on children, it is undoubtedly in line with the very strong evidence of endless consultant child and adolescent psychiatrists—and I know many of them. Over the years they have become increasingly concerned about the negative impact on children of the allegations of unreasonable behaviour that are to be found in the current legislation.

I am a patron of the Marriage Foundation, and the foundation is extremely keen that people should be reconciled. I have to say that I share that view; I must tell the House that I have been married for 61 years and I find it extremely sad when I meet members of my own family and other people I know who are divorcing. That for me is a tragedy. However, there is no shortage of people who wish to end their marriage. That is part of our English and Welsh law, and we have to go along with it.

Still, we must recognise that if this amendment were passed and only one party wanted to bring divorce proceedings, we would be back in the old situation, which is deplorable for children, and that would exacerbate the emotional trauma of the divorce process. I have to tell the House that it makes reconciliation very much less likely when allegations of behaviour are raised. Where they are not raised, it is a lot easier for people to talk to each other, but, if they are, it creates a very serious situation. I am very concerned that children should be protected from the behaviour of their parents. Children should be protected from the sort of allegations that could only seriously exacerbate the tragic situation for them when their parents separate.

[Baroness Burt of Solihull]

My Lords, these amendments by the noble Lord, Lord Farmer, would add a number of conditions or barriers that would mean that a statement of irretrievable breakdown would not be accepted unless the couple had lived apart for a specific time or there was a citation of unreasonable behaviour. The conditions look suspiciously like the existing damaging conditions that the Bill is trying to get away from—a point echoed by the noble and learned Baroness, Lady Butler-Sloss, in much more eloquent terms than I can manage. It sounds harsh to say this, and I have every respect for the noble Lord, but it is hard to conclude anything other than that these are wrecking amendments. This party supports the Bill and so we will not be supporting them.

[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.

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[Baroness Shackleton of Belgravia]

To answer the question on the problem about service, this is regularly done when somebody is trying to evade service. You can go to the court and ask for an order for deemed service. There does not seem to be any problem in that; you just have to produce evidence that you have made your best endeavours to serve somebody, and if the court is satisfied that that has happened, service is deemed and the divorce can proceed.

[Baroness Burt of Solihull]

My Lords, I sympathise very strongly with this amendment, which as we have discussed deals with the vexed question of service. There is a balance to be struck where there is one applicant for divorce—in other words, it is not a joint application—between ensuring that the respondent has received adequate notification and that they are not able to frustrate the process by claiming not to have received notice. I am sure the House is very grateful to the noble Baroness, Lady Shackleton, for her explanation of how that can be overcome. In meetings with the Minister, and in this Chamber, he has given assurances that the Family Division would make rules that strike the balance between sufficient notification and attempts to frustrate the process.

We accept the Government’s position that the arrangements for service are best left to the Family Procedure Rule Committee. We also accept that, increasingly, applications will be made online, in which case service is usually effected by the court. But we must also agree with the Government that provisions must be made for paper applications as well as online applications.

It is important that the respondent must be made aware of the proceedings as early as possible. The rules need to provide that a respondent cannot frustrate proceedings by trying to evade service, or by failing to acknowledge service. I would greatly appreciate further clarification from the Minister, and further assurances that this amendment will not be necessary.

[Lord Keen of Elie]

I thank the noble Baroness, Lady Meyer, for moving the amendment on behalf of the noble Lord, Lord Curry, and other noble Lords for their contributions. We understand the concerns that part of the intention behind the Bill’s new minimum 20-week period between the start of proceedings and when the court can be asked to make the conditional order could be undermined if notice of the proceedings on the respondent party is substantially delayed. I provided assurances in Committee that a conditional order will not be made without satisfactory evidence of service. Of course the Bill does not provide for divorce or dissolution by 26 weeks’ notice; confirmation is required at both conditional and final order stages that the marriage or civil partnership should be brought to a legal end.

However, in this matter we have to be led by the evidence. Professor Trinder’s study of 300 undefended divorce case files found that no acknowledgement of service was returned by the respondent in 41 of the sample cases, which is about 13.7% of the total. If you were to extrapolate that nationally, that would amount to about 14,000 cases annually. Very few cases appeared to result from difficulty in locating the respondent; instead, the majority of the 41 non-returns appeared to reflect a decision by the respondent not to co-operate with the process, either because they were opposed to the divorce in principle or the reason given for it or simply because they wanted to make the process more difficult for the applicant. Resolution, the leading body in England and Wales representing over 6,000 family justice professionals, has also identified frustration of the proceedings by the respondent as the greater mischief.

I accept that in tabling his amendment the noble Lord, Lord Curry, was offering a constructive suggestion but that he recognises that a respondent may be deliberately evasive. However, the material effect of his amendment would apply to applications made by one spouse only when the 20-week period had started and the respondent had been served.

There is a difficulty here. The only fail-safe way of knowing that the respondent has been served is when the respondent returns to the court with the form acknowledging service, if indeed they return at all. In his amendment, the noble Lord sought to address this issue by giving the court the power to abridge the 20-week period between the start of proceedings and when it may make the conditional order if there is evidence that the respondent has sought to evade or delay service. The difficulty, as with the existing procedures for the court to grant deemed service or dispense with service in England and Wales, is the evidence that the court will require to be shown that the respondent should be aware of the application when in fact he refuses to return the acknowledgement of service, and therefore it makes the process of dispensation difficult. Indeed, such a process can be lengthy and requires separate applications to the court, which in turn can make it a complex process for applicants to navigate.

The amendment would place a further requirement on the applicant to apply to abridge the time of the 20-week period in such cases by providing evidence that the respondent has deliberately sought to evade service. Inviting an applicant to prove a negative is always going to be rather challenging, particularly in this sort of process. We have listened carefully to what has been said about this matter, both in debate and in the meetings that I have had with a number of your Lordships.

We consider that the right way to deal with this concern is to commit, as I committed at the previous stage, to work with the Family Procedure Rule Committee, which already has the relevant statutory powers to address the issue of service, and which has a statutory duty to consider whether to consult on rule changes. We are therefore inviting the Family Procedure Rule Committee to consider the matter when reviewing the rules required to implement the Bill, including a rule requiring service of the application within a specific period following the issuing of proceedings. I believe that this approach has drawn support from all sides of House, and I therefore invite the noble Baroness to withdraw her amendment.

--- Later in debate ---

I agree with the amendment, which would better inform parents of what will happen to their children when they divorce. That is one thing, but I am sorry to say that the law should provide much greater protection for children than this Bill will. I support the amendment.

[Baroness Burt of Solihull]

My Lords, we have gone round the houses a bit but the amendments in this group are about information to applicants. Amendment 5 would require the Lord Chancellor to ensure that information was provided to divorcing couples with children under 18 about the effects of divorce on children. I recall that we had a discussion in Committee about the impact of divorce on children, and I agree strongly that they are often victims in this. However, I think that most parents will be only too well aware of the effect of divorce on their children, and they do not split up a home lightly.

As in so many situations, the impact on the children will depend on how the situation is handled. Taking the sting out of divorce by removing any requirement for blame and taking out child arrangements and financial arrangements from the divorce itself will, I hope, help the inevitable split have a calmer, less traumatic effect on children. In the past, staying together for the sake of the children often produced more, not less, unhappiness and trauma for children and adults. A family today can look very different from the traditional model that prevailed years ago. To me, as long as there is security and love, that is the main thing.

Amendment 13 would require applicants to be provided with information about relationship support, mediation, domestic abuse and related matters. Again, we discussed this in Committee, and I tend to agree with one or two other noble Lords who said that by the time an application has been made, it is too late.

[Lord Harries of Pentregarth]

My amendment says that this information should be on the website of the Courts & Tribunals Service, so that would not be too late; it would be when they were still exploring the possibility, not putting in an application. It would be there just as basic information. Surely there cannot be any objection to people finding out a few facts.

[Baroness Burt of Solihull]

I am very grateful to the noble and right reverend Lord, and I totally agree. I am just going on to talk about the information that we should be making available at all stages.

These services should be freely available to any couple experiencing difficulties in their relationship. Let us face it, the current situation with regard to Covid-19 can hardly be conducive to calm, happy families if they are all stuck in the same house together for weeks on end. I strongly agree that the Government should be funding the kinds of services mentioned in the amendment, particularly in the current circumstances, and several steps upstream before a decision is made to file. However, I also agree with the noble and learned Baroness, Lady Butler-Sloss, that this very valuable information does not need to be in primary legislation. I look forward to hearing details from the Minister about how full information will be provided outside the primary legislation. I would be very happy if he wanted to write to me and other speakers today about that issue; that would be good.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I support Amendments 5 and 13. I believe that they bring before the House necessary advice and information that can be valuable to those considering divorce and its implications.

The reality of living in the real world today is that many of the foundational principles of a strong society are being rocked. We are seeing those who look upon marriage as being a lifelong contract before God being frowned upon, just the same as the life of the unborn child—they have no voice and no right to be heard. However, I believe that children ought to be given greater consideration. We are told, in the light of the virus that is striking fear into the hearts of many people across the world tonight, that we should remember to be considerate of others. It is not all about us. It is not all about me. Those considering divorce also need to think about that: “It is not all about me; it is also about my children.” The noble and learned Baroness, Lady Butler-Sloss, reminded us that children have a right to know—they are not just “packages”.

Let us take as an example a child in a home, where one member of that family unit suddenly receives the request for a quick divorce. They had no knowledge that it was happening, but they are also not told the fault; you are not allowed to know the fault or there is no reason for you to be told it—it is just a quickie divorce. What does the child believe? It is faced with “My family has been torn apart, but why is Daddy leaving the home?” or “Why is Mummy stepping out of the marriage?” Have they a right to be told? Is that to be brought out? We talk about anger; what will they feel when a parent just walks away in a matter of months? Anger, guilt, frustration—the noble and learned Baroness, Lady Butler-Sloss, mentioned those things. In actual fact the children cannot feel them, but they do not know why their family unit is no longer together, because they do not necessarily have to be given a reason why the family is being torn apart.

It is vital that we realise that yes, irretrievable breakdown is a reality, and we know that in fact there comes a situation where two people cannot live together and that their staying together would be worse for the children. However, we should provide every opportunity and every piece of information and advice to try to keep families together in a society that is already broken.