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.”

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[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.