Divorce, Dissolution and Separation Bill [HL]

Baroness Butler-Sloss Excerpts

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

[Baroness Howe of Idlicote (CB)]

My Lords, I am pleased to speak in support of Amendment 1 in the name of the noble Lord, Lord McColl, which I very much hope the Minister accepts. This amendment has two important virtues.

First, as has been noted, it creates an environment for the 20-week period during which there is a chance for genuine reconciliation. The divorces between 2003 to 2016 tell their own very important story. It must be right not to condemn the process to failure from the start by encouraging a statement of irretrievable breakdown without the need for any prior warning. Under the current law, the only way to move to irretrievable breakdown in the absence of unreasonable behaviour, such as adultery, is through a prolonged period of separation, such that a formal notice of divorce cannot come as a surprise. By contrast, under this Bill, being presented with a statement of irretrievable breakdown could be the first you know of a difficulty. How did such an extraordinary proposal get past the family test? I rather suspect that we are still waiting for the family test to take place.

The second virtue of this arrangement is that it treats the respondent with greater respect. One of the things that disturbs me most about this Bill is that it seems to have been fashioned with the interests of one party in mind—the petitioner—and demonstrates little or no regard for the respondent, or any children who might be caught up in the divorce process. It currently stands as a petitioner’s charter. The Bill gives the petitioner the power to suddenly announce that the marriage has broken down irretrievably, from which point there is absolutely nothing that the respondent can do to get any kind of fair hearing if they disagree. While this amendment does not completely reverse the shift in power from the respondent to the petitioner, it will at least give the respondent the opportunity to have a voice and express their perspective during the reflection period in the limited but important sense that the termination of the relationship is, for that time, not a foregone conclusion. The petitioner has made a statement that they think the relationship may have broken down but there is, in this statement, something of a question and an opportunity for the respondent to engage: they are not being presented with a fait accompli.

It may be that at the end of the 20-week period the response of the respondent has not resulted in the petitioner feeling that the marriage can continue. It may have brought them both to a place where they conclude that they need to make a statement of irretrievable breakdown but, crucially, the respondent will have been given a period of time during which they will be fully aware that the future of their marriage is in the balance and during which they can take steps, if they wish to do so, to see whether the relationship can be saved.

As our law, in providing the option of marriage, gives a couple the opportunity to make a lifelong commitment, something would be very wrong if that same law allowed one party to make without any prior warning a statement of irretrievable breakdown, from which point the other party would have no kind of credible voice to express a contrary view. This cannot be right, which is why I strongly support Amendment 1.

[Baroness Butler-Sloss (CB)]

My Lords, I was a family judge for 35 years and spent a great deal, if not most, of my time dealing with families who were divorcing. This is an excellent Bill and few of the amendments ought to go through, except for those of the noble Baroness, Lady Chakrabarti, on the Henry VIII clauses, which require consideration.

The view that I take about this Bill is strongly supported by Exeter University and the Nuffield Foundation’s detailed research, led by Professor Liz Trinder at Exeter, and by Resolution, which has 6,500 family solicitor members who care deeply about looking after their clients, as I know as an honorary member. I am sorry to disagree with the noble Lord, Lord McColl, and what has just been said, but the evidence from the research is that the majority of people know perfectly well when a marriage has irretrievably broken down. A respondent to whom such a matter comes as a complete surprise would be very much the exception.

The research shows that the current system, and any system that takes a long time, is likely to be adverse for the children. Children are extremely important and play an important part in the background to the Bill. One of its purposes is to get the divorce over so that children suffer less. There are various ways in which we could help the children more than we do, particularly through information. Parents who are deciding to divorce—the petitioner and the respondent—should be given an information pack which would explain the impact on the children of disagreements between the parents. Perhaps the most important thing I learned as a judge is that in almost every case the children love both parents, and if parents are seriously at odds with each other, they do not realise that the children love the other parent as much as they love them. Such an information pack would be extremely helpful.

The way in which the noble Lord, Lord McColl, wants to delay this is contrary to the current detailed research and earlier research in the 1980s and 1990s. All these amendments will not be helpful—other than, as I have said, the two amendments of the noble Baroness, Lady Chakrabarti—and I hope your Lordships will think that the Bill should go through largely unopposed.

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[Baroness Butler-Sloss]

My Lords, I absolutely disagree that this is a petitioner’s charter. It is a way of bringing a failed marriage to an end. If noble Lords think about it, if one member of a couple says, “This marriage is at an end; in my view it has irretrievably broken down,” what on earth can you do about it? I am not sure whether noble Lords who have been speaking are expecting a couple who cannot get on to go on living together. If one side says that it is at an end, there is no longer a consensual marriage. Having been happily married for many, many years—

[Lord Framlingham]

Is the noble and learned Baroness actually saying that there is no possibility of that person changing their mind?

[Baroness Butler-Sloss]

Of course there are wonderful situations where reasonable couples talk it through and decide not to do it, whether for themselves or for their children. In some cases, that works and in some cases it does not. But there is no doubt that there are many, many people who seek to bring a marriage to an end because, from the point of view of that person, their marriage is no longer one that that they can endure. A lot of people leave. In the famous Owens divorce case that went to the Supreme Court, the couple are still married because five years is not up and there was no consent by the husband. The wife did not stay: she is not living with the husband who would not allow a divorce; she has moved out. There they are living separately, but not divorcing. Is that a happy situation?

The Bill is not a petitioner’s charter; it is an opportunity taken by the Government—and I congratulate them—to deal with the very important research that shows that unhappy marriages are not good for children. I do not understand how, if a couple do not get on, or if it is a case of domestic abuse—and we know how serious domestic abuse is—and the victim of the abuse wants to bring it to an end, they should not be allowed to do so. I cannot believe what is happening to the children while she—it is usually a she, but not always—remains in the house with the children and the domestic abuser. There is a great deal of evidence about that.

Fortunately, most parents, when they bring their marriage to an end, are civilised about it and about the children. The important thing about this Bill is that it is dealing with the issue of divorce and leaving the two extremely important issues—the most important issues of all—of what happens to the children and the financial outcome to be dealt with, I hope, in further legislation. The issue of children does not have to be dealt with in further legislation; the various Children Acts have dealt with that, whether they are the children of those who are married or of those who are not. Finance desperately needs changing—I suspect that the noble Baroness, Lady Shackleton, will say more about that today. It absolutely needs to be looked at, and I hope that the Government will go for a consultation paper on how we can improve legislation that dates back to as long ago as 1973, and which certainly needs an update. However, that is not a reason not to have the Bill.

[Baroness Shackleton of Belgravia]

This is not about the finances. When the noble and learned Lord, Lord Mackay, brought in the Children Act, it took away the stigma of custody. That Act as been a godsend to all of us, as we do not have to identify which party has care and control—custody. It has been the most enormous success, for which everybody who practises in this field is eternally grateful. I suspect that it was considered very novel at the time.

People forget that most responsible solicitors, when somebody who wants a divorce comes to see them, go through with their clients the possibility of not getting a divorce. I believe passionately in marriage—I am a patron of the Marriage Foundation, which supports the Bill—but by the time somebody wants out, they want out. I cannot tell your Lordships how many people are shocked when I say to them, “Are you sure you really want this? It’s not necessarily greener on the other side.” They say, “Do you really think I saved up the courage to come and see you to be told to go back and try a bit harder?” Once the game is up and the marriage is over—once it is dead—clinging on to it is not in the children’s interest at all. People need to move on. You cannot make somebody who is unhappy happy. It takes one person to make the marriage unhappy and two people to make it happy. The Bill goes some way towards addressing that problem.

[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.

Divorce, Dissolution and Separation Bill [HL]

Baroness Butler-Sloss Excerpts

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

[Baroness Howe of Idlicote (CB)]

My Lords, I am pleased to support Amendment 1, in the name of the noble Lord, Lord McColl. I continue to be concerned about the lack of regard for the respondent demonstrated in this legislation.

In the first instance, respondents lose their right to contest the divorce and thus, in an important sense, their voice. In the second instance, as the noble Lord has already said, respondents are severely disadvantaged in a no-fault context when compared with respondents in the same position under the current law, because the two to five-year warning of a statement of irretrievable breakdown is taken from them; they are exposed to a potential statement of irretrievable breakdown without any warning. In the third instance, respondents are not even afforded security about enjoying access to a 20-week reflection period. It is thus entirely possible that they will not be told about the divorce until the end of that period, and thus be confronted with not only a potentially out-of-the-blue statement of irretrievable breakdown but the possibility of being divorced in just seven weeks from first hearing about the divorce.

In the context of this assault on the rights and dignity of the respondent, Amendment 1 helps in two ways. First, rather than requiring the divorce process to begin with a statement of irretrievable breakdown, which makes it very hard for the respondent to respond because the petitioner is saying very emphatically “It is all over”, the initial statement proposed by Amendment 1 would create a context in which there can be a conversation and the respondent’s voice can be heard. Of course, this does not mean that the respondent will be able to change the mind of the petitioner should they wish to try to persuade them that their marriage is savable, but at least it provides them with a credible opportunity for doing so.

Secondly, the initial statement proposed by the amendment does not condemn the reflection period to likely failure by commencing with a statement that suggests, with great finality, that there is no way the marriage can be saved. It might be necessary to start a divorce process on the basis of a statement of irretrievable breakdown within a fault-based system, but if we are to realise the objectives set out by the family test assessment to use the no-fault system to create a basis from which one can foster conditions that better promote reconciliation, this is a terrible missed opportunity. It also misses out on the opportunity highlighted on page 164 of the Nuffield Foundation report that notification in a non-fault-based system

“would be more facilitative of reconciliation.”

I hope that the Government will support the amendment or come back with an alternative means of restoring dignity to the respondent and making the most of the new opportunities in a no-fault system to promote reconciliation.

[Baroness Butler-Sloss (CB)]

My Lords, I spent 50 years in family law and I have some experience of dealing with parents who are at odds with each other. I have seen the impact on their children. I am very relieved to hear that the noble Lord, Lord McColl, for whom I have the greatest respect, does not wish to test the opinion of the House. I respect and understand his good intentions and those of others putting forward amendments today, but if they passed they would hinder rather than enhance the process of this excellent Bill.

Amendment 1 is opposed by family lawyers, many of whom have great experience of dealing in family cases. It assumes incorrectly that when the existing divorce process was not completed in some 50-odd cases out of about 300 it was due to reconciliation. I think we were told in Committee that only one of those was an attempted reconciliation. The others were procedural problems. There is no evidence to support the view that a period of reflection, suggested by the noble Lord, Lord McColl, would in fact create more reconciliation than starting with the application, as put forward by the Government.

For most divorcing spouses the petition does not come at the beginning of something going wrong. My experience certainly is that it comes towards the end, when efforts have been made on both sides to have reconciliation. It is a very serious step and one that is not taken lightly. I also have to say that it is very unlikely that the respondent is taken by surprise. He or she is almost certain to know that the marriage is not going well. I find it inconceivable that a speculative application could be made by somebody right out of the blue when the marriage appears to the other spouse to be working perfectly well.

If irretrievable breakdown is the ground of divorce, as, indeed, the Bill requires, the proposed amendment is entirely inconsistent with it, because that is the way the application would come before the court. Whatever you have to call it, the application is for a divorce at some point. The three-stage process would make it much more complicated and would probably be confusing for many people.

One particular group of people is not in fact taken into account, if the noble Lord, Lord McColl, will forgive me for saying so: spouses escaping abusive marriages. If there has to be this period before you can even apply for a divorce, the opportunities for intimidation, coercion and other behaviours against the escaping spouse—unless they go to a refuge—would mean that this measure would make life infinitely worse for them. The noble Lord has not referred to that group. Again, according to the research done by Exeter University and the Nuffield Foundation, people have said that it is time that the state respected and did not second-guess the decisions of parties to a failed marriage.

I am also quite surprised that the noble Lord did not refer to civil partnerships. Since civil partnerships now follow exactly the same rules as marriage under current legislation, this measure would put marriage in a completely different situation to civil partnerships. That must be unsatisfactory so I strongly oppose the amendment, but I am relieved to know that it will not go to a vote.

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Christians like me are not trying to hijack any debate; we are simply trying to have a debate. Such a discriminatory and pejorative statement hardly breeds confidence in the impartiality of the author of this influential report. We are enjoined before the start of every day’s proceedings to put aside partial affections. I urge the lawyers in this House to look more widely at this issue and not to think just about the immediate process their clients go through. Many divorce applicants will never see a lawyer. I also urge the Government to think again about the wider social ramifications of plans which do not have public support and on which they were not elected. I beg to move.

[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.

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[Baroness Meyer (Con)]

My Lords, Amendment 3 is tabled in my name and that of the noble Lord, Lord Curry, who is following government advice by staying at home today.

The amendments in this group would tie the start of proceedings to service in the case of a sole petition divorce. Amendment 3 relates to marriages and Amendment 9A to civil partnerships. My noble friend Lord Farmer tabled a similar amendment in Committee. I am returning to the issue today because I believe the compromise offered by the Government does not go far enough. Proposed new Section 1(5) stipulates that 20 weeks must elapse between application and conditional order. This period gives couples a chance to reflect on the serious matter of divorce, plan for the future and consider whether their marriage can be saved.

As a nice aside, I must express my surprise at hearing several noble Lords imply in Committee that once the divorce process has started, there is no point attempting to save the marriage. I also gently remind the Minister that the government press release of 7 January said that the 20-week period is to

“provide a meaningful period of reflection and the chance to turn back”.

For the 20-week period to work, it is vital that both parties are aware that divorce proceedings have been initiated, but the wording of proposed new Section 1(5) leaves room for the respondent to be deliberately kept in the dark by the applicant. It ties the beginning of the 20-week notice period to “the start of proceedings”—that is, when notice is given to the court.

It is all too easy for a sole petitioner to avoid his or her obligation to give notice to the respondent by, for example, giving an out-of-date address or deliberately choosing a moment when the respondent is unreachable, maybe abroad. The question of whether the respondent is aware of the application becomes live only when the applicant asks the court to make the conditional order at the end of the 20 weeks. This means the respondent could be left unaware that the notice period has started, and the clock is running. They may not find out that the 20-week period has almost expired. That would surely defeat the entire purpose of the notice period: to encourage reflection. It could leave the respondent at a huge disadvantage.

It is more than possible that the applicant could start proceedings then leave the country with the children, in effect committing international parental child abduction. As noble Lords know, this subject is close to my heart. If the applicant flees to Germany, for example, it is possible to change the children’s place of residence in a matter of weeks, taking them out of the UK jurisdiction and into a foreign jurisdiction. Even if this does not happen, possession is nine-tenths of the law—as noble Lords are surely aware. Only 15% of abducted children are returned to their country of habitual residence under the terms of the Hague convention 1980. I raise this scenario because the Bill gives an unscrupulous applicant a great deal of power over the respondent. To summarise: on the eve of a conditional order, a respondent could find himself or herself confronted with a double fait accompli: divorce and the loss of the children.

The point was underlined last year by family law specialist David Hodson, in an article for a legal journal. He wrote:

“The intention of Parliament of divorce by notice over 26 weeks actually applies only to the applicant for the divorce. The recipient respondent will have less, perhaps much less and possibly even only a few weeks and yet have no opportunity to object. Any idea that there would be reflection and consideration—”

[Baroness Butler-Sloss]

I wonder whether the noble Baroness would allow me to make the point that in Amendment 3, proposed new subsection (5B) talks about

“evidence that the respondent has engaged in deliberate evasion of service or other steps to delay materially the service of the application”.

Nothing in this amendment deals with the applicant misbehaving.

[Baroness Meyer]

Maybe it is a failing in the amendment. It could be detrimental to both sides, but I am coming on to the other side as well. Mr Hodson described the current wording of the Bill as

“discriminatory, arbitrary and unfair. A process in law which means some parties to proceedings will have a dramatically different notice period than other respondents.”

The simple solution to the problem is to make the start of proceedings in the case of single applicants for divorce the date on which the application is served on the other party, rather than the date it is made by the petitioner. This was recommended in the Law Society briefing paper, which states:

“It is proper that a respondent to a divorce is given the full 26-week period of notice … If the notice period runs from the start of proceedings rather than the date of service, the respondent may receive the notice long after the start of proceedings, whether due to court delays, interference from the petitioner in delaying receipt by the respondent, the simple length of time of delivery if abroad, or other administrative reasons …We would recommend the Bill is amended to ensure that the notice period in applications by one party to a marriage only, would start from when the notice was received by the other party to the marriage. We believe it is vital that both parties each have a minimum of 26 weeks for the divorce to proceed under.”


In Committee, the noble and learned Lord, Lord Keen, said that this would hand

“too much power to a respondent party who wishes to frustrate the divorce proceedings by avoiding or disputing service or delaying the entire process.”—[Official Report, 3/3/20; col. 582.]

He suggested that new rules and definitions of service should be explored by the Family Procedure Rule Committee, but there are two concerns about this approach. First, the principle is so important, and the potential for injustice so profound, that we cannot risk the Bill coming into force without this problem being solved first. To delegate this to the Family Procedure Rule Committee is to neglect the responsibility of this House to scrutinise and improve legislation. Secondly, on the point of a respondent who wishes to avoid or frustrate the divorce process, we accept the concerns of noble Lords. That is why these amendments give the court power to abridge and shorten the 20-week period if it arises that a respondent is attempting to frustrate the process.

I hope that, despite my bad reading, this demonstrates that concern about unco-operative respondents can be addressed, but we must also address the issue of unco-operative applicants. I beg to move.

[Baroness Butler-Sloss]

My Lords, before I speak to Amendments 3 and 9A, I should tell your Lordships—in the unusual circumstances—that I certainly have a cough. I have had it since before Christmas; I have been to see my general practitioner, who says that I have a virus, but it is not “the virus”. I hope that noble Lords can be assured that I am not going to spread the coronavirus. I saw my GP and a consultant last week and have been checked out. I am sorry about my cough, but I cannot get rid of it.

What the noble Baroness, Lady Meyer, has spoken about happens already, either by petitioners who give a false address or by respondents who make it impossible for the petition to continue. This goes on; I have heard from judges that they know it is going on. Sometimes divorces are completed without the respondent knowing. In other cases, there are divorces that cannot conclude because the respondent will not support it and just refuses to answer any questions or do anything that is relevant to the outcome of a divorce. I hope this is something that the Government will discuss with the President of the Family Division and the Family Procedure Rule Committee, because it is a serious matter. However, I do not think that it will be managed by this amendment.

I interrupted the noble Baroness, because I wanted her to realise that she has to deal with what is actually in the amendment: 26 weeks is not referred to in the amendment, and it deals only with respondents and not applicants. For all those reasons, I suggest to noble Lords that this amendment is flawed and cannot be supported.

[Lord Harries of Pentregarth]

Even if it is the case that the wording of the amendment is not quite right, would the noble and learned Baroness in principle support this amendment? It seems to deal precisely with the situation which she outlined so eloquently, where both sides sometimes try to evade service. Would it not be important to have on the statute book a way of dealing with this issue?

[Baroness Butler-Sloss]

I understand what the noble and right reverend Lord says. The trouble is that I do not think having it in primary legislation will make it any easier for this issue to be resolved. This seems a matter for the Family Division to get on with, to see what it can do to try to deal with this. The Family Procedure Rules have to be obeyed; when I was a family judge, they were as important to me as primary legislation. I understand the point, but I do not think that it will make people behave any better if this is in primary legislation rather than in the rules.

[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.

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[Lord Browne of Belmont (DUP)]

My Lords, the social science evidence is very clear that divorce has a negative—sometimes profoundly negative—impact on child development. Of course, there are occasions when divorce is absolutely in the best interests of children: when they need to be liberated from an abusive environment. In developing public policy, however, we must be careful that situations where divorce is the best outcome do not cause us to lose sight of the fact that, in most cases, it is best for children to remain living in an intact family home.

Under the current law, if someone is unfaithful to their spouse, they know that they will be at risk of receiving divorce papers. There is a sense in which the law is there to protect the faithful spouse from being abused by an unfaithful spouse. The new framework, however, seems to turn things on its head. A feckless husband and father, rather than being challenged by the law in his selfishness, is actually empowered by it, and in a way that enables him to demonstrate a cruel lack of regard for his spouse and children. He can have an affair and use the law to help him fulfil his objective of liberating himself from the family unit that constrains him, in order to pursue others. The law allows him to issue a statement of irretrievable breakdown with the option of being out of the marriage in six months.

What does this Bill do for the faithful spouse, the respondent, and, more importantly, their children? It means that people who have committed no fault, but who are being divorced, will lose the warning that they currently benefit from through the requirement for prior separation in the absence of fault. They will instead receive, out of the blue, a statement of irretrievable breakdown, a breakdown that is in no sense their fault, and find that marriage will end in six months, or significantly less if the petitioner sabotages the 20-week reflection period by not telling her that a petition has been lodged until part way through or at the end of the period.

The lack of actual regard for the respondent and children in the proposed law is concerning. I know that in 2011, when David Cameron, as Prime Minister, called for feckless runaway fathers to be shamed, he was not necessarily saying that couples should not divorce. His point was that fathers should take their responsibilities seriously. As well as challenging fathers not thoughtlessly and selfishly to walk out of marriages, he was challenging fathers not to turn their backs on their responsibilities after divorce. Notwithstanding that, however, it is very difficult to square the way that this legislation empowers a feckless father to walk out of his marriage on the basis that his decision is an autonomous one, without regard for the best interests of the children until after the decision to divorce has been made. In this context, at the very least we must think more about asking parents to process the divorce decision in the context of an awareness of what the social science evidence says about the best interests of their children.

In this regard, I set before your Lordships’ House two considerations. In the first instance, a divorce decision is not an autonomous decision, because it impacts both the spouse and the children. We should be encouraging not an autonomous decision but a responsible decision, one that has regard for the impact on others, especially the children.

In the second instance, the decision to divorce is located, to some significant degree, in the legal process of divorce, and is not a foregone conclusion from the outset. As the Government’s consultation, Reducing Family Conflict, makes plain on page 31, initiating the petition amounts to something that

“puts the marriage on notice”.

The application for the conditional order for the divorce is not actually made until after the 20-week period. This is called a reflection period, for the very good reason that it is a time for reflection, to aid the decision-making process in the context of which The Family Impact Test says:

“The legal process for divorce should seek to reduce acrimony and conflict, thereby helping couples and parents to look to the future rather than providing a mechanism that facilitates and encourages the attribution of blame for past events. We want to create conditions for couples and parents to reconcile if they can – and to move on as constructively as possible in the event that this is not possible.”


In other words, the Government are saying that the decision-making process is still taking place in the legal process of divorce during the reflection period. In this context, it seems absolutely right that, rather than encouraging people to make autonomous decisions about divorce in the legal process of divorce, we should be encouraging them to make responsible decisions about divorce—decisions that do not think just about themselves but about their children.

I believe that this amendment is eminently sensible. It does not block couples seeking divorce; it entitles couples to receive information. Quite what couples decide to do with the information is up to them. Perhaps it will make them resolve to work harder at their marriage and step back from divorce. Perhaps it will not change their decision at all, but it will impact the way in which they approach it and make them more alive to the need to provide special support for their children going forward.

The state, having played a role in recognising the marriage commitment through the law and conscious of the significant public policy benefits of marriage, has a responsibility, particularly to the children of the marriage, to make sure that it cannot be exited without reflection on the implications of doing so in the best interests of the children. I am therefore pleased to support the Amendment 5.

[Baroness Butler-Sloss]

My Lords, I start by reassuring the noble Baroness, Lady Meyer, that if the President of the Family Division has said he will do something, he will do it.

Turning to these two amendments, I have the greatest possible sympathy with the proposals in each of them, but I do not think it appropriate that either should be in primary legislation. I would like to see, side by side with the application online, a requirement for the applicant to read advice about dealing with the issues raised by the noble Baroness, Lady Howe, and the noble and right reverend Lord, Lord Harries; and equally, if not more important, to read something about what the children say about divorce’s impact on them. About 20 years ago, Michigan had the most wonderful video of children ranging from about six to 18. They talked about the impact of divorce on them, such as: guilt—wondering whether it was their fault; anger at one parent or sometimes both; frustration because they did not know what was going on; and so on. Children need to be informed about what is happening; they have a right to know. They are people, not just packages.

It is extremely important that this sort of information, together with the information the noble Baroness and the right reverend Prelate have set out today, be provided, along with asking whether the parents realise that the children generally love both of them—it is very rare that they do not—and that the impact will include their feeling that they are responsible for what has happened, for example. I would like an undertaking from the Minister that this information, which has to be easily available, will be provided. A link is not good enough, because people do not have to look at it. It should be side by side with the application and should be provided to any applicant with children; however, it is not an appropriate provision for primary legislation.

[Baroness Meyer]

My Lords, I fully support what the noble and learned Baroness says. Before I speak in support of the amendment moved by the noble Baroness, Lady Howe, I shall make one thing clear: I have never said that I would be in favour of forcing people to stay together if they have decided that the best way forward is to separate and divorce. On the contrary, as I said in my previous speech, I fully support the new clause which allows for divorce by mutual decision through a joint application. The problem lies elsewhere: in what are, for the moment, called “contested cases”.