Divorce, Dissolution and Separation Bill [HL]

Baroness Chakrabarti Excerpts

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

[Baroness Chakrabarti (Lab)]

My Lords, it has been an absolute privilege to sit through the three hours of this debate. I particularly thank the noble Baroness, Lady Shackleton, for speaking in the gap and giving us the benefit of her pre-eminent expertise in these matters in this country. Once more, this is an example of the quality of contributions that can be made in a Chamber of this kind, for which we can all be incredibly grateful. I also join all noble Lords in welcoming the noble Baroness, Lady Hunt, and marvelling at such a spectacular maiden speech. I think she described your Lordships’ House at its best as demonstrating courtesy, consideration and a determination to do the right thing. All of this could be said of the noble Baroness, both in her former career and in what will no doubt be a wonderful career as a legislator in your Lordships’ House.

I also take great pleasure in welcoming this Bill, as the Opposition did when it was first introduced in the other place. I thank the Minister for returning with the Bill and the way in which he spoke about it, with great humility and reason. Both have been features of the debate in general. However, I have occasionally worried that some of your Lordships have thought of this Bill as a deliberate or perhaps accidental slight on marriage, or a measure which seeks to undermine or trivialise marriage, or facilitate divorce for those who do not take their obligations, promises, covenants and faith seriously. I think that is a misunderstanding of the legislation as it is and as it is intended.

It was WH Auden who famously and rather beautifully compared the law to love in the poem “Law Like Love”. It might be a beautiful poem, but none the less, it is very difficult, if not impossible, to legislate for love. What we attempt to do instead is legislate to protect people. I understand that law has a moral content and that we are concerned about sending signals to people through the law, but the primary, practical purpose of legislation is to protect people. That means protecting people when they get things wrong, screw up and break their covenants, or when the act of faith was in error or made in good faith but things went wrong. It seems to me that no-fault divorce is a no-brainer, for all the reasons eloquently set out in this debate. Unhappy, miserable and traumatic though it is—the great leveller of misery across society—divorce is neither a crime nor a civil wrong. It is a trauma and a very unhappy thing and we should not prolong the agony.

Divorce is neither a crime nor a civil wrong, yet within it, crimes and wrongs take place. We should act to protect people from those crimes and wrongs, particularly the vulnerable and victims of domestic abuse. I have noticed that in the many submissions that we have all received in relation to this Bill, the bulk of those working with vulnerable women and victims of domestic abuse, in particular, seem to support this legislation. That is to be taken seriously, and certainly as seriously as any poll based on percentages of the population as a whole. I am prepared to accept that many, or perhaps the majority of, people believe that there is fault in divorce, but that is because there was fault in their divorces. We can recognise fault without it being enshrined in law in a very unproductive way, prolonging the agony or, as the noble Baroness, Lady Shackleton, said, picking over the carcass of a marriage. I noticed that in some noble Lords’ remarks, there was a reference to broken homes. But homes are broken within marriages, as well as by divorce. Locking people into a legal relationship when they do not want to be there is not a practical or sensible legislative policy.

I was particularly charmed, as I often am, by the remarks of the noble and learned Lord, Lord Mackay of Clashfern. Listening to him, one can well imagine why he has had such a happy union for 62 years—yet there was no hubris, just humanity, compassion, reason and practicality about how to protect people, rather than promote a morality that does not always succeed in practice. There is a difference between the world as we want it to be and the world as it is; between humans as we want them to be and humans as they, sadly, too often are. For the most part the law should deal with the latter, particularly with that aim of protecting people.

I broadly and warmly support the Bill but in relation to some people’s concerns about the vulnerable, and whether it might undermine rather than protect them, I would predictably remind your Lordships of the cuts in the justice system and how those have affected family law, in particular. There is especially the fact that since 2013, legal aid has been removed from divorce cases. That is a terrible mistake if one is trying to protect abandoned people and children, and be equitable in relation to resources and so on. I really urge the Minister to reflect on that as much as he can, and speak to his colleagues about whether, in this new moment when people want to support the vulnerable and hold people to their obligations, it can be fair or right that those who cannot afford a lawyer will not get the protection of the law. That is whether it is in relation to pensions or access to their children, or to the other horrible things that people argue about at this traumatic time in their lives. We can craft the most perfect divorce legislation but it will be a dead letter—a sealed book—if people do not have access to early and consistent advice and representation, so that everyone can benefit from the kind of wisdom and expertise we heard from the noble Baroness, Lady Shackleton, this evening. That must be the right thing.

As I said, I have been particularly moved by the charities and NGOs which work with the vulnerable and support this legislation. They know what they are doing; they deal with these people at the sharp end. In addressing other concerns, can the Minister say something about what the Government plan by way of additional support, beyond this legislation, in public education, advice and so on for people going through these most difficult times? It should be not just legal support but counselling, too, and not just counselling in crisis but—as once more recommended by the noble Baroness, Lady Shackleton—much earlier in life. There should be guidance and education about the inner self, and about what a relationship of such gravity looks like; what it means and what it takes. It may not be that divorce is too easy. It may be that marriage is taken by some too young, too lightly and with the wrong person. That might be a better target for action than trying to lock people into an already broken home.

There are so many other pressures on families in breakdown, as described once more by the noble and learned Lord, Lord Mackay, such as inadequate finance or social housing. All sorts of other social infrastructure are needed to back up the unit of the family. The family is a vital building-block in society but there is such a thing as society outside the family, and families need support.

On the concerns expressed by noble Lords who were less than supportive of the Bill, I think that many of these things can be looked at outside the legislation. I share some of the concerns expressed about online divorce procedure in particular. In responding to this debate, perhaps the Minister might comment on the Law Society’s recommendation in particular, given that there are risks associated with online divorce procedures as opposed to divorce of the more conventional kind. I am concerned about relying on online legal provision rather than advice, representation, judgment and so on.

Generally speaking, it is a great pleasure to be on the same side as the noble and learned Lord the Minister for once—perhaps for the first time, I do not know, but maybe and hopefully not for the last—and to have heard the general humanity, humility and often wisdom and experience that your Lordships have brought to this debate. I commend the Bill as a start, as a part of the kind of process that the noble Baroness, Lady Shackleton, welcomed and advised. I hope that we can, if necessary, improve the Bill but do so in a cross-party, non-party and constructive spirit.

Divorce, Dissolution and Separation Bill [HL]

Baroness Chakrabarti Excerpts

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

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I support the amendment moved by the noble Lord, Lord McColl, and the remarks of my noble friend Lord Morrow.

I have never been a judge to grant people a divorce, but I have been a minister for over 50 years, marrying people and endeavouring to keep families together. I am delighted that, over those years, people have come to me with the intention of divorce but made another decision on reflection. To this day, they are very happy families. After reflection, speaking to me and receiving advice, they were able to make another decision and heal the breach in the relationship.

The Government were elected on a promise to strengthen families and acknowledge that a strong society needs strong families. To the best of my knowledge, there was no mention in the manifesto of the no-fault divorce. I believe that time for reflection would be helpful. I would like this Committee and the Government to consider the amendment that the noble Lord, Lord McColl, has brought before us.

[Baroness Chakrabarti (Lab)]

My Lords, I agree with the noble and learned Lord, Lord Mackay, not for the first time. I particularly want to associate myself with the very humble reflections of the noble Baroness, Lady Burt, and the unparalleled expertise of the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss. I do not want to repeat what has been said. However, I might shorten what I say about other amendments if I make a few comments now, because I think the noble and learned Baroness, Lady Butler-Sloss, is broadly right: this is a good Bill that will generally not benefit from much amendment, subject to concerns of the Delegated Powers Committee.

As was rehearsed by many in your Lordships’ House at Second Reading, divorce is not generally a happy matter. I suspect that it is mostly in Hollywood cinema that people celebrate and have parties upon divorce. I have heard of such things, but they are perhaps the exception and not the rule. This is therefore an unhappy subject and an unhappy moment in lots of people’s lives—as it happens, a very significant portion of the population. For some people, it is a story of liberation after trauma; for others, it will be a matter of loss and trauma. It is not a happy matter. The law should be about legal protection and not legal fiction.

I understand the sentiments of noble Lords who would like people to reflect before they put themselves through this trauma. But I would have more in common with that sentiment if we were seeking to provide counselling for every adolescent and adult in the country, or, indeed, if we were seeking to reinstate the availability of legal aid for people contemplating and going through divorce. In my experience, good family lawyers will always go through a process of reflection with their clients before advising them to go through this traumatic process. Those matters, unfortunately, are beyond the scope of the Bill—I know this because I had a go. I am told by the Public Bill Office that reinstating legal aid for people with contested contact matters is also unfortunately not in the Bill.

In the future, I would happily talk to any noble Lords who want to persuade the Government that legal aid should be reinstated, at least for matters concerning the children. That would be a very good thing. As I said to the Minister, who very kindly met me yesterday, it seems perverse that if the state seeks to take your children you have access to a lawyer, but if your ex-partner is depriving you of contact you do not. That is a real concern, as are the issues about adequate provision for counselling, mediation and so on; provision is needed. I do not see how people will reflect and reconcile when they have extra hoops to jump through by way of legal process. For that reason, I hope the noble Lord, Lord McColl, will think again about this amendment.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, just as he did at Second Reading, the noble Lord, Lord McColl of Dulwich, has expressed his desire to ensure that those intent on divorce should have the opportunity to consider reconciliation. Of course, we agree with that, which is one reason we are building in a statutory pause: the new 20-week period between application and conditional order. It is also why we are retaining the two-stage order, as well as the bar on divorce applications in the first year of the marriage.

The noble Lord expressed concern, as did others, that the Government’s statistics give the impression that a significant number of divorce petitions never reach decree absolute. There is, however, no evidence that these represent cases of reconciliation. Indeed, analysis of court data by the Nuffield Foundation, referred to by the noble and learned Baroness, Lady Butler-Sloss, shows that the majority of non-completions are due to the technical difficulties of the legal process for unrepresented parties, the obstruction of respondents and, in some cases, protracted negotiations over finances. Indeed, a sample of 300 undefended cases were analysed, in which 51 were found not to have completed. Only one of those cases was identified as having ended in an attempted reconciliation. It is not only the recent Nuffield research that indicates this. Research undertaken by the University of Newcastle, following the Family Law Act 1996, also found that the decision to divorce was not taken lightly or impetuously; it was typically a protracted one based on months, if not years, of painful and difficult consideration.

I appreciate the intention behind the amendment; the noble Lord, Lord McColl of Dulwich, spoke of the profound importance of marriage to society and I could not possibly disagree with that. However, we believe that this amendment would have the potentially perverse effect of encouraging speculative applications. Someone facing marital difficulties might file an application saying, “I think my marriage may be over, though I’m not sure. I can always make my mind up after 20 weeks, or after as long as it takes.” As the noble Baronesses, Lady Burt and Lady Shackleton, observed, that is not the process that parties go through in reality. Indeed, as the noble and learned Lord, Lord Mackay of Clashfern, observed, it is inconsistent with the idea that you are applying on the grounds of irretrievable breakdown.

Applying for divorce should, of course, always be a last resort; certainly, we have seen no evidence that it is anything else. In the vast majority of cases, the applicant reaches the decision after considerable soul-searching and, indeed, after attempts have been made to mend difficulties in the marriage. It should never be seen as a warning shot. Divorce is not a remedy for marital difficulties; it is a remedy for a marriage that is no longer functioning because it has irretrievably broken down. It is right, we suggest, to continue to demand irretrievable breakdown at the point of the initial application as the grounds on which decree could then proceed. Of course, divorce should never be automatic, but again neither this Bill nor any other is going to make divorce easier for those affected by it.

We consider that the existing ground for divorce, namely irretrievable breakdown, should remain, and I urge the noble Lord to withdraw this amendment.

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[Lord Mackay of Clashfern]

My Lords, I need no conviction that children are better when their parents continue together, undivorced. I am strongly in favour of helping people who run into difficulties in their marriage. Various things can happen that require help. One of the amendments today refers to part of the 1996 Act that is still in force, providing money to help people to overcome these difficulties.

I need no conviction that divorce is bad for children, but I do need conviction that, if the parents are determined to divorce, nothing can be done to make it better for the children. That is where the arrangements under the Children Act are important. I believe that they are as good as can be achieved, but the important thing is that I would much prefer no divorce at all. We must concentrate on trying to keep parents together and keep the marriage going as a marriage and not in any other way.

I cannot see that the court can say, “This divorce is not good for the children” or “This divorce is good for the children”. Can noble Lords imagine a judge having to decide whether a divorce is good for the children? The answer is no in every case I know of: it is not a good thing for children that their parents have reached the conclusion that they have to divorce, as I said earlier. It is like tearing the children apart, because they love both parents and are very upset when anything happens to part them—but, sadly, the responsibility for staying together is with the parents. I strongly believe that doing everything that can be done to help them to stay together is the best help for the children.

[Baroness Chakrabarti]

My Lords, as I said, it has taken decades of distinguished professional experience for some noble Lords to make the contributions they are making to this debate. However, I have no doubt that it has taken a mountain of courage and not a small amount of eloquence and self-possession for the noble Baroness, Lady Meyer, to make her contribution—for which I am sure we all thank her. I thank her and the noble Baroness, Lady Howe, for giving us the opportunity to talk about children with what I hope will prove to be a probing amendment that puts the interests of children into this discussion.

However, for the reasons stated by other noble and learned Lords, the place and moment for a court to consider the best interests of the child—for example, under the Children Act—should be in matters of contact and finance. At the risk of sounding like a broken record, I say once more that the place for your Lordships’ House to consider what we should do ought to be in putting back legal aid for such contested family matters.

[Lord Keen of Elie]

My Lords, I begin by correcting a misapprehension disclosed by a number of noble Lords. We have produced a family impact assessment in respect of the Bill. Indeed, it was published with the Bill and can be found on GOV.UK. I invite those noble Lords who expressed an interest to have regard to that.

I have no doubt that this amendment is well intentioned, but its effects could be quite draconian. It would in effect require the court to weigh up whether the interests of the marriage’s children should override the autonomous decision of one parent—or indeed both parents, in a joint application—to seek a divorce. It could result in a parent being trapped in a failed or even abusive marriage. It could also reintroduce contested divorce in cases where there are children, because it would allow a parent to put forward arguments that divorce is not in the children’s best interests. It is difficult to see how this would serve the best interests of the children or even the parents. Indeed, this amendment could cause a worsened parental conflict through the legal process of divorce, with further damaging consequences for the children involved.

I understand why some may regard it as important for the court to consider the impacts on children of the decision to divorce, but that ought not to be a matter for the divorce process. The decision to marry or divorce is an autonomous one. It is not for the law to stand in the way of one or both parties who no longer wish to be in a marriage. The legal process of divorce should focus only on ending the legal relationship between the adult parties. Issues that may arise from the divorce, such as disputed arrangements for children, can and are dealt with now under separate statutory provision.

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[Lord McCrea of Magherafelt and Cookstown]

My Lord, I support Amendment 21 and Amendment 3. Amendment 21 speaks about funding for marriage support services, and says:

“In subsection (1)(a), at the end insert ‘, both before and during a marriage’.”


The reality is that many young people are not really prepared for marriage. Many go into it with great expectations: that everything will be rosy, everything is going to be beautiful, and that they are going to have a great life. They do not realise that the reality of life for everyone can be facing difficulties and hardships—not only financially, but in family circumstances.

There are many reasons for family breakdown and, certainly, each one is a tragedy. There used to be an old statement in our home: “a family that prays together, stays together”. It is also true that a family that talks together can stay together. The tragedy today is that families no longer talk together the way that they once did, because they are talking into an iPhone or an iPad. I was raised on a farm, and when I was a child there was a large family table we sat around and talked together. The reality is that, in the homes built today, you could not do this because the kitchen or living room is so small the family could not get around the same table. So where do they go? They go to their rooms. They used to sit before a computer but it is not like that any more; they just sit with an iPad. I sat in a home recently, where a family was gathered for a family bereavement. There was a young person of 17 years of age there. We were having conversations about the grandmother at the home, the background of the family and their upbringing and the day that young person’s mother got married. That young person heard nothing. We sat for 35 minutes. He did not speak, and neither was he listening because he was completely absorbed in his phone.

The Government should do more to encourage families to talk together. Then, I believe, many of them will stay together. The tragedy is, even within relationships, husbands and wives no longer converse as they used to. If you have a problem, the best way is to share it because a problem shared is a problem halved. Therefore, there should be more preparation for young people before marriage, and during marriage they should receive more encouragement. Certainly, when it comes to the possibility of a family breakdown, society should encourage the family unit to stay together—not to make them unhappy, but to build relationships again.

[Baroness Chakrabarti]

My Lords, I am so grateful to all noble Lords who spoke about this group. We do not support families by lecturing them, hectoring them or even creating obstacles to divorce. We support families with fellowship, with community, with solidarity and with social infrastructure. As I have said, I would like people to have access to lawyers—we wicked lawyers, but when you need us we are not so wicked—in time times of trouble, but also to counselling and relationship support long before there is trouble and, indeed, all through their lives. I really have taken on board the points that were made by two noble Baronesses at least about timing, because this support should be available very early in life and, as noble Lords opposite have said, perhaps even before people entertain the idea of marriage. That was the reason for supporting the noble and right reverend Lord, Lord Harries, in Amendment 3, although I take the points about timing and do not want to delay noble Lords further on this.

I hope the Minister will take the opportunity, in responding to this group, to set out what the Government propose more generally by way of this kind of provision for counselling and relationship support, because it seems, to me at least, all-too scant at the moment.

[Lord Keen of Elie]

My Lords, I will begin with Amendment 3, moved by the noble and right reverend Lord, Lord Harries of Pentregarth. I am grateful to the noble and right reverend Lord, not only for his thoughtful contribution to the debate and the scrutiny of the Bill but for meeting me to discuss his proposals.

The Government share the sentiment underlying this amendment, and the observations of a number of noble Lords that couples considering divorce should have available to them information about the services in question, and that where reconciliation is still possible, the legal process should not dim that prospect. On the second point, the Bill introduces for the first time a minimum timeframe of 20 weeks from the application to when the court can be asked to make the conditional order of divorce. The Bill also retains the two-stage procedure for obtaining a divorce under the distinctive procedure of English law, so that each step on the way to divorce requires an intentional and, indeed, conscious decision to end the marriage.

The Government’s view is that best prospect of saving a marriage is when difficulties first arise, not much later when divorce proceedings have begun. In the University of Newcastle evaluation of pilots to test the information-meeting provision that was central to the no-fault provisions in the now-repealed Part II of the Family Law Act 1996, the report noted:

“If the objective of providing information is to facilitate marriage saving, the evidence suggests that it will be more effective if it is provided while spouses are still together and before they make the decision to live apart.”


The Government share the desire to encourage more couples to resolve any disagreements about children or financial arrangements through mediation, avoiding, wherever possible, the need to seek a court adjudication. For these reasons, the Government do not support this amendment but believe that its laudable ends can be achieved by other means.

Divorce, Dissolution and Separation Bill [HL]

Baroness Chakrabarti Excerpts

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

Moved by

[Baroness Chakrabarti]

6: Clause 1, page 2, leave out lines 10 to 12
Member’s explanatory statement
Omits new section 1(6) of the Matrimonial Causes Act 1973, as recommended by the Delegated Powers and Regulatory Reform Committee.

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[Baroness Chakrabarti (Lab)]

My Lords, in moving Amendment 6 I shall speak also to Amendment 16, both amendments having been recommended by the Delegated Powers and Regulatory Reform Committee. The reasons set out in the DPRRC report are, in a nutshell, that the matters dealt with under the Henry VIII powers in the Bill are too central to its purpose and therefore not appropriate for the procedure, at least not as currently set out in the Bill. I hope that, in the light of that report, the Minister will consider either accepting my amendments or, perhaps, subjecting these powers to the affirmative procedure.

[Baroness Meacher (CB)]

My Lords, I rise to speak to Amendment 6, proposed by the noble Baroness, Lady Chakrabarti. I apologise to the noble Baroness that I did not get a chance to have a chat with her before this evening, as I had originally added my name to the amendment. As the noble Baroness explained, the Bill as it stands proposes minimum periods of 20 weeks and six weeks for the two stages of divorce and dissolution proceedings. I thank the Minister for the very helpful meeting we had last Wednesday, where he clarified that a statutory instrument to shorten the period for divorces would indeed be subject to the affirmative procedure. The question has been whether there is any reason at all why the Lord Chancellor should be given a Henry VIII power to reduce the length of either of the two periods through delegated legislation.

The Bill is very clear that, in a particular case, an application may be made to the court to shorten the period for the proceedings. For example, if one of the partners is dying and wants to sort out their affairs before they die, it would of course be perfectly reasonable for them to make an application to the court to reduce the period required. Also, if there is a need to protect an abused spouse, time may be of the essence. However, to shorten the minimum period for divorce or dissolution in all cases is quite another matter. We have to think about that.

The then Minister for Justice, Paul Maynard MP, emphasised in the Commons Public Bill Committee on 2 July 2019:

“The 20 week period is a key element in a reformed legal process.”


There is currently no minimum period, and with respect to the second stage, the Minister said that part of the objective was

“to improve the financial arrangements. People may wish to delay a little longer until such a point. It is not a maximum period; it is a minimum, and the process might well take longer.”—[Official Report, Commons, Public Bill Committee, 2/7/19; col.35.]

As the Minister knows, I expressed my concern at Second Reading about a future Lord Chancellor having the power to allow for a more rushed process, without proper parliamentary scrutiny. Certainly, the decision to apply the affirmative procedure to any statutory instrument reducing the time period is, in my view, an important improvement. The Government argued in a memorandum that the Lord Chancellor

“will be able to make adjustments to the time periods, for example, if policy considerations meant that it would be appropriate to shorten one or both of the time periods.”

I do not want to be difficult, but when I asked the Minister during his presentation to the Cross-Bench meeting what policy considerations might justify reducing the timeframe for divorces in a general sense, neither he nor the civil servants present could provide an answer. However, during the meeting last Wednesday, the noble and learned Lord, Lord Mackay of Clashfern, came—probably quite inadvertently—to the rescue and suggested a justification for the use of this power. The noble and learned Lord suggested that if, for example, there were repeated applications to the court to reduce the length of time from 26 weeks, then a more general reduction in the minimum period would be helpful. Repeated applications to the court are unhelpful to the people immediately affected; I imagine there are delays and all sorts of things, including perhaps costs.

This sounds a very sensible justification for the Henry VIII power. The concern of the Delegated Powers Committee, on which I sit, had been that Ministers at that point had offered no rationale for the Henry VIII power. Now, thanks to the noble and learned Lord, Lord Mackay, to whom I must give due credit, we have such a rationale, as well as confirmation from the Minister that the affirmative procedure would be applicable. I am therefore personally satisfied that this matter has been acceptably resolved—I had intended to say “satisfactorily resolved”, but it has certainly at least been acceptably resolved. However, I must emphasise that I am not, of course, speaking for the Delegated Powers Committee as a whole; I am speaking purely as one member.

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[Baroness Chakrabarti]

My Lords, I am hugely grateful to the Minister and to the noble Baroness, Lady Meacher, who does not speak for the committee but is clearly a very important member of that committee. In the light of the assurances given, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.