Divorce, Dissolution and Separation Bill [HL]

Baroness Eaton Excerpts

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

[Baroness Eaton (Con)]

My Lords, it is a pleasure to add my welcome to the noble Baroness, Lady Hunt of Bethnal Green, and congratulate her on her excellent maiden speech.

I believe that strong marriages and stable families are the bedrock of a healthy society. This is a view that I am sure many noble Lords across the House will agree with. It is imperative that in the work we do here in Parliament we carefully scrutinise the legislation that comes before us to ensure that it does not undermine that bedrock—marriage and the families that are formed through it.

Divorce law has a purpose not only in managing the end of a marriage but in setting out ideals about marriage. It recognises that marriage is an enduring commitment for life. As such, it is entirely logical that there must be serious and compelling reasons why what was hoped to be a lifelong union has come to an end. Under the current system, one spouse needs to allege adultery or unreasonable behaviour for the divorce to be considered immediately.

I do not believe that it is credible to propose a change in divorce law that maintains “irretrievable breakdown” as the sole ground for divorce when what is actually proposed is unilateral no-reason divorce. Under the proposed law there is no requirement to prove irretrievable breakdown. It can be a legal fiction asserted by one party who is simply bored of the marriage.

This empowering of the petitioner, the person initiating divorce proceedings, is further compounded by the fact that this Bill proposes removing the ability of the other party, the respondent, to contest the divorce. This leaves the respondent in a very vulnerable position. Because the importance of the marriage commitment is no longer expressed in the fact that it can be undone only in exacting circumstances, but rather whenever the petitioner wants to, the Bill creates the opportunity for divorce to come as a bolt from the blue. In the absence of any actual problems, one spouse could be blissfully unaware that her husband or wife is planning to divorce her because they feel that their relationship has lost some of its sparkle. The petitioner might appreciate this enhanced autonomy of freedom but the respondent has every reason to feel very insecure. Therein lies the rub. Anyone in a marriage is a potential respondent and thus, if the Bill becomes law, it will inevitably heighten the sense of insecurity in marriage.

We are told by the leading Conservative think tank Onward in its seminal publication The Politics of Belonging that the country has actually had enough of more and more autonomy, and that it now wants more security. The Bill, however, is no surprise, since that publication contends that the sympathies of Whitehall are indeed very much out of kilter with this new mood. In this context, I cannot help but wonder whether we are misjudging the mood of the country with the Bill.

Social science research has repeatedly found that marriage brings stability to the lives of children. One paper from 2015 found that families are most stable if parents are married before having children: 24% of couples who married before having children split up, compared to 56% of couples who married later and 69% of couples who never married at all. Regardless of socioeconomic status and education, cohabiting couples are between two and two and a half times more likely to break up than equivalent married couples. Furthermore, having married parents boosts self-esteem for teenagers. UK research from 2016 found that teenage boys living with continuously married parents have the highest self-esteem, while teenage girls living with continuously cohabiting parents have the lowest. Children from broken homes are nine times more likely to become young offenders, accounting for 70% of all young offenders.

I appreciate that the purpose of bringing forward the Bill is not to promote more divorce and thus more difficulty for children. However, I have two difficulties with its proposed approach. First, it is hard to see how making marriage a relationship that one can exit unilaterally, simply by saying that you want out, will not undermine the ability of marriage to bring stability to the lives of children. Secondly, of course I appreciate that part of the justification for changing the rules of exit is that it is supposed to help children by minimising conflict. That is certainly a laudable aim. However, I am concerned that that will not be achieved through the Bill. Conflict between parents will simply be shifted to arguments over finances and where the children will end up. No provision is made in the Bill, as was provided for in the 1996 reforms, for mediation or counselling for couples facing the possibility of divorce—other Members have mentioned that important fact this evening.

Central to our assessment of the Bill must be the question: to what extent will it facilitate divorce without increasing the rate of divorce and marriage breakdown? Obviously, the change in the law proposed by the Bill would lead to a spike in divorces as people waiting for divorces in the context of the current legislative framework are able to access divorce much more quickly. The important point is not whether there will be a short-term spike—that seems inevitable. The question is whether the new law would facilitate increased divorce rates beyond the first couple of years. The evidence on this from abroad is not encouraging. Leora Friedberg found in her research that unilateral divorce laws were responsible for about 17% of the increase in divorce rates in the US during the 1970s and 1980s. In a context where the annual cost of family breakdown is deemed to be more than £50 billion, it is hard to understand why one would embark on a policy that is likely to increase divorce.

Finally, given all the concerns I have set out, I am also concerned by the way in which the Government appear to have dealt with the consultation process that preceded the Bill. Consultations are intended to ensure that the Government have listened to the public and adjusted their proposals in the light of the concerns expressed. In the consultation on divorce reform, 80% of those who responded did not agree with the proposal to replace the five facts demonstrating that a marriage had irretrievably broken down with a notification process. A mere 17% were in favour of the proposed change.

Furthermore, 83% of those who responded disagreed with the Government’s proposal to remove the ability of a spouse who does not want divorce to contest the assertion that their marriage has irretrievably broken down, while only 15% supported the plans. Can the Minister please explain how much of the consultation was taken into consideration, because this appears to conflict with the process that the Government are taking forward? I have serious concerns that the Bill will have negative consequences for families.