Divorce, Dissolution and Separation Bill [HL]

Baroness Howe of Idlicote Excerpts

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

[Baroness Howe of Idlicote (CB)]

My Lords, I too congratulate the noble Baroness, Lady Hunt, on her excellent maiden speech and welcome her to our Cross Benches.

I shall concentrate on two issues: first, the place of children within the divorce process anticipated by the Bill and the need to uphold their best interests throughout; and, secondly, the way in which the Bill proposes to change the rights of the respondent—that is, the spouse who has not initiated the divorce.

The social science evidence is clear that child development benefits enormously from the stability brought about by marriage. In this context, the state has two important responsibilities. First, it should create a public policy context that positively supports marriage through the provision of proper marriage support services and a fiscal environment that makes marriage an accessible option to all, including those on low to average income. Secondly, it should uphold marriage and divorce legislation in such a way that it facilitates divorce without needlessly aggravating conflict, on the one hand, and which does not thereby undermine the marriage commitment on the other.

I am aware that the justification for the Bill before us today is that it will help to reduce conflict. That may benefit the adults concerned but we should not overemphasise the benefits for children. In the first instance, there are some impressive studies suggesting that the long-term consequence of divorce is far more damaging for child development than the divorce process. That really needs to be understood if one is not to get the benefits of minimising conflict in the divorce process out of perspective. Beneath that, however, there is some important research suggesting that conflict is better than no conflict because divorce without conflict makes no sense to children who, in the absence of better explanations, are apt to blame themselves when things go wrong for no apparent reason. Social scientist Elizabeth Marquardt found that

“The children of low-conflict couples fare worse after divorce because the divorce marks their first exposure to a serious problem. One day, without much warning, their world just falls apart.”


Similarly, research by Alan Booth and Paul Amato found that the break-up of a low-conflict family is more harmful to a child than the break-up of a high-conflict family. If the Bill is to proceed, a lot more thought needs to be given to the role of children in this process and how they will be affected by the proposed change in the law.

I now turn to the way the Bill treats the respondent. It effectively introduces a shift in power towards the person wanting to initiate divorce proceedings, the petitioner, and away from the other party to the marriage, the respondent. In the past, the seriousness of the marriage commitment meant that marriage could not be exited at will but only if circumstances demonstrated that the commitment had been broken. There were consequently some external constraints. Under this Bill, however, marriages are released from these constraints, such that if either party wishes to exit the relationship, they can do so simply by starting divorce proceedings, stating that the relationship has irretrievably broken down. No evidence is required to back up this assertion, so while the statement may, on some occasions, mean that the relationship has indeed irretrievably broken down, on other occasions, it may be nothing more than a euphemism for “I do not like being married to you any more.”

Moreover, the Bill removes from the respondent the right to contest the divorce. This means that once the petitioner initiates proceedings he can be confident that, unless he changes his mind, he should be divorced in just 26 weeks. In creating an unconstrained right to divorce, alongside the removal of the respondent’s right to contest it, it seems to me that, as currently drafted, the Bill is vulnerable to being characterised as constituting a “petitioner’s charter” when in truth it should be a charter for all concerned, the petitioner, the respondent and their children.

I am, however, concerned that this shift in power to the petitioner is greatly exaggerated by the failure of the Bill to require the petitioner or the court to tell the respondent when the divorce process begins. Under the Bill, once the petitioner has initiated the divorce, the 20-week reflection and consideration period will begin. The Government have previously stated in their response to the 2018 consultation that this 20-week period is intended

“to ensure that the decision to divorce remains a considered one, providing opportunities for couples to change course.”

I am sure we all agree that that is a laudable aim. It is vital that both parties in a divorce have equal time to consider the decision, reflect upon their marriage and, if possible, see if there are ways that it can be saved.

Under the proposed arrangements in the Bill, however, the 20 weeks start running from when the divorce petition is first lodged, not when both parties are aware of it. This means that the spouse responding to the petition may not receive notice of the petition until a number of weeks later, for reasons such as issues in delivering notice, delays at the court or being overseas. In fact, if the petitioner does not want to tell the respondent, there is nothing—as Professor Hodson has pointed out—to require this until the end of the 20-week reflection period.

When the 20-week period is complete, the court must confirm that the petitioner has informed the respondent before issuing the first decree of divorce. If the petitioner says no, the court will tell him that it cannot issue the decree until he notifies the respondent. In this context, therefore, it is possible that the respondent will find out that they are being divorced only six or seven weeks before they are.

Professor Hodson has anticipated the damage this will bring about:

“Everyone can anticipate the trauma, distress and anger this will cause. The previous four months will be regarded by a respondent as a deceitful lie … It will badly affect opportunities to negotiate terms of any separation. It will set back the chance of resolving financial implications. It encourages the worst sort of marital behaviour.”


I anticipate that in response to this concern, the Minister may reply that moving to a system where the 20 weeks starts when the respondent receives notice could incentivise them to avoid being served notice, and thereby delay the divorce. This, however, is no defence for accepting the current arrangements in the Bill, especially as it already seeks disproportionately to empower the petitioner.

One solution to this problem would be to remove the ability of the petitioner to effect service and place it, instead, in the hands of the court. This would give the court control of the process and appropriate levers to incentivise response to service, including the warning of possible default judgments, if a response is not provided, and written warnings on court paper that the respondent may be liable to additional costs if they do not respond to service. There are also options of deeming service has been provided through proof of delivery at a registered address or a sworn affidavit of service by hand, filed by the server, either lay or professional.

In its analysis of other jurisdictions’ divorce laws, the Nuffield Foundation noted that there was a high level of consistency about when the notification period should commence. It said:

“Starting the clock only once the second party is aware of the application ensures that all parties have the same minimum period of notice. This is an important safeguard where the divorce is an unexpected and unwelcome event.”


The details of reforming the delivery of service in such cases must be sorted out by the Government. If this matter is not addressed, I am advised that the law would be vulnerable to an Article 8 human rights challenge because of the difference in treatment meted out on the respondent vis-à-vis the petitioner, and the difference in treatment experienced by those respondents who are notified by their petitioners at the start of the 20-week period and those who are not until the end.

I am concerned that the Bill is shifting power to the petitioner, leaving the respondent and, importantly, children in a very vulnerable position. As things stand, the Bill leaves a lot to be desired and it needs a lot of revision. I look forward to what I hope the Minister will say when he comes to reply: that this is indeed what is needed.

Divorce, Dissolution and Separation Bill [HL]

Baroness Howe of Idlicote Excerpts

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

I am of the view that the proposal before us in this Bill mitigates against any opportunity for reconciliation. Therefore, I have put before your Lordships an alternative that opens up the room for dialogue between partners to a marriage. I beg to move.

[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.

--- Later in debate ---

Moved by

[Baroness Howe of Idlicote]

2: Clause 1, page 1, line 12, at end insert “first consider whether a divorce order is in the interests of any child of the family and, if the court is satisfied that it is, then”
Member’s explanatory statement
This amendment would require the courts to take the wellbeing of any children in the family into account before granting a divorce order to end a marriage.

[Baroness Howe of Idlicote]

My Lords, I shall also speak to my Amendment 14 to Clause 3.

At Second Reading, I expressed concerns about how the proposals in this Bill would bring a profound shift in power from the respondent to the petitioner, because they propose that the petitioner should be able to initiate the divorce with no notice and that the respondent should have no right to contest.

Rather than exhibiting a balanced concern for both parties to the marriage, this Bill is, to a greater a degree than is wise, a petitioner’s charter. In its fervour to create a good outcome for the petitioner and the busy court system, however, this Bill demonstrates not only a lack of regard for the respondent but a complete lack of credible regard for any children involved.

We must not forget that this momentous life event we are debating in this Bill is not merely a life event for children but is officially classified as an ACE—an adverse childhood experience. Adverse childhood experiences greatly increase the likelihood of children facing damaging impacts on health and other social outcomes, such as alcoholism, misuse of prescription drugs, depression, heart disease and intimate partner violence.

My concern in tabling my amendment is that we must have the best interests of the children at the forefront of our thinking, not the objective of delivering the petitioner his divorce as quickly as possible. I am, of course, very aware that some have sought to argue that the proposals in this Bill—in removing fault—are motivated by a desire to minimise acrimony and to make the divorce process as amicable as possible, precisely because this will help any children involved. As I will demonstrate, however, this assertion, which at first glance seems to make sense, is in fact deeply problematic.

First, we need to understand that the vast majority of marriages that end at the moment are already low in conflict. Data from the survey Understanding Society shows that high-conflict warring couples are a rarity among married couples who split in the UK, comprising only 9% of those who split up. In contrast, 60% of married couples who split up were low-conflict and had reported a degree of happiness. Notwithstanding this fact, however, Judith Wallerstein, who conducted a 25-year study on the impact of divorce on children concluded:

“Findings from this study challenge the central assumption of our court policy: namely, that if parents refrain from conflict, issues around custody, contact, and economic support will be settled expeditiously, both parents will resume their parenting roles, and the child will resume her normal developmental progress. But it is manifestly misguided to expect that muting conflict between divorced parents by itself will reinstate the course of parenting observed in intact families.”

--- Later in debate ---

[Lord Framlingham (Con)]

I entirely support the amendment of the noble Baroness. Does she agree that while we talk about the reasons for the mental health of young people, austerity, local councils and educational support, we rarely talk about family? We never talk about parents and we never talk about absent fathers. Does she agree that as a country we are in grave danger of completely ignoring the huge distress and permanent damage done to children every year?

[Baroness Howe of Idlicote]

I entirely and completely agree with the noble Lord.

[Baroness Shackleton of Belgravia]

Some of the damage could be avoided by proper education before people have children, to avoid the distress of having children with the wrong person. There is very little education in school to support that.

--- Later in debate ---

We have all the flexibility that we require. We have the means by which the court can have regard to the best interests of the children—whether arising before, during or after divorce—and there is no call to contaminate the divorce process with the interests of the children process, which is already addressed very fully and, as some noble Lords have observed, very effectively, by the legislation introduced by the noble and learned Lord, Lord Mackay of Clashfern, when he was Lord Chancellor. It is in these circumstances that I invite the noble Baroness to withdraw her amendment.

[Baroness Howe of Idlicote]

My Lords, I am most grateful to all noble Lords who have taken part in this debate, which has been extremely interesting and wide-ranging. Despite what has been said, the role of children and the effect on them of divorce proceedings would not have had anything like the prominence that it has had but for this amendment. I did not realise that the family test assessment is available; I was going to suggest having a meeting before Report with that as a central feature. Maybe noble Lords on all sides of the argument could come together. Clearly, we need to discuss all this on Report. All noble Lords who have taken part, with their very strong feelings and differing views, must be glad that children are a central part of all the proceedings. With that in mind, unless the Minister would like meetings for further discussion before Report, I will withdraw the amendment.

[Lord Keen of Elie]

I am perfectly happy to have meetings on this or any other issues that may arise before Report, and to have the relevant officials present. I hope I have expressed clearly our position regarding the distinction between the divorce process and the interests of children, but I am perfectly content to have a meeting.

[Baroness Howe of Idlicote]

It would be desirable to have some meetings. Under the circumstances, I beg leave to withdraw my amendment.

Amendment 2 withdrawn.

Divorce, Dissolution and Separation Bill [HL]

Baroness Howe of Idlicote 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 Howe of Idlicote (CB)]

10: After Clause 1, insert the following new Clause—
“Recording lack of consent
After section 1 of the Matrimonial Causes Act 1973 (divorce on breakdown of marriage) insert—“1A Supplemental provision in cases where one party does not consent(1) In the case of an application by only one party to the marriage for a divorce order, it must be recorded on the divorce order if the other party to the marriage did not consent to the divorce.(2) For the purposes of subsection (1) the other party shall only be taken to not have consented to the divorce if they have made this known to the court prior to the divorce order being made final.””Member’s explanatory statement
This would allow a party to a marriage who did not consent to divorce to have it on record.

[Baroness Howe of Idlicote (CB)]

My Lords, the modest but important point of this amendment would be to permit a spouse who does not want to divorce to have that fact placed on the public record. As I explained at Second Reading, I am concerned that this Bill facilitates a significant shift in power from the respondent to the petitioner, without proper regard either for the best interests of the respondent or any children involved.

This Bill as defined is a petitioner’s charter. Under it, the departing spouse will be able to apply for divorce without citing any reason and will get their divorce in six months. The other party to the marriage will not be able to do anything about it. They will find themselves on a high-speed conveyor belt to divorce with no way of slowing it down, no opportunity to contest, no way to seek justice and not even a reasonable period to prepare themselves for life after the marriage ends.

New subsection (3) in Clause 1 makes it clear that the court cannot seek to examine or verify the departing spouse’s assertion that the marriage has broken down irretrievably. The other spouse may think it is retrievable —and may be right—but under the Bill their option must be ignored completely by the court. Like many couples who contemplate divorce, the right kind of counselling advice may get them through their current difficulties and they might emerge with their relationship strengthened and their understanding deepened.

I suspect many noble Lords will know of those who have experienced such times, but this Bill totally disempowers spouses trying to save their marriages. For some in such circumstances—perhaps for reasons of faith or other personal reasons—being able to record that it was not they but their spouse who sought divorce will be important mentally, emotionally and perhaps even spiritually, but the Bill allows no recognition that it was their spouse who walked away, no acknowledgement of the wrong the innocent party has suffered.

A fundamentally different approach to the respondent is required and I hope that the Government will register the concerns that I have set out today and at Second Reading in this regard. I do not really regard this modest amendment as a satisfactory solution to the problem but it is a way of drawing attention to it. People in such a situation should at least be able to have a line on the divorce order to say that they did not consent to the divorce. If you are stripping people of the right to contest a divorce or get the justice of their situation recognised, this is the least we can do. I beg to move.

[Lord Keen of Elie]

My Lords, the Bill introduces the new option of both parties to a marriage making a joint application for divorce, which will allow them to approach divorce on the basis of a mutually agreed decision to bring a legal end to their marriage.

Consent in the context of divorce is a sensitive issue and I appreciate that it is unfortunate when one party does not wish to become divorced. The changes within this Bill rightly recognise that marriage is a voluntary union of two people who both wish to be with each other and it is therefore a marriage, not a divorce, that requires consent. The current court decree made under the existing law does not record whether or not the divorce has been contested, and the present concern may proceed upon a misapprehension that being a respondent to a divorce means accepting the blame for the breakdown of the marriage. That is not the case. The existing legal process seeks to determine only that a decree of divorce can be granted following the irretrievable breakdown of the marriage.

The law itself does not—indeed cannot—say who, if anyone, was to blame for that breakdown. It would not be helpful to allow the respondent to come forward in circumstances where they were content to be divorced but wanted to make clear their views about the cause of the breakdown. That would not assist. Indeed, it could provide the foundation for greater disharmony than would otherwise be the case if we were to maintain the present provisions of the Bill.

Giving a married couple the choice to make a joint application strikes the appropriate balance in these circumstances, and I invite the noble Baroness to withdraw her amendment.

[Baroness Howe of Idlicote]

My Lords, I am grateful to the Minister for what he has said. It is a probing amendment and has afforded me an opportunity to make an important point about speaking up for the respondent. I will reflect on the Minister’s response but, for the moment, I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

Divorce, Dissolution and Separation Bill [HL]

Baroness Howe of Idlicote Excerpts

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

The Minister suggested to me yesterday that if we were to move to a situation where the process commences with a statement that the marriage may have broken down, it might result in speculative divorces. That thought is of course itself speculative, but I would not be opposed to replacing “may” with “has”, if that would help. My point is that if we start with a definitive statement from one party that the marriage has broken down irretrievably, we are losing the opportunity for greater reconciliation that a no-fault system provides. That is to miss an obvious opportunity. That statement should not be made until after the reflection period. If the Government do not like this solution, what will they do instead to address the problems that I have set out in my speech today? I beg to move.

[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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Moved by

[Baroness Howe of Idlicote]

5: After Clause 1, insert the following new Clause—
“Information to be provided
The Lord Chancellor must ensure that individuals applying for a divorce order who have children under the age of 18 are provided with a concise statement of the main findings from the relevant social science disciplines about the impact of divorce on different aspects of a child’s wellbeing.”

[Baroness Howe of Idlicote]

My Lords, in Committee we had a useful debate on the impact of the Bill on children. The amendment I moved on that occasion required that the best interests of children should be considered in the divorce process. In his response, the Minister said, among other things:

“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.”—[Official Report, 3/3/20; col. 549.]


Taken as a whole, the Minister’s response made two main points. First, he claimed that while the decision to marry involved two people, the decision to divorce need involve only one person and is as such an “autonomous decision” that engages neither the spouse nor the children. This was not to say that the best interests of children were irrelevant but, rather, that they are engaged outside the legal process of divorce and protected through provisions such as those in the Children Acts. Secondly, he expressed the concern that the requirement to take into consideration the best interests of children could be used to prevent the divorce taking place if the divorce were deemed to be not in their best interests.

While it is not my intention to table any amendment that would prevent a couple who want to divorce from divorcing, I am deeply concerned about doing anything that authenticates an ethic of autonomous decision-making in family life. When two people marry and bring children into the world, they change the world through those children, who are very properly dependent on them throughout childhood. They use their autonomous choice to create a family unit of dependents and interdependence, in which anyone who is committed to the notion of responsibility must acknowledge that they say goodbye to autonomous decision-making, in the sense of decision-making based entirely on self, and engaging with the consequences for others only after the fact.

The thrust of government policy in seeking to fix “broken Britain” has been all along about helping fathers and mothers recognise that they must live up to their responsibilities, not escape them by falling into the ethic of autonomous decision-making. The hyper-individualism of the ethic of autonomous decision-making is the root cause of the broken Britain phenomenon, which the Conservative Party in opposition pledged itself to repair. In consequence, it makes no sense that, once in power, the Conservatives should instead give a shot in the arm to the hyper-individualism that they previously committed to curtail. In this context, rather than encouraging ethical autonomous decision-making, it is vital that divorce legislation in 2020, while not blocking the break-up of the family unit, should encourage adults with dependants to make decisions that are fully cognisant of the implications of those decisions on others, including their children.

This is absolutely relevant to the divorce process because it is one of decision-making. That is reflected in the three stages of the process as set out in the Government’s consultation paper, Reducing Family Conflict: the petition, the decree nisi and the decree absolute. The sense of the decision-making process negotiated through the first two stages is helpfully elucidated on page 32 of Reducing Family Conflict:

“Although it is the making of the petition that puts the marriage on notice, so to speak, it is only at the stage of the decree nisi that the marriage has, at least provisionally, been found by the court to have broken down irretrievably.”


The dictionary definition of putting in notice is,

“a formal announcement, notification, or warning, especially an announcement of one’s intention to withdraw from an agreement.”

The first part of the divorce process is therefore not set out in terms that suggest that the divorce is necessarily going to happen. We are looking at an indication of intention.

The provisional nature of that initial putting on notice period is further underlined by the designation of the 20-week period between initiating the petition and the application of the conditional order as the reflection period. It is during this reflection period that the Government have said on numerous occasions that they hope it might be possible to save a marriage. For example, in their response to the consultation process, the Government state on page 17:

“The law can, and should, have a role in providing couples with an opportunity to reflect on their momentous decision and pull back from the brink if they decide that reconciliation is achievable.”


In other words, at this stage we are not dealing with a process where decision-making is over.

In the context of the decision-making process facilitated within the legal process of divorce, it is very important that couples with children think about the impact that the divorce is likely, given the current social science research, to have on their children. In order to help them think this through, it is vital that they are empowered to make informed decisions through the provision by the Lord Chancellor of a

“concise, accessible statement of the main findings from the relevant social science discipline about the impact of divorce on different aspects of a child’s well-being.”

This is a modest but important amendment. It does not block divorce but simply seeks to empower a couple to make decisions about divorce that are informed by an awareness of the likely impact on their children.

I suggest that we cannot expend energy on seeking to block such a provision unless we want to risk being seen to prioritise the convenience of adults over the best interests of children in a way that I—and, I feel sure, many others—would find disturbing. I very much hope that the Government will accept this amendment. I beg to move.

[Lord Mann (Non-Afl)]

My Lords, I apologise for not having participated in this debate previously, but I trust it is in order to make a few remarks in relation to this amendment.

In 2002, when I was recently elected to the Commons, for whatever reason the Whips did not put me on a Select Committee—that is another story—so I created my own select committee in my constituency. I spent the best part of a year looking at heroin abuse in micro detail. The relevance and significance to this debate is in one of the extraordinary findings I made. There were around 600 heroin addicts living in the constituency. It was a fairly stable population and it was easy for me to gain access to them. I personally met, interviewed or researched—you could use all those terms accurately—around 300 of them, half the cohort, looking at what should be done to deal with their addiction but also at how they came to be addicted.

I came across the most extraordinary correlation. Of those 300, I found none—not a single one—who had not had major childhood trauma sometime in their teenage years. For some, it was reasonably well documented; it would be sexual or violent abuse in or outside the family that led them to heroin as their drug of choice. For others, though, it was a parental death or a messy separation. That correlation was absolutely uniform across the entire cohort; it varied between individuals, of course.

The conclusion I drew was that inability to cope with that major trauma led people into more dysfunctional behaviour and particularly into the choice of heroin as a comforting drug—the so-called cotton wool drug—which was the area I was building a particular expertise in. That has concentrated my mind and work for the nearly 20 years since, dealing with many such cases and the impact of separation on children.

I do not draw the same conclusions as the noble Baroness on how the law should be framed, because what I found in dealing with individuals in this situation was that the institution of marriage itself was not the problem or the issue; it was the circumstances in which they lived. Any kind of disputed, messy separation—whether a divorce or a less conventional way of living; I call it a quasi-separation—within an established family, or perhaps an established legal marriage that was itself dysfunctional and traumatic, could create the problem. In how we frame the law, the conclusion I drew at the time and put to your Lordships is therefore that a flexibility of approach that puts the children first is critical.

However, a structured approach in the law that overstructured the solution for the child would be counterproductive. The intent behind the noble Baroness’s amendment and the causation that she is putting forward are entirely endorsed, but I fear that the remedy is too constrictive in terms of the outcome for children and for how children will know that they are put first.

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[Lord Keen of Elie]

I am much obliged to the noble and right reverend Lord. The responsibility would ultimately lie with the court service, which is an agency of the Ministry of Justice, to ensure that these processes do work in the way that I have indicated. I note what the noble and right reverend Lord said about further reassurance and I will take notice of that.

[Baroness Howe of Idlicote]

My Lords, I thank all noble Lords who have taken part in this debate. I am again pleased that we have had such a focused discussion on the implications of this legislation for children. We had an important one in Committee, but this was more widely spread. I am afraid that I am not particularly reassured by the response of the Minister—no doubt he would expect this—who does not even appear to think that this amendment is relevant to the Bill.

I very much hope that this debate will be read by Members of another place and that, when this Bill goes to their House, they will apply themselves to the task of seeking to factor into the divorce process a better consideration of the best interests of children than does the current draft. This is an important challenge if the Government are to have any chance of realising their objective of fixing broken Britain. I beg leave to withdraw my amendment.

Amendment 5 withdrawn.

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Moved by

[Baroness Howe of Idlicote]

15: Before Clause 6, insert the following new Clause—
“Report on the effect on children of divorce or dissolution in families with low conflict
(1) The Secretary of State must publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending when there is either no conflict or low conflict between the parties.(2) The Secretary of State must lay the report under subsection (1) before both Houses of Parliament.”

[Baroness Howe of Idlicote]

My Lords, in response to my amendment on children in Committee, the Minister said:

“Divorce, at least in terms of the legal process, is of limited duration”.—[Official Report, 3/3/20; col. 549.]


It may be seen in those terms by parents but I suggest to the Minister that that is not the case for children. He also suggested that I should review the family test for the Bill in response to the research evidence that I presented in Committee. I have done so and it seems largely to focus on reducing conflict between parents. The document refers to one specific study, which is described as highlighting the fact that

“frequent, intense, poorly resolved and child related interparental conflict adversely affects long-term emotional, behavioural, social, academic development, and future intergenerational/interpersonal relationship behaviours for”

children and young people.

Much has been made in this House of the damage done to children by warring parents staying together—I think that message will have reached the public loud and clear—and I am sure that in those situations children are not surprised to find their parents choosing to divorce. However, I am concerned that both our parliamentary debate and general public discourse have been less informed of the fact that where there is no conflict between parents, divorce can be more harmful to their children than their staying together. Children can face a divorce that comes out of nowhere.

I quoted extensively in Committee from research that highlighted this issue. I hope the House will also allow me to summarise that again. First, of those who split up, low-conflict families tare in the majority—that is, 60% compared to 9% high-conflict couples. Secondly, a 12-year longitudinal study found that children in low-conflict families had higher levels of well-being if their parents stayed together than if they divorced. The noble Lord, Lord Browne, quoted social scientist Elizabeth Marquardt, who said:

“The children of low-conflict couples fare worse after divorce because the divorce marks their first exposure to a serious problem. One day, without much warning, their world just falls apart.”


Thirdly, it is the new reality that children find themselves in that brings them stress after parents with low conflict split up—possibly in a new home, a new school and a new relationship with both parents as one moves away and the other takes on more responsibility.

My amendment does not say that parents must not divorce. Rather, it would require the Secretary of State to

“publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending when there is either no conflict or low conflict between the parties.”

So far the Government have chosen to adopt the rather un-nuanced approach that conflict is always bad for children and that minimising it to the greatest possible extent is always good. They have not demonstrated any willingness to engage with the research that suggests that, first, while of course conflict is generally negative, there are occasions when a lack of conflict can make things even worse for children; and, secondly, that in a low-conflict context the interests of the children are best served by the marriage continuing. In that context, it makes sense that the Government should do more to encourage couples to fight for their marriage, rather than say, “It’s an autonomous decision” and go out of their way to remove obstacles to its termination.

In this context, I am moving this amendment because I want to ask the Lord Chancellor to engage formally with this research. The family test is inadequate because it does not do so. This is a major problem. There is a strong argument for saying that, until such time as the Lord Chancellor has engaged with this research, this legislation should proceed no further. I beg to move.

[Lord Farmer]

My Lords, I will speak to my Amendment 16. I have brought back this amendment on the need for an annual report on the impact of the Bill because I disagree with the Minister’s reasons for rejecting it in Committee.

As I said, we could have moved to a divorce system that more closely resembled that of Scotland, which has much to recommend it, given that it sees so few fault applications. However, the Government have chosen to undertake an uncharted course, to a system described as enabling possibly the fastest divorce in the world, certainly for recipients of an application. Therefore, it seems irresponsible not to keep very careful track of any changes in our divorce, dissolution and separation patterns which ensue from this very significant change, especially given the existing high rates of family breakdown in this country.

I mentioned in Committee that research on which the Government have relied to justify removing fault points to how this degrades the commitment of marriage. Professor Wolfers says that its benefits are reduced; therefore cohabitation, which is widely agreed to be a less stable relationship form, becomes more common. So this will, very likely, have a knock-on effect on the number of children who experience the breakdown of their parents’ relationship.

I disagree with the Minister that the requirement to report annually on the number of divorce applications, including by gender, is unnecessary, given that the data is already publicly available and published in the Family Court Statistics Quarterly. The point of reporting is to be accountable for changes in that data and to draw Parliament’s attention to it. If the Government are not convinced that the Act will have a detrimental effect on any of these patterns, they should have no qualms about reporting on it.

I also disagree that it would be unduly onerous for the courts service to collect income data, or unduly intrusive for the applicants to supply it. The collection of income data is easily achieved by including this in standard demographic data income bands, the completion of which would of course be voluntary. We are constantly told that data collection is important to the Government, to help understand why people make choices, and to help make forecasts for the future. Understanding how different income brackets are affected by a policy is therefore not unusual or shocking. It makes no sense to me that in this area the Government are so coy about asking people to give them this information.

In conclusion, there is an inconsistency in the Government’s approach to informing themselves when it comes to tracking the effects of this Bill, despite the heavy social costs of relationship failure and the ramifications across the whole of government. I encourage the Minister to see the constructive point of this amendment in helping the future outworking of this law.

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[Baroness Howe of Idlicote]

My Lords, I thank all noble Lords who have taken part in this debate and I am not at all surprised that there is evidence which suggests that reducing conflict is a good thing for children. Indeed, it would be surprising if it did not, and certainly it is not my purpose to argue for more conflict.

The purpose of the amendment has been simply to point out that there is other important research which suggests that reducing conflict beyond a certain level is unhelpful. The family impact assessment does not engage with this research and nothing the Minister has said in his response suggests that the Government have done so; in fact, far from it. However, it is important that the findings of this research are taken seriously in framing the Bill, so I hope that the matter will be picked up and pursued in the other place. In the circumstances, however, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.