Divorce, Dissolution and Separation Bill [HL]

Baroness Shackleton of Belgravia Excerpts

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

[Baroness Shackleton of Belgravia (Con)]

My Lords, I support what the noble and learned Baroness, Lady Butler-Sloss, said. Although I have absolute sympathy with the well-intentioned objectives of my noble friend Lord McColl, I fear that they will fall far short of what any practitioner can deliver.

Speaking from the coalface, when a person books an appointment with a divorce solicitor, it is often in absolute trepidation and recognition that they have failed. Sending that person away means, if I might say so, that we are getting into a situation like talaq, where you say, “I divorce you, I divorce you”, then the third time, you say, “Yes, you are divorced.” Putting down a warning in circumstances where there may be violence and it may have taken a great deal of courage to come to the conclusion that the marriage is over would, in my experience, just be delaying the evil day.

As we have seen in our recent politics with Brexit, as we are seeing now with coronavirus and as we see with marriage and its breakdown, uncertainty is a set of very disturbing circumstances, the innocent victims of which are children. Children need certainty. Often, when they know that their parents’ marriage is on the rocks, they are relieved to find some sort of consensus to sort out the problems that have been going on in their house for some time. Dignified separation without naming and shaming and blaming can only be to their advantage. I wonder how many of those who marry people look at two people whom they know are fundamentally incompatible and have the courage to say, “I will not marry you because I think that this will end in disaster.”

It takes only one party to get divorced, not two; one person can check out of the marriage and there is simply nothing that the other party can do to make them change their view. This amendment would delay what is in most circumstances an inevitable consequence. There is nothing to stop responsible practitioners suggesting that a couple try harder, go to mediation or have help, but to suggest that a practitioner or the law can keep together a marriage that has fundamentally failed is pie in the sky. The sooner the consequences of a fallout can be sorted, the better it is for everybody.

[Baroness Burt of Solihull (LD)]

My Lords, I associate myself totally with the wise and experienced words of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Shackleton. I can well remember our discussion in Committee about the petitioner “thinking” that the relationship “may” have irretrievably broken down. This amendment inserts a third stage into the process. The noble and learned Baroness, Lady Butler-Sloss, who is hugely experienced in the field of divorce, said, along with others, that in their experience, by the time someone files for divorce, it is not done lightly and their mind is made up. If there was a possibility that the marriage was retrievable, they would have explored it before filing.

I think that this step is unnecessary. The timeframes as set out in the Bill are appropriate, so adding another stage would not be helpful. Therefore, we will not support this amendment.

--- Later in debate ---

[Baroness Burt of Solihull]

My Lords, these amendments by the noble Lord, Lord Farmer, would add a number of conditions or barriers that would mean that a statement of irretrievable breakdown would not be accepted unless the couple had lived apart for a specific time or there was a citation of unreasonable behaviour. The conditions look suspiciously like the existing damaging conditions that the Bill is trying to get away from—a point echoed by the noble and learned Baroness, Lady Butler-Sloss, in much more eloquent terms than I can manage. It sounds harsh to say this, and I have every respect for the noble Lord, but it is hard to conclude anything other than that these are wrecking amendments. This party supports the Bill and so we will not be supporting them.

[Baroness Shackleton of Belgravia]

My Lords, I wish to speak against the amendment. There is a practicality that is overlooked here, and that is the question of living separate and apart. It is not feasible financially or possible, particularly with children, for one party to up sticks and leave the matrimonial home; often this means returning to their parents and different schooling. It is just not viable.

The real problem with divorce is that it is now socially acceptable; there is no stigma on divorce. I believe passionately in marriage. I am also a patron of the Marriage Foundation, which supports this measure. In an earlier speech, my noble friend referred to the elite readers of the Times running a campaign to support the Bill. It was actually spearheaded by Sir Paul Coleridge, who is the head of the Marriage Foundation, because he believes the Bill is pro-marriage. It stops the agony when one party needs to exit a marriage. The amendment would effectively wreck a Bill that most practising lawyers support.

I will add that the very rich have something in common with the very poor: they are the least affected by divorce. So the people at the bottom of the scale are going to be no more inhibited from getting a divorce than those at the top.

[Lord Keen of Elie]

My Lords, I thank my noble friend Lord Farmer and other noble Lords for their contributions to the debate. I will speak to Amendment 2 and the other amendments in the group: 5A, 6, 6A, 7, 8, 9, 11 and 12. These amendments seek to retain the requirement on the court to inquire into any facts alleged by the applicant or indeed the respondent, and to be satisfied as to the facts alleged before holding that a marriage or civil partnership has broken down irretrievably. The exception would be that it would retain the approach under the Bill for joint applications.

With the greatest of respect, these amendments would drive a coach and horses through the Government’s measured and progressive Bill; the Government cannot accept them. They seek to maintain the status quo and deny any meaningful reform of the law—reform that is long overdue and which commands broad support in both Houses and beyond. Removing the use of blame in the legal process of divorce, dissolution and separation is a key objective of the Government. We know from the evidence that incentivising a spouse to make allegations about the other spouse at the outset of the legal process can simply worsen conflict. That conflict can then play out not only during the legal process of divorce but in any linked proceedings about financial matters or children.

In Committee, my noble friend said that much weight has been put on the evidence from research by the University of Exeter, funded by the Nuffield Foundation. He referred to the Finding Fault? study as

“a piece of grey literature … that … has not been peer reviewed.”—[Official Report, 3/3/2020; col. 553.]

and said that the reliance of the Government and, indeed, noble Lords, on this research was in his view surprising. He further noted that it was based on one study involving 81 interviews and an analysis of 300 divorces.

I am bound to say that the Government and many others find the evidence from this important research compelling. The Finding Fault? project, led by Professor Trinder, was peer-reviewed at application stage and scrutinised throughout by an expert advisory group, and the final report was reviewed by a senior academic and two members of the Nuffield research team. It has since been widely cited in academic family law textbooks. Indeed, I note that it has been referred to with approval by those with considerable experience in this area of the law, including my noble friend Lady Shackleton and the noble and learned Baroness, Lady Butler-Sloss.

I agree that that research has been influential. Its messages—that the current law increases conflict, encourages dishonesty and undermines the aims of the family justice system—are consistent with a body of evidence going back about 40 years, not least the Law Commission report of 1990, which led to the enactment, although not the implementation, of the Family Law Act 1996. The Finding Fault? study shows that the problems with fault-based divorce persist today. We cannot ignore that message.

Although the survey component of the study did find evidence of public support for retaining fault as part of the divorce law, this was not universal and indeed was inconsistent with other beliefs expressed by respondents—for example, that it is unfair to blame just one spouse for a marriage breakdown. The survey was only one component of the research, which also included interviews with people going through divorce, focus groups with lawyers, observation of the court scrutiny process, analysis of divorce court files and comparative analysis in other countries.

I appreciate and acknowledge the conviction of my noble friend and those who support his views that this Bill is bad for marriage, families and society, but I profoundly disagree. These reforms are measured, progressive and necessary. They are formulated on evidence that the current law works to fuel conflict, which is damaging for couples, parents and children. The law does not do what people think it does. It does not keep a party to a marriage in a relationship against their will. Marriage is a consensual union between two people. Unilateral divorce has been available under the current law for over 40 years. This Bill seeks to remove elements of the current law that can drive conflict. It does not and cannot make the painful decision to divorce any easier.

In light of this, I simply cannot agree with the terms of the amendment. We have, of course, listened to the concerns expressed about some provisions in the Bill. At this early stage, I would note this: I have committed the Government to work with the Family Procedure Rule Committee to address the issue of timely service on the respondent of the notice of proceedings by the applicant party. I have also tabled amendments to the Bill to make the delegated powers in Clauses 1 and 4, to amend the 20-week and six-week minimum periods under the Bill, subject to the affirmative resolution procedure, which will provide greater scrutiny of the measures. Finally, I have given a commitment that the Government will use the opportunity of amending court processes, including the online divorce service, to improve information about, and signposting to, important services such as marriage counselling and mediation. With those commitments in mind, I urge noble Lords to support the Bill in its present form and invite my noble friend to withdraw his amendment.

--- Later in debate ---

[Baroness Butler-Sloss]

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

[Baroness Shackleton of Belgravia]

To answer the question on the problem about service, this is regularly done when somebody is trying to evade service. You can go to the court and ask for an order for deemed service. There does not seem to be any problem in that; you just have to produce evidence that you have made your best endeavours to serve somebody, and if the court is satisfied that that has happened, service is deemed and the divorce can proceed.

[Baroness Burt of Solihull]

My Lords, I sympathise very strongly with this amendment, which as we have discussed deals with the vexed question of service. There is a balance to be struck where there is one applicant for divorce—in other words, it is not a joint application—between ensuring that the respondent has received adequate notification and that they are not able to frustrate the process by claiming not to have received notice. I am sure the House is very grateful to the noble Baroness, Lady Shackleton, for her explanation of how that can be overcome. In meetings with the Minister, and in this Chamber, he has given assurances that the Family Division would make rules that strike the balance between sufficient notification and attempts to frustrate the process.

We accept the Government’s position that the arrangements for service are best left to the Family Procedure Rule Committee. We also accept that, increasingly, applications will be made online, in which case service is usually effected by the court. But we must also agree with the Government that provisions must be made for paper applications as well as online applications.

It is important that the respondent must be made aware of the proceedings as early as possible. The rules need to provide that a respondent cannot frustrate proceedings by trying to evade service, or by failing to acknowledge service. I would greatly appreciate further clarification from the Minister, and further assurances that this amendment will not be necessary.