Divorce, Dissolution and Separation Bill [Lords]

Christopher Chope Excerpts

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons
Wednesday 17th June 2020 Commons Chamber

[Sir Robert Neill]

I do not think the Bill adds to that problem at all. If it exists, it can exist in any profession and can be dealt with by proper regulation. I suggest to the hon. Gentleman, for whom I have great respect, that the current situation makes that problem worse, because people have to go through what is rightly described by the research from the University of Exeter as a legal farce—a legal ritual of saying, “What is the minimum form of words that your client will accept that will meet the legal test to enable us to get divorced?” That is the sort of thing that can be taken advantage of and it is where the unscrupulous will come in. Removing fault removes the ability for the unscrupulous person to play upon fault, be they a purported adviser or a party to the divorce. Maintaining that approach and resisting these amendments, however well intended, is important and I urge the Government to do so.

It is important to look at the international comparisons. In England, a disproportionate amount of reliance is placed upon fault as the grounds for divorce. There are other grounds for divorce, but because it is complicated at the moment some 60% of divorces in England are based upon allegations of adultery. By that stage, people have split up and are often living apart. There is the business of having to point the finger about who did what. My old pupil master, whom I believe I mentioned on Second Reading, was around when we still had to go through the charade of getting an affidavit from a chambermaid or the receptionist in a hotel to prove divorce. It was a demeaning business and thank God we got rid of that. Maintaining a fault system, which, as I say, entrenches conflict, does us no credit as far as that is concerned.

[Sir Christopher Chope (Christchurch) (Con)]

Does my hon. Friend accept that there is only one ground for divorce, which is irretrievable breakdown, and there are five areas where one can adduce evidence of that irretrievable breakdown? Should we not be concentrating on that one issue: irretrievable breakdown?

[Sir Robert Neill]

It seems to me that that is precisely what the Bill is seeking to do. The problem is the requirement to prove the following facts to support that because, inevitably, that evidential requirement elides into the grounds, and the conflict created by the need to prove one or other of those facts is the difficulty. So I think that the Bill is moving in the direction that my hon. Friend, with his own experience in the law, will probably wish us to go.

--- Later in debate ---

[Sir Christopher Chope]

It is a pleasure to follow the hon. Member for Walthamstow (Stella Creasy), who made a compelling argument in support of new clause 9. I am convinced by it, and I hope that others will be as well.

I wish to speak in support of the amendments and new clauses tabled by my hon. Friends the Members for Congleton (Fiona Bruce) and for South West Bedfordshire (Andrew Selous) and my right hon. Friend the Member for Gainsborough (Sir Edward Leigh). If any more evidence was needed that our Government have lost their moral compass, this Bill provides it. I never thought that I would be asked by a Conservative Government to support a change in the law that gives unilateral access to the courts without any requirement to establish facts. It is completely at odds with the values of justice that I hold and which I think most members of the Conservative party, if not the nation, also hold.

I was a pupil in chambers specialising in family law around the time that the 1969 legislation was introduced that changed the divorce laws to say there was only one ground for divorce, and that was that a marriage had broken down irretrievably. There were five ways in which that irretrievable breakdown could be satisfied on the evidence. The Bill retains irretrievable breakdown as the ground for divorce but enables that to be proved by mere assertion by one of the parties to the marriage without the need to provide any evidence in support, even if the other party profoundly disagrees.

We know that our courts are under pressure, but how can this justify the expedient of removing the requirement to adduce any facts as evidence? Reliance on mere assertion was how we used to deal with witches, and it is still a favourite tool among dictators such as Putin and Erdoğan, who govern by decree. I did not think we were going to venture down that route in this Parliament under a Conservative Government.

I am particularly attracted to the provisions of new clause 3, which skilfully avoids the use of summary justice. It adopts the Scottish approach to separation with consent by reducing the separation period from two years to one. My right hon. Friend the Member for Gainsborough has told us that some 95% of divorces in Scotland are now on the basis of that provision—in other words, with consent after one year. The Law Commission recommended that instead of one year or six months, the right time would be nine months. The Lord Chancellor has arbitrarily rejected that suggestion. The argument deployed was merely that the approach to divorces in Scotland is piecemeal. I profoundly disagree with that conclusion. I think the approach in Scotland is a much more sensible one, and I do not say that just because I had the benefit of a Scottish university education when I studied Scots law, among other things.

Many marriage breakdowns are temporary and not irretrievable. That is why the issue of evidence for irretrievable breakdown is so important. Sometimes the parties interpret a breakdown as irretrievable, they get divorced and they live to regret it later. Who can doubt that many divorcees on their own during the covid-19 lockdown desperately wish that they had persisted with their marriage? My right hon. Friend the Member for South Northamptonshire (Andrea Leadsom) referred to some 50% of people who get divorced having regrets about having done so. I suspect that, following this lockdown, that percentage might increase even further.

[Andrea Leadsom]

Further to the statistic that up to 50% of people said they regretted divorcing, the reasons they gave were things like they felt they still loved their partner and that they missed their partner, so for all the huge number of comments that it is all financial, it is very genuinely emotions.

[Sir Christopher Chope]

This is a very emotional subject, and we ignore that at our peril.

The Bill and the lack of response by the Government to the criticisms that were made on Second Reading lead me to believe that the Government do not really accept the important role that family life has to play in maintaining social cohesion in this country, with the institution of marriage at its heart. The Government almost seem to be venturing down the same route as those who support cultural Marxism. Are the Government inadvertently collaborators with cultural Marxism in seeking to undermine nuclear families?

In the opening speech on Second Reading, the Lord Chancellor said that

“it is often too late to save a marriage, once the legal process of divorce has started.”—[Official Report, 8 June 2020; Vol. 677, c. 95.]

but he sought to avoid the concerns of the Member for Strangford (Jim Shannon) about access to free counselling for those with marriage difficulties, and he cited the Department for Work and Pensions programme of £39 million on reducing parental conflict as the solution.

[Jim Shannon]

The hon. Gentleman mentions my comments to the Secretary of State last week. I do feel that the opportunity for Relate and marriage guidance should be available, as the hon. Member for Congleton (Fiona Bruce) said, before the marriage starts but also as the process comes to its end. It should not just be available in the early stages—I understood from what the Secretary of State said that it would only be available early. Is it not important that at all stages the chance to reconcile and save a marriage should be paramount and should be tried in every case?

[Sir Christopher Chope]

I agree with the hon. Gentleman. My regret is that the Marriage Guidance Council ever changed its name to Relate because I do not think that as many people understand what Relate is actually about. Of course, after the hon. Gentleman put that point to the Lord Chancellor, there was a non-response—I think that is the generous way of putting it. Then my hon. Friend the Member for South West Bedfordshire intervened and asked about guarantees that the DWP programme would continue, because at the moment it is only funded for the next nine months. Again, there was no willingness to give any assurance from the Front Bench that that programme would be renewed or even that the Lord Chancellor would support such a renewal. That is why I am sceptical about all this.

The Lord Chancellor said that the aim of the Bill is to “reduce conflict”. He described it as being about the “legal process”, not about stopping the decline in the institution of marriage or, as he put it, “committed relationships”. He also conceded that this Bill is not going to make divorce less attractive, and he did not think it was intended for that end. However, surely this is a golden opportunity to expand marriage guidance services and to make them more easily accessible. It is an opportunity that has been missed, and that is why I shall be supporting new clause 1 if it is put to the vote.

Marriage is something that people have to work at, and I think most marriages will have had their ups and downs. The temptation now is that a party to a marriage going through a bad spell can suddenly, arbitrarily, unilaterally and without consulting their spouse terminate the marriage, and then within six months have a divorce, and I think that is highly unsatisfactory.

The Lord Chancellor seems to believe that nobody embarks on divorce other than in circumstances where the marriage has ended. May I draw his attention to the fact that one of the side-effects of this will be to facilitate the development of more sham marriages? A sham marriage can then result in a sham divorce, and sham divorces will be able to follow on much more quickly than they have been able to do hitherto. Ironically, I think this is going to promote sham marriage and all the abuse of our immigration law and other laws that that leads to.

This Bill is essentially introducing what I would call marriage shorthold, a legal agreement that can be terminated unilaterally after six months, without any evidence of fault. Is it not ironic that, while the Government are introducing marriage shorthold, they are seeking to abolish tenancy shorthold? Section 21 of the Housing Act 1988 allows a six-month housing tenancy to be terminated unilaterally after six months, without evidence of fault. What is the justification that the Government are putting forward for ending tenancy shortholds? It is because tenancy shortholds undermine security. What does this lead us to conclude? It leads me to conclude that the Government value housing security above marriage security, and I think that is a really perverse order of priorities.

I suppose, as a supply side supporter, I could be arguing that, in the same way that the supply side reforms in the 1988 Act—I was privileged to be a Minister in the Department of the Environment when we bought it in—had the consequence of increasing the number of tenancies and the availability of rental options, perhaps the supply side changes to our divorce law will have the consequence that people will feel they can enter into marriage more easily because they are going to be able to end it after six months if it does not work out. That is not a justification so far put forward by the Government, but I would be interested to hear from the Minister how he finds consistency in the approaches to shorthold tenancies and to shorthold marriage.

I think this Bill lacks ambition, and that is another reason why I am not going to be able to support it. I think it should be used as an opportunity to help address conflicts in marriage and between married partners, but it should not be designed, as I think it is, to undermine the institution of marriage in itself.



In conclusion, let me just say this. My right hon. and learned Friend the Lord Chancellor has repeatedly described himself as a doughty champion of family values, but I think it is significant that throughout the debates we have had on this Bill, he has been remarkably diffident about promoting the positive benefits of marriage, as many of my right hon. and hon. Friends have done during the course of this debate. Unless the Government accept the amendments before the House today—particularly, in my view, new clause 1—there will be no evidence to back up the Lord Chancellor’s assertion of being a champion of family values. Indeed, like a party to a divorce under this Bill, he will have absolved himself of any requirement to establish the facts. What a sad state of affairs that is.