Divorce, Dissolution and Separation Bill

Eddie Hughes Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 25th June 2019 Commons Chamber

[Mr Gauke]

I am grateful to the hon. Gentleman for his intervention on a matter that I suspect all of us have had experience of as constituency Members of Parliament as well as citizens. These circumstances are hugely difficult. To some extent, the existing divorce law can somewhat encourage that behaviour, because of the need to attribute blame, but he is right to suggest that this is a wider issue, one that is hard to address in the context of divorce. He is right to highlight the difficulties that can exist and how parents can be alienated from their children in what are difficult circumstances.

When I became Justice Secretary last year, I was able to take a deeper look at the issue of divorce. What became clear to me was that making allegations does not serve any public interest. It needlessly rakes up the past to justify the legal ending of a relationship that is no longer a beneficial and functioning one. At worst, these allegations can pit one parent against the other. I remain deeply concerned that what the existing law requires can be especially damaging for children.

The law on divorce and dissolution is out of step with the constructive approach that family law takes in other areas and that practitioners take every day. It is time to change that. Resolution is the lead organisation representing family lawyers who subscribe to a non-confrontational approach. Resolution’s chair, Margaret Heathcote, has said that

“because of our outdated divorce laws”

practitioners have effectively been working

“with one arm tied behind their backs.”

The Bill will change that.

At the beginning of my speech, I spoke about the confrontational position that the law sets up and about its harmful impact on children. That confrontational position undermines not only good co-parenting but any prospect of reconciliation. I understand concerns about people being divorced against their will. The reality is that under the existing law the court can refuse a divorce only if a legal requirement is not met, and never simply because one party wants to stay married. Only about 2% of respondents say that they want to contest the divorce. Hardly anyone continues contesting all the way to a court hearing. Marriages are not saved at all by the ability of a spouse to contest the divorce.

[Eddie Hughes (Walsall North) (Con)]

When I got married, as a Catholic I did not think the option of divorce was open to us. I genuinely thought that under all circumstances our marriage would be forever; my wife decided otherwise. That was a very emotional time. Does my right hon. Friend expect that when the change comes in some people will find it easier to divorce and that there be a spike in the divorce figures? A period of reflection sometimes gives people the opportunity to save their marriage, and that opportunity might be missed under the proposed changes.

[Mr Gauke]

I agree with my hon. Friend about a period of reflection. In fact, the Bill will ensure that there is a longer minimum period of reflection for people in a marriage to consider whether reconciliation is the right course. The evidence suggests that by the time things get to that stage, reconciliation happens very rarely, but we are extending that period, so it is not really about making divorce easier but about making it less confrontational.

On my hon. Friend’s point about whether we anticipate a spike in divorces, there is international evidence as to what is likely to happen following such a reform. I shall be open with my hon. Friend: there will be people who are currently waiting for two or five years for a divorce, and that divorce will be brought forward, so the likelihood is that there will be an increase because of that waiting list. However, the international evidence suggests that once that initial spike has been dealt with, in a steady state the divorce rate is unlikely to increase; it is likely to remain much the same. I hope it is clear to my hon. Friend that although we would anticipate that some divorces will be brought forward, the change is unlikely to increase the divorce rate in a steady state.

Let me turn briefly to the measures in the Bill: it does not create a new process, but instead retains the framework of the existing law and removes those aspects that are considered to cause conflict. The Bill therefore retains the two stages of divorce and dissolution orders. The Government believe that the need to confirm to the court that it may make the conditional order, and to apply to the court for the final order, means that a divorce or dissolution is never automatic and that the decision to divorce is a considered one, with opportunities for a change of heart right up to the last moment.

The reform will retain irretrievable breakdown as the sole legal ground for divorce and dissolution. It will replace the current requirement to evidence irretrievable breakdown through a conduct or separation fact with a statement of irretrievable breakdown of the marriage or civil partnership. For the first time, couples will have the option to make this a joint statement, to reflect some couples’ mutual decision to divorce. It will remove the possibility of contesting the decision to end the legal relationship, as a statement of irretrievable breakdown will be conclusive evidence to the court that the marriage or civil partnership has irretrievably broken down.

The reform will introduce a new minimum period of 20 weeks from the start of proceedings to the point at which the applicant—or applicants jointly—can confirm to the court that a conditional order may be made. I hope that that gives my hon. Friend the Member for Walsall North (Eddie Hughes) some reassurance about that moment of reflection. Our proposal will make the court process towards a conditional order less rushed and give couples further time to consider the implications of the divorce. Between 2011 and 2018, around two thirds of cases reached conditional order in less than our proposed 20-week minimum period. That included approximately one in 10 cases within eight weeks, and four in 10 cases between nine and 16 weeks. The Bill also modernises language such as “decree nisi” and “decree absolute”, to bring terms in line with the more modern terms used in civil partnership law.

The reforms I have set out will deliver a system of divorce that is fit for the 21st century. It is time to end the blame game. The system we have now does not support the reality of marriage and civil partnership breakdown. It has been criticised as a system that

“is, and always has been, a sham”.

Those are the words of Sir Paul Coleridge, former family judge and chair of the Marriage Foundation, who, like all of us, believes strongly in marriage but sees that by reforming the law to remove from it unnecessary requirements that can fuel conflict, we will not undermine marriage and will support people to look to the future as they go through very difficult times. For that reason, I commend the Bill to the House.

--- Later in debate ---

[Richard Burgon]

That is why we are very supportive of mediation in family cases in general, and why we have made announcements in relation to legal aid and early family law advice. I hear my hon. Friend’s point about the role of solicitors not always being helpful, but there can also be problems when people end up being advocates for themselves.

The need to apportion blame and ratchet up the acrimony is one of the main reasons that so many of us want to see an end to this fault-based law—not least because of the impact on children. For example, the present divorce ground of unreasonable behaviour requires allegations that are hardly ever challenged and can sometimes be exaggerated by one spouse against the other, which can exacerbate tensions between them. It also makes it more difficult to agree arrangements for children. Indeed, one of the most urgent reasons for these reforms is to alleviate the harm caused to children, including to their mental health, by acrimonious separations. For a child of a divorcing couple, the divorce can be one of the most difficult times in their life. As the Secretary of State has indicated, the introduction of a no-fault procedure should mean that the whole process can be quicker and less stressful for them. At an emotionally traumatic time, such as a divorce or separation, parents want and need support in order to put the best interests of their children first.

This change to the law has public support and the support of family law experts. Margaret Heathcote— the chair of Resolution, which represents more than 6,000 family law practitioners and is a strong supporter of this change—said:

“Every day, our members are helping people through separation, taking a constructive, non-confrontational approach in line with our code of practice. However, because of our outdated divorce laws, they’ve been working with one arm tied behind their backs.”

In fact, the Secretary of State quoted her himself.

Professor Liz Trinder, who led the Nuffield Foundation’s 2017 research into divorce law, is also supportive of these reforms, saying that

“making people produce a ‘reason’ to obtain their divorce—as they are currently required to do—does not save marriages and instead just creates a meaningless charade that can create conflict, confusion and unfairness.”

And Christina Blacklaws, president of the Law Society, said:

“Making couples attribute fault…can escalate the differences between them in an already charged situation.”

The recent case of Owens v. Owens highlighted a particularly iniquitous aspect of our existing divorce laws: the possibility for one party to attempt to refuse a divorce by defending it.

[Eddie Hughes]

Does the hon. Gentleman think this change will in any way lessen the seriousness of the marriage contract? Will people entering into it feel that they can do so more lightly because, from a purely contractual point of view, escaping from it is made easier by this legislation?

[Richard Burgon]

I know that marriage is technically a contract, but it seems strange to think of it that way when it is such a personal and emotional thing. I do not believe that this change in the law, which is welcome, will lead to an overall increase in the number of divorces in the long run. However, I do think that it will reduce the unnecessary tension, conflict, distress and damage to children in those divorces, which would take place in any event.

In the case of Owens v. Owens, the family court judge refused to grant a divorce to Mrs Owens, who made the application for a divorce in 2015, despite finding that the marriage had in fact broken down. This was because she failed to prove, as required in the 1973 Act, that her husband’s behaviour was such that she could not reasonably be expected to live with him. Mrs Owens’s appeal was dismissed at both the Court of Appeal and the Supreme Court, leaving her unable to divorce her husband until 2020—a clearly unacceptable case. The judges who heard the case at both the Court of Appeal and the Supreme Court expressed their dissatisfaction with the existing law, with Sir James Munby, the then president of the family division, suggesting that divorce law was based on a “lack of intellectual honesty”, and Lady Hale concluding that it was for Parliament to make any changes to the law. It is therefore right that Parliament is now able to take up this issue and make the reforms necessary to ensure that no one has to go through what Mrs Owens experienced in this case.

The new divorce laws that we are considering today should aim to secure a number of desirable outcomes. They should ensure that people can separate as amicably as possible, keeping conflict to a minimum, so that the chances of reaching agreement are maximised and the risk of domestic abuse is as low as possible. Where there are children, their interests must be paramount, and a safe, secure and sustainable outcome for them should be promoted wherever possible. Unlike the existing system, these new divorce laws should not discriminate against women, especially those on low incomes. The new divorce and dissolution laws must also protect vulnerable and marginalised groups throughout the divorce process. In particular, they must not weaken the hard-won rights of LGBT people.

One issue that has been raised by charities working to support victims of domestic abuse is that the Bill as drafted does not remove the bar on petitioning for a divorce in the first year of a marriage. This can leave women who are suffering domestic abuse trapped in the abusive marriage during that year. Will the Secretary of State address that issue during the passage of the Bill, and will he tell us whether he has met Women’s Aid and other charities to discuss these concerns?

Since 2013, legal aid for divorce cases in England and Wales has been withdrawn by the Government—in most cases as part of a wider attack on access to justice that has had a very detrimental impact on family law cases. Groups including Citizens Advice have highlighted how legal aid cuts add to strain on divorcees, and more widely it is lower-income people and those with children who are more likely to be litigating in person than any other group. Resolution, which was mentioned earlier, has previously stated that providing legal aid for a single, initial meeting with a lawyer would provide separating couples with clear “signposts” about their legal options and encourage more people to use mediation as an alternative to courtroom confrontation.

Even with the welcome changes contained in the Bill, divorce will still be an often confusing legal process. There is a clear public interest in people being supported to achieve amicable resolutions to financial questions and arrangements for the care of children following a separation. Will the Government therefore commit to reintroducing legal aid for early legal advice for couples going through the divorce procedure?

In conclusion, bringing our divorce laws into the 21st century can form an essential part of the efforts to protect women from domestic abuse, limit the damaging impacts that fractious separations can have on children and encourage amicable separations wherever possible. For those reasons, I am pleased to support these overdue reforms.

Divorce, Dissolution and Separation Bill (First sitting)

Eddie Hughes Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 2nd July 2019 Public Bill Committees

[Eddie Hughes (Walsall North) (Con)]

Q You said that the reasons they state do not represent a fair reflection of the actual reasons. On what is that based? I thought I had read a report that said that 91% of petitioners said that it was very close or fairly close.

Nigel Shepherd: A national opinion survey, “Finding Fault?” You will hear evidence in the next session from Professor Liz Trinder, who conducted empirical research called “Finding Fault?” and the opinion survey for that found that only 29% of respondents to a fault divorce said that the fact used matched very closely the reason for the separation, and that 43% of those identified by their spouse as being at fault disagreed with the reasons cited in the divorce petition.

We call it a blame game, because at the moment if someone comes to see me as a practising family lawyer and says, “We both agree that the marriage has broken down. It is very sad, but we want to do this in the right way for our children and move forward. Can we get a divorce?” I say, “Not unless you want to wait two years.” They are aghast. They say, “That’s crazy. What do we do?” and I say, “Well, one of you is going to have to blame the other. Has there been adultery?” They say, “No,” so I say, “In that case, it is a behaviour petition.” They ask, “What do I have to say?” And that does not really matter. It has to be true—as a lawyer, I cannot put them through something that is untrue—but you can practically go on to the internet and cut and paste things such as, “I don’t like the way they control the remote control.”

[The Chair]

Q I am conscious of time. I wonder whether either of our other two witnesses has anything to add on the first question.

David Hodson: May I respond briefly to that last point? I would go even further than Nigel. Lawyers specifically go out of their way to make sure that the real heart of the reason why the relationship may have broken down is not in the allegations of unreasonable behaviour, to remove any cause for greater animosity and concern. As practising lawyers we go out of our way to pull back from the distress that these allegations would cause. So although, as Nigel says, it will always be true, we do not put down the real problems at the heart of the relationship, to avoid that.

If I can come to the Law Society’s position, we have throughout supported no-fault divorce and we have been keenly supportive of Resolution in all the steps it has taken. Nigel and I were actively involved in 1996 when that legislation went through. We are keen to support no-fault divorce and actively support the principle of this legislation. We actively support a period of notice as the way of dealing with it, rather than a period of separation, which can have artificial and discriminatory elements.

We have a number of concerns, however, about the structure of the Bill, including the way it is set out, and there are a number of flaws in the Bill. We want the legislation to go through and we want no-fault divorce, but we believe that the Bill should be amended in certain respects before it completes its passage through Parliament.

Aidan Jones: At Relate we believe that the outdated fault-based divorce system leads to animosity and causes conflict between parents, which we believe harms children. We think that it is better to have a system that supports co-parenting in future. We recently did a survey in which 64% of divorcees who responded said that placing blame for the divorce made the process worse for them. There are some quite stark quotes about how difficult that process was. For example: “things had been civil up until that point, very straightforward. Then, after divorce papers, it turned into a war and no one wants to accept blame or responsibility.” We strongly support the changes to the law, as set out.

--- Later in debate ---

[Anna McMorrin]

Q Nigel and Aidan, do you agree?

Nigel Shepherd: I think the Bill has it right at the moment, and I think it is very important to recognise that that kind of amendment runs the risk of leading us down the road of complicating things. We have a unique opportunity at the moment to get this over the line on the key principle of no-fault divorce. I think the purpose of the Bill is that simplicity. We can deal with issues of financial application separately if we need to. We can certainly discuss that. What I would not want to do is risk losing this opportunity for the sake of amendments that make it more complicated than it is. That would be our key point.

Aidan Jones: I agree with that. The core and most significant issue is the fault-based system. I think we should seek to resolve that, and anything that puts that at risk, for me, is something we should consider very seriously, so I would support that we keep it simple and deal with the major and most significant issue. For me, the most important part of that is the impact on children and their life chances, and the Bill will go a long way to resolve that, or to make that a better situation.

[Eddie Hughes]

Q Does this Bill make divorce easier?

David Hodson: No, in a word. I think it makes it kinder.

[Eddie Hughes]

Q Sorry, Aidan used the word “easier” during his evidence, so I thought that was kind of implied. Nigel, if you could explain.

Nigel Shepherd: Yes. I do not think it makes it easier in the sense that I think a couple who have been married deciding to get divorced—or one of them being unhappy—is very rarely easy, for us as practitioners. What the process currently does is it makes it harder than it needs to be. It increases conflict.

[Eddie Hughes]

Q So, relatively—I am sorry about the semantics, but I think they are important—if the current process makes it harder, surely, by implication, this makes it easier? You cannot argue both of those points. You clever legal people are always at this.

Nigel Shepherd: It is a matter of terminology. This no-fault process makes it kinder and more constructive. I do not think you will ever get rid of the—

[Eddie Hughes]

Q Does it make it less hard? That would be helpful.

Nigel Shepherd: It makes it less conflicted, and if by hard you mean conflicted and unconstructive, yes, this Bill makes it less of those.

[Eddie Hughes]

Q I started with the word “easier”—you were trying to avoid the opposite of it.

[The Chair]

Maybe we just have to hear about it as evidence.

[Eddie Hughes]

Sorry. Thank you, Chair.

Aidan Jones: As the non-legal person, I think I used the word “healthier”.

[Eddie Hughes]

You definitely used the word “easier”—and the transcript, I am sure, will tell us that.

Aidan Jones: The quotation from our senior practitioner used the word healthier—it is possible to have a healthier divorce. I think that is a better way to describe it.

[Eddie Hughes]

Q Sorry; you were referring to one element of it, saying, “This is easier.”

David Hodson: It makes it a far more respectful process. Our existing law is harder, because we make our clients go through the process of inventing allegations of unreasonable behaviour or making allegations of adultery when that may not have been anything to do with why the marriage broke up.

[Eddie Hughes]

Q Or, occasionally, identifying them if they actually do exist.

David Hodson: We do not now have to. If I may say this, with respect, we changed the law a few years ago so that you no longer name a co-respondent. That is just part of what we try to do to reduce the tension. Why do we have to name third parties who may or may not have anything to do with the reason a marriage broke up?

[Eddie Hughes]

Q Do we have any idea in percentage terms of how many people start proceedings but do not conclude them?

David Hodson: Can I deal with that? That is a real concern for the Law Society. There is some doubt about the statistics. It is a particular concern with online divorce. My firm deals with the online divorce process, and there is a real worry that the number of divorces that do not proceed has increased with the online divorce process. There were 13 on Christmas day. We have asked the Ministry of Justice for figures under the new process, which came into effect in April last year, where the public could issue their own divorces. Solicitors came on board in August.

How many members of the public issued their own divorce through the online process? We have asked the Ministry of Justice, which has given us some figures. My firm has done a freedom of information request and we hope to get a reply in about two weeks. I think it will show that there is a higher number in the online process than there was in the “hard” process, when we actually put it in the post, as it were, and actually had to file it.

That brings us on to a concern about the effect. We have to allow a process. If people are going to say that, it is another reason for the three-month cooling-off period. As I say, we have asked the Ministry of Justice, and if the Ministry of Justice can give those figures to all of us around this combined table earlier, it would be very helpful. The suspicion must be that the figure for litigants-in-person through online who do not proceed is higher.

[Eddie Hughes]

Q One final question from me: is there something we could do that would be more significant in removing the pressure or burden on children, other than removing the fault element?

Nigel Shepherd: I do not think so. This Bill does what it says on the tin in that respect. It is really important to get this and to focus on that big picture.

[Eddie Hughes]

Q That is the most significant thing in removing the impact on children?

Nigel Shepherd: It is one element that we can achieve through this Bill. Of course, there are things that we need to continue to work on.

[Eddie Hughes]

Q Hang on a second. The last time we tried to change this was in 1996, and it did not change. This feels like a fairly unique opportunity in terms of timescale, so is there something else we could be doing that would be more significant?

Nigel Shepherd: I think we need to continue to work on how we improve our systems, but I do not think this Bill is the vehicle for dealing with the fault aspect, which we know is damaging to children, and we can achieve that.

Aidan Jones: There are things we can do—not in a legal sense, but in a sense of, “How do we support people in healthy relationships?”—but I would not include them within the Bill. I would want Government Departments and the Government to look more widely at how we can support people through their relationships and in bringing up children. That is really important and you make a good point.

David Hodson: Children have been removed from the divorce process. They are not even named in the divorce petition. A few years ago, the requirement to set out their names and dates of birth was completely removed. One can get a divorce petition through now and have no idea whether they have one child, no children, many children, who they are living with and so on. That was a previous Ministry of Justice decision. The statutory instrument simply removed all reference to any children in any divorce papers. A few years ago, the judge had to express themselves satisfied with the arrangements for the children. That has also gone, so in the legal sense, the children have been completely removed, but they are still the children of a couple who are having to go through a no-fault divorce, and we do not want the children or their parents to have to go through that.

[The Chair]

I think we had better move on.

--- Later in debate ---

[Rosie Duffield (Canterbury) (Lab)]

Q To expand that, parties will still have to wait a year before applying. In your opinions, is there a danger that that will exacerbate any existing abuse?

Professor Trinder: That is a difficult issue, about which we have thought a lot. In general, the Bill very helpfully places responsibility for determining whether a marriage has broken down on the parties. In almost all instances, it is entirely up to the parties to determine whether the relationship has broken down and make that declaration. My only reservation with the one-year marriage bar is that it possibly has a symbolic importance to Members here. If the threat of removing the bar were to jeopardise the progress of the Bill, then I would not support it. Part of the reason for my making that statement is that there is not much evidence for needing to remove the bar.

In our study, we looked at a nationally representative sample of 300 undefended cases. Only four of those were brought within year two—months 12 to 24. Only one was brought in the 13^th month, as soon as it was legally possible to bring those proceedings. Numerically, the size of the population is small. In those four cases we also looked at what the case was about: why the marriage had come to such a precipitate end, whether it was domestic abuse, and whether it was women trying to flee an abusive relationship. None of those cases involved domestic abuse. That is not to say that there would not be domestic abuse survivors wanting to leave a marriage soon, but the numbers are very small and divorce in itself is not a protective measure.

There is the potential for nullity in the case of a forced marriage. Non-molestation occupation orders would be a solution. In any case, women would be in a better position in that, although they would have to wait 18 months, they would not have to disclose particulars of behaviour.

Mandip Ghai: We would obviously want survivors to be able to end an abusive marriage as soon as possible. We would agree with the one-year bar if concerns about it were going to derail the Bill: looking specifically at the impact on survivors, there is not enough evidence. I would also want some evidence on the impact it would have on migrant women and migrant survivors. I do not have enough information on that at the moment. There is also the issue of the potential impact on immigration status if someone’s stay is dependent on their relationship with the abuser. We do have concerns about the one-year bar, but we would agree on that if it was going to derail the Bill.

[Eddie Hughes]

Q Is there some evidence that changes of the type proposed by this legislation would lead to an increase in the number of divorces? I am reading a couple of cases here. 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. Research across Europe by Libertad González and Tarja K. Viitanen found that

“reforms that “made divorce easier” were followed by significant increases in divorce rates”

and, moreover, that the effect of the move towards no-fault divorce laws seemed “permanent”. Is there research suggesting that we could see not just a spike in divorce but a continuation of increased divorce levels?

Professor Trinder: No.

[Eddie Hughes]

So those two things that I quoted are unfounded or not relevant?

Professor Trinder: There is a large number of academic studies, as you would imagine.

[Eddie Hughes]

There are two here.

Professor Trinder: There is a large number of academic studies looking at the relationship between divorce rates and divorce law in a range of jurisdictions. You can always find one or two studies that will be outliers, particularly from the United States where there are aligned researchers. The strong message from the consensus of academic opinion is that there is no relationship between the substantive divorce law and divorce rates. The paper by Libertad González that you reference clearly said that procedural changes can have an impact on divorce rates, not the substantive law. If you look at our law, we have fault. Of all divorces, 60% or so are proceeding on fault. They will all get through. Fault is not a bar to achieving a divorce at all.

[Eddie Hughes]

Q What do the public think about whether we should maintain fault? Has any research suggested that the public are happy with the idea of there being fault?

Professor Trinder: It depends on how you ask the great British public, and how it is put.

[Eddie Hughes]

Q Here it states that the Government’s own consultation found that a mere 17% of respondents agreed with proposals to replace the five facts with a notification process, and 80% were against it. Is that incorrect?

Professor Trinder: No, I think those are the accurate figures from the Ministry of Justice. The MOJ launched a consultation and the vast bulk of responses were supportive of the proposals. A small evangelical Christian organisation then e-mailed all its members, and there was a flood of responses.

[Eddie Hughes]

Q Are responses from evangelical Christians not valid?

Professor Trinder: No, they are valid.

[Eddie Hughes]

Q Why did you mention it then?

Professor Trinder: They are valid as the views of evangelical Christians, but they are not a valid representation of the British public. In opinion surveys by YouGov, a majority of the population are supportive of the specific reforms and the removal of fault entirely. In the main, evangelical Christians are not supportive of the reforms, but the public in general are, and that is much more persuasive to me.

Mandip Ghai: The problem with relying just on statistics is that that does not include various sections of society, such as survivors of domestic abuse, who probably did not respond to that consultation. They probably did not know about it, or may not have felt confident enough to respond to the consultation.

[Eddie Hughes]

Q Why would you make that assumption? Why would they not know about the consultation and why would they not respond? On what basis do you make that case?

Mandip Ghai: When we spoke to people on our advice line, they did not know about it. I am basing it on my experience of speaking to survivors on our telephone advice lines. The reality for those women who we hear on our advice lines and who are going through the divorce process is that they find having to state the behaviour particularly difficult. From our experience, removing the fault-based system would help them to get through the divorce process in a safer way.

[Melanie Onn]

Q Is there evidence that demonstrates clearly that no-fault divorces are any less damaging to children than divorces in general? Regardless of whether fault and blame are apportioned, it is still a traumatic event for families, and it involves changed circumstances. We do not have this provision here, but could you point us towards something from north of the border or overseas that suggests that it would definitely ease the anguish of families in that situation?

Professor Trinder: Just now I mentioned that 60% of divorces in England and Wales were based on fault. North of the border in Scotland it is 6% to 7%. Are we, south of the border, so much more badly behaved in marriages than the Scots? [Laughter.]Again, it’s a game. The system is gamed, and the law currently incentivises conflict, because the only way to get a divorce within a reasonable time is to make allegations of fault. It is more likely that 50% of divorces are about behaviour because you do not need an admission, as you do with adultery. In the surveys that we ran as part of our study, that was much more likely to cause difficulties in sorting out child arrangements and to mean contested financial proceedings. The point is that divorces are going to be incredibly stressful and, in many cases, conflictual. The problem is that the law adds needlessly to that conflict. The fault process is a routine and a legal charade that adds nothing. Through allegations and seeing behaviour in black and white, it can derail couples who are managing their divorce reasonably well. It can derail things in a way that adds nothing to the process, and is just a needless problem that does not need to be there.

Divorce, Dissolution and Separation Bill (Second sitting)

Eddie Hughes Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 2nd July 2019 Public Bill Committees

[The Chair]

That is entirely up to you. I call Eddie Hughes.

[Eddie Hughes (Walsall North) (Con)]

May I begin, semi-light-heartedly, by declaring my interest as a Catholic, which informs my position? At the national parliamentary prayer breakfast in Westminster Hall this morning, there was a discussion about the overlap between politics and religion. There are some areas in which I find the two to be inextricably linked, and this may be one of them.

When I entered into marriage as a Catholic, I felt wholeheartedly that it was for life and that there was simply no way out of it; my wife decided otherwise, and we ended up getting divorced. For my part, because I felt that I had stuck to the sanctity of marriage from a Catholic point of view, I was kind of relieved by the idea that it was possible to apportion blame and use the idea of adultery as a basis for the breakdown of the marriage. However, I appreciate that in some cases that may not be preferable. My problem with the Bill is that I feel it will make divorce easier. When a contract is easy to get out of, people enter into it more lightly.

[Melanie Onn (Great Grimsby) (Lab)]

I hear the hon. Gentleman’s perspective, but I wonder who he thinks it serves in the long run to apportion such blame.

[Eddie Hughes]

I completely understand the hon. Lady’s point. That is why I am trying to set the context: my very personal view is that the system worked in my particular case, but I completely accept that it will be different for others, as we heard in our evidence session this morning.

My point is simply that we have all visited websites that have asked us to tick a box to agree to terms and conditions. It is highly doubtful whether any of us has ever read all the terms and conditions before ticking the box, because we know that we are entering into a contract that will be really easy to get out of. We have all done it—we have all pressed the button to enter into a contract really quickly, because we know that it is easy to get out of. I am scared about any move in that direction with regard to marriage, because my personal belief is that it is more important than that, as a contract and a spiritual union.

Anyway, I have some points and questions for the Minister about clause 1. The written and oral evidence submitted to the Committee by Mr Hodson raises several key points that really engage with the clause and that arguably highlight the need for amendments that I hope the Government will consider.

The 20-week reflection period is clearly of huge importance. The Bill is about removing fault from divorce, not about minimising the opportunity within the divorce process for couples to gain access to mediation and have a rethink. This may come as a surprise to some right hon. and hon. Members, but in some instances the first occasion on which a spouse finds out that their marriage is in difficulty is the commencement of divorce proceedings. That is the first opportunity they have, with that knowledge, to try to put things right. At a time when the annual cost of family breakdown to the Exchequer stands at £51 billion, according to the Relationships Foundation’s annual assessment, it is imperative that policy makers and legislators seize every opportunity provided by the 20-week reflection period to maximise the opportunities for mediation and reconciliation. Without any expression of commitment to the importance of marriage, the Bill will sound very hollow.

One key measure by which the success or failure of the removal of fault in the legislation will be judged will be the extent to which it creates a better environment within which couples can rethink and save their marriage. To this end, the 20-week reflection period defined in clause 1 is clearly of the utmost importance. At the moment, on the basis of the evidence submitted by Mr Hodson, it seems vulnerable on several points.

First, in a case in which one member of a couple initiates divorce proceedings, if the 20-week clock starts ticking from the moment that they initiate, as clause 1 currently proposes, the other spouse will on some occasions inevitably end up with less than a 20-week reflection period. That is clearly neither fair nor transparent. Will the Government amend the Bill so that it is clear that the 20-week clock will only start to tick from the moment it is clear that both members of the couple know about it?

Secondly, in order for the 20-week reflection period to work well, it is plainly important that a good part of the 20-week period, if not all of it, is made a litigation-free zone, so that the focus can be on mediation. That must extend to ancillary financial litigation. Will the Government amend the Bill so that at least most of the 20-week period, if not all of it, is made a litigation-free zone, including ancillary financial litigation?

Thirdly, will the Government consider changing the point in the process at which the partner seeking the divorce should lodge their statement of irretrievable breakdown? Having it at the start, as the Bill proposes, makes it extremely difficult for the other partner to respond constructively if the intention is for a period of reflection.

Finally, mindful of the importance of the 20-week period referred to in clause 1 for reconciliation and mediation, what new provisions will the Government make to ensure that all couples are offered effective reconciliation and mediation specifically during this period, in an effort to increase the numbers of divorce proceedings that are not concluded, thereby increasing the number of marriages saved?

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I put on the record the fact that the Opposition do not object to this legislation, which is one reason why no amendments or new clauses have been tabled. We welcome this piece of legislation, which has for many years been required and called for, and it is great that the Government have brought it to the House. This morning, Members heard from experts in this area who deal with these types of cases day in, day out, and it was quite clearly their unanimous opinion that this legislation is important, welcome and needed.

No one goes into a marriage expecting it to fail, but it is an unfortunate reality of life that couples may choose to go their separate ways. It is even more unfortunate that, when they pursue a divorce, they do so under archaic law. Among the five permissible grounds for divorce are adultery, desertion and unreasonable behaviour, which involve the allocation of blame to one party. That is unfair and could damage a couple’s children as well.

For decades, campaigners have been asking for this change to the law. This situation was crystallised recently in the case of Owens v. Owens, which ended up in the Supreme Court. Sir James Munby, then president of the family division of the High Court, said in 2017 that

“the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b).”

We heard about that this morning. It is interesting that in Scotland, where the requirement for fault has been abolished, only 6% to 7% of divorce applications are based on fault, yet in England 60% are based on allocation of fault. That raises the interesting question, as Professor Trinder said this morning, of whether we are worse behaved than the Scots. It is not that. In Scotland, people do not have to go through the intellectual dishonesty, as Sir James Munby said, of creating issues of fault.

The Minister will set out the law as it stands, but I point out that if a couple want to divorce in less than two years, they need to start pointing the finger of blame, with one citing the other’s adultery, unreasonable behaviour or desertion. That in itself causes unnecessary strife. However, in most cases, neither party contests a divorce, so they can go their separate ways.

The need to apportion blame, and ratchet up the acrimony, is one of the main reasons why the Opposition want to see an end to fault-based divorce law, not least because of its impact on children. The ground of unreasonable behaviour, for example, requires allegations from one spouse against the other that are hardly ever challenged and can be exaggerated, which will inevitably exacerbate the relationship between the parties and make arrangements regarding children even more difficult. It is therefore unsurprising that most of the legal community supports the changes. About 1.7 million people have assigned blame in a divorce process. Many need not do so, so again legislation is very important.

The Law Commission has called for the current fault-based system to be scrapped. In fact, it recommended that in 1996. It has made several criticisms of the current law, of which many hon. Members are aware, but perhaps they are worth repeating because some believe, and indeed the hon. Member for Walsall North alluded to the fact, that somehow such reform will lead to more people filing for divorce. In a number of cultural and religious communities divorce is actually very easy but the divorce rate is tiny. I do not accept the suggestion of a correlation and that the divorce rate will spike because of a change in the law. It is about societal issues or particular challenges in people’s lives and communities. I do not think a correlation can be seen between changing the law and an increase in the rate of divorce from looking at other countries, cultures and societies where there is a more open or easier divorce system.

One of the problems with our current system is that the law is confusing and misleading. It says that the only ground for divorce is that a marriage has “irretrievably broken down,” but that can be proved only in one of five ways, three of which involve fault. Therefore, the fact used as the peg on which to hang a divorce petition may not in any way bear relation to what caused the breakdown in marriage. The law also pretends that the court is conducting an inquiry into whether and why the marriage has broken down when in fact it does no such thing. Even if a petition is defended, it requires only that the fact is proven.

The current system is discriminatory, favouring those who can afford to live apart for two years before seeking divorce, with the remedies that go with that. Many poorer parties, including many who are victims of domestic violence or abuse, cannot afford to separate unless and until they get orders, which are obtainable only on divorce. Matrimonial home orders under part IV of the Family Law Act 1996 were originally intended to provide a sensible interim housing solution, but the provisions of our current law exclude parties from being able to access it.

The current system is unjust. Adultery and unreasonable behaviour suggest that one party has to blame the other, but many of the technical bars under the old law were abolished. There is little or nothing to stop the more blameworthy one relying on the conduct of the less blameworthy one. It is difficult, expensive and may be counter-productive to defend or cross-petition to try to put matters right.