Divorce, Dissolution and Separation Bill [Lords]

Edward Leigh Excerpts

2nd reading & 2nd reading: House of Commons & Money resolution & Money resolution: House of Commons & Programme motion & Programme motion: House of Commons
Monday 8th June 2020 Commons Chamber

[Robert Buckland]

I understand entirely my right hon. Friend’s concerns. The number of divorces has declined in recent years, but that perhaps goes back to the point made by my hon. Friend the Member for Winchester about the beginning of it, because the number of marriages has declined in proportion since 1972, just under 50 years ago. Taking the long view, one should focus upon the beginning of the process—the nature of the commitment, the solemnity of that commitment and the importance of that relationship and that commitment—rather than the detail of the end process.

This Government’s proposals will apply equally to married couples and civil partners. While I conveniently refer to the concept of marriage and divorce, the principles and effects apply equally to civil partnerships and their dissolution. Husbands, wives and civil partners will no longer need to produce or face a real or perceived catalogue of failings in respect of their most intimate relationship. There is a strong common view underlying the proposals in the Bill, built upon the foundation of a significant evidence base.

[Sir Edward Leigh (Gainsborough) (Con)]

Of course, it is not necessary to make any allegation under the present law—people do not have to prove fault if they rely on separation. In addition to the present grounds for divorce, why do we not go down the Scottish route of having a no-fault provision, perhaps of a year? In Scotland, all but 5% of divorces are no-fault. Why do we not have a moderate measure such as the one in Scotland?

[Robert Buckland]

As ever, I am grateful to my right hon. Friend for his constructive approach. He quite properly seeks to make a comparison with a nearby jurisdiction—a next-door jurisdiction—but I believe that taking a more comprehensive approach will cure problems for the long term. Rather than encouraging a piecemeal approach to divorce reform—in other words, coming back to it in very short order—we are creating a Bill that will, I believe, endure for a considerable period of time.

Let us remember that the evolution of divorce law has involved significant moments in parliamentary history: there was the Matrimonial Causes Act 1857 and the Divorce Reform Act 1969, which of course led to the Matrimonial Causes Act 1973, which brought together a lot of the legislation on such issues. These things are not done, and I do not think they should be done, from Parliament to Parliament; they should have a longer shelf life, bearing in mind the gradual evolution of the law in this area.

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[Sir Edward Leigh (Gainsborough) (Con)]

I have been married to the Conservative party for a very long time, and I have no intention of divorcing her, but I have to say that she drives me to distraction. I do not know why I do not have a calm partner who can get on with doing the things we do best, such as providing a smaller state, lower taxes and strong defence. Why do we always think that we have to adopt an extreme liberal agenda? This Bill is part of a liberal agenda, because it is saying is that we can remove the ultimate pain by making things easier, but that simply does not happen very often in life.

We could have brought in a moderate measure. No one has to allege fault under our present law. If there is a separation, no fault is alleged. As I said in my intervention on the Secretary of State, we could have done what the Scots do—how sensible they are—and brought in a provision that, in addition to the existing provisions, someone would simply have a no-fault divorce after, say, a year. But no, we are rushing this through. We are saying that people can get their divorce after six months. They will not even have to prove proper service. They could be divorced within a matter of weeks. Really, the Secretary of State has to do better in reassuring us, because the message we are sending out tonight is that we are engaged in making quickie divorces easier, and I am not sure that that is the right message for us to be sending out, particularly at this time of family stress during lockdown.

In the last Parliament, this Bill was promoted by David Gauke. How much we all miss him! He carried out a consultation, but he ignored what the consultation said. We know that 80% of the people who were consulted opposed this measure. In another poll, 72% said that if we were to bring in compulsory no-fault divorce, people would get more blasé about divorce. I return to the point made by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes): it is obvious that if we make something easier, it will happen more often. That point was also made by my right hon. Friend the Member for New Forest West (Sir Desmond Swayne). I assure you, Madam Deputy Speaker, that this is the lesson of history. If we bring in compulsory no-fault divorce in a six-month time frame, the result will be more divorces. And, as my right hon. Friend the Member for New Forest West said, the best way to propel women into poverty is through family breakdown and divorce. We already have one of the highest levels of family breakdown in the world, and now, rather than putting more money into supporting marriage and sending a message that we support marriage, we are sending a message that we want to make divorce even easier. Is that the sort of message that we want to send out to people?

Hon. Members might think that this is an obsession of the right, but listen to Hillary Clinton. She said:

“For much of the 1970s and 1980s, many believed that a bad marriage was worse than a good divorce. Now, however, we know that children bear the brunt of failed marriages…Divorce has become too easy because of our permissive laws and attitudes.”

That is not me speaking; that is Hillary Clinton, hardly an icon of the socially conservative right. But how wise she is! I assure you, Madam Deputy Speaker, that the result of this Bill will be more pain, more suffering, children seeing less of—usually—their fathers and more women propelled into poverty. Is this really what we want to achieve? The Secretary of State could have given some concessions. He could have said to my right hon. Friend, “I hear what you say, and I think perhaps I will be prepared to look again at the provision of six months.” He could have said that he was prepared to do what the Law Society suggested or to do what the Government were going to do 25 years ago, when I opposed a similar Bill, and have a one-year provision. But no, he is ploughing ahead. Everybody will get their divorce in six months. He could have told me, when I intervened on him, that he was prepared to think again about keeping some of the existing provisions. After all, there are many religious people—and maybe many who are not so religious—who would like to be given a reason why they are being divorced. Many people feel that marriage is a most important thing in their life. But no, the Secretary of State is ploughing ahead with the most extreme and most radical measure he could dream of. This is one of the most radical and most extreme divorce laws in the whole of the European continent. Why are we doing this now? Why are we not prepared to compromise? Why are we not prepared to give an unequivocal message that we believe in marriage and will support it to the hilt?

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[Sir John Hayes (South Holland and The Deepings) (Con)]

When my party won an 80-seat majority in the election, I knew that it was about much more than getting Brexit done; it was also about responding to the working-class community’s desire for an alternative to the liberal agenda which has dominated politics for so long. So it is with deep regret that I see this Bill brought to the House tonight. We need a Government prepared to back communities, build families and cement social solidarity, and this Bill is injurious to all those objectives.

The biggest shake-up of divorce law in half a century is based on a misunderstanding of what marriage is and the human ideals from which marriage derives its meaning. This Bill reduces marriage to the legal status of a tenancy contract—one that can be dissolved at minimal notice by either party, without any expectation of permanence or any explanation.

Hegel said that marriage is a “substantial tie” that “begins in contract” to “transcend” contract, by abolishing the separation between the parties. Hegel’s point can be put more simply: essentially, a marriage is not a contract but, as my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) said, a vow. That is why it has such great significance to us and why it is traditionally surrounded by so much ceremony. Roger Scruton put it this way:

“That we can make vows is one part of the great miracle of human freedom; and when we cease to make them, we impoverish our lives by stripping them of lasting commitment.”

It is through our ability to limit and constrain ourselves that we express our true freedom.

Life is not a dreary succession of consumer choices, but a journey marked by moments of transcendental significance, and marriage is one such commitment.

Our existing law is founded on the ancient understanding of what marriage is: a vow. Progressive activists for the Bill, such as the Lord Chancellor’s old ally, David Gauke, say that alleging fault increases acrimony in a divorce, but that notion is based on a misunderstanding of marriage. Changing the law may cheapen marriage, but it cannot change the idealism in which the commitment of one human being to another is founded. Acrimony is almost bound to follow the breaking of such a vow. Regardless of what the law may say, enmity is not a product of the process, but a characteristic of human relations when they break down, and to pretend otherwise is to attempt to deceive this House and the people who vote for us. The current law reflects these facts of life and reflects the significance of the vow that has been made. Fault necessitates expectation.

[Sir Edward Leigh]

It is said by the supporters of this Bill that the divorce process can damage children, but that is only if parents seek to involve children. One thing that is absolutely certain is that divorce itself damages children, and if we make something easier, it will happen more often.

[Sir John Hayes]

I agree, and the Bill essentially turns divorce into an administrative formality, removing the breathing space that allows around 10% of divorces that are initiated to be averted. About one in 10 divorces that are started are never actually completed, and that is because of the time available for counselling, for reconciliation, for reconsideration and for trying again. The Bill removes that opportunity. It removes protections for individuals whose spouses seek to terminate their marriage in times of hardship or illness. For many, the changes could mean that faithful, committed husbands lose access to their children, while women cruelly abandoned by errant husbands will have no way of marking that betrayal and no reason offered for why their marriage has ended.

What is most disappointing is that the Government ignored their own consultation. Some 83% of public respondents opposed change. The Bill provides a 20-week period at the start of proceedings, which Ministers say will allow time for reflection, but 20 weeks is not long enough to settle the matters of property or to secure the welfare of children. In any event, the Law Society points out that most of the 20-week period could pass without one respondent to the divorce even knowing about it. Unbelievably, the Bill does not require the applicant to serve a notice on the respondent at the start of the 20 weeks. When that matter was raised in the House of Lords, Lord Keen gave a lukewarm response. He is never the most persuasive Minister. I say it is a basic injustice that must be remedied, not by the Family Procedure Rule Committee, as he suggested, but on the face of this Bill.

We are in perhaps the most challenging time that anyone can remember, yet we bring forward a Bill with such insensitivity that we challenge not only the stability of families, but the very nature of marriage itself. Divorce marks the end of a partnership—the death of a love. As a family ends, all of society is a little weaker. The Lord Chancellor will come to regret this Bill because it is fundamentally un-Conservative. As it makes divorce easier, it makes marriage less significant and will make it less valued, and that is a price that no one here can afford to pay.

Divorce, Dissolution and Separation Bill [Lords]

Edward Leigh 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

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

Order. A reminder that there is pressure on time. There are still quite a few speakers, who would be well advised to take pretty well under 10 minutes to allow everyone to speak. I call Sir Edward Leigh.

[Sir Edward Leigh (Gainsborough) (Con)]

I rise to speak to new clause 3, which stands in my name. It would replicate Scottish law, which replaces the two and five-year separation with a no-fault divorce after one year. It is a moderate compromise and I have no doubt that the Government will accept it.

I believe the Government are making a huge mistake. That is not just my opinion; the research is clear that liberalisation and expansion of no-fault divorce, wherever it has been introduced, has led to the most vulnerable in society being worse off. Look at the evidence from Sweden, Canada, and various US states—it all points in the same direction: we will have more divorces, and the worst-off will be hurt the most.

The Brining study in the US showed that 75% of low-income divorced women had not been poor when they were married. The Parkman studies show that, overall, women living in American states with no-fault divorce work, on average, 4.5 more hours a week than their counterparts in states with fault-based divorce. In this country in 2009, the then Department for Children, Schools and Families produced an evidence review that showed that a child not growing up in a two-parent household was more likely to be living in poor housing, to experience more behavioural problems, to perform less well in school, to need more medical treatment, to leave school and home when young, to become sexually active, pregnant or a parent at an earlier age, to report more depressive symptoms, and so on.

We now understand the intent behind the Bill: it is to make divorce easier and to propel more families, and particularly more women, into poverty. We know that, in reality, the Government’s intention is to speed up the divorce process, which they say will make it more efficient, but look at the side-effects I just described. Surely the cure is much worse than the disease? I realise that I am out of alignment with Government policy—a rare event for me—so I want to outline the purpose and rationale of the new clause. I admit it would constitute a rewrite of the Bill, but I think it is quite a moderate rewrite, and it accords with the central purpose of the Bill, which is to encourage no-fault divorce and, like it or not, to speed up the process.

Hon. Members will recall that the current law sets down the five facts that must be established before a divorce is granted. The separation ground does not require proof of fault, so we already have no-fault divorce, but the Government say the period is too lengthy. The problem campaigners have with the current no-fault divorce law is that it takes too long, and I agree. As Baroness Deech in the other place has said,

“the essence of the demand for reform is speed.”

I think the Government should be honest about wanting to speed up the whole process. Ministers do not like to be reminded that they are making divorce easier, but we must be honest: if a process is made easier, human nature being as it is, more people will do it. Of course, for many divorce is an agonising decision, but when married couples are having problems, the quicker and easier it is to get a divorce, the more likely they are to choose divorce, instead of choosing the hard work of talking out their problems.

My parents met at Bletchley Park during the war, and it was a great pleasure to attend their 50th wedding anniversary celebration in 1994, shortly before my father’s death. It was a shock for my sister and me to find some extraordinary and poignant letters written in the 1940s that showed our parents were clearly having enormous problems, but it was just as obvious that they were determined to make a go of it. People might say, “It was a previous generation,” but there were many couples like my parents in their generation. I owe them so much for keeping together and looking after us, and always being ready to help my brother, my sister and me. I am proud of what they did and the sacrifices their generation made, and I worry about what my own Government are doing in sending the wrong signal—sending the signal that marriage is not one of the most precious things in the world.

It has already been said that people can sign up to a mobile phone contract and be stuck with it for two years, in which they have to fulfil the obligations of the contract, but they can have a church or civil ceremony, profess lifelong fidelity before the law, before God, before friends and neighbours, and after just six months walk away. Basically, they just say, “I divorce you, I divorce you, I divorce you,” and that is that. What sort of message is our own Conservative Government sending to society? I believe we should be Conservative with a big “C” and conservative with a small “c”—socially conservative. I know that not a lot of people in Parliament agree with that message, but I have no difficulty with it. People out there understand what is at stake. In one poll, 72% of people said that no-fault divorce may make people more blasé about divorce. We do not need to look at a poll; it is obvious that it will make people more blasé about divorce.

Clause 1 abolishes all five fact grounds and replaces them with a system where one spouse can simply resign from a marriage and get a divorce in six months. My new clause would make a much less dramatic rewrite of the law. We can maintain the fault grounds for those who wish to use them, while substantially speeding up no-fault divorces, but still giving people time to reconsider. Far from giving couples in difficulty more options, this Bill takes them away. Is it a Conservative option to take away options, rather than keep them to provide people with different ways of getting a divorce if that is what they really want to do, and give them more time to reconsider?

We should think of the wife who is faithful to her husband for 30 years only for him to run off. She will have no way of getting a divorce that recognises who was in the right and who was in the wrong—that is taken away. Abolishing fault deprives spouses who wish to obtain a divorce on fault grounds any opportunity of doing so. We should think of the man or woman who is mentally or physically abused by his or her spouse. He or she will be unable to get any recognition of that through the divorce process. This new system will be blind to all suffering and to all injustice. The spouse being divorced against his or her wishes will have zero opportunity of contesting the divorce to try to save the marriage or to slow things down and plan for the future.

[Sir John Hayes]

But it is even worse than that because, as the Law Society points out, the respondent might not even know that they were being divorced. It will usually be a lady who is divorced by a man who has gone, as my right hon. Friend has described, and they might not know and then they would be divorced by January. That is the harsh reality we are facing and it is appalling that a Conservative Government should impose that on us.

[Sir Edward Leigh]

Some of our amendments make it clear that there must be proper service and a reasonable length of time, and the respondent must know that the service is being made. Those are quite reasonable amendments, and I suspect that they will all be resisted by the Government.

My new clause simply mirrors the approach taken in Scotland—quite a sensible jurisdiction, you might think. It would leave open the option of seeking a fault-based divorce, while reducing the separation periods to one year with consent and two years without consent. Just 5% of divorces in Scotland now take place on fault-based grounds, so it is there for the minority who need it, while the majority can choose a no-fault option. This is Scotland. It works and it is not unreasonable. I see no reason why we should not replicate Scottish law, and that is what my new clause does. I cannot understand why the Government have not chosen a more sensible route such as that, as it would be far less controversial. Members will recall that the public consultation on these proposals met with considerable resistance—80% did not agree with the proposals, but they were ignored.

One argument made in support of the Bill has been that the waiting periods for separation encourage or force couples who want a divorce quickly to use fault facts rather than separation facts. If we really are worried about people using the fault grounds to speed up their divorces and allegations of fault increasing acrimony, what is wrong with the Scottish approach, where people can get a no-fault divorce on consent grounds in just one year and where only 5% of divorces now allege fault? Why not make no-fault divorce an option for those who want it, rather than forcing everyone to do it the Government’s way?

Again, we should think of the most vulnerable in society. Let us consider what happens in Sweden, a place that many Opposition Members praise. Even the extremely generous Swedish welfare state has proved totally ineffective at breaking the link between family breakdown and poverty. The incidence of poverty among children in single-parent families is more than three times that in families with two parents. The number of Swedish households in poverty headed by a single parent is more than four times the number of households in poverty headed by couples. It must be emphasised that Parliament does not exist in a vacuum. The laws that we make here will have repercussions in every community in the country. Do we want more children to be disadvantaged? Do we want to see women poorer and working longer hours? Do we want to deprive innocent spouses of having their blame business being recognised in the divorce process? I hope that the answer is no.

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[David Simmonds]

My right hon. Friend makes a very powerful point, but we also need to recognise that the context of our society today is very much of the view that five years is a long time to wait and that the process that is required where fault is established in order to undertake the divorce more quickly is one that inevitably leads to this degree of conflict. Let me move on to the key point—

[Sir Edward Leigh]

Will my hon. Friend give way on that point?

[David Simmonds]

If I may, in respect of others who wish to speak and time being short, I will move on.

This issue of conflict and the impact that it has on children is at the heart of the concern that I feel and, for me, the significance and the value of pressing ahead with this legislation. The organisations that I have cited previously in the discussions on this issue—the Early Intervention Foundation, Tavistock Relationships and the Local Government Association—have a huge stake in supporting children in our society. They may have a political or a religious affiliation or no affiliation whatever, but all identified that it is not the fact that a divorce is taking place, but the fact that there is conflict in the relationship between those two parents that causes the damage to children and their life chances. For me, that is incredibly important, and it is backed up not just by the evidence on the relationship damage caused by divorce, but, conversely, by very good evidence about the significance of really effective and positive co-parenting. Society, I think, has already moved in that direction. We see many, many examples of non-traditional couples, who are brilliant and effective parents, giving children a fantastic start in life. Of course, many of us enjoy and are positive about seeing that in the context of traditional marriage. However, we need to recognise that, when such a relationship runs into difficulty, the opportunity we can create through this Bill for a less acrimonious separation—to help preserve and support that effective co-parenting relationship between the two separating adults—is incredibly important for the future opportunities and life chances of those children.

Finally, I would like to make the point that I very much support what a number of colleagues have said about the significance and importance of counselling. When people have made the enormously important decision to get married, it is a very significant decision to move away from that, and counselling should be supported and made available as far as possible. However, that is not a reason not to support this legislation.

I am extremely passionate about the significance that the absence of conflict will have for ensuring that children, who could benefit from a constructive co-parenting relationship with adults who have none the less sought to divorce, is available to those children, rather than potentially perpetuating a situation in which acrimonious division between separating parents has a lifelong impact on those children for their futures. For those reasons, I remain strongly in support of the direction that the Government are taking.

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[Sir Edward Leigh]

Introducing Third Reading, the Lord Chancellor said that this is not a quickie divorce Bill. It is a quickie divorce Bill—six months sounds pretty quick to me. The Lord Chancellor said it does not undermine marriage. This Bill does undermine marriage, because it can be dissolved without people giving any reasons at all—indeed, it forces people to get divorced without giving any reasons. The Lord Chancellor said it does not undermine reconciliation. Well, it certainly does nothing for reconciliation.

The amendments we proposed were moderate. We simply asked for more time—from six months to nine months or one year. All our amendments have been swept aside by the Government. In the last vote, we asked for more money to be given for reconciliation. The Government brought the full might of their machine to vote down our amendment—a very moderate amendment. Divorce costs us £50 billion a year, but we are spending only £10 million. In his introduction, the Secretary of State said that the Bill is not coming at the wrong time. It is the wrong time—precisely the wrong time, when relationships are under so much strain.

We have a fundamental principal objection to the Bill. The Bill furthers the claim that the present law is based on hypocrisy. Leaving aside the fact that no one has to allege fault, this is part of a liberal point of view that getting rid of any sort of moral compass in society and any pain means that society will suddenly become painless. No doubt the next argument used by our Government will be that our present abortion laws are based on hypocrisy, because anyone can get an abortion but they have to give a reason, so why not have abortion on demand all the way through? Or they will say that our present laws on euthanasia are based on hypocrisy, because in reality we all know that many people are not kept alive and their lives are quietly ended painlessly, so let us have euthanasia. We will have abortion on demand and euthanasia on demand, and we have divorce on demand.

I tell right hon. and hon. Members that if they get rid of pain, if they get rid of all moral compass, they will find that it is not the process of divorce that causes the pain; it is the fact of divorce and the fact that we have one of the highest rates of marital breakdown in the world. It is a bad Bill, it is a quickie divorce Bill, it comes at the wrong time, and we do not agree with it.