Divorce, Dissolution and Separation Bill [Lords]

John Hayes 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 am very grateful to my hon. Friend, who served for a considerable period in the Department I now have the honour of leading. He is right to talk about the financial consequences of breakdown. It is important to note the commitment made by my noble and learned Friend Lord Keen in the other place by way of a letter dated 16 March to Baroness Deech, which has now been placed in the Library of each House, that we will consider how a review of the law governing financial remedies provision on divorce may take place. I give him that undertaking.

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

I am extremely grateful to my right hon. and learned Friend for giving way. The Law Commission also recommended that rather than reducing the time that people can get divorced within from two years to six months, it should be reduced to nine months. Given his willingness to concede on the previous point, will he at least look at that again?

[Robert Buckland]

I am very grateful to my right hon. Friend. I know that he, like me, is a doughty champion not only for the family, but the need to reduce conflict. I know that he makes his point passionately, but I would argue that the way in which this Bill is constructed makes the so-called quickie divorce a thing of the past. The minimum terms that we are talking about provide an equality of approach that will no longer discriminate in favour of those couples who perhaps have the means and the wherewithal to either separate and live separately or to employ the sort of lawyers who can, shall we say, get things done in a more expeditious way.

I stress to the right hon. Gentleman that the six-month term that has been naturally focused upon is a minimum. There will be divorces that take longer than that for reasons of complexity relating to each relationship. The point is that there will not be divorces that can take place in as quick a time as eight weeks, as is currently the case.

Reform of divorce law is supported not only by the lawyers, judges and mediators, but by the Marriage Foundation and, importantly, by evidence from academic research. It is evident that the law does not do what many people think it does. It cannot save a marriage that has broken down, nor can it determine who was responsible for that breakdown. Allegations made in a divorce petition by one spouse about the other’s conduct give no advantage in any linked proceedings about arrangements for children or financial provision for a spouse, yet the current law can perversely incentivise conflict. It requires an applicant for divorce or for the dissolution of a civil partnership to provide details to the court of the respondent’s unreasonable behaviour if their circumstances mean that they need to divorce before a two-year separation period. The incentive at the very start of the legal divorce process to attribute blame can only serve to antagonise parties at the most difficult time in their lives. Moreover, the court in practice has limited means by which to inquire into such alleged behaviour and must often accept what is said by one spouse at face value. This can be a source of real resentment for the other spouse.

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[Robert Buckland]

My hon. Friend will recall his Court of Appeal appearances, where the tribunal might have said, “Mr Neill, that’s your best point. You needn’t go any further.” He makes an important point on the issue of blame; it does not help anybody when it comes to these issues.

The clear purpose of the Bill is to reduce conflict, because conflict does not help when it comes to the legal end of a marriage. That can only be to the advantage of divorcing couples and their children, because children’s best interests are most clearly served by the reduction of conflict and the co-operation of divorcing parents who work together to ensure that they co-parent effectively. The Bill will help couples to focus on a more constructive way of collaborating in making future arrangements that are best for their family—in essence, looking forward rather than backward.

[Sir John Hayes]

I am grateful to my right hon. and learned Friend for giving way a second time. The acid test is: as a result of this legislation, will there be more divorces or fewer? It is my contention that if we make something easier, people are more likely to do it.

[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.

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[Mr David Lammy (Tottenham) (Lab)]

I thank the Secretary of State for his speech introducing this important piece of legislation. Labour welcomes this Bill, which offers a common-sense approach that continues to respect the institution of marriage and civil partnerships, but avoids unnecessary antagonism and costs for people dealing with an often incredibly difficult time in their lives.

Sir James Munby, the former eminent president of the family division, has described the current divorce laws and procedures as “hypocritical” and based on “intellectual dishonesty”. As Sir James pointed out in his damning judgment in the infamous case of Owens v. Owens, the requirement of many couples to evidence unreasonable behaviour can lead to farce.

It was 30 years ago now that I studied Evelyn Waugh’s “A Handful of Dust” for A-level English, and as the Secretary of State might recall, in the case in Waugh’s novel, the character Tony is forced to spend a platonic weekend in Brighton with a sex worker to fake evidence to allow his divorce. That, of course, was set in the early period of the 20th century. It is surprising that it has taken that long to update these laws.

Divorce is an unhappy event in the lives of many. It has a profound effect on families, and on children in particular. It is important that the law does not force couples into an adversarial contest when a breakdown in a relationship occurs, but allows and encourages them to resolve matters in a constructive way. The Bill modernises the law, which has been fundamentally unchanged for more than half a century, so that it better reflects the realities of a breakdown in a relationship, better protecting the most vulnerable who attempt to come out of an abusive relationship and simplifying the process of ending a marriage or civil partnership without undermining its social and cultural importance.

The divorce process today is archaic and confusing to most people as they enter into an emotionally fraught process. The law forces parties who are going through a divorce to choose between evidencing one of the three fault-based facts about their partner: unreasonable behaviour, adultery or, less commonly, desertion. If neither party is willing to make such an application, the parties must separate but remain married for a period of two years, or five years if one party disputes the divorce. The option for couples today is entering into a lengthy and costly adversarial legal proceeding, or delay and legal limbo.

Both routes lead to difficulties for all and a real risk of harm to others. Couples who enter the process amicably can be quickly pulled apart by the law. There is an incentive for each party to make accusations about the other’s conduct, and that cannot be right. Some couples can easily live apart and bide their time, but for others, moving into separate accommodation without a finalised divorce and any financial settlement is impossible. That is why so many charities and campaign organisations that work with victims of domestic abuse have called for reform in this area for many years.

The new law will allow and promote conciliation and compromise. That will be of real help for families and children of broken relationships. Importantly, it will reduce legal costs that can quickly reach eye-watering sums, quite unnecessarily.

[Sir John Hayes]

I am so pleased to see the right hon. Gentleman back on the Opposition Front Bench. He is a dear old friend, but he is quite wrong about this. These provisions declare at the outset that the marriage is irreconcilable. If that happened at the end of the process rather than the beginning, he would be right; an opportunity for reconciliation, and perhaps rethinking, as a result of counselling might be possible. That is not the case with the proposals we have before us tonight.

[Mr Lammy]

I am grateful to the right hon. Gentleman. Ever since I first came into this House, it is true: we have had a sort of friendship across the aisle. I say that with a degree of humour, to which I know he is disposed himself. He raises an important issue, but I think the point is that the Bill allows for a period in which couples can reflect, and for mutuality between partners. We in this country are taking an important step, whereby two adults contemplating the breakdown of their relationship can reflect and pause, or come to a mutual agreement and step away from some of the antagonism that the system used to create.

First, the new law does not force couples into an adversarial dispute, but allows for an account of the breakdown in the relationship to reflect nuanced reasoning. That is provided by a simple statement. Importantly, for the first time couples will be able to make this statement jointly. In many circumstances, this will help couples to work together constructively to put a legal end to a relationship that is already broken. Indeed, the new law means that couples will now have the option of a joint application for divorce—a welcome and sensible new provision that must be good for children in particular.

This approach strikes the right balance between respecting the profound role marriage and civil partnerships play in our society, while also allowing for amicable resolution to relationships ending. This is not the introduction of shotgun divorces. The process will still take time, providing for reflection and perhaps a reunion. The new law has been welcomed by many relationship and family charities, such as Relate, which has long called for reform in this area. The minimum time for the application to a final divorce will be 26 weeks, which Relate has welcomed as providing the time to reflect, to give things another go if appropriate, and to access counselling and mediation. In reality, of course, couples have often contemplated and discussed separation for a long time before legal proceedings begin.

Secondly, the Bill ends a reliance for amicable couples unwilling or unable to make allegations about one another to separate and remain married for a further two or sometimes five years. This leaves couples in limbo, married but unable to make other arrangements. The current law is often counterproductive to any hope of reconciliation, as it can put off couples from moving back in with one another for fear of having to start the separation process once more. This can also be incredibly dangerous. Women’s Aid has highlighted the barrier for many women leaving abusive relationships, which is compounded by current divorce law. With over half of survivors of abuse shown to be unable to afford to leave the family home and with the decline of refuge accommodation, women are forced to rely on fault-based facts in any divorce proceedings, making accusations in litigation that can often increase their risk of harm. Indeed, figures show that 77% of women killed by their partners are killed in the year following separation. The current law also drags out the process of separation, which can affect the vulnerable in society. Many women have reported that lengthy divorce proceedings, and the adversarial nature of them, have given an opportunity to abusers to continue to torment them. It may be claims of a lost marriage certificate, not attending court or issuing spurious cross-allegations, but a perpetrator can prolong proceedings, causing more harm. Some people’s circumstances require a faster conclusion to the legal relationship. The Bill will go some way to helping them.

More broadly, the law as it stands discriminates against those on low incomes. For some who can afford to live separately, a no-fault divorce is perfectly viable, but others must make accusations of the other’s behaviour if they cannot afford such an arrangement. The Law Commission recognised that all the way back in 1990, stating:

“It is unjust and discriminatory of the law to provide for civilised ‘no-fault’ ground for divorce, which, in practice, is denied to a large section of the population.”

This Bill rights that wrong and it is long overdue.

Thirdly, the Bill removes the opportunity to contest a divorce. However, in reality, even now a party cannot simply argue that they want to remain in the marriage, but must identify a legal reason why the divorce must be refused. The law as it stands does not prevent disputes or help to bring about reconciliation, but instead only serves to aggravate a conflict that can be manipulated by perpetrators of domestic violence to further torment a partner. The Bill safeguards important procedural challenges—jurisdiction, fraud, coercion—but it will prevent the unnecessary dragging out of traumatic proceedings.

Finally, the Bill modernises the language of divorce. While a modest reform, many family practitioners in this area speak of their clients’ bewilderment at terms such as decree nisi and decree absolute. More accessible phrasing is important. It is a reminder that the law must serve all people, not just those who are legally trained.

Therefore, Labour welcomes this Bill, but these reforms must be put into context. The cuts to legal aid over the past decade mean that parties do not receive any support—none at all—in divorce proceedings, whatever their financial circumstances. In the year immediately preceding the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 58% of parties were recorded as having legal representation in family cases that had at least one hearing, but that has reduced to just 36%, which means more people are acting as litigants in person during the divorce process. If a separation is acrimonious, the lack of legal advice can make an already stressful situation even worse. In courts across the country the effects of that are being felt: hearings take longer; more are emotionally heated without a focus on the law, because there are no lawyers representing the parties; and the process is more burdensome and stressful for all concerned—the judiciary, who have to hand-hold the parties through the process, and the parties who have to represent themselves.

The lack of legal advice can also lead to delay. Despite the Government introducing online divorce applications, the average time from the first stage to completing the divorce was 58 weeks last year, an increase of three weeks. The delays have effects on the couples, who often want to get on with their lives but are held back by a lack of early legal advice. Without such professional advice, the process for the parties, their families and, in particular, children, is inevitably emotionally strenuous. As Baroness Hale said, upon leaving the bench:

“It’s unreasonable to expect a husband and wife or mother and father who are in crisis in their personal relationship to make their own arrangements without help”.

She has also highlighted something else that is not fair, which is the potential for an imbalance in resources because of the lack of access if, for example, there is a wealthy applicant and a respondent without access to funds. Some studies suggest that legal fees for divorces can cost £8,000, on average. That is simply unaffordable for large groups in the population, but there is no legal aid provision at all. Ironically, the legal aid system introduced by the Attlee Government with the aim of guaranteeing access to justice was initially focused on divorces, where numbers rose exponentially after the war; after a decade of a Conservative Government, it is not provided for at all in these circumstances. The Bill will certainly help couples going through this process, but further investment in legal aid is necessary to ensure that justice is being done fairly for all. I hope that the Secretary of State might say something about the position on legal aid during the course of this Bill, but Labour supports this Bill and will support the Government in the Lobby.

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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.

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[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I am grateful to all Members who have contributed to this debate with such powerful speeches. A wealth of insight and poignant personal experience has been brought to bear, and this debate on such an important issue has been enriched by it. I thank my hon. Friends the Members for Stoke-on-Trent North (Jonathan Gullis) and for North Norfolk (Duncan Baker) and the hon. Member for Chesterfield (Mr Perkins) for sharing their experiences with the House.

Before responding to the points raised, let me make some brief introductory remarks. Marriages and civil partnerships are vital to society as a way in which couples can formally express their commitment to each other. I support marriage. The Government support marriage. This Bill is not anti-marriage; rather, it is anti-bitterness. In those sad cases where a marriage has irretrievably broken down, the Bill removes unnecessary and artificial flashpoints to reduce the scope for pain, recrimination and, crucially, harmful impact on children. We must accept the reality that some marriages do end. The Bill replaces a broken system which for decades has not operated as its framers intended. I note that it is supported by Resolution, which represents over 6,000 family justice professionals in England and Wales who have to grapple with the current framework every day.

One of the principal problems of the current statute is that it incentivises conflict. It does so in relation to those who wish to divorce before a two-year separation period because of the specific need to particularise the respondent’s unreasonable behaviour and to do so in a way that fits a 50-year-old statute’s prescriptive categories. The trouble is that words have consequences; they can do damage, so that where once there was grief, anger comes; where once there was sadness, bitter resentment follows. The academic study, “Finding Fault?” found that 43% of those identified by their spouse as being at fault disagreed with the reasons cited in the petition. That resentment is not just damaging for the parties themselves; others, particularly children, can be harmed by it too, because it toxifies the atmosphere in which a couple then approach negotiations over arrangements for children and finances. No wonder the president of the Law Society has said:

“For separating parents, it can be much more difficult to focus on the needs of their children when they have to prove a fault-based fact against their former partner… Introducing a ‘no-fault’ divorce…will change the way couples obtain a divorce—for the better.”

[Sir John Hayes]

Leaving aside the issue of fault, will my hon. Friend commit to looking, during the passage of this legislation, at increasing the six-month period, at dealing with the issue of both parties being notified at the outset of the divorce, and at ensuring that there is properly funded counselling and support for reconciliation? If he looks at those things, I think he will satisfy some of the critics of this Bill.

[Alex Chalk]

I thank my right hon. Friend for his question, and I pay tribute to the characteristic clarity and eloquence with which he made his representations. Although I cannot give any commitment to specific points, he has made powerful points. On behalf of the Government, I commit to continuing the conversation in Committee.

Part of the problem is that the court has limited means to investigate the circumstances. Having marched the parties up to the top of the hill by requiring petitioners to make allegations, the system rarely inquires into whether those allegations are true. It simply does not have the means to do so. In fact, just 2% of cases are contested, and only a handful progress to a contested court hearing. For more than 40 years, English and Welsh courts have not routinely held divorce trials to prove the allegations set out. That is because most people nowadays recognise that marriage is a voluntary union. When consent disappears, so, too, does its legitimacy.

That lack of inquiry is a problem because allegations may bear little resemblance to reality, but they are presented as established facts. The scope for injustice is obvious. To satisfy the statutory provisions, minor incidents may have to be dredged up and artificially repackaged as a pattern of behaviour. A respondent who, in truth, is a perfectly reasonable individual will have their behaviour branded unreasonable. Conversely, a respondent may have behaved despicably—a point made by the Lord Chancellor —but because of the fear of repercussions, a petitioner may seek to rely on two years’ separation instead. At the end of it all, in the eyes of the law, the culpable respondent will never have been publicly rebuked, and will exit the relationship apparently blameless.

All too often, the law does not do what people think it does. That is not just the Government’s view. Sir Paul Coleridge, a former family judge and chair of the Marriage Foundation, no less, said that the current system

“is, and always has been, a sham”.

I think I may be the fifth person to quote him this evening, but Sir James Munby, former president of the family division, criticised the current law for being

“based on hypocrisy and lack of intellectual honesty”—

a point powerfully made by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). The same is true of academia. Professor Liz Trinder, who has conducted extensive research on the divorce process, has branded the current arrangements “a meaningless charade”.

I want to address the points that have been made with great force by my hon. Friends the Members for Cleethorpes (Martin Vickers) and for Devizes (Danny Kruger), and my right hon. Friends the Members for Gainsborough (Sir Edward Leigh), for New Forest West (Sir Desmond Swayne) and for South Holland and The Deepings (Sir John Hayes). To paraphrase—I will not do justice to the way in which they expressed it—the concern that they have raised is that the Bill will undermine the institution of marriage by making divorce more attractive. That is an important argument, and it has to be addressed.

The point is that it is a very sad circumstance indeed when a marriage breaks down, but some marriages do end. The legal process of divorce is not the driver for a marriage breaking down; it is the consequence. That is the point that my right hon. and learned Friend the Lord Chancellor was making about the telescope. Petitioners do not issue speculative applications for divorce. In the overwhelming majority of cases, they take that step only after reaching a settled conclusion. In those circumstances, we must do all we can to mitigate the pain experienced by the couple and their family, especially the children. We cannot have a system where the legal process works to exacerbate acrimony and suffering where divorce is simply the process of bringing a legal end to a personal relationship that has ceased to function for both parties.

The point that is so often made by practitioners is that very often, individuals are surprised by the convoluted and artificial process that they are presented with. International evidence shows that long-term divorce rates are not increased by removing fault from the process of obtaining a divorce. In short, divorce and dissolution are a sad reality, but one that is sometimes unavoidable. This Bill prevents hardship and misery, and it will help people at a vulnerable time. I commend this Bill to the House.