Divorce, Dissolution and Separation Bill [HL]

Lord Bishop of Carlisle Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

[The Lord Bishop of Carlisle]

My Lords, I am greatly looking forward to the maiden speech of the noble Baroness, Lady Hunt of Bethnal Green, and I welcome her to this House, which I am sure will benefit greatly from her expertise, campaigning zeal and commitment to debates on justice and equality.

Let me begin by saying that I appreciate the motivation behind the Government’s Divorce, Dissolution and Separation Bill. As we have already heard, they want to make divorce less complicated, less acrimonious and less harmful. Who could possibly argue with that? I like the revised terminology that the Bill suggests, and I agree that, at first sight, this looks like a sensible response to shortcomings in a process that is currently unsatisfactory and often seems to lack transparency or fairness.

However, this deceptively simple piece of legislation actually creates more difficulties than it resolves. One has to do with the nature of marriage itself and our commitment to it as a society—I shall confine my comments to marriage rather than civil partnership.

Marriage, as we all know, is not just a social arrangement between two adults or even a contract that can be ended at will. It involves solemn binding vows and has for centuries been a significant building block for social cohesion. Its benefits are generally recognised, not least for the upbringing of any children resulting from the marriage. While in certain circumstances divorce may well be the least-worst option for some couples, the Bill promotes individual choice over and at the expense of the sort of commitment, self-giving and sacrifice that lie at the heart of the marriage covenant.

Reducing divorce to a statement made by one party that the marriage has broken down undermines the seriousness with which marriage and divorce are regarded and has the unfortunate effect of shifting any power in the process away from the respondent to the person initiating the divorce. What is more, studies suggest that making divorce quicker and easier will significantly increase the already high divorce rate, with all the implications that has both for human misery and financial cost. The Relationships Foundation estimates that family breakdown costs the UK as much as £51 billion every year.

The people experiencing that human misery most acutely will be precisely those who are most vulnerable, in particular children, but also those partners who wish to contest a divorce but would now no longer be able to do so. It may well be that only 2% of divorces are currently contested, but that still amounts to more than 2,500 cases each year. It hardly seems just that someone who wants to challenge irretrievable breakdown should no longer be able to do so. If the Bill simply proposed that divorce could happen when both parties agreed, which is one option, that would be one thing, but to suggest, as it does, that the divorce can go ahead when only one party wants it seems perverse. As for the children, it will further threaten the stability that marriage is meant to provide and contribute still further to the growing incidence of mental health issues among our young people. Divorce is far more than just a temporary crisis; it has long-term effects, as I know well from experience in my own family. I am quite sure that, in this respect, I will not be alone in your Lordships’ House.

A further issue concerns what the Family Law Act 1996 called taking

“take all practicable steps … to save the marriage”,

not least since the respondent may not even hear about the divorce until as little as seven weeks before a court issues the final decree. Little time or consideration is given to any attempt at mediation, reconciliation or the restoration of what has been lost, as the noble Lord, Lord Anderson, pointed out.

It therefore comes as no surprise to learn that the outcome of the Government’s consultation on the Bill, mentioned by the Minister, was a majority not agreeing with the replacement of the so-called five facts with a notification process. People realise that when there is no longer any need to demonstrate irretrievable breakdown, and when there is no longer any possibility of contesting the alleged breakdown, we will in effect be introducing unilateral, no-reason divorce.

We need to reduce the divorce rate in this country, not increase it. I cannot therefore support the Bill as it stands.

Divorce, Dissolution and Separation Bill [HL]

Lord Bishop of Carlisle Excerpts

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

[Lord Harries of Pentregarth]

My Lords, I shall speak to Amendment 13. It seeks simply to ensure that important information is available for divorcing couples so that they have the chance to think again about whether divorce is the best, or the only, way forward.

In Committee, I tabled an amendment that made it a duty to inform the couple of that information. The Minister argued then that it was too far down the road at that point, as the couple would have already started the process of obtaining a divorce. However, he thought that it would be possible for the necessary information to be made available on an official website, and this amendment simply seeks to ensure that that will indeed be the case. It therefore reads:

“It is the duty of a Minister of the Crown to ensure that those applying for a divorce order using the website of Her Majesty’s Courts & Tribunals Service have access to information about services related to relationship support, mediation, domestic abuse and related matters.”


Of course, that does not take into account those who apply for an order on paper, but it assumes that they will probably look at the court’s website at some point, and that is probably the best that can be done at this stage. Therefore, I very much hope that the Government will be able to accept this very simple amendment.

[The Lord Bishop of Carlisle]

My Lords, much of what I might wish to say about Amendments 5 and 13 has already been mentioned, so I will not repeat it. However, from these Benches I would like to express my warm support for the main thrust of both amendments and briefly reiterate three points.

First, in both amendments, those applying for a divorce are not compelled to do anything, but they are presented with information that might make a difference not only to what they do but to the way in which they do it.

Secondly, with regard to Amendment 5, almost everyone is agreed that the divorce of a child’s parents is one of the so-called ACEs, or adverse childhood experiences—we have just heard about one of those—that can significantly affect the subsequent flourishing of the child. It seems to make every sense to bring that to the attention of the parents, as well as the fact that children apparently often tend to do better even with fractious parents than they do after a divorce, although I fully acknowledge that cases of domestic abuse are a different matter.

Thirdly, as for being given access to information about mediation and marriage counselling, as we have been reminded, it might seem a little late in the day for that, and I noted the earlier comments of other noble Lords. However, as I understand them, the statistics suggest that as many as 2,500 relationships are currently rescued each year as a direct result of this sort of intervention. That is obviously important not only for the couples but for any children involved. Several noble Lords have already emphasised that point.

Both these amendments seem to be simply a matter of common sense and care for everyone who is caught up in the trauma of a divorce. They would enhance, rather than destroy, the Bill, and I very much hope that the Minister will regard them with the favour that they clearly deserve.

[Lord Browne of Belmont (DUP)]

My Lords, the social science evidence is very clear that divorce has a negative—sometimes profoundly negative—impact on child development. Of course, there are occasions when divorce is absolutely in the best interests of children: when they need to be liberated from an abusive environment. In developing public policy, however, we must be careful that situations where divorce is the best outcome do not cause us to lose sight of the fact that, in most cases, it is best for children to remain living in an intact family home.

Under the current law, if someone is unfaithful to their spouse, they know that they will be at risk of receiving divorce papers. There is a sense in which the law is there to protect the faithful spouse from being abused by an unfaithful spouse. The new framework, however, seems to turn things on its head. A feckless husband and father, rather than being challenged by the law in his selfishness, is actually empowered by it, and in a way that enables him to demonstrate a cruel lack of regard for his spouse and children. He can have an affair and use the law to help him fulfil his objective of liberating himself from the family unit that constrains him, in order to pursue others. The law allows him to issue a statement of irretrievable breakdown with the option of being out of the marriage in six months.

What does this Bill do for the faithful spouse, the respondent, and, more importantly, their children? It means that people who have committed no fault, but who are being divorced, will lose the warning that they currently benefit from through the requirement for prior separation in the absence of fault. They will instead receive, out of the blue, a statement of irretrievable breakdown, a breakdown that is in no sense their fault, and find that marriage will end in six months, or significantly less if the petitioner sabotages the 20-week reflection period by not telling her that a petition has been lodged until part way through or at the end of the period.

The lack of actual regard for the respondent and children in the proposed law is concerning. I know that in 2011, when David Cameron, as Prime Minister, called for feckless runaway fathers to be shamed, he was not necessarily saying that couples should not divorce. His point was that fathers should take their responsibilities seriously. As well as challenging fathers not thoughtlessly and selfishly to walk out of marriages, he was challenging fathers not to turn their backs on their responsibilities after divorce. Notwithstanding that, however, it is very difficult to square the way that this legislation empowers a feckless father to walk out of his marriage on the basis that his decision is an autonomous one, without regard for the best interests of the children until after the decision to divorce has been made. In this context, at the very least we must think more about asking parents to process the divorce decision in the context of an awareness of what the social science evidence says about the best interests of their children.

In this regard, I set before your Lordships’ House two considerations. In the first instance, a divorce decision is not an autonomous decision, because it impacts both the spouse and the children. We should be encouraging not an autonomous decision but a responsible decision, one that has regard for the impact on others, especially the children.

In the second instance, the decision to divorce is located, to some significant degree, in the legal process of divorce, and is not a foregone conclusion from the outset. As the Government’s consultation, Reducing Family Conflict, makes plain on page 31, initiating the petition amounts to something that

“puts the marriage on notice”.

The application for the conditional order for the divorce is not actually made until after the 20-week period. This is called a reflection period, for the very good reason that it is a time for reflection, to aid the decision-making process in the context of which The Family Impact Test says:

“The legal process for divorce should seek to reduce acrimony and conflict, thereby helping couples and parents to look to the future rather than providing a mechanism that facilitates and encourages the attribution of blame for past events. We want to create conditions for couples and parents to reconcile if they can – and to move on as constructively as possible in the event that this is not possible.”


In other words, the Government are saying that the decision-making process is still taking place in the legal process of divorce during the reflection period. In this context, it seems absolutely right that, rather than encouraging people to make autonomous decisions about divorce in the legal process of divorce, we should be encouraging them to make responsible decisions about divorce—decisions that do not think just about themselves but about their children.

I believe that this amendment is eminently sensible. It does not block couples seeking divorce; it entitles couples to receive information. Quite what couples decide to do with the information is up to them. Perhaps it will make them resolve to work harder at their marriage and step back from divorce. Perhaps it will not change their decision at all, but it will impact the way in which they approach it and make them more alive to the need to provide special support for their children going forward.

The state, having played a role in recognising the marriage commitment through the law and conscious of the significant public policy benefits of marriage, has a responsibility, particularly to the children of the marriage, to make sure that it cannot be exited without reflection on the implications of doing so in the best interests of the children. I am therefore pleased to support the Amendment 5.