Divorce, Dissolution and Separation Bill [HL]

Lord Bishop of Oxford Excerpts

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

[Lord Harries of Pentregarth (CB)]

My Lords, the Church of England has sometimes been too slow in recognising needed changes in the law. Occasionally, however, it has pioneered the way. The idea of irretrievable breakdown as the sole ground for divorce was first put forward in an official document produced by a commission set up by the former Archbishop of Canterbury, Michael Ramsey, and chaired by the former Bishop of Exeter, Dr Robert Mortimer. The report, Putting Asunder, was published as long ago as 1966. That notion of irretrievable breakdown as the sole ground for divorce was then picked up and put forward by a Law Commission report published in the same year. At the request of the then Lord Chancellor, Lord Gardiner, the Bishop of Exeter introduced both reports to this House on 23 November 1966. His substantial, lengthy speech is still worth reading, and as the Lord Chancellor said in his response, it would in future be regarded as a historic occasion. So it proved, and irretrievable breakdown was incorporated in the 1973 Act, which is still the basis of our divorce law. At the moment, however, and as we know, the existence of such breakdown has to be shown by the evidence of one or more of five facts, three based on conduct—adultery, unreasonable behaviour or desertion—and two relating to periods of separation: two years if both parties consent and five years without consent.

In 1996, the noble and learned Lord, Lord Mackay, brought his Family Law Bill before this House. It sought to do away with the establishment of one or more of the facts as evidence of the breakdown and sought to give the couple an opportunity to think again about their marriage through the use of relationship support services, and to see whether it might be saved and, if not, whether mediation might provide a better way forward. Information sessions in which these issues were to be discussed were a key feature of that Bill. It was a Bill that encountered great opposition both from those who wanted to retain the wrongly termed “fault clauses” and for other reasons. It was a Bill that I strongly supported.

When the Blair Government came to power, they piloted six models of these information sessions. The noble and learned Lord, Lord Irvine, announced to the House that the preliminary results were disappointing. Then, following a final evaluation, he said on 16 January 2001 that they were unworkable and that he would invite the Government to repeal Part 2 of the Bill. With a different Administration, this was done, and the noble Lord, Lord McNally, then Justice Minister, set out his reasons for not going ahead with these vital information sessions. Such meetings, he said, came too late to save the marriage, and the range of information provided about marriage counselling, mediation and lawyers, for example, was too general and not tailored to particular circumstances. Furthermore, only one of the partners tended to attend the meeting, and of course any counselling or conciliatory work depended on both parties being involved. That was on 23 October 2013.

I deeply regret that Part 2 of the Family Law Act was repealed, and that no similar or improved version of those information sessions is in the present Bill. Nevertheless, I have to accept that the then Government judged the results of those pilots to be disappointing and not achieving what they set out to do. Realistically, I have to accept that they will not be brought back in that form.

That said, I think that before people apply for a divorce, dissolution or separation, they should at least be made aware of the availability of relationship support and mediation services. I will be putting forward a modest amendment in Committee to the effect that, when someone first applies for an order, the court is under an obligation to send them information. This does not require a meeting or significant expense, just the obligation for the court to send them details of the availability of the registered organisation where they could obtain further help or advice should they need it. There may well be amendments coming from other parts of the House that relate to the timing, which might slot in with that.

Some will argue that, by that stage, people will already have done all they intend to do to save their relationship, but there are relationships, even if only a few, that break up too early. I will never forget Lord Phillips of Sudbury, sadly no longer a Member of this House, saying how, as a solicitor, he was rung up by someone who wanted to put in for a divorce. Lord Phillips asked him to say more about what the trouble was and, after listening for a while, he blurted out in his characteristic way “My God, you’ve only just started”, and invited the man to come in and see him. The story has a happy ending. He was invited to dinner every year with the man and his wife to celebrate that telephone call. I hope that we can find a way of getting people, even at that late hour, to reflect on whether there might be a better way forward, and making certain information available, as I say, not in physical meetings but in some other way.

One principle of Part 1 of the Family Law Act 1996 was supporting marriage, saving the saveable marriage and, where marriages have broken down, bringing them to an end with minimum distress. When I was Bishop of Oxford, I proposed an amendment to the Bill which became the basis of Section 22 of the Family Law Act 1996. This led to relationship support services receiving funding to fulfil the aim of Section 22. The Family Law Act 1996 therefore facilitated support for thousands of families, together with enhanced research and expert evaluation, that created decades of successful interventions to strengthen relationships. Section 22, I am glad to say, was not repealed and remains in force so that those organisations can receive public money. However, the department that gives such grants has changed over the years. Originally, it was the Ministry of Justice, now it is the Department for Work and Pensions. It is, I believe, time for a major review of this funding and how it is best granted. These organisations continue to do fundamental work which is essential to the stability of relationships and hence society as a whole, and I believe they need more support. Relationship support must be accessible, affordable and available when it is first needed and at any time when families are seeking to repair or manage difficult relationships.

A marriage welfare service was established for the first time in 1947 as “a service sponsored by the State but not a State institution”. Successive Governments have taken their responsibility seriously to ensure the availability of relationship support to everyone in society who needs it. More recently, the Relationships Alliance, which consists of the main providers of relationship support services in England and Wales—Marriage Care, OnePlusOne, Relate and Tavistock Relationships—has developed, and continues to develop, a wide range of relationship support services for individuals, couples, families and children. Support is available in a variety of ways, including face to face, by telephone and online, and by training professionals and practitioners who work with families. If the aims of this Bill are to be realised, funding for these services must be recognised as an essential component of the Government’s new approach to divorce, dissolution and separation, so that family breakdown is minimised and parental conflict reduced.

More widely, while totally agreeing with the aim of this Bill to take as much acrimony out of a break-up as possible, especially for the sake of the children, I have one particular concern. In his speech in 1966, the Bishop of Exeter, contrasted his proposal of irretrievable breakdown as the basis for divorce with divorce based simply on mutual consent. This, he said, would reduce marriage to a contract and would fail to do justice to the fact that a marriage involves not just the couple concerned but the children and wider society.

My worry about the present Bill is that relying simply on a statement by one or both of the parties might create the impression that marriage is only a contract. Contracts are an essential feature of many aspects of life, but they include conditions. An employment contract is based on the assumption that people will turn up to work and perform it to the required standard, for example. The point about marriage as it has traditionally been understood in this country and as it is reflected in law is that the couples commit themselves to one another unconditionally.

It has the same character as the oath most of your Lordships swear in this House. We do not pledge loyalty to Her Majesty provided she chooses a Government to our liking. The oath is unconditional. The couples do not say to each other that they will stay with each other provided certain conditions are fulfilled. They say that they will be with each other through thick and thin, through joys and through the sorrows of unemployment, poverty, depression and Alzheimer’s. It is an unconditional commitment which has an abiding claim on the couple. Mind you, I have heard of one retired wife who brought in a condition: she said to her husband when he retired “For better, for worse; for richer, for poorer; in health and in sickness”—“Yes”; “Home for lunch every day”—“No.”

More seriously, it is an unconditional commitment—what the Bible calls a covenant, a solemn, binding, valid pledge which, once made, has a moral force in its own right. Sometimes, as we all recognise, we fail, and that moral claim has to be set aside as the lesser of two evils. But it is not simply a contract from which we can withdraw at will. Marriage is not something that has been invented by the Church. It is a natural human commitment of two people who have come to love each other. As the great Orkney poet Edwin Muir put it

“Where each asks from each


What each most wants to give

And each awakes in each

What else would never be.”

I would like an assurance from the Government, which need not be given now but perhaps in Committee, that marriage according to the law of the land, whether in church or by a registrar, is not simply a contract but an unconditional commitment. In the phrase of the linguistic philosophers, the words of commitment are performative; they actually bring about a new state of being, with its related obligations which are unconditional in character.