Divorce, Dissolution and Separation Bill [HL]

Lord Bishop of Oxford Excerpts

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

[Baroness Burt of Solihull (LD)]

My Lords, I associate myself totally with the wise and experienced words of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Shackleton. I can well remember our discussion in Committee about the petitioner “thinking” that the relationship “may” have irretrievably broken down. This amendment inserts a third stage into the process. The noble and learned Baroness, Lady Butler-Sloss, who is hugely experienced in the field of divorce, said, along with others, that in their experience, by the time someone files for divorce, it is not done lightly and their mind is made up. If there was a possibility that the marriage was retrievable, they would have explored it before filing.

I think that this step is unnecessary. The timeframes as set out in the Bill are appropriate, so adding another stage would not be helpful. Therefore, we will not support this amendment.

[Lord Harries of Pentregarth (CB)]

My Lords, I would suggest that there are two issues behind the amendment moved by the noble Lord, Lord McColl, and I am not sure that the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss, have really addressed them. One is whether there should be a sort of extended time period—“I think the marriage may have broken down”—to allow for reconciliation, while the other is the situation where a woman is pretty certain that her marriage has broken down. She is living apart from her husband with her children, but she still has some hope. Then, out of the blue, a note comes through, perhaps rather late in the day, that her husband has actually petitioned for divorce.

I think that outside of this House there is quite a widespread worry about what the noble Lord, Lord McColl, has called the rights and the dignity of a person in that situation. I accept all the other arguments that have been put forward, but will the Government address the situation where something might come, if not as a total surprise then as rather a bitter blow that it should have reached this stage and the party has heard about it so late?

[Lord Morrow (DUP)]

My Lords, the noble Lord, Lord McColl, has intimated that he will not be testing the opinion of the House on this matter, but nevertheless, I rise to support Amendment 1. There are some things worth saying in relation to this important amendment and on this very important issue.

The noble Lord listened carefully to the previous debate and his new amendment now seeks only to avoid use of the term “irretrievable breakdown”—nothing more, nothing less—at the start of a divorce application when it is made by one party to a marriage. Where the couple have decided by mutual agreement, and it is clear that they have discussed the matter in advance and come to a view, this amendment does not propose a different statement at the start of the procedure from that which is made on actually applying for the conditional order. This is positive for two reasons. First, it means that the amendment focuses on the particular group of people who are likely to be disadvantaged by this Bill: namely, the respondents in the case of a unilateral divorce application in the absence of fault.

As the noble Lord explained, under the current system, around 40% of divorces are made in the absence of fault through a prior period of separation of either two years in cases where there is agreement or five years in cases of disagreement. In the context of these divorces, at present the respondent gets at least two years’ warning before the statement of irretrievable breakdown can be made. Under the Bill, they could get no warning at all and they will also lose their right to contest the divorce, which is a double whammy, truncating their rights on two fronts simultaneously.

Before I talk about the important service that Amendment 1 provides in addressing these difficulties, I would like to comment briefly on them, and particularly on their political significance.

The noble Lord, Lord McColl, expressed his worry about the psychological impact of the heightened insecurity that the Bill will visit on some marriages. People in marriages today who judge that it is not beyond the bounds of possibility that their spouse might suggest divorce, although neither party has committed adultery or behaved unreasonably, know that, even if they were unable to persuade their spouse to change their mind, they could not have a declaration of irretrievable breakdown visited on them for at least two years. There is in this a certain security, which this Bill will remove for 40% of current divorces.

It seems strange that the Government should want to associate with such a proposal. Last year, before the general election, the Conservative think tank Onward published its seminal paper The Politics of Belonging, which suggested that if the party was to win the election it must seek to engage with “Workington Man”. One of the central arguments of the report is that, having for many years prioritised freedom, the public now attach greater importance to security. On the basis of its extensive polling, the report stated that,

“by a ratio of 2-to-1, voters want to live in a society that provides greater security not greater freedom.”

It is this realignment of focus away from being primarily about freedom to a far greater emphasis on security that causes the report to argue that what is needed now is the “politics of belonging”—greater togetherness rather than greater separation.

In this context, the Bill before us today, the practical impact of which is to emphasise greater freedom for the petitioner and greater insecurity for the respondent, seems strangely out of place. Amendment 1 restores some dignity and security to the respondent by ensuring that they will not be presented with a statement of irretrievable breakdown right at the start of the process, potentially as a bolt from the blue. This means that, while they will understand that their marriage has been put on notice, they will not be presented with a form of words suggesting that it is all over from the outset.

This has two benefits. First, it treats them more gently and with greater dignity than moving straight to a statement of irretrievable breakdown. Secondly, while not restoring to the respondent a right to contest the divorce, it restores to them the opportunity to have a voice. If you present them with a statement of irretrievable breakdown, you are effectively telling them that it is all over and preventing them having a voice. If, by contrast, they are told that the marriage is on notice and that in 20 weeks a statement of irretrievable breakdown will be made unless they can persuade their spouse that their relationship is worth saving, they will at least have an opportunity to respond constructively.

Another reason this amendment is very positive is that it helps the Government fulfil their stated objective to promote reconciliation in the divorce process. This is significant because, having recognised that the current law makes reconciliation harder, the family test assessment in the new law states:

“We want to create conditions for couples and parents to reconcile if they can.”


Under the current law, which is based on fault, one has to begin the divorce process with a declaration of irretrievable breakdown because it involves citing adultery or unreasonable behaviour.

However, in considering a new system where one does not need to prove fault, that is not necessary. We have the opportunity to bring forward new legislation and therein a new approach. Given the stated commitment to foster better conditions to promote reconciliation than we have at the moment, an obvious place to start is this amendment and its proposal not to make a statement of irretrievable breakdown until after the reflection period when applying for the conditional order.

On this point I note that the Nuffield report—which some have quoted selectively to justify not prioritising reconciliation during the divorce process—states that, under a system where one party is notified of the intention to divorce, as proposed by this Bill,

“there is also the possibility that notification would be more facilitative of reconciliation.”

In other words, we should recognise that, in moving to the new system, there is the potential for greater scope for reconciliation than under the current system, because of the notification system.

Finally, it seems that the noble Lord, Lord McColl, has managed through the amendment to identify a means to use non-fault notification that is more facilitative of reconciliation. In this context, to reject the amendment because, up until this point, the divorce process had always started with a statement of irretrievable breakdown would be very odd, given that the whole point of this exercise is to change divorce law. I very much hope that the Government will not dismiss the amendment but give it proper consideration.

--- Later in debate ---

[Lord Harries of Pentregarth]

Even if it is the case that the wording of the amendment is not quite right, would the noble and learned Baroness in principle support this amendment? It seems to deal precisely with the situation which she outlined so eloquently, where both sides sometimes try to evade service. Would it not be important to have on the statute book a way of dealing with this issue?

[Baroness Butler-Sloss]

I understand what the noble and right reverend Lord says. The trouble is that I do not think having it in primary legislation will make it any easier for this issue to be resolved. This seems a matter for the Family Division to get on with, to see what it can do to try to deal with this. The Family Procedure Rules have to be obeyed; when I was a family judge, they were as important to me as primary legislation. I understand the point, but I do not think that it will make people behave any better if this is in primary legislation rather than in the rules.

--- Later in debate ---

[Lord Keen of Elie]

I thank the noble Baroness, Lady Meyer, for moving the amendment on behalf of the noble Lord, Lord Curry, and other noble Lords for their contributions. We understand the concerns that part of the intention behind the Bill’s new minimum 20-week period between the start of proceedings and when the court can be asked to make the conditional order could be undermined if notice of the proceedings on the respondent party is substantially delayed. I provided assurances in Committee that a conditional order will not be made without satisfactory evidence of service. Of course the Bill does not provide for divorce or dissolution by 26 weeks’ notice; confirmation is required at both conditional and final order stages that the marriage or civil partnership should be brought to a legal end.

However, in this matter we have to be led by the evidence. Professor Trinder’s study of 300 undefended divorce case files found that no acknowledgement of service was returned by the respondent in 41 of the sample cases, which is about 13.7% of the total. If you were to extrapolate that nationally, that would amount to about 14,000 cases annually. Very few cases appeared to result from difficulty in locating the respondent; instead, the majority of the 41 non-returns appeared to reflect a decision by the respondent not to co-operate with the process, either because they were opposed to the divorce in principle or the reason given for it or simply because they wanted to make the process more difficult for the applicant. Resolution, the leading body in England and Wales representing over 6,000 family justice professionals, has also identified frustration of the proceedings by the respondent as the greater mischief.

I accept that in tabling his amendment the noble Lord, Lord Curry, was offering a constructive suggestion but that he recognises that a respondent may be deliberately evasive. However, the material effect of his amendment would apply to applications made by one spouse only when the 20-week period had started and the respondent had been served.

There is a difficulty here. The only fail-safe way of knowing that the respondent has been served is when the respondent returns to the court with the form acknowledging service, if indeed they return at all. In his amendment, the noble Lord sought to address this issue by giving the court the power to abridge the 20-week period between the start of proceedings and when it may make the conditional order if there is evidence that the respondent has sought to evade or delay service. The difficulty, as with the existing procedures for the court to grant deemed service or dispense with service in England and Wales, is the evidence that the court will require to be shown that the respondent should be aware of the application when in fact he refuses to return the acknowledgement of service, and therefore it makes the process of dispensation difficult. Indeed, such a process can be lengthy and requires separate applications to the court, which in turn can make it a complex process for applicants to navigate.

The amendment would place a further requirement on the applicant to apply to abridge the time of the 20-week period in such cases by providing evidence that the respondent has deliberately sought to evade service. Inviting an applicant to prove a negative is always going to be rather challenging, particularly in this sort of process. We have listened carefully to what has been said about this matter, both in debate and in the meetings that I have had with a number of your Lordships.

We consider that the right way to deal with this concern is to commit, as I committed at the previous stage, to work with the Family Procedure Rule Committee, which already has the relevant statutory powers to address the issue of service, and which has a statutory duty to consider whether to consult on rule changes. We are therefore inviting the Family Procedure Rule Committee to consider the matter when reviewing the rules required to implement the Bill, including a rule requiring service of the application within a specific period following the issuing of proceedings. I believe that this approach has drawn support from all sides of House, and I therefore invite the noble Baroness to withdraw her amendment.

[Lord Harries of Pentregarth]

Everyone here recognises that there is a problem, and the most experienced lawyers among us have emphasised that. My question is simply: if we have been aware of this problem for so long, and the Family Procedure Rule Committee or whatever other body was appropriate did not deal with it at that time, what makes the Minister think it is going to deal with it better in future? Would it be better to have something very clear actually on the statute book, such as some government alteration of the amendment put forward by the noble Baroness, Lady Meyer?

[Lord Keen of Elie]

No, my Lords, it would not be appropriate to put this in primary legislation. To assuage such concerns as there may be, I can say that the President of the Family Law Division has already had this matter raised with him and has expressed a view. We have committed to make sure that the matter is brought before the Family Procedure Rule Committee, which is the appropriate body to address this point.

--- Later in debate ---

[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.

--- Later in debate ---

[Baroness Burt of Solihull]

My Lords, we have gone round the houses a bit but the amendments in this group are about information to applicants. Amendment 5 would require the Lord Chancellor to ensure that information was provided to divorcing couples with children under 18 about the effects of divorce on children. I recall that we had a discussion in Committee about the impact of divorce on children, and I agree strongly that they are often victims in this. However, I think that most parents will be only too well aware of the effect of divorce on their children, and they do not split up a home lightly.

As in so many situations, the impact on the children will depend on how the situation is handled. Taking the sting out of divorce by removing any requirement for blame and taking out child arrangements and financial arrangements from the divorce itself will, I hope, help the inevitable split have a calmer, less traumatic effect on children. In the past, staying together for the sake of the children often produced more, not less, unhappiness and trauma for children and adults. A family today can look very different from the traditional model that prevailed years ago. To me, as long as there is security and love, that is the main thing.

Amendment 13 would require applicants to be provided with information about relationship support, mediation, domestic abuse and related matters. Again, we discussed this in Committee, and I tend to agree with one or two other noble Lords who said that by the time an application has been made, it is too late.

[Lord Harries of Pentregarth]

My amendment says that this information should be on the website of the Courts & Tribunals Service, so that would not be too late; it would be when they were still exploring the possibility, not putting in an application. It would be there just as basic information. Surely there cannot be any objection to people finding out a few facts.

[Baroness Burt of Solihull]

I am very grateful to the noble and right reverend Lord, and I totally agree. I am just going on to talk about the information that we should be making available at all stages.

These services should be freely available to any couple experiencing difficulties in their relationship. Let us face it, the current situation with regard to Covid-19 can hardly be conducive to calm, happy families if they are all stuck in the same house together for weeks on end. I strongly agree that the Government should be funding the kinds of services mentioned in the amendment, particularly in the current circumstances, and several steps upstream before a decision is made to file. However, I also agree with the noble and learned Baroness, Lady Butler-Sloss, that this very valuable information does not need to be in primary legislation. I look forward to hearing details from the Minister about how full information will be provided outside the primary legislation. I would be very happy if he wanted to write to me and other speakers today about that issue; that would be good.

--- Later in debate ---

On the wider question touched upon by the noble Baroness, Lady Burt, about funding requirements, we are making funding available for the Reducing Parental Conflict programme that has been working in local authority areas in England to encourage focus on the importance of relationship issues and how to build support for families. In addition, in the recent Budget, the Chancellor announced £2.5 million to fund research into how best to integrate family services, including the emerging family hub model. We are addressing these issues but, as I said, we consider them to be practical issues, not matters to be placed on the face of primary legislation. I hope that, with those assurances, the noble and right reverend Lord will see fit to not move his amendment.

[Lord Harries of Pentregarth]

My Lords, I thank the Minister for his assurances. I think the House would welcome it if, at Third Reading, he was able to spell out a bit more the kind of work that is being done and give a clear statement about where responsibility lies for ensuring that this happens. I presume it would be with the Ministry of Justice. What he said was welcome and a categorical assurance about that would reassure many people.

[Lord Keen of Elie]

I am much obliged to the noble and right reverend Lord. The responsibility would ultimately lie with the court service, which is an agency of the Ministry of Justice, to ensure that these processes do work in the way that I have indicated. I note what the noble and right reverend Lord said about further reassurance and I will take notice of that.

--- Later in debate ---

Moved by

[Lord Harries of Pentregarth]

14: Before Clause 6, insert the following new Clause—
“Impact on marriage
Nothing in this Act changes the understanding of marriage as established by law.”

[Lord Harries of Pentregarth]

My Lords, I firmly support this Bill, but I can well understand the fears of those who worry that it will undermine the institution of marriage. I suspect that those fears are more widely shared by those outside the House than they have been expressed within it. The traditional understanding of marriage is well expressed in the Church of England service in which one person pledges themselves to another

“for better, for worse, for richer or poorer; in sickness and in health ... till death do us part.”

In the Book of Common Prayer this ends with the words:

“I give thee my troth”


and in the Alternative Service Book, “I make my vow.” I have always understood that the law of this country reflects that understanding of marriage. In the old days, apparently, register offices used to carry a notice that marriage according to the law of this country was—and here I adjust to take into account same-sex marriages—the union of one person with another, excluding all others, until death. This is borne out by Jowitt’s Dictionary of English Law, updated in August 2019, which states that it is

“the voluntary union for life of one man and one woman to the exclusion of all others”

but again, taking account of the possibility of this being two persons of the same sex.

My concern, as expressed at Second Reading, is that this venerable understanding might be changed in some people’s minds because the present Bill allows divorce on the say-so of one person to the marriage that it is has irretrievably broken down. They might therefore come to think that marriage vows are a contract like any other, which one person could break if the partner to the contract failed to fulfil their obligations. But marriage vows, wherever they are made, in church or a secular space, are an unconditional commitment of the same character as the oath of loyalty made by your Lordships in this House. It is not a commitment made on the basis of certain conditions being kept—provided the partner does this, that or the other. It is a commitment, whatever happens, for life. Marriages do break down irreparably; if they do, a humane way of recognising this in law must be found—and I believe that the Bill does this. But it is important that the Bill does not lead people to think that it undermines the institution of marriage as an unconditional commitment for life.

My amendment does not spell out the legal definition of marriage. There is no need. All we need is an assurance in the Bill that, as the amendment proposes

“Nothing in this Act changes the understanding of marriage as established by law.”


I understand from the Public Bill Office that this kind of phraseology is quite a regular procedure. I very much hope that the Minister will accept this simple amendment. I beg to move.

[Lord Keen of Elie]

I thank the noble and right reverend Lord for moving his amendment. Of course, marriage is a contract. The statute law speaks of

“the persons contracting the marriage”

and sets out “the words of contract” when two people take each other as husband and wife. As with any contract, there are certain obligations, but how these obligations are spelled out has, of course, changed over the centuries. For example, it was at one time the duty at common law for a man to maintain his wife. That commitment, now gender neutral, is not explicit in the statute law, but it remains possible for either party to a marriage to apply to the court for financial provision—for reasonable maintenance—in cases of neglect, for example. Of course, it is the importance of obligations during the marriage that has led to the law providing for financial adjustment at the end of it.

But marriage is also much more than a contract. The statute does not spell that out—I suggest because it does not need to. It never needed to in the past and does not need to today. I venture that the importance of marriage to couples and to society is self-evident. Again, how that importance is expressed has changed over the centuries. In the rites of the Church of England, the wording of the marriage service in the 21st-century Common Worship differs from that in the 17th-century Book of Common Prayer. I am sure the noble and right reverend Lord would agree that the understanding of marriage is in essence the same, notwithstanding those changes. All that has really changed in the newer service book is that the expression of that commitment now has a different inflection, which more directly speaks to couples marrying today, rather than in the 17th century. All that is as it should be.

Our law provides only for how people enter into marriage, not what it is. I suggest that it is far better that our understanding of marriage derives not from law but from what people bring to it and the benefits our society recognises with regard to marriage. The understanding of marriage did not change when the Matrimonial Causes Act 1937 introduced new grounds for divorce, nor when the Divorce Reform Act 1969 replaced these with the single ground of irretrievable breakdown—and nor will it change with this Bill passing into law.

The noble and right reverend Lord’s amendment cannot serve any direct purpose. He suggests that it allows us to put matters on the record. In a sense, he asked for an assurance from government that marriage under the law is not simply a contract. As I stand at this Dispatch Box, I am more than happy to assure him that this Government believe that the vital institution of marriage is a strong symbol of wider society’s desire to celebrate a mutual commitment and that it is one of the things that binds society together and makes families what they are. We support marriage for all these reasons, and I hope that reassurance will be sufficient to persuade the noble and right reverend Lord to consider withdrawing this amendment.

[Lord Harries of Pentregarth]

I thank the Minister for his response, but he clearly does not share my concern that many people are worried about the Bill. Although I do not think it undermines the institution of marriage, a lot of people are worried that it does. I really cannot understand why the Government are unwilling to accept this very simple amendment. It does not go into the details of what marriage is. Whether it is a particular kind of contract or an unconditional obligation is neither here nor there. All my amendment says is that this Bill does not change the legal definition of marriage. I believe it would do the Government a great deal of good to put this little clause in the Bill, because it would reassure a lot of people who feel that this Bill undermines the traditional institution of marriage.

I hope that perhaps the Minister might be able to come back at Third Reading having thought again about this. It is not a controversial amendment; it does not go into the definition of marriage. It just says that the Bill does not change the legal definition of marriage—what could be less controversial than that? But it would go a long way to reassuring people. I very much hope the Government will think again about this, but meanwhile I beg leave to withdraw my amendment.

Amendment 14 withdrawn.