Divorce, Dissolution and Separation Bill [HL]

Lord Farmer Excerpts

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

[Lord Farmer (Con)]

My Lords, I join the noble and learned Lord in congratulating the noble Baroness, Lady Hunt of Bethnal Green, on a lucid, thoughtful and challenging maiden speech. I also welcome her to this House.

I am, uncharacteristically, in almost complete disagreement with the Government on the main measure of the Bill: the introduction of no-fault divorce. It is fundamentally flawed because it not only ignores the urgent need to strengthen families but weakens them. It is an inconvenient truth that, as we seek to make the United Kingdom match-fit for a competitive global market, we are a world leader when it comes to family breakdown. We have high rates of single parenthood, divorce and separation, and large numbers of children entering local authority care. Across the OECD, the average proportion of children growing up with both their parents is 84%. We are fourth from bottom on this metric, with a little over two-thirds of our children living in intact families, compared with Finland, for instance, where that figure is over 95%.

British adults brought up by one biological parent are two and a half times more likely than those brought up by both to be in trouble with the police or in prison. Similarly, the Newcastle study tracking more than 1,000 babies born in 1947 showed that a boy’s likelihood of conviction before his early 30s was doubled if he had experienced divorce or separation before the age of five. Broken and dysfunctional family lives drive so many of the social problems that this Government are grappling with, particularly knife and gang crime; county lines; mental ill health in children, young people and adults; educational underachievement; early pregnancy; drug and alcohol addiction; and poor productivity.

Father absence is having a terrible impact. Recently, Croydon looked at 60 children in deep trouble to identify and learn from any patterns in their experiences. Most startling was the scale of father absence. In more than two-thirds of homes, fathers had walked out; this was often the turning point in a child’s behaviour.

The Government were elected on a manifesto that explicitly recognised that a strong society requires strong families. This will have resonated with the electorate. The Onward pamphlet, The Politics of Belonging, emphasises:

“While Westminster and Whitehall are still locked into a paradigm that places the extension of liberty above all other ends of public policy, the public mood has changed … If the price of greater freedom is rootlessness and disconnection, voters no longer seem to think it is worth the cost.”


They prioritise

“not rugged individualism but resilient communities.”

Given the scale of our family breakdown challenge, we should be pressing ahead with our manifesto commitment to strengthen families by championing family hubs and improving the Troubled Families programme. Stabilising families has to be high on the agenda. The Croydon report concluded that if targeted support and a holistic family plan had been provided earlier, these children might have achieved better outcomes.

What was not in our manifesto is no-fault divorce. Allegedly, there is a lot of support for this Bill. Lawyers and judges will of course be in favour of sanitising the messiness of divorce. Picking through people’s private lives must be harrowing. Yet when the general public were asked recently, “Should fault continue to be one of the possible grounds for divorce?” 71% thought that it should. A very different YouGov survey question found that 69% did not agree with the statement, “People should be able to seek a divorce without having to show their spouse is at fault.” Such a response is not at all surprising as I suspect that most people are aware that it is already possible to divorce without showing fault. Yet the Ministry of Justice relied on this survey result when dismissing the strength of feeling in response to its own consultation where 83% wanted to retain the right for an individual to contest a divorce. Only 15% stated that this right should be removed. Some 80% did not agree with the proposal to replace the five facts with a notification process, while a mere 17% were in favour.

The Government decided that certain, perhaps religiously motivated, interest groups had responded negatively in response to a campaign and should therefore be ignored, yet it was a campaign by lawyers and the Times that launched this Bill in the first place. The elites must be heard but not the “ordinary people”, who are deeply affected. Does that sound familiar? It is hardly meaningful consultation.

I understand that the fault cited may bear no resemblance to the reason the marriage faltered, but the removal of fault sends a very strong signal that marriage can be unilaterally exited with no available recourse for the party who has been left. Commitment within marriage will become illusory and unreliable. The Government’s plans create de jure unilateral divorce on the grounds that we already have it de facto. No-fault divorce is state-approved unilateral divorce.

Where does it leave the weaker party—often the primary carer, often the woman, and often the financially disadvantaged? University of Essex research found that women tend to experience a 12% drop in income after divorce compared with men who experience more than a 30% increase in income.

Where does it leave the institution of marriage? Some argue that it will strengthen marriage because the barrier to entry is lower if parties know they can exit cleanly. That suggests that in reality, people are making a much more contingent and shaky commitment, so why go to the bother of getting married at all? Research relied on by the Ministry of Justice found that marriage rates reduce following the introduction of no-fault divorce by about 3% to 4% and the likelihood of divorcees remarrying declines by around one third to one half. As Professor Justin Wolfers says,

“the benefits of marriage (tying your spouse to a contract) are reduced in a no-fault world”.

Less marriage will tend to mean more cohabitation, an inherently less stable relationship form. The whole of society is affected when the contract of marriage becomes devoid of meaning.

How will it impact divorce rates? Such reform does lead to an immediate spike in the divorce rate that “dissipates” over time. Let us be clear: that spike is made up of people—adults and children. If couples are struggling to persevere, the introduction of no-fault divorce undermines an important cultural underpinning of assumed permanence to marriage which could push such marginal couples into divorce. I am not of course arguing that couples should stay together if there is irresolvable violence, abuse or conflict. It is unsurprising if the numbers drop back, given that people are marrying less and the divorce rate is calculated as a percentage of married couples.

Regardless, the Government should commit to tracking the trends that follow this legislation. It is not enough that the Office for National Statistics collects the data. The Government need to publish reports on family stability, as they committed to do when the Welfare Reform and Work Act was discussed in this House.

How will it affect children? I support this Government’s broad policy intent to reduce parental conflict, which can affect children’s well-being so profoundly when it is frequent, intense and unresolved. However, the idea that removing the need to cite fault drains an appreciable level of conflict out of a separating family seems naive in the extreme. Conflict heightens around financial and children issues, which of course are considered separately.

A spouse deserted by an unfaithful partner, whose path to a new life with his lover has been made smoother by the state, will hardly entertain warm and fuzzy feelings about him just because he did not conjure up allegations of fault against her to achieve that end—especially if she, as the respondent, has less than 20 weeks to adjust to her new position because the clock starts the minute he applies. This might be intentionally when she is on holiday, abroad or otherwise out of contact. Such an imbalance between applicant and respondent must be addressed. I know there is concern about coercive and controlling respondents who might trap the applicant by refusing to be served notice, but yet again we are warping family policy in response to domestic abuse, instead of seeking a more nuanced approach that would benefit society more broadly.

This issue lies at the root of previous Governments’ general agnosticism about family stability, despite evidence that parental separation—not just parental conflict—is an adverse childhood experience. Moreover, the ending of low-conflict rather than high-conflict marriages is more damaging to children. They blame themselves and internalise the sense that no relationships can be relied on, even those that seemed fine on the surface.

Another imbalance needs to be addressed, and we have heard of it today already: the Bill only assists couples to divorce, despite all the negative social ramifications this can entail. There is no support to help struggling couples stay together. This sends a terrible signal: we are on your side if you want easier divorce, but if you want help to face your marital difficulties you are on your own. If we have to have this Bill—I sincerely wish we do not—it has to come with an expansion of support for relationships.

We should listen to those who have been through the pain of divorce. Two-thirds of divorcees agree that family breakdown is a serious problem in Britain today and that more should be done to prevent families breaking up. The DWP has established an important bridgehead in this area with its Reducing Parental Conflict programme. This should be expanded in the spending review and delivered across the country in the promised family hubs.

Nearly two-thirds of British adults in their second or more marriage agree that it is too easy to get a divorce today—and that was before this unnecessary Bill. What good will it accomplish that comes even close to remedying the harm it will inflict by further emptying marriage vows of meaningful promise? The argument that it will benefit marriage by removing the need to cite fault to exit is shameless casuistry—which, according to a quote in the Oxford English Dictionary,

“destroys by Distinctions and Exceptions, all Morality, and effaces the essential Difference between Right and Wrong.”

I return to my opening remarks. This Bill blurs the distinction between right and wrong. The public did not vote for it or support it at consultation so, as is the function of this House, I urge the Government to think again.