Divorce, Dissolution and Separation Bill [HL]

Lord Hope of Craighead Excerpts

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

[Lord Hope of Craighead (CB)]

My Lords, it is a very real privilege for me to follow the noble Baroness and to be the first to congratulate her on an excellent and indeed compelling maiden speech. As we gathered from what she said, she served for 14 years with Stonewall, for much of it as its chief executive. The name Stonewall calls to mind a fixed, immovable object. But under her leadership—we have heard about her campaigning skills—that was very far from the case.

“I grew up, learnt, fought, cried, cajoled, persuaded and sometimes we triumphed. All with the most amazing group of people you can imagine”,


she has said of her time with that organisation. It is no exaggeration to say that during her time and under her leadership, far from standing still, the organisation transformed the way that LGBT rights are respected and understood across the country, to a degree that only a few years earlier seemed almost unattainable.

The organisation gave support to the development of the law by, among other things, helping to promote what became the Marriage (Same Sex Couples) Act 2013 for England and Wales, and the Marriage and Civil Partnership (Scotland) Act 2014. Partnerships were developed with many organisations across the public and private sectors too, and she has spoken in favour of bridging the gap that, sadly, still remains between faith leaders and LGBT communities. Given that unique background, and the insight into the subject which she demonstrated to us in her maiden speech, she has much to contribute to the work of the House, and we look forward very much to hearing from her many times in the future.

At first sight, to one who was brought up in the tradition of fault-based divorce, the reform introduced by the Bill is startling, but it does not require much thought and reflection to appreciate the benefits that will flow from it, so I support the Bill and hope that it will proceed on its way with the minimum of delay.

Rather like the noble Lord, Lord Anderson of Swansea, my experience as a beginner in the profession was in the early days of fault-based divorce—the undefended divorce. I was not as fortunate as my noble and learned friend Lord Mackay of Clashfern, who had defended divorces. My experience was always that they were undefended, but fault in one way or another still had to be proved. The concept of the irretrievable breakdown of a marriage had not yet been invented, nor had separation with consent. Adultery, desertion or cruelty were the grounds available.

The easiest way to divorce where both parties were reconciled to the fact that the marriage was at an end was to allege adultery. All you needed, if you were bringing proceedings, was for the other party to book a hotel room, arrange to be there with the paramour on a given date, provide a photograph to enable him—it was almost always him—to be identified and employ two private investigators to visit the room on the prearranged date. It was a bit of a charade, but it was in fact no laughing matter. The stigma of having committed adultery was unavoidable; so, too, if this was the ground relied on, was that of cruelty.

Happily, the grounds currently available in Scotland are based on irretrievable breakdown, matching those available in England and Wales, which the Bill seeks to replace. As far as I know, a similar reform has not yet been proposed for Scotland, but it might make sense for it to follow this example.

Why do I support the Bill? Its immediate effect is to remove the elements of blame and conflict from the process. Those practitioners who are much closer to the realities than I ever was will know far better than I do what this means. A chance conversation which I had the other day with a recently qualified lawyer who now handles divorces in London brought this point home to me. “Please, please, pass the Bill,” she said. “The culture of blame does so much damage. It makes sorting out all the other things that need to be sorted out so much more bitter and difficult.” The fact is that the process is hard enough without having to attribute and prove blame for the breakdown. The same can be said where a civil partnership breaks down irretrievably, so I support what the Bill seeks to do there, too.

I have, however, two concerns about possible effects of the Bill in Scotland. I am conscious that this is a Second Reading debate, not Committee, but I should like to make these points. The first relates to Clause 6, which extends to Scotland under Clause 7(2). Surprisingly wide delegated powers are to be conferred on the Lord Chancellor in relation to Scotland, including the power to amend, repeal or revoke an Act of the Scottish Parliament if that is consequential on any provision made by the Bill. These powers are surprising, given that the subject matter of the Bill has nothing to do with divorce, dissolution and separation in that jurisdiction. Why is this needed and what will it be used for? Have the Scottish Government been consulted and can the noble and learned Lord assure the House that their consent will be sought if the power is ever to be exercised?

I must stress that that is not an idle question. I take as an example paragraph 58 of the schedule, which amends the definition of exempt transactions in Schedule 1 to the Land and Buildings Transaction (Scotland) Act 2013. Under paragraph 4, a transaction is exempt if it is in connection with a divorce that is effected in pursuance of a court order or an agreement made in contemplation of the divorce. Paragraph 58 removes the words in paragraph 4(a), which describe the orders that are currently made in divorce cases in Scotland, and replaces them with words that do not. That seems to be designed to accommodate in Scots law the reformed system being introduced for England and Wales, but the way this is being done is surely a mistake. It creates a gap in the definition which may well deprive parties in Scotland of the benefit of the exemption. I should be grateful if the Minister would look again at this provision and consider carefully whether it should be amended, or perhaps removed. I cite that as an example of my concern about the scope of Clause 6.

My second point is on a jurisdiction issue. The availability of divorce on the basis of a unilateral, unchallengeable statement may seem an attractive way out of an unhappy marriage by people living in Scotland, but they should have access to it only if they are subject to the jurisdiction of the English courts. The same can be said of Northern Ireland. The easier the system is, the more important it is to be sure that it is available only to those who are entitled to take advantage of it. We can recall the attraction of Scotland in earlier days when it was possible to obtain a divorce there on the ground of adultery alone, whereas in England there had in addition to be proof of cruelty or desertion for two years. From time to time, attempts by people from England to take advantage of that system were rejected by the Scottish courts because they were unable to show that the court had jurisdiction to hear the case.

Jurisdiction in England and Wales in those cases under what is now retained EU law is based on the partners’ residence or domicile. So persons who are resident in Scotland or Northern Ireland and domiciled there should not have access to this simplified system, even if they agree. So how is this to be controlled, if at all? How is the maximum period laid down in Clause 1(7) to accommodate the time needed to seek and obtain advice—possibly with the benefit of legal aid in Scotland—where the other party to the marriage wishes to challenge the proceedings on the ground of lack of jurisdiction? I would welcome some reassurance from the Minister on these points.

Leaving them aside, however, I repeat that I welcome the Bill and wish it success as it passes through this House.