Divorce, Dissolution and Separation Bill [HL]

Lord Keen of Elie Excerpts

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

Moved by

[Lord Keen of Elie]

That the Bill be read a second time.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, this is a Bill for every family going through the upheaval of divorce. No one marries or forms a civil partnership expecting it to break down. No one wants a marriage or civil partnership to fail, but the unfortunate reality is that some marriages and civil partnerships do fail. The irreparable damage will have been done long before an application to the court to bring a legal end to the relationship. The Government believe that the law should deal with that reality in a way that not only protects society’s interests in marriage but avoids making the legal process of divorce or civil partnership dissolution unnecessarily antagonistic. The end of a marriage will always be difficult for the couple and children involved. It cannot be right that the law adds to that by incentivising the attribution of fault. Marriages fail for many reasons, and the responsibility may be shared. The simplistic allocation of blame cannot reflect reality and does not protect marriages.

In developing the proposals before the House today, Ministers have reflected on views that emerged during the Government’s consultation last year and on what legal practitioners and couples themselves have said. The Bill has a clear purpose in seeking to reduce the conflict that can arise from the current requirements for obtaining a divorce. That is all the Bill does. It will not make divorce painless or an easy choice. It will not take away the difficult decisions couples have to make about their future lives, but it will pluck out the legal sting whose effects can be felt long into the future. This is a matter on which there is wide support for change from the public as well as from legal practitioners. Removing unnecessary conflict from the legal process of divorce will, we believe, create a more amicable environment in which a couple can agree their future arrangements. There is a strong evidence base and consensus underlying the proposals in this Bill. It intentionally does not seek to change other aspects of divorce law where the evidence in support of reform has yet to be gathered and for which a consensus on the nature of the reform needed has yet to emerge. Those are quite separate issues on which we are open to be led by evidence.

Although it is 50 years since the Divorce Reform Act 1969 gave rise to the law we now have, the existing law is often misunderstood by couples when they come to use it. Couples are often surprised to discover that the law requires either a period of separation of at least two years or one party to allege fault against the other. A couple who want to divorce amicably can find the law pulling them in a different direction.

The Government’s reform allows divorce and civil partnership dissolution only on the ground that the marriage or civil partnership has broken down irretrievably, a ground we will retain. Under the existing law, however, the person who seeks a divorce must currently satisfy the court of at least one of five facts, as the statute calls them, before the court can hold that the marriage has broken down irretrievably and grant the divorce. In the dissolution of a civil partnership, the material difference is that the adultery fact is not available. It will be convenient to speak in terms of marriage and divorce, but the principles and effects apply equally to civil partnerships and their dissolution.

About two out of five divorces take a separation route. If both spouses agree to the divorce, they must have been separated for at least two years before an application to the court can be made. If the other spouse does not agree to the divorce, five years is the only separation fact available. It seems to us very unlikely that a marriage can be patched up when the people in it have been living separate lives for years. The marriage is likely to have been over by the time they separated, but a separation fact is the only route available if someone is unwilling to make allegations about the other spouse’s conduct. For victims of domestic abuse, including controlling or coercive behaviour, doing so may well be difficult and, indeed, unsafe. Having to live apart for so long will for many people only delay the inevitable legal ending of the marriage. It can also be difficult, not least because the court can make final orders on the financial position of the parties only on divorce.

Some people will say that the Government are introducing divorce without blame, but the truth is that we have had for half a century a route that allows couples to divorce without blame and by mutual consent. That route, however, requires them to be in the limbo of separation for at least two years: living separate lives, but still legally married and unable to make arrangements for the future. The Government do not believe that this requirement serves a useful purpose. Furthermore, the complex rules around what counts as a continuous period of separation can deter people from trying to move back together lest they have to start the separation period anew.

About three out of five divorces proceed on the basis of the conduct facts: the person seeking the divorce must evidence behaviour, adultery or, in rare cases, desertion on the part of the other spouse. With no prior period of separation needed, the law incentivises making allegations about conduct for those who do not want to wait. Sometimes, one spouse has behaved despicably. As I have said, that does not always mean it is safe for the other to put the details to the court, knowing their spouse will see them. Sometimes neither spouse has done anything particularly wrong and a series of trivial incidents might be presented so that they pass muster. The court itself has no practical means by which to investigate allegations made about a failed marriage and must take these at face value. A mere handful of cases proceed to trial, even among the 2% of cases in which respondents indicate their initial intention to contest the divorce. Only some of those dispute the irretrievable breakdown of the marriage; for most, it is the choice of fact and the supporting detail of the allegations. It is plainly absurd that the law facilitates conflict over the detail when the couple agree that the marriage is over.

Nothing in this legal drama gets to the real reasons why the marriage failed or helps people to move on. Worse, allegations can grind away at the majority of respondents who do not contest the divorce. No one wants to face a catalogue of real or perceived failings in their most intimate relationship—allegations that can sour attempts to make arrangements about the future. Conflict can have a particularly damaging and, indeed, lasting impact on children and their view of each parent. It can undermine good co-parenting; in fact, research shows that it is conflict between parents that is linked to greater social and behavioural problems among children rather than the separation and divorce itself. The law is also completely out of step with the constructive conciliatory approach that family law takes in other areas and that practitioners take every day.

This Government believe it is time to change this damaging situation. The Bill creates the conditions for a better prospect of moving forward more amicably and constructively, which is also the approach taken by members of Resolution. Indeed, Resolution’s chair, Margaret Heathcote, has said that

“because of our outdated divorce laws”

practitioners have effectively been working

“with one arm tied behind their backs.”

This Bill will change that. It is also a Bill with children’s best interests at heart.

With all this in mind, I turn briefly to the main provisions in the Bill, to explain the revision of the current process within the framework of the existing law. It is not a new process, merely an adjustment of what already takes place. The Bill therefore keeps the two-stage process that will be familiar to your Lordships as the decree nisi and decree absolute. In a modernisation of language to help couples, these will be called “conditional orders” and “final orders”, in line with civil partnership law. However, we are introducing for the first time the option for an application for divorce to be made jointly by both parties where the decision to divorce is a mutual one. The need to confirm to the court that it may make the conditional order as well as to apply to the court for the final order means that a divorce or dissolution is never automatic but remains intentional at each stage and within the control of the party, or the parties where an application is made jointly.

This is what the reform will do. It will retain irretrievable breakdown as the sole legal ground for divorce and dissolution. It will replace the current requirement to evidence irretrievable breakdown through a conduct or separation fact with a statement of irretrievable breakdown of the marriage or civil partnership. Couples will for the first time have the option to make this a joint statement, reflecting for some couples their mutual decision to divorce.

It will remove the possibility of contesting the decision to end the legal relationship. A statement of irretrievable breakdown will be conclusive evidence to the court that the marriage or civil partnership has irretrievably broken down. It will introduce a new minimum period of 20 weeks from the start of proceedings to when the applicant or the joint applicants can confirm to the court that a conditional order may be made. There is currently no minimum period, meaning that decrees nisi are reached as quickly as couples and the court process allow.

Our proposal will allow time to consider the implications of the divorce. Between 2011 and 2018, around two-thirds of cases reached conditional order in less than our proposed 20-week minimum period. About one in 10 cases did so within eight weeks, and four in 10 cases between nine and 16 weeks. Our reform is in no measure introducing so-called quickie divorce; for around 80% of couples the divorce will actually take longer than it does currently. In addition to the new minimum period of 20 weeks, the six-week minimum period between conditional and final orders will remain. As is the case now, the divorce will not be able to proceed to conditional order unless the court is satisfied in relation to service on the respondent.

It is time to end what has been termed the blame game. It is time to minimise the harm to children that can arise from the legal process and not give it a chance to worsen where conflict already exists. The reforms that we have set out today will deliver a revised process of divorce that protects all our interests in marriage, reduces the potential for conflict and its impact on children, and is fit for the 21st century. I commend the Bill to the House, and I beg to move.

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[Lord Keen of Elie]

My Lords, I am grateful to everyone who has spoken in this debate, and I express particular thanks to the noble Baroness, Lady Hunt of Bethnal Green, for a cogent and perceptive maiden speech. I am encouraged by those, from all sides of the House, who have indicated their support for the Government’s proposals, which in turn reflect overwhelmingly the views of those in the other place. This Bill will bring long-overdue reform—a point made by the noble and learned Lord, Lord Walker—that directly benefits divorcing couples and, importantly, any children that they may have.

Of course the Government share the belief that marriage and civil partnership are vitally important to the well-being of our society, but I am very aware that there are some differing views about divorce, and I recognise that some noble Lords have misgivings about the proposals in the Bill—or, indeed, about proposals that are not in the Bill. But I would like to reiterate what I said in my opening speech, which is that this Bill is intentionally narrow because it focuses on the evidence for reform of particular aspects of divorce law on which there is a broad consensus. That seems to me a sensible and proportionate approach for the Government to take at this stage, acknowledging that there may be further matters to be addressed.

Many points have been raised today. I will consider some of those further between now and Committee and I have no doubt that they will also be the subject of consideration in Committee. But perhaps I might comment on a number of points that were raised.

The noble Lord, Lord Anderson of Swansea, began by referring to the apparent marital experiences of the actor Pamela Anderson. Some would consider that those experiences compare not unfavourably with those of the late Henry VIII, who was after all Defender of the Faith.

My noble and learned friend Lord Mackay of Clashfern made the point that marriage is essentially a voluntary union. I understand the point made by the noble and right reverend Lord, Lord Harries of Pentregarth, that marriage is not simply a contract, but requires the willingness of both parties to adhere, and that has to be borne in mind.

The noble Lord, Lord Anderson of Swansea, raised a further point about Clause 1(8), which allows the court in exceptional circumstances—the point was also raised by the noble Baroness, Lady Meacher—to alter the periods in question. That is part of the existing law, albeit on the matter of the gap between decree nisi and decree absolute. It is done only in exceptional circumstances. Perhaps the easiest example to give is where somebody is suffering from a terminal illness. The court may be prepared to step in to foreshorten the relevant period so that the divorce can be secured before a person is deceased. But it is employed only in such exceptional circumstances. I hope that the noble Lord will accept that.

The noble Lord and many others referred to the 20-week period, and in particular to its commencement. There are arguments about whether it should commence on application or at the point at which a respondent acknowledges service. The difficulty with the latter approach is that an unresponsive respondent, if I can put it in those terms, might well frustrate the entire process and delay it unconscionably. However, we are open to discussion on how we should approach the question of the 20-week period. I have no doubt that there will be an opportunity to do that between now and Committee.

The noble Baroness, Lady Burt of Solihull, raised the question of transgender people, or persons who wish to transition, which she acknowledged was outwith the scope of the Bill—which it certainly is. However, if and when we come to address that, I think that we would have carefully to approach her use of the unqualified term “veto” in respect of this matter. The noble Baroness, Lady Hunt, very charmingly used a “Jack and Jill” kind of illustration of certain matters; perhaps I may seek to deploy a similar approach. Mary marries Paul; Paul decides that he will transition to become Pauline. To complete that process, he will either require the consent of Mary or he will have to secure a declarator of nullity of marriage—so there is no actual veto. The point of the present situation is this: Mary who married Paul should not find herself married to Pauline without her consent. There are counter-arguments and it is a delicate and difficult issue; it is not one for this Bill, but I respond to the noble Baroness’s suggestion that I should say something on the topic. I simply underline that it is a delicate subject that will have to be approached with care and without using such unqualified terms as “veto”.

Financial settlement was also raised by the noble Baroness, Lady Burt. We are at present considering an appropriate form of consultation on how we might approach any reform of the law with regard to financial settlement, but we have no desire to derail the Bill by trying to draw in a rather more complex area—one underlined by the noble Baroness, Lady Janke, when she alluded to pensions. That will require wide-ranging consideration before we can bring forward any possible legislation. It is not something that we would seek to address in the context of the present Bill.

The noble and learned Lord, Lord Hope of Craighead, raised a number of points to which he said he would return in Committee. He referred first to the wide delegated powers in Clause 6, which would include powers in relation to Acts of the Scottish Parliament. I am confident that no such steps, which could be taken only where amendment consequential on this Bill was required, would be taken without consultation with the Scottish Government.

He also raised a point about paragraph 58 of Schedule 1 to the Bill. That is intended to apply existing legislation to the new form of order that will arise under this Bill. If there is a deficit of some kind in the wording of that proposed amendment, I would be happy to discuss it with the noble and learned Lord in advance of Committee, so that it can be properly addressed. It is not immediately apparent to me from my reading of paragraph 58 that there is a deficiency—but, as I say, I am perfectly content to discuss that.

The noble Baroness, Lady Meacher, raised a question about having to reaffirm your desire to end a marriage. The present Bill simply reflects existing law in that regard. We do not consider that this is a deficiency. There is no reason why, in our view, if someone has determined that a marriage has irretrievably broken down, they should not be able to reaffirm that when requested by our court procedures to do so. Indeed, there may be some merit in requiring them to do so.

The noble Lord, Lord McColl of Dulwich, alluded to mobile phone contracts and their length—but, of course, one is able to proceed with what is termed pay-and-go. We do not wish to introduce that in the context of marriage or divorce, but it just shows that such comparatives can sometimes be a little less than entirely convincing.

I am encouraged that many have welcomed the Bill. Many have suggested that there are points of detail that they will wish to raise in Committee, and I would welcome discussion with noble Lords in advance of Committee on any points of detail that we can address. Clearly, no law can make the breakdown of marriage painless. What a reform of the law can do is minimise the pain and difficulties that arise not from the breakdown of the marriage but from the legal process itself. The law should not compel people to continue in the empty shell of a marriage for longer than is absolutely necessary. The fact is that divorce and dissolution will continue to happen regardless of what legal process we put in place; the irretrievable breakdown of some marriages and civil partnerships is inevitable. The Bill deals with the reality that, with the minimum of acrimony, it should be possible for people to leave such arrangements in an orderly and hopefully sometimes constructive manner.

I certainly share the concern expressed by many of your Lordships that the legal process itself should not exacerbate the conflict that has driven divorcing couples to the point of seeking the termination of a marriage. I take the point made by the noble Baroness, Lady Shackleton, that we should, in a sense, contemplate addressing not how you end a marriage but how you begin it, and educating people as to what they are entering into rather than what they are about to leave. There is a great deal of force in that.

We believe that this Bill will make a genuine difference to the lives of many, including children, who have to experience divorce either at first hand or as witnesses. It is for that reason that I beg to move that this Bill be now read a second time.

Bill read a second time and committed to a Committee of the Whole House.

Divorce, Dissolution and Separation Bill [HL]

Lord Keen of Elie Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I agree with the noble and learned Lord, Lord Mackay, not for the first time. I particularly want to associate myself with the very humble reflections of the noble Baroness, Lady Burt, and the unparalleled expertise of the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss. I do not want to repeat what has been said. However, I might shorten what I say about other amendments if I make a few comments now, because I think the noble and learned Baroness, Lady Butler-Sloss, is broadly right: this is a good Bill that will generally not benefit from much amendment, subject to concerns of the Delegated Powers Committee.

As was rehearsed by many in your Lordships’ House at Second Reading, divorce is not generally a happy matter. I suspect that it is mostly in Hollywood cinema that people celebrate and have parties upon divorce. I have heard of such things, but they are perhaps the exception and not the rule. This is therefore an unhappy subject and an unhappy moment in lots of people’s lives—as it happens, a very significant portion of the population. For some people, it is a story of liberation after trauma; for others, it will be a matter of loss and trauma. It is not a happy matter. The law should be about legal protection and not legal fiction.

I understand the sentiments of noble Lords who would like people to reflect before they put themselves through this trauma. But I would have more in common with that sentiment if we were seeking to provide counselling for every adolescent and adult in the country, or, indeed, if we were seeking to reinstate the availability of legal aid for people contemplating and going through divorce. In my experience, good family lawyers will always go through a process of reflection with their clients before advising them to go through this traumatic process. Those matters, unfortunately, are beyond the scope of the Bill—I know this because I had a go. I am told by the Public Bill Office that reinstating legal aid for people with contested contact matters is also unfortunately not in the Bill.

In the future, I would happily talk to any noble Lords who want to persuade the Government that legal aid should be reinstated, at least for matters concerning the children. That would be a very good thing. As I said to the Minister, who very kindly met me yesterday, it seems perverse that if the state seeks to take your children you have access to a lawyer, but if your ex-partner is depriving you of contact you do not. That is a real concern, as are the issues about adequate provision for counselling, mediation and so on; provision is needed. I do not see how people will reflect and reconcile when they have extra hoops to jump through by way of legal process. For that reason, I hope the noble Lord, Lord McColl, will think again about this amendment.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, just as he did at Second Reading, the noble Lord, Lord McColl of Dulwich, has expressed his desire to ensure that those intent on divorce should have the opportunity to consider reconciliation. Of course, we agree with that, which is one reason we are building in a statutory pause: the new 20-week period between application and conditional order. It is also why we are retaining the two-stage order, as well as the bar on divorce applications in the first year of the marriage.

The noble Lord expressed concern, as did others, that the Government’s statistics give the impression that a significant number of divorce petitions never reach decree absolute. There is, however, no evidence that these represent cases of reconciliation. Indeed, analysis of court data by the Nuffield Foundation, referred to by the noble and learned Baroness, Lady Butler-Sloss, shows that the majority of non-completions are due to the technical difficulties of the legal process for unrepresented parties, the obstruction of respondents and, in some cases, protracted negotiations over finances. Indeed, a sample of 300 undefended cases were analysed, in which 51 were found not to have completed. Only one of those cases was identified as having ended in an attempted reconciliation. It is not only the recent Nuffield research that indicates this. Research undertaken by the University of Newcastle, following the Family Law Act 1996, also found that the decision to divorce was not taken lightly or impetuously; it was typically a protracted one based on months, if not years, of painful and difficult consideration.

I appreciate the intention behind the amendment; the noble Lord, Lord McColl of Dulwich, spoke of the profound importance of marriage to society and I could not possibly disagree with that. However, we believe that this amendment would have the potentially perverse effect of encouraging speculative applications. Someone facing marital difficulties might file an application saying, “I think my marriage may be over, though I’m not sure. I can always make my mind up after 20 weeks, or after as long as it takes.” As the noble Baronesses, Lady Burt and Lady Shackleton, observed, that is not the process that parties go through in reality. Indeed, as the noble and learned Lord, Lord Mackay of Clashfern, observed, it is inconsistent with the idea that you are applying on the grounds of irretrievable breakdown.

Applying for divorce should, of course, always be a last resort; certainly, we have seen no evidence that it is anything else. In the vast majority of cases, the applicant reaches the decision after considerable soul-searching and, indeed, after attempts have been made to mend difficulties in the marriage. It should never be seen as a warning shot. Divorce is not a remedy for marital difficulties; it is a remedy for a marriage that is no longer functioning because it has irretrievably broken down. It is right, we suggest, to continue to demand irretrievable breakdown at the point of the initial application as the grounds on which decree could then proceed. Of course, divorce should never be automatic, but again neither this Bill nor any other is going to make divorce easier for those affected by it.

We consider that the existing ground for divorce, namely irretrievable breakdown, should remain, and I urge the noble Lord to withdraw this amendment.

[Lord McColl of Dulwich]

My Lords, I am very grateful for all noble Lords who have taken part in this debate. I have been practising medicine for more years than I care to remember, and I have, almost every day, had to break bad news. I took a great deal of time to get over to medical students that this had to be done gently and with respect. Although my amendment does not seem to have much support, I hope that there is some way in which a person who wants a divorce can indicate to his partner what is in his mind long before he puts down an official request. Breaking bad news does not cost too much money. I beg leave to withdraw the amendment.

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[Baroness Chakrabarti]

My Lords, as I said, it has taken decades of distinguished professional experience for some noble Lords to make the contributions they are making to this debate. However, I have no doubt that it has taken a mountain of courage and not a small amount of eloquence and self-possession for the noble Baroness, Lady Meyer, to make her contribution—for which I am sure we all thank her. I thank her and the noble Baroness, Lady Howe, for giving us the opportunity to talk about children with what I hope will prove to be a probing amendment that puts the interests of children into this discussion.

However, for the reasons stated by other noble and learned Lords, the place and moment for a court to consider the best interests of the child—for example, under the Children Act—should be in matters of contact and finance. At the risk of sounding like a broken record, I say once more that the place for your Lordships’ House to consider what we should do ought to be in putting back legal aid for such contested family matters.

[Lord Keen of Elie]

My Lords, I begin by correcting a misapprehension disclosed by a number of noble Lords. We have produced a family impact assessment in respect of the Bill. Indeed, it was published with the Bill and can be found on GOV.UK. I invite those noble Lords who expressed an interest to have regard to that.

I have no doubt that this amendment is well intentioned, but its effects could be quite draconian. It would in effect require the court to weigh up whether the interests of the marriage’s children should override the autonomous decision of one parent—or indeed both parents, in a joint application—to seek a divorce. It could result in a parent being trapped in a failed or even abusive marriage. It could also reintroduce contested divorce in cases where there are children, because it would allow a parent to put forward arguments that divorce is not in the children’s best interests. It is difficult to see how this would serve the best interests of the children or even the parents. Indeed, this amendment could cause a worsened parental conflict through the legal process of divorce, with further damaging consequences for the children involved.

I understand why some may regard it as important for the court to consider the impacts on children of the decision to divorce, but that ought not to be a matter for the divorce process. The decision to marry or divorce is an autonomous one. It is not for the law to stand in the way of one or both parties who no longer wish to be in a marriage. The legal process of divorce should focus only on ending the legal relationship between the adult parties. Issues that may arise from the divorce, such as disputed arrangements for children, can and are dealt with now under separate statutory provision.

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[Baroness Howe of Idlicote]

My Lords, I am most grateful to all noble Lords who have taken part in this debate, which has been extremely interesting and wide-ranging. Despite what has been said, the role of children and the effect on them of divorce proceedings would not have had anything like the prominence that it has had but for this amendment. I did not realise that the family test assessment is available; I was going to suggest having a meeting before Report with that as a central feature. Maybe noble Lords on all sides of the argument could come together. Clearly, we need to discuss all this on Report. All noble Lords who have taken part, with their very strong feelings and differing views, must be glad that children are a central part of all the proceedings. With that in mind, unless the Minister would like meetings for further discussion before Report, I will withdraw the amendment.

[Lord Keen of Elie]

I am perfectly happy to have meetings on this or any other issues that may arise before Report, and to have the relevant officials present. I hope I have expressed clearly our position regarding the distinction between the divorce process and the interests of children, but I am perfectly content to have a meeting.

[Baroness Howe of Idlicote]

It would be desirable to have some meetings. Under the circumstances, I beg leave to withdraw my amendment.

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[Baroness Chakrabarti]

My Lords, I am so grateful to all noble Lords who spoke about this group. We do not support families by lecturing them, hectoring them or even creating obstacles to divorce. We support families with fellowship, with community, with solidarity and with social infrastructure. As I have said, I would like people to have access to lawyers—we wicked lawyers, but when you need us we are not so wicked—in time times of trouble, but also to counselling and relationship support long before there is trouble and, indeed, all through their lives. I really have taken on board the points that were made by two noble Baronesses at least about timing, because this support should be available very early in life and, as noble Lords opposite have said, perhaps even before people entertain the idea of marriage. That was the reason for supporting the noble and right reverend Lord, Lord Harries, in Amendment 3, although I take the points about timing and do not want to delay noble Lords further on this.

I hope the Minister will take the opportunity, in responding to this group, to set out what the Government propose more generally by way of this kind of provision for counselling and relationship support, because it seems, to me at least, all-too scant at the moment.

[Lord Keen of Elie]

My Lords, I will begin with Amendment 3, moved by the noble and right reverend Lord, Lord Harries of Pentregarth. I am grateful to the noble and right reverend Lord, not only for his thoughtful contribution to the debate and the scrutiny of the Bill but for meeting me to discuss his proposals.

The Government share the sentiment underlying this amendment, and the observations of a number of noble Lords that couples considering divorce should have available to them information about the services in question, and that where reconciliation is still possible, the legal process should not dim that prospect. On the second point, the Bill introduces for the first time a minimum timeframe of 20 weeks from the application to when the court can be asked to make the conditional order of divorce. The Bill also retains the two-stage procedure for obtaining a divorce under the distinctive procedure of English law, so that each step on the way to divorce requires an intentional and, indeed, conscious decision to end the marriage.

The Government’s view is that best prospect of saving a marriage is when difficulties first arise, not much later when divorce proceedings have begun. In the University of Newcastle evaluation of pilots to test the information-meeting provision that was central to the no-fault provisions in the now-repealed Part II of the Family Law Act 1996, the report noted:

“If the objective of providing information is to facilitate marriage saving, the evidence suggests that it will be more effective if it is provided while spouses are still together and before they make the decision to live apart.”


The Government share the desire to encourage more couples to resolve any disagreements about children or financial arrangements through mediation, avoiding, wherever possible, the need to seek a court adjudication. For these reasons, the Government do not support this amendment but believe that its laudable ends can be achieved by other means.

Divorce, Dissolution and Separation Bill [HL]

Lord Keen of Elie Excerpts

Committee stage & Committee: 1st sitting (Hansard - continued) & Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, when the Government consulted in 2018 on the Bill’s proposals, a number of headlines suggested that we were introducing quickie divorces; indeed, in some quarters, that misapprehension may linger. However, in a sense, we are putting an end to them. Under our reform Act, applicants cannot apply for a conditional order until at least 20 weeks have passed from the start of the divorce proceedings, along with the current six weeks between conditional and final orders, and that is a minimum period. Of course, progression from one stage to the next will never be automatic.

Applications for divorce are increasingly made online and the Government’s updated impact assessment, which was published last April, projected that, under these reforms, on average we would be adding between nine and 10 weeks to the divorce process based on the expected impact of full implementation of online divorce. So we are certainly not reducing the overall time for the average divorce. Indeed, at present rather more than 80% of divorces take place sooner than the timescale set out in the Bill.

I acknowledge that there is no magic number as far as this timing is concerned. A single divorce law must work for everyone and, in introducing the new minimum period before conditional order, we have carefully considered what period would most effectively help applicants consider the implications of divorce and allow couples to reach an agreement on practical matters without unduly lengthening the process. That is the purpose of the minimum period. It is certainly not intended to be punitive in any way.

The question then arises: why six months overall rather than a year or even a month? The Government have reflected on the different views put forward during the consultation and, at that time, some key organisations broadly supported six months as a reasonable period to meet the emotional and practical needs of divorcing couples. However, they also noted that there could be problems if that period was longer. Indeed, a period substantially longer than at present could unduly delay necessary financial arrangements, for example, and it would be particularly unhelpful if a couple had already been separated for a long period of time before the application is made. We therefore made the judgment that six months strikes an appropriate balance that allows a better opportunity for parties to adjust and a reasonable period for them to consider the implications of the step that they are taking.

As I say, there is no magic number. It is a case of exercising judgment and we consider that the period of 20 weeks, together with the six-week period, is appropriate in the circumstances, and we would not propose to extend that period by way of amendment to the Bill. In these circumstances, I invite the noble and learned Lord to withdraw the amendment.

[Lord Mackay of Clashfern]

My Lords, of course it is a matter of judgment. I had to do the judgment some time ago. The other angle which has to be taken into account is that when the divorce proceedings are finished, parties are apt to lose interest in their responsibilities under the marriage that has been terminated. I have seen that as a matter of fact from time to time. For example, fathers who desert find it very difficult to remember to pay the necessary support money to the deserted lady. That kind of thing can be made worse if the divorce has been completed before all the financial matters have been settled. However, I agree that this is a matter of judgment, and I beg leave to withdraw the amendment.

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To reiterate, the respondent is almost deemed the one at fault. Again, this pushes our laws towards the hard cases where there is abuse, rather than finding ways to ensure greater fairness for all those applying for divorce. Other statutes deal with domestic violence. The standard practice is that the court initially serves the application on the respondent, meaning that there should be no delay, provided that contact details are correct. However, who provides the contact details? Often, it is the applicant. Surely a new process can be developed—for example, through email, recorded delivery or whatever—to prove that the respondent has been served with the application. The 20-week period starting on application is defended on the ground of simplicity. However, as with so many elements—and omitted elements—to this Bill, in its simplicity lies its harshness.

[Lord Keen of Elie]

My Lords, as I believe I indicated previously, we accept that we should address the service issue in the context of the Bill. Therefore, I can advise the Committee that my right honourable and learned friend the Lord Chancellor raised this issue with the President of the Family Division last week. The Family Procedure Rule Committee will be invited 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 issue of proceedings.

The rule committee has a statutory duty to consider whether to consult on rule changes. I hope it will decide to do so in order that wider scrutiny can be given to any proposals for achieving timely service. I also hope that through the increasing use of an online divorce service many respondents will be served quickly and efficiently by email, as the noble Lord, Lord Farmer, suggested. However, I am clear that the provisions in the Bill will need to work for the many cases that, at least in the short term, will continue to be dealt with through paper applications to the court.

Amendments 5 and 15 seek to provide in the Bill different definitions for the start of proceedings in respect of joint and sole applications. For sole applications, the practical effect will be to define the starting point for the 20-week period as the date on which notice of the proceedings is served on the respondent party. However, that will create the potential for new disputes as to when notice is served or received. The only certain way to evidence this is through an acknowledgement of service, if one is returned by the respondent. Such an approach risks handing too much power to a respondent party who wishes to frustrate the divorce proceedings by avoiding or disputing service or delaying the entire process.

Resolution, the leading body in England and Wales, representing over 6,000 family justice professionals, has identified this as the greater mischief. Its concerns are underpinned by evidence. The noble Lord, Lord Marks, referred to the work of Professor Liz Trinder. In her study, she found that no acknowledgement of service was returned by the respondent in a sample number of cases representing 13.7% of the total. That was only a sample, but it would amount to about 14,000 cases annually if extrapolated nationally. In the majority of cases where there was no return in the sample, this appeared to reflect a decision of the respondent not to co-operate with the process, whether they were opposed to the divorce in principle or simply wanted to make the process difficult for the petitioner.

The amendment creates new potential for mischief from a respondent who is not co-operative. The Government are concerned to avoid introducing new opportunities into the revised legal process for divorce for a perpetrator of, for example, domestic abuse to exercise coercive or controlling behaviour. It is a question of achieving the right balance. We consider that the right way to achieve this is by working with the Family Procedure Rule Committee to address the issue.

I shall deal with the entirety of the group of amendments beginning with Amendment 8, moved by the noble Lord, Lord Marks, and consisting also of Amendments 9, 11, 12, 13, 17 and 18. I thank the noble Lord for his consideration of this issue and our discussion of it. Amendments 8, 11 and 17 would amend the Bill to insert a new delegated power into Section 1 of the Matrimonial Causes Act 1973 and a new Section 37A into the Civil Partnership Act to enable the Lord Chancellor to make provision by order to set out a further minimum period within which a sole applicant must effect service of notice. Amendments 9, 13 and 18 would make that power subject to the negative resolution procedure and Amendment 12 would apply in judicial separation cases.

These amendments would add to the Bill further delegated powers that are simply not needed. We consider that the best way to achieve resolution of the service issue is to work with the Family Procedure Rule Committee to address the rules around service. The provisions of the Courts Act 2003 already provide a power for the Family Procedure Rule Committee to make rules of court regulating matters governing the practice and procedure to be followed in family proceedings, including the requirements for service. I am quite happy today to give a commitment that we will work with the Family Procedure Rule Committee to address these concerns over service. They already have the relevant statutory powers to address this. In these circumstances, understanding that these were put forward as probing amendments, I invite noble Lords not to press them.

[Lord Farmer]

My Lords, I thank the Minister for his explanations. I am to some degree heartened by him wanting new advice to be gained from the rule committee. In this instance, we wish him well and hope we can come to a sound agreement. I beg leave to withdraw the amendment.

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[Baroness Meacher (CB)]

My Lords, I rise to speak to Amendment 6, proposed by the noble Baroness, Lady Chakrabarti. I apologise to the noble Baroness that I did not get a chance to have a chat with her before this evening, as I had originally added my name to the amendment. As the noble Baroness explained, the Bill as it stands proposes minimum periods of 20 weeks and six weeks for the two stages of divorce and dissolution proceedings. I thank the Minister for the very helpful meeting we had last Wednesday, where he clarified that a statutory instrument to shorten the period for divorces would indeed be subject to the affirmative procedure. The question has been whether there is any reason at all why the Lord Chancellor should be given a Henry VIII power to reduce the length of either of the two periods through delegated legislation.

The Bill is very clear that, in a particular case, an application may be made to the court to shorten the period for the proceedings. For example, if one of the partners is dying and wants to sort out their affairs before they die, it would of course be perfectly reasonable for them to make an application to the court to reduce the period required. Also, if there is a need to protect an abused spouse, time may be of the essence. However, to shorten the minimum period for divorce or dissolution in all cases is quite another matter. We have to think about that.

The then Minister for Justice, Paul Maynard MP, emphasised in the Commons Public Bill Committee on 2 July 2019:

“The 20 week period is a key element in a reformed legal process.”


There is currently no minimum period, and with respect to the second stage, the Minister said that part of the objective was

“to improve the financial arrangements. People may wish to delay a little longer until such a point. It is not a maximum period; it is a minimum, and the process might well take longer.”—[Official Report, Commons, Public Bill Committee, 2/7/19; col.35.]

As the Minister knows, I expressed my concern at Second Reading about a future Lord Chancellor having the power to allow for a more rushed process, without proper parliamentary scrutiny. Certainly, the decision to apply the affirmative procedure to any statutory instrument reducing the time period is, in my view, an important improvement. The Government argued in a memorandum that the Lord Chancellor

“will be able to make adjustments to the time periods, for example, if policy considerations meant that it would be appropriate to shorten one or both of the time periods.”

I do not want to be difficult, but when I asked the Minister during his presentation to the Cross-Bench meeting what policy considerations might justify reducing the timeframe for divorces in a general sense, neither he nor the civil servants present could provide an answer. However, during the meeting last Wednesday, the noble and learned Lord, Lord Mackay of Clashfern, came—probably quite inadvertently—to the rescue and suggested a justification for the use of this power. The noble and learned Lord suggested that if, for example, there were repeated applications to the court to reduce the length of time from 26 weeks, then a more general reduction in the minimum period would be helpful. Repeated applications to the court are unhelpful to the people immediately affected; I imagine there are delays and all sorts of things, including perhaps costs.

This sounds a very sensible justification for the Henry VIII power. The concern of the Delegated Powers Committee, on which I sit, had been that Ministers at that point had offered no rationale for the Henry VIII power. Now, thanks to the noble and learned Lord, Lord Mackay, to whom I must give due credit, we have such a rationale, as well as confirmation from the Minister that the affirmative procedure would be applicable. I am therefore personally satisfied that this matter has been acceptably resolved—I had intended to say “satisfactorily resolved”, but it has certainly at least been acceptably resolved. However, I must emphasise that I am not, of course, speaking for the Delegated Powers Committee as a whole; I am speaking purely as one member.

[Lord Keen of Elie]

My Lords, under the procedures set out in this new Bill, something like 80% of divorces will now take longer than they otherwise would have done. Having regard to that, it is considered prudent that the Lord Chancellor should have the opportunity as matters develop to be able to adjust the timeframes under which provision is made for divorce in this Bill. What I refer to are future, unforeseen policy considerations, which might indicate that it is appropriate to shorten the length. As was observed, the noble and learned Lord, Lord Mackay of Clashfern, cited, as an example, a situation in which there were a multitude of applications to reduce the timeframe and it was felt that this directed us towards a conclusion that there should be an overall reduction in the timeframe, because it was creating particular difficulties. That is why these powers exist.

There are essentially there of them: one in respect of divorce, one in respect of partnership and one in respect of nullity of marriage. As the Bill was drafted, these statutory instruments would have been subject to the negative procedure, but, as I indicated during meetings with a number of noble Lords, it is our intention to amend that and to apply the affirmative procedure in order that Parliament may have oversight of any such proposed step. In these circumstances, and with that undertaking to amend before Report stage of the Bill, I invite the noble Baroness to withdraw her amendment.

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[Lord Marks of Henley-on-Thames]

My Lords, I will first address Amendments 7 and 17A, tabled by the noble Lord, Lord Farmer. These would prevent the commencement of financial provision proceedings, except for maintenance pending suit, for 20 or even 12 weeks on his alternative, in the absence of the consent of the other party.

I suggest that these amendments—like earlier amendments that restrict the choice and autonomy of parties to a marriage that has failed—are patronising. As I understand it, they are supposed to allow for periods of reflection. I am all for periods of reflection where they will do any good, but they usually do good if they happen before any divorce proceedings are under way.

There are many cases where, by the time divorce proceedings are commenced, a financial provision application has become urgent. This is particularly so where one partner to a broken marriage has remained in an unhappy marriage or is enduring financial hardship, and even in cases where both parties agree to a divorce, but not to the timing or the form of financial provision. One example is when a home should be sold.

It is very important not to hold up financial provision applications on a blanket basis, given that parties frequently stay together long after their marriages have in reality failed, either because they have to live together in one home for financial reasons, or because they decide to stay together for the sake of their children. Why should parties in their position then be made to wait further for financial relief, when delay may cause considerable hardship and unhappiness?

There is, of course, no compulsion on a party to commence financial provision proceedings immediately. I suggest that the timing should remain within the choice of the parties and—where there are such—their advisers.

There are many other cases where, by the time the proceedings are commenced, the parties are living apart. One spouse may be with someone else. Generally speaking, such parties know of the issues between them relating to financial provision before proceedings are brought.

Take for example a currently well-known case. It would be appallingly high-handed to tell a practicing QC, married to a prominent figure—who was very publicly living with someone else, whom he had committed to marry and who was expecting his child—that she would have to delay for 20 weeks before taking steps to secure financial provision in divorce proceedings without his agreement.

There is no good reason to debar financial proceedings once divorce proceedings are under way, so I oppose these amendments.

On Amendment 20, which calls for the review to which the noble Baroness, Lady Deech, has spoken so eloquently, I agree that a review of the law on financial provision is desirable. However, I do not think that the statutory requirement for such a review sits comfortably within this legislation, which is, and should be, limited to removing fault from the divorce process.

I take the view, eloquently expressed by the noble and learned Baroness, Lady Butler-Sloss, that the process of divorce ought generally to be kept separate from issues of financial provision. I would be happier for the Minister to commit to commissioning, in the near future, a wide-ranging consultation with a review of financial provision on divorce, with a view to updating an area of law that has become, for many, out of date and out of step with modern social mores.

I find in the terms of the noble Baroness’s amendment, borne out in her speech, and discerned and spoken to by the noble and learned Lords, Lord Walker and Lord Mackay, an element of prejudgment of what should come out of such a review. I am not sure that picking out the desirability of importing something like the Scottish provisions, the term of periodical payments and the enforceability of prenuptial and post-nuptial agreements, into what should be a wide-ranging and full review is the best path to conducting it.

I do not share the noble Baroness’s cynicism about the Bar, my profession, nor her view that no barristers support reform of the law in this area. Indeed, I support reform of the law in this area, in many ways on the same basis that she does. I certainly support her view that the law on financial provision is too complex and expensive. I endorse her view and that expressed by the noble and learned Lord, Lord Mackay, that there is scope for some kind of a framework or model for use in the generality of cases.

However, there is room for discussion on the extent of judicial discretion, as the noble and learned Lord, Lord Mackay, pointed out. On the term of maintenance payments, I am particularly concerned about the position of older applicants or those in ill health who would normally expect and be entitled to long-term provision. Cutting maintenance off in the short term might be a bad idea.

While I support the idea of a general review of financial provision, I hope the Bill will not be amended to incorporate a statutory requirement in the terms of the noble Baroness’s amendment—but I would welcome a commitment from the Minister to carry out a consultation and review.

[Lord Keen of Elie]

My Lords, I begin with Amendments 7 and 17A tabled by the noble Lord, Lord Farmer, which seek to allow one party to block applications for financial provision on divorce throughout all the new 20-week minimum period referred to in the Bill. That is an entirely new restriction for which we have seen no justifying evidence. Nor do we know the potential financial impact it could have on people’s lives. These amendments would still allow financial applications by agreement of the other party, of course, and would also allow applications for maintenance pending suit, but financial orders are not there just for one or the other party to the marriage. They are also there to make sure that, for example, the children’s needs can be met. I appreciate that applications for financial provision in respect of children can be made at any time under Schedule 1 to the Children Act 1989, but we hardly want to promote a solution that pushes people towards yet a further set of legal proceedings.

There is no reason to delay applying for an order that in most cases can come into effect only when the divorce order is made final. Of course, the financial adjustment between the parties has to be made at some stage, but it is in no one’s interests to restrict when an application can be put in train. Indeed, it is worth noting that only once an application has been made can the court direct the parties to undertake full and frank disclosure of their assets and liabilities. Furthermore, these amendments could have the rather perverse effect of allowing one party to effectively coerce or control the other by frustrating attempts to secure a financial settlement and essentially to use that as a delaying tactic.

We are not in favour of this amendment at all. The Bill seeks to set out a very clear revised process for divorce within the existing legal framework. That is what we are anxious to implement, without being diverted by additional qualifications or controls.

I turn to Amendment 20 tabled by the noble Baroness, Lady Deech. As I said at Second Reading, the Government are considering how to approach any reform of the law with regard to financial settlement. My officials on this Bill are already at work on how best to take this forward. Drawing on that, it will be necessary to essentially lay the parameters for a review that will require, among other things, knowledge and expertise from outside government, to build an evidence base and to assess the problems that the present situation creates.

I hear what is said about the wide diversity of awards that can be made under the existing law, and the potential benefits of embracing a system such as that reflected in the Family Law (Scotland) Act 1985 as a solution, but it is not a case simply of abandoning the present process of financial provision in the law of England and Wales and embracing that of another jurisdiction. There will be a great deal more than that to do. Therefore, to set a fixed period for review is not, I suspect, helpful, because we are going to have to produce very robust recommendations and proposals that will pass in this House and the other place, and that will require detailed consideration and detailed evidence. I cannot say that such a process would be concluded within a year.

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[Lord Beecham]

Can the Minister respond to my request for the Government to look again at the issue of legal aid in matrimonial cases?

[Lord Keen of Elie]

The matter of legal aid is not within the scope of the Bill, and it is not the present intention to address it.

[Lord Farmer]

My Lords, I thank noble Lords for their contributions. I am saddened that mine was not welcomed more than it was, but at this stage I beg leave to withdraw my amendment.

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[Baroness Howe of Idlicote (CB)]

My Lords, the modest but important point of this amendment would be to permit a spouse who does not want to divorce to have that fact placed on the public record. As I explained at Second Reading, I am concerned that this Bill facilitates a significant shift in power from the respondent to the petitioner, without proper regard either for the best interests of the respondent or any children involved.

This Bill as defined is a petitioner’s charter. Under it, the departing spouse will be able to apply for divorce without citing any reason and will get their divorce in six months. The other party to the marriage will not be able to do anything about it. They will find themselves on a high-speed conveyor belt to divorce with no way of slowing it down, no opportunity to contest, no way to seek justice and not even a reasonable period to prepare themselves for life after the marriage ends.

New subsection (3) in Clause 1 makes it clear that the court cannot seek to examine or verify the departing spouse’s assertion that the marriage has broken down irretrievably. The other spouse may think it is retrievable —and may be right—but under the Bill their option must be ignored completely by the court. Like many couples who contemplate divorce, the right kind of counselling advice may get them through their current difficulties and they might emerge with their relationship strengthened and their understanding deepened.

I suspect many noble Lords will know of those who have experienced such times, but this Bill totally disempowers spouses trying to save their marriages. For some in such circumstances—perhaps for reasons of faith or other personal reasons—being able to record that it was not they but their spouse who sought divorce will be important mentally, emotionally and perhaps even spiritually, but the Bill allows no recognition that it was their spouse who walked away, no acknowledgement of the wrong the innocent party has suffered.

A fundamentally different approach to the respondent is required and I hope that the Government will register the concerns that I have set out today and at Second Reading in this regard. I do not really regard this modest amendment as a satisfactory solution to the problem but it is a way of drawing attention to it. People in such a situation should at least be able to have a line on the divorce order to say that they did not consent to the divorce. If you are stripping people of the right to contest a divorce or get the justice of their situation recognised, this is the least we can do. I beg to move.

[Lord Keen of Elie]

My Lords, the Bill introduces the new option of both parties to a marriage making a joint application for divorce, which will allow them to approach divorce on the basis of a mutually agreed decision to bring a legal end to their marriage.

Consent in the context of divorce is a sensitive issue and I appreciate that it is unfortunate when one party does not wish to become divorced. The changes within this Bill rightly recognise that marriage is a voluntary union of two people who both wish to be with each other and it is therefore a marriage, not a divorce, that requires consent. The current court decree made under the existing law does not record whether or not the divorce has been contested, and the present concern may proceed upon a misapprehension that being a respondent to a divorce means accepting the blame for the breakdown of the marriage. That is not the case. The existing legal process seeks to determine only that a decree of divorce can be granted following the irretrievable breakdown of the marriage.

The law itself does not—indeed cannot—say who, if anyone, was to blame for that breakdown. It would not be helpful to allow the respondent to come forward in circumstances where they were content to be divorced but wanted to make clear their views about the cause of the breakdown. That would not assist. Indeed, it could provide the foundation for greater disharmony than would otherwise be the case if we were to maintain the present provisions of the Bill.

Giving a married couple the choice to make a joint application strikes the appropriate balance in these circumstances, and I invite the noble Baroness to withdraw her amendment.

[Baroness Howe of Idlicote]

My Lords, I am grateful to the Minister for what he has said. It is a probing amendment and has afforded me an opportunity to make an important point about speaking up for the respondent. I will reflect on the Minister’s response but, for the moment, I beg leave to withdraw my amendment.

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[Lord Keen of Elie]

My Lords, I begin with the amendment moved by my noble friend Lord Farmer. The requirement sought within the amendment to report annually on the number of divorce applications is unnecessary, as this data is already publicly available and published in the Family Court Statistics Quarterly.

The amendment also seeks a requirement to gather data on the sex of applicants for divorce. This is also unnecessary, as official statistics already break down the number of divorces per year by the gender of the applicant. In addition, the amendment seeks a requirement to collect data on the income of applicants. However, such data would be unduly onerous for the courts service to collect and, more so, unduly intrusive for the applicants to supply.

The amendment also seeks a requirement to report on the number of divorcing couples who seek relationship counselling during the divorce process alongside relevant demographic information. Such information could not be provided without forcing divorcing couples to declare it, thus introducing an unnecessary burden at what is already a difficult time for them. The choice to seek such counselling during the divorce process would be a personal one for those involved.

In summary, as much of the information referenced in this amendment is already publicly available, the requirement to report on it would be unnecessary. As regards the other kinds of information referenced by the amendment, they would be not only onerous to collect but raise very real issues around what is appropriate from the point of view of demand placed upon applicants for the divorce process. I therefore respectfully invite the noble Lord to withdraw that amendment.

I turn to Amendment 19A. The noble Lord, Lord McColl of Dulwich, is persuaded that marriage brings many social benefits. The Government agree. However, if a marriage is broken down irretrievably, there is no virtue for the family involved or society at large in it continuing. This amendment would mandate an annual report to Parliament, which I presume the noble Lord, Lord McColl, intends to complement the data sought by the noble Lord, Lord Farmer, in Amendment 19. However, it is not clear how the survey would operate or exactly what it would seek to demonstrate beyond, perhaps, interest in the married couple’s allowance.

Divorce is something in which society rightly takes an interest, but it is also a deeply personal and often distressing matter for the individuals involved. While I respect the courtesy of the noble Lord, Lord McColl, in proposing that participation in his survey would be voluntary and anonymous, the Government believe that such an invitation would be unnecessarily intrusive in any event. At worst, many of those questioned might feel that they were being asked to justify the state of the ending of the marriage, which strikes against the whole intention of the reform, for which it would appear to me that wide support has already been demonstrated in the House.

There is also an issue of the point at which the survey would be conducted. People’s perceptions of the divorce process will change between the time that they make an application and secure the divorce—or some time after, when they have gone through the process and been able to address it with the benefit of hindsight. The Government believe that this amendment would reintroduce an element of conflict into the divorce process. It would certainly be intrusive for those engaged in the divorce application. In these circumstances, we would not be prepared to accept it, so I invite the noble Lord not to press it.

[Lord Farmer]

My Lords, I am again saddened at the response from my noble friend the Minister. I may have misunderstood something but, to my knowledge, my amendment did not seek to find out any financial information. This report was to be put before Parliament so that it could respond to this Bill—the unilateral or no-fault divorce Bill—when it becomes law.

It is quite a big Bill on marriage to come through Parliament and become law. It is very important to me that Parliament can respond to the response to the Bill shown in marriages. How many people are getting divorced? Is it more? How many children are involved? What sort of support services are involved? Is there marriage counselling? There are all those things. It is important for both Houses of Parliament to look back and say, “Is this good? Is it working as we intended?” I am sure that my noble friend the Minister is right that this information is available here, there and everywhere. However, we want it brought back to us in one body related to this Bill.

Therefore, I am saddened at that response. Obviously, I will go no further on this occasion but this may come back on Report. In the meantime, I beg leave to withdraw my amendment.

Divorce, Dissolution and Separation Bill [HL]

Lord Keen of Elie Excerpts

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

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I thank my noble friend Lord McColl of Dulwich and other noble Lords for their contributions to the debate. As my noble friend observed, the amendment would keep the existing ground of irretrievable breakdown at the start of the application only where the application was made by both spouses. Where the application was made by only one party, it would remove the ground of irretrievable breakdown, which has stood for 50 years, in favour of the novel concept of a ground that may or may not be the case.

I am aware that there has been a narrative of the divorce application coming as a shock to the respondent, but, as the noble and learned Baroness, Lady Butler-Sloss, observed in Committee, and repeated this afternoon,

“the evidence from the research is that the majority of people know perfectly well when a marriage has irretrievably broken down.”—[Official Report, 3/3/20; col. 532.]

They know when it has come to an end. The proposed amendment would hinder, not enhance, the process of divorce. Indeed, my noble and learned friend, Lord Mackay of Clashfern, observed in Committee that

“once you have applied, you have carried out the intent.”—[Official Report, 3/3/20; col. 535.]

That point was reflected in a number of observations made by the noble and learned Baroness this afternoon.

The Government remain firmly of the view that an application for divorce is precisely that: an application seeking the legal dissolution of the marriage by the court because it has broken down irretrievably. A divorce application cannot be a notice to the other party that there may be marital difficulties. That is not a proper use of the court process. The legal process of divorce is not a remedy for marital discord but a means to dissolve the legal ties at the end of a marriage. As I observed in response to the amendment to similar effect tabled by my noble friend Lord McColl in Committee, such an amendment would have the potentially perverse effect of encouraging speculative applications. These are not effects that the Government wish in any way to encourage.

The reality is that under the existing law, which allows only sole applications, the application is made on the ground of irretrievable breakdown of the marriage right at the start, and well before the court takes account of the evidence for fault or separation. There is no reason to change that. I accept that my noble friend Lord McColl wishes to allow for reconciliation where one spouse wishes to divorce and perhaps the other does not, but the Government’s conclusion is that to amend the law in this way would not achieve his purpose and would in fact send entirely the wrong signals to divorcing couples. It is in these circumstances that I invite my noble friend to withdraw his amendment.

[Lord McColl of Dulwich]

My Lords, I thank everyone who has taken part in the debate. I have great respect for all of them. I have enormous respect for the noble and learned Baroness, Lady Butler-Sloss—we have known each other for more than 70 years, so it is quite easy to. I thank everyone for taking part. I hear what the Minister said. I think that it will be taken up in another place with some enthusiasm. I beg leave to withdraw my amendment.

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[Baroness Shackleton of Belgravia]

My Lords, I wish to speak against the amendment. There is a practicality that is overlooked here, and that is the question of living separate and apart. It is not feasible financially or possible, particularly with children, for one party to up sticks and leave the matrimonial home; often this means returning to their parents and different schooling. It is just not viable.

The real problem with divorce is that it is now socially acceptable; there is no stigma on divorce. I believe passionately in marriage. I am also a patron of the Marriage Foundation, which supports this measure. In an earlier speech, my noble friend referred to the elite readers of the Times running a campaign to support the Bill. It was actually spearheaded by Sir Paul Coleridge, who is the head of the Marriage Foundation, because he believes the Bill is pro-marriage. It stops the agony when one party needs to exit a marriage. The amendment would effectively wreck a Bill that most practising lawyers support.

I will add that the very rich have something in common with the very poor: they are the least affected by divorce. So the people at the bottom of the scale are going to be no more inhibited from getting a divorce than those at the top.

[Lord Keen of Elie]

My Lords, I thank my noble friend Lord Farmer and other noble Lords for their contributions to the debate. I will speak to Amendment 2 and the other amendments in the group: 5A, 6, 6A, 7, 8, 9, 11 and 12. These amendments seek to retain the requirement on the court to inquire into any facts alleged by the applicant or indeed the respondent, and to be satisfied as to the facts alleged before holding that a marriage or civil partnership has broken down irretrievably. The exception would be that it would retain the approach under the Bill for joint applications.

With the greatest of respect, these amendments would drive a coach and horses through the Government’s measured and progressive Bill; the Government cannot accept them. They seek to maintain the status quo and deny any meaningful reform of the law—reform that is long overdue and which commands broad support in both Houses and beyond. Removing the use of blame in the legal process of divorce, dissolution and separation is a key objective of the Government. We know from the evidence that incentivising a spouse to make allegations about the other spouse at the outset of the legal process can simply worsen conflict. That conflict can then play out not only during the legal process of divorce but in any linked proceedings about financial matters or children.

In Committee, my noble friend said that much weight has been put on the evidence from research by the University of Exeter, funded by the Nuffield Foundation. He referred to the Finding Fault? study as

“a piece of grey literature … that … has not been peer reviewed.”—[Official Report, 3/3/2020; col. 553.]

and said that the reliance of the Government and, indeed, noble Lords, on this research was in his view surprising. He further noted that it was based on one study involving 81 interviews and an analysis of 300 divorces.

I am bound to say that the Government and many others find the evidence from this important research compelling. The Finding Fault? project, led by Professor Trinder, was peer-reviewed at application stage and scrutinised throughout by an expert advisory group, and the final report was reviewed by a senior academic and two members of the Nuffield research team. It has since been widely cited in academic family law textbooks. Indeed, I note that it has been referred to with approval by those with considerable experience in this area of the law, including my noble friend Lady Shackleton and the noble and learned Baroness, Lady Butler-Sloss.

I agree that that research has been influential. Its messages—that the current law increases conflict, encourages dishonesty and undermines the aims of the family justice system—are consistent with a body of evidence going back about 40 years, not least the Law Commission report of 1990, which led to the enactment, although not the implementation, of the Family Law Act 1996. The Finding Fault? study shows that the problems with fault-based divorce persist today. We cannot ignore that message.

Although the survey component of the study did find evidence of public support for retaining fault as part of the divorce law, this was not universal and indeed was inconsistent with other beliefs expressed by respondents—for example, that it is unfair to blame just one spouse for a marriage breakdown. The survey was only one component of the research, which also included interviews with people going through divorce, focus groups with lawyers, observation of the court scrutiny process, analysis of divorce court files and comparative analysis in other countries.

I appreciate and acknowledge the conviction of my noble friend and those who support his views that this Bill is bad for marriage, families and society, but I profoundly disagree. These reforms are measured, progressive and necessary. They are formulated on evidence that the current law works to fuel conflict, which is damaging for couples, parents and children. The law does not do what people think it does. It does not keep a party to a marriage in a relationship against their will. Marriage is a consensual union between two people. Unilateral divorce has been available under the current law for over 40 years. This Bill seeks to remove elements of the current law that can drive conflict. It does not and cannot make the painful decision to divorce any easier.

In light of this, I simply cannot agree with the terms of the amendment. We have, of course, listened to the concerns expressed about some provisions in the Bill. At this early stage, I would note this: I have committed the Government to work with the Family Procedure Rule Committee to address the issue of timely service on the respondent of the notice of proceedings by the applicant party. I have also tabled amendments to the Bill to make the delegated powers in Clauses 1 and 4, to amend the 20-week and six-week minimum periods under the Bill, subject to the affirmative resolution procedure, which will provide greater scrutiny of the measures. Finally, I have given a commitment that the Government will use the opportunity of amending court processes, including the online divorce service, to improve information about, and signposting to, important services such as marriage counselling and mediation. With those commitments in mind, I urge noble Lords to support the Bill in its present form and invite my noble friend to withdraw his amendment.

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[Baroness Burt of Solihull]

My Lords, I sympathise very strongly with this amendment, which as we have discussed deals with the vexed question of service. There is a balance to be struck where there is one applicant for divorce—in other words, it is not a joint application—between ensuring that the respondent has received adequate notification and that they are not able to frustrate the process by claiming not to have received notice. I am sure the House is very grateful to the noble Baroness, Lady Shackleton, for her explanation of how that can be overcome. In meetings with the Minister, and in this Chamber, he has given assurances that the Family Division would make rules that strike the balance between sufficient notification and attempts to frustrate the process.

We accept the Government’s position that the arrangements for service are best left to the Family Procedure Rule Committee. We also accept that, increasingly, applications will be made online, in which case service is usually effected by the court. But we must also agree with the Government that provisions must be made for paper applications as well as online applications.

It is important that the respondent must be made aware of the proceedings as early as possible. The rules need to provide that a respondent cannot frustrate proceedings by trying to evade service, or by failing to acknowledge service. I would greatly appreciate further clarification from the Minister, and further assurances that this amendment will not be necessary.

[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.

[Baroness Meyer]

My Lords, I am grateful to the Minister for responding to these amendments. Of course, I am very disappointed. As he made clear in Committee, the Family Procedure Rule Committee can be invited only to consider the matter. It might decide not to act, or the matter may get lost in the myriad other changes following this Bill. I recognise that there is little appetite for a vote, so I beg leave to withdraw my amendment but very much hope that our colleagues in the other place will take a view on this before the Bill completes its passage through Parliament.

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Moved by

[Lord Keen of Elie]

4: Clause 1, page 2, line 20, leave out from “subsection (6)” to “House” in line 21 and insert “may not be made unless a draft of the instrument has been laid before and approved by a resolution of each”

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[Lord Keen of Elie]

My Lords, in moving Amendment 4, I shall speak also to Amendment 10 in my name. Essentially, Clause 1 provides for a minimum period of 20 weeks between the start of proceedings and when the court can be asked to make a conditional order of divorce. It further provides a delegated power to enable the Government, by statutory instrument, to shorten or lengthen this period, as well as the existing minimum period of six weeks, which will apply between the conditional order and the final order of divorce. Clause 4 similarly makes provision for the Lord Chancellor to change the prescribed periods in respect of civil partnership dissolution.

The Delegated Powers and Regulatory Reform Committee questioned the purpose of these Henry VIII powers and recommended their omission from the Bill, or alternatively that they be made subject to the affirmative resolution procedure. At an earlier stage, the noble Baronesses, Lady Meacher and Lady Chakrabarti, spoke of their concern about the lack of clarity surrounding the circumstances in which the Government would seek to use these delegated powers. We have listened to those concerns; it is in the light of this that we move an amendment that will make these powers subject to the affirmative resolution procedure. I hope this reassures noble Lords that there will be proper scrutiny of these powers in the event that they are ever sought to be used. I beg to move.

[Lord McNicol of West Kilbride (Lab)]

My Lords, as the Minister has just outlined, these amendments will use the Lord Chancellor’s Henry VIII powers to change the period of time between the commencement of proceedings and the conditional order, as well as between the conditional order and the final order, subject to the affirmative resolution procedure. We are very pleased on this side of the House that the Government have listened to the debates and discussions earlier and moved forward, so we welcome these government amendments. They have been laid in response to the Committee amendments previously tabled by my colleague and noble friend Lady Chakrabarti, who unfortunately cannot be with us for the debate today. We warmly support the Bill. I have not spoken on previous amendments as the contributions—especially those from the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Shackleton—have been eloquent and insightful, not to mention evidence-based, which is always nice to hear in your Lordships’ House.

I take this opportunity to remind your Lordships’ House again of the consequences of the decade-long underfunding of our justice system and how these cuts have affected family law in many ways, especially since legal aid was removed from divorce cases. This was, I believe, a terrible mistake. We are in many cases failing to protect abandoned people and children. The lack of access to lawyers results in inherently inadequate allocation of resources in the event of separation and divorce. As my noble friend Lady Chakrabarti recently highlighted, it seems perverse that, if the state seeks to take your children away, you have access to a lawyer but, if your ex-partner is depriving you of that contact, you do not have that support.

We can try to craft the most perfect divorce legislation but people must have access to early and consistent advice and representation. We urge the Minister to reflect further on the availability of legal aid.

I want to pick up on one comment made by the noble and learned Baroness, Lady Butler-Sloss, on an earlier amendment. She said that if amendments were passed to this excellent Bill that were not government amendments, it could hinder its progress. I hope that noble Lords will heed those words. On a personal note, the noble Lord, Lord Farmer, commented that the decision to divorce should be a considered one. Like many noble Lords here present, I am fortunate: I have been happily married for the last 25 years. But among the individuals who I have come across and had conversations with about divorce, I know that none of them took the decision to divorce in an unconsidered way. So, happily, we support the amendment.

[Lord Keen of Elie]

I note that the noble Lord supports the amendment and I hear what he says with regard to ancillary matters.

Amendment 4 agreed.

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[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I support Amendments 5 and 13. I believe that they bring before the House necessary advice and information that can be valuable to those considering divorce and its implications.

The reality of living in the real world today is that many of the foundational principles of a strong society are being rocked. We are seeing those who look upon marriage as being a lifelong contract before God being frowned upon, just the same as the life of the unborn child—they have no voice and no right to be heard. However, I believe that children ought to be given greater consideration. We are told, in the light of the virus that is striking fear into the hearts of many people across the world tonight, that we should remember to be considerate of others. It is not all about us. It is not all about me. Those considering divorce also need to think about that: “It is not all about me; it is also about my children.” The noble and learned Baroness, Lady Butler-Sloss, reminded us that children have a right to know—they are not just “packages”.

Let us take as an example a child in a home, where one member of that family unit suddenly receives the request for a quick divorce. They had no knowledge that it was happening, but they are also not told the fault; you are not allowed to know the fault or there is no reason for you to be told it—it is just a quickie divorce. What does the child believe? It is faced with “My family has been torn apart, but why is Daddy leaving the home?” or “Why is Mummy stepping out of the marriage?” Have they a right to be told? Is that to be brought out? We talk about anger; what will they feel when a parent just walks away in a matter of months? Anger, guilt, frustration—the noble and learned Baroness, Lady Butler-Sloss, mentioned those things. In actual fact the children cannot feel them, but they do not know why their family unit is no longer together, because they do not necessarily have to be given a reason why the family is being torn apart.

It is vital that we realise that yes, irretrievable breakdown is a reality, and we know that in fact there comes a situation where two people cannot live together and that their staying together would be worse for the children. However, we should provide every opportunity and every piece of information and advice to try to keep families together in a society that is already broken.

[Lord Keen of Elie]

My Lords, I thank the noble Baroness, Lady Howe, the noble and right reverend Lord, Lord Harries, and other noble Lords for their contributions to this debate.

I recognise, as does the noble Baroness, Lady Howe, that there is concern about the impact of divorce on children, both at the time of the divorce and in the future. No one pretends that it will ever be easy on children, even where the relationship between the parents has been traumatising to them in the course of the marriage. The noble Baroness’s amendment would commit the Government to summarise academic research about

“the impact of divorce on different aspects of a child’s wellbeing.”

Academic research will grow over time, and any concise statement of the main findings will be fluid and continually subject to review. Indeed, the findings of any academic research would then be questioned as to what evidence there was supporting it, what the nature of any cohort examined was, and whether the study was, for example, longitudinal. Any number of questions would arise in that context. However, even if a statement of the main findings of such research could be achieved concisely, we are not persuaded that pointing to academic research will affect people’s decision to divorce, which must be the ultimate intent of the amendment. For most people, the application to divorce will come after much reflection about what the future will hold without the other spouse, and it will include consideration of the children as well. We therefore do not consider it appropriate to accept this amendment, and I invite the noble Baroness to withdraw it.

I turn to Amendment 13, tabled by the noble and right reverend Lord, Lord Harries. He referred to this at an earlier stage of the Bill. I share, and understand, the spirit of the concerns he has expressed. It is right that all divorcing couples have opportunities to find out about support services and mediation. Where the Government’s view differs from the noble and right reverend Lord’s is that we see this as a practical, rather than a legislative, issue. I am happy to reassure noble Lords, and the noble Baroness, Lady Burt, that we will work hard to see what more can be done to improve the signposting of these services and information about them. That will require careful consideration, all the time thinking about the best places for couples to access the relevant information and to support them in making informed decisions once they have it. In particular, we will review the content on the GOV.UK website and check the ease with which people can navigate their way to services in their local areas. That website will likely be the first port of call for many people contemplating divorce, and at the point before they have decided even to seek advice from a lawyer. The information on GOV.UK therefore has the potential to be accessed before marital breakdown is, in a sense, irretrievable.

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[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.

[Baroness Howe of Idlicote]

My Lords, I thank all noble Lords who have taken part in this debate. I am again pleased that we have had such a focused discussion on the implications of this legislation for children. We had an important one in Committee, but this was more widely spread. I am afraid that I am not particularly reassured by the response of the Minister—no doubt he would expect this—who does not even appear to think that this amendment is relevant to the Bill.

I very much hope that this debate will be read by Members of another place and that, when this Bill goes to their House, they will apply themselves to the task of seeking to factor into the divorce process a better consideration of the best interests of children than does the current draft. This is an important challenge if the Government are to have any chance of realising their objective of fixing broken Britain. I beg leave to withdraw my amendment.

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[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.

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In this context, the Government’s failure to use Section 22 of the Family Law Act is deeply unfortunate. They should have allocated grants through Section 22 to really seek to understand the opportunities for greater reconciliation in a no-fault system and then applied Section 22 money to help exploit those new opportunities. I had hoped that the Section 22 amendment would have been brought back on Report. I very much hope that it is pursued in another place. I very much hope that the Government will take cognisance of what has been said here today.

[Lord Keen of Elie]

I thank all noble Lords for their contributions to this part of the debate. I will speak to Amendments 15, 16 and 17.

Amendment 15 was moved by the noble Baroness, Lady Howe, and would require the Secretary of State to publish a report on the impact of divorce or dissolution on children of a marriage or civil partnership ending

“when there is either no conflict”

as it is termed, “or low conflict”, as it is termed, “between the parties.”

It would require the publication of a report laid before Parliament on the impact on children of divorce or dissolution but it does not define what is meant in this context by “low conflict” and, for that matter, it does not define what would be meant by “no conflict” for this purpose. It is also not clear whether that could be achieved by pointing to existing academic research or whether the Government would need to conduct their own research, questioning parents during and after divorce about the nature of their relationship, or indeed questioning children, presumably only if of a suitable age, about their feelings and evaluating any impact on their life chances long into the future.

The very indefinite nature of such a report means that people who, on publication, would have wanted the report to have researched in one direction might find that it simply does not do so and does not assist them in that regard. Therefore, with great respect, we do not agree that the amendment would serve any useful purpose. It would not deter people from divorcing. Even if they read the report, they would be left considering their situation and that of their children, not that of a group of people who were the subject of research. For all those reasons, I invite the noble Baroness to withdraw her amendment,.

Amendment 16, tabled by my noble friend Lord Farmer, would require statistical reporting every year beyond that which the Ministry of Justice currently publishes. It would not require what was referred to in Committee as the “demographics” of the parties in geographic locations, but it would still require the income of spouses and civil partners for each divorce or dissolution application, as explicitly stated in the amendment.

As I observed in Committee, the number of divorce applications, along with the gender of applicants, is already publicly available and is published under the Family Court Statistics Quarterly. However, with regard to income, we continue to be of the firm view that, aside from the burden on the courts of collecting that data about income, it would be an unwarranted intrusion on application of what is, in any event, a difficult time. We simply do not consider that there is a case to compel applicants, or indeed respondents, to supply such information. Indeed, it could mislead people into thinking that the court considered income relevant to the grant of the divorce.

The court will only properly require information about income in separate proceedings for financial provision orders, and we see no reason to draw that into the divorce process, which, if I may say so, is the mechanical process of ending the marriage. It will also only properly require information about children in separate proceedings for children’s orders, and, as I have said before, we do not consider that that should be drawn into the process of ending the marriage. Therefore, again, I invite my noble friend not to press that amendment.

I turn to Amendment 17, in the name of my noble friend Lord McColl of Dulwich. The Government are clear that divorce must be a last resort, and that is why we are retaining the requirement for people to confirm the intention to divorce at two further stages beyond the original application. It is also why we are building in a minimum of 20 weeks before people can apply for the conditional order—the first pronouncement from the court that the marriage is capable of being dissolved.

Some have told us that it is at that point in the existing process—the decree from the court—that the reality of divorce sinks in. However, evidence points to the prospect of reconciliation being very low. No divorce process should be automatic but it is simply the means to bring to an end a marriage that is already no longer functional after attempts to revive it have essentially been exhausted. Under the current process, about three in five people seeking divorce make allegations about their spouse’s behaviour or adultery. Having to give and receive allegations of an intensely personal nature can only sever the relationship further. I do not see that the current process is particularly conducive to repairing the relationship, and at such a late stage.

This amendment would result in a report which I suspect would satisfy no one. Some people may want to see evidence for whether more or fewer couples reconcile after our reforms are implemented, but that will mean waiting years for the report so that any longer-term trend can be assessed. Other people may want to see comparisons between the existing divorce processes internationally, but they differ from jurisdiction to jurisdiction, whether or not they are based on fault, and of course some jurisdictions have a hybrid process. The report envisaged in this amendment would not put an end to differing views about the evidence. I would also note that there is a difference between what is termed “scope for reconciliation”—that is, the theoretical possibility—and whether couples actually reconcile.

The Government have taken account of peer-reviewed academic sources in developing the proposals in this Bill, as has been noted by some noble Lords, but we are not just beholden to their conclusions. We have also taken into account what was said when we consulted on our proposals. The matter of this amendment is one for academic study and I fear that it would be fruitless for the Government to undertake it. For these reasons, I invite noble Lords not to press their amendments in this group.