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.

--- Later in debate ---

[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.