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.