Divorce, Dissolution and Separation Bill [HL]

Debate between Lord Keen of Elie and Lord McColl of Dulwich

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.

Divorce, Dissolution and Separation Bill [HL]

Debate between Lord Keen of Elie and Lord McColl of Dulwich

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

[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.