Divorce, Dissolution and Separation Bill [HL]

Lord McColl of Dulwich Excerpts

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

Moved by

[Lord McColl of Dulwich]

1: Clause 1, page 1, leave out lines 6 to 15 and insert—
“(1) Subject to subsections (1) and (2), either or both parties to a marriage may apply to the court to initiate the process for an order (a “divorce order”).(2) In the case of an application by both parties to the marriage under subsection (1)— (a) the application must be accompanied by a statement by the applicants that the marriage has broken down irretrievably, and(b) the court must—(i) take the statement given under subsection (2)(a) to be conclusive evidence that the marriage has broken down irretrievably, and(ii) make a divorce order which will dissolve the marriage.(3) In the case of an application under subsection (1) that is to proceed as an application by one party to the marriage only—(a) an application must be accompanied by an initial statement by the applicant of their intention to seek a conditional order on the basis that the marriage may have broken down;(b) a confirmation by the applicant under subsection (5)(a) that they wish the application to continue must be accompanied by a statement that the marriage has broken down irretrievably; and(c) the court dealing with an application made by one party under this subsection and subsection (5)(a) must—(i) take the statement given under subsection (3)(b) to be conclusive evidence that the marriage has broken down irretrievably, and(ii) make a divorce order which will dissolve the marriage.”Member’s explanatory statement
This amendment sets out different steps in the divorce process, depending upon whether the application is a joint application by both parties to the marriage, or an application by only one party.

[Lord McColl of Dulwich (Con)]

My Lords, Amendment 1 is a redrafted form of the amendment that I brought before the House in Committee. I have returned to this issue because, as I read and reflected on the Committee debate, I was not at all assured that my concerns had been addressed. In coming back to this issue, I make it clear that I will not be dividing the House on this amendment, but I hope this debate will provide an opportunity for the Minister to address my concerns. I put on record my sincere thanks to him for the useful meeting that we had yesterday to discuss this and my other amendment.

I will begin by defining the problems that the amendment is designed to address and will then explain how it deals with them. I welcome that the Bill allows people to make joint applications for divorce for the first time. For these couples, the divorce will come as no surprise. However, the negative impact of the Bill on respondents where there is no fault is profound.

Under the current system, in the absence of fault, the couple must have lived apart for two to five years before proceeding to divorce. Clearly, on this basis no one would claim to be surprised at the divorce application. In the case of the two-year separation, the divorce application must be by mutual consent, and anyone who claims to be shocked at receiving divorce papers after five years’ separation is not credible. Under the Bill, however, all this will change for the respondent in this no-fault context. One day, they could be thinking that their marriage is all right, and the next day they could be faced with a declaration of irretrievable breakdown and the fact that they could be divorced within six months or even sooner if they are not notified at the start of the reflection period. I am particularly concerned about the greater insecurity that this will inevitably bring to many marriages, and the attendant psychological cost. In case anyone was to think that this might be a very small number, I remind the House that the circumstances I am describing —namely, the two to five-year separation period—are used in around two-fifths of divorce petitions each year. That is around 40,000 divorces: 40,000 respondents who today must receive some warning, but who under the Bill need receive no warning at all.

There is all the difference in the world between a divorce where both parties agree and seek it together, and a divorce initiated by one party only, perhaps with the other party not even knowing. The Bill, however, deals with the two largely as if they are the same. That does not seem just or fair. My amendment seeks to address this presenting problem by requiring that where a divorce application is not made jointly by mutual agreement, a different approach is adopted. I propose a change to the wording in new Clause 1(1), which currently says that the applicant is applying for a divorce on the grounds of irretrievable breakdown. I suggest instead that new Clause 1(1) refers only to the applicants initiating the divorce proceedings.

I then suggest a two-track scenario. Where there is a joint application, the initial application includes a statement saying that the marriage has broken down irretrievably. Where the application is by one party only, the applicant is required to make two statements. The first, on applying for a divorce, would state that the applicant’s intention was to apply for a conditional order, which they would have to do under subsection (5), on the basis that the marriage may have broken down. The statement of irretrievable breakdown would then accompany the application for a conditional order 20 weeks after the first application if the petitioner wished to proceed to the next stage.

There are two main rationales for my amendment. First, it means that someone who wants to end the marriage cannot suddenly drop a bombshell on his or her spouse that their marriage—which she or he may have thought was all right—has actually irretrievably broken down. The first move the petitioner can make is a declaration that he intends to apply for a conditional order on the basis that he thinks the marriage may have broken down, not that it has already broken down irretrievably. This has the effect of requiring him to treat his spouse with greater respect, in the sense that the statement he makes to her is not one that says emphatically “It is all over” such that there are no grounds upon which she can respond and seek to save the marriage.

--- Later in debate ---

[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.

Amendment 1 withdrawn.

--- Later in debate ---

[Lord Farmer]

My Lords, I will speak to my Amendment 16. I have brought back this amendment on the need for an annual report on the impact of the Bill because I disagree with the Minister’s reasons for rejecting it in Committee.

As I said, we could have moved to a divorce system that more closely resembled that of Scotland, which has much to recommend it, given that it sees so few fault applications. However, the Government have chosen to undertake an uncharted course, to a system described as enabling possibly the fastest divorce in the world, certainly for recipients of an application. Therefore, it seems irresponsible not to keep very careful track of any changes in our divorce, dissolution and separation patterns which ensue from this very significant change, especially given the existing high rates of family breakdown in this country.

I mentioned in Committee that research on which the Government have relied to justify removing fault points to how this degrades the commitment of marriage. Professor Wolfers says that its benefits are reduced; therefore cohabitation, which is widely agreed to be a less stable relationship form, becomes more common. So this will, very likely, have a knock-on effect on the number of children who experience the breakdown of their parents’ relationship.

I disagree with the Minister that the requirement to report annually on the number of divorce applications, including by gender, is unnecessary, given that the data is already publicly available and published in the Family Court Statistics Quarterly. The point of reporting is to be accountable for changes in that data and to draw Parliament’s attention to it. If the Government are not convinced that the Act will have a detrimental effect on any of these patterns, they should have no qualms about reporting on it.

I also disagree that it would be unduly onerous for the courts service to collect income data, or unduly intrusive for the applicants to supply it. The collection of income data is easily achieved by including this in standard demographic data income bands, the completion of which would of course be voluntary. We are constantly told that data collection is important to the Government, to help understand why people make choices, and to help make forecasts for the future. Understanding how different income brackets are affected by a policy is therefore not unusual or shocking. It makes no sense to me that in this area the Government are so coy about asking people to give them this information.

In conclusion, there is an inconsistency in the Government’s approach to informing themselves when it comes to tracking the effects of this Bill, despite the heavy social costs of relationship failure and the ramifications across the whole of government. I encourage the Minister to see the constructive point of this amendment in helping the future outworking of this law.

[Lord McColl of Dulwich]

My Lords, I wish to speak to Amendment 17 in my name. It seeks to address some confusion that emerged during debate in Committee. I will not press this amendment to a vote but I hope that, as a result of this debate, we may gain greater clarity about the place for reconciliation during the divorce process.

We have heard very mixed messages from the Government on their commitment to reconciliation in the divorce process. On the one hand, there have been repeated statements of interest in promoting it. I have found no fewer than 30 occasions where the Government have said that promoting reconciliation during divorce is part of the policy intention behind these reforms.

I would like to highlight a few of these statements. The initial consultation document from September 2018 stated:

“The reformed law should have two objectives: to make sure that the decision to divorce continues to be a considered one, and that spouses have an opportunity to change course”.


The Government’s response to the consultation in April last year stated:

“Sometimes, a marriage will still be reparable at the point at which one spouse seeks the divorce … But the law can—and should—have a role in providing couples with an opportunity to reflect on that momentous decision and to pull back from the brink if they decide that reconciliation is achievable.”


At Second Reading of the Bill in the other place in June last year, the then Justice Minister stated:

“The Government believe that the need to confirm to the court that it may make the conditional order, and to apply to the court for the final order, means that a divorce or dissolution is never automatic and that the decision to divorce is a considered one, with opportunities for a change of heart right up to the last moment.”—[Official Report, Commons, 25/6/19; col. 580.]


This is consistent with the family impact test assessment, which suggests that one of the strengths of the new system is the increased scope that it will provide for reconciliation. It states:

“The current law works against reconciliation by incentivising (in order to get a divorce more quickly) a spouse to make allegations about the other spouse’s conduct which can create conflict … The current law also offers little opportunity for reflection and conciliation, as the initial decree of divorce can come only a matter of weeks after the divorce proceedings have started.”


It then says that the Government want to exploit the new opportunities for reconciliation under a no-fault system, saying:

“We want to create conditions for couples and parents to reconcile if they can”.


Yet despite these repeated statements in support of reconciliation, and the suggestion that the scope of reconciliation will be enhanced in the no-fault system, there is little or no evidence of a political will to exploit this. On the contrary, there have instead been contradictory statements that reconciliation is not possible once the divorce process has started. I was concerned that, in response to my amendment in Committee, the Minister replied:

“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.”—[Official Report, 3/3/20; col. 537.]


Later in the proceedings, he said:

“I understand the desire of noble Lords to see that the marriage relationship can be supported, but it has to be supported at the right time. That is not at the point of an application for divorce on the grounds of irretrievable breakdown, which is why we do not consider that the Bill is the right vehicle for tackling the wider issues that lead to relationship breakdown.”—[Official Report, 3/3/20; col. 565.]


There seems to be some conflict between these two sets of statements, so I am probing the Government’s intention. If one believes that reconciliation, once divorce begins, is so unlikely that it makes no sense to prioritise it, then the statements in the consultation, consultation response, press releases, family impact assessment and at previous readings of this Bill all seem misplaced.