Divorce, Dissolution and Separation Bill [Lords]

Robert Buckland Excerpts

2nd reading & 2nd reading: House of Commons & Money resolution & Money resolution: House of Commons & Programme motion & Programme motion: House of Commons
Monday 8th June 2020 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Robert Buckland)]

I beg to move, That the Bill be now read a Second time.

Marriage will always be one of the most vital institutions in our society, but we also have to face the sad reality that marriages sometimes breakdown. No one sets out thinking that their marriage is going to end. No one wants their marriage to break down. None of us is therefore indifferent when a couple’s lifelong commitment has sadly deteriorated. It is a very sad circumstance, but I believe that the law should reduce conflict when it arises. Where divorce is inevitable, this Bill seeks to make the legal process less painful, less traumatic. It does not, and cannot, seek to make the decision to divorce any easier. The evidence is clear that the decision to divorce is not taken lightly or impetuously. Indeed, it is typically a protracted decision based on months, if not years, of painful and difficult experience and consideration. The sad reality is that it is often too late to save a marriage, once the legal process of divorce has started. Once that decision has been reached, the parties need to move forward constructively. The Bill focuses on that very legal process.

[Jim Shannon (Strangford) (DUP)]

My wife and I have been married for 33 years and my mum and dad and were married for almost 61 years. The sanctity of marriage is very important. Does the Minister not agree that more funding must be allocated to counselling services to provide trained help for those in marriage difficulties and to prioritise saving a marriage where there is still the will to do so but perhaps not the means to do so? The waiting list for free counselling with Relate stands at seven weeks in some areas of the country, and families cannot afford to pay for private counselling. Relate and counselling are so important in trying to save a marriage.

[Robert Buckland]

I am grateful to the hon. Gentleman. He cuts to one of the most important issues in the debate about divorce, and I absolutely agree with him on the merit of organisations such as Relate and the work that they do to support marriages that have run into difficulties. However, it is the sad experience that, by the time a decision to issue a divorce petition has been made, matters have gone beyond that, to a great extent—not in every case, but in my view, in the vast majority of cases.

The Government are working hard to support initiatives such as the troubled families programme and, in the last Budget, to invest more money into proper research into effective family hubs where work can be done to support families in conflict who are struggling and having difficulty keeping together. The work of the Department for Work and Pensions in the £39 million reducing parental conflict programme, even at this time of covid, is an example of the Government’s strong commitment to supporting families. We believe that the family is a vital component of what it takes to be a civilised society. It is the source of stability, safety, love and all those things that we should be cherishing as a society.

[Andrew Selous (South West Bedfordshire) (Con)]

We are in the final year of that £39 million, and there is no guarantee as to what will happen in the next financial year. Could the Lord Chancellor reassure us that he will be a doughty champion with the Treasury and at the Cabinet table to ensure that that programme is renewed, reinvigorated and properly funded?

[Robert Buckland]

I am grateful to my hon. Friend. I can make the assurance that I, in my position as Lord Chancellor, will do everything I can to reinforce the important messages about the values of family. As a Conservative, they are particularly important to me, but I know that Members of all parties in this House share those values and from their own experiences believe in the family.

I want to add this comment: it is because I believe in the family that I think these measures are the right approach. Some people might think that is contradictory, but I do not believe so, because I think it is our responsibility in the legal process to try to reduce conflict, because conflict leads to emotional difficulty. It can lead to damage. It can lead to serious consequences, not just for the adults in the relationship but, let us face it, the children, too. We owe it to them to minimise in our legal processes, rather than maximise, the damage that can be caused.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

One of the most important things for ensuring that families, when they do sadly break up, do so in an ordered way is an ordered financial process. We are one of the few countries in the world that I know about that does not have a process for pre and post-marital contracts. Does my right hon. and learned Friend not agree that this would have been the perfect opportunity to have brought in the wording that the Law Commission has already provided? It is sitting there and could be put into the Bill. Rather than leaving the courts to dictate the issue, this place should be dictating the issue. Will he consider that?

[Robert Buckland]

I am very grateful to my hon. Friend, who served for a considerable period in the Department I now have the honour of leading. He is right to talk about the financial consequences of breakdown. It is important to note the commitment made by my noble and learned Friend Lord Keen in the other place by way of a letter dated 16 March to Baroness Deech, which has now been placed in the Library of each House, that we will consider how a review of the law governing financial remedies provision on divorce may take place. I give him that undertaking.

[Sir John Hayes (South Holland and The Deepings) (Con)]

I am extremely grateful to my right hon. and learned Friend for giving way. The Law Commission also recommended that rather than reducing the time that people can get divorced within from two years to six months, it should be reduced to nine months. Given his willingness to concede on the previous point, will he at least look at that again?

[Robert Buckland]

I am very grateful to my right hon. Friend. I know that he, like me, is a doughty champion not only for the family, but the need to reduce conflict. I know that he makes his point passionately, but I would argue that the way in which this Bill is constructed makes the so-called quickie divorce a thing of the past. The minimum terms that we are talking about provide an equality of approach that will no longer discriminate in favour of those couples who perhaps have the means and the wherewithal to either separate and live separately or to employ the sort of lawyers who can, shall we say, get things done in a more expeditious way.

I stress to the right hon. Gentleman that the six-month term that has been naturally focused upon is a minimum. There will be divorces that take longer than that for reasons of complexity relating to each relationship. The point is that there will not be divorces that can take place in as quick a time as eight weeks, as is currently the case.

Reform of divorce law is supported not only by the lawyers, judges and mediators, but by the Marriage Foundation and, importantly, by evidence from academic research. It is evident that the law does not do what many people think it does. It cannot save a marriage that has broken down, nor can it determine who was responsible for that breakdown. Allegations made in a divorce petition by one spouse about the other’s conduct give no advantage in any linked proceedings about arrangements for children or financial provision for a spouse, yet the current law can perversely incentivise conflict. It requires an applicant for divorce or for the dissolution of a civil partnership to provide details to the court of the respondent’s unreasonable behaviour if their circumstances mean that they need to divorce before a two-year separation period. The incentive at the very start of the legal divorce process to attribute blame can only serve to antagonise parties at the most difficult time in their lives. Moreover, the court in practice has limited means by which to inquire into such alleged behaviour and must often accept what is said by one spouse at face value. This can be a source of real resentment for the other spouse.

[Mr Toby Perkins (Chesterfield) (Lab)]

I congratulate the Secretary of State on what he has said so far. This is an important Bill that we look forward to supporting. Does he agree that this legislation is needed all the more because of the huge backlog in the court system right now, and that, alongside the important measures that he is introducing, we really need some Government heft to support our legal system and clear away that backlog?

[Robert Buckland]

The hon. Gentleman is right to talk about the caseload, which covid has exacerbated. He will be reassured to know that the senior judiciary and Her Majesty’s Courts and Tribunals Service are working every day to expand the current capacity, to open more courts as we move away from the peak, and to look at alternative capacity in order to get as many cases running as possible and to deal with what must be an agonising wait for many families and victims. I would say—and I know that the hon. Gentleman would agree—that this Bill is not about the immediate crisis. It has been brought forward after long consideration, and has been dealt with very carefully in the other place. Indeed, it went through most of its stages in this House during the last Parliament, and represents an important milestone in the evolution of our approach to the sensitive and difficult subject of divorce.

I was talking about the perverse position whereby the current attribution of blame does not benefit anyone or serve society’s wider interests. Instead, it can create long-lasting and often bitter resentment at the outset, precisely at a time when couples need to work together to agree arrangements for their children and their finances. Furthermore, the simplistic allocation of blame to meet a legal threshold does not really reflect the reality that responsibility for a marriage breakdown may be shared. Marriages sadly end for a multitude of reasons. Existing law does not reflect that reality, and the truth is that we have stretched the law for a number of years in order to set out behaviour particulars sufficient to satisfy the court and obtain a divorce—a form described by the former president of the family division, Sir James Munby, as intellectual dishonesty.

[Andrew Griffith (Arundel and South Downs) (Con)]

I accept the immense good faith with which my right hon. and learned Friend brings this Bill to the House, but does he share my concern, sadness and pain for the grandparents involved in any situation where there is family separation?

[Robert Buckland]

My hon. Friend is absolutely right to remember the wider family concerns, and the difficult position that grandparents—often on both sides of the divide—face when it comes to issues of contact and the welfare of much-loved grandchildren. He is right to remind us that that is a real dimension of the situation.

[Steve Brine (Winchester) (Con)]

rose—

[Mr Perkins]

rose—

[Robert Buckland]

I will give way to my hon. Friend the Member for Winchester (Steve Brine) first, but I will come back to the hon. Member for Chesterfield (Mr Perkins).

[Steve Brine]

I have to be honest with the Lord Chancellor: I am troubled by his Bill, but I am not yet entirely sure why and I am listening for him to give me a reason. It almost feels as if we are trying to prevent something from pulling apart by seeking to bind it together even tighter—almost “What the law has bound together let no one put asunder.” Does he agrees that, as a society, we should invest more heavily in relationships, in preparation for marriage and in conflict resolution? I remember myself and Mrs Brine doing that, which is why we are so happily married—17 years next week. If that were the case, maybe fewer relationships would fail.

[Robert Buckland]

My hon. Friend makes the point extremely eloquently that all of us are concerned about the institution of marriage. Those of us who value it and who are part of it can see its benefits, but we are concerned to see a decline in its use—a decline in committed relationships. This Bill will not solve those problems. It will not stop those problems. This is a Bill about the legal process. I do not pretend that, through this legislation, we can solve some of the sociological issues that he raises, but he is right to look through the telescope the right way. My worry is that, however well-intentioned those who are properly concerned about the details of the Bill might be, we are in danger of looking through the telescope the wrong way if we focus our attention on this process, as opposed to what might happen at the beginning.

[Mr Perkins]

The Secretary of State is right about the conflict caused by the current system. Does he agree that the old adage is true, that it is a good man who can keep a wife happy, but it is an amazing man who can keep an ex-wife happy?

[Robert Buckland]

I could not put it better myself, and the hon. Gentleman makes his point with characteristic force.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Will my right hon. and learned Friend give way?

[Robert Buckland]

I give way to the Chairman of the Justice Committee.

[Sir Robert Neill]

I am grateful to the Lord Chancellor, and I support the Bill. Is it not an important argument, which I hope my hon. Friend the Member for Winchester (Steve Brine) will take on board, that it is clear from research by practitioners and academics that the requirement to allege fault does nothing to protect the institution of marriage or alter the divorce rate or the breakdown rate? That is exactly why it is right to look through the right end of the telescope, not the wrong one.

[Robert Buckland]

My hon. Friend will recall his Court of Appeal appearances, where the tribunal might have said, “Mr Neill, that’s your best point. You needn’t go any further.” He makes an important point on the issue of blame; it does not help anybody when it comes to these issues.

The clear purpose of the Bill is to reduce conflict, because conflict does not help when it comes to the legal end of a marriage. That can only be to the advantage of divorcing couples and their children, because children’s best interests are most clearly served by the reduction of conflict and the co-operation of divorcing parents who work together to ensure that they co-parent effectively. The Bill will help couples to focus on a more constructive way of collaborating in making future arrangements that are best for their family—in essence, looking forward rather than backward.

[Sir John Hayes]

I am grateful to my right hon. and learned Friend for giving way a second time. The acid test is: as a result of this legislation, will there be more divorces or fewer? It is my contention that if we make something easier, people are more likely to do it.

[Robert Buckland]

I understand entirely my right hon. Friend’s concerns. The number of divorces has declined in recent years, but that perhaps goes back to the point made by my hon. Friend the Member for Winchester about the beginning of it, because the number of marriages has declined in proportion since 1972, just under 50 years ago. Taking the long view, one should focus upon the beginning of the process—the nature of the commitment, the solemnity of that commitment and the importance of that relationship and that commitment—rather than the detail of the end process.

This Government’s proposals will apply equally to married couples and civil partners. While I conveniently refer to the concept of marriage and divorce, the principles and effects apply equally to civil partnerships and their dissolution. Husbands, wives and civil partners will no longer need to produce or face a real or perceived catalogue of failings in respect of their most intimate relationship. There is a strong common view underlying the proposals in the Bill, built upon the foundation of a significant evidence base.

[Sir Edward Leigh (Gainsborough) (Con)]

Of course, it is not necessary to make any allegation under the present law—people do not have to prove fault if they rely on separation. In addition to the present grounds for divorce, why do we not go down the Scottish route of having a no-fault provision, perhaps of a year? In Scotland, all but 5% of divorces are no-fault. Why do we not have a moderate measure such as the one in Scotland?

[Robert Buckland]

As ever, I am grateful to my right hon. Friend for his constructive approach. He quite properly seeks to make a comparison with a nearby jurisdiction—a next-door jurisdiction—but I believe that taking a more comprehensive approach will cure problems for the long term. Rather than encouraging a piecemeal approach to divorce reform—in other words, coming back to it in very short order—we are creating a Bill that will, I believe, endure for a considerable period of time.

Let us remember that the evolution of divorce law has involved significant moments in parliamentary history: there was the Matrimonial Causes Act 1857 and the Divorce Reform Act 1969, which of course led to the Matrimonial Causes Act 1973, which brought together a lot of the legislation on such issues. These things are not done, and I do not think they should be done, from Parliament to Parliament; they should have a longer shelf life, bearing in mind the gradual evolution of the law in this area.

[Martin Vickers (Cleethorpes) (Con)]

Will my right hon. and learned Friend give way?

[Robert Buckland]

I will just make some progress. I will of course allow for interventions in a proportionate way, remembering the time pressures that we are all under.

The Bill purposefully does not seek to change the other aspects of divorce law for financial provision—I dealt with that issue in my response to an intervention from my hon. Friend the Member for Huntingdon (Mr Djanogly). It is more than half a century since the Divorce Reform Act 1969 gave rise to the current law. There is only one legal ground for divorce or dissolution—namely that the marriage has broken down irretrievably—but existing law requires that the petitioner must satisfy the court of at least one of five facts before the court will hold that the marriage has broken down irretrievably. Three of those facts—unreasonable behaviour; adultery, which does not apply in respect of civil partnerships; and desertion—rely on the conduct of the respondent. Two of those facts rely on the parties’ separation—namely two years, if both parties consent, and otherwise on the basis of five years’ separation.

Around two out of five divorces in England and Wales currently rely on the two years’ separation fact. The parties must have been separated for at least two years before the presentation of the divorce petition. However, that route to divorce can be used only if the respondent consents; if the respondent does not agree, it is a five-year wait before the divorce can be granted.

Around three out of five petitioners for divorce rely on the conduct facts—that is, unreasonable behaviour, adultery or, in rare cases, desertion. In only around 2% of cases does a respondent indicate an initial wish to contest a petition. Such initial opposition can often be driven by strong disagreement with what has been said about them by the other spouse in the petition. Of those contested petitions, each year a mere handful proceed to a trial at which the respondent’s case is heard. It is abundantly clear that marriages are not saved by the ability of a respondent to contest a divorce, because marriage is—has to be—above all things a consensual union.

I set out at the beginning that the current law incentivises many divorcing couples to engage in proceedings that quickly become acrimonious, even if it had been the intention to divorce amicably. Research shows that spouses are often surprised when told by a solicitor that they must either choose to wait a minimum of two years to divorce or be prepared to make allegations about the other spouse’s conduct. Although this is no longer the world of the staged scene of adultery in a hotel so criticised by the great A. P. Herbert, former Member of Parliament in this House and the author of the Matrimonial Causes Act 1937, it is right that we pause for thought about a situation wherein the law and circumstances are stretched in a way that does not help anybody, least of all the lawmakers themselves. It is a great poetic irony that A. P. Herbert went on to write the smash-hit musical “Bless the Bride” some years after he helped to author that major reform to the law of divorce, but perhaps that story itself makes an eloquent point: those of us who seek to make changes in this sensitive area of the law can, in the same breath, absolutely celebrate the institution of marriage and the values that surround it.

[Steve Brine]

I have found the reason I referred to. I think the unease that many feel about this legislation is the timing of it—the so-called lockdown break-ups. I can understand why that is a sensitive issue at a sensitive time on what the Lord Chancellor rightly says is a sensitive matter. What would he say to those who oppose this legislation on the grounds that it is a difficult time to be introducing so-called quickie divorces?

[Robert Buckland]

First of all, no time is an easy time. This is a sensitive matter at all times. Secondly, these are not quickie divorces. We are regularising the position to end the so-called quickie and to equalise the position with regard to minimum terms. We must, I believe, accept that divorce is a sad and unhappy consequence of relationship breakdown, not a driver for it.

[Martin Vickers]

I thank my right and learned hon. Friend for giving way. I am listening hard to what he is saying in the hope that he might be able to persuade me to support his Bill. I know that he brings it forward with exactly the right motives. He talks about the evolution of our divorce laws and the long-term view and so on, but will he accept that over the past 30 or 40 years, each time that we have made a change, we have said that we are putting in safeguards and putting additional support into mediation or whatever it had to be, but the trend has continued in the same direction? This Bill has been labelled, for better or worse, the quickie divorce Bill and labels stick. Will he accept that that gives the wrong signal to society?

[Robert Buckland]

I entirely agree with my hon. Friend on his last point.

This is not—I repeat not—a quickie divorce bill, and he is right to say that we in this House owe it to all our constituents to send the right message. Let me put it straight—this is a matter that he might not agree with: I do not believe that issues of reform of the process of divorce are germane to the issue of marriage itself. The question that was posed by my hon. Friend the Member for Winchester (Steve Brine) is indeed the right one, about society’s attitudes to relationships, the values that are inculcated in young people, and the level of understanding and insight into the nature, degree and complexity of the commitment to join in union, whether it is marriage or civil partnership. All of those are actually the relevant issues to the future of marriage and this Bill will not, should not, and does not have a consequence for those issues.

[Jonathan Gullis (Stoke-on-Trent North) (Con)]

As someone who is tragically going through the divorce process and has had to put blame on my partner when I would have preferred to have had a no-fault divorce, I ask my right hon. and learned Friend to reaffirm the message that this is, in no way, a quick decision. As someone going through this process, I can say how painful it is. It was not a decision that I came to easily, but this type of legislation would not require the burden of guilt to be applied to one person or the other.

[Robert Buckland]

My hon. Friend has shared a difficult and sensitive experience with the House, for which we are grateful, and he puts it extremely powerfully. This is not about blame or guilt; it is about acknowledging the fact that the causes of divorce are very complex and will evolve often over a long period of time. I am grateful to him for his powerful contribution. No one benefits, least of all the children of the relationship, from the requirement for parties to dredge up the past in order to end a legal relationship that is no longer beneficial or functioning. It is not in the public interest and cannot be right that the law would encourage one parent to be pitted against the other, when we all know the deeply damaging impact that parental conflict has on children.

Indeed, the limitations of the court process are not particularly well understood by the public. Under existing law, the legal fact that many people choose as their route to divorce bears little resemblance, as my hon. Friend says, to the reality of why a marriage has broken down. A respondent may have behaved despicably, yet a petitioner may reluctantly decide to rely on two years’ separation through fear of abusive repercussions should he or she allege unreasonable behaviour. Likewise, a petitioner may, from a desire not to have to wait for two years, feel compelled to embellish the unreasonable behaviour of a respondent beyond what one might ordinarily expect in normal marital discord. The concept of unreasonable behaviour is also purely subjective, so that what is unreasonable to one spouse in a marriage may not be at all unreasonable to another spouse in a different marriage.

[Alexander Stafford (Rother Valley) (Con)]

Will my right hon. and learned Friend give way?

[Robert Buckland]

I need to make some progress, because I am conscious of time.

The lack of transparency and objectivity means that a spouse who is trying not to cause unnecessary hurt risks not meeting the legal threshold. That has consequences, for example, for victims of domestic abuse and can lead to the manufacture of blame between couples who might have grown apart entirely amicably.

What we are creating is a level playing field. Our equal-handed approach will allow all couples to use the same legal process and will not favour couples who can afford to live apart before their divorce. Vulnerable parties will no longer have to work out whether they can afford to be separated for two years, or face the danger of presenting conduct particulars in respect of an abusive spouse. Our proposals remove many obstacles currently faced by victims of domestic abuse in the legal process of divorce. Victims will not have to place themselves in danger by detailing their abuser’s conduct; they will not have to remain in a legal relationship for a further two or more years in order to rely on a separation fact; and they will not have to fear an abusive spouse exerting their control by contesting the divorce. This position has to be changed, and divorcing couples must be given every opportunity to avoid conflict.

In developing our proposals, we have reflected on a wide range of views, including from the profession, the judiciary and couples themselves, that emerged during our consultation process and from evidence given during consideration of the Bill in the previous Session of Parliament. We have also considered and continue to consider carefully the views of those who oppose reform, although, with respect, I think that there is something of a disconnection between what some think the current law does and what it actually does.

With all that in mind, I will talk briefly about the measures in the Bill. The two stages of divorce and dissolution are maintained. The current decree nisi and decree absolute become a conditional order and then the final order. Always, the intention is to make the process more understandable and more accessible to everyone who seeks to use it, but we have retained the two-stage process because it ensures that a divorce is never automatic; rather, the decision should be considered and intentional at each stage. The reform will retain irretrievable breakdown as the sole legal ground for divorce and dissolution, but replace the current requirement to evidence that with a conduct or separation fact, as outlined in the statement of irretrievable breakdown. Indeed, the statement itself will be conclusive evidence that the marriage or civil partnership has irretrievably broken down; it therefore removes the possibility of contesting the decision to end that relationship, which currently only 2% of spouses do. Importantly, and for the first time, couples will be able to make a joint application where the decision to divorce is mutual. That will create a level playing field for joint applicants and encourage them to work together from the very beginning of the process.

As I have said, the new minimum period of 20 weeks is all part of the drive to create an equal, level approach. It ends any suggestion of so-called quickie divorce. In addition to the 20-week minimum period, the current six-week minimum period between conditional and final orders will remain, so six months is a minimum, not a maximum or absolute time limit. As is currently the case, a conditional order may not be pronounced unless the court is satisfied in relation to service on the respondent.

We are aware of the concerns of hon. and right hon. Members and the Law Society about the question of delayed service where this is done by the applicant’s spouse, and we will of course work with the Family Procedure Rule Committee on that point, and indeed on the point about making sure that divorce does not end up being a complete surprise to a respondent who perhaps knew nothing about service. We will, through the Family Procedure Rule Committee, make sure that those important concerns are dealt with.

Our proposals allow time for the applicant to consider the practical implications of the important decision to divorce. We estimate that, under the new law, the legal process of divorce will take longer for about four fifths—80%—of couples, after taking account of the projected impact of the take-up of the streamlined, digitised divorce service. That means that the question of quickie divorce is one that is wholly refuted, I believe, by the provisions and, indeed, the evidence that underlies this new reform.

The Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), will, in his summing up, deal with other points that arise through the Bill. I know hon. Members will have read its provisions and it would perhaps be idle of me to go through all of them in order. This is not a long Bill, but it is, I concede, a significant one—no, I do not concede; I make no apology for the fact that it is a significant Bill, because we are talking about the lives of people we represent, and about making this sensitive and difficult process an easier one.

Importantly, apart from maintaining the balance, we will retain the existing triple lock that requires an applicant to confirm the decision to proceed with the divorce at each of the three stages, meaning that divorce will never be, to coin a phrase, automatic. First, the applicant must apply for the divorce; secondly, they must, after the end of the minimum 20-week period, confirm to the court that it should make the conditional order; and, thirdly, following the expiration of a further minimum six-week period, the applicant must apply for the final order of divorce.

This, I believe, is a measured Bill, which we shall implement in a measured way. I pray in aid the spirit of one of my predecessors, the great Tory Lord Lyndhurst, who, as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) will know, was no lover of reform. But at the end of his long and distinguished parliamentary career in the other place, he spoke passionately about the rights of women and the abandoned party in Victorian marriages, and paved the way, as a Tory, for the Matrimonial Causes Act 1857. He is a predecessor whom I invoke today, and in whose spirit I move the Second Reading of this Bill.

[Several hon. Members rose—]