Divorce, Dissolution and Separation Bill

Yasmin Qureshi Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 25th June 2019 Commons Chamber

[Yasmin Qureshi (Bolton South East) (Lab)]

This debate has seen considered and valuable contributions. There have been many points of agreement across the House—and obviously some differences.

I thank all Members who participated, starting with the hon. Member for Newton Abbot (Anne Marie Morris), who is not in her place. She talked about the importance of marriage while recognising the challenges, issues and realities when people get married and things go wrong. She referred to the 50:50 rule for dividing property, about which there is some misunderstanding. As I understand it, from the many years I studied family law, the 50:50 rule applies to people with long-lasting marriages—30 or 40 years—and maybe several children. Often with short marriages, the rule does not apply. The crux of her argument, however, was that marriage is important but that things can go wrong.

The hon. Member for Bath (Wera Hobhouse) talked about the importance of the Bill and why the law needs to change.

I thank the hon. Member for Congleton (Fiona Bruce), who earnestly talked about the importance and stability of marriage for people and children. I know she holds these views very dearly, as do many across the country and the House. I also thank the hon. Member for Strangford (Jim Shannon) for his many contributions in the form of interventions.

Finally, I cannot finish without mentioning the hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee, who, with all his different hats on, gave a very considered speech about why the Bill is necessary. He made the particularly important point that many people were having to exaggerate, lie or invent fault to be able to expedite a divorce. We should not be making our citizens do these things.

In an era when we better understand the complexities of human relationships and the freedom that people deserve to decide how they live their lives, it is clear to most of us that the old and outdated divorce rules need to change. That was crystallised and highlighted by the case of Owens v. Owens, to which the shadow Lord Chancellor and the Chair of the Select Committee referred. Mrs Owens asked for a decree nisi, which was not granted, even though the Supreme Court accepted that the marriage had irretrievably broken down. The law said that there had to be an attribution of fault to one of the parties, so the law as it stood did not allow the marriage to be finished. Subsequently, the then president of the family division, Sir James Munby, said that this aspect of law and procedure was based on

“hypocrisy and a lack of intellectual honesty”.

The Supreme Court also said that it was not for the judiciary or the courts to change the law but for Parliament. I am pleased that Parliament is debating this and that the law will be changed for the betterment of all.

As the Nuffield Foundation put it, the reliance on fault and blame as a key pillar of divorce law is

“at odds with the thrust of wider reforms in the family justice system, which have focussed on reducing conflict and promoting resolution”.

We understand that 1.7 million people currently use fault to get a divorce when fault is not the reality. Given that 90% of family lawyers represented by Resolution say that the current law makes it harder to reduce conflict between ex-partners and that 69% of the public are in favour of no-fault divorce, the time is right to change this archaic rule.

I would, however, like to raise some omissions from the Bill and to hear what the Lord Chancellor has to say. Divorce procedure is just one part of the wide tapestry of our legal system. As has been raised in debate with Ministers, this tapestry is fraying due to decisions made by their party over the past decade. The reforms we have discussed today are welcome attempts to reduce unnecessary conflict and prevent needless emotional stress for divorcing couples and their children, but in other areas of justice and family policy this does not seem to be an issue of concern for the Government.

The deep cuts to legal aid mean that the legal representation required to reach the right divorce settlement will be available only to those with the funds to pay for it. A lack of legal support makes it difficult for people to understand the intricacies of important changes such as these and therefore will reduce the positive impact of the no-fault divorce procedure, which we welcome today. Did the Lord Chancellor agree with the Law Society when it said the Government should, alongside these reforms, reintroduce legal aid for early legal advice to support divorcing couples and help them to reach the best possible settlements for themselves and their children?

[Ian C. Lucas]

I strongly support what my hon. Friend is saying to the Lord Chancellor. One of the major concerns I hear in my constituency surgeries is about individuals seeking advice concerning contact with children and matrimonial proceedings. It is a very emotive subject, as we heard earlier in the debate, and needs to be addressed.

[Yasmin Qureshi]

I thank my hon. Friend for that helpful intervention. I hope the Lord Chancellor was listening to that and to everything else we are saying on the Opposition Benches.

More could be done in the Bill to support the most-at-risk people seeking a divorce. The Bill does not remove the bar on petitioning for divorce in the first year of marriage, despite charities and campaigners pointing to the impact this will have on victims of domestic abuse. We know that big life events such as marriage or pregnancy are hotspots for abuse and controlling behaviour to begin or increase. That first year of marriage is for some not a honeymoon period but a nightmare. It is clear that in 2019 we should not be trapping people in potentially dangerous situations because of an outdated law that does not give people the agency to get themselves out. Can the Lord Chancellor explain the rationale for this omission?

Overall, we welcome the reform, but we urge the Government to put this progressive shift into the context of the wider changes required to our justice system. There is so much more to do to ensure that anyone going through a tough time, such as a divorce or other conflict, has a positive and fair experience while seeking justice. I hope that the Minister, when he responds, will deal with some of the questions we have raised. That said, this is a very welcome Bill, which is why the Opposition support it.

Divorce, Dissolution and Separation Bill (First sitting)

Yasmin Qureshi Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 2nd July 2019 Public Bill Committees

[The Parliamentary Under-Secretary of State for Justice (Paul Maynard)]

Q For the benefit of the wider Committee, could you set out what, when people submit their evidence of fault, the court does with that piece of information? How is it handled by the court? What weight do they place on it?

Nigel Shepherd: The short answer is that the average time that court officials—this is now mostly done by legal advisers in regional divorce centres—have to scrutinise the evidence is four minutes per case, broadly. Although current legislation says that the court has a duty to investigate the situation as far as is reasonably practicable, the reality is that our process does not allow that to happen at all. If a petition goes in on behaviour, and it is not defended, the legal advisers looking at it are simply checking to make sure that the jurisdictional grounds are correct, and that there is the necessary legal connection between the behaviour and the breakdown—in other words, that the boxes are correctly ticked.

There is no investigation and, what is worse, if the respondent to that petition writes five pages on why it is all untrue, if it is not formally defended with an answer and a fee paid of £200, it is ignored. That is the worst of all worlds, because respondents, particularly those without the benefit of legal advice, think that they are saying that they disagree with something about the petition, but that nobody is listening. That makes it even worse. There is no realistic scrutiny at all in the system. It is impractical to have that scrutiny, because who knows really what goes on behind the closed doors of a marriage? That is why this change is fundamentally so important; it means that there is no pretence anymore. It is intellectually dishonest at the moment; that is what Sir James Munby said in the Court of Appeal in the case of Owens. We would be getting rid of that dishonesty and acrimony at the start of the process.

David Hodson: I can add to that as a part-time judge at the central London family court. Until two or three years ago, when we had divorce centres, part-time judges had to do four or five of these special procedures every time we sat. It took a matter of moments. We would give careful consideration to the document that had been drawn up by the legal adviser as to whether there were any procedural errors. We would look at the unreasonable behaviour allegations, but I find it difficult to remember in recent years—we have softened as the years have gone by—anything having been sent back. Sometimes it is so minuscule, but if it is undefended, it will go through.

The 1996 legislation had a knock-on effect. If Parliament decided in 1996 that no-fault divorce was appropriate, though Parliament subsequently did not bring it into force, should judges be turning around and saying no? Owens was a distinctive case. It was a defended case, whereas if it is undefended, as Nigel said, it will go through. That makes it a crying pity that people have got to go through that process in the first place.

[Yasmin Qureshi (Bolton South East) (Lab)]

Q Good morning. You gave evidence a little while ago about the fact that in order to respond to a fault being mentioned in a divorce, a person has to memorise reams and reams of letters and make a very detailed, comprehensive response to the allegation, but unless they pay the money, they are not even going to be considered. One of the problems with a fault having to be alleged is that often, the respondent or the applicant will then have to spend quite a lot of money to get the process through, so it is almost a double whammy: they have to pay money to blame each other and get a divorce.

David Hodson: One of the Law Society’s concerns is the court fee. I appreciate that this is not in primary legislation, but may we express our concern? At the moment, it is £550.

[Yasmin Qureshi]

That is a lot.

David Hodson: For that, you get a few minutes—I will not say moments—of judicial time, and there is perhaps some scrutiny of the procedure. We hope to go to a no-fault divorce process, mostly online, with almost no or no judicial involvement, because there will not have to be any.

The £550 is very unfair on the poor—for those on welfare benefits, there is an allowance, but it is very unfair on those above that. The great worry has to be that we have a lot of limping marriages in our society between people who just cannot afford that. There are no financial claims—there is no money to make any financial claims—but they just cannot afford to bring the divorce forward.

The Law Society—Resolution would probably agree—would like to make a plea: can the Ministry of Justice review the fees? Again, that is for a secondary instrument. We have some of the highest in the world, probably second or third highest, and they are much too high. Particularly with the new process that will be going through, there is not that cost to society or to the Ministry of Justice of running it, so can we make the plea to reduce the fee of £550, so we do not have marriages out there that came to an end a long time ago?

[The Chair]

Minister, this will have to be your last question.

Divorce, Dissolution and Separation Bill (Second sitting)

Yasmin Qureshi Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 2nd July 2019 Public Bill Committees

[Eddie Hughes]

I completely understand the hon. Lady’s point. That is why I am trying to set the context: my very personal view is that the system worked in my particular case, but I completely accept that it will be different for others, as we heard in our evidence session this morning.

My point is simply that we have all visited websites that have asked us to tick a box to agree to terms and conditions. It is highly doubtful whether any of us has ever read all the terms and conditions before ticking the box, because we know that we are entering into a contract that will be really easy to get out of. We have all done it—we have all pressed the button to enter into a contract really quickly, because we know that it is easy to get out of. I am scared about any move in that direction with regard to marriage, because my personal belief is that it is more important than that, as a contract and a spiritual union.

Anyway, I have some points and questions for the Minister about clause 1. The written and oral evidence submitted to the Committee by Mr Hodson raises several key points that really engage with the clause and that arguably highlight the need for amendments that I hope the Government will consider.

The 20-week reflection period is clearly of huge importance. The Bill is about removing fault from divorce, not about minimising the opportunity within the divorce process for couples to gain access to mediation and have a rethink. This may come as a surprise to some right hon. and hon. Members, but in some instances the first occasion on which a spouse finds out that their marriage is in difficulty is the commencement of divorce proceedings. That is the first opportunity they have, with that knowledge, to try to put things right. At a time when the annual cost of family breakdown to the Exchequer stands at £51 billion, according to the Relationships Foundation’s annual assessment, it is imperative that policy makers and legislators seize every opportunity provided by the 20-week reflection period to maximise the opportunities for mediation and reconciliation. Without any expression of commitment to the importance of marriage, the Bill will sound very hollow.

One key measure by which the success or failure of the removal of fault in the legislation will be judged will be the extent to which it creates a better environment within which couples can rethink and save their marriage. To this end, the 20-week reflection period defined in clause 1 is clearly of the utmost importance. At the moment, on the basis of the evidence submitted by Mr Hodson, it seems vulnerable on several points.

First, in a case in which one member of a couple initiates divorce proceedings, if the 20-week clock starts ticking from the moment that they initiate, as clause 1 currently proposes, the other spouse will on some occasions inevitably end up with less than a 20-week reflection period. That is clearly neither fair nor transparent. Will the Government amend the Bill so that it is clear that the 20-week clock will only start to tick from the moment it is clear that both members of the couple know about it?

Secondly, in order for the 20-week reflection period to work well, it is plainly important that a good part of the 20-week period, if not all of it, is made a litigation-free zone, so that the focus can be on mediation. That must extend to ancillary financial litigation. Will the Government amend the Bill so that at least most of the 20-week period, if not all of it, is made a litigation-free zone, including ancillary financial litigation?

Thirdly, will the Government consider changing the point in the process at which the partner seeking the divorce should lodge their statement of irretrievable breakdown? Having it at the start, as the Bill proposes, makes it extremely difficult for the other partner to respond constructively if the intention is for a period of reflection.

Finally, mindful of the importance of the 20-week period referred to in clause 1 for reconciliation and mediation, what new provisions will the Government make to ensure that all couples are offered effective reconciliation and mediation specifically during this period, in an effort to increase the numbers of divorce proceedings that are not concluded, thereby increasing the number of marriages saved?

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I put on the record the fact that the Opposition do not object to this legislation, which is one reason why no amendments or new clauses have been tabled. We welcome this piece of legislation, which has for many years been required and called for, and it is great that the Government have brought it to the House. This morning, Members heard from experts in this area who deal with these types of cases day in, day out, and it was quite clearly their unanimous opinion that this legislation is important, welcome and needed.

No one goes into a marriage expecting it to fail, but it is an unfortunate reality of life that couples may choose to go their separate ways. It is even more unfortunate that, when they pursue a divorce, they do so under archaic law. Among the five permissible grounds for divorce are adultery, desertion and unreasonable behaviour, which involve the allocation of blame to one party. That is unfair and could damage a couple’s children as well.

For decades, campaigners have been asking for this change to the law. This situation was crystallised recently in the case of Owens v. Owens, which ended up in the Supreme Court. Sir James Munby, then president of the family division of the High Court, said in 2017 that

“the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b).”

We heard about that this morning. It is interesting that in Scotland, where the requirement for fault has been abolished, only 6% to 7% of divorce applications are based on fault, yet in England 60% are based on allocation of fault. That raises the interesting question, as Professor Trinder said this morning, of whether we are worse behaved than the Scots. It is not that. In Scotland, people do not have to go through the intellectual dishonesty, as Sir James Munby said, of creating issues of fault.

The Minister will set out the law as it stands, but I point out that if a couple want to divorce in less than two years, they need to start pointing the finger of blame, with one citing the other’s adultery, unreasonable behaviour or desertion. That in itself causes unnecessary strife. However, in most cases, neither party contests a divorce, so they can go their separate ways.

The need to apportion blame, and ratchet up the acrimony, is one of the main reasons why the Opposition want to see an end to fault-based divorce law, not least because of its impact on children. The ground of unreasonable behaviour, for example, requires allegations from one spouse against the other that are hardly ever challenged and can be exaggerated, which will inevitably exacerbate the relationship between the parties and make arrangements regarding children even more difficult. It is therefore unsurprising that most of the legal community supports the changes. About 1.7 million people have assigned blame in a divorce process. Many need not do so, so again legislation is very important.

The Law Commission has called for the current fault-based system to be scrapped. In fact, it recommended that in 1996. It has made several criticisms of the current law, of which many hon. Members are aware, but perhaps they are worth repeating because some believe, and indeed the hon. Member for Walsall North alluded to the fact, that somehow such reform will lead to more people filing for divorce. In a number of cultural and religious communities divorce is actually very easy but the divorce rate is tiny. I do not accept the suggestion of a correlation and that the divorce rate will spike because of a change in the law. It is about societal issues or particular challenges in people’s lives and communities. I do not think a correlation can be seen between changing the law and an increase in the rate of divorce from looking at other countries, cultures and societies where there is a more open or easier divorce system.

One of the problems with our current system is that the law is confusing and misleading. It says that the only ground for divorce is that a marriage has “irretrievably broken down,” but that can be proved only in one of five ways, three of which involve fault. Therefore, the fact used as the peg on which to hang a divorce petition may not in any way bear relation to what caused the breakdown in marriage. The law also pretends that the court is conducting an inquiry into whether and why the marriage has broken down when in fact it does no such thing. Even if a petition is defended, it requires only that the fact is proven.

The current system is discriminatory, favouring those who can afford to live apart for two years before seeking divorce, with the remedies that go with that. Many poorer parties, including many who are victims of domestic violence or abuse, cannot afford to separate unless and until they get orders, which are obtainable only on divorce. Matrimonial home orders under part IV of the Family Law Act 1996 were originally intended to provide a sensible interim housing solution, but the provisions of our current law exclude parties from being able to access it.

The current system is unjust. Adultery and unreasonable behaviour suggest that one party has to blame the other, but many of the technical bars under the old law were abolished. There is little or nothing to stop the more blameworthy one relying on the conduct of the less blameworthy one. It is difficult, expensive and may be counter-productive to defend or cross-petition to try to put matters right.

--- Later in debate ---

[Paul Maynard]

On a point of order, Mr McCabe. It is customary to give a lengthy thank you to all those who have participated in the Bill. I fear I would end up making a speech longer than any other speech if I tried to do so, but I thank all Members for their contributions, even if they have been silent contributions of good will emanating towards us. That is good enough for me.

More importantly, I thank all the officials who have worked hard on the Bill for many months. They may even be disappointed that we have taken only 47 minutes to progress it through Committee. I will put them at their ease, because if it is only 47 minutes, it means there is far less chance for me to muck it up at any stage. There will be a sigh of relief at the Ministry of Justice, I suspect, that I have been hidden from scrutiny by taking a bit less time. I thank all my officials and I thank you, Mr McCabe, for chairing the Committee so adeptly. You have facilitated our rocket-powered canal boat moving down the great canal of British history through one more set of locks.

[Yasmin Qureshi]

Further to that point of order, Mr McCabe. I place on record my thanks to all Members who have attended today and those who spoke in the Chamber on Second Reading. I thank you, Mr McCabe, for your excellent chairing of this Bill Committee.

[The Chair]

It is certainly close to a record, Minister, but it must be down to the quality of the Committee.

Bill to be reported, without amendment.