The Committee consisted of the following Members:
Chairs: Dame Cheryl Gillan, †Steve McCabe
† Afolami, Bim (Hitchin and Harpenden) (Con)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Courts, Robert (Witney) (Con)
† Duffield, Rosie (Canterbury) (Lab)
† Gaffney, Hugh (Coatbridge, Chryston and Bellshill) (Lab)
† Green, Kate (Stretford and Urmston) (Lab)
† Heaton-Jones, Peter (North Devon) (Con)
† Hughes, Eddie (Walsall North) (Con)
McMorrin, Anna (Cardiff North) (Lab)
† Maynard, Paul (Parliamentary Under-Secretary of State for Justice)
† Onn, Melanie (Great Grimsby) (Lab)
† Prentis, Victoria (Banbury) (Con)
† Qureshi, Yasmin (Bolton South East) (Lab)
† Slaughter, Andy (Hammersmith) (Lab)
† Tracey, Craig (North Warwickshire) (Con)
† Trevelyan, Anne-Marie (Berwick-upon-Tweed) (Con)
† Warman, Matt (Boston and Skegness) (Con)
Jo Dodd, Mike Everett, Committee Clerks
† attended the Committee
Public Bill Committee
Tuesday 2 July 2019
[Steve McCabe in the Chair]
Divorce, Dissolution and Separation Bill
Welcome, everyone. May I remind you of Mr Speaker’s advice that you should switch off or silence electronic devices and that you should not have tea or coffee in the Committee Room?
We now begin line-by-line consideration of the Bill. No amendments have been tabled, but I expect to allow stand part debates on most clauses, which should allow hon. Members plenty of opportunity to scrutinise the Bill. We have to proceed in the order set out in the programme resolution that was agreed this morning.
Divorce: removal of requirement to establish facts etc
Question proposed, That the clause stand part of the Bill.
Minister, do you wish to make any opening remarks?
I will see what hon. Members have to say and then round up.
That is entirely up to you. I call Eddie Hughes.
May I begin, semi-light-heartedly, by declaring my interest as a Catholic, which informs my position? At the national parliamentary prayer breakfast in Westminster Hall this morning, there was a discussion about the overlap between politics and religion. There are some areas in which I find the two to be inextricably linked, and this may be one of them.
When I entered into marriage as a Catholic, I felt wholeheartedly that it was for life and that there was simply no way out of it; my wife decided otherwise, and we ended up getting divorced. For my part, because I felt that I had stuck to the sanctity of marriage from a Catholic point of view, I was kind of relieved by the idea that it was possible to apportion blame and use the idea of adultery as a basis for the breakdown of the marriage. However, I appreciate that in some cases that may not be preferable. My problem with the Bill is that I feel it will make divorce easier. When a contract is easy to get out of, people enter into it more lightly.
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?
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.
In any event, which of us is qualified accurately to assess blame for any relationship breakdown? Under the current law, it is always a matter of blame. That provokes unnecessary hostility and bitterness because it is arbitrary and unjust, and the respondent cannot put his own side of the story across. That can therefore add more anger, pain and guilt, and cause even more problems for the parties concerned. Evidence has shown that it can make things worse for children as well. Often children suffer when parents separate, especially if the divorce is acrimonious.
In October 2017, a large-scale research study by Professor Trinder, who gave evidence this morning, was published, entitled “Finding Fault? Divorce Law and Practice in England and Wales”. The study very much dealt with these matters, and it was great to hear Professor Trinder this morning talking about the research, which confirms that the legislation is necessary and welcome.
The reforms will bring many benefits to separating couples. The legislation will have positive effects on children and will mean that they do not have to talk about one parent blaming the other. It will also mean that the process can be a lot cheaper, and people will not have to go through such emotional turmoil. We have heard the figures about the effect on children, and it has been agreed that the majority of the population of this country has come to the conclusion that taking fault out of divorce is a sensible way forward. I think it is universally accepted that parents fighting with each other and attributing blame has an effect on children.
For all those reasons, we welcome the legislation. To facilitate its passage, we have not tabled any amendments, but we ask the Government to consider two things. The first is the extension of legal aid. Although the reforms to modernise divorce are welcome, I would like the Minister and the Ministry of Justice to consider reintroducing legal aid for early advice. The Law Society, which represents about 140,000 solicitors in England and Wales, has said that legal difficulties around divorce are exacerbated by far-reaching cuts in the justice system, which means that problems often escalate when early legal advice is unavailable.
In cutting legal aid, the Government failed to recognise that solicitors who provide early advice are a significant source of referral to mediation, avoiding costly court hearings. Without early advice from a solicitor, many people do not know that the option of mediation exists, or even how to access it. Will the Minister reflect on the research that has shown that legal aid cuts have forced more people into a do-it-yourself justice system? I certainly hear a number of cases in my advice surgery of constituents who end up in court dealing with unfamiliar procedures as they attempt to resolve the future of their children, homes and finances. I am sure that I am not the only Member who has come across constituents with such issues.
Since the Government implemented the Legal Aid, Sentencing and Punishment of Offenders Act 2013, there has been an increase in the number of litigants in person in the court system. The Law Society argued that not only have the changes failed to divert people away from the courts, but
“they have created additional pressure on the courts as they have to deal with higher than expected case volumes and delays caused by those acting without lawyers being unfamiliar with the processes.”
This leads to unnecessary costs to the taxpayer, because it obviously requires longer in court. If the litigant is represented, matters will be dealt with a lot more quickly. With unrepresented defendants, a matter that would take 10 minutes if somebody had legal representation may take two hours or so. The courts will be running for far longer. The situation causes a lot of clogs in the system at the moment. Will the Minister consider that point? I know that it is not part of the Bill, but this is an opportunity for Labour to flag a concern.
Secondly, many charities supporting victims of domestic abuse are obviously very supportive of the introduction of no fault. They hope that the reforms will make obtaining a divorce simpler for the most vulnerable, especially by preventing any post-separation abuse when a victim has cited the violence as the fact on their petition. Leaving an abusive partner is a dangerous time for victims and the current complexity and length of the divorce process can compound these risks.
An aspect of the Bill is that, where a marriage has broken down in a case of domestic abuse, in reality, there is a limited legal effect of the fault. Those who can afford a solicitor will be advised that they do not have to set out the domestic abuse within the application, as the fault-based fact used to apply for a divorce is not scrutinised thoroughly by the court and rarely has any impact on financial proceedings. It cannot be used as proof or evidence of domestic abuse in subsequent proceedings, such as child contact proceedings. Many people are not aware of that. Women without legal advice are therefore more likely to set out the real cause of their marriage breakdown and are placed at greater harm as a result.
This is an important issue. The Minister probably knows that Women’s Aid raised concerns during the consultation on the Bill because it does not remove the bar on petitioning for divorce in the first year of marriage. This rule can leave women who are suffering domestic abuse trapped during that year. Has the Minister listened to the concerns of charities acting for survivors of domestic abuse? Perhaps the Ministry of Justice can explore this at another time. I hope that he will consider the one-year rule and legal aid. The Opposition will not vote against the clauses or table any amendments.
It is a pleasure to serve under your chairmanship, Mr McCabe, and to see so many people in the room, discussing what will be a very important piece of legislation. It is rare that we deliver social change in this place. It often occurs at a glacial pace. However, there are locks on the great canal of British history. Every so often, the locks open, the water flows and the ship of state moves on. It never occurs by unanimity. There will always be some in the avant-garde driving the canal boat through the locks, navigating carefully and ensuring that all the locks open and shut in synchronicity. Others may be less at the forefront—more at the bow of the ship perhaps, questioning, querying, holding to account and analysing the detail. Both are important as we consider any item of social change, and it is right that Parliament reflects all these views. As my hon. Friend the Member for Walsall North has demonstrated, it is very rare to achieve unanimity on any social issue, not just among colleagues in this House but across the country as a whole. I would never object to anyone raising concerns about this sort of legislation when it comes before the House.
We all come to Bill Committees with expectations and enthusiasm. When I served on the Committee that considered the Deregulation Bill in 2014, we spent at least 45 minutes discussing the idea of abolishing the age limit for purchasing chocolate liqueurs. There was a great, furious controversy about how many chocolate liqueurs one had to eat to become inebriated, and no consensus was achieved. I therefore hope that we might achieve a somewhat more broad—in fact, unanimous—consensus on this Bill, which frankly is far more important than the age at which one can purchase a chocolate liqueur.
This Bill is exceedingly important to millions of people up and down the country who are facing the prospect of divorce, have gone through it in their past and have strong views as a consequence, or who are currently in a marriage and considering what they intend to do. Its provisions, taken together, provide for reformed legal requirements in England and Wales by which a marriage or civil partnership may be legally ended through a court order for a divorce or dissolution, or by which an order for separation may be made allowing the parties to a marriage or civil partnership to remain in a legal relationship, but to live apart.
I will start by stating what I hope is agreed by everyone, and is a core Government belief: that marriage is vital to our functioning as a society. It is deeply sad for all those involved when a marriage or civil partnership is beyond repair. The decision to seek a divorce or dissolution of a civil partnership is an intensely personal one. The Government have heard calls to reform the legal process so that it does not make matters worse—calls that are supported by evidence, including that which we have heard this morning, about the harm done by the current legal process and how it is out of step with reality.
The Bill does not seek in any way to diminish the importance of the commitment made when two parties enter into a marriage or civil partnership with each other; that is a profound and deeply personal commitment between two people. I declare an interest: like my hon. Friend the Member for Walsall North, I am a Catholic, and I personally believe that marriage is a sacrament in the sight of God. Equally, I recognise that not everybody shares that point of view. We are looking purely at marriage as a civil institution; clearly, many people from many different faiths and none will have religious concerns, but today we are looking at the law on the dissolution of a marriage.
Relationships can, and ultimately do, fail. When a marriage or civil partnership breaks down and is beyond repair, the law must deal with reality, by creating the conditions for people to move forward with the minimum of acrimony and agree arrangements for the future in an orderly and constructive way. Above all, the legal process should not exacerbate conflict between parents, which is especially damaging for children. The process must better support and encourage parents to co-operate in bringing up their children.
The evidence is clear that the current legal requirements needlessly rake up the past to justify the legal ending of a relationship that is no longer a beneficial and functioning one. The requirement for one person to blame the other if it is not practical for them to separate for at least two years can introduce, or worsen, conflict at the outset of the process—conflict that may continue long after the legal process has concluded. Allegations about a spouse’s conduct may bear no relation to the real cause of the breakdown and can be damaging to any prospect that couples will reconcile or agree practical arrangements for the future. In the extremely difficult circumstances of divorce, the law should allow couples to move on constructively when reconciliation is not possible.
I will now deal with clause 1, which relates to divorce as a whole. This clause is key to the Government’s whole approach to this Bill and its principled approach to reducing conflict in divorce proceedings. Other clauses regarding the legal requirements for judicial separation, the dissolution of a civil partnership or the legal separation of civil partners reflect that same approach with the appropriate modifications. Clause 1 substitutes for section 1 of the Matrimonial Causes Act 1973 a whole new section 1. The current section 1 contains the grounds for divorce, the legal requirements that a party must satisfy to establish those grounds to the satisfaction of the court, and the powers of the court to grant the divorce if so satisfied.
The sole legal ground for divorce—that the marriage has broken down irretrievably—is retained. Under the existing section 1, a petitioner for divorce is required to show one of the five facts to evidence irretrievable breakdown. Three of the facts relate to the other party’s conduct in terms of adultery, behaviour and desertion, and the remaining two relate to the continuous separation of the parties to the marriage before the petition for divorce is filed. In new section 1, the requirement to show a fact is removed and is substituted by a requirement that the divorce application be accompanied by a statement that the marriage has broken down irretrievably. The new statement is to be conclusive evidence of irretrievable breakdown, and where such a statement has been validly made the court must make the divorce order.
I want to make it clear that the legal process for divorce cannot save a marriage when the relationship has already irretrievably broken down. Only 2% of divorces are currently contested, and research shows that most often the decision to contest is motivated by the desire of a respondent party to dispute conduct alleged by the petitioner. Since clause 1 removes the use of both separation and conduct-based facts, the ability of a respondent party to a divorce to dispute allegations about conduct falls away.
The ability of one party to a marriage to apply for a divorce order is retained, but clause 1 provides, for the first time, the option for a married couple to make an application jointly, reflecting cases where the decision to divorce is a mutual one from the outset. The Government want to ensure that when the decision to divorce is shared, the legal process reflects that mutual decision.
The current process by which a marriage is ended in two legal stages is retained, but the terminology of the 1973 Act is updated to match the more modern approach in the Civil Partnership Act 2004. The first decree of divorce, currently the decree nisi, will become a conditional order of divorce. The second decree, currently the decree absolute, will become the final order. The removal of Latinate terminology is, I believe, long overdue and will, I hope, be welcomed. As now, the applicant for the divorce must confirm to the court that it may make the conditional order. That will not follow automatically just because an application for divorce has been made. The conditional order does not legally end the marriage; it merely signifies that all the legal and procedural requirements have been met and that the court is satisfied that the marriage can be brought to a legal end. It provides a final opportunity for an applicant to reflect on the decision to divorce, as at conditional order stage the parties remain married.
Clause 1 retains a minimum period of six weeks between the conditional order and when an application may be made to the court for the final order of divorce, mirroring the current period between decree nisi and when the petitioner may apply for the decree absolute.
Part of the objective, I believe, is to improve the financial arrangements. People may wish to delay a little longer until such a point. It is not a maximum period; it is a minimum, and the process might well take longer. It is about ensuring that we take a progressive, step-by-step approach to bringing the marriage to an end, and people may wish to tie up further loose ends, which may take longer than six weeks. There has always been a six-week gap to ensure, if nothing else, that all the paperwork is in order.
Crucially, however, new section 1(5) introduces into the legal process of divorce a minimum period of 20 weeks between the start of proceedings and when a party, or either or both parties to a joint application, may confirm to the court that the conditional order may be made. Those two periods together will now mean that in nearly all cases a divorce may not be obtained in a shorter period than 26 weeks, or six months. The 20-week period is a key element of the reformed legal process. For the first time, a minimum period has been imposed before the conditional order of divorce is made. The intention is to allow greater opportunity for the applicant to reflect on the decision and to decide arrangements for the future where divorce becomes inevitable.
The prospect of a couple reconciling once divorce proceedings have started is low, but our intention is that the legal process should still allow for that possibility. It is never too late for a couple to change their mind, which is one reason why we have decided to retain the two-stage process for divorce.
Separately, the new section 1(8) inserted by clause 1 retains the ability of the court in an individual case to shorten the period between decree nisi and decree absolute, which are now the conditional order and the final order, and also extends this discretion to the new minimum period between the start of proceedings and when confirmation can be given that the court may grant the final order or divorce.
I will come on to some of the points that have been made by my hon. Friend the Member for Walsall North and by the shadow Minister, the hon. Member for Bolton South East. My hon. Friend made some interesting and helpful points about how we can ensure, as I have just referred to, that this is as considered a process as possible, and how we can best utilise the 20-week period that I have just set out.
As my hon. Friend may have picked up during the evidence session earlier today, there is more going on to reform the divorce process than just what is in the Bill. There are a number of online initiatives to try to make the process smoother for those going through it, and one thing that we will look at is what changes we can make to that online process to signpost people towards mediation of some sort, counselling and so on, to make sure that they are aware of the broad range of options available to them, which they might not have thought of when they initiated the divorce process.
My hon. Friend also made a point regarding the Law Society’s concerns as to when that 20-week period should start. We have explored this at some length during the consultation. Starting the time period from the acknowledgement of service, as some have suggested, could incentivise an unco-operative party to delay a divorce and could enable a perpetrator of domestic abuse to exercise further coercive control, which is why we have erred on the side of starting it earlier than that.
It is also worth flagging the caveat that we should bear in mind at every stage of this process. When we talk about mediation at this stage of a divorce process, it is often around finances or childcare. The mediation that my hon. Friend and I might think of as laymen is more a form of marriage counselling and relationship support. We should always be careful about that: when we initiate a divorce proceeding, mediation takes on a slightly different meaning from what it might perhaps have during a marriage. As I mentioned to the hon. Member for Stretford and Urmston, 20 weeks allows people more time to sort out their finances, in as constructive a way as possible.
The shadow Justice Minister mentioned the one-year bar on divorce and asked for the reason for that. I confess that I too have asked officials of the first rank what was in the Bill and why this might be. We consulted on it before the introduction of the Bill and there was certainly no broad consensus or hard and fast evidence either way. Many felt that it went against the grain of reforms that recognise marriage as an autonomous troth, as indeed did the Law Society and the Association of Her Majesty’s District Judges. Faced with a lack of consensus and a lack of hard evidence at this stage that the bar causes hardship or is a problem, we propose to keep the status quo. That does not mean to say that the law can never be changed, but we do not believe that it would be the right step at this stage.
Understandably, the shadow Justice Minister raised the issue of legal aid and indeed legal support for those going through a divorce. She will be more than aware that legal aid is already available for mediation for couples who have finances or child arrangements that are in dispute. This provides a non-litigious route, resolving issues and helping families to move forward constructively. We are also investing some £5 million to support innovation across the sector that will help people to access legal support as close to their community as possible.
The shadow Justice Minister rightly made a point about litigants in person. As I have said to her in the past at the Dispatch Box, we are doubling our investment in our litigant in person strategy, but the wider reforms that I have just mentioned with regard to online processes for divorce should make it simpler and more straightforward for people to initiate proceedings online, so they would have less need for active legal help at that stage of the process. The reform programme, the litigant in person strategy and the legal support action plan are all about opening up newer avenues to access legal support that are not just about someone getting that legal help as they come through the courtroom door.
On that particular note, I beg to move that the clause stand part of the Bill.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Judicial separation: removal of factual grounds
Question proposed, That the clause stand part of the Bill.
Does anybody wish to participate in debate on clause 2? I do not see anyone who does. Minister, do you wish to make any concluding remarks?
There is no requirement.
I do feel I ought to. My notes are now all shorter than they were for clause 1. It might help Members if I make it clear for the sake of the record that clause 2 refers to the idea of judicial separation, by which a party to a marriage may obtain a judicial separation order. Judicial separation is rarely used nowadays, with fewer than 300 judicial separation petitions made annually in comparison with around 110,000 petitions for divorce. We recognise, however, that divorce is not an option for some couples because of deeply held religious or other beliefs. Judicial separation therefore continues to provide an important legal alternative for those couples, and that is why we have decided to retain it. Clause 2 broadly reflects the changes made in clause 1 and applies them to the issue of judicial separation. I commend the clause to the Committee.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Dissolution: removal of requirement to establish facts
Question proposed, That the clause stand part of the Bill.
Minister, do you wish to make any opening remarks? Does anyone else wish to participate in debate on clause 3? I will take that as a no. Minister, do you wish to say anything in conclusion?
You may refer to them both, but we have to take them separately.
The only point I will make to colleagues is that, just as we had judicial separation in clause 2, clause 3—and indeed, clause 4 for that matter—refers to civil partnerships and the Civil Partnership Act 2004. It once again takes all the elements I referred to in clause 1 and translates them on to the Civil Partnership Act 2004 so that that is also up to date from where we are currently.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clauses 4 and 5 ordered to stand part of the Bill.
Minor and consequential amendments
Question proposed, That the clause stand part of the Bill.
We support the Bill very much. We had some concerns about the powers that the Lord Chancellor would have in relation to clause 6, but given that they are so limited in scope, we do not propose to object to them. However, we do not wish it go unnoticed that we have concerns about Ministers having—I will not call them Henry VIII powers in relation to divorce proceedings—draconian powers in pushing forward legislation that would remain as primary legislation. I will leave it at that. We do not oppose this clause, but I wish to put on record that we have wider concerns about Ministers’ powers.
I was going to say a few words on this clause, so I am grateful to have the chance to respond to the debate. The hon. Gentleman makes a perfectly fair point about the delegated powers. We got the idea from the Civil Partnership Act 2004, which was introduced by the hon. Gentleman’s party. We are reflecting the changes in that Act in the Bill. The powers we are conferring on the Lord Chancellor were exercised by the High Court with the introduction of the Matrimonial Causes Act 1973. In 2004, when the legislation was updated, it was decided that the power was better vested in the Lord Chancellor for civil partnerships. We are now catching up across the broader spectrum of proceedings with that decision to move the power from the High Court to the Lord Chancellor. I can justify the devolved powers in question even to myself, and I can even call them Henry VIII powers.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clauses 7 to 9 ordered to stand part of the Bill.
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.
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.
Written evidence to be reported to the House
DDSB02 Dr Sharon Thompson, Cardiff University
DDSB03 The Law Society for England and Wales
DDSB04 Sue Kincaid
DDSB05 James Brien
DDSB06 Nicholas D. Hart (retired former solicitor)
The Committee consisted of the following Members:
Chairs: Dame Cheryl Gillan, †Steve McCabe
† Afolami, Bim (Hitchin and Harpenden) (Con)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Courts, Robert (Witney) (Con)
† Duffield, Rosie (Canterbury) (Lab)
Gaffney, Hugh (Coatbridge, Chryston and Bellshill) (Lab)
Green, Kate (Stretford and Urmston) (Lab)
† Heaton-Jones, Peter (North Devon) (Con)
† Hughes, Eddie (Walsall North) (Con)
† McMorrin, Anna (Cardiff North) (Lab)
† Maynard, Paul (Parliamentary Under-Secretary of State for Justice)
† Onn, Melanie (Great Grimsby) (Lab)
† Prentis, Victoria (Banbury) (Con)
† Qureshi, Yasmin (Bolton South East) (Lab)
† Slaughter, Andy (Hammersmith) (Lab)
† Tracey, Craig (North Warwickshire) (Con)
† Trevelyan, Anne-Marie (Berwick-upon-Tweed) (Con)
† Warman, Matt (Boston and Skegness) (Con)
Jo Dodd, Mike Everett, Committee Clerks
† attended the Committee
Aidan Jones OBE, Chief Executive, Relate
Nigel Shepherd, Former Chair of Resolution and Member of the National Committee, Resolution
David Hodson OBE, Law Society Family Law Committee member and partner at International Family Law Group LLP, The Law Society
Professor Liz Trinder, Professor of Socio-legal Studies, University of Exeter
Mandip Ghai, Senior Legal Officer, Rights of Women
Public Bill Committee
Tuesday 2 July 2019
[Steve McCabe in the Chair]
Divorce, Dissolution and Separation Bill
I just want to rattle through a few preliminaries. Please switch electronic devices to silent. Mr Speaker does not allow tea or coffee during sittings. We will consider a programme motion, a motion to consider the written evidence and a motion to allow us to deliberate in private. I hope we can deal speedily with those.
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 2 July) meet at 2.00 pm on Tuesday 2 July;
(2) the Committee shall hear oral evidence in accordance with the following Table:
DateTimeWitnessTuesday 2 JulyUntil no later than 10.15 amRelate;Resolution;The Law SocietyTuesday 2 JulyUntil no later than 10.45 amProfessor Liz Trinder, Professor of Socio-legal Studies, University of Exeter; Rights of Women
Tuesday 2 July
Until no later than 10.15 am
The Law Society
Tuesday 2 July
Until no later than 10.45 am
Professor Liz Trinder, Professor of Socio-legal Studies, University of Exeter; Rights of Women
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 6; Schedule; Clauses 7 to 9; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 7.00 pm on Tuesday 2 July.—(Paul Maynard.)
The deadline for amendments has passed.
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Paul Maynard.)
Copies of written evidence we receive will be made available in the Committee Room.
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Paul Maynard.)
The Committee deliberated in private.
Examination of Witnesses
Aidan Jones, Nigel Shepherd and David Hodson gave evidence.
We will now hear evidence from representatives from Relate, Resolution and the Law Society. I remind hon. Members that all questions have to be limited to matters within the scope of the Bill and that we have to stick to the agreed timings. Members should declare any relevant interests at the outset.
If our panel are ready, I ask them to introduce themselves, in order, for the record.
Nigel Shepherd: Hello. I am Nigel Shepherd, former chair and current board member of Resolution and a long-time campaigner for no-fault divorce.
David Hodson: I am David Hodson and I am here on behalf of the Law Society family law committee. I am an assistant mediator and arbitrator in a practice in central London, dealing with international cases.
Aidan Jones: Hello, good morning. I am Aidan Jones, chief executive of Relate.
Thank you. I invite Committee members to ask questions, in order. We have a strict deadline and must finish by 10.15 am.
Q Thank you very much for coming in to help us progress this Bill. What are your views of the Bill? Are there any improvements we should be making, or is it a pretty good attempt to solve this particularly difficult dilemma?
Nigel Shepherd: If I may start, I think this is an excellent Bill. The important thing is the big picture. Resolution members—6,500 family justice professionals—are dealing with divorce disputes up and down the country on a daily basis. Our ethos is to try to do so in a constructive, non-confrontational way, yet in the words of our current chair, Margaret Heathcote, who is quoted in the Ministry of Justice’s press release announcing the Bill, under the current law we are doing that job with one hand tied behind our back. Each year, about 100,000 couples are getting divorced in England and Wales, and the most recent statistics show that about 57% of those are pushed into this blame game, alleging one of the two primary fault grounds of adultery or behaviour.
The Committee will be aware that the Family Law Act 1996 would have introduced no-fault divorce, but it was never implemented. We estimate that, since then, about 1.7 million people have assigned blame in the divorce process. Many of those would have done so not necessarily because they wanted to or because it was the real reason for the divorce but because under the current system, if they cannot afford to wait at least two years for a consensual divorce, that is the only option open to them. Crucially, a large number of those would have been parents. Quite frankly, we have waited too long for this reform, having had it once and not got it over the line. In the meantime, we are dealing with that conflict on a daily basis. It is damaging to families, and particularly damaging to children. It is the time that the law caught up with the public attitude, which is that it is time for change and to end this blame game.
Q You said that the reasons they state do not represent a fair reflection of the actual reasons. On what is that based? I thought I had read a report that said that 91% of petitioners said that it was very close or fairly close.
Nigel Shepherd: A national opinion survey, “Finding Fault?” You will hear evidence in the next session from Professor Liz Trinder, who conducted empirical research called “Finding Fault?” and the opinion survey for that found that only 29% of respondents to a fault divorce said that the fact used matched very closely the reason for the separation, and that 43% of those identified by their spouse as being at fault disagreed with the reasons cited in the divorce petition.
We call it a blame game, because at the moment if someone comes to see me as a practising family lawyer and says, “We both agree that the marriage has broken down. It is very sad, but we want to do this in the right way for our children and move forward. Can we get a divorce?” I say, “Not unless you want to wait two years.” They are aghast. They say, “That’s crazy. What do we do?” and I say, “Well, one of you is going to have to blame the other. Has there been adultery?” They say, “No,” so I say, “In that case, it is a behaviour petition.” They ask, “What do I have to say?” And that does not really matter. It has to be true—as a lawyer, I cannot put them through something that is untrue—but you can practically go on to the internet and cut and paste things such as, “I don’t like the way they control the remote control.”
Q I am conscious of time. I wonder whether either of our other two witnesses has anything to add on the first question.
David Hodson: May I respond briefly to that last point? I would go even further than Nigel. Lawyers specifically go out of their way to make sure that the real heart of the reason why the relationship may have broken down is not in the allegations of unreasonable behaviour, to remove any cause for greater animosity and concern. As practising lawyers we go out of our way to pull back from the distress that these allegations would cause. So although, as Nigel says, it will always be true, we do not put down the real problems at the heart of the relationship, to avoid that.
If I can come to the Law Society’s position, we have throughout supported no-fault divorce and we have been keenly supportive of Resolution in all the steps it has taken. Nigel and I were actively involved in 1996 when that legislation went through. We are keen to support no-fault divorce and actively support the principle of this legislation. We actively support a period of notice as the way of dealing with it, rather than a period of separation, which can have artificial and discriminatory elements.
We have a number of concerns, however, about the structure of the Bill, including the way it is set out, and there are a number of flaws in the Bill. We want the legislation to go through and we want no-fault divorce, but we believe that the Bill should be amended in certain respects before it completes its passage through Parliament.
Aidan Jones: At Relate we believe that the outdated fault-based divorce system leads to animosity and causes conflict between parents, which we believe harms children. We think that it is better to have a system that supports co-parenting in future. We recently did a survey in which 64% of divorcees who responded said that placing blame for the divorce made the process worse for them. There are some quite stark quotes about how difficult that process was. For example: “things had been civil up until that point, very straightforward. Then, after divorce papers, it turned into a war and no one wants to accept blame or responsibility.” We strongly support the changes to the law, as set out.
Q Good morning, it is good to have you with us today. I wondered if you could expand on the changes that were proposed in the Family Law Act 1996, and explain why they have not come forward. What do you think has changed between 1996 and now that means that this legislation should be brought forward? I do not know who wants to answer first.
Nigel Shepherd: I am happy to do so. I think the 1996 Act was extremely complicated. This Bill has the beauty of simplicity, and for the right reason: it concentrates on the principal problem of the fault-based system. The 1996 Act introduced various things such as information meetings and different periods for different situations where there were children or a dispute about the divorce. I think it got wrapped up with those complications, so it was never implemented. It has taken a long time to get where we are today.
I also think that public attitudes have changed considerably. I think people are looking for autonomy and to say, “We are adults, and if one of us believes that the marriage is over, we should have a dignified, constructive way of ending it that focuses on the future, not the past.”
David Hodson: It went into Parliament a fairly good piece of legislation; the perception of many lawyers is that it came out vastly more complicated. It went in with a nine-month period of notice—the structure was the same—but it came out, as Nigel said, with a two or three-stage process. Eighteen months was almost the minimum; if there were children, that went up to 21 months. There was even a provision that it could be further.
The general perception was that it made it far more difficult; although there were media headlines about an easier divorce, everyone knew that it would make it far more difficult as it made it longer. To a certain extent, a longer divorce does not help the public, so there was not too much unhappiness that that particular model as it came out of Parliament did not go through. Why it never went through is a political matter, which perhaps is another matter. The length of the period was the primary problem with the legislation as it came out of Parliament—it was far too long.
Q Nigel, earlier in your evidence you mentioned that people cannot afford to wait two years. Can you explain that a little more? Afford it in what sense—financially or emotionally?
Nigel Shepherd: The position at the moment is that under the legislation for financial remedy, relief, maintenance or transfer of property, the court can make an order only when we have reached what is now the decree nisi stage, which will be the conditional order stage under the proposals. If you need to move on financially, you need to access the orders; even by agreement, the court cannot do that until there is a conditional order.
A two-year wait is a lifetime. Once people have reached the sad conclusion that their marriage is over, they are told that they can get on with some things but will have to come back in two years’ time and relive that, so when faced with the option of, “All you need to do is put down some mild allegations of behaviour, and we can get on with it,” that it the choice they make. That is why those percentages of fault-based grounds are so high. Even where people agree that it is a game they are playing to get through, it still increases conflict; you can still derail those negotiations and have an impact on the family.
Q I have one final question. David, you mentioned flaws in the legislation, and you have also talked about the need for some amendments. Is there a danger, as we go through this process, that we end up in the same situation as in 1996, where there are multiple amendments and we make what is currently quite a simple piece of legislation far more complex than it needs to be?
David Hodson: From the legal profession, we desperately hope not. We want a simple process. Despite what may be thought, family lawyers try to settle all our cases. We try to deal with the crucial elements—issues regarding children and finance—but divorce is not a matter on which lawyers would want to spend any amount of time. We want it to go through smoothly.
Will it change the parliamentary process? We hope not. I agree with Nigel: we think the spirit of the age has changed since 1996. Our perception is of a far greater willingness to accept no-fault divorce from those categories that might not previously have been supportive. The changes that certainly the Law Society would like are not substantial; they do not change the structure or concept of a period over notice. They just try to protect the interest, particularly of the so-called respondents—the sole petition where the person may not have fully been expecting a petition to come through.
Q Could you focus on children for a moment? What proportion of divorces involve children? How will the Bill promote their welfare?
Nigel Shepherd: I do not have the figures to hand, but I can certainly come back to you on that. Self-evidently, a very considerable number involve children under the age of 16. I am sure that is the case. Professor Liz Trinder may have the specific figures to hand. Clearly, children are at the heart of this process. As David said, as Resolution members and family lawyers doing the job properly we are trying all the time to help people focus on what really matters. The children are absolutely the first consideration in that. We know from the research that conflict is damaging to children. It is not necessarily divorce itself; it is the way you divorce. This Bill will help at the beginning to have a more constructive approach to that and help people focus on what matters.
David Hodson: It is curious. The reasons for a divorce do not reflect on children issues and they will not be dealt with in financial issues, and we do not deal with them. But it is the psychodynamic of the couple that every so often a client will say to one, three or four months under way, “I still resent the fact that I am the respondent. You do know that this is equally to blame,” and we say, “Yes, we do, but it won’t have any bearing on children or financing”. However many times we say it to our clients, there is a residual feeling in their mind: “How am I the respondent? I shouldn’t be. I may be partly to blame, but I’m not wholly to blame”. It is the black-and-white element that we have one petitioner and one respondent.
One of the things the legislation has to bring through is that we have to review how we call people in this process. It is the softer elements around the legislation that are as important as the harder elements. For example, let us not get rid of the idea of an applicant and a respondent; let us have “in the marriage of”, and let us name the parties. Even if one person applies for a divorce and the other one responds to it, let us call it a divorce between two people, without having a litigious element in the heading. I think Relate and others would also certainly want to support those softer elements, which are crucial to this process as Parliament and society look at amending this law.
Aidan Jones: From my perspective, the best I can do is quote one of our senior practice consultants, who says:
“The proposed legislation sends out a much healthier message for children. I have known plenty of couples over the years who have agreed together to separate, but one had to cite unreasonable behaviour and the other had to go along with it. This can cause issues. Blame is toxic and never helpful. A great deal of the work we do in the counselling room is around helping people to understand this and to take responsibility for their own actions. It is possible to have a healthy divorce. This legislation will make that easier to achieve”.
Q The new procedure will introduce a minimum clause between application and the conditional order. Can I begin by asking Aidan how the minimum pause between application and condition order will improve the wellbeing of couples and children in practice?
Aidan Jones: Between application and decree nisi?
Aidan Jones: It gives the potential for those couples to consider their position and seek help and support through counselling, for example, that we can provide. It allows them to consider carefully before proceeding. We support that period of consideration. The 20-week period up to decree nisi is important. We think that is the right place to put it. Our view is that, when it gets to decree nisi, the big decision is almost made in a lot of cases. The potential for people to have a longer period of consideration is very important.
David Hodson: This is one of the primary concerns the Law Society has about this structure. We are very anxious. The respondent to a sole petition may be unaware of how seriously the other spouse feels about the marriage—they may not be expecting a divorce. Then, not only does she/he receive a divorce petition, as we still call it, but they also receive an application for financial claims. From day one, we have not only the divorce time period but the financial claims running.
The Law Society’s strong recommendation is that we carve out, within the 26 weeks, a three-month period where there are no financial proceedings. Then the respondent spouse is not facing the claims to make full disclosure—once that happens, the thinking moves on to “Oh, we have now got to resolve matters post-divorce.” We are very keen for there to be a period of reflection and consideration, which is what we had in the 1996 legislation in another form, to give an opportunity to pause, reflect, talk, maybe to have counselling, maybe in some cases to have reconciliation and maybe for one party to get up to speed with the other party. It is the constant experience of divorce lawyers that one party may have come to terms with the ending of a marriage before the other, so we are dealing with a very different emotional timetable.
This three months will not be of any prejudice. If urgent applications have to be made for interim provision, that is fine. It will not affect children or domestic violence, which are always separate proceedings. It just is a litigation-free zone for three months. We are not in any way saying there should be an extra three-month period—it is part of the 26-week period. After that, it is fine if couples want to say “Hey, let’s just get on with it by consent”, but for those who say they would like a pause, this legislation needs to find somewhere to say: “We want to give an opportunity for consideration, maybe of reconciliation, maybe a pause in the proceedings.” At the moment it does not. As Aidan said, and as the Government consultation paper said, it would be between the conditional order and the final order. That is the wrong end of the process. Have it at the beginning—a three-month period.
Q From your perspective, would that allow enough time for everything to be reconciled within that timeframe?
David Hodson: Is it possible to deal with financial matters in litigation in six months? No. In the central family court, where I sit part-time, you would normally expect nine months from what we call a form A, when the application is started off, until the financial dispute resolution hearing where most cases settle—the final hearing. That usually takes nine months, so it could not be done in the six-month time period anyway. We have other concerns about pensions and policies. It could not be done in three months or six months, so that argues for a nine-month period. We are not arguing for it. We are agnostic about six months.
Q Nigel and Aidan, do you agree?
Nigel Shepherd: I think the Bill has it right at the moment, and I think it is very important to recognise that that kind of amendment runs the risk of leading us down the road of complicating things. We have a unique opportunity at the moment to get this over the line on the key principle of no-fault divorce. I think the purpose of the Bill is that simplicity. We can deal with issues of financial application separately if we need to. We can certainly discuss that. What I would not want to do is risk losing this opportunity for the sake of amendments that make it more complicated than it is. That would be our key point.
Aidan Jones: I agree with that. The core and most significant issue is the fault-based system. I think we should seek to resolve that, and anything that puts that at risk, for me, is something we should consider very seriously, so I would support that we keep it simple and deal with the major and most significant issue. For me, the most important part of that is the impact on children and their life chances, and the Bill will go a long way to resolve that, or to make that a better situation.
Q Sorry, Aidan used the word “easier” during his evidence, so I thought that was kind of implied. Nigel, if you could explain.
Nigel Shepherd: Yes. I do not think it makes it easier in the sense that I think a couple who have been married deciding to get divorced—or one of them being unhappy—is very rarely easy, for us as practitioners. What the process currently does is it makes it harder than it needs to be. It increases conflict.
Q So, relatively—I am sorry about the semantics, but I think they are important—if the current process makes it harder, surely, by implication, this makes it easier? You cannot argue both of those points. You clever legal people are always at this.
Nigel Shepherd: It is a matter of terminology. This no-fault process makes it kinder and more constructive. I do not think you will ever get rid of the—
Maybe we just have to hear about it as evidence.
You definitely used the word “easier”—and the transcript, I am sure, will tell us that.
Aidan Jones: The quotation from our senior practitioner used the word healthier—it is possible to have a healthier divorce. I think that is a better way to describe it.
Q Sorry; you were referring to one element of it, saying, “This is easier.”
David Hodson: It makes it a far more respectful process. Our existing law is harder, because we make our clients go through the process of inventing allegations of unreasonable behaviour or making allegations of adultery when that may not have been anything to do with why the marriage broke up.
Q Or, occasionally, identifying them if they actually do exist.
David Hodson: We do not now have to. If I may say this, with respect, we changed the law a few years ago so that you no longer name a co-respondent. That is just part of what we try to do to reduce the tension. Why do we have to name third parties who may or may not have anything to do with the reason a marriage broke up?
Q Do we have any idea in percentage terms of how many people start proceedings but do not conclude them?
David Hodson: Can I deal with that? That is a real concern for the Law Society. There is some doubt about the statistics. It is a particular concern with online divorce. My firm deals with the online divorce process, and there is a real worry that the number of divorces that do not proceed has increased with the online divorce process. There were 13 on Christmas day. We have asked the Ministry of Justice for figures under the new process, which came into effect in April last year, where the public could issue their own divorces. Solicitors came on board in August.
How many members of the public issued their own divorce through the online process? We have asked the Ministry of Justice, which has given us some figures. My firm has done a freedom of information request and we hope to get a reply in about two weeks. I think it will show that there is a higher number in the online process than there was in the “hard” process, when we actually put it in the post, as it were, and actually had to file it.
That brings us on to a concern about the effect. We have to allow a process. If people are going to say that, it is another reason for the three-month cooling-off period. As I say, we have asked the Ministry of Justice, and if the Ministry of Justice can give those figures to all of us around this combined table earlier, it would be very helpful. The suspicion must be that the figure for litigants-in-person through online who do not proceed is higher.
Q One final question from me: is there something we could do that would be more significant in removing the pressure or burden on children, other than removing the fault element?
Nigel Shepherd: I do not think so. This Bill does what it says on the tin in that respect. It is really important to get this and to focus on that big picture.
Q Hang on a second. The last time we tried to change this was in 1996, and it did not change. This feels like a fairly unique opportunity in terms of timescale, so is there something else we could be doing that would be more significant?
Nigel Shepherd: I think we need to continue to work on how we improve our systems, but I do not think this Bill is the vehicle for dealing with the fault aspect, which we know is damaging to children, and we can achieve that.
Aidan Jones: There are things we can do—not in a legal sense, but in a sense of, “How do we support people in healthy relationships?”—but I would not include them within the Bill. I would want Government Departments and the Government to look more widely at how we can support people through their relationships and in bringing up children. That is really important and you make a good point.
David Hodson: Children have been removed from the divorce process. They are not even named in the divorce petition. A few years ago, the requirement to set out their names and dates of birth was completely removed. One can get a divorce petition through now and have no idea whether they have one child, no children, many children, who they are living with and so on. That was a previous Ministry of Justice decision. The statutory instrument simply removed all reference to any children in any divorce papers. A few years ago, the judge had to express themselves satisfied with the arrangements for the children. That has also gone, so in the legal sense, the children have been completely removed, but they are still the children of a couple who are having to go through a no-fault divorce, and we do not want the children or their parents to have to go through that.
I think we had better move on.
Q I have a technical question about the Bill. Clause 6 gives the Lord Chancellor wide-ranging powers to amend primary legislation. Are you comfortable about those powers? The clause is titled “Minor and consequential amendments” but that is a bit of a misnomer.
David Hodson: I think there is an agreeable difference between the Law Society and Resolution here. We would like to see any material changes to the expectation of the structure set out in primary rather than secondary legislation. We are keen for the public, at the end of this process, as the measure goes through Parliament, in either a few weeks—some would think that is too rushed—or in a few months, when there is an opportunity for public debate, to understand what the divorce process is all about. The 1996 measure did at least allow the public to have a discussion about what it was like. We are not having that discussion at the moment, partly because this is going through fairly quickly and partly because it has not got into the public arena, so we would be very keen to say this: if the Ministry of Justice has any concerns about bringing any of these aspects forward, it should put them in the primary legislation.
There is another reason. At the moment, clause 1 does not read well. I mean no undue criticism of the drafter, but nobody could pick it up and read it. I tried to do that on Thursday at lunchtime and I really struggled. It is not a progressive process, it does not use straightforward language, and you cannot see it. Nigel and I have had a happy disagreement, but when is the irretrievable breakdown of the marriage? In terms of what we need to have within this structure, I agree with Nigel that we do not want to clog it up, but there are some crucial elements that we think should be brought into this legislation, as opposed to having—dare I say?—Henry VIII-type powers. Henry VIII is probably not the right person to bring up in the context of divorce, and Henry VIII-type powers probably should not be in, of all things, this divorce legislation.
Q To pick up on something that you said, Mr Hodson, the reality is that the language of applicant and respondent is important because it gives control to the person—I am thinking particularly of women who are trying to leave an abusive relationship. If it is changed, how do they maintain control of the next stage of the process, which clearly this Bill does not cover, in terms of the finances and protecting their children and ensuring that they are in control of the timetable and, indeed, the outcomes on that side of things?
David Hodson: It is totally unaffected by that particular provision. Domestic violence and children proceedings are under another piece of statute. They would often be dealt with by a different judge on another occasion. None of the financial elements would actually overflow into those two, so there is absolutely no prejudice whatever.
In terms of the timetable for the three months, a person might want to bring an application for interim financial provision. One reason why we have so many fault-based divorces in this country is that, in some instances, people need financial help and they can get it under our law only against what we used to call ancillary relief. Some countries have free-standing provision—I think Sir James Munby is coming, and it would be interesting to ask him. I think he supports free-standing financial provision—so you do not need a divorce. Many people apply for a divorce as a route to applying for financial provision. They would not be prejudiced in any way by having this litigation-free zone. They could apply straight away, which must be right.
Q But in terms of that direction and that messaging, if you are no longer the applicant, although you are the one applying, that changes the whole sense of who is fighting for this, because the financial arrangement side is still often a fight.
David Hodson: It does not—forgive me. You would often have a petitioner for a divorce who may actually be the respondent to the financial claims. It gets awfully confusing, but you would often have the petitioner, who actually seeks the divorce under our present law, and it may be the respondent—maybe the wife—who then makes the application in form A, because she needs the financial provision, and she would be called the applicant in the financial claims. Because they are financial proceedings, they are separate to the divorce and they have a separate court hearing. She is the applicant and she would actually be the one who would control the entire timetable. She would be the one who made the opening speeches if they were at a hearing. She is the one who would actually be the applicant. The divorce is literally divorced from the financial process apart from two or three dates, and completely divorced from domestic violence and children proceedings—and rightly so.
Q To be clear, the Law Society would like us not to take out clause 6. I have yet to see what the views of the others are. Is that because you are against Henry VIII clauses generally, or do you think one is particularly inappropriate in this Bill? This is being put forward as an uncontentious Bill, but that is rather undermined by the desire to get it through simply and quickly without amendment. There is an attempt to have your cake and eat it by leaving in the ability to amend it completely in future.
David Hodson: Clause 6 must stay in; there has to be the power for Government—for the Ministry of Justice—to bring in statutory instruments. We are saying that if the Ministry of Justice has in mind any changes, and if there are certain elements within the structure of the process of divorce that are in question, let us debate and understand them now, have a discussion, and bring them in there. That is certainly not to suggest that there should be a much longer process and much longer clause 1. If some of these items—not a lot; just a few of them—that we have put in the Law Society briefing paper are going to be considered, they should be brought forward and discussed now.
Nigel Shepherd: Resolution is relaxed about the current structure of the Bill. We feel that we can proceed with this as this is, and we can deal with some of these details in secondary legislation. Again—I am banging the same drum—our primary focus is on removing fault from this process, and that is what we want to get over the line.
Q You want to get that through quickly before we mangle it. Then you are happy to trust Government to do whatever they like in the future in this area of law. Is that your view?
Nigel Shepherd: We cannot ignore the current political uncertainty and the priorities elsewhere. We are delighted that time has been found for this, and we do not want to lose it.
Q It is just slightly suspicious. The same thing happened with the Marriage (Same Sex Couples) Act 2013. There was a desperate rush to get it through without bolting anything on. Then we had to have a series of short Acts, some of them private Member’s Bills, dealing with issues of relationships. There were lots of other things we could have dealt with in the Act, such as cohabitation and humanist marriage, and we dealt with equal civil partnerships in other ways. You just want to get this through and done.
Nigel Shepherd: Yes, exactly. Are there other things that we would like to do? Yes. We would like to get legal aid back, at least for early advice, to help couples and steer them towards mediation and in the right direction. Yes, we would like to reform the law for cohabitants, to give protection to the vulnerable. It is just that this is not the Bill to do that. When I say that we are relaxed at Resolution about the secondary legislation point, it is not that we think that the primary legislation is flawed, but are just ignoring that to get it through. We think it is fine, but there are details that clearly can be dealt with in secondary legislation, and we are comfortable with that.
David Hodson: Would it be helpful if I explained one of the primary concerns of the Law Society? It relates to the respondent—forgive me for using that language; the person receiving a sole petition. When does the 26-week period run? At the moment, under this legislation, it runs when the petitioner—again, forgive me for using the old-fashioned language—sends the petition to the court. When it is served, it is served through a period of notice, and there are service provisions. The legislation intends for the 26 weeks to run from that date, but the respondent may get it weeks—sometimes many weeks—later, because there are delays at the court; I do not make any further points on that, but it may take weeks, sometimes longer, for it to be issued. If somebody is abroad, the period of service may be longer. There may be a need to find the person.
In our opinion, we have fairly arbitrary, unfair, discriminatory provisions for the respondent spouse, who, we must remember, may not know this is coming. There may not have been a letter before action. They may be surprised to know how seriously the other spouse was thinking of ending the marriage—“Oh, I didn’t realise it was such a bad state that they would issue a divorce petition.” Perhaps they are not living together and the person has to be found.
It is wrong and, we believe, quite unfair for some spouses to have 24 or 20 weeks, and others to have 15 weeks, if it takes longer to serve. One of the fundamental elements of what the Law Society wants is to make it clear that the 26 weeks—if that is what Parliament deems is the right and appropriate period—run not only for the petitioner who issues the petition, but for all respondents, from the date they receive it.
The Ministry of Justice consultation period ums and ahs—my words, not theirs—as to whether the period should run from the date of the start of proceedings or the date of service, and in the end has eventually come down on the date of the start of proceedings, but they admit there is good reason for it to be from the date of service. It has to be from the date of service; otherwise, it is grossly unfair, and we are creating a law where some respondents have 24 or 23 weeks. That cannot possibly be right. If Parliament decrees that we should have a divorce after 26 weeks’ notice, that should not be the notice given by one spouse; it should be the notice received by the other. When we talk about whether to have clause 6, that is one of the fundamental elements that we say should be debated and discussed in this forum, and more publicly, to see how we feel about respondents having far less than 26 weeks.
I am conscious of the time, and I want to bring the Minister in shortly. Does anyone else have a simple, straightforward question they have not had a chance to put yet? I guess it is over to you, Minister.
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.
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.
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?
Minister, this will have to be your last question.
Q Do not worry, Chair; it is. To follow up on my previous question, what assessment have you made of the introduction of a joint application for a divorce? How might that change the dynamics of the process?
Nigel Shepherd: We are all in favour. It is absolutely right, and people ask for it all the time. People come in and say, “We both agree. Can we make this a joint decision? It is really important because we want to say to our children that this was a joint decision that we made as adults, rather than having Kramer v. Kramer—an applicant and petitioner against, with one person being blamed and the other not.” We are absolutely in support; it is a crucial part of the Bill.
Aidan Jones: We absolutely support that as well. We believe that is the right message. When the sadness of a divorce is approaching, it is the right message for the children to see that two adults can still co-parent and get on with each other. In the interests of the children, it is the best way forward.
David Hodson: We tried it under the present process in a number of cases where we had agreed particulars of unreasonable behaviour and cross-petitions. In other words, it went through on the petition of both the petitioner and respondent. Then we got the decree absolute, and we still had the original petitioner described as the petitioner, though it had gone through on the petition of the respondent as well, because there was a joint petition with jointly admitted unreasonable behaviour on both sides. That was so unfair. It is the unfairness of that decree absolute. If only we could have, “This is the marriage of x and y, and they have jointly asked for this.”
I think—we can discuss this—there will be a number of instances where there is a sole petitioner and a joint application for the decree absolute. Again, that embraces what we want to see—that by the end of the period before the application for the decree absolute, they have both come to terms with it. They may not have been okay with it at the beginning, but if at the end, they have come to terms with it, how much better that would be for the children, the future parenting and all those other issues. That is why we are desperately keen to see not only a change to our laws, but a change in the terminology—the way the forms are set out—because that signals so much more for the couple.
I thank the panel for the evidence. We will move on to the next panel.
Examination of Witnesses
Professor Liz Trinder and Mandip Ghai gave evidence.
Good morning. May I ask the panel to introduce themselves for the record, please?
Professor Trinder: I am Professor Liz Trinder from the University of Exeter.
Mandip Ghai: I am Mandip Ghai, from the charity Rights of Women.
Q Does this Bill improve things for those who have been living in an environment of domestic abuse?
Professor Trinder: Hugely, I would say. At the moment, probably about 20,000 petitioners are alleging domestic abuse in behaviour petitions. That is a very substantial number. I led the first major study of divorce law, funded by the Nuffield Foundation. One of the things we did was to talk to people who have been going through the process. Certainly, where there has been a background of domestic abuse, people had a strong sense of not wanting to inflame the situation or put themselves more at risk by alleging particulars of behaviour. About 20,000 petitions annually involve allegations of domestic abuse and not to have to put those allegations forward would put those petitioners, particularly women, in a much safer position.
Mandip Ghai: We would agree with that. As part of my role at Rights of Women, I regularly advise survivors on our telephone advice lines. They have a real concern about issuing a divorce petition at all, and about the perpetrator’s reaction, but they have particular concerns if they are having to cite domestic abuse on the petition. The Bill will also, we hope, prevent perpetrators using the threat that they will defend petitions to try and control her or have the upper hand in negotiations about finances and children.
We also find, often, that if the perpetrator issues a divorce petition first, she has to agree to a divorce based on her unreasonable behaviour, when in fact the reason why the marriage broke down was his abuse towards her. We support the Bill.
Q Do you think we will see an increase in applications in this cohort of families, if the process is easier?
Professor Trinder: I dispute the concept that it would be easier. I echo Nigel Shepherd’s point that it would be kinder. There is absolutely no reason why there would be a significant increase. In effect, the Bill just changes the way irretrievable breakdown is evidenced, by removing the need to present allegations that may or may not be true. What we may see—it happened in Scotland and other jurisdictions—is that there will be a temporary increase or spike in the number of divorces that are being brought forward. The law would not cause an increase in relationship breakdown; what it would do is enable people who are waiting for two years, sometimes five years, who are in a queue already because their marriage has broken down, to move on with their lives, sort out permanent agreements for their children and resolve money issues without having that long wait.
Mandip Ghai: For survivors who are thinking about leaving an abusive relationship, the point of separation is often the most dangerous time for them. There are lots of things they are thinking about, not just his reaction to the divorce. The Bill would just be one thing that would hopefully help her leave the abusive situation.
Q To expand that, parties will still have to wait a year before applying. In your opinions, is there a danger that that will exacerbate any existing abuse?
Professor Trinder: That is a difficult issue, about which we have thought a lot. In general, the Bill very helpfully places responsibility for determining whether a marriage has broken down on the parties. In almost all instances, it is entirely up to the parties to determine whether the relationship has broken down and make that declaration. My only reservation with the one-year marriage bar is that it possibly has a symbolic importance to Members here. If the threat of removing the bar were to jeopardise the progress of the Bill, then I would not support it. Part of the reason for my making that statement is that there is not much evidence for needing to remove the bar.
In our study, we looked at a nationally representative sample of 300 undefended cases. Only four of those were brought within year two—months 12 to 24. Only one was brought in the 13th month, as soon as it was legally possible to bring those proceedings. Numerically, the size of the population is small. In those four cases we also looked at what the case was about: why the marriage had come to such a precipitate end, whether it was domestic abuse, and whether it was women trying to flee an abusive relationship. None of those cases involved domestic abuse. That is not to say that there would not be domestic abuse survivors wanting to leave a marriage soon, but the numbers are very small and divorce in itself is not a protective measure.
There is the potential for nullity in the case of a forced marriage. Non-molestation occupation orders would be a solution. In any case, women would be in a better position in that, although they would have to wait 18 months, they would not have to disclose particulars of behaviour.
Mandip Ghai: We would obviously want survivors to be able to end an abusive marriage as soon as possible. We would agree with the one-year bar if concerns about it were going to derail the Bill: looking specifically at the impact on survivors, there is not enough evidence. I would also want some evidence on the impact it would have on migrant women and migrant survivors. I do not have enough information on that at the moment. There is also the issue of the potential impact on immigration status if someone’s stay is dependent on their relationship with the abuser. We do have concerns about the one-year bar, but we would agree on that if it was going to derail the Bill.
Q Is there some evidence that changes of the type proposed by this legislation would lead to an increase in the number of divorces? I am reading a couple of cases here. Leora Friedberg found in her research that unilateral divorce laws were responsible for about 17% of the increase in divorce rates in the US during the 1970s and 1980s. Research across Europe by Libertad González and Tarja K. Viitanen found that
“reforms that “made divorce easier” were followed by significant increases in divorce rates”
and, moreover, that the effect of the move towards no-fault divorce laws seemed “permanent”. Is there research suggesting that we could see not just a spike in divorce but a continuation of increased divorce levels?
Professor Trinder: No.
There are two here.
Professor Trinder: There is a large number of academic studies looking at the relationship between divorce rates and divorce law in a range of jurisdictions. You can always find one or two studies that will be outliers, particularly from the United States where there are aligned researchers. The strong message from the consensus of academic opinion is that there is no relationship between the substantive divorce law and divorce rates. The paper by Libertad González that you reference clearly said that procedural changes can have an impact on divorce rates, not the substantive law. If you look at our law, we have fault. Of all divorces, 60% or so are proceeding on fault. They will all get through. Fault is not a bar to achieving a divorce at all.
Q What do the public think about whether we should maintain fault? Has any research suggested that the public are happy with the idea of there being fault?
Professor Trinder: It depends on how you ask the great British public, and how it is put.
Q Here it states that the Government’s own consultation found that a mere 17% of respondents agreed with proposals to replace the five facts with a notification process, and 80% were against it. Is that incorrect?
Professor Trinder: No, I think those are the accurate figures from the Ministry of Justice. The MOJ launched a consultation and the vast bulk of responses were supportive of the proposals. A small evangelical Christian organisation then e-mailed all its members, and there was a flood of responses.
Q Why did you mention it then?
Professor Trinder: They are valid as the views of evangelical Christians, but they are not a valid representation of the British public. In opinion surveys by YouGov, a majority of the population are supportive of the specific reforms and the removal of fault entirely. In the main, evangelical Christians are not supportive of the reforms, but the public in general are, and that is much more persuasive to me.
Mandip Ghai: The problem with relying just on statistics is that that does not include various sections of society, such as survivors of domestic abuse, who probably did not respond to that consultation. They probably did not know about it, or may not have felt confident enough to respond to the consultation.
Q Why would you make that assumption? Why would they not know about the consultation and why would they not respond? On what basis do you make that case?
Mandip Ghai: When we spoke to people on our advice line, they did not know about it. I am basing it on my experience of speaking to survivors on our telephone advice lines. The reality for those women who we hear on our advice lines and who are going through the divorce process is that they find having to state the behaviour particularly difficult. From our experience, removing the fault-based system would help them to get through the divorce process in a safer way.
Q Is there evidence that demonstrates clearly that no-fault divorces are any less damaging to children than divorces in general? Regardless of whether fault and blame are apportioned, it is still a traumatic event for families, and it involves changed circumstances. We do not have this provision here, but could you point us towards something from north of the border or overseas that suggests that it would definitely ease the anguish of families in that situation?
Professor Trinder: Just now I mentioned that 60% of divorces in England and Wales were based on fault. North of the border in Scotland it is 6% to 7%. Are we, south of the border, so much more badly behaved in marriages than the Scots? [Laughter.]Again, it’s a game. The system is gamed, and the law currently incentivises conflict, because the only way to get a divorce within a reasonable time is to make allegations of fault. It is more likely that 50% of divorces are about behaviour because you do not need an admission, as you do with adultery. In the surveys that we ran as part of our study, that was much more likely to cause difficulties in sorting out child arrangements and to mean contested financial proceedings. The point is that divorces are going to be incredibly stressful and, in many cases, conflictual. The problem is that the law adds needlessly to that conflict. The fault process is a routine and a legal charade that adds nothing. Through allegations and seeing behaviour in black and white, it can derail couples who are managing their divorce reasonably well. It can derail things in a way that adds nothing to the process, and is just a needless problem that does not need to be there.
Q Do you have anything to add?
Mandip Ghai: I agree with that. Lots of research shows that it is harmful for children to live in a family in which there is domestic abuse, so anything that helps survivors of domestic abuse to separate and leave that situation would prevent any further harm to children, caused by witnessing domestic abuse.
Q Professor Trinder, I just want to pick up a point that you mentioned about international research and evidence from countries with similar legal jurisdictions as to whether no-fault divorce leads to an increase in divorce. You mentioned the United States, but what is there in New Zealand, Canada and Australia, in particular? Can you help us with that?
Professor Trinder: Most of the research exploring the relationship between divorce rates and divorce law has been from North America and Europe. I cannot think of anything from Australia and New Zealand, but their approach has been—
Q So is there an absence of research from countries with similar legal jurisdictions? The United States is similar, but it is not that close. The closest are the ones that I have mentioned.
Professor Trinder: In the United States, each state has completely different laws. Australia and New Zealand are different in that they have had separation divorce. In Australia, the only ground is a one-year separation, which has been in place since 1967. We did a comparative study as part of the research and really struggled to find Australian and New Zealand respondents, academics or experts, because there is just no research on the grounds for divorce. It is just not an issue because the reform took place so long ago and that is just how things are.
Q How do their divorce rates compare with ours?
Professor Trinder: They are very similar. It is also worth noting that the divorce rate between England, Wales and Scotland is almost identical, yet we have 60% fault, while Scotland has 6% to 7%. Fault is not influencing the divorce rate at all. That makes sense because divorces are granted in England and Wales and, with the exception of Mrs Owens, fault is not a barrier at all.
Q Mrs Owens’ case brought this to prominence in recent years. How many other such cases have there been that I may have missed?
Professor Trinder: It is extremely unusual. About 2% of divorces in England and Wales intend to defend. Most of those cannot actually continue with that, and only about a dozen out of 100,000 cases go to a fully contested trial each year. Owens is the only case that we are aware of in the last two decades in which the decree has been refused. We also looked at defended cases and had a sample of 74, and none of those were upheld. It is worth noting that in those defended cases, most of them were not defences of the marriage. It was not somebody saying, “No, I don’t believe that my marriage has broken down.” Mostly, they were triggered by the law itself. People were objecting to the allegations of behaviour made against them, including what appear to be perpetrators who defended allegations of quite serious domestic abuse. Because the court tries to settle cases, rather than go to a fully contested hearing, what happened typically was that the particulars were stripped out, so the line went through references to very serious assaults and they were removed from the particulars.
Q You heard the evidence from the previous panel about a barrier to divorce being the cost of the fee. Is that something you have any evidence for or opinion on?
Mandip Ghai: Yes, I would agree with that. Obviously, fee exemptions are available, but lots of people will not fall within the criteria to be exempt from the fee and will not be able to pay the £550. For survivors particularly, the option of sharing the fee with the respondent is not there, and even if she is able to get a costs order from the court to say that the respondent has to pay the court fee, usually he does not pay—
Q So is the exemption system not working?
Mandip Ghai: Not yet. For a lot of people, it is not working.
Professor Trinder: I would add that we had interviewees in our sample who had been saving up for their divorce over several years. A couple of years ago, the fee went up from I think £410 to £550, literally overnight, and this man was in tears describing how he then had to start saving again. His divorce was almost in his grasp, after he had saved for several years, and then again taken away. The fees are very high—internationally, they are very high—and they are unaffordable for many people.
I think we shall move to the Minister.
Q Thank you both for your evidence so far. For the benefit of the wider Committee, will you set out some specific examples, where there is coercion and control in a relationship, of how the current process facilitates that coercion and control?
Mandip Ghai: Some of it has been mentioned already. Professor Liz Trinder has already mentioned how defending divorce petitions can be used as a tactic. One other thing that we find—I disagree with the previous panel, one of whom suggested that the time period of 20 weeks should start from service—is that sometimes perpetrators will avoid service, deliberately not responding to the petition even though they have received it, or avoiding being served with it, as a way to try to control the applicant and stop her from proceeding with the divorce. They might suggest that they will consent to the petition proceeding, or accept service, if she agrees not to make any financial claims or agrees various things related to children.
Professor Trinder: I agree absolutely with that. Defence is a very stark example; you get respondents defending—causing huge distress to and huge financial costs for the petitioner—not because they believe that the marriage is repairable or saveable but because they simply want to control the other party. Looking at the case files, there are very clear examples of that, so the removal of that ability to continue to control the petitioner in that way is a really welcome future from the Bill.
Mandip Ghai: The other way, which I mentioned earlier, is that sometimes the perpetrator will issue the divorce petition first to prevent her starting divorce proceedings based on his behaviour.
If there are no further questions, I thank the witnesses for their evidence. Thank you. That brings us to the end of our oral session today. The Committee will meet again this afternoon to begin our line-by-line scrutiny of the Bill. Note that we will be in Committee Room 9 at 2 o’clock.
Ordered, That further consideration be now adjourned. —(Matt Warman.)
Adjourned till this day at Two o’clock.
I beg to move, That the Bill be now read a Second time.
Marriage will always be one of our most important institutions. It is vital to our functioning as a society, as we all know instinctively from our own lives and from the lives of family and friends. Rightly, then, none of us is indifferent when a lifelong commitment cannot continue, but it cannot be right for the law to create or increase conflict between divorcing couples.
I am encouraged by the many colleagues and others who have told me that the law must change to take unnecessary conflict flashpoints out of the legal process. Like me, they believe in the importance of marriage but see the destructive effects of what the law demands. People going through divorce already have to face more than enough emotional upheaval without the conflict that can be created or worsened by how the current law works.
I have reflected at length on the arguments for reform, on what people have said in response to the Government’s proposals and on the painful experiences we all know from talking to family and friends. I have heard from people who have been through divorce, from people who support divorcing couples through the legal process and from people who say they cannot afford to live apart for two years—without finally sorting out their finances—but, at the same time, cannot bring themselves to throw hurtful allegations.
The Bill responds constructively to the keenly felt experience of people’s real lives. This is a Bill for anyone who agrees that the end of a relationship should be a time of reflection, and not of manufactured conflict.
I warmly congratulate the Government and the Secretary of State on introducing this Bill. I think I have married more people than anybody else in this House, in the transitive use of the word. I was always painfully aware that, when two people come together, it may well be that, in the end, they need to part, but the idea that they would have to prove in court all sorts of reasons for why the marriage had fallen apart—relying on the common law understanding of adultery, for instance—is just nonsense and adds to the sense of pain that there could already be within a family.
I am grateful to the hon. Gentleman for his remarks, and this Bill is by no means anti-marriage. As he rightly says, this Bill seeks to ensure that, in those unfortunate circumstances where a marriage comes to an end, it comes to an end in a way that minimises the conflict between the parties. That, in my view, has to be a sensible way forward.
There is undoubtedly fault in a divorce but, in my experience from continual exposure at constituency surgeries, the attribution of that fault leads parents to use their children as weapons in a continuing battle with their former partner.
My right hon. Friend makes a good point, and it is worth bearing in mind that, where children are involved, it is all the more important that we minimise the conflict. The current requirement incentivises that sense of attribution of fault, which does nothing to ensure that the relationship between the two parents can be as strong as possible, and it is the children who lose out in those circumstances.
I have thought about this with care. Obviously, to practising Christians and those of other faiths, the end of a marriage is not to be taken lightly, but I am glad the Secretary of State has accepted the proposition put by my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) that causing more conflict at the end does not help.
Will the Secretary of State confirm that in no other respects any of the protections for often the more vulnerable party to a marriage, the woman, will be affected by this measure, particularly in relation to financial arrangements and the custody of children, and that it simply removes the evidentiary requirement for a fault to be attributed to one side or the other?
My hon. Friend, the Chair of the Select Committee on Justice, is right. This is about the attribution of blame and fault, and no more than that. Indeed, the protections in place for the vulnerable party remain just as they are. It is often the vulnerable party who suffers most from the need to attribute blame, because that can be difficult. In the context of domestic abuse, for example, it is striking how the likes of Women’s Aid have been very supportive of these measures because of their concern that there might be women trapped in marriages who do not want to attribute blame because they feel that may result in a further deterioration in the relationship.
The truth is that when a marriage or indeed a civil partnership has sadly broken down and is beyond repair, it stops benefiting society and the people involved. At worst, continuing in a legal relationship that is no longer functioning can be destructive to families, and the law ought to deal with the reality of marriage breakdown as constructively as possible. The current law does not do that. The requirements of the divorce process at present can often give rise to a confrontational position, even if the decision to divorce is mutual. The incentive to make allegations at the outset, to avoid otherwise waiting for two years’ separation, becomes ingrained. Divorce is traumatic, and children are inevitably affected when their parents separate—that goes without saying. I agree that marriage has long proved its worth for bringing up children, but the reality is that not all marriages last. The law should deal with that reality as sensibly as it can. When a marriage has failed, we have to take a serious look at how to reduce conflict for everyone involved, not least for children. Research shows that it is conflict between the parents that has been linked to greater social and behavioural problems among children, rather than necessarily the separation and divorce itself.
I very much welcome the proposals in this Bill. Getting rid of the fault-based approach to divorce and the conflict is a good thing, as is ensuring that people do not have to wait for two years. Does the Secretary of State agree with me and with Resolution, the organisation for family lawyers, that we also need to provide earlier advice for cohabitees who believe that common law spousal rights might exist for them? Legal advice on whether such rights exist would be beneficial. Does he agree that including provision for early advice in the Bill would be welcome?
Obviously, this Bill’s focus is on divorce for those who are married. There is a point about advice where we can have a wider debate. I will focus my remarks today on the contents of the Bill and the argument I am making about the problems with fault in the current divorce system, and I welcome the hon. Gentleman’s support on that. Clearly, there is a debate to be had as to how we can provide support to couples, be that about reconciliation or in other contexts.
Whatever family structure children grow up in, they benefit most from stable, loving and caring relationships with parents and other close family members. We are clear that when parents have taken this difficult decision, children’s best interests are served by minimising conflict during and after the legal process, to support co-operative parenting and positive parenting relationships. This Bill is in the best interests of children whose parents are divorcing. It will therefore remove the harmful requirement for wives, husbands and civil partners in England and Wales to hurl blame or to go through the waiting limbo of separate lives. It will help them move forward more amicably and constructively. It will make a genuine difference to many thousands of children and families who each year, sadly, experience divorce.
It is 50 years since the Divorce Reform Act 1969 gave rise to the law we now have, and few of us will have known anything else. Some among us will have divorced under this law. All of us will be conscious of the bitter experience of friends and constituents who have. Even so, the existing law is not always understood. It allows divorce only on the ground that the marriage has broken down irretrievably. The court cannot hold the marriage to have done so unless it is satisfied of one or more of what the law calls “facts”. Three of the five facts—adultery, behaviour and desertion—relate to conduct of the respondent. The other facts are two years’ separation and five years’ separation, the difference being that two years’ separation requires both parties to agree to the divorce—the same applies to civil partnerships, except that the adultery fact is not available. But the fact someone chooses does not necessarily bear any resemblance to the real reasons the marriage or civil partnership broke down. Those reasons are often subtle, complex, and subjective. Who, if anyone, was responsible is a question that can be answered honestly only by the people in the marriage.
We are probably all aware of situations where a couple have sadly grown apart over time and jointly agree to divorce The current law does not allow them to do so, unless they are first financially able to live apart for two years. They might be forced to present events in a way that serves the system; minor incidents become stretched out into a pattern of behaviour to satisfy a legal threshold, which then bleeds over into how a couple approach negotiations over arrangements for children and finances; or there may be a coercive relationship, where one partner is desperate to divorce but is too scared of the consequences of setting out the evidence of their partner’s unreasonable behaviour to the court. It should be enough that the relationship has irretrievably broken down.
I do know where people are coming from when they say the requirement to prove a fact is useful, because they think that someone must be held responsible for the break-up of the marriage and that this requirement lets the court determine blame for that. The court, however, cannot do so, and the law does not require it to. Instead, making allegations or having to live apart in a marriage introduces conflict or makes it worse—this conflict can continue far beyond the legal end of the marriage and hurt children’s life chances. That is the reason for this reform.
I am grateful to the Secretary of State for the careful way in which he is taking us through these proposals and for his indication of support for marriage. Will he look, perhaps in the context of this Bill, at supporting marriages before they have broken down irretrievably and providing support where couples are under pressure, in order to reduce marital breakdown by intervening earlier?
The last two words, “intervening earlier” are key. Once the point of a divorce is reached, it is likely—the evidence suggests this—that it is too late. The question is: can we provide support earlier? In all honesty, I do not believe that the Bill provides the vehicle to address that point, because if we try to provide that support in the context of the divorce itself, we will be too late. Clearly however there is an argument—one that I suspect is for the next spending review—as to what assistance can be provided to couples at an earlier stage in the process. I completely understand where my hon. Friend is coming from and I very much agree that the point is about earlier intervention, but where someone is going through the divorce process, making that process more difficult and confrontation is counterproductive.
Does the Secretary of State understand the circumstances where a resident parent turns children against the non-resident parent where no abuse whatsoever is involved? That causes estrangement for the child, often for many, many years. Is it not time that we found a legal framework—early intervention is important in this respect—to tackle this problem? I have only recently become involved in this campaign on parental alienation, and I was shocked that hundreds if not thousands of parents are estranged from their children because the resident parent seeks to manipulate the child against a non-resident parent for no reason whatsoever.
I am grateful to the hon. Gentleman for his intervention on a matter that I suspect all of us have had experience of as constituency Members of Parliament as well as citizens. These circumstances are hugely difficult. To some extent, the existing divorce law can somewhat encourage that behaviour, because of the need to attribute blame, but he is right to suggest that this is a wider issue, one that is hard to address in the context of divorce. He is right to highlight the difficulties that can exist and how parents can be alienated from their children in what are difficult circumstances.
When I became Justice Secretary last year, I was able to take a deeper look at the issue of divorce. What became clear to me was that making allegations does not serve any public interest. It needlessly rakes up the past to justify the legal ending of a relationship that is no longer a beneficial and functioning one. At worst, these allegations can pit one parent against the other. I remain deeply concerned that what the existing law requires can be especially damaging for children.
The law on divorce and dissolution is out of step with the constructive approach that family law takes in other areas and that practitioners take every day. It is time to change that. Resolution is the lead organisation representing family lawyers who subscribe to a non-confrontational approach. Resolution’s chair, Margaret Heathcote, has said that
“because of our outdated divorce laws”
practitioners have effectively been working
“with one arm tied behind their backs.”
The Bill will change that.
At the beginning of my speech, I spoke about the confrontational position that the law sets up and about its harmful impact on children. That confrontational position undermines not only good co-parenting but any prospect of reconciliation. I understand concerns about people being divorced against their will. The reality is that under the existing law the court can refuse a divorce only if a legal requirement is not met, and never simply because one party wants to stay married. Only about 2% of respondents say that they want to contest the divorce. Hardly anyone continues contesting all the way to a court hearing. Marriages are not saved at all by the ability of a spouse to contest the divorce.
When I got married, as a Catholic I did not think the option of divorce was open to us. I genuinely thought that under all circumstances our marriage would be forever; my wife decided otherwise. That was a very emotional time. Does my right hon. Friend expect that when the change comes in some people will find it easier to divorce and that there be a spike in the divorce figures? A period of reflection sometimes gives people the opportunity to save their marriage, and that opportunity might be missed under the proposed changes.
I agree with my hon. Friend about a period of reflection. In fact, the Bill will ensure that there is a longer minimum period of reflection for people in a marriage to consider whether reconciliation is the right course. The evidence suggests that by the time things get to that stage, reconciliation happens very rarely, but we are extending that period, so it is not really about making divorce easier but about making it less confrontational.
On my hon. Friend’s point about whether we anticipate a spike in divorces, there is international evidence as to what is likely to happen following such a reform. I shall be open with my hon. Friend: there will be people who are currently waiting for two or five years for a divorce, and that divorce will be brought forward, so the likelihood is that there will be an increase because of that waiting list. However, the international evidence suggests that once that initial spike has been dealt with, in a steady state the divorce rate is unlikely to increase; it is likely to remain much the same. I hope it is clear to my hon. Friend that although we would anticipate that some divorces will be brought forward, the change is unlikely to increase the divorce rate in a steady state.
Let me turn briefly to the measures in the Bill: it does not create a new process, but instead retains the framework of the existing law and removes those aspects that are considered to cause conflict. The Bill therefore retains the two stages of divorce and dissolution orders. 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.
The reform will retain irretrievable breakdown as the sole legal ground for divorce and dissolution. It will replace the current requirement to evidence irretrievable breakdown through a conduct or separation fact with a statement of irretrievable breakdown of the marriage or civil partnership. For the first time, couples will have the option to make this a joint statement, to reflect some couples’ mutual decision to divorce. It will remove the possibility of contesting the decision to end the legal relationship, as a statement of irretrievable breakdown will be conclusive evidence to the court that the marriage or civil partnership has irretrievably broken down.
The reform will introduce a new minimum period of 20 weeks from the start of proceedings to the point at which the applicant—or applicants jointly—can confirm to the court that a conditional order may be made. I hope that that gives my hon. Friend the Member for Walsall North (Eddie Hughes) some reassurance about that moment of reflection. Our proposal will make the court process towards a conditional order less rushed and give couples further time to consider the implications of the divorce. Between 2011 and 2018, around two thirds of cases reached conditional order in less than our proposed 20-week minimum period. That included approximately one in 10 cases within eight weeks, and four in 10 cases between nine and 16 weeks. The Bill also modernises language such as “decree nisi” and “decree absolute”, to bring terms in line with the more modern terms used in civil partnership law.
The reforms I have set out will deliver a system of divorce that is fit for the 21st century. It is time to end the blame game. The system we have now does not support the reality of marriage and civil partnership breakdown. It has been criticised as a system that
“is, and always has been, a sham”.
Those are the words of Sir Paul Coleridge, former family judge and chair of the Marriage Foundation, who, like all of us, believes strongly in marriage but sees that by reforming the law to remove from it unnecessary requirements that can fuel conflict, we will not undermine marriage and will support people to look to the future as they go through very difficult times. For that reason, I commend the Bill to the House.
I welcome the Bill. Labour supports the introduction of a no-fault divorce procedure, which we committed to in our 2017 general election manifesto, and we are pleased that the Government have acted, especially in the light of the troubling case of Owens v. Owens. We will therefore vote to support the Bill if a vote is called at this stage. We will use our time in Committee to amend the Bill, if need be, to ensure that it is the best law possible for those who are already going through a difficult time in their lives.
The existing procedure and law managing divorce and the dissolution of civil partnerships is not fit for purpose and is in clear need of updating. A fundamental problem with the existing law, which is set out for divorcing couples in the Matrimonial Causes Act 1973 and for the dissolution of civil partnerships in the Civil Partnership Act 2004, is that it requires people who seek a divorce to prove that the marriage has broken down, either by establishing fault on the part of one partner, or by showing that the couple have lived separate lives for a number of years. In reality, for those who cannot afford to live in two separate households for years in order to prove that their marriage has broken down, the only option currently available is to establish fault on the part of their partner. That is one way in which the current divorce law discriminates against women, particularly those on a low income, by reducing the options available to them to a fault-based divorce.
Establishing of one of the three faults—adultery, unreasonable behaviour or desertion—can be difficult, and often heightens tensions at an already stressful time. We know the hurt that such heightened tension can all too often cause. There are widespread concerns about the increased risk of domestic violence faced by women who go through this fractious process. Surveys of people who have gone through the divorce procedure show that in excess of one in four people who go through a divorce have cited a fault that is not in fact true, simply because it is their only way to secure a divorce. This is plainly an unacceptable state of affairs, and it is right that the Government are now acting to address it.
A conflictual process is deeply damaging to children’s life chances. Children will of course be better served by parents who co-operate, and if their parents have a constructive relationship. The law is a real barrier to that.
I reiterate the point I made earlier to the Secretary of State, who rightly talked about the impact on children of an acrimonious divorce. We need to protect children from the risk of abuse—everybody would accept that—but if a resident parent turns a child against a non-resident parent, that can cause massive long-term damage to that child. The current legal framework does nothing satisfactory to tackle that particular problem. Does the hon. Gentleman agree that now is the time to look again at what can be done differently in respect of the whole question of alienation and the impact on children?
There are very often issues with how the family courts go about these custody matters. I get lots of cases like this, as I am sure my hon. Friend does. It is an area that needs to be looked at. Equally, some lawyers—not all—can exacerbate the situation in the way they handle the case. I get lots of complaints about family courts, particularly with regard to who is right and who is wrong, and there is a lot of antagonism. As my hon. Friend the Member for Bury South (Mr Lewis) said, this can be very damaging to children.
That is why we are very supportive of mediation in family cases in general, and why we have made announcements in relation to legal aid and early family law advice. I hear my hon. Friend’s point about the role of solicitors not always being helpful, but there can also be problems when people end up being advocates for themselves.
The need to apportion blame and ratchet up the acrimony is one of the main reasons that so many of us want to see an end to this fault-based law—not least because of the impact on children. For example, the present divorce ground of unreasonable behaviour requires allegations that are hardly ever challenged and can sometimes be exaggerated by one spouse against the other, which can exacerbate tensions between them. It also makes it more difficult to agree arrangements for children. Indeed, one of the most urgent reasons for these reforms is to alleviate the harm caused to children, including to their mental health, by acrimonious separations. For a child of a divorcing couple, the divorce can be one of the most difficult times in their life. As the Secretary of State has indicated, the introduction of a no-fault procedure should mean that the whole process can be quicker and less stressful for them. At an emotionally traumatic time, such as a divorce or separation, parents want and need support in order to put the best interests of their children first.
This change to the law has public support and the support of family law experts. Margaret Heathcote— the chair of Resolution, which represents more than 6,000 family law practitioners and is a strong supporter of this change—said:
“Every day, our members are helping people through separation, taking a constructive, non-confrontational approach in line with our code of practice. However, because of our outdated divorce laws, they’ve been working with one arm tied behind their backs.”
In fact, the Secretary of State quoted her himself.
Professor Liz Trinder, who led the Nuffield Foundation’s 2017 research into divorce law, is also supportive of these reforms, saying that
“making people produce a ‘reason’ to obtain their divorce—as they are currently required to do—does not save marriages and instead just creates a meaningless charade that can create conflict, confusion and unfairness.”
And Christina Blacklaws, president of the Law Society, said:
“Making couples attribute fault…can escalate the differences between them in an already charged situation.”
The recent case of Owens v. Owens highlighted a particularly iniquitous aspect of our existing divorce laws: the possibility for one party to attempt to refuse a divorce by defending it.
Does the hon. Gentleman think this change will in any way lessen the seriousness of the marriage contract? Will people entering into it feel that they can do so more lightly because, from a purely contractual point of view, escaping from it is made easier by this legislation?
I know that marriage is technically a contract, but it seems strange to think of it that way when it is such a personal and emotional thing. I do not believe that this change in the law, which is welcome, will lead to an overall increase in the number of divorces in the long run. However, I do think that it will reduce the unnecessary tension, conflict, distress and damage to children in those divorces, which would take place in any event.
In the case of Owens v. Owens, the family court judge refused to grant a divorce to Mrs Owens, who made the application for a divorce in 2015, despite finding that the marriage had in fact broken down. This was because she failed to prove, as required in the 1973 Act, that her husband’s behaviour was such that she could not reasonably be expected to live with him. Mrs Owens’s appeal was dismissed at both the Court of Appeal and the Supreme Court, leaving her unable to divorce her husband until 2020—a clearly unacceptable case. The judges who heard the case at both the Court of Appeal and the Supreme Court expressed their dissatisfaction with the existing law, with Sir James Munby, the then president of the family division, suggesting that divorce law was based on a “lack of intellectual honesty”, and Lady Hale concluding that it was for Parliament to make any changes to the law. It is therefore right that Parliament is now able to take up this issue and make the reforms necessary to ensure that no one has to go through what Mrs Owens experienced in this case.
The new divorce laws that we are considering today should aim to secure a number of desirable outcomes. They should ensure that people can separate as amicably as possible, keeping conflict to a minimum, so that the chances of reaching agreement are maximised and the risk of domestic abuse is as low as possible. Where there are children, their interests must be paramount, and a safe, secure and sustainable outcome for them should be promoted wherever possible. Unlike the existing system, these new divorce laws should not discriminate against women, especially those on low incomes. The new divorce and dissolution laws must also protect vulnerable and marginalised groups throughout the divorce process. In particular, they must not weaken the hard-won rights of LGBT people.
One issue that has been raised by charities working to support victims of domestic abuse is that the Bill as drafted does not remove the bar on petitioning for a divorce in the first year of a marriage. This can leave women who are suffering domestic abuse trapped in the abusive marriage during that year. Will the Secretary of State address that issue during the passage of the Bill, and will he tell us whether he has met Women’s Aid and other charities to discuss these concerns?
Since 2013, legal aid for divorce cases in England and Wales has been withdrawn by the Government—in most cases as part of a wider attack on access to justice that has had a very detrimental impact on family law cases. Groups including Citizens Advice have highlighted how legal aid cuts add to strain on divorcees, and more widely it is lower income people and those with children who are more likely to be litigating in person than any other group. Resolution, which was mentioned earlier, has previously stated that providing legal aid for a single, initial meeting with a lawyer would provide separating couples with clear “signposts” about their legal options and encourage more people to use mediation as an alternative to courtroom confrontation.
Even with the welcome changes contained in the Bill, divorce will still be an often confusing legal process. There is a clear public interest in people being supported to achieve amicable resolutions to financial questions and arrangements for the care of children following a separation. Will the Government therefore commit to reintroducing legal aid for early legal advice for couples going through the divorce procedure?
In conclusion, bringing our divorce laws into the 21st century can form an essential part of the efforts to protect women from domestic abuse, limit the damaging impacts that fractious separations can have on children and encourage amicable separations wherever possible. For those reasons, I am pleased to support these overdue reforms.
I rise to support this proposed new legislation from the Government. It is a long overdue reform, and I certainly commend it.
Marriage is a very serious, lifelong commitment, and we all enter into it in that spirit. It is very clear that it is the best outcome for a stable family life, and, indeed, delivers the best outcome for children.
But we live in the real world, and we know that every marriage has its ups and downs. Although it is not a matter for this Bill, many have talked about the need to give advice, but advice should be given before entering into marriage, not as it draws to a close. We all had relationship education at school, but, when it comes to marriage, what does that really mean in terms of a relationship, of finance and sharing the benefits and the burdens of our shared working lives, and of what we might or might not inherit? What does it mean for children? Have the couple discussed whether they want children? Is the lady going into this arrangement expecting that that is the norm while the gentleman does not have the same concept at all? Increasingly, marriages are not all about having children. Outside this Bill, we ought to look at that. If we do so, we will have better and happier couples who will stay married longer.
Some marriages, clearly, do not weather the storm. People change. We cannot deny that; we cannot expect people always to be the same. Events impact hugely on people’s lives. The impacts on people’s lives are many and varied as we travel more and as a result of the internet. When a marriage does irretrievably break down, the clear focus must be on good post-divorce relationships. That is not just about the children, although they are absolutely key; it is also about the relationship between the two people who were married. There should be a focus on mutual support for the children of the marriage. At this point, I should make it clear that we are not just talking about biological children of that marriage. Marriages today are quite complex, and there will often be a number of stepchildren and others to be taken into account.
Blame is not helpful. It is destructive and it impacts mental health. As we have heard, it can place children in very unpleasant situations where they are asked or expected to take the side of one partner or the other, or almost emotionally bullied into doing so. In some cases, children are even led to believe that the breakdown of the marriage is their fault. That cannot be right in today’s society. This Bill is absolutely a step in the right direction. It removes blame and it removes fault.
There is, however, more to do. I understand the Government’s caution in tackling the causes that need to be proved for divorce, but the financial arrangements on separation and divorce and for children do not work and must be readdressed in the context of the modern world, not the world as it used to be. The world is no longer about two people getting married and staying together for their lifetimes. It is not always about having biological children. Indeed, as I said, it is not always about having children at all.
When looking at finances and at the arrangements for children, the problem is that the courts are not well guided, because the original rules and regulations were set for a time that no longer exists and need to be reviewed. We have a common law system. We have a background of evidence that, to some extent, has evolved to help these newly changed situations.
Unless there is a readjusted start point, however, gaming comes in, whether it is about arguments about finance or about children. For many people, this creates a very unfair situation that cannot lead to what, for me, are the key objectives—good relationships between the parting parents and with the children. Indeed, the antiquated nature of the current legislation actually prevents marriages. Many will say, “Well done, Government, because at least we now understand that if things do not work out, there is a non-blaming way of parting ways.” We had not dealt with the acrimony and blame that goes with financial settlements and settlements for children.
The concept of a pre-nup is a great start, but the problem is that they create more discord between couples before they are married than is absolutely necessary. They can create great bitterness. There are still huge questions about whether they are legally binding. It might not be for this Bill, but we have to look at and consult on those matters again.
Not all marriages are about children. There may be no children produced, but there will be children in the marriage. Often there will be a mixture of biological children, stepchildren and step-grandchildren. Under the current system, the interests of all those parties and their relationships are not properly taken into account. As adults, we have to grow up and live with the consequences of the decisions we make, but for children who have built very close relationships with stepchildren or grandparents these situations can be devastating. All this really needs to be thought through again.
Too often, the parent who has the children has the opportunity to game the system and cast aspersions on the behaviour of the absent parent of such a vicious nature that the court is left with little option but to accept that the risk is too great, and, as a consequence, that the individual making the accusations must be believed. This system does not work. It is often abused for financial advantage, it having nothing to do with the children. I strongly recommend that we look at this again and do the job better.
I support the Opposition’s request that legal aid be brought back into this area, because we have clogged up the courts with cases that are not going to deliver a good outcome for anybody. The court system is completely stymied because the judge finds himself or herself having to give advice to the litigants in person. That is not good for children, for parents or for anyone involved with the family in its broadest terms.
The issue of finances becomes a terrible wrangle about who is entitled to what. We start with the principal assumption of a 50:50 split. In the old days, when often one party worked and the other looked after the children, it was absolutely fair that the work involved in creating, bringing up and nurturing the family was valued. That would be a sensible starting point. Increasingly, though, both parties work, and both bring very different financial contributions to the marriage. We need to look again at how we assess the right starting point. We then need to assess what criteria will enable us to move away from that starting point.
The most important thing is the needs of the children. That should be the first thing taken into account. Secondly, there is the need for each of the spouses to make sure that they are still able to live well. However, it is unrealistic, for a number of reasons, for anyone to go into a marriage and assume that when it breaks up there is necessarily an entitlement to live in the same style as they did when they were married. Financially—usually—it is not affordable. While marriage is for life, increasingly individuals are marrying more than once, more than twice—indeed, three times—and therefore to make financial provision that assumes that that individual will be single for the rest of their life simply is not realistic.
We need a much more realistic approach to marriage, and to the financial settlement. We need to recognise that people will often marry more than once—and that is not a criticism; it is actually a good thing, because marriage, as we know, is a very good environment in which to bring up children. If we can make marriages happy, if they can deliver long term, and if there can be many long-term happy marriages, that is not something to eschew, but something to welcome.
This reform is very welcome, but the reality of how people marry—the circumstances in which they marry and the circumstances around children—has changed so fundamentally that the law on financial settlements and on arrangements for the children must be fundamentally reviewed. Nevertheless, this is definitely a good start in the right direction, and I commend the Minister and the Government for introducing this Bill, which I will support.
It is very refreshing to see such widespread consensus; I take the fact that the Chamber is relatively empty this afternoon as a sign that we all know that the Bill is a very welcome step forward, and that there is widespread consensus. As has been said, the Bill makes our legal practices around divorce fit for the 21st century, and the Liberal Democrats very much welcome the changes.
Divorce can be traumatising and affect whole families for years after the event. Up until now, the legal process by which divorce happens has further exacerbated that trauma, dragging out the process and forcing couples into conflict to assign legal blame. Currently, it is impossible to seek a no-fault divorce unless the couple have been separated for at least two years. To file for divorce more quickly than that, couples must claim “unreasonable behaviour” or “adultery”.
The impacts of such a system are devastating, especially for children. Divorce and family breakdown are considered an adverse childhood experience that has lasting impacts on the children. Recently, we have talked about adverse childhood experiences around knife crime, the penal system and policing. I hope and wish, because I am a member of the all-party group for the prevention of adverse childhood experiences, that the whole approach—the trauma and fault approach—to a lot of services will be much better and more widely understood, and that all 650 MPs in this country will understand what trauma and fault mean. I encourage all hon. Members to attend at least some meetings of our all-party group. Family separation is an adverse childhood experience.
We are all very concerned about the impact on children. The reality of the damage of divorce is manifest, not just in the process, which we are discussing, but primarily in the separation of parents and the subsequent years in which children live torn between them. Does the hon. Lady agree that whenever divorce is granted, there must be greater focus on the children of the break-up?
I thank the hon. Gentleman. Throughout the years, we have understood how important it is that we take children seriously and focus a lot on their mental health and wellbeing. I totally agree.
Living through adverse childhood experiences hugely influences the likelihood that a child will end up serving time in our criminal justice system, have poor mental and physical health, and find it very difficult to build stable, loving relationships. Our divorce legislation must take that into account and be trauma-informed.
People often come to the decision to divorce at the most chaotic times of their and their families’ lives. We must have a system that tries to restore order—not fuel further chaos—and we must absolutely support children throughout that process.
The new legislation, which would allow couples to file for no-fault divorce and complete the process in six months, would leave space for families to continue to function in very difficult circumstances. It would encourage couples to be mindful of their marriage and the impact of divorce, while not pushing them towards further conflict.
Each year, over 100,000 couples get divorced in England and Wales. In the years that have passed since the most recent significant family legislation, over 1.7 million people have assigned blame in the divorce process. Needless to say, this Bill is long overdue.
There is much more that can be done to bring our marriage laws into the 21st century, as the hon. Member for Newton Abbot (Anne Marie Morris) said. We must recognise that marriage and civil partnerships are not for everyone, and that young people who do get married are doing so later and later. Our legal system needs to catch up with society, in which millions of couples choose to live together without making a formal commitment. The Law Commission suggests granting essential but limited legal rights to couples who have lived together for at least three years. Such legislation would complement the new divorce, dissolution and separation laws, and I urge the Minister to take another look at that proposal.
Family law defines millions of lives, young and old. We have an obligation to ensure that the law is up to date and empowers people, instead of holding them back. Changing the current legislation to focus on reconciliation, as opposed to conflict, is a very positive first step in the process, but there is more to be done.
I draw hon. Members’ attention to my entry in the Register of Members’ Financial Interests.
This is a sensitive subject and I hope to approach it in that way. Divorce can never be easy—not for the parties, nor for the others involved, such as children or the wider family. People who marry do so in the hope that their relationship will be long lasting, but when relationships do break down, often, the impact is devastating for many involved. I will never forget a grandmother coming to see me to make a will—I practised for many years as a solicitor in a community law firm, although never as a family law specialist. She broke down in tears as she told me that, following her son’s divorce, she had lost all contact with her grandchildren for years.
However, when couples do stay together and weather the inevitable storms of marriage, the stability that that engenders benefits not just the parties, but their children. Indeed, it is increasingly acknowledged that, even where there is an argumentative marriage—as many are—where parents stick together, the stability benefits the children. Indeed, the Lord Chancellor talked about stability benefiting children. The wider community and society benefit, too. Sadly, the UK has one of the highest levels of family breakdown in the developed world, with profound consequences for children’s mental health, housing pressures, homelessness, addiction, loneliness in old age, and much more. So, in order to promote stability, Government is justified, and has an interest, in helping couples stay together and in counteracting wherever possible the consequences of the high level of relationship breakdown in this country.
I fully support what the hon. Lady has put forward. I talked to her beforehand about this subject —indeed, we have talked about it on many occasions—and she and I agree that we see divorce as bad for children. Does she agree that this might minimise some forms of conflict in the short term, but that the long-term negative impact of divorce on children’s development and adult wellbeing will become more prevalent as divorce increases? Does she see in her constituency office, as I see in mine, the side effects of divorce and the impact on children?
I do, very much, in many cases. It is that break-up that causes so much hurt. Very often it is not so much the conflict; in fact, a lot of emerging research shows that the shock of marriage break-up can be greater for children when there has not been conflict in the parents’ relationship than when there has been.
I accept that not every marriage can be maintained and that it is sometimes better for one to end. I am also very much aware that many single and separated parents do a brilliant job. However, this Bill not only makes it easier to leave a marriage, but fails to take the opportunity properly to promote reconciliation where that may be possible. It fails to instigate better mediation procedures. At present, mediation procedures do not work well, according to family law practitioners. They need to be much more wisely applied at a more timely point during the legal process. If need be, I shall say more about this at a later stage of the Bill’s progress. I sincerely hope that an amendment will be tabled to reflect that need.
As ever, my hon. Friend is making a thoughtful and compassionate contribution to the debate. I agree with the tenets of the Bill and I slightly disagree with some aspects of her speech. We need to take confrontation out of the break-up process. I certainly agree with her that we need to signpost people towards relationship counselling services. In effect, as part of the trade-off in allowing a more simple, streamlined divorce process, we need to support those who wish to make a success of such counselling.
I want to make a quick intervention because the hon. Lady mentioned the words “family relationships”. When the Conservative party came to power, one of the policies it pursued at that time—I supported this by the way—was to fix broken Britain. In relation to striking at the institution of marriage, does she feel that this divorce Bill, as it is coming forward, fixes broken Britain, or does it make it worse?
The hon. Gentleman makes an interesting intervention because the phrase “broken Britain” came from a report by the Centre for Social Justice that was produced a decade or so ago. Sadly, relationship breakdown is even greater now than it was then. I do not believe that successive Governments have put in place policies and procedures to help to strengthen relationships, and this Bill will not do so either. In fact, sadly, I believe it will make divorce easier. Why do I say that? Simply because it will allow one party to walk away from the most important commitment they are likely to have made in their lifetime, without giving any reason at all and without their spouse being able meaningfully to object to their decision to do so. The removal of fault sends out a signal—I am particularly concerned about the signals sent out by the Bill to young people—that marriage can be unilaterally exited, on notice, by one party, with little if any recourse available to the party who has been left. I fear it signals that marriage need no longer be entered into with the intention of its being a lifelong commitment, as it is today—perhaps it will be signalled more as a time-limited arrangement that can be ended at will. Indeed, it is interesting that, in my law firm, I am now hearing the phrase “My current partner” coming into usage.
As I say, the removal of fault, without any opportunity to challenge, means that some who are genuinely wronged—it may be only a tiny number, as the Secretary of State has mentioned—cannot put anything on record on what they feel about the reasons stated for the divorce. The Bill simply says that a court must make a divorce order merely on the bald statement by one party that a marriage has broken down irretrievably.
I thank the hon. Lady for taking a further intervention and you, Mr Deputy Speaker, for letting me intervene. Does she accept this concern—I believe it is her concern as well? This change to the divorce law proposes irretrievable breakdown as a sole ground for divorce, but what is actually proposed is unilateral, no-reason divorce. That is what it is about.
That is exactly the point I want to make. I am concerned that, if marriage can be seen as so easily exited, more and more young people will think, “Why bother entering into it at all?” Marriage rates may well, and likely will, further decline.
The hon. Lady has been incredibly generous with her time. She, like I, views marriage through the prism of our faith, but I hope that she recognises that not everyone who engages in marriage sees it that way. They do not see it as a covenant from God. They do not see it in the same way she and I do. May I ask her to reflect on why, where a marriage has broken down, the process should be elongated and why somebody should feel trapped in a marriage in which they are no longer invested? Would she also give some thought to the notion that, when somebody has to give a reason over and above irretrievable breakdown, it leads to the conflict she is seeking to avoid?
The hon. Gentleman, whom I deeply respect, has made a number of points and I will address particularly the point about conflict in a moment. However, may I first respond to the point about where a marriage may have—so-called—irretrievably broken down?
Despite what the Secretary of State said, I think these proposals will do even less than current procedures to help to promote dialogue and potentially therefore reconciliation. Currently, each year, approximately 10,000 divorces are started and then dropped. Many couples do give their marriage another chance. However, these proposals—in effect, promoting unilateral divorce on demand simply by serving a notice on the other person that the marriage has broken down, without having to give any reason at all and without the spouse being able to contest this should they want to—will, I believe, inhibit the dialogue that could promote reconciliation in some cases.
The hon. Lady is very generous and we do have the luxury of a proper debate. Does she not accept that a marriage takes two and the tragedy is always when one side feels something has irretrievably broken down? It is a tragedy, but it is at the heart of why it is difficult to keep something going when one side clearly does not feel they can keep it going. For that reason, this change in the law is very welcome.
Whether we view marriage through the prism of faith or simply as an arrangement in which people come together because they wish to be together, does the hon. Lady agree that, with no-fault divorce, the process by which a couple come to the conclusion that the marriage has irrevocably broken down, has been made so much easier that the full extent of the considerations that ought to be taken before the marriage is broken up will not have been taken? That is why the Bill is flawed.
The right hon. Gentleman makes a very good point. It is that thoughtfulness that I am seeking to preserve. There is something also about the thoughtfulness that goes into preparing for the marriage ceremony, including—to pick up the point made by the hon. Member for Belfast East (Gavin Robinson) about not all marriages being religious—secular ones. There is a thoughtfulness about that ceremony and the public commitment it entails, with the support of friends and relatives who witness it, all of which helps to strengthen the relationship and often enables people to weather the inevitable storms. I am concerned that the thoughtfulness the Bill will extract through the ending of a marriage will denude the necessity, importance or encouragement of the thoughtfulness at the start of and during the relationship.
It is deeply worrying, because at the end of the day, one of the most precious things in life that many if not most of us want is the fulfilment of a loving, enduring relationship. Is the fact that people construct a reason for applying for divorce, as the Minister mentioned, a good enough argument for abandoning altogether the requirement and the thought that has to be put into it?
I am deeply concerned that marriage rates are likely to decline further. Interestingly, that is the conclusion of research drawn on by the authors of “Finding Fault”—the paper the Government rely on heavily in promoting the Bill. The authors of “Finding Fault” choose to ignore that conclusion and instead rely on Professor Justin Wolfers’ study, which cites a 2004 piece of research on other jurisdictions where no-fault divorce has been introduced. They do not quote it, but I shall. The research showed that
“the marriage rate declined by about 3 to 4 percent following the adoption of unilateral divorce laws.”
The likelihood of remarriage is also affected by such laws; according to the research,
“unilateral divorce led remarriage rates of divorcees to decline by around one-third to one-half.”
I intervene to back up the hon. Lady’s argument. To make marriage a relationship that one can exit unilaterally simply by saying that one wants out will fundamentally change its nature and undermine the ability of marriage to bring stability to the lives of adults and children. Does she agree that the ethic of marriage embodied in the Bill prioritises individual freedom and liberty, rather than encouraging, as it should, self-giving, sacrifice and commitment?
The hon. Gentleman makes a profound point. Without going too far into philosophy and theology, I will say there is something to be gained from the giving as well as the receiving within a marriage. It is difficult to understand why the Government are proposing legislation that will make the fulfilment that can be obtained from that harder to achieve. It is already hard enough for so many young people, with few role models of sustained relationships to look at and with media misconceptions about relationships so prevalent today.
What is truly tragic is that it is the poorest in our society who are not now marrying in great numbers and who are the least resilient when relationships break down. Marriage brings stability. Just one in 11 married couples split before a child’s fifth birthday, compared with one in three unmarried couples. As the Minister says, children benefit from stability. The well-off are still marrying and still benefiting. That is not social justice. Sadly, as the Minister acknowledged, many families will be affected by an immediate increase in divorce rates that even proponents of the Bill accept will inevitably follow the Bill’s passage, as those who currently wait for two or five years opt for a quickie divorce instead. I understand that it could take a decade for the spike to dissipate to our normal rates of divorce—already the highest in Europe—and the heaviest effect will be felt by the children involved.
It is especially concerning that the Government are ignoring the result of their own public consultation on the matter. Of those who responded, 80% did not agree with the proposal to replace the five current grounds for divorce with a six-month notification process; a mere 17% were in favour of the proposals in the Bill. No less than 83% wanted the Government to retain the individual’s right to contest a divorce; only 15% said that that right should be removed. What reason did the Government give for ignoring those responses? It was that the respondents who objected to the proposals did so as a result of a campaign to raise public awareness about the proposals. That is laughable—not just laughable, but deeply worrying. Why should the public bother responding to consultations if they are ignored in this way? Are we in this place not already being ridiculed for ignoring the public’s view on another grave matter?
The tragedy is that the premise on which the Bill is founded—reducing conflict—is a false one. Solicitors specialising in family law tell me that no-fault divorce is no silver bullet to reduce family conflict and acrimony. They say the real source of contention between spouses and ex-spouses is finance and the division of assets. The Bill will do nothing to change that. Indeed, the Government are missing an opportunity in the Bill to tackle some grave injustices in that regard, while creating others. One solicitor who has specialised in family law day in, day out for 25 years says of the Bill:
“It will in my view lead to more not less divorce”
The solicitor continues:
“I have dealt with a lot of cases these last few years where people have done the divorce themselves”
and says the Government are
“trying to make it easier to exclude lawyers—but”
the divorcing couples
“have not sorted out the finances correctly, either by not getting a clean break order (therefore the former spouse can still make a claim years after the divorce) or not sorting finances at all, as a dominant party (usually man) puts pressure on the other to do nothing—often causing that other to be in financial hardship.”
He goes on:
“The issue is and always has been finance in divorce, not the divorce process. No-fault divorce will not solve anything in my view. Instead they should look at ways to provide financial equality in the process of sorting divorce and finances, as it is still often one party who is more able to pay for good legal support. The Financial Services order is supposed to allow the other to apply to court forcing the financially stronger to fund both lawyers but in reality the process is…difficult…restricted and doesn’t work.”
It seems the Government have missed the opportunity to address that problem, too.
Sadly, despite the Minister’s words, the proposals will do even less than the current procedures to promote dialogue and potential reconciliation. As I approach the end of my speech—as I said, it is a luxury to be able to speak at the desired length and to take as many interventions as people wish to make—I will quote from the explanatory notes on the Bill. They say:
“The Government’s policy intention behind the reformed law is that the decision to divorce should be a considered one, and that separating couples should not be put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children.”
Is the hon. Lady aware of a story in the press a month or so ago about a father and mother who were divorcing, and when it came to deciding who would have responsibility for the children, neither parent wanted it? Is she as dismayed as I was that neither the father of the children nor their mother wanted anything to do with them? Does that not disappoint her? It disappoints me.
That is heartrending. Words fail me.
Returning to the more prosaic words of the explanatory notes, I remind colleagues of the statements that
“the decision to divorce should be a considered one”,
“couples should not be put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children.”
In my view, this Bill fails on every one of those counts. As I have explained, it will make divorce not a more considered decision but a less considered one, with no reason needing to be explained. It will do nothing to reduce the ongoing conflict that arises from financial disputes. It will increase divorce rates and reduce marriage rates.
The very recent Centre for Social Justice report on families leads me to the inevitable conclusion that it will not serve the state’s interests and that it will lead to poorer outcomes for children. Time prohibits me from quoting much of the excellent and well-evidenced research in the report, but I will simply quote from it as follows. It concludes:
“Marriage leads to better life outcomes for children. Marriage promotes stability. Children of married parents are more likely to achieve at school, have better mental health, less likely to use drink and drugs and less likely to get involved in offending behaviour.”
As I said at the outset, there are always exceptions to every such statement, and I repeat that many single and separated parents do an excellent job. Having said that, however, divorce can be deeply hurtful and costly for those involved, for their children and for wider society. It is already at epidemic levels. The Bill will make it worse. The Government should be actively seeking to strengthen family relationships, not weaken them.
It is a pleasure, as always, to follow my hon. Friend the Member for Congleton (Fiona Bruce). She made a heartfelt speech. I know that this is a matter on which she feels very strongly. It is an issue to which I myself have given considerable thought. It is sensitive and important, particularly for those who have a faith and regard marriage as a sacrament as well as a legal contract.
I look at this issue from the point of view of someone who happens to be a practising Anglican, as someone who has for 25 or 30 years been a practising lawyer—not predominantly in the field of family law, although I did practise family law to some degree in my earlier days—as someone who served as a councillor in a local authority, and as someone who has the honour of serving as Chair of the Justice Committee. I have had the chance to see the issue from a number of points of view and I have come to a different conclusion to my hon. Friend. I do not say that with any disrespect for the strength or genuineness of her feeling; I am just persuaded, on balance, that the Secretary of State is right and that the evidence points quite clearly to this being an appropriate and necessary reform.
As Chair of the Justice Committee, I have had the opportunity to engage with leading members of the judiciary, particularly, in this context, with those of the family division. It is the overwhelming view of family practitioners, including solicitors, barristers and senior judges, that the current arrangements, which require fault to be used as a proof of irretrievable breakdown, do not work satisfactorily and do not achieve what is ultimately the necessary objective of enabling people whose marriage has sadly broken down irretrievably—I suspect that none of us want that to happen when we embark on a marriage, but it does happen in some cases—to leave their marriage with a measure of dignity and to do so in a way that enables the important issue of financial fairness to be resolved, and, in the case of children, to enable civilised and caring arrangements to be made for them and their children. That, ultimately, must be the chief and principal objective.
My hon. Friend gets to the heart of the matter: the fault aspect. What persuades me is that the requirement to assign fault can itself be a polluting element within the divorce or separation process. It may actually make what could be a more amicable separation more poisonous and more difficult when it comes to discussing other matters such as finance.
I agree and that was certainly my experience as a lawyer. That is the experience of the majority of practitioners and the majority of the judiciary to whom I have spoken. When I started my practise at the Bar, the Divorce Reform Act 1969 was comparatively recent and the law was developing. There was an issue then and it has remained a constant. There is an underlying risk of tension and antagonism in the course of family proceedings, which spill on from the divorce itself into the proceedings thereafter, which, for the future, are very often much more important. I very much take on board the point my hon. Friend the Member for Congleton makes about the value to society of stable marriages—indeed, the value to society of stable relationships of any kind. If I thought that the Bill would seriously harm that, I would take a different view towards it, but I do not think that and the evidence does not suggest that that is the case either.
I strongly support the thrust of the hon. Gentleman’s argument and I strongly support the Bill. I am very sorry I was not here for the earlier speeches. All the representations I have received from the legal profession support the Bill. I was a practising solicitor, but I did not do matrimonial law. My daughter does and she strongly supports the Bill. I think it is overdue and I will be strongly supporting it today.
I entirely agree with the hon. Gentleman. I have to say that from my own limited experience and from speaking to those who continue to practise, no area of law is perhaps more sensitive or more emotionally draining—not just for the parties, but for the practitioners who seek to advise them and the judiciary who sit on these cases—than family work. It is inevitably stressful and we ought to have a system that reduces stress, rather than makes it greater.
The evidence from other comparators also shows that the Bill is an advantage to the overall social objective and that some concerns are not justified. It is suggested that the Bill imports into law a concept of unilateral no-fault divorce. That is not strictly correct. It is currently the case that after two years of separation with consent or five years without consent, divorce can be granted without any allegation of conduct. The truth is, as I will refer to later and as Sir Paul Coleridge, the chairman of the Marriage Foundation and a former High Court judge of the family division himself observed, that that does not keep up to date with the way people now change and move on with their lives. It certainly does not reflect my experience, and the experience of most people, that the divorce petition comes at the end of the breakdown of a relationship, not the beginning. Time and time again, I have seen that with people who come to my surgery, with court cases I have been involved in or observed, and, as most of us have, with friends and acquaintances—people we know—where it has been the end of a sad and painful process that ultimately leads to the conclusion that the marriage is no longer sustainable and they want to move on. We ought to help them to be able to do that. My experience has certainly been that divorce is not undertaken lightly and I think the Secretary of State is right to recognise that.
As an Anglo-Catholic, I take the hon. Gentleman’s point about the sacrament strongly, but I do not believe, in societal terms, that it makes very much difference. In truth, many marriages are not in entered into in a religious context. The weight that is placed on the sacrament, even with those of faith, may vary. Perhaps it should not, but I think that is the reality. For those for whom it is important, it will be a difficult personal decision, as it has been for friends of mine for whom the end of their marriage was very difficult indeed. None the less, they thought it was appropriate to recognise what had happened and to make a break. It is a profound point for those of faith, but I do not think it is an argument against the Bill, as I think the hon. Gentleman agrees.
We also have to bear in mind the suggestion that there might be manipulation of a vulnerable party. I take that seriously and it has been raised by a couple of constituents of mine who think carefully and closely about these matters. However, my experience and all the evidence seem to suggest that the greatest risk of manipulation and pressure being put on a vulnerable party is during the period when the marriage has broken down and people have to wait perhaps for two or five years, especially if, as hon. Members have observed, they are obliged for financial or childcare reasons—or a mixture of both—to continue to live under the same roof. That is the point at which the vulnerable party is often most at risk.
It is perhaps significant that the study, “Finding Fault?”, points out that, at the moment, the system is to some degree “manipulated” by fault being used as a ground to speed up divorce. It is not that the marriage has not broken down, but that it is quicker for someone to get divorced if they allege fault than if they wait two or five years. That can have perverse consequences: people have to say hurtful things against the party with whom they are still living and attempting to bring up their children, so that they can speed up the divorce that they both know is inevitable. I cannot see how that benefits society or, for those of us to whom this is important, a Christian ethos for that family.
My hon. Friend is absolutely correct and makes another persuasive point, because it means that a divorce is based on a lie. Frankly, we should not have any lies in a legal process. Years ago, I remember reading Evelyn Waugh’s “A Handful of Dust”, in which a character has to abscond to Brighton, seemingly with a woman, to provide the grounds for a divorce. This stuff is from 40 or 50 years ago and is nonsense. We need a bit more honesty in the process.
I take my hon. Friend’s point. My pupil master, when I started at the bar, had practised in divorce work under precisely those arrangements prior to the 1969 Act. They used to get what was called “ordinary hotel evidence”, which was an affidavit from the chambermaid or the waiter, who happened to have taken breakfast in bed to a couple. That was a pretty demeaning way of having to go through a legal process and it was rightly got rid of, but at the time, people genuinely thought that that might undermine marriage. It did not, of course, but that is the sort of thing that we have all recognised we need to move on from, and this is just a further adjustment.
There is another serious point about the inability of a party who feels aggrieved by the behaviour of their husband or spouse, who might have left them, to have the ground on the record. With respect, that misunderstands the legal test, which has always been, and continues to be, that the marriage has irretrievably broken down. That is not changed by the Bill. The question of behaviour and conduct is relevant only as one of the facts that is relied upon to support the ground for divorce, which is the irretrievable breakdown of the marriage. Moving to a single approach to that—the service of the petition, or the application—simplifies that and does not change the legal test.
Although it is tempting to think that an aggrieved party can get their hurt and concern on the record, it is not relevant as a matter of law because there is no causal connection between the conduct and the ground for the dissolution of marriage, and there never has been since the 1969 Act came into force. It also has the detrimental effect of creating a much more antagonistic attitude, because, first, there is good evidence that people game the system and will exaggerate behaviour to speed up the divorce, and secondly, this clouds the subsequent relationship as parties work out the consequences of the breakdown for finance and families.
It is important that the financial protections for a vulnerable party are specifically preserved under paragraph 10 of the schedule to the Bill, which maintains the existing arrangements. For those concerned about this, it is worth noting that in making a determination on financial arrangements,
“the court must consider all the circumstances including…the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties to the marriage”.
The suggestion that the change in any way undermines the protection for a vulnerable spouse during a divorce is simply not borne out by that measure, which preserves in the Bill exactly the same test that we have in the current law. I hope that that reassures people who are understandably concerned about that point.
That leads me to my final point, which my hon. Friend the Member for Solihull (Julian Knight) rightly raised: we cannot really justify a legal process that encourages people to be untruthful. That is what is happening and what has been attested to by the judiciary at the highest level. The late, much missed Sir Nicholas Wall, the former president of the family division, spoke on this during his tenure in office. His successor, Sir James Munby, one of the most experienced family division judges of his time, has spoken very bluntly about a system that involved hypocrisy and a “lack of intellectual honesty”. To go back to my hon. Friend’s point, Sir James referred to the “‘hotel divorce’ charades” that had been played out in the past. If there is collusion, it is the collusion that is sometimes needed by parties to invent conduct to speed up the divorce rather than waiting two or five years. Somebody may, for whatever reason—because the marriage has been breaking down for a long time—already have a new partner and there may be a new family on the way. One may or may not approve of that, but it is a reality of the world, and we have to have a justice system that recognises it and enables the best outcomes for that world rather than creating an obstacle.
Lady Hale, the president of the Supreme Court, said that the system is misleading because, as she put it, the
“fact used as the peg on which to hang the divorce petition may not bear any relationship to the real reason why the marriage broke down”.
If we are going to tackle marriage breakdown, as I believe we should, we should put the emphasis and resource into intervening much earlier to prevent the breakdown and not to involve a charade, in some cases, at the end of the divorce arrangements. I agree very much with the observations on that from my hon. Friend the Member for Newton Abbot (Anne Marie Morris), who is not in her place. I would also make the case that if there is an area where funding can be made available to restore elements of legal aid, compelling evidence to the Justice Committee has suggested that early advice on family matters should perhaps be the highest priority for its use. I know that the Secretary of State is someone who will be driven by the evidence when he considers those matters.
The person who perhaps clinches it for me—this is important because of his background—is Sir Paul Coleridge, to whom I have already referred. For many years, he was a family division judge, who practised throughout his professional career in family division work. He is also a practising Christian. Against that dual background, he has come to the view that the law requires reform and that the removal of the fault requirement would be a positive benefit and an advantage. He supports the change on that basis. He said that nowadays, most regard the delays under the current system as
“an intolerable block on their ability to move on with their lives. So to get around the delay they invent allegations to satisfy the court and enable it to turn a blind eye to what is really going on.”
Sir Paul also tackles the issue of divorce rates. He says:
“Since 1970 the divorce rate has fluctuated”—
he practised for a great deal of that time—
“For some periods it has gone up and for other periods, including now, it has dropped. There is simply no discernible connection between the type of divorce process and the rate of family breakdown. The two are unconnected.”
I have been driven by the evidence to agree with him. I hope that we make much more effort to deal with family breakdown, but changing the process is not going alter that situation.
Sir Paul also says:
“We now have a system that drives people to lie to the court if they are not prepared to wait for two years or longer. That is wrong.”
That must be right. He ended what I think was a very thoughtful piece with the following remark:
“An intelligent process to end unsustainable marriage is good for the reinvigoration of the most important social arrangement yet devised for mankind.”
That is a broad and Christian view of the matter, and a socially and legally informed one, and I commend it to the House. It is the reason I support the Bill.
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?
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.
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.
I am greatly encouraged by the quality of the debate that we have had today, and for the broad support that the Bill has received from Members on both sides of the House. I particularly thank my hon. Friends the Members for Bromley and Chislehurst (Robert Neill) and for Solihull (Julian Knight), the hon. Member for Wrexham (Ian C. Lucas), my hon. Friend the Member for Newton Abbot (Anne Marie Morris), and the hon. Member for Bath (Wera Hobhouse) for their support.
The Bill is intended to help to heal family relationships when division has become unavoidable. No one, of course, seeks such an outcome. Few stand at the altar, or before a registrar, contemplating an ending rather than a beginning—“till death do us part” remains the golden thread of marital aspirations—but such is the flawed and fragile nature of human relationships that it can never be avoided altogether.
I know that all Members have families’ interests at heart. I know, too, that we share a belief in the vital importance of the commitment that marriage and civil partnerships bring, not only to couples and their families but to the wider wellbeing of our society. However, I am keenly aware that we arrive at that belief on the basis of different views and experiences.
I recognise that some Members have misgivings about the Bill. I should confess, as a Catholic myself, that when the Secretary of State presented me with it six weeks ago, I took rather a large gulp. What could I, a good Catholic boy, do with a divorce reform Bill? But the more I studied the Bill and looked at it carefully, the more I saw a civil and human measure that sought to lessen acrimony and create space for reflection. The misgivings that people have, however, are no less a part of the debate, and I am grateful to the Members who have voiced their concern as well as those who have expressed their support.
I am very grateful to the Minister, not least because I have only just come into the Chamber.
I congratulate the Government on introducing this incredibly important Bill. I also pay tribute to Philip Marshall QC, my colleague at the Bar, who has campaigned on the issue of no-fault divorce for many years. Does the Minister agree, however, that we must not only pass this important Bill, but reintroduce legal aid so that couples who are considering divorce can be advised by solicitors at an early stage? That saves a lot of money in the long run, and it is much better for the entire family.
I may well deal with that point briefly later in my speech.
It is worth pointing out that the breakdown of a marriage and the legal process of divorce that comes after it are two very different things. There was a time when the only legal exit from a marriage demanded an act of adultery, but that never stood in the way of anyone walking out on anyone else, and the law as it stands today does not prevent it either. There are general protections for respondents and vulnerable parties in any proceedings, and those will remain. We are also extending to all respondents the ability to apply for the final order to be delayed while the court considers their financial position following divorce.
My hon. Friend the Member for Congleton (Fiona Bruce) raised a number of important points. I am not unsympathetic to her wider agenda on support for families, and I look forward to meeting her and, indeed, Lord Farmer in the coming weeks to discuss their manifesto for families. She will be aware of our Reducing Parental Conflict programme, to which £39 million has been allocated, our Troubled Families programme, and many other initiatives across Government. I take on board her point that we need to do far more to support relationships further upstream, because we do not wish to reach a point at which relationships fall apart unnecessarily. I also take the point made by many Members on both sides of the House about the need to reform the finances of divorce, but I consider that to be a much greater issue than can be contained in this Bill. It is highly complex, and there is, as yet, no consensus. However, we recognise that it is an issue that will need to be discussed at some point.
The hon. Member for Bath rightly mentioned adverse childhood experiences. What she said went to the nub of why I believe the Bill to be a humane measure. At the end of the day, children often bear the brunt of the unpleasantness that divorce can cause, and we do not wish to add to that unpleasantness by ensuring that the divorce process is dragged out or becomes more acrimonious than it needs to be.
Many Members have expressed concern about so-called unilateral divorce. We should bear in mind that as marriage is a voluntary union of two people, the moment one person decides that the marriage is over, it is indeed over. The current divorce laws do not prevent unilateral divorce. Only about 2% of divorces are contested, many owing to the mistaken belief that attributing fault can somehow prevent the divorce from occurring. Indeed, when a divorce is contested, the only reasonable option is to prove that there was some flaw in the validity of the marriage originally. It is important to bear in mind what the law actually does, rather than what we might seek to believe that it can do.
I hear the points made by the hon. Member for Bolton South East (Yasmin Qureshi) and others about legal aid. Legal aid remains available to those who need it, such as victims of domestic abuse. It also remains available for mediation when couples are in dispute about finances or child arrangements, which provides a non-litigious route to resolving issues and helping families to move forward constructively. I also hear the point about the bar on the dissolution of marriages in the first year. The remedy for domestic abuse remains a range of proactive orders that the court can make, including non-molestation and occupation orders. We hope that those will include the domestic abuse protection orders referred to in our draft domestic abuse Bill.
We have heard from many stakeholders—a wide range of third parties—who take an interest in these issues and who support the measures that the Government are taking, including, as was mentioned by my hon. Friend the Member for Bromley and Chislehurst, the chair of the Marriage Foundation, Sir Paul Coleridge.
The Bill will not, in my view, make divorce more common. It will not make divorce any easier, and it will certainly not make divorce any quicker: the 26-week period will remain in place. However, it may make divorce less acrimonious, and for that reason alone I think it is a worthwhile Bill on which to embark. Divorce and dissolution will happen regardless of how the legal processes effecting them operate, because the irretrievable breakdown of some marriages and civil partnerships is, unfortunately, inevitable. The Bill deals with that reality with the minimum of acrimony by creating the conditions that will allow people to move forward and agree arrangements for the future in an orderly and constructive way, and for that reason I commend it to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Divorce, Dissolution and Separation Bill (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Divorce, Dissolution and Separation Bill:
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 4 July 2019.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and up to and including Third Reading
(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.
(7) Any other proceedings on the Bill may be programmed.—(Rebecca Harris.)
Question agreed to.
Divorce, Dissolution and Separation Bill (Money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Divorce, Dissolution and Separation Bill, it is expedient to authorise the payment out of money provided by Parliament of any expenditure incurred under or by virtue of the Act by the Lord Chancellor or the Secretary of State.—(Rebecca Harris.)