Divorce, Dissolution and Separation Bill [HL]

Baroness Meacher Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I too welcome my noble friend Lady Hunt to this House and look forward very much to working with her. I congratulate her on her excellent speech. I welcome this limited but important Bill. It has always been obvious, to me anyway, that the requirement in divorce proceedings to show irretrievable breakdown of a marriage by declaring a so-called legal fact of fault—very often adultery—has been deeply hurtful to a respondent when the so-called fact may not be a fact at all.

I do not accept that the Bill will lead to an increase in the overall number of divorces over time. I refer to this having been through a divorce. There was no financial conflict or conflict over parental responsibilities, yet the divorce, for me and, I think, for my husband, was a deeply and profoundly painful experience. I believe that every divorce is. One could say that ours was as good as it could be but it was terrible, and I will never forget it.

The right reverend Prelate the Bishop of Portsmouth said that the Bill should make the law kinder not easier. In my view, that is exactly what the Bill does. It makes the law kinder. It does not make it easier; it is purely kinder, and I very much support it for that reason.

I am grateful to Exeter University, which sent us the research evidence to support what most of us already know from our personal experience of the divorces of family and friends if not our own. A legal fact of fault is not a fact at all: it is simply an allegation. As one lawyer put it, “It’s a farce. You cobble up some words that will do the business.” I do not support law that is a farce, and I am very grateful that the Government are trying to deal with and eliminate that farce.

Nearly 60% of English and Welsh divorces are granted on a fault fact basis—usually adultery or behaviour—which, significantly, is 10 times more than the rate in neighbouring France and Scotland. Of course, these national differences do not reflect differences in marital morality between different countries: they simply reflect that our current law incentivises people to game the system to secure a divorce in a reasonable timeframe.

Of course, there are significant longer-term consequences of the current law on fault divorce for the couple and, most importantly, their children, as others have alluded to. Inevitably, divorce involving children will generally—not in my case—involve a financial settlement and arrangements for parenting the children, which are highly contentious issues for most. However, having heightened the feelings of animosity between the couple at the very start of the process by requiring allegations—only allegations—to be made, will result in that higher level of animosity carrying all the way through those divorce proceedings and their painful and difficult debates, probably prolonging those proceedings at vast cost, both financial and emotional.

Sadly, my noble friend Lady Deech is unable to be with us today. However, according to her planned speech, she would have expressed her scepticism about the likelihood of the Bill being of any real benefit in reducing the blame game. Of course, no fault is not a magic bullet. If a couple is in conflict about finance or parenting issues, that conflict will exist—the Bill will not eliminate it. However, any reform that reduces the strength of animosity driving the conflict is to be welcomed. I agree with my noble friend that the law will not save marriages, and she is of course right that our main concern should be the children of the divorcing couple.

I personally support the proposed six-month minimum period for a divorce, although I understand that the Government are considering introducing a degree of flexibility in exceptional circumstances. I hope the Minister can explain to the House what those exceptional circumstances might be. A degree of flexibility is probably necessary, but it would be important not to open up the possibility of unnecessary and unwanted delays. I am sure that the Government have borne in mind the research evidence that couples are more likely to settle once they have become accustomed to the notion of separation. The proposed quick process based on no fault might, others have argued, be counterproductive by shortening the period during which a couple might begin to come to terms with the divorce and to settle. Has the Minister considered this possibility? Does he have a response to that concern? I do not share it, but I know others are concerned.

Some apparently argue that the 26-week period is too short to allow parties to reconcile. I do not accept that argument. In my view, reconciliation at that stage is unrealistic. It is argued that up to 10% of petitioners each year abandon the divorce, perhaps due to reconciliation. Such a view fails to take account of the long period of thinking and wondering “should we, shouldn’t we?” before people start the process of seeking a divorce. Successful reconciliation is highly unlikely once proceedings have commenced. Relevant here is the nationally representative court file analysis of 300 cases where only one had ended in an attempted reconciliation. The other withdrawn cases had been due to death or probably a need to delay because of financial problems. I would not put any money on the attempted reconciliation having succeeded.

I understand the Government’s wish to keep this Bill simple. However, a seemingly superfluous requirement at present is that the applicant must reaffirm their intention to divorce on three separate occasions. Comparable jurisdictions apparently require the applicant to confirm their intention to proceed on only one occasion, or perhaps two. Can the Minister indicate whether the Government might look favourably on a little amendment to reduce that number from three to two, or perhaps even one? Perhaps the Government might introduce an amendment themselves.

Finally, there is the law surrounding the financial settlement in divorce cases. I understand that the Government are planning a consultation exercise on this issue. Can the Minister tell the House when the consultation will take place, for how long it will proceed and whether it will include consideration of prenups? I know there are reasonable concerns about prenups, but they deserve serious consideration as a means of reducing conflict over money at the time of a divorce. Also, are the Government committed to allowing parliamentary time to implement reform in that area in this Parliament?

In conclusion, I reaffirm my support for the Bill.