Divorce, Dissolution and Separation Bill [Lords]

(3rd reading: House of Commons)
(Committee: 1st sitting: House of Commons)
Sir Edward Leigh Excerpts
Wednesday 17th June 2020

(3 months, 1 week ago)

Commons Chamber
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Ministry of Justice
Dame Rosie Winterton Portrait The First Deputy Chairman of Ways and Means (Dame Rosie Winterton) - Hansard
17 Jun 2020, 5:04 p.m.

Order. A reminder that there is pressure on time. There are still quite a few speakers, who would be well advised to take pretty well under 10 minutes to allow everyone to speak. I call Sir Edward Leigh.

Sir Edward Leigh Portrait Sir Edward Leigh (Gainsborough) (Con) - Hansard
17 Jun 2020, 12:02 a.m.

I rise to speak to new clause 3, which stands in my name. It would replicate Scottish law, which replaces the two and five-year separation with a no-fault divorce after one year. It is a moderate compromise and I have no doubt that the Government will accept it.

I believe the Government are making a huge mistake. That is not just my opinion; the research is clear that liberalisation and expansion of no-fault divorce, wherever it has been introduced, has led to the most vulnerable in society being worse off. Look at the evidence from Sweden, Canada, and various US states—it all points in the same direction: we will have more divorces, and the worst-off will be hurt the most.

The Brining study in the US showed that 75% of low-income divorced women had not been poor when they were married. The Parkman studies show that, overall, women living in American states with no-fault divorce work, on average, 4.5 more hours a week than their counterparts in states with fault-based divorce. In this country in 2009, the then Department for Children, Schools and Families produced an evidence review that showed that a child not growing up in a two-parent household was more likely to be living in poor housing, to experience more behavioural problems, to perform less well in school, to need more medical treatment, to leave school and home when young, to become sexually active, pregnant or a parent at an earlier age, to report more depressive symptoms, and so on.

We now understand the intent behind the Bill: it is to make divorce easier and to propel more families, and particularly more women, into poverty. We know that, in reality, the Government’s intention is to speed up the divorce process, which they say will make it more efficient, but look at the side-effects I just described. Surely the cure is much worse than the disease? I realise that I am out of alignment with Government policy—a rare event for me—so I want to outline the purpose and rationale of the new clause. I admit it would constitute a rewrite of the Bill, but I think it is quite a moderate rewrite, and it accords with the central purpose of the Bill, which is to encourage no-fault divorce and, like it or not, to speed up the process.

Hon. Members will recall that the current law sets down the five facts that must be established before a divorce is granted. The separation ground does not require proof of fault, so we already have no-fault divorce, but the Government say the period is too lengthy. The problem campaigners have with the current no-fault divorce law is that it takes too long, and I agree. As Baroness Deech in the other place has said,

“the essence of the demand for reform is speed.”

I think the Government should be honest about wanting to speed up the whole process. Ministers do not like to be reminded that they are making divorce easier, but we must be honest: if a process is made easier, human nature being as it is, more people will do it. Of course, for many divorce is an agonising decision, but when married couples are having problems, the quicker and easier it is to get a divorce, the more likely they are to choose divorce, instead of choosing the hard work of talking out their problems.

My parents met at Bletchley Park during the war, and it was a great pleasure to attend their 50th wedding anniversary celebration in 1994, shortly before my father’s death. It was a shock for my sister and me to find some extraordinary and poignant letters written in the 1940s that showed our parents were clearly having enormous problems, but it was just as obvious that they were determined to make a go of it. People might say, “It was a previous generation,” but there were many couples like my parents in their generation. I owe them so much for keeping together and looking after us, and always being ready to help my brother, my sister and me. I am proud of what they did and the sacrifices their generation made, and I worry about what my own Government are doing in sending the wrong signal—sending the signal that marriage is not one of the most precious things in the world.

It has already been said that people can sign up to a mobile phone contract and be stuck with it for two years, in which they have to fulfil the obligations of the contract, but they can have a church or civil ceremony, profess lifelong fidelity before the law, before God, before friends and neighbours, and after just six months walk away. Basically, they just say, “I divorce you, I divorce you, I divorce you,” and that is that. What sort of message is our own Conservative Government sending to society? I believe we should be Conservative with a big “C” and conservative with a small “c”—socially conservative. I know that not a lot of people in Parliament agree with that message, but I have no difficulty with it. People out there understand what is at stake. In one poll, 72% of people said that no-fault divorce may make people more blasé about divorce. We do not need to look at a poll; it is obvious that it will make people more blasé about divorce.

Clause 1 abolishes all five fact grounds and replaces them with a system where one spouse can simply resign from a marriage and get a divorce in six months. My new clause would make a much less dramatic rewrite of the law. We can maintain the fault grounds for those who wish to use them, while substantially speeding up no-fault divorces, but still giving people time to reconsider. Far from giving couples in difficulty more options, this Bill takes them away. Is it a Conservative option to take away options, rather than keep them to provide people with different ways of getting a divorce if that is what they really want to do, and give them more time to reconsider?

We should think of the wife who is faithful to her husband for 30 years only for him to run off. She will have no way of getting a divorce that recognises who was in the right and who was in the wrong—that is taken away. Abolishing fault deprives spouses who wish to obtain a divorce on fault grounds any opportunity of doing so. We should think of the man or woman who is mentally or physically abused by his or her spouse. He or she will be unable to get any recognition of that through the divorce process. This new system will be blind to all suffering and to all injustice. The spouse being divorced against his or her wishes will have zero opportunity of contesting the divorce to try to save the marriage or to slow things down and plan for the future.

Sir John Hayes Portrait Sir John Hayes - Hansard

But it is even worse than that because, as the Law Society points out, the respondent might not even know that they were being divorced. It will usually be a lady who is divorced by a man who has gone, as my right hon. Friend has described, and they might not know and then they would be divorced by January. That is the harsh reality we are facing and it is appalling that a Conservative Government should impose that on us.

Sir Edward Leigh Portrait Sir Edward Leigh - Hansard
17 Jun 2020, 12:04 a.m.

Some of our amendments make it clear that there must be proper service and a reasonable length of time, and the respondent must know that the service is being made. Those are quite reasonable amendments, and I suspect that they will all be resisted by the Government.

My new clause simply mirrors the approach taken in Scotland—quite a sensible jurisdiction, you might think. It would leave open the option of seeking a fault-based divorce, while reducing the separation periods to one year with consent and two years without consent. Just 5% of divorces in Scotland now take place on fault-based grounds, so it is there for the minority who need it, while the majority can choose a no-fault option. This is Scotland. It works and it is not unreasonable. I see no reason why we should not replicate Scottish law, and that is what my new clause does. I cannot understand why the Government have not chosen a more sensible route such as that, as it would be far less controversial. Members will recall that the public consultation on these proposals met with considerable resistance—80% did not agree with the proposals, but they were ignored.

One argument made in support of the Bill has been that the waiting periods for separation encourage or force couples who want a divorce quickly to use fault facts rather than separation facts. If we really are worried about people using the fault grounds to speed up their divorces and allegations of fault increasing acrimony, what is wrong with the Scottish approach, where people can get a no-fault divorce on consent grounds in just one year and where only 5% of divorces now allege fault? Why not make no-fault divorce an option for those who want it, rather than forcing everyone to do it the Government’s way?

Again, we should think of the most vulnerable in society. Let us consider what happens in Sweden, a place that many Opposition Members praise. Even the extremely generous Swedish welfare state has proved totally ineffective at breaking the link between family breakdown and poverty. The incidence of poverty among children in single-parent families is more than three times that in families with two parents. The number of Swedish households in poverty headed by a single parent is more than four times the number of households in poverty headed by couples. It must be emphasised that Parliament does not exist in a vacuum. The laws that we make here will have repercussions in every community in the country. Do we want more children to be disadvantaged? Do we want to see women poorer and working longer hours? Do we want to deprive innocent spouses of having their blame business being recognised in the divorce process? I hope that the answer is no.

David Simmonds Portrait David Simmonds (Ruislip, Northwood and Pinner) (Con) - Hansard

We have had a very wide-ranging debate this afternoon with some very impressive contributions from Members. I wish to focus on two particular areas of concern for me, which are my driving motivation for supporting the Government in bringing forward this legislation. They are the significance of fault in the context of divorce and, most importantly from a personal perspective, the impact that it has on children and their future life chances.

On the significance of fault, it is very clear from all the contributions made by hon. and right hon. Members in the Chamber that there is strong cross-party consensus about the importance of supporting effective, strong and stable relationships for the benefit of our society. All of us will have seen in our constituency casework those situations where relationships have broken down. For a variety of reasons, they may well not be the reasons that end up being cited as couples seek to part through the process of divorce. An example of that is domestic violence, which can be enormously difficult to prove. Abuse may have been going on for a long time behind closed doors, but the requirement to demonstrate fault and to demonstrate that through the legal process may lead to other issues being used as a proxy in a way that demonstrates something that is deeply unproductive for people who are seeking to bring an end to a relationship in the best possible interests of each party. For society as a whole, it may lead to us pushing our citizens down a route that forces them to bring about an acrimonious end to a relationship with all the damage that that causes to their family and their wider community of friends and neighbours when there is an alternative available to us that is represented in this Bill. Therefore, it seems that it is a positive step that we will no longer require people who wish to separate to enter into this deeply conflictual and damaging process.

Break in Debate

David Simmonds Portrait David Simmonds - Hansard

My right hon. Friend makes a very powerful point, but we also need to recognise that the context of our society today is very much of the view that five years is a long time to wait and that the process that is required where fault is established in order to undertake the divorce more quickly is one that inevitably leads to this degree of conflict. Let me move on to the key point—

Sir Edward Leigh Portrait Sir Edward Leigh - Hansard

Will my hon. Friend give way on that point?

David Simmonds Portrait David Simmonds - Hansard
17 Jun 2020, 12:02 a.m.

If I may, in respect of others who wish to speak and time being short, I will move on.

This issue of conflict and the impact that it has on children is at the heart of the concern that I feel and, for me, the significance and the value of pressing ahead with this legislation. The organisations that I have cited previously in the discussions on this issue—the Early Intervention Foundation, Tavistock Relationships and the Local Government Association—have a huge stake in supporting children in our society. They may have a political or a religious affiliation or no affiliation whatever, but all identified that it is not the fact that a divorce is taking place, but the fact that there is conflict in the relationship between those two parents that causes the damage to children and their life chances. For me, that is incredibly important, and it is backed up not just by the evidence on the relationship damage caused by divorce, but, conversely, by very good evidence about the significance of really effective and positive co-parenting. Society, I think, has already moved in that direction. We see many, many examples of non-traditional couples, who are brilliant and effective parents, giving children a fantastic start in life. Of course, many of us enjoy and are positive about seeing that in the context of traditional marriage. However, we need to recognise that, when such a relationship runs into difficulty, the opportunity we can create through this Bill for a less acrimonious separation—to help preserve and support that effective co-parenting relationship between the two separating adults—is incredibly important for the future opportunities and life chances of those children.

Finally, I would like to make the point that I very much support what a number of colleagues have said about the significance and importance of counselling. When people have made the enormously important decision to get married, it is a very significant decision to move away from that, and counselling should be supported and made available as far as possible. However, that is not a reason not to support this legislation.

I am extremely passionate about the significance that the absence of conflict will have for ensuring that children, who could benefit from a constructive co-parenting relationship with adults who have none the less sought to divorce, is available to those children, rather than potentially perpetuating a situation in which acrimonious division between separating parents has a lifelong impact on those children for their futures. For those reasons, I remain strongly in support of the direction that the Government are taking.

Break in Debate

Sir Robert Neill Portrait Sir Robert Neill - Hansard

It is pleasure to see the Lord Chancellor in his place. I am sorry if the queue—or perhaps short legs—meant that I arrived just as he was getting to his feet. I did not get the chance earlier, but I pay tribute to the work of the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), who dealt with the Committee stage with great skill and commitment.

I welcome the Bill because, as I said on Second Reading, I am a one nation, mainstream Conservative who believes that it is as well to legislate for the world as it is rather than the world as it should be. That is what we have done with this Bill. Ultimately, a law that does not reflect the way people live their lives falls into disrepute. We are avoiding that situation with this legislation. I know that that is genuinely painful for a number of Members in this House, but it is also genuinely painful for anyone to go through the matter of divorce.

I was glad that my right hon. and learned Friend gave the indication that he did to my hon. Friend the Member for South West Bedfordshire (Andrew Selous), because he raised an important point about how we deal with assisting people through this most difficult of situations. I know of my hon. Friend’s good faith in this matter and that he will pursue that; many people have much sympathy with that point.

I wish to say one other thing. We will rightly remove the question of the need to prove fault and the contention and antagonism that that causes. I hope that we can now concentrate on the question of financial orders and children, and that we make sure that that can be done as expeditiously as possible. The other thing that could perhaps remove antagonism in the process is access to early legal advice.

I have always taken the view, as the Lord Chancellor knows, that we perhaps took too much out of legal aid funding in some areas; the removal of legal aid support for early advice in matrimonial matters was, I think, an error, and it does no harm to admit that. The Justice Committee has called in a number of reports for it to be reinstated. I accept that this Bill is not the vehicle for it, but I hope that, when the Lord Chancellor has discussions with the Chancellor and others, he will bear in mind that that would be a sensible, humane and civilised thing to do. In practical terms, it will be much better if mediation can be used to resolve many of those matters once the process of divorce is dealt with in a much less stringent manner, and it has been demonstrated clearly in evidence to our Select Committee that the best gateway to mediation and a much more collaborative approach to achieving resolution is through early access to a lawyer, because the lawyers are the gatekeepers of the mediation process. Money spent on that would, I submit, be money well spent both in terms of savings of court time and burdens on social services when having to resolve confrontational custody and child-related applications, and in terms of society as a whole. It would also be the decent thing to do. With those comments and with the knowledge that my right hon. and learned Friend the Lord Chancellor will take them on board, I commend the Bill the House.

Sir Edward Leigh Portrait Sir Edward Leigh - Hansard

Introducing Third Reading, the Lord Chancellor said that this is not a quickie divorce Bill. It is a quickie divorce Bill—six months sounds pretty quick to me. The Lord Chancellor said it does not undermine marriage. This Bill does undermine marriage, because it can be dissolved without people giving any reasons at all—indeed, it forces people to get divorced without giving any reasons. The Lord Chancellor said it does not undermine reconciliation. Well, it certainly does nothing for reconciliation.

The amendments we proposed were moderate. We simply asked for more time—from six months to nine months or one year. All our amendments have been swept aside by the Government. In the last vote, we asked for more money to be given for reconciliation. The Government brought the full might of their machine to vote down our amendment—a very moderate amendment. Divorce costs us £50 billion a year, but we are spending only £10 million. In his introduction, the Secretary of State said that the Bill is not coming at the wrong time. It is the wrong time—precisely the wrong time, when relationships are under so much strain.

We have a fundamental principal objection to the Bill. The Bill furthers the claim that the present law is based on hypocrisy. Leaving aside the fact that no one has to allege fault, this is part of a liberal point of view that getting rid of any sort of moral compass in society and any pain means that society will suddenly become painless. No doubt the next argument used by our Government will be that our present abortion laws are based on hypocrisy, because anyone can get an abortion but they have to give a reason, so why not have abortion on demand all the way through? Or they will say that our present laws on euthanasia are based on hypocrisy, because in reality we all know that many people are not kept alive and their lives are quietly ended painlessly, so let us have euthanasia. We will have abortion on demand and euthanasia on demand, and we have divorce on demand.

I tell right hon. and hon. Members that if they get rid of pain, if they get rid of all moral compass, they will find that it is not the process of divorce that causes the pain; it is the fact of divorce and the fact that we have one of the highest rates of marital breakdown in the world. It is a bad Bill, it is a quickie divorce Bill, it comes at the wrong time, and we do not agree with it.

Sir David Amess Portrait Sir David Amess - Hansard

I am not a lawyer and I make no apology for that. We who are elected here come from all sorts of backgrounds, and whatever our background, we are equal and our voices should all be heard.

I heard what my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) said about fashions and all of that. When I was first elected to Parliament, Margaret Thatcher was the Prime Minister and Lord Hailsham was the Lord Chancellor. I fully accept that the world was different then. When I and people like me compare what our party is doing now to what it did then, it is a bit of a shock. If I fast forward to when Lord Mackay of Clashfern was Lord Chancellor—a wonderful Lord Chancellor, who is very much on the ball these days, even though he is over 90—and remember the position he took in 1996, I share his worries.

As I said earlier, I do not think this debate is about saying that people should not live together, or that it is about celebrating marriage. Regardless of how my right hon. and learned Friend the Lord Chancellor has explained the situation, I am worried that my party is giving out a message, and when messages are put out on social media and in the newspapers, that is what people grab. I am just a little worried that, although my right hon. and learned Friend, to whom I listened carefully, has reassured us about reconciliation and all other matters, it may just make a margin. I go back to what I said, to pick up on the point made by my hon. Friend the Member for Bromley and Chislehurst, that yes, people change, but at the end of it all, human beings are human beings and relationships are relationships. It is a big step to get married, and the fallout of divorce is truly shocking. The Minister, who did a wonderful job in summing up, responded to the amendments earlier, but I repeat that I would much prefer fewer people getting married, if marriage is no longer going to be fashionable, than see divorce increase.

The final thing I would say to my right hon. and learned Friend is that I think the whole House wants him to succeed with this legislation, but if he is wrong and I am right, and we see more divorces, I would be very interested to learn how the Government will deal with that situation. Obviously, I hope that my right hon. and learned Friend is right about what he wants to achieve, but I have been here and listened to many Ministers state things before, and of course there is a huge gap between their saying something and learning how it impacts five, 10, 15 or 20 years later. I just hope that on this occasion I am wrong.