Divorce, Dissolution and Separation Bill [HL]

Report

Clause 1: Divorce: removal of requirement to establish facts etc

Amendment 1

1: Clause 1, page 1, leave out lines 6 to 15 and insert— “(1) Subject to subsections (1) and (2), either or both parties to a marriage may apply to the court to initiate the process for an order (a “divorce order”).(2) In the case of an application by both parties to the marriage under subsection (1)— (a) the application must be accompanied by a statement by the applicants that the marriage has broken down irretrievably, and(b) the court must—(i) take the statement given under subsection (2)(a) to be conclusive evidence that the marriage has broken down irretrievably, and(ii) make a divorce order which will dissolve the marriage.(3) In the case of an application under subsection (1) that is to proceed as an application by one party to the marriage only—(a) an application must be accompanied by an initial statement by the applicant of their intention to seek a conditional order on the basis that the marriage may have broken down;(b) a confirmation by the applicant under subsection (5)(a) that they wish the application to continue must be accompanied by a statement that the marriage has broken down irretrievably; and(c) the court dealing with an application made by one party under this subsection and subsection (5)(a) must—(i) take the statement given under subsection (3)(b) to be conclusive evidence that the marriage has broken down irretrievably, and(ii) make a divorce order which will dissolve the marriage.”Member’s explanatory statement This amendment sets out different steps in the divorce process, depending upon whether the application is a joint application by both parties to the marriage, or an application by only one party.

My Lords, Amendment 1 is a redrafted form of the amendment that I brought before the House in Committee. I have returned to this issue because, as I read and reflected on the Committee debate, I was not at all assured that my concerns had been addressed. In coming back to this issue, I make it clear that I will not be dividing the House on this amendment, but I hope this debate will provide an opportunity for the Minister to address my concerns. I put on record my sincere thanks to him for the useful meeting that we had yesterday to discuss this and my other amendment.

I will begin by defining the problems that the amendment is designed to address and will then explain how it deals with them. I welcome that the Bill allows people to make joint applications for divorce for the first time. For these couples, the divorce will come as no surprise. However, the negative impact of the Bill on respondents where there is no fault is profound.

Under the current system, in the absence of fault, the couple must have lived apart for two to five years before proceeding to divorce. Clearly, on this basis no one would claim to be surprised at the divorce application. In the case of the two-year separation, the divorce application must be by mutual consent, and anyone who claims to be shocked at receiving divorce papers after five years’ separation is not credible. Under the Bill, however, all this will change for the respondent in this no-fault context. One day, they could be thinking that their marriage is all right, and the next day they could be faced with a declaration of irretrievable breakdown and the fact that they could be divorced within six months or even sooner if they are not notified at the start of the reflection period. I am particularly concerned about the greater insecurity that this will inevitably bring to many marriages, and the attendant psychological cost. In case anyone was to think that this might be a very small number, I remind the House that the circumstances I am describing —namely, the two to five-year separation period—are used in around two-fifths of divorce petitions each year. That is around 40,000 divorces: 40,000 respondents who today must receive some warning, but who under the Bill need receive no warning at all.

The Bill proposes to remove from the respondent the right to contest a divorce. In this context, it is only right that if the spouse who joined them in making a “till death us do part” commitment wishes to move towards disengaging himself from that commitment, he must do so in a way that affords his spouse some respect. This must involve giving her the opportunity—should she wish to take it—to make the case for why the marriage is saveable and worth saving, before it is condemned by a final statement of irretrievable breakdown.

When I raised this matter previously, some noble Lords suggested that it was patronising because I was questioning the decision of those who wanted to divorce. One could, however, make that comment only if one was viewing this process entirely from the perspective of the petitioner. I am not. I am not trying to prevent the petitioner divorcing if that is what he wants. I am simply reminding the House that on a previous occasion the petitioner made a “till death us do part” commitment to his spouse and that in extricating himself from that serious commitment, he should be encouraged to afford his spouse some respect.

Secondly, changing the initial statement is important if we are really serious about trying to promote reconciliation during the divorce process. The Government have stated clearly on numerous occasions that their purpose is to seek to promote reconciliation within the divorce process. In their response to the consultation, for instance, they stated:

“Sometimes, a marriage will still be reparable at the point at which one spouse seeks the divorce … But the law can—and should—have a role in providing couples with an opportunity to reflect on that momentous decision and to pull back from the brink if they decide that reconciliation is achievable.”

The Government further observe in the family impact assessment:

“The current law works against reconciliation by incentivising (in order to get a divorce more quickly) a spouse to make allegations about the other spouse’s conduct which can create conflict.”

They further state that they want to exploit the new opportunities for reconciliation under the no-fault system:

“We want to create conditions for couples and parents to reconcile if they can”.

It is because of this that there is a 20-week reflection period.

The Government describe, on page 31 of the Reducing Family Conflict consultation, the lodging of the petition as putting the marriage “on notice”, during which there is a 20-week period that the Government have called “the reflection period”, and that we do not even reach the point of applying for a conditional order until after that period. This being the case, it seems completely unnecessary to require the lodging of a statement of irretrievable breakdown until the moment of formally applying for the conditional order. Indeed, the decision to ask people to make a declaration of irretrievable breakdown at the start of the process seems not only unnecessary but like an attempt to needlessly sabotage the reconciliation potential of the reflection period. Some might respond by saying that at the moment that the divorce process begins, with a definitive statement, the marriage has broken down. In the context of a fault-based system, I can see why it must. In the context of the new “without fault” system before us today, however, I can see no logical reason why this must be so and many logical reasons, which I have highlighted, why we should insist on a statement of irretrievable breakdown only when applying for the conditional order.

The law today begins a divorce process with a statement of irretrievable breakdown only because that is what the law says. The law, however, can be changed; it is being changed through the Bill and should be changed further through amendment, if we are serious about exploiting the greater opportunities to facilitate reconciliation in a no-fault system. On this point, the Nuffield report was very helpful when it stated that under a system where one party is notified of the intention to divorce, as proposed by the Bill, there is also the possibility that notification would be more facilitative of reconciliation. Notification certainly could be facilitative of reconciliation if we did not condemn the reflection period to failure at the outset by unnecessarily asking one couple to make a statement of irretrievable breakdown 20 weeks before they can apply for a conditional order.

The Minister suggested to me yesterday that if we were to move to a situation where the process commences with a statement that the marriage may have broken down, it might result in speculative divorces. That thought is of course itself speculative, but I would not be opposed to replacing “may” with “has”, if that would help. My point is that if we start with a definitive statement from one party that the marriage has broken down irretrievably, we are losing the opportunity for greater reconciliation that a no-fault system provides. That is to miss an obvious opportunity. That statement should not be made until after the reflection period. If the Government do not like this solution, what will they do instead to address the problems that I have set out in my speech today? I beg to move.