Divorce, Dissolution and Separation Bill [HL]

Committee

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

Amendment 1

1: Clause 1, page 1, line 7, leave out from “court” to end of line 15 and insert “to initiate the process for an order (a “divorce order”) which will dissolve the marriage on the ground that the marriage has broken down irretrievably. (2) The divorce process under subsection (1) consists of three stages and must be accompanied by—(a) for the first stage, a statement by the applicant or applicants, if a joint application, on the filing of the application for a divorce order that they think that the marriage may have broken down irretrievably,(b) for the second stage, a statement by the applicant or applicants on applying for a conditional order asserting that the marriage has broken down irretrievably, and(c) for the third stage, an application for the final divorce.(3) The court dealing with an application under subsection (2)(c) must—(a) take the statement given under subsection (2)(b) to be conclusive evidence that the marriage has broken down irretrievably, and(b) make a final divorce order.”

My Lords, I am very pleased to speak to Amendment 1 in my name. The Government have said there should be a minimum timeframe between petition and conditional order

“to give couples sufficient time to consider the implications of the decision to divorce and to agree practical arrangements for the future.”

They acknowledged that this is especially important because the digitisation of the divorce process could result in some parties rushing to divorce before the prospect of reconciliation has been fully explored. Importantly, they argue that the minimum timeframe provides

“opportunities for couples to change course.”

There are 27 references to reconciliation in the Government’s document, which includes the statement:

“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.”

All of the Government’s sentiments about the proposed reforms sound well intentioned. However, proposed new Section 1(2) provides that a respondent who receives notice at the start of the divorce proceedings will do so with a statement from their spouse that

“the marriage has broken down irretrievably.”

The law is thereby designed to begin the divorce process with a statement that makes it inevitable. I cannot see how a respondent would feel that such a statement does indeed provide opportunities to change course. They will feel that the hammer has already fallen.

I do not believe that the wording of proposed new Section 1(2) is in any way consistent with the hopes for reconciliation expressed by the Government’s Reducing Family Conflict paper. A statement of irretrievable breakdown must clearly come at the end of the process, immediately prior to divorce, but designing the law in a way that asks one party to a marriage to make this very strong assertion right at the start of the divorce process is counterproductive.

We must never lose sight of the fact that just because a divorce process begins does not mean it will conclude in divorce. For some couples it will become a means of highlighting a problem that can then be addressed, such that the divorce is never concluded and the marriage endures. In this regard, as I mentioned in my Second Reading speech, it is noticeable that between 2003 and 2016 the court records show that each year, on average, 12,702 more divorce processes were initiated than ever concluded. This underlines the importance of not assuming that it is all over from the beginning of the divorce process and the need for the law and the Government to do everything they can during the divorce process to help save as many marriages as possible.

Quite apart from anything else, I do not believe that the current wording of proposed new Section 1(2), requiring a statement of irretrievable breakdown from the outset, engages with the requirements of the Government’s family test. It fails to answer question five of the family test:

“How does the policy impact those families most at risk of deterioration of relationship quality and breakdown?”

The policy of asking one party to a marriage to deliver their spouse a statement of irretrievable breakdown before any attempt at reconciliation within the divorce process plainly will have the worst possible impact on those families most at risk of deterioration of relationship quality and breakdown. It will make reconciliation more difficult and divorce more likely than if the law were to ask the unhappy spouse to register the problem and commence a divorce process in terms that do not effectively make it sound as if it is too late to consider reconciliation.

My Amendment 1 makes very clear the three stages of the process—application, conditional order and final divorce order—but proposes a fundamental change that, I hope the Minister and noble Lords will acknowledge, is in line with the government intentions set out last April and the family test. I propose replacing the first three subsections of proposed new Section 1. Under my Amendment 1, the initial application—the petition, in the current language—would be accompanied by a statement that the petitioner thinks the marriage may have broken down, but not definitely irretrievably. This would be the start of the minimum time period. My intention was expressed by Relate, which in the consultation process said

“that this could support opportunities for reconciliation by removing any sense that divorce was a ‘foregone conclusion’.”

It would give the respondent an opportunity to suggest reconciliation with some hope of changing course.

The Government have indicated their support for reconciliation by stating that they intend to keep Section 6 of the Matrimonial Causes Act, in which legal practitioners must certify whether they have discussed the possibility of reconciliation. However, the reforms proposed by this Bill are not aiding any attempt at reconciliation when the application for a divorce must state at the very start of the process that the marriage has broken down irretrievably. Under my amendment, it would be at the conditional order stage—or decree nisi, as it is now—that the party or parties seeking a divorce could make a statement that the marriage has irretrievably broken down, a statement that is more reasonable to make after a time of reflection and conversations on reconciliation than before. There would then be a six-week period, after which the party or parties could apply for a final divorce order or decree absolute.

I end where I started. The Government say that the

“key policy objectives are to ensure that the decision to divorce is a considered one, with sufficient opportunity for reconciliation.”

I am of the view that the proposal before us in this Bill mitigates against any opportunity for reconciliation. Therefore, I have put before your Lordships an alternative that opens up the room for dialogue between partners to a marriage. I beg to move.

My Lords, I am pleased to speak in support of Amendment 1 in the name of the noble Lord, Lord McColl, which I very much hope the Minister accepts. This amendment has two important virtues.

First, as has been noted, it creates an environment for the 20-week period during which there is a chance for genuine reconciliation. The divorces between 2003 to 2016 tell their own very important story. It must be right not to condemn the process to failure from the start by encouraging a statement of irretrievable breakdown without the need for any prior warning. Under the current law, the only way to move to irretrievable breakdown in the absence of unreasonable behaviour, such as adultery, is through a prolonged period of separation, such that a formal notice of divorce cannot come as a surprise. By contrast, under this Bill, being presented with a statement of irretrievable breakdown could be the first you know of a difficulty. How did such an extraordinary proposal get past the family test? I rather suspect that we are still waiting for the family test to take place.

The second virtue of this arrangement is that it treats the respondent with greater respect. One of the things that disturbs me most about this Bill is that it seems to have been fashioned with the interests of one party in mind—the petitioner—and demonstrates little or no regard for the respondent, or any children who might be caught up in the divorce process. It currently stands as a petitioner’s charter. The Bill gives the petitioner the power to suddenly announce that the marriage has broken down irretrievably, from which point there is absolutely nothing that the respondent can do to get any kind of fair hearing if they disagree. While this amendment does not completely reverse the shift in power from the respondent to the petitioner, it will at least give the respondent the opportunity to have a voice and express their perspective during the reflection period in the limited but important sense that the termination of the relationship is, for that time, not a foregone conclusion. The petitioner has made a statement that they think the relationship may have broken down but there is, in this statement, something of a question and an opportunity for the respondent to engage: they are not being presented with a fait accompli.