Divorce, Dissolution and Separation Bill [HL] — House of Lords, 2020-02-05
Topic: Law and Crime
Donald Anderson (Labour, Centre-left): My Lords, the Minister based his speech on what he termed realism, and he gave a number of figures to that effect. I think he was less sure-footed on the points of principle and where dangers or problems might possibly arise from the trend that he now accepts—although I say from the start that I broadly accept the case for the Bill. Your Lordships will be aware of the ecclesiastical law basis of much of our family law—"wives, wills and wrecks". In the past it was linked with the concern of marriage as a sacrament—"Let no man put asunder that which God has ordained"—and I try, albeit very imperfectly, to look at issues through Christian spectacles The worthy aim in the past was permanence, however unrealistic in actual situations. Today we are moving in a different direction, with its own dangers. I saw one—perhaps absurd—example of such dangers in yesterday’s Daily Mail relating to a case in the US. The "Baywatch" star Pamela Anderson, who is a serial monogamist and perhaps an eternal optimist, was married on 20 January in what we are told was for both parties the fifth time. The marriage, we are told, lasted for about 12 days. That is perhaps the ultimate cheapening of the institution of marriage My experience is limited, but divorce was the bread and butter of young barristers when they started on their career. I was called to the Bar in 1969, between the Divorce Reform Act 1969, which established irretrievable breakdown, and the consolidation Act, the Matrimonial Causes Act 1973. It was of course the time of the remarkable Lord Denning, who, in spite of the legislation, pushed beyond the frontiers the case for vulnerable people, particularly women. He was extraordinarily progressive in his field, but extraordinarily reactionary in other fields—in what he might have called the "law of master and servant", which I think we now call industrial relations law. The procedure for a new barrister was very simple at the time. I had my precedents from Rayden ready and to hand in chambers. Solicitors would send me a brief to settle the divorce petition, with perhaps a dozen examples of conduct during, say, a 10-year marriage, with none of the 10 cases being particularly strong in itself but in aggregate making a case that appeared at first sight to be possibly formidable. Yet surely it is only in heaven that there is a marriage without such incidents over such a period—I speak as someone who has been married happily for 56 years As a young barrister, I began to doubt whether what I was doing corresponded with the realities of married life, with the 100% to 0% position on fault. In particular, I doubted whether this adversarial method was justified in the public interest, because of its effect on children and on the ultimate financial settlement. I regretted that there was no provision for mediation. Perhaps in closing the Minister might indicate the Government’s position on mediation—of trying to find, in very difficult personal situations and if possible, some means of reconciliation. It figures in no way in the Bill Further, in my early experience, I was asked to advise on whether legal aid should be granted to a petitioner on the facts and often said no in the public interest, because the grounds appeared to me to be so flimsy. I remember one case in which the potential petitioner said, "I am a doggy person; he is not a doggy person" and thought that this was simple grounds. Clearly, the state has an interest in not continuing an empty shell of a relationship, particularly if children are involved, but equally in not encouraging easy divorce. One is led to ask, what are the next steps? Is this the end of a process? Where ultimately will this trend lead? Therefore, although I broadly support the main thrust of the Bill, I have certain hesitations There is the question of time, for example, which was considered during the passage of the Family Law Act 1996, which was never brought into force. The then Government had proposed a minimum period of one year. Parliament disagreed, considering that not long enough, and amended the period to 18 months. Under this proposed system of unilateral divorce on demand, the period would be reduced to six months. That is 20 weeks between the start of proceedings and a further six weeks from the conditional to the final order. Further, the Bill gives the Government power to promise to change the period by SI. Could the Minister indicate whether he agrees with my analysis? It appears that the court may indeed reduce the period even further. What guidance do the Government propose to give to judges on the principles on which they should consider reducing the period further? Could the Minister confirm that my reading of Clause 1 in terms of timing is correct Yes, the Bill is broadly acceptable, but if the trend continues further along this road, I hope that the Government accept that there are real dangers.