Divorce, Dissolution and Separation Bill [HL] — House of Lords, 2020-02-05
Topic: Mixed Topics
Elspeth Howe (Crossbench, Unknown): My Lords, I too congratulate the noble Baroness, Lady Hunt, on her excellent maiden speech and welcome her to our Cross Benches. I shall concentrate on two issues: first, the place of children within the divorce process anticipated by the Bill and the need to uphold their best interests throughout; and, secondly, the way in which the Bill proposes to change the rights of the respondent—that is, the spouse who has not initiated the divorce The social science evidence is clear that child development benefits enormously from the stability brought about by marriage. In this context, the state has two important responsibilities. First, it should create a public policy context that positively supports marriage through the provision of proper marriage support services and a fiscal environment that makes marriage an accessible option to all, including those on low to average income. Secondly, it should uphold marriage and divorce legislation in such a way that it facilitates divorce without needlessly aggravating conflict, on the one hand, and which does not thereby undermine the marriage commitment on the other I am aware that the justification for the Bill before us today is that it will help to reduce conflict. That may benefit the adults concerned but we should not overemphasise the benefits for children. In the first instance, there are some impressive studies suggesting that the long-term consequence of divorce is far more damaging for child development than the divorce process. That really needs to be understood if one is not to get the benefits of minimising conflict in the divorce process out of perspective. Beneath that, however, there is some important research suggesting that conflict is better than no conflict because divorce without conflict makes no sense to children who, in the absence of better explanations, are apt to blame themselves when things go wrong for no apparent reason. Social scientist Elizabeth Marquardt found that "The children of low-conflict couples fare worse after divorce because the divorce marks their first exposure to a serious problem. One day, without much warning, their world just falls apart." Similarly, research by Alan Booth and Paul Amato found that the break-up of a low-conflict family is more harmful to a child than the break-up of a high-conflict family. If the Bill is to proceed, a lot more thought needs to be given to the role of children in this process and how they will be affected by the proposed change in the law I now turn to the way the Bill treats the respondent. It effectively introduces a shift in power towards the person wanting to initiate divorce proceedings, the petitioner, and away from the other party to the marriage, the respondent. In the past, the seriousness of the marriage commitment meant that marriage could not be exited at will but only if circumstances demonstrated that the commitment had been broken. There were consequently some external constraints. Under this Bill, however, marriages are released from these constraints, such that if either party wishes to exit the relationship, they can do so simply by starting divorce proceedings, stating that the relationship has irretrievably broken down. No evidence is required to back up this assertion, so while the statement may, on some occasions, mean that the relationship has indeed irretrievably broken down, on other occasions, it may be nothing more than a euphemism for "I do not like being married to you any more." Moreover, the Bill removes from the respondent the right to contest the divorce. This means that once the petitioner initiates proceedings he can be confident that, unless he changes his mind, he should be divorced in just 26 weeks. In creating an unconstrained right to divorce, alongside the removal of the respondent’s right to contest it, it seems to me that, as currently drafted, the Bill is vulnerable to being characterised as constituting a "petitioner’s charter" when in truth it should be a charter for all concerned, the petitioner, the respondent and their children I am, however, concerned that this shift in power to the petitioner is greatly exaggerated by the failure of the Bill to require the petitioner or the court to tell the respondent when the divorce process begins. Under the Bill, once the petitioner has initiated the divorce, the 20-week reflection and consideration period will begin. The Government have previously stated in their response to the 2018 consultation that this 20-week period is intended "to ensure that the decision to divorce remains a considered one, providing opportunities for couples to change course." I am sure we all agree that that is a laudable aim. It is vital that both parties in a divorce have equal time to consider the decision, reflect upon their marriage and, if possible, see if there are ways that it can be saved Under the proposed arrangements in the Bill, however, the 20 weeks start running from when the divorce petition is first lodged, not when both parties are aware of it. This means that the spouse responding to the petition may not receive notice of the petition until a number of weeks later, for reasons such as issues in delivering notice, delays at the court or being overseas. In fact, if the petitioner does not want to tell the respondent, there is nothing—as Professor Hodson has pointed out—to require this until the end of the 20-week reflection period When the 20-week period is complete, the court must confirm that the petitioner has informed the respondent before issuing the first decree of divorce. If the petitioner says no, the court will tell him that it cannot issue the decree until he notifies the respondent. In this context, therefore, it is possible that the respondent will find out that they are being divorced only six or seven weeks before they are Professor Hodson has anticipated the damage this will bring about: "Everyone can anticipate the trauma, distress and anger this will cause. The previous four months will be regarded by a respondent as a deceitful lie … It will badly affect opportunities to negotiate terms of any separation. It will set back the chance of resolving financial implications. It encourages the worst sort of marital behaviour." I anticipate that in response to this concern, the Minister may reply that moving to a system where the 20 weeks starts when the respondent receives notice could incentivise them to avoid being served notice, and thereby delay the divorce. This, however, is no defence for accepting the current arrangements in the Bill, especially as it already seeks disproportionately to empower the petitioner One solution to this problem would be to remove the ability of the petitioner to effect service and place it, instead, in the hands of the court. This would give the court control of the process and appropriate levers to incentivise response to service, including the warning of possible default judgments, if a response is not provided, and written warnings on court paper that the respondent may be liable to additional costs if they do not respond to service. There are also options of deeming service has been provided through proof of delivery at a registered address or a sworn affidavit of service by hand, filed by the server, either lay or professional In its analysis of other jurisdictions’ divorce laws, the Nuffield Foundation noted that there was a high level of consistency about when the notification period should commence. It said: "Starting the clock only once the second party is aware of the application ensures that all parties have the same minimum period of notice. This is an important safeguard where the divorce is an unexpected and unwelcome event." The details of reforming the delivery of service in such cases must be sorted out by the Government. If this matter is not addressed, I am advised that the law would be vulnerable to an Article 8 human rights challenge because of the difference in treatment meted out on the respondent vis-à-vis the petitioner, and the difference in treatment experienced by those respondents who are notified by their petitioners at the start of the 20-week period and those who are not until the end I am concerned that the Bill is shifting power to the petitioner, leaving the respondent and, importantly, children in a very vulnerable position. As things stand, the Bill leaves a lot to be desired and it needs a lot of revision. I look forward to what I hope the Minister will say when he comes to reply: that this is indeed what is needed.