Divorce, Dissolution and Separation Bill [HL] — House of Lords, 2020-02-05
Topic: Law and Crime
Maurice Morrow (Democratic Unionist Party, Right): My Lords, this has been, to put it mildly, a fascinating debate. I listened very carefully to the noble and learned Lord, Lord Mackay, making the case for removing fault from the divorce procedure. I listened equally attentively to the noble Lord, Lord Farmer, arguing that fault should be maintained. On the one hand, I completely understand how removing fault will make divorces less acrimonious, which may be a good thing. On the other hand, I completely understand that if marriage is a lifelong commitment, with all its extensive public policy benefits, there must be constraints on the freedom to exit. It does not make sense that one should be able to walk out of a serious "till death us do part" commitment unless there has been a serious event, such as adultery, to justify doing so I very much believe that marriage is a mutual institution, and so I agree that if one party wants to leave, they cannot be compelled to remain. My concern is that if we change the law simply to give one party the power to end the marriage just because he or she wants to, it will have the effect of making divorce very much more accessible. The truth is that, while it would plainly be unwise and quite wrong for the state to try to hold people in marriages against their will, marriages have been saved and made strong again because divorce was not immediately accessible, and in that context it made complete sense for the couple to exhaust all other options before turning to the very difficult process of divorce My concern is that this Bill, in making divorce more accessible, is likely to elicit a greater readiness to turn to divorce and will thereby foster a lower dissatisfaction threshold within marriage when previously couples would have exhibited a greater willingness to stay and fight for their marriage I have no doubt at all that, from the narrow administrative perspective of the court, removing fault makes sense. My point, however, is that while we are considering a legal process in which the interests of the courts are very important, this process has potentially huge consequences for society at large. Studies certainly suggest that the provision of easier divorce is likely to give rise to a long-term increase in the divorce rate by up to 10% to 20%. Douglas Allen’s survey of no-fault divorce between 1995 and 2006 suggests an increase of up to 10%, while a study by González and Viitanen suggests an increase of up to 20%. This would constitute a social development that we could well do without In addition to this concern, I feel very uncomfortable about the impact of the Bill on the standing of the relevant parties. It seems—albeit unintentionally, I am sure—to create a vulnerable party, which I do not think will resonate with Workington’s sense of fair play. On the one hand, we have the person who wants to leave the marriage—the petitioner. Rather than the petitioner being constrained by the serious nature of the commitment he made on entering the marriage, the Bill enables him to call it a day simply because he is bored. The legislation will greatly enhance his autonomy, enabling him to do what he wants to do regardless of any commitment he may have made on his wedding day. For the petitioner, the Bill as currently framed will extend his personal freedom On the other hand, we have the person in the marriage who is not initiating divorce proceedings—the respondent. For them, the divorce could well come as a complete bolt from the blue, because there is now no need for it to be preceded by the conflict inherent in adultery and unreasonable behaviour. Their position is also weakened because the Bill proposes removing their right to contest the divorce—something that 83% of responses to the Government’s consultation preceding the Bill opposed If the petitioner wants to leave, he can leave, and within just 26 weeks. The salutary thing about this is the insecurity it would bring to marriages; on the passing of this Bill, anyone who is married would become a potential respondent and could be divorced in just 26 weeks simply because their spouse has changed their mind and no longer wants to be married. As if this were not enough, the Bill will also make the respondent vulnerable to being divorced in what is from their perspective a seven-week process, as Professor Hodson has pointed out. There is no mechanism to compel the petitioner to serve notice on the respondent until he wants the first decree of divorce at the end of the 20-week reflection period. Far from removing conflict, it seems to me that the Bill as currently drafted is likely to greatly exacerbate it I am also very concerned about the way in which the interests of the petitioner have been prioritised over those of the children. There has been an attempt to argue that this Bill will help children by liberating them more quickly from unhappy marriages, and without as much conflict as they would witness if fault remained. On both grounds I find this problematic. First, there is an extensive body of literature that shows that divorce does not free children from conflict; it makes conflict a permanent feature of their lives as they are split over two households. Secondly, rather than helping children, conflict-free divorces can be the most difficult to process because they come as a bolt from the blue for no apparent reason. As the social scientist Elizabeth Marquardt has observed: "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." Another thing that I find concerning is the way the Bill designs the divorce process to expedite divorce rather than save marriages. The initial consultation document on divorce reform said: "The need to make allegations can lay the ground for confrontation with the other spouse right from the start of proceedings. It becomes ingrained as the practical need arises to evidence details of the other spouse’s conduct." Mindful of this, it seems unfortunate to me that the statement of irretrievable breakdown is made at the start of the 20-week reflection period, given that between 2003 and 2016 on average more than 12,000 more divorce processes were commenced each year than ever concluded. It is very clear that we should seek to promote reconciliation during the divorce process as well as before it. With this in mind, it would make far more sense to commence the divorce process with a 20-week reflection period that culminated in a declaration of irretrievable breakdown if reconciliation could not be secured, rather than beginning with this very stark statement. There is a similar point to be made about a statement of irretrievable breakdown at the start of the proceedings rather than after the 20-week period The problems raised in the Bill as currently drafted are of such a serious nature and so far-reaching that there is a good case for remitting it to a Select Committee for an inquiry.