Divorce, Dissolution and Separation Bill [HL] — House of Lords, 2020-03-17
Topic: Law and Crime
Michael Farmer (Conservative, Centre-right): My Lords, I shall speak also to the other amendments in this group. It is not at all the norm for me to table amendments that appear to strike at the heart of what the Government, on whose Benches I sit, are trying to achieve. It is not something that I relish in any way. However, I feel compelled to keep challenging the introduction of no-fault divorce in this country. This is, in fact, because I support the two key principles set out in the original consultation paper and do not believe that removing the ability to cite fault fulfils them Those principles are, first, that the decision to divorce continues to be a considered one, giving spouses the opportunity to change course, and, secondly, that spouses are not put through legal requirements that do not serve their or the state’s interests and can lead to ongoing conflict and poor outcomes for children I realise that the various Front-Bench justice spokespersons, many of whom are lawyers, are for this Bill. However, I have become aware that many Back-Benchers and even some Front-Benchers are not truly cognisant of its contents and implications. I have a great respect for the legal profession but it is deliberate and appropriate that this House welcomes and appreciates those from different backgrounds who can provide a wider view The purpose of all my amendments—2, 5A, 6A, which supersedes Amendment 6, and 7, 8, 9, 11 and 12—is to retain the good things in this Bill and reject the bad. I am referring to those elements which I do not think will serve the best interests of families in our country. They aim better to fulfil the laudable principles with which the Government embarked on divorce reform. My amendments will retain the option for both parties in the marriage or civil partnership to make a joint application for a divorce, judicial separation or dissolution. They will also retain the minimum time period before which a divorce or dissolution cannot be granted. I heard what my noble and learned friend Lord Keen said about many fault-based divorces taking less time than the six months currently proposed My amendments would also retain the ability in the current law to cite fault to obtain a divorce or dissolution and to contest a divorce. I know that this happens rarely and that only 2% of respondents state intention to defend, with fewer than half of these going through the formal process. I also know that the number contesting may be less than 1,000 every year and that many are resisting the particulars of unreasonable behaviour and other fault-based facts. However, some will be trying to keep their marriage vows alive by resisting being unilaterally divorced At least the current law enables them to mount that defence. The removal of this facility ushers in, de jure, unilateral divorce with the full approval of the state. This is justified on the dubious grounds that we already have unilateral divorce de facto. This is where a reluctant respondent, who might have much preferred to attempt reconciliation, is more or less forced to accept that their marriage is over when fault facts of dubious veracity are used to establish the ground for divorce. Would it not be better to curtail the motivation and ability of people to do this through the minimum time limits proposed in the Bill and by significantly reducing the separation periods with and without consent so that they more closely resemble the Scottish system? That is what my amendments would also achieve A couple could jointly apply after one year’s separation. There would then be another six months to run, during which time, one hopes, much progress could be made on real areas of conflict—finances and children. A sole applicant could apply after just two years’ separation. In 2015-16, only 6% of divorces in Scotland were fault based because of these other remedies I have already alluded to the support of noble and learned Members of this House for the more draconian measures proposed in the Bill, so I know what I am up against, and I have very rarely experienced in this House an argument that has changed people’s minds. I still want to take the time to explain why I believe that these amendments will more adequately fulfil the Government’s stated principles On the first principle— "that the decision to divorce continues to be a considered one, giving spouses the opportunity to change course"— how does a sole application leading to a divorce after a 20-week reflection period, plus six weeks, achieve this? Leaving aside the important issue of both parties having the full extent of that period, I simply ask noble Lords whether no-fault divorce really does allow for reflection If fault is discarded, people can simply go online, late at night, after what may have been a rather trivial or resolvable argument—or possibly too many drinks—and apply within minutes. The irretrievable breakdown of the marriage would, in effect, be proven by the impetuous completion of that form. As one mediator writing on the Family Law website expressed it: "Our culture has changed, and we must be alive to the unalterable fact that our online world can eliminate vital processing and reflection time." To those who argue that online completion allows that already anyway, I say this. The need to cite a fault fact will in itself be a moment of pause, even a deterrent, for many who might be all too well aware when they are doing so that their spouse could counter-accuse them of far worse I have also been told that it is patronising to suggest that those who come through the door, particularly of our top lawyers, to arrange a divorce are not doing it with very careful consideration. For this cohort, I am in complete agreement that this move will have been well thought through, not least as there is often so much money and property at stake. However, there will be many who think that they have far less to lose, and who may have given the issue far less thought Again, I am aware of Professor Janet Walker’s research, cited by the Nuffield Foundation’s Finding Fault? report, in defence of the argument that divorce is rarely initiated lightly. The report states that the research showed that the decision to divorce is not taken lightly or impetuously. Indeed, it is a typically protracted decision, based on months, if not years, of painful and difficult consideration. However, once that decision has been reached, the parties need to move forward without lengthy delays. Professor Walker’s study was a valuable analysis of provisions made in Part 2 of the Family Law Act, which was repealed. She followed thousands of people who took part in the pilots of the information meetings that would have become mandatory once the Act was brought into force. These, however, were volunteers, who had actively put themselves forward, not only to attend the meetings but to take part in research. So, despite my sincere respect for Professor Walker, I am not at all convinced that her subjects can be treated as representative of the overall divorcing population, including in terms of the level of consideration they had given to the decision to divorce On the second principle—that spouses "are not put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children"— this Bill falls very far short. I agree that the current system could be improved, but if the proposed reforms were enacted, respondents would be defenceless, in every sense of the word, and many of these are already the more vulnerable party, in financial and other ways. How are their interests served The assumption in debates during the passage of this Bill, as we have heard again today from the noble and learned Baroness, appears to have been that the abuser is often the respondent—but the abuser might also be the applicant. This law might penalise many more women than men, given that women are 12% worse off financially after divorce, while men are more than 30% better off How are the state’s interests served by this bad law, which cheapens the commitment of marriage? I have already cited research that shows that unilateral divorce leads to fewer marriages, fewer remarriages and more cohabitation, precisely because it makes marriage more like cohabitation. Does the state really want the greater instability that more cohabitation will bring, and higher numbers of children growing up without both parents? How is conflict significantly reduced when most of it is either prior to the divorce procedure or separate from it, at the stages when issues of money and children are being resolved?