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Divorce Legislation

Volume 782: debated on Wednesday 29 March 2017


Tabled by

My Lords, on behalf of my noble friend Lord Marks of Henley-on-Thames, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.

My Lords, the Government are considering what further reform may be needed to the family justice system so that it better meets the needs of separating couples and families and can achieve the best possible outcomes for them. Options for reviewing divorce law are part of that broader consideration. We will publish a Green Paper with our proposals on family justice in due course.

I am very grateful to the Minister for that Answer. She will have seen reports over the weekend of a woman being denied a divorce despite there being no prospect of or desire for reconciliation. The judge had no choice in this matter because the law does not allow for no-fault divorce. Is it not high time to change this outdated law, which can trap men and women in unhappy marriages against their will?

My Lords, I do not wish to discuss individual cases. Suffice it to say that the case of Owens, to which I think the noble Baroness refers, is just one of 2% of divorces in which one spouse opposes the divorce petition of the other. It is a high-profile case in the Court of Appeal and not representative of the 98% of divorces decided in the family court every day without the need for any hearing involving the parties. Indeed, in the vast majority of divorce petitions, the evidence put forward by the petitioner will be accepted by the court as sufficient to demonstrate the irretrievable breakdown of the marriage. The debate about removing fault from divorce is long standing, and the Government acknowledge the calls for reform and will consider them alongside other potential family justice reforms.

My Lords, in House judgment in the Court of Appeal case, Sir James Munby, the President of the Family Division, said that,

“the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty”.

That is a damning criticism of the present system. Would the Minister confirm that it really is time to recognise that five years of separation is too long a period to be made a minimum before a no-fault decree can be pronounced? Will the Government consider a shorter period—perhaps two years, although there may obviously be different choices—and, when there are children under age, the possibility of a slightly longer period and a requirement for mediation?

My Lords, it is fair to say that the timing that the noble Lord has referred to is just part of a review of the overall justice system that has been undertaken by my colleague Sir Oliver Heald QC MP in another place. Any proposal for legislative change to remove fault from divorce would have to be considered as part of this wider review. We feel strongly that it would not make sense to take forward one aspect of law reform in isolation without consideration of its fit within the family justice system. Divorce can be a life-changing event for many people and has consequences for people’s financial arrangements and for any children that they have, as the noble Lord referred to. It is important that the Government consider any proposals in the context of how the family justice system supports people to reduce conflict, resolve their disputes and reach agreement.

My Lords, when the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor, he brought forward a divorce law that had no-fault as its basis and would certainly have met the needs of the present couple. For some reason, a subsequent Government did not enact that. Would the Government look again at the legislation they previously brought forward, which was supported by both Houses of Parliament?

I thank the noble and right reverend Lord for his reference to the proposal that was brought forward by my noble and learned friend Lord Mackay of Clashfern. As he said, that change in the law did not come to fruition. The Government are considering potential reforms to divorce law and at this stage have not reached any conclusions. We acknowledge, however, that some people will not wish to divorce without being able to cite a fault, particularly if their faith requires them to do so. The Government are committed to improving the family justice system and to making the courts more efficient. Current divorce law has been in operation for over 40 years and past attempts at reform have not been without difficulty. Indeed, in the recent case, the case of Dodds v Dodds was cited—I think it was one of the first cases I had to consider as a law student—which dated from 1906 and talked about the law being full of anomalies, injustices, inequalities and some absurdities. The truth is, we need to consider all these aspects with care.

My Lords, I refer to my entry in the register as a lawyer. I was a little surprised today and looked twice at this topical Question; I thought it might even have been answered by my noble friend Lord Bridges of Headley but, luckily, it is on a another theme—an important theme in terms of divorce. I have often said that, even with the best intentions, divorces very rarely end in an amicable manner. Can the Minister confirm that, in any reforms and any review that takes place, there will be a full understanding of the complexity of relationships; an intention to make sure that as much flexibility as possible remains in our court system in settling matters between parties in divorce cases; and, in particular, the interests of children will always be looked to as a priority?

I thank my noble friend for his question. He is absolutely right: children should be at the heart of any reforms. Clarity and predictability must be balanced with the need for flexibility—with the possibility that flexibility in these circumstances, when reconsidering the whole issue of the family justice system, can sometimes bring fairness that certainty precludes.