Fiona's Speaks In Debate on the Divcorce Bill

Fiona said:

"This Bill is a bad Bill. It sends out the wrong message at the wrong time. No-fault divorce is really state-approved unilateral divorce. Ministers like to say that it is all about the divorce process and not about marriage. They are wrong. The removal of fault sends out the signal that marriage can be unilaterally exited with no available recourse for the party who has been left. The public get it, even if Ministers do not. In the “Finding fault?” national opinion survey, 71% thought that fault should remain in law. That is a survey on which, in other respects, the Government have relied in bringing forward this legislation. Even in the Government’s own consultation, 80% opposed the proposals, and the Bill was not even in our manifesto.

Making divorce easier and quicker will inevitably change the nature of the commitment that is made when marrying, because those doing so will recognise that it is something that can be exited easily and quickly, without having to prove that the relationship has broken down. Commitment within marriage will become unreliable. People will marry less due to the low expectation of permanence in marriage, and they will cohabit more as the distinction between the two is eroded and what marriage really means becomes confused. No longer “till death us do part”, but “until I give you six months’ notice to quit, with no reason given”.

Asymmetric relationships will increase—that is, people entering marriage with different expectations. That is a recipe for misunderstandings, instability and heartache. ​I accept that in some cases—though by no means all, or even a majority—faults cited on a petition may bear little resemblance to the actual reasons for a marriage faltering. This appears to be the root of the Government’s reasoning for this Bill—namely, that exaggerated allegations may increase conflict. But herein lies the problem. In seeking to address this issue by removing any requirement to give a reason and by speeding up the process to just six months, the Bill will, in my opinion, create far greater problems. It will fundamentally alter the whole meaning of marriage, with far-reaching consequences. Legislation affects behaviour and culture. That is why we are here. Whether Ministers agree or not, the signal the Bill will send out is that relationships, including marriage, can be transient. Instead of supporting parties when difficulties arise, as we should, the Bill offers an easy way out. That is why I so strongly oppose it.

Stable relationships are good for society as a whole: instability in relationships is the opposite. Unstable relationships are costly for society as a whole. I accept that not all marriages are saveable, but the Bill will accelerate divorce rates, not only with an immediate spike but potentially long term too. Make something easier and there will be more of it. The Bill will result in fewer marriages. Why bother if marriage does not mean that much? Fewer stable relationships will result. It is likely to foster a preponderance of short, even serial relationships in early and mid-life for those who can obtain them, with a sad parallel in the proliferation of loneliness in old age. It will result in less trust in marriage, more insecurity and, critically, more children experiencing fractured families—particularly more children experiencing shocks at the sudden fracturing of a marriage. It will result in quick splits, with some children left grieving potentially for years afterwards. For some, their health, educational and employment life chances will be gravely affected.

Generations to come will pay a high price for the Bill, in terms of emotional and physical health and wellbeing, a loss of wider family relationships—not least between grandparents and grandchildren—and the support and security they bring, and a further weakening of community life, because stable marriages promote stronger communities. When we are unhappy, we are very often less efficient in our studies and at work, and so there will be lower productivity and hence a less prosperous nation with the state—all of us—picking up the financial and other costs involved. In sum, there will be less human flourishing.

So many others, apart from the parties, suffer when marriages break up. There is an epidemic of loneliness in this country today. Why? In many cases, it is fractured families. There is an epidemic of mental health problems in children. Why? In many cases, it is fractured families. Those promoting the Bill should recognise its wider implications, not just provide a quick and easy exit for one or both parties. That is why amendment 1 is so important, and I am minded to test the will of the House on it. It would extend the minimum legal period for a divorce from six months to one year. The 20-week period in clause 1 is far too short. It needs extending, and I urge colleagues to support amendment 1, not least to help reduce the shock for a vulnerable woman with young children, like the one I described on Second Reading, who could be left in a potentially desperate position.

Here is a scenario anticipated by one experienced family lawyer as a result of the Bill. He describes how a man, if he wants to get out of a marriage, can railroad ​through his application in six months, leaving the woman at the end of that period without anything like adequate financial means. She could then be forced into a poor financial settlement simply to survive. We have talked a lot in this place in recent years about non-violent domestic abuse: would not that really be another form of that? In many cases, the stronger and more financially endowed partner will leave their partner—often a woman, occasionally a man—extremely vulnerable. It is a so-called petitioner’s charter.

Saying that the Bill will reduce conflict surely misses the point. If a man—or woman—can behave unreasonably by walking quickly away without being held to account, giving a reason or dialoguing rationally, why should he behave any more reasonably during negotiations relating to finances or children, which is when the real conflict occurs, as experienced family lawyers tell us time and again? The Bill does nothing to address that. That would have been a better place to focus on in the Bill rather than removing fault.

Amendment 1 would at least give more time for discussion, a longer breathing space an opportunity to take counsel, or at least help to bring a better end to the most important, legally binding and emotional commitment any two people can make to each other, to help them plan for life after divorce and, critically, more time to help prepare any children of the marriage for the impact on them and on wider family relationships. Of course, as I say, not all marriages can or should be saved, particularly where there is abuse, but a great deal more may be salvageable than is commonly assumed. Interestingly, research from the Marriage Foundation has found that

high conflict warring couples are a rarity among couples who split. The vast majority of family breakdown involves low conflict couples, who are largely indistinguishable”—a year— “before they split from couples that remain together. Most”— divorce involves previously “happy couples and therefore comes out of the blue.”

Jim Shannon MP said:

"I thank the hon. Lady for her considerable contribution in setting the scene for us. She and I have a very similar outlook on life, as I believe others in this House have as well. Is it her intention to ensure, through her amendments and new clauses, that services to save marriages—Relate and others—are available from the very beginning of a relationship breaking down to almost the end of it, so that every person at every stage will have a chance and an opportunity to save a marriage, rather than let it fall apart?"

Fiona said:

"I absolutely agree—indeed, not just from the very beginning of a marriage, but from before it, as I shall mention shortly when I refer to new clause 1.

I return to the important point that a great many family breakdowns may be a lot more salvageable than is commonly assumed, and therefore help towards that is important. Statistics bear this out: only 9% of married couples who split one year later could be categorised as high conflict couples who reported quarrelling a lot in the year before the split, and 60% of married couples who split were low conflict couples who also reported some degree of happiness. This Bill should have focused ​on helping to keep them together, not least, as has just been mentioned, by offering every couple going into marriage a pre-marriage course.

Such courses would help couples to appreciate that it is not all plain sailing; to understand what the commitment they are making will involve in practice and how to resolve conflict; to understand that better times do not always follow a break-up; and to equip themselves to persevere through difficulties to better times within their marriage. Such difficulties include the disruption a first child can bring, which is so often a crunch point in a marriage, and the current lockdown crisis, which has understandably exacerbated stress in some relationships. Indeed, lawyers report an increase in divorce inquiries of over 40% at present. The last solution offered by the Government for this should be a quick, spur-of-the-moment escape route.

This Bill is not focused on helping to keep marriages and families together; it does exactly the opposite. That is why new clause 1 is so important, and I am also minded to test the will of the Committee on it. New clause 1 would ensure increased funding for relationship counselling and new support for couples where an application for divorce has been made to a court. The availability of marriage support services in this country is wholly inadequate and requires substantially greater Government investment. This is no doubt one of the reasons why we have one of the highest rates of relationship breakdown in the western world.

It was encouraging that, in the last Budget, the Chancellor committed £2.5 million towards this, but much more is needed. Importantly, it is needed for less well-off couples, who cannot afford the private relationships counselling that better-off people can afford. The Government say that they want to remove conflict flashpoints and reduce areas of conflict in the divorce process. Improved relationship support and counselling would help achieve that. The Bill should have focused on it, and new clause 1 will amend this omission. I was encouraged by the support from those in many parts of the House for this on Second Reading."

Jim Shannon MP said:

"The hon. Lady is most gracious in giving way. She will understand and agree with me and probably others that churches offer such services. Is it possible within this legislation, with the extra money that will come through if the new clause is accepted, for the Government to work alongside churches to ensure that relationships can survive?"

Fiona said:

"I thank the hon. Gentleman. Some excellent marriage counselling and, indeed, pre-marriage courses are supplied through church organisations. They are very popular, and I personally think it would be marvellous to see a lot more of them and to see some Government-funded support for them.

Counsellors help parties to understand the implications of what marriage means and, when difficulties occur, of what splitting up would mean for them, their children, and their wider families. They help people to consider what a split will involve practically, regarding contact arrangements and finances, and whether the option of staying together might be something that they could look at. Counsellors give people tools to help work through the problems, since they may not have had a role model to copy in earlier life. Critically, if the ​divorce goes ahead, such help can assist a couple to navigate their future relationship in a way that is best for the future wellbeing of their children, and that will, hopefully, foster continued co-operation and constructive communication, while avoiding, or at least minimising, unnecessary acrimony and relationship acidity over the many years—often decades—to come, for the benefit of all involved. It might help people who receive such counselling to know two interesting facts. First, in a study that involved more than 1,500 people, Professor Janet Walker found that two years on from a divorce, many people wished they had been warned beforehand of the harsh realities of life after separation, and said that if they had been forewarned, they might have sought reconciliation. Another piece of research from the US in the early 2000s found that people who are unhappy in their marriage are more likely to be happier five years later if they do not divorce than if they do."

Richard Fuller MP said:

"I am learning a lot from my hon. Friend, and I am grateful for her contribution. She will be able to inform me better, but one thing that occurred to me is that in the process of divorce—I am talking about friends of mine who have been through this—all the voices are about separation. That could come from the legal profession, to which I mean no disrespect, or from friends who get drawn into separate camps, but there does not seem to be much space for conciliation in the most important contract that two people will ever make. Does new clause 1 seek to address that disparity, and the way that such forces work in those difficult circumstances?" 

Fiona said:

"That is exactly its point—very much so. That goes to the heart of the key purpose of new clause 1. Relationship support for couples in difficulty can help them to work together, so that the roots of their conflict can be addressed and terminated, rather than the relationship itself. Investment in relationship counselling would help not just the parties, but their children and wider society. Strikingly, the one provision of the Family Law Act 1996 that was retained is section 22, which enables the Government to provide funding for marriage support services, research into the causes of marital breakdown, and research into ways of preventing marital breakdown. Sadly, in recent years it seems that those provisions have not been used, and no funding has been provided specifically for marriage support. In February 2020 the Government said that between 2014 and 2019 they had invested £46.9 million in relationship support services. With family breakdown costing the UK at least £51 billion each year, surely it is now time to increase support specifically for marriage with this new clause.

On Second Reading, the Lord Chancellor said that he is a supporter of the institution of marriage. I encourage him to take a leaf out of the forward to the consultation response written by his predecessor, who stated:

“I believe that we should do everything we can to try to rebuild relationships before they become irretrievably broken down…This includes, where possible, helping to ensure that relationships can be saved before they are legally ended.” Will my right hon. and learned Friend pass what might be called the “Gauke test”, by doing everything he can to support saveable marriages and support new clause 1?​

Let me turn to amendments 2 and 4. Amendment 2 would define the start of divorce proceedings, so that it is clear when the 20-week period would start. This is an important concern about the Bill. Amendment 2, and amendment 4 with regard to civil partnerships, seek to deal with a serious defect of the Bill. At present, the petitioner for a divorce must prove service on the other party before proceedings get under way. That means that they must prove, on the record, that the other party has received notice and knows that they are being divorced. This Bill contains no such requirement. The applicant can simply lodge his application at court and the 20-week clock referred to in the Bill for proceedings to commence starts ticking.

The Bill needs amending to provide for the 20-week period not to start until the application for a divorce has been received by the other party to the marriage and this has been confirmed at court. Otherwise, as the Bill now reads, one party to the marriage could have far less than 20 weeks’ notice—if, for example, they are away from home, ill, or for some other reason the notice is not effectively served on them—prior to a court making a conditional order, leaving only six weeks left before a final order. Worse still, the Bill, as currently worded, gives a green light to unscrupulous petitioners to ambush their spouse by ensuring that by one means or another, their spouse does not receive the notice of claim filed at court promptly—so-called bombshell applications—because proposed new section 1(3)(b) of the Matrimonial Causes Act 1973 says that if the 20-week clock has ticked, the court “must…make a divorce order”.

That can leave as little as only six weeks, or a few days more. It is possible for a devious partner to give a vulnerable spouse little over six weeks’ notice that they are being divorced—as I have said, a petitioner’s charter. That mischief needs correcting. The Government will say that the Bill limits the opportunity for respondents to delay, control or frustrate the divorce application, and I should be grateful if the Minister would clarify where in the Bill it states that."

John Redwood MP said:

"On the very good point that people need to know that the proceedings have commenced, what does my hon. Friend think would be good service so that we can be satisfied on that matter?"

Fiona said:

In my view, it is important to ensure that service is recorded. Service can be made by someone who professionally serves notice and then registers that fact at court. At present, the process of service has to be evidenced before the divorce proceeding process continues any further. All I am asking is that we have the same regulations now.

Even the Law Society, which supports the broad principles of the Bill—to my regret, as I am a member—is supportive of both parties having the same minimum period, so this is a very serious point, which needs to be addressed. As it stands, the 20-week period starting on application is, I believe, defended by Ministers because it makes the process simple. However, in this Bill’s simplicity lies its harshness or, as the noble and learned Baroness Deech has said in another place, its brutality. The shock for many people of being divorced within six months will be hard enough. The shock of being divorced in little over six weeks would be wholly unjust.​

The Lord Chancellor has said that he will work with the Family Procedure Rule Committee to address this point. I await the Minister’s reassurance on this, which will need to be very strong to counter my view that this amendment to protect vulnerable respondents needs to be on the face of the Bill.

I now turn briefly to amendments 3 and 5 and new clause 2. Amendments 3 and 5 would ensure that there are no discussions about financial settlements in the 20-week period— or ideally, a longer period if amendment 1 is passed—unless both parties agree, or there is an application to court for interim maintenance and financial injunctions. The point of these amendments is that they give a breathing space for the parties to dialogue. Sadly, there is no requirement for this in the Bill—a litigation- free period in which it is hoped the parties may take counsel and try to establish whether they could be reconciled.

New clause 2 would require the Government to report annually on the impact of this Bill on divorce applications and marriage support. It would require them to report to this place on the impact of the Bill and, importantly, on those who are vulnerable, whether financially or otherwise, including children, and, equally importantly, on the availability and take-up of counselling and support services for those involved in divorce proceedings across the country.

In conclusion, as I am sure colleagues will now be aware, I fundamentally oppose this Bill. It does not promote fairness or justice, as I have sought to explain. What is fair or just about someone being able to just walk swiftly away from their relationship responsibilities, especially if children are involved, with no dialogue and without being held to account? Nothing in this Bill will help to reduce the inherent pain of the ending of so many relationships—of the rejection, the loss, the severance of a relationship that started with so many high hopes. This is a sad day for this House and my saddest in 10 years here."