HL Deb 31 January 1991 vol 525 cc797-804

3.28 p.m.

The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That this House takes note of the Law Commission Report The Ground for Divorce (H.C. 636, Session 1989–90).

The noble and learned Lord said: My Lords, last November the Law Commission, in its report The Ground for Divorce, made important proposals for the reform of the law. It is a topic which calls forth strong emotions and deeply felt and differing views. The Government's purpose in initiating this debate today is to give noble Lords an opportunity to express their views and in so doing to stimulate a wider debate in the country at large.

The Government believe that it is too early for us to attempt to gauge whether reform of divorce law is desirable, much less to say whether the Law Commission's proposals would represent the best way forward if reform were needed. Any such decisions would be premature until we had had an opportunity to hear the widest range of public and parliamentary opinion. Accordingly, I see my part in today's debate as being essentially that of a listener.

However, before I sit down it may help the House if I say something about the wider context in which the divorce reform proposals need now to be considered; give a summary of the current law and some of the facts and figures relevant to the working of the present divorce regime; describe the risks and damage to the welfare of children which ensue from family breakdown; outline some of the Law Commission's thinking and its major recommendation; and, finally, attempt to identify and clarify the objectives of, and issues arising from, its proposals to reform divorce law.

As to the wider context, your Lordships will remember that in the course of the debates on what is now the Children Act 1989 I anounced a general review of the family justice system which would embrace that Act and its implementation and go on in stages to consider: divorce reform and conciliation; the remedies available for domestic violence and rights to occupy the family home; the law governing financial provision on family breakdown; and the arrangements for providing support to courts and families involved in family litigation.

I explained that the reform of the courts' procedure and jurisdictions in family matters would be reviewed as the decisions on changes in the substantive law were taken and we were able to identify what precisely the courts' tasks and objectives were in the areas of law concerned. To that end the Government set up a committee of officials representing the various departments whose interests are involved to co-ordinate and pursue the review. I can report to the House today that the review is well in hand. The implementation of the Children Act, its first and a very major task, is on line for October this year. In implementing the Children Act we will enable all proceedings relating to the same child and his family to be consolidated before a single court where that is appropriate and, as important, ensure that at every level the magistrates or judges concerned are specialists in the sense of having received specialist training and devoting a significant part of their time to sitting in family matters. What is more, local authority cases involving the care of children, while continuing to start in magistrates' courts, will be heard there by a new family proceedings court and in appropriate cases be transferred up to a higher court where their weight or complexity justifies it.

The Government have also made progress on reviewing financial provision on family breakdown with the publication of its White Paper on child maintenance, Children Come First. Our proposals in the White Paper carry forward the philosophy of the Children Act in giving priority to the child's interests and emphasising the primary responsibility of parents for the support and upbringing of their children.

The Law Commission's report on domestic violence and rights to occupy the family home is expected some time in the next 12 months. And, as today demonstrates, the Government are already beginning actively to consider divorce and the related issue of conciliation.

As I have already indicated, our first priority in the course of that review will be the welfare of children and the responsibility of their parents for safeguarding and promoting their welfare. Overall, our objective is not only to improve the substantive law but also to ensure that the best use is made of existing resources, with cases matched to the appropriate level of court and with courts concentrating on what they are good at; namely, the resolution of disputes where an authoritative judicial decision has something positive to contribute to a family's well-being.

Divorce is central to much of the review because in practice it is the hub round which the remedies relating to the upbringing of children and financial arrangements after separation all too often revolve. If our improvements in these other areas of the law are to become a reality for children and their parents by providing a system consistent in its practice and philosophy we need to have a divorce process which at the very least does not obstruct that objective and, better still, one which would promote it. That thought must be central to any comparison between the current law and proposals for change.

Turning now to the present law and the facts and figures relevant to its working, let me begin with the legal framework. The position today is that since 1969 there has been one ground, and one ground only, on which the court has power to dissolve a marriage; it is that the marriage has broken down irretrievably. But this is not the whole story. To establish breakdown it is necessary as a matter of law for one of the parties to satisfy the court that there has either been adultery, unreasonable behaviour or desertion by the other party, or that two years' separation has elapsed accompanied by consent to the divorce, or that there has been five years' separation. Divorce is therefore only partially fault-based now. Thus, no allegation of fault is required if couples agree to separate and to wait two years and no fault is required if couples do not agree to divorce provided that five years have elapsed since one of the parties left home. So, if couples can afford to wait two or five years in separate households, or wish to do so, they may avoid any element of fault even as the law now stands.

Of the 151,309 decrees nisi granted in 1989, only 36,420 relied on separation rather than fault, which is about 24 per cent. Fault, it appears, has one alluring advantage in that it allows for quick divorce. It is not therefore surprising, though it may be distressing, that the largest number of people, over 100,000 (112,160 to be precise) chose that route and alleged adultery, unreasonable behaviour or desertion against their partner in 1989. This represents over 74 per cent. of all divorces. The allegations of fault in practice provided the parties concerned with a passport to an immediate divorce with only 635 fault-based petitions being contested and listed for trial in 1989, of which less than half actually reached trial. The figures thus show that nearly three quarters of all divorced couples presently choose quick and uncontested divorce in which fault is alleged but never investigated. When I say "quick", I mean that the average length of time that it takes to get a divorce is between four to six months from the presentation of a petition to the granting of a decree nisi. A decree absolute takes a further six weeks. The present law, however, while providing for a quick divorce, does not formally provide an opportunity for the resolution of disputes or for negotiations about money, property, or even the children, ahead of the decree nisi.

The court may not, at present, however, make a decree absolute unless it is satisfied that arrangements have been made for the welfare of every child of the marriage; that these arrangements are in themselves satisfactory, or are the best that can be devised in the circumstances. It is the duty of the court to obtain sufficient information to indicate that there is a reasonable probability of adequate financial provision being made for the children and that the child will have reasonable accommodation. Going further into the facts and figures we begin to see an ever more disturbing picture if we regard divorce as being one measure of the rate of family breakdown and breakdown as a barometer of the health of the family in England and Wales today.

In 1990, 155,591 couples obtained a divorce by decree nisi. The previous year the figure was 151,309, and the year before that it was 154,788. The number of petitions presented in those three years has risen steadily: over 182,000 and 184,000 in 1988 and 1989 respectively and reaching in excess of 189,255 in 1990. More significantly, and more worrying in my personal view, are the figures which tell us how many orders were made relating to children. In 1989, 152,825 orders were made in respect of the upbringing of children involved in divorce, of which over 100,000 were contested. It thus appears that over 148,162 children under 16 were affected by divorce in 1989. If current trends continue almost one in four of all children will experience divorce in their family before the age of 16. Those are sombre figures, especially when one considers what effects research has shown family breakdown to have on the lives of children.

Research work has shown that there is a significant excess in the signs of emotional disruption among children of broken families, not just in the short term but, apparently, on into adolescence and even adulthood. The research points to increased delinquency, increased ill health and a greater likelihood of divorce in spouses who themselves where the children of broken homes. These effects are particularly marked where the breakdown occurred in the first five years of the child's life. Some explanation for these dismal consequences has been found in the frequent fall in the socio-economic position of the lone parent and the children after the divorce. For instance, in 1989 there were some 770,000 lone parent families dependent on income support and as many as 70 per cent. of absent parents were not making any regular payments.

Another significant effect of divorce has been the reduced educational achievement in children of divorced parents, leading not only to fewer of these children going on to further education when compared with their contemporaries but also to fewer of them obtaining employment at all once they leave school.

What is important about the current research is not just the awful evidence of the trauma which family breakdown causes children, but the positive evidence that it can be avoided, or at least reduced, in certain circumstances. These circumstances are relevant to the debate today.

Probably the most significant research recently published has shown the effect of parental conflict as a pervasive and destructive influence on the children where family breakdown occurs. The obverse is also evident. The situation shown to be most conducive to a child's welfare is one in which there is a minimum of conflict between the parents and a maximum of co-operation and agreement over the upbringing of the child. This points to a need to achieve or maintain a situation where both parents remain easily accessible and properly involved with their children in the event of a separation.

In the face of such research, and with so many families and so many children already subject to divorce, it must be right to look not only at the technical rules of law governing when a marriage should be capable of dissolution but also at the process of divorce through which people pass today and how it may affect them. It is against that background that the Law Commission has examined the issue and presented its proposals. It is also against that background that any argument for or against changes to divorce law must be considered.

The Law Commission's report recommends that the sole ground for divorce should remain the irretrievable breakdown of the marriage. The commission, however, recommends the abolition of the five facts, one of which presently has to be alleged. In their stead it proposes that the passage of a certain period of time—12 months—should elapse before the marriage may be dissolved. The commission proposes that this period be initiated by the lodging in court of a declaration by one or both of the parties that the marriage has broken down. The purpose of this period is that the parties should reflect on the consquences of their proposed divorce and consider carefully whether there is any prospect of saving the marriage. Further, where divorce is pursued they would be expected to identify the problems which needed to be resolved and, where possible, make the practical arrangements for dealing with them. The commission had particularly in mind questions relating to the care of any children.

The Law Commission points out that its proposal would effectively put an end to the granting of a quick divorce virtually on demand and ahead of settling arrangements for the future. That latter aim is underlined by the commission's proposal that the granting of a divorce should be modified by two powers. First, it recommends a power to postpone a decree when this is desirable to enable proper arrangements to be made either for the children's upbringing or for financial provision and property adjustment for the benefit of any children or either spouse. The second power recommended in the report proposes that the court should be able to refuse a divorce in any case where the divorce would cause grave financial or other hardship to the other party and where, in all circumstances, it would be wrong to grant the divorce. That is an important part of the commission's proposals which I should like to emphasise.

The Law Commission emphasises that the 12-month period would make couples face up to the financial and emotional consequences of divorce before a decree was granted rather than afterwards. It also argues that providing time could help couples to seek help from counselling or conciliation and mediation services. It is its view that it would put at the forefront of divorce a clear encouragement to the spouses to face up to their problems at the initial stages of a breakdown and thus encourage people to recognise and reconcile their differences within marriage itself. If that failed it would provide a clear opportunity for resolving any disagreements or entrenched areas of conflict within the divorce procedure.

The main changes in the law and practice which the commission's proposals would bring about are, first, that fault as a legal requirement would not attach to divorce. The single fact of proof would be the irretrievable breakdown of the marriage. Secondly, parties would have 12 months before a divorce was granted to settle arrangements about the children and any property or money rather than doing so as at present in ancillary proceedings after the decree is granted. In practice this would extend the period that it takes the majority of divorces to reach the ultimate decree absolute.

Thirdly, the Law Commission argues that its proposals would put consideration of the family's future arrangements in the forefront for resolution within a fixed period of time and could encourage couples to draw breath and seek some relevant help. The kind of help envisaged by the commission encourages the idea that families should take responsibility for their broken relationships instead of immediately jettisoning the family into divorce on the instant presentation of a fault-based petition.

I turn briefly to the last part of my promised disquisition; that is, attempting to identify and clarify what seems to me to be the major issues which we face in reforming divorce. Perhaps I may start with a matter of clarification. Divorce and family breakdown are not synonymous. As I shall explain, while there is an argument that the availability of divorce can in a general way affect the rate of family breakdown, I do not think it realistic to believe that if we banned or restricted divorce tomorrow the rate of family breakdown would be reduced markedly as a result; at least not in the short or medium term. If that is so, denying or restricting divorce would not relieve us of the need to find ways to deal with all the sequelae of actual separation, such as the arrangements for the children, financial provision and the apportionment of property or at least its enjoyment. Indeed, in a peculiar way, although divorce is the focus for many of our concerns about the rate and results of family breakdown, the actual legal effect of dissolving the marriage may be seen in many cases as having the least practical importance to the family concerned as compared with the other consequences of the family breakdown itself.

Secondly, to expand on a matter that I have already mentioned, given the fact that generally divorce involves those other aspects of family law, it must be right to look at the practical process by which divorce and the attendant problems of family breakdown are dealt with in the courts. Accordingly, like the Law Commission, we need to give attention to the process as well as rules governing the right to end a marriage.

I turn to the objectives of divorce reform and the issues to which it gives rises. I am in no personal doubt that our overall objective, as elsewhere in family law, should be to protect children as far as possible from the harm which family breakdown can inflict on them. That is the Government's first and clear priority. And that objective, in the context of divorce, will be best secured, in most people's minds, by a law which on the one hand supports the institution of marriage and on the other promotes the prospects of saving marriages which run into trouble; or, if that is not possible, promotes the prospects of the parents reaching agreement about the children and related issues of money and property and establishing a working relationship in which, though separated, both can play a full part in the child's upbringing and support.

As to supporting the institution of marriage, there is concern that the Law Commission's proposal finally to eliminate the residual element of fault from divorce law will send out the wrong message by removing the moral underpinning of marriage; that doing so will undermine people's respect generally for marriage and in the long term cause a higher rate of family breakdown. Against that it can be said that the near absolute right to a divorce and the culture of the "quickie divorce" to which fault has given rise may already be sending out the wrong message and that a statutory cooling-off period structured to emphasise the responsibilities of marriage is a clearer message about the true value and purpose of marriage itself. Personally, I find this an extremely difficult matter. It is curious that some people look to the re-introduction of a full fault-based system as a way of strengthening the institution of marriage when fault is used in the current mixed system to achieve the quickest divorces.

As to the objective of promoting the chances of saving marriages once they have run into trouble, no one perhaps would argue that formal and public allegations of fault, which are overwhelmingly the most used avenue to divorce, can enhance the prospects of reconciliation or, if that is not possible, the chances of the parties reaching accord about their children's upbringing and related matters and, most important of all, re-establishing a working relationship as parents for the future.

On the other hand, it may be said that bitterness is endemic in family breakdown and divorce; that the expression and formal finding of fault can be cathartic; and that if feelings of anger, injustice and hurt are not recognised in the law and allowed for in the process itself they will remain to fester and undermine the sort of co-operation that everyone seems to be agreed generally benefits children of separated parents.

As a footnote to that aspect of the debate, the House may wish to note that behaviour will of course remain relevant to matters of property and finance between the spouses. What is more, I understand that many of those concerned with marriage and divorce counselling and conciliation services see bringing the parties to accept their share of the responsibility or blame for the breakdown as a vital step in that process. To that extent, even were we to change the formal ground for divorce to remove fault, behaviour and blame will continue to feature in this process and need to be catered for.

I look forward to hearing your Lordships' views. Thrown into the arena, I am sure, will be the many moral, practical and philosophical issues that arise in discussion on any major social reform. It is easy to discuss divorce without emphasising the value of marriage as the foremost example of what can best assure the welfare of children and society as a whole. Nevertheless, divorce is an unavoidable element of life today and an area of life which, as I said earlier, invokes strong feelings in a great many people. I borrow some of the Law Commission's thoughts when I say that it is vital that the way forward in the area of divorce is developed with the most careful consideration and reflection. And I borrow again when I ask your Lordships to question not necessarily whether divorce should be easier, harder, take longer or be shorter but whether there can be and should be a better divorce law for those people who find no alternative to making use of that means of resolving their family problems.

Moved, That this House takes note of the Law Commission Report The Ground for Divorce (H.C. 636, Session 1989–90). —(The Lord Chancellor.)

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