On 5th February 2020 the House of Lords debated the Government’s Divorce, Dissolution and Separation Bill at its Second Reading. The Bishop of Carlisle, Rt Revd James Newcome, spoke in the debate and his remarks are below. He highlighted several problems with the Bill, which he said would create more difficulties than it was intended to resolve.
The Lord Bishop of Carlisle: My Lords, I am greatly looking forward to the maiden speech of the noble Baroness, Lady Hunt of Bethnal Green, and I welcome her to this House, which I am sure will benefit greatly from her expertise, campaigning zeal and commitment to debates on justice and equality.
Let me begin by saying that I appreciate the motivation behind the Government’s Divorce, Dissolution and Separation Bill. As we have already heard, they want to make divorce less complicated, less acrimonious and less harmful. Who could possibly argue with that? I like the revised terminology that the Bill suggests, and I agree that, at first sight, this looks like a sensible response to shortcomings in a process that is currently unsatisfactory and often seems to lack transparency or fairness.
However, this deceptively simple piece of legislation actually creates more difficulties than it resolves. One has to do with the nature of marriage itself and our commitment to it as a society—I shall confine my comments to marriage rather than civil partnership.
Marriage, as we all know, is not just a social arrangement between two adults or even a contract that can be ended at will. It involves solemn binding vows and has for centuries been a significant building block for social cohesion. Its benefits are generally recognised, not least for the upbringing of any children resulting from the marriage. While in certain circumstances divorce may well be the least-worst option for some couples, the Bill promotes individual choice over and at the expense of the sort of commitment, self-giving and sacrifice that lie at the heart of the marriage covenant.
Reducing divorce to a statement made by one party that the marriage has broken down undermines the seriousness with which marriage and divorce are regarded and has the unfortunate effect of shifting any power in the process away from the respondent to the person initiating the divorce. What is more, studies suggest that making divorce quicker and easier will significantly increase the already high divorce rate, with all the implications that has both for human misery and financial cost. The Relationships Foundation estimates that family breakdown costs the UK as much as £51 billion every year.
The people experiencing that human misery most acutely will be precisely those who are most vulnerable, in particular children, but also those partners who wish to contest a divorce but would now no longer be able to do so. It may well be that only 2% of divorces are currently contested, but that still amounts to more than 2,500 cases each year. It hardly seems just that someone who wants to challenge irretrievable breakdown should no longer be able to do so. If the Bill simply proposed that divorce could happen when both parties agreed, which is one option, that would be one thing, but to suggest, as it does, that the divorce can go ahead when only one party wants it seems perverse. As for the children, it will further threaten the stability that marriage is meant to provide and contribute still further to the growing incidence of mental health issues among our young people. Divorce is far more than just a temporary crisis; it has long-term effects, as I know well from experience in my own family. I am quite sure that, in this respect, I will not be alone in your Lordships’ House.
A further issue concerns what the Family Law Act 1996 called taking
“take all practicable steps … to save the marriage”,
not least since the respondent may not even hear about the divorce until as little as seven weeks before a court issues the final decree. Little time or consideration is given to any attempt at mediation, reconciliation or the restoration of what has been lost, as the noble Lord, Lord Anderson, pointed out.
It therefore comes as no surprise to learn that the outcome of the Government’s consultation on the Bill, mentioned by the Minister, was a majority not agreeing with the replacement of the so-called five facts with a notification process. People realise that when there is no longer any need to demonstrate irretrievable breakdown, and when there is no longer any possibility of contesting the alleged breakdown, we will in effect be introducing unilateral, no-reason divorce.
We need to reduce the divorce rate in this country, not increase it. I cannot therefore support the Bill as it stands.
Lord Marks of Henley-on-Thames (LD):…in the Owens case, the courts at every level held that the behaviour proved against the husband was insufficiently serious to establish unreasonable behaviour. Mrs Owens was denied a divorce when her marriage had clearly long ago broken down. She had to sit out the balance of five years’ separation before she could secure a decree. That was clearly intolerable but, frankly, the judges were right in their application of the present law and their understandable reluctance to usurp our role as parliamentarians by changing it. It is now up to us to make the change required. It follows from what I have said that I cannot accept the view expressed by the right reverend Prelate the Bishop of Carlisle, the noble Lords, Lord Farmer and Lord Morrow, and others, that one party to a marriage should be able to contest a divorce so as to tie the other into a marriage against his or her will…