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No Fault Divorce

Bills Presented – in the House of Commons at 1:18 pm on 13th October 2015.

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Motion for leave to bring in a Bill (Standing Order No. 23)

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk 1:47 pm, 13th October 2015

I beg to move,

That leave be given to bring in a Bill to make provision for the dissolution of a marriage or civil partnership when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down without a requirement by either party to satisfy the Court of any other facts;
and for connected purposes.

I am pleased to request the leave of the House to bring in a Bill to provide, during the court proceedings to dissolve a marriage, for the option of divorce without blame, often called no fault divorce. Let me begin by saying that I do not wish to make divorce “easier”, because I do not think divorce should be easy. Currently, one can get divorced in just five months, so what is called “quickie divorce” is already available. A couple wishing to take advantage of my proposal would take somewhat, but not inordinately, longer to get divorced—probably one year—but without any requirement to throw mud at each other, as is currently the case, and with more time for reflection on whether divorce was what they really wanted for themselves and their children.

Divorce is a tragedy. It would be better for us all if there were more stable and successful marriages and, as a consequence of that, fewer divorces. Indeed, just as the wedding ceremony states that a marriage is not to be taken in hand “unadvisedly, lightly, or wantonly” but rather “reverently, discreetly, advisedly”, so, at least in my opinion, should divorce only be countenanced in the same way, after the most profound reflection.

In English law, the only ground upon which a petition for divorce may be presented to the court by either party to a marriage is that the marriage has broken down irretrievably. Under the Matrimonial Causes Act 1973, the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner seeking a divorce satisfies the court of one or more of five facts: that the respondent has committed adultery; or engaged in unreasonable behaviour; or desertion; or that the parties to the marriage have been separated for a continuous period of at least two years and the respondent consents to a decree being granted; or that the parties to the marriage have been separated continuously for at least five years.

The law did at one time, and quite recently, provide for a type of divorce known as no fault divorce under part 2 of the Family Law Act 1996, but this was never fully implemented. The provisions at the time were intended to achieve two ends: first, to save saveable marriages; and, secondly, to reduce distress and conflict when a marriage did need to be dissolved. However, that legislation had a difficult passage through Parliament. That was in part because of a lack of enthusiasm on the part of many—and opposition on the part of some—of the Government’s own supporters at the time. According to a House of Commons Library note, 112 Conservative Members voted against the Government in a free Commons vote on the retention of fault-based divorce. In order to save the Bill from defeat, the Government of the day had to accept 137 amendments in the Commons. Many amendments had already been made in the House of Lords.

Some of the amendments reflected concern about the need to uphold the institution of marriage. Others were intended to ensure that the possibility of reconciliation be fully explored by the increased use of counselling and marriage support. Yet others reflected the wish that the interests of children should be given greater protection. The result was that what had started as a simple process became exceedingly complex. Indeed, the Labour party’s spokesman on the Bill in the House of Commons, the right hon. Paul Boateng, who is now in the other place, is said to have described the Bill as a “dog’s breakfast”. Although it passed on to the statute book as the Family Law Act 1996, the implementation of the new scheme was delayed while certain aspects of it were piloted.

As it turned out, the proposals foundered on the concept of information meetings, which were an integral part of the policy. Those meetings provided, in one place, general information about marriage saving as well as the divorce process, but what people wanted was information that was tailored to their individual circumstances. Participants welcomed receiving information, but for most people the meetings came too late to save the marriage and tended to cause parties who were uncertain about their marriage to become more inclined towards divorce. Furthermore, in the majority of cases, only the person petitioning for divorce attended the meeting. In the end, most of the provisions in part 2 of the Family Law Act 1996 were never brought into force and have now been repealed by section 18 of the Children and Families Act 2014, after the then Government concluded that they were “unworkable”.

The law as it stands creates its own problems. According to research carried out by YouGov on behalf of Resolution, which represents almost 5,000 family solicitors, more than 27% of couples citing unreasonable behaviour admitted that their claims were not true but were the easiest way of getting a divorce. Plainly there is a public interest in the justice system not encouraging people to make things up. There is also a contradiction in the current law. Although the whole thrust of current policy is supposedly about taking disputes away from the courts and towards reconciliation, mediation and alternative dispute resolution, people seeking a divorce who wish to avoid apportioning blame often find themselves required by the law to follow a path they do not wish to take. In effect, they are required to throw mud at each other.

There is now a widespread view among lawyers that this issue should be revisited. In March 2012, Sir Nicholas Wall, then president of the family division, said at the annual conference of Resolution:

“My position is very simple. I am a strong believer in marriage, but I see no good arguments against no fault divorce. At the moment, as it seems to me we have a system—so far as divorce itself is concerned—which is in fact administrative, but which masquerades as judicial.”

Lord Justice Munby, who now heads the family division, echoed this point of view, stating that it was time to consider removing the need for a judge to oversee “divorce by consent”. Actually, I beg to differ somewhat from those learned judges. I would prefer that judicial involvement remained. I say this not simply because the marriage contract is a contract—which, of course, it is—and the courts should therefore have some supervisory role, in some circumstances. On that basis, one might argue that the supervision of the courts was not always required. After all, there are many areas of life involving a contract freely entered into by two parties where, if the parties wish to terminate the contract by mutual consent, they can do so without detaining the courts for one moment. However, if one party does not wish to terminate the contract, the protection of the courts needs to be available. The same is true in marriage.

I would go somewhat further. My own view is that the breaking of a marriage is a step of such magnitude—with such potentially serious consequences for the whole of society, not least for taxpayers—that, unlike in other contracts, the courts should have some supervisory role, however minimal, in all circumstances. I agree with Lady Hale, the deputy president of the Supreme Court, when she said:

“We should make it take longer to get a divorce and encourage people to sort out what happens to the home, children, money before, rather than after, they get a divorce.”

The conclusion I draw is that the previous legislation—however well-intentioned—was trying to accomplish too much. I propose one simple amendment to the law: the option of divorce without blame. A petitioner who wished to do so, rather than offering the court one of the five facts currently required—adultery, unreasonable behaviour, desertion, et cetera—could instead satisfy the court that a marriage had broken down irretrievably with a sixth fact, namely that both parties to the marriage had separately signed a declaration that the marriage had broken down irretrievably.

This declaration would by itself satisfy the court without the need to show any other facts. It would apply only when both parties had agreed and, consequently, signed such a declaration. It would not in any way alter—or, still less, abolish—the existing concept of blame. Those who wished to avail themselves of the other provisions of the law which require blame—which may sometimes, although decreasingly so, be a factor in financial settlements and arrangements for children— could do so. My simple change would mean that those who wished to avoid apportioning blame in a divorce could do so. The only other provision in my Bill would be a cooling-off period of one year before a decree of divorce could be made absolute, so that couples would have time to reflect on whether a divorce was really what they wanted.

I would favour easier access to counselling. I would also favour more discretion for the judge to inquire into the intentions of the couple and the extent to which they had sought counselling. I would not object to making some form of counselling mandatory. These are all desirable, but it is not necessary to deal with all of them at once or in one Bill. These matters could be dealt with separately, if at all. Any attempt to reform the law on divorce should be modest in its ambitions, simple to understand and simple to implement. My Bill would not deliver all that some of the more radical reformers wish to see, but it would provide a route for divorcing couples to reduce acrimony and tension during what is already a very traumatic process, if they wished to use it. It would be more likely to gain widespread consent, and I commend it to the House.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough 1:56 pm, 13th October 2015

I thank my hon. Friend Mr Bacon for the way in which he has presented the case on this difficult matter. In one way, his arguments are very convincing. We heard all of them during the passage of the Family Law Act 1996, in which I took a great deal of interest. The then Government had a majority of one in the Standing Committee, and I was it. The Committee was very lively, loads of amendments were passed and many of these arguments flowed back and forth.

Some of my hon. Friend’s arguments sound compelling, and people might ask why we have not had more debate on this matter. No fault divorce has been occurring around the world for decades—even for half a century in some places—and we now have the means to evaluate its impact. That is what I want to talk about today. Of course I would like to make the moral case for marriage and for a lifelong commitment to children, but the House probably knows my views on those questions and I am not going to convince anyone I have not already convinced by repeating them, so let us look at the evidence.

The social researchers have done their job and the evidence is now available. If this were merely a matter of allowing a few cases of obvious irrevocable breakdown to be dealt with more quickly, cheaply and less destructively, very few people would oppose the idea. It would be a common-sense thing to do. But, while that is what my hon. Friend seeks, very honourably, to achieve, that is not the sole impact of no fault divorce. Unfortunately, all the available evidence points to the introduction of no fault divorce having a large, widespread and demonstrable effect on the societies in which it has been introduced. That is true across the spectrum of developed nations, from Canada and certain American states to Sweden and elsewhere.

The Prime Minister was right to highlight last week the numerous social problems we have yet to tackle, and we now have a much better understanding of how fundamental marriage is to preventing many of those problems. Despite the obvious problems that sometimes occur in a marriage, the emphasis in recent years has been on strengthening marriage as an institution. Bringing in no fault divorce, while seeking to ameliorate one problem, would undermine that new appreciation by making divorce easier, and thus increasing the number of divorces. That is the crucial point.

Let us look at the evidence from Canada. In 1968, the year the divorce legislation was amended to provide for no fault divorce, Canada’s divorce rate was 50 per 100,000 people. Within a year, that had risen to 150 per 100,000 people and by 1970 it had reached 300 per 100,000 people. That is a sixfold increase in just two years, after a century of relatively stable divorce rates. Scholars have noted similar results in US states correlating to when states introduced no fault divorce. The first significant study of no fault divorce was published in 1986, and all the further major published papers since then have concluded that the divorce rate increased at the same time as the introduction of no fault divorce. Do we want to increase the divorce rate? We know that the preponderance of evidence suggests that we will end up having more divorces and a higher divorce rate if no fault divorce is brought in.

What about the other impacts? A study in the US argued that 75% of low-income divorced women with children had not been poor when they were married, but Douglas Allen also points out in the Harvard Journal of Law & Public Policy that

“the real negative impact of the no-fault divorce regime was on children, and increasing the divorce rate meant increasing numbers of disadvantaged children.”

That is what is happening in the United States, but what about Britain? Let us look at the 2009 evidence review produced by the then Department for Children, Schools, and Families. That report found that a child not growing up in a two-parent family household is more likely to grow up in poorer housing; experience behavioural problems; perform less well in school and gain fewer educational qualifications; need more medical treatment; leave school and home when young; become sexually active, pregnant, or a parent at an early age; and report more depressive symptoms and higher levels of smoking, drinking and other drug use during adolescence and adulthood.

Family breakdown is one of the key drivers in poverty for women. The scholar Allen Parkman has discovered that women living in American states with no fault divorce worked on average four and a half hours more per week than their counterparts in fault-based states. It also serves to widen the gap between the rich and the poor even further; a University of Essex study shows that half of all single parents are living in poverty. Even in that bright Nordic wonderland of Sweden the all-powerful and ever-generous welfare state has proved totally ineffective at breaking the link between family breakdown and poverty. There, parental separation is the biggest driver into child poverty by a large margin; among children in single-parent families, the incidence of poverty is more than three times as high, at 24%, than it is for those in families with two parents, where the figure is 8.1%. Furthermore, the number of Swedish households in poverty headed by a single parent is more than four times the number of households in poverty headed by couples.

We all know that hard cases make bad law. My hon. Friend’s motives in moving the motion are unassailable—they are even commendable. Not for a moment can we pretend that the current situation is good, efficient, useful or anything like ideal—I accept that. But when seeking to change that situation, we need to make sure that our actions do not have unintended consequences that fix one thing and make other things much worse. In the face of all this social research and all this evidence—I have had time to go into only some of it—we cannot pretend that no fault divorce will, on balance, have a positive impact on our society. That is what we have to look to, and I have set out what the evidence shows.

As I said at the beginning of my speech, I am not making any argument to do with morality; this is about evidence, scientific research and observable outcomes. Parliament does not exist in a vacuum. A Bill to bring about no fault divorce would have implications throughout the country and I suspect that that is why successive Labour and Conservative Governments have, in the end, balked at it. Other developed countries have introduced it, so we are capable of assessing its likely impact. I accept that there can be no doubt that it will lead to a simpler, less traumatic, less costly way of dissolving marriages that have suffered irretrievable breakdown, but the evidence shows that it comes with further consequences. Do we want to see more disadvantaged children? Do we want to see women poorer? Do we want to see women working longer hours? Do we want to see the wide variety of social problems that the Prime Minister so justly highlighted in Manchester last week deepen further in our society? The answer must surely be no.

This is an important issue and it deserves further debate on Second Reading. I will therefore not attempt to vote down the Bill on First Reading. But before a Bill such as this is passed into law we have to pause, look at the evidence and consider its impact on the most disadvantaged in society. My view is that, after that Second Reading debate, we may well conclude, as our forebears did, that, for all its faults, the current divorce law is worth sticking with.

Question put (Standing Order No.23) and agreed to.

Ordered,

That Mr Richard Bacon, Mr Keith Simpson, Mr Henry Bellingham, Ms Gisela Stuart, Fiona Mactaggart, Kit Malthouse and Norman Lamb present the Bill.

Mr Richard Bacon accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 4 December, and to be printed (Bill 77).