PROVISIONS DESIGNED TO ENCOURAGE RECONCILIATION (Hansard, 17 October 1969)

§ Mr. Alec Jones
I beg to move, That this House doth agree with the Lords in the said Amendment.
When the Clause emerged from Committee in the Commons, it provided for a specific duty being laid on the solicitor to certify whether he had discussed with the petitioner the possibility of a reconciliation. During Third Reading an Amendment was moved with great sincerity by the hon. Member for Wimbledon (Sir C. Black) which was accepted on Report. The Amendment substituted "that" for "whether". This was accepted—and I suggest that we should accept it—despite the known views to the contrary which were held both by the Law Society and by the National Marriage Guidance Council.
701 When I suggested that the House should accept the Amendment moved by the hon. Member for Wimbledon, I said that it would possibly be necessary for the House to reconsider the question when the Bill was returned to us from the other place.
May I quote from a letter of the Law Society, giving its views on this matter: In my Committee's view to make it mandatory for a solicitor to discuss the possibility of reconciliation with his client would have the most unsatisfactory results. If he is obliged to do so when he knows there to be no possibility of a reconciliation, observance of this requirement will quickly come to be regarded as a formality. Not only will it often be clearly futile to discuss reconciliation but in many cases, for example those which the Bill is particularly intended to help, where the petitioner has children by a stable union which he wishes to regularise, to go through the motions of discussing the possibility of a reconciliation will be an absurdity. My Committee feel that if this provision of the Bill is enacted in its present form the result will be to bring it into contempt and that if it is to serve any constructive purpose it must be restored to its original form. As a consequence of this letter, an Amendment was moved in the other place to reinstate "whether" for "that" which was accepted without Division. It received the support of the Lord Chancellor, and I am asking the House to support it now.
I share the view of the hon. Member for Wimbledon. I am sure that all hon. Members want reconciliation machinery, but we want effective and practical reconciliation machinery. If the machinery we devise becomes a mere formality, it serves no useful purpose and is self-defeating. I therefore ask the House to accept the Amendment in the best interests of securing as effective a machinery for reconciliation as possible.

§ Sir Cyril Black (Wimbledon)
I cannot let this matter pass without saying a few words. As the hon. Member for Rhondda, West (Mr. Alec Jones) has said, the effect of the Amendment is to undo an Amendment which was accepted without a Division on Report and to put back the Bill into the form in which it came before the House on Report.
With the greatest respect, I am not unduly impressed by the letter from the Law Society. The society is entitled to be heard in the same way as any 702 other body that may be interested in this matter, but its reluctance to accept the Amendment which was made on Report could arise from not wanting to be troubled with the not very onerous duty which the Amendment would place upon its members, a duty which, in the view of the House on Report, is one that it should be willing to undertake.
The hon. Member for Rhondda, West was most helpful and courteous in dealing with this and certain other of my Amendments on Report, but he made it clear that he accepted my Amendments, including this one, in the interests of the machinery for reconciliation, which is, after all, the matter with which we are concerned. I am much more interested, as I am sure the hon. Gentleman is, in providing the best machinery for reconciliation than in considering what may be a matter of convenience for members of the legal profession. If I have to choose between the two considerations, I shall choose the course which I think is in the interests of reconciliation, and I hope that the House will follow me.
The letter from the Law Society suggests that, if the Clause is to serve any purpose, it should be restored to its original form before the Amendment was made. That phrase, I think, is used in the letter. With the greatest respect, if the Clause is to serve any purpose, I suggest that it is necessary that the Amendment should stand. If the Clause is restored to its original form, it imposes no obligation on anybody to do anything. It simply says that provision shall be made by rules of court for requiring the solicitor acting for a petitioner for divorce to certify whether he has discussed with the petitioner… Solicitors who wish to relieve themselves of what they may regard as a burdensome duty will adopt the invariable and standard practice of certifying to the court that they have not discussed with the petitioner the possibility of a reconciliation, and that will be the end of it. For all practical purposes, it might have been better to have left out the Clause altogether than to include the Clause in the form in which the other place has sent it back to us.
I do not think that I am wandering away from the point in saying that in the debate in the other place it was stated by more than one of their Lordships that they thought that the Clause 703 was not good at all, and that it would be better if it had not been included but, if it is to be included, it was better that the word "whether", which they inserted, should be in the Clause rather than the word "that".
If "whether" is substituted for "that", the Clause becomes largely meaningless. It will have no effect at all. To borrow a phrase from the Law Society's letter, it will serve no purpose, whereas it would have done if the Clause had remained as amended on Report.
I understand the difficulty of the House. It has made it clear by a majority that it wants this Bill to get on to the Statute Book. I realise the difficulties of the sponsors. Even if they were in sympathy with rejecting this Amendment, that might defeat their major purpose, so I do not propose to obstruct the Bill by taking this matter to a division. However, I am disappointed by the attitude of the sponsors and by this Amendment. As a result, I believe, the improvement which this House made in the Bill has been removed. I regret that very much.

§ Mr. Abse
I am sure that the hon. Member for Wimbledon (Sir C. Black) wished, when he moved his original Amendment, to find the best machinery for reconciliation, but it does a disservice not only to the Law Society but to the Marriage Guidance Council if we thought that their views and the representations which they obviously made to the other place were based on convenience. Anyone who has studied the reconciliation procedure in other countries has seen the great dangers which arise if attempts are made in legislation to promote machinery for reconciliation which is reduced to an utter formality.
When it opposed the proposal to oblige a solicitor to discuss the possibility of reconciliation regardless of all the circumstances, the Law Society was trying to avoid a situation in which that procedure became a formality. It would be absurd, and would tend to bring this procedure into contempt, if, even when a woman, for example, came to a solicitor black and blue, having suffered from a brutish husband, she was then asked to effect a reconciliation. 704 If a woman had been living apart for five years and there were children by another union, any reconciliation procedure might well come into contempt if it were mandatory as, understandably, was in the hon. Member's mind.

§ Sir C. Black
I know that the hon. Member has great experience of these matters and I am listening to him with interest, but would he not agree that there have been many cases in both those sets of circumstances in which a reconciliation has been effected and a stable marriage restored?

§ Mr. Abse
Yes, that is so. However exceptional it may be, it is right that the court should know whether there has been any attempt at reconciliation. It is precisely because of that that, with this Amendment, the court would know whether it should implement the provisions designed to encourage reconciliation in Clause 3. If the judges then knew "whether" any attempt had already been made, they could then decide whether it was desirable to order an adjournment to try to effect a reconciliation. Without this word, the courts would not know whether or not to have that adjournment.
I am sure that the Marriage Guidance Council is right, with all its profound experience in these matters, to have a great diffidence about any move which suggests compulsion in trying to bring people together. They know that such methods are counter-productive. Although I am sure that there is no difference between the hon. Member for Wimbledon and the rest of us in our desire to have reconciliations, I think that the other place has been wise in giving us the opportunity for second thoughts by means of this Amendment.