HC Deb 22 March 1979 vol 964 cc1860-72

Motion made, and Question proposed. That this House do now adjourn.—[Mr. Bates.]

11.44 p.m.

Mr. Leo Abse (Pontypool)

About half the children born today in the United States will, before they grow up, be fated to live in a one-parent unit. That calculation is on the optimistic assumption that the United States' divorce rate, which reveals that 35 per cent. of marriages contracted this year will end in divorce, does not increase still further.

Is that tomorrow's destiny for Britain's children? Is the two-parent family on its way out? Will one marriage in a lifetime be regarded as abnormal? Unhappily, these are not alarmist questions to pose in Britain today. Our admonitory divorce statistics compel us to pose the questions.

Divorce reached a record level in 1977 with a figure of 127,000, and the number of new petitions filed in 1977 was an increase of 16 per cent. on 1976. When the final figure is recorded, everything will point to there having been a further big increase in 1978. That figure will corroborate yet again that love is not necessarily happier the second time round, because second marriages have an even higher divorce rate than first marriages.

In the United States the arrangements for a White House conference on the future of the family have broken down, substantially because of the tensions between those nostalgic for the hitherto conventional marriage unit and those who, perhaps pessimistically, perhaps realistically, insist that there must be profound societal changes—legal, economic and social—to meet what they regard as the inevitability of the new family unit, already witnessed by the fact that the United States' single parents are rearing 11,310,000 of the nation's children.

We have not yet the dilemma gripping the United States of America, but we have no right to be complacent, for already one in 10 families here are one-parent families and, mostly because of the divorce of parents, single parents are bringing up at least 1¼ million children in Britain.

Nothing is more naive than to attribute this position, as the ill-informed often do, to the Divorce Reform Act which the House passed a decade ago and of which, I acknowledge, I was one of the principal architects. Decrees absolute do not cause marriage breakdowns, any more than death certificates cause death. Too often it is forgotten that one of the main reasons why we altered our divorce laws was to assist the 200,000 children who, because of the archaic old divorce laws, were being brought up in an atmosphere of guilt and tension because the laws prevented tens of thousands of permanently cohabiting couples from being able to regularise their unions.

It is also too often forgotten that the 1969 Act had two aims, not one. The first was to ensure that when, regrettably, a marriage had broken down, it should be ended with dignity and with the maximum fairness possible. The second was to buttress the stability of marriage, and with that object reconciliation procedures were introduced into the law.

Unfortunately, these procedures have been a complete failure. Though the Act ended the hypocrisies of the old law and it is no longer a prerequisite to obtain a decree that a party has to scoop out the worst obscenities discoverable in a marriage and throw them across an open court, and although no one can now be chained to a dead marriage unto death, nevertheless the gain made in allowing some marriages to end in dignity should not mislead us.

The judges have swung from making judgments on innocence and guilt to a disinterested morality, and rarely attempt to nudge the parties to conciliation. The Lord Chancellor has yielded to Treasury demands to cut legal aid, leaving parties to carry out do-it-yourself divorces by post. Solicitors have too often worked to rule, insisting upon demarcation lines that limit them to severing marriages, not healing them.

Healthy divorces are as important to society as healthy marriages. If marriages end unnecessarily, or in a welter of recrimination, the divorce decree can be an enslavement, not a liberation. No divorce law is complete unless it seeks to prepare the parties for a changed life and for new responsibilities and if it does not help to overcome the feelings of bitterness, guilt and inadequacy which almost inevitably accompany the breakdown of marriage. Above all, a divorce law which, lacking time, patience or skill, gives a decree when the parties are for total reconciliation, or for some measure of reconciliation, serves the community ill.

Are all these divorces inevitable? When wives or husbands protest against the adjudication of the court on the custody of children, the disposal of the matrimonial home, or the amount of maintenance, do they do so because the courts are unjust or because, too often, the parties were never helped to mourn through their grief at the death of their marriage? Denied the opportunity of a catharsis by a"quickie"divorce, is their protest an attempt to relieve their anguish? How often are the children torn in two, rent with conflicting loyalties and unnecessarily made the victims of the unworked-through hostilities of their parents?

There is a growing restlessness in the community, and a belief that we can do better than we are doing is spreading rapidly. If the foundation of our society is the two-parent family, it is time for a more serious response, above all for the sake of the children, to be made to the challenge of marriage breakdown. The Finer report and the two reports published in the last month,"Marriage Matters"by the Home Office working party and"A Better Way Out"by the Law Society, all indicate how wide is the consensus that, apart from strengthening our reconciliation machinery, we desperately need a switch from our adversary style divorce procedures to a benign inquisitorial inquiry aimed at reducing the areas of conflict and assisting the parties to deal with the consequences of breakdown by obtaining mutual consents on the issues of custody, support, access to, and education of, the children, financial provision and the disposition of the matrimonial home.

All, and particularly the solicitors of the Law Society, are stressing the need for a professional counselling service to be developed, to support the court's inquiry into the aftermath of divorce. It is not enough to leave this work to voluntary effort, like the gallant attempts made, so far without State aid by the National Council for the Divorced and Separated, of which I have the privilege to be president. It has established six divorce counselling services throughout the country and hopes shortly to open more.

The emanicipation of women from the bed and kitchen stereotype and the decline of the authoritarian family, together with the growth of the democratic one, all bring great gains to a society able, consequently, to benefit much more from women's contributions. But with the enormous gains come new tensions and queries. Few doubt that one of the main causes of present instability in marriage comes from the difficulty of adjustment to the rights of women, irresistibly and rightly, gained in recent years.

When I completed the Divorce Reform Act 1969, I may have had the illusion that that Act had settled the divorce laws for a generation. But we legislate today on an accelerating moving staircase. The campaign, understandably, being waged by the Campaign for Justice in Divorce reflects some of the new moods and asks whether a woman, when her children are grown up, can any longer expect maintenance or whether the wife of the newly created family unit must have priority.

Certainly I ask whether we do not need a totally different set of principles governing our divorce laws in the case of childless marriages as distinct from those where there are children. There is a clear need for a review of our divorce laws. The Lord Chancellor has taken the view that such a review is premature and that more time is required before we came to new conclusions.

I have always believed in the politics of prevention, and I loathe instant politics. Responses to pressures which have built up severely are often faulty and ill- thought-out. Therefore, I now ask the Solicitor-General to convey to the Lord Chancellor the fact that there is growing opinion in the country and in the House that he should refer the Divorce Reform Act to the Law Commission for a fresh review. The Law Commission under Leslie Scarman played a vital and constructive part in shaping the divorce laws. It should now, after a decade has passed, examine the present workings of the Act so that its blemishes are removed.

In accordance with the tradition which it has established for itself, the Law Commission would undoubtedly collect the opinions not only of lawyers but of all in our society concerned to strengthen the stability of our family life and to ensure, above all, that the worst victims of marriage breakdown, the children, are foremost in our minds in any changes that it may propose.

11.56 p.m.

Mr. Robert Rhodes James (Cambridge)


Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

Do I take it that the hon. Gentleman has the agreement of the hon. Member for Pontypool (Mr. Abse) to intervene in his Adjournment debate?

Mr. Abse

Yes, Mr. Deputy Speaker, certainly.

Mr. Rhodes James

I am most grateful. I wish to express my strong support for the general thrust of the speech just delivered by the hon. Member for Pontypool (Mr. Abse) and to tell the House of my own profound concern about the status of our divorce law, and especially about the circumstances which now obtain for husbands. In my view, the law has now swung so far that the balance of advantage has tipped in favour of wives and against husbands in divorce cases.

I fully share the hon. Gentleman's doubts, and I am increasingly convinced that only by the introduction of family courts and specialised courts will these desperately difficult matters be dealt with. These are not matters which greatly concern the House of Commons, Front Benchers or politicians generally, but to an increasing extent they seriously affect ordinary people.

We owe a great debt to the hon. Member for Pontypool. On various subjects he has established himself as not only a sensible but a percipient and advanced exponent of important points which some of us should have realised earlier. We are very grateful to him. I cannot say this on behalf of the Conservative Party, but I am deeply grateful to him, and on this subject I simply say that the Solicitor-General should realise that we on these Opposition Benches will be extremely sympathetic to any proposal which may be made to make our divorce laws more humane and certainly more realistic in the circumstances which now obtain. On these matters we support the main points which the hon. Gentleman made.

11.58 p.m.

The Solicitor-General (Mr. Peter Archer)

I certainly echo what the hon. Member for Cambridge (Mr. Rhodes James) has just said, that we have reason to be grateful to my hon. Friend the Member for Pontypool (Mr. Abse), and not least for initiating what I hope will be not only a debate in the House but a public debate on these questions.

My hon. Friend made clear that he was not asking for immediate legislation. This is a subject bristling with issues which merit wide discussion and sometimes more factual research than we have at the moment. Some of the issues, as my hon. Friend said, extend beyond the law of divorce—issues about the role of marriage and of the family—and I believe that legislation is not to be recommended until we have achieved some consensus on these questions.

But if we are to reach decisions within the measurable future the time to initiate the discussion is now, and I offer my congratulations to the family law subcommittee of the Law Society on the thought-provoking document to which my hon. Friend referred, with its thought-provoking title"A Better Way Out ". It embodies the experience of those who practise in this field, and if it evokes a response from others with a different point of view I am sure that it will lead to a valuable debate.

My hon. Friend indicated something of the history of these matters. I accept that the increase in the divorce rate is not attributable to the 1969 Act. I hope he will agree with me that the increase should not be attributed to the special procedure for undefended divorces, which spared the parties the necessity of rehearsing their matrimonial tragedies in a public hearing and in the process saved something on the legal aid bill, which, as my hon. Friend knows, is now being devoted to a cause that is close to his heart.

It is true that in 1966 the group presided over by the Bishop of Exeter published the report"Putting Asunder ", which recommended that the test for a divorce should be not the proof of a matrimonial offence but whether the marriage had broken down. It proposed, too, that the role of the court should be not to adjudicate between two opposing parties, encouraging them to regard the process as a contest with their interests implacably opposed, but to investigate for itself the facts and to decide what was best to be done. It was the difference between the accusatorial procedure, which is normal in our legal system, and the inquisitorial role, which is more usual in some other systems.

There was some controversy whether it was right to make so abrupt a change. My right hon. and noble Friend Lord Gardiner, the then Lord Chancellor, referred the matter to the Law Commission. In its report,"The Field of Choice ", it proposed a compromise. It proposed that the basis of divorce should be the breakdown of marriage but that that should require to be evidenced by a more clearly justiciable test.

That was the basis of the 1969 Act. It was introduced as a Private Member's Bill by my hon. Friend the Member for Rhondda (Mr. Jones.) We recollect the leading role which my hon. Friend the Member for Pontypool played in the debates that ensued. It is true that the 1969 Act has been re-enacted in a codifying statute, the Matrimonial Causes Act 1973, but it has been the basis of our divorce law for nine years. I think that it was right to wait and see how that legislation operated. We knew that there were those who, under the previous legislation, had been unable to obtain a divorce and who would seize the new opportunity. We knew that there would be a period while the bulge was working its way through. But the time has probably now approached when we can assess how the system is working. That gives rise to a number of questions, some of which have been ventilated by my hon. Friend and by the hon. Member for Cambridge.

Should divorce now be based on the simple criterion of whether a marriage has broken down? The Law Society document suggests that it should, but that that should still be required to be established by a single justiciable test. It proposes that the test should be whether the parties have been living apart for a year. I understand the argument for that course. Anything that leads to a post mortem on a dead marriage merely increases the bitterness. It compels the parties to relive their tragedies. It makes it less likely that they will sort out issues relating to the future of their children and family property without rancour.

But there are those who believe that marriage as an institution would be devalued if divorce were available too readily. They say that it is one thing to recognise the unhappy fact that a marriage is dead and another to imply by legislation and practice that it should be hastily buried without any form of death certificate and without attempting the kiss of life. I am not making an assertion. I am merely raising the question where we should draw the line between making the process of divorce no more protracted or agonising then it need be on the one hand and on the other continuing adequately to recognise marriage as a status.

A great deal turns on the way in which marriage is regarded in our community. My hon. Friend has quoted some disconcerting figures from the other side of the Atlantic, and some from this side from which we may take no comfort. On 6 March 1979 my noble Friend Lord Wells-Pestell referred to some statistics in answer to a question from the noble Lord, Lord Simon of Glaisdale. The indicated that the number of one-parent families had increased from 570,000 in 1970 to 750,000 in 1976. The number of one-parent families headed by a divorced mother had increased in that period from 120,000 to 230,000. It had almost doubled.

It would be heartless not to recognise those figures and to legislate accordingly. A number of measures have been taken in the lifetime of the present Government to alleviate the problems. But I do not think that it is inconsistent with that to say that we should consider whether there are ways in which we can change that trend and encourage marriage as a stable relationship. It is arguable that, whatever discussions we have about reforming the law on divorce, we should at the same time be discussing what measures we can take to support existing marriages.

In 1975 the National Marriage Guidance Council, the Catholic Marriage Advisory Council and the Institute of Marital Studies proposed that there should be a study of the provisions for helping people with their marital problems. In consequence a working party was established by my right hon. Friend the Secretary of State for Home Affairs in consultation with my right hon. Friend the Secretary of State for Social Services. In January of this year it published its report,"Marriage Matters ". I have seen the motion which my hon. Friend put down welcoming that report. It is a consultative document containing a number of important recommendations. It has been issued, with a joint recommendation by the Home Office and the Department of Health and Social Security, for comments and proposals.

The second question which we should consider is what efforts, if any, should be made to effect a reconciliation, or, if that is impossible, to arrange for conciliation in the resolution of the other matters which inevitably arise when a marriage breaks up. My hon. Friend takes the view that the provisions in the 1969 Act are totally ineffective. I have heard the argument that when parties have reached the stage of instructing solicitors it is too late for a reconciliation. The Law Society, in its document, agreed that the provision was a total failure. Without going as far as that, I am aware that the effectiveness has been more limited than was originally hoped by those who argued for it.

The Law Society document supported the view of the Finer committee in favour of a comprehensive welfare service attached to the court which would be built on the foundation of the present court welfare officers and of the Marriage Guidance Council. The Finer committee argued for two specific welfare functions. The first was that the court should be concerned with conciliation. This was seen not as the mending of broken marriages but as having the special meaning of assisting the parties to deal with the consequences of the breakdown of their marriage. This concept of a conciliatory approach to the dissolution of marriage was a particularly important insight on the part of the Finer committee. It argued that the second welfare element in the work of the family court should be the need to have an investigative reporting and supervisory service available to the court to provide the information which it needs on which to base its decisions.

The working party on marriage guidance explained that how children coped with the break-up of their families depended largely on the relationship between their separated parents. It considered that although there was no immediate prospect of a family court of the kind which the hon. Gentleman mentioned, a court conciliation service could be developed to serve divorce and magistrates' domestic courts, and that it would be on lines similar to those recommended by the Finer committee.

My hon. Friend is aware, I know, of the Bristol courts' family conciliation service, which was welcomed by the working party. This will enable us to assess how conciliation is likely to work. The service is linked with local solicitors, the divorce court and the magistrates' court. It is managed by a committee, chaired by a circuit judge, which comprises representatives of magistrates, county and magistrates' courts, the marriage councils, the Law Society, the Bar, the probation service and the local council of voluntary service, with co-opted members. The conciliators are all part-time volunteers. They consist of marriage councillors, former social workers, probation officers who have retired and mothers with young children. That scheme may be able to help us assess the best way in which we can approach the problem of conciliation and, where possible, reconciliation.

The third question, to which the hon. Gentleman referred, was whether we should alter the existing structure of the courts which hear these matters. We are aware of the problems that have arisen from time to time due to differences between the matrimonial law administered in the High Court and that in the magistrates' courts. A great deal has been done to close that gap by the Domestic Proceedings and Magistrates' Courts Act 1978, although that Act has not yet been implemented. The Finer committee argued for a family court. That idea has been endorsed by such authorities as Judge Jean Graham Hall in her proposal published by the National Council for One-Parent Families.

The contribution of the Finer committee has been to clarify two major issues. First, it laid great stress on the family court as an impartial judicial institution, that is to say, a judicial institution which in dealing with family matters, does justice according to law. The object of achieving welfare should not be permitted to weaken or short-cut the usual safeguards of the judicial process.

Secondly, the Finer committee did not envisage the family court as providing a comprehensive family welfare service. The committee was quite precise as to the limited welfare function of a family court and treated this function as being subservient to its judicial nature. Thus, it did not see the family courts, as such, as having a direct responsibility for reconciliation. It hoped that they would give attention to conciliation.

The Law Society's document argues for a family court divided into two tiers, of which the first tier would deal with most matters and the second would deal with cases of particular difficulty. The first-tier court would consist of a legally qualified chairman, with a status equivalent to that of a circuit judge, and two other members.

The Government, in response to the report of the Select Committee on violence in the family, said that they accepted in principle the concept of a family court. They went on to say, however, that there was little likelihood of such a court being established in the foreseeable future. The Select Committee accepted that resources were not available at this stage to establish family courts, although I see that the Law Society's sub-committee argues that it would not require substantial additional resources. But the sub-committee accepts that, for example, the bench which it recommends for a first-tier family court would be more expensive than a bench consisting of lay magistrates who now hear many of these cases. That, again, is a subject bristling with issues which clearly require discussion. I had hoped that we might have time in the course of tonight's debate to advert, for example, to the question of maintenance mentioned by the hon. Member for Cambridge. There are those who say that, in the absence of children, there is little room left for maintenance. Their reasoning is that if we succeed in making women's earnings potentially equal to those of men the argument for maintenance ceases, except in cases where one party is at a substantial disadvantage. That is one argument. The other is that frequently women's careers are interrupted while at the same time mens careers are proceeding.

Unhappily, I do not think that we have time to take the debate very much further this evening. In the nature of things, none of us could do more than indicate some of the problems, but my noble Friend will certainly consider what has been said in this debate. It may be that some of these issues would be best referred to the Law Commission, where it indicates that an investigation can usefully be undertaken. We know from experience that when it undertakes an inquiry it is carried out with great care and thoroughness. I apprehend that it would warn my noble Friend the Lord Chancellor where it thinks that it lacks the time and the resources to carry out the necessary investigation.

There may be some questions which would be inappropriate for it to investigate. One example is its own view that it cannot usefully add to the existing knowledge and ideas on the merits of a system of family courts. But I hope that we shall have the benefit of a public debate in some form on all these questions. The time for legislation is not yet, but I hope that when it arrives we shall be able to legislate to embody a broad consensus, not only as to the details but as to the meaning and function of marriage and of the family. If this debate serves to encourage that process, my hon. Friend's initiative will have been worth while.

Question put and agreed to.

Adjourned accordingly at thirteen minutes past Twelve o'clock.