§ Order for Second Reading read.
§ Mr. Speaker
Before we start on this extremely important debate, may I tell the House that no fewer than 22 right hon. and hon. Members wish to take part. I hope that it will be possible to call all of them if speeches are relatively brief.
§ 4.3 pm
§ The Attorney-General (Sir Michael Havers)
I beg to move, That the Bill be now read a Second time.
I apologise to the House in advance for what is necessarily a more than usually lengthy speech from me. I think that it will be for the convenience of the House if I start by making the origins of the Bill clear. Its main provisions are contained in parts I to V and each of those parts arises from a separate report or consultative document. It is important to bear in mind that all of the measures in the first five parts of the Bill have been the subject of careful consideration before being put forward as provisional proposals, followed by wide consultation and further careful re-examination in the light of the response to the consultation. Many right hon. and hon. Members will be aware that this is the usual procedure of the English and Scottish Law Commissions. Parts I, II and III derive from English Law Commission reports, part IV from a Scottish Law Commission report and part V from a consultative document published by the Lord Chancellor's Department in January 1983 which followed the same procedure. The Bill as a whole, therefore, is the product of wide consultation followed by a great deal of further work to ensure that the measures which it is proposed to implement fairly reflect a consensus as to the changes needed to matrimonial law, are practicable and just.
There has been a great deal of public interest in the Bill. It has been widely discussed in the press, on radio and on television but it would be misleading for me to represent it as a radical measure making further fundamental changes to divorce law. Its reforms are important, but are no more than a comparatively small bite at a much larger problem. The changes to be brought about by the Bill are, on the whole, changes of emphasis, not changes of major principle.
Parts I and II make important changes to the Matrimonial Causes Act 1973, which was a consolidation of two Acts— the Divorce Reform Act 1969 and the Matrimonial Proceedings and Property Act 1970. It was the 1969 Act which introduced a fundamental change in the law of divorce by replacing the fault-based grounds for divorce with the concept of divorce upon the proof of irretrievable breakdown of marriage. The 1970 Act complemented it by conferring on the court a wide discretion to deal with financial and property matters on divorce. There have been one or two changes to the 1973 Act since then, but there has been no substantial review of that legislation since 1970.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
Having mentioned several pieces of legislation, will the Atttorney-General explain why the Government have felt it necessary to introduce a Government Bill on a matter which has almost invariably been the subject of private Members' Bills?
§ The Attorney-General
The hon. Gentleman will find that the number of smaller measures that have been introduced by private Members is roughly equal to the larger ones that have been introduced by the Government. I do not think that the House will complain if the Government give up their time to make what they believe are important changes in the law.
It is not surprising that after 13 years of experience of the legislation it appears that some adjustments are needed. The purpose of the Bill is to make those adjustments which have been found necessary in the light of the careful work which has been done by the Law Commissions.
Part I consists of reforms relating to the presentation of petitions of divorce and nullity. The objective of clause 1 is to avoid the harm caused by the present rule which prevents the presentation of a petition for divorce within the first three years of marriage unless the court gives leave on the ground of "exceptional depravity" on the part of the respondent or "exceptional hardship" suffered by the petitioner. This discretionary bar will be replaced by an absolute bar on the presentation of petitions for one year from the date of the marriage. It is, I think, common ground that the policy of the law of divorce should be to enable the hollow shell of a marriage which has irretrievably broken down to be dissolved with a minimum of distress, bitterness and humiliation. The changes incorporated in clause 1 emanate from recommendations made by the Law Commission in its report on time restrictions on the presentation of divorce and nullity petitions with that end in mind.
There are two separate and distinct arguments about the proposed reforms to be made by clause 1: first, whether the present discretionary bar should be retained, and, secondly, if not, with what it should be replaced. The Law Commission had several criticisms of the present rule. In brief, it encourages the most wounding personal allegations made in support of the application for leave, which cause considerable bitterness, distress and humiliation, often to such an extent that the amicable resolution of later disputes about financial provision or the custody of children is affected. Furthermore, such allegations between parents can often be harmful to any children.
It also appears that the distasteful process of applying for leave, coupled with an unpredictable outcome, is such that prospective petitioners are often advised against it even in extreme cases. Even those commentators on the Law Commission's working paper, which was issued some time before the final report, who preferred to see a longer bar coupled with a discretion, agreed that the "exceptional depravity" ground of exercise of that discretion should be abolished.
The very use of the adjective "exceptional" in referring to depravity or hardship in itself implies that there is some "normal" standard of depravity and some "normal" standard of hardship which society considers acceptable. This is conceptual nonsense: what is "normal" and what is "exceptional" can only be entirely subjective and each 394 judge can only apply his own, subjective, view. The lack of common criteria creates a great difficulty which the judges are faced with in attempting to exercise their discretion. This leads to a divergence of judicial practice around the country. As Lord Justice Ormrod said in the case of C. v. C. reported in 1980,the principal difficulty lies in knowing what standards to use in assessing exceptional hardship and what is meant by the phrase exceptional depravity. Both involve value judgments of an unusually subjective character … moreover, standards in society in these matters are not stable and are subject to considerable changes over comparatively short periods of time".The Law Commission found that advantage is not always taken of the permitted exceptions to the rule, and many petitioners are driven to duplicate proceedings by seeking judicial separation before, followed by divorce after, the three-year time bar. There is no time bar for judicial separation petitions. The effect, therefore, of the present rule tends to be to defer rather than to deter divorce and to duplicate the cost of legal aid — the cost for judicial separation and the cost for the subsequent divorce. It has proved unworkable in practice and can easily be circumvented by a legitimate procedural device. It is interesting to note that whereas in 1973 some 430 petitions for judicial separation were filed, in 1982—less than 10 years later—the number had risen to 7,480. Research shows that a very large number of these petitions were filed within the first three years of marriage. About 90 per cent. of them are filed by wives.
Given that the present rule is unsatisfactory, the Law Commission recommended that it should be replaced with an absolute one-year bar. The choice of a period of one year is necessarily subjective, but it is an attempt to find a fair balance between respect for the institution of marriage and relief for the unfortunate people who make a mistake.
A restriction for a long period can cause grave hardship in a case where the marriage has irretrievably broken down. The parties cannot be compelled to live together, but they can be prevented from remarrying. It really is an illusion, or perhaps a delusion, to believe that one can make a marriage endure when it has in fact broken down irretrievably by imposing a temporary bar on the commencement of proceedings. All that one is doing is encouraging extra-marital sex and imposing a penalty for having made a mistake in choice of partner or having simply been unlucky in that choice, and the penalty may be severe. For example, a wife deserted soon after marriage might wish to remarry and have children. Her only option at the moment is to live in the insecurity of an adulterous relationship and bear an illegitimate child.
§ Mr. Nicholas Fairbairn (Perth and Kinross)
I accept what my right hon. and learned Friend is saying, but why, then, have a period at all? Is that not merely doing what my right hon. and learned Friend is complaining about —compelling a falsehood?
§ The Attorney-General
I would expect a Scotsman to support Scottish law. This is one of the points to which I am coming and will deal with it in a moment.
It is suggested that it is beneficial to provide a period for reflection and reconciliation, but the practical effect of the bar would appear to be to encourage adultery. Numerous commentators on the working paper issued by the Law Commission favoured complete abolition of the restriction, as advocated by my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn). Those 395 who advocate no time bar can advance the logical argument that if divorce may take place only on proof of the irretrievable breakdown of marriage there is no benefit to the individual or society from perpetuating the hollow shell of a marriage which has irretrievably broken down. This is, of course, the position in Scotland.
The Scots have never had any restriction on the presentation of a petition for divorce. It is, in law, possible in Scotland to marry today and present a petition for divorce tomorrow. Indeed, that was the position in this country before 1937. If one were starting with a clean slate this might be the appropriate position to take, but we are not starting with a clean slate, and the Government accept the Law Commission's recommendations that a one-year absolute bar is appropriate because, on balance—and this must be a matter of judgment — some form of restriction is a valuable safeguard against irresponsible or trial marriage and a valuable external buttress to the stability of marriages during the difficult early time.
§ Mr. Robert Maclennan (Caithness and Sutherland)
Is the right hon. and learned Gentleman suggesting that the evidence shows that there are more such irresponsible trial marriages in Scotland?
§ The Attorney-General
No. It is interesting that the chart comparing divorce trends in Scotland and England shows that there is a similar period after marriage when divorce occurs.
§ Mr. John Page (Harrow, West)
I interrupt my right hon. and learned Friend before he gets into his run again. He seems to be saying that there is only one alternative to marriage—adultery. I thought that many people suffered in bedsitters in Earls Court without having to start a new relationship. That apart, will the Bill strengthen, or weaken, the marriage bond and family unit?
§ The Attorney-General
All these people cannot be in bedsitters in Earls Court, bearing in mind the high figures of divorce. The Law Commission first and then the Government have tried to find a period of time which does not make it possible for people to say that they can get married today and divorced tomorrow, with no serious approach to the marriage, and also gets away from what is, in my experience of the Bar, the appalling business of seeking leave to apply within the three years.
That was often a humiliating experience. Cases were sent to me and I would advise that the evidence was not enough and that the facts did not justify the case. Surprise, surprise, a month later back would come another proof from the intended petitioner which was much stronger and more likely to be successful. There was no doubt that there were occasions on which the evidence was grossly exaggerated to obtain a divorce where the husband felt that there was nothing to be gained by fighting the case, even though the allegations were not proved. That created an unsatisfactory position, particularly as the allegation would be widely known and might, in the end, become known to the children.
It cannot he emphasised too strongly that the proposal is for an absolute bar on the presentation of a petition for divorce — it is not some form of new ground for divorce. There will continue to be only one ground for divorce, and that is the irretrievable breakdown of marriage.The' parties will still have to prove that the marriage has irretrievably broken down by establishing 396 adultery, or unreasonable behaviour. In order to obtain a divorce "by consent" it will still be necessary for the parties to be separated for two years, and similarly it will be necessary to prove two years separation in cases of desertion.
§ Mr. Tony Baldry (Bambury)
As my right hon. and learned Friend is probably aware that whether or not one should reduce the period from three years to one, this is a matter of some concern to people's consciences. Would it be possible to have this matter debated separately on Report and to have a free vote on the issue?
§ The Attorney-General
I thank my hon. Friend for raising that matter. A free vote is a matter not for me but for my right hon. Friend the Patronage Secretary. However, this is an important Government Bill, and while the Government are conscious of the strength of feeling among hon. Members on both sides, my right hon. Friend has assured me that if any amendment to clause 1 is moved on Report which gives rise to a conscience issue, it will be the subject of a free vote if pressed to a Division on the Floor of the House. I hope that that reassures my hon. Friend.
§ Mrs. Jill Knight (Birmingham, Edgbaston)
Before my right hon. and learned' Friend leaves that matter, perhaps I might tell him that I am a little puzzled about how the Committee stage can proceed when it will riot know whether clause 1 will later be ditched. Will that riot make it rather difficult for the Committee?
§ The Attorney-General
That is a risk which Committees often have to face. They may argue at great length about an important amendment, and then find that it is overturned on Report. I am sure that the debate on clause 1 in Committee will be of great value to the House if an amendment or amendments to cover the alternative options are moved on Report.
§ Mr. John Morris (Aberavon)
Would it not be better, in view of the interest in dealing with this matter, to table a motion to take the issue on the Floor of the House, in advance of it being considered in Committee?
§ The Attorney-General
: The proposal that the Patronage Secretary has authorised me to put to the House is a perfectly fair one, and it will meet the demands of the House if the House wishes to consider the various alternatives.
§ Mr. Tony Marlow (Northampton, North)
I am afraid that I am one of the few Members in the Chamber who is not a lawyer and therefore does not know quite as much about the matter as most hon. Members who are present. My right hon. and learned Friend said that there was to be an absolute bar on divorce in England for a period of less than a year. In extremis, will it be possible for an English couple to petition for a divorce in Scotland?
§ The Attorney-General
I do not know the answer to that. There may be difficulties in getting jurisdiction in a Scottish court. The right hon. and learned Member for Aberavon (Mr. Morris) has made the point about using the Special Standing Committee procedure, which will allow the Committee to hear evidence. Perhaps that should precede any decision either by the House or the Committee on the various options that may be open as alternatives to clause 1.
§ Mr. David Ashby (Leicestershire, North-West)
I am glad to hear what my right hon. and learned Friend says about part I. Can he give a similar indication about part II?
§ The Attorney-General
I would feel able to ask my right hon. Friend the Patronage Secretary to consider it — again, if it were an issue of conscience, which is really the test that one has to apply on any other part of the Bill. I suggest to my hon. Friend that he, too, should perhaps approach the Patronage Secretary.
Clause 2 deals with nullity petitions. It provides that where a petitioner fails to present a petition for nullity within the required three years from the date of the marriage on certain grounds which render a marriage voidable, if the petitioner has suffered mental disorder during that period a court should be able to grant leave to institute proceedings, provided that it considers that it would be just to do so in all the circumstances of the case. I do not imagine that the clause will meet opposition from any hon. Member.
Part II, about which there has also been a great deal of discussion, interest and disagreement-save for clause 9 —implements a number of recommendations in the Law Commission's report on the financial consequences of divorce. That report was the result of a special reference to the Law Commission by the Lord Chancellor. Soon after his return to office in 1979 he found that he was receiving a steady stream of letters of complaint about the way in which the courts exercise their powers to make financial orders on divorce. Those letters have continued unabated. They can be put into two categories, broadly speaking. There are those from husbands and second wives complaining that the "system" has moved too far in favour of ex-wives, and, reversing the coin, there are those from ex-wives who complain that, having given the best years of their lives to their former husbands, they are cast off to live in penury without adequate support. The volume of each category, and the level of complaint, is more or less evenly balanced. It is worth noting, however, that few individual letters of complaint suggest that the courts fail to provide proper support for children where the husband has adequate means to do so.
In view of the considerable concern which this aspect of the law has aroused, the Lord Chancellor referred the relevant provisions of the Matrimonial Causes Act 1973 to the Law Commission, and in October 1980 the Law Commission published a discussion paper entitled "The Financial Consequences of Divorce; The Basic Policy". This was widely discussed in the press and on the radio and television at the time. There was extensive correspondence in the press, and 468 individuals wrote to the Law Commission, which also received 45 memoranda from a wide range of interested organisations and persons. This very considerable response was carefully analysed, and the Law Commission was able to publish recommendations, based upon this response, about the policy which, in its view, the law should follow, in its report on the financial consequences of divorce.
Chief among those recommendations were: first, that it is rarely possible to achieve the statutory objective in the 1973 Act of seeking to place the parties in the financial position in which they would have been if the marriage had not broken down and this requirement should be abolished; secondly, that financial support for the children should be given overriding priority; and thirdly, that 398 greater weight should be given to the importance of each party doing everything possible to become financially independent.
In the majority of cases, particularly where the former husband remarries and acquires a new family, it is unrealistic to expect that the husband's wages will support two families at the same standard as they previously supported one. However, there is nothing in the Bill to undermine the principle that he should continue to contribute to the maintenance of his former family where it is practicable and just for him to do so. Indeed, giving first priority to the children is likely to encourage men to keep up their maintenance payments.
§ Mr. Beith
Does the Attorney-General think that it is possible to separate the maintenance for the children of the first family from the maintenance of the wife? Does the right hon. and learned Gentleman think that it is possible to separate those two considerations?
§ The Attorney-General
With respect, that is exactly the point that the Law Commission made and the point that I am making now. I am sure that no hon. Member would disagree that priority must be given to the children. However, in considering the children, it is important that the wife should have adequate means to provide the right accommodation and surroundings for the children. That matter must be very much in the forefront of the court's mind when it decides the extent of the maintenance. Indeed, giving the first priority to children is likely to encourage men to keep up their maintenance payments.
No reform of the private law of maintenance—it is important to remember that this is the private law—can provide more resources, and accordingly it would be wrong to make exaggerated claims about the likely effect of these reforms. It is perhaps a change of emphasis in the guidance given to the court when making financial provision orders, rather than a radical restructuring of the law relating to financial provision, which the Bill seeks to achieve.
§ Mr. Alex Carlile (Montgomery)
Is the Attorney-General saying that new section 25(2)(a) in clause 3 will or will not make any substantive change in the law? Will he tell us why, in that paragraph, the court is to have regard to the increase in earning capacity, but not to the decrease that a wife might suffer in her earning capacity as a result of her responsibilities to the children?
§ The Attorney-General
The guidelines, which will become section 25, are to provide for all the usual situations which a court would have to consider. If there is a decrease, the wife can go back—
§ Mr. Carlile
What about a clean break?
§ The Attorney-General
I shall come to that in a moment. That is an unusual circumstance. I do not see it happening very often. If, as in the ordinary case, there has not been a clean break, the wife will be able to go back to court if her circumstances have changed. We have heard the example of a wife who, after working for 10 years, becomes ill. She may be away for some time, lose her job, or something of that sort. She would then be entitled to go back to the court. The clean break order is the one exception to which I shall come in a moment.
Effect is given to the Law Commission's recommendations by clause 3. First, it requires the court, in considering any financial order, to give first consideration to the child.
399 At present, where child custody arises, the court must give first and paramount consideration to the child's welfare. That is not a requirement which applies to child maintenance, and the Bill will put that right. It will certainly make divorce more child-oriented, and the court could not comply with the requirement to give first consideration to the welfare of the child unless it also ensured that the person having care and control of the child was in as good a financial position to discharge that responsibility as the circumstances of the family allow. The court must have the child to the forefront of its mind when it considers financial provision between the parties.
One of the amendments that has been latched on to in clause 3 deals with conduct. It has been argued that the provision in the new section 25(2)(g)—the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it"—will cause a resurgence of the bitter fights which used to take place before the reforms of 1971 on the minutiae of ancient matrimonial grievances. I am sure that no hon. Member will ever want to see restored those appalling cruelty cases lasting for a week or a fortnight which were designed to achieve nothing more than to reduce the claim for maintenance that might follow the granting of a decree.
I am confident that the Bill has got it right and that the apprehension that has been expressed is misplaced. Unless one takes the view, as I believe some do, that conduct is irrelevant to the question of financial provision, even where to ignore the conduct of a party would offend a reasonable person's sense of justice, conduct must be dealt with. It was included in the 1973 Act, but because it is embedded in a provision which is to be removed—a direction to the court to place the parties in the position in which they would have been had the marriages not broken down—it must be replaced elsewhere. The draftsman's advice, with which I agree, is that subsection (2)(g) gives precise effect to the Law Commission's recommendation that the status quo be preserved and that the courts should continue to rely on the prevailing authorities.
Any gloss on the words,that … it would be inequitable to disregard itwould alter the existing state of the law and inevitably would give rise to litigation on the effect of the gloss. As it stands, paragraph (g) will not enable the trivial incidents of broken marriages to be paraded before the courts. On the contrary, it will confine the need to have regard to the parties' conduct to those cases where to disregard it would be offensive to justice.
The high water mark of excluding conduct was the case of Wachtel, where Mr. Justice Ormrod, as he then was, used the phrase "gross and obvious" and that was approved by Lord Denning and two other Lords Justices in the Court of Appeal. Since then the tide has receded a bit and the judges are approaching the question of conduct exactly in the way that it is set out in paragraph (g). I have discussed this with a senior Lord Justice who has a great deal of experience in the Family Division and he assures me that that is so. He took the view that the authorities did not regard conduct as being relevant unless one got to the position where it would be offensive to a reasonable person's sense of justice that such conduct should not be taken into account.
§ Mr. Keith Best (Ynys Môn)
One of the great criticisms of this part of the Bill is the belief that it elevates conduct to a higher status than that which it presently 400 enjoys. Is it not a fact that, whereas section 25 of the 1973 Act specifically enjoins a court to have regard to the conduct of the parties without qualificaion, other than when it is just so to do, the Bill places a limit on the regard which a court may have to the conduct of the parties, because the court can have regard to that conduct only if it is such that it would be inequitable not to?
§ The Attorney-General
That is right. The 1973 Act, which was only a consolidating Act, provided that the court should have regard to the conduct of the parties. It was thought by the judges, particularly Lord Justice Ormrod, that when one was dealing only with irretrievable breakdown and no longer having blame as one of the considerations which the court should bear in mind, that there was some inconsistency when considering conduct as set out in the Act. It was then that the decision in Wachtel reached the high water mark as a result of judicial interpretation of words which were in no sense limited in legislation in 1973. Matters have settled down a bit since then with the interpretation in various recent decisions. The wording of paragraph (g) accurately represents the present state of the judicial approach to the application of conduct.
§ Mr. Beith
Will not conduct become more important in the general context of the Bill because, for example, a woman foreseeing that there is no longer a general criterion on which she might rely when it comes to the financial settlement will be mere determined to ensure that the original divorce is fully contested and any allegations about conduct proved at that stage so that they can be relied on when the financial settlement comes about?
§ The Attorney-General
The person seeking to establish conduct as a matter to be considered by the court will have to start by proving to the court—the burden will be upon him — that it would be inequitable to diregard it. Bearing in mind the many cases in which that has been under consideration since Wachtel in 1973, and bearing in mind also that the Bill does not alter what I consider to be the present judicial attitude when considering conduct, it would be a difficult task indeed to. get oneself within that exception unless it were a very strong case. I think that the judges will be reassured by Parliaments's decision on the way that they should approach conduct.
§ Mr. Kenneth Hind (Lancashire, West)
Will my right hon. and learned Friend concede that one of the problems of subsection (2)(g) is that it will lead to a large body of cases being called before the Court of Appeal so that it can decide what it is inequitable to disregard, and, as a consequence, registrars will be looking to the Court of Appeal for guidelines? Perhaps the subsection is too broad and non-specific for the requirements of the House.
§ The Attorney-General
I should have more sympathy with that argument if the Bill were creating for the first time a test of when conduct should be considered by the court. As a result of discussions that I have had with those who implement the law in the Family Division—I have one or two close contacts with such people —I am satisfied that if this accurately represents, as I am assured it does, the present judicial approach, there will not be many appeals to the Court of Appeal. There were not many appeals about Wachtel v. Wachtel. The judges have watered down the description of "gross and obvious" a bit 401 since 1973. However, that case did not lead to many appeals to the Court of Appeal or to any complaints that I know of from the registrars and others implementing the law about any difficulty in deciding when conduct was applicable.
Self-sufficiency is another problem that has exercised the mind of many people considering this issue. The Law Commission recognised in its report that there are a number of cases where divorced persons should be expected to become self-sufficient rather than remain dependent indefinitely upon the other party. But it is also recognised that the occasions on which it is possible for the parties to arrive at a final, once-and-for-all settlement will be comparatively few, and very rare where there are young children.
Nevertheless, the response to the Law Commission's discussion paper showed strong support for the view that such finality should be achieved whenever possible, as, for example, where there is a childless marriage of comparatively short duration and the wife is earning, or has earning capacity. It may also be possible to achieve finality in the case of a longer marriage where there is an adequate measure of capital available for division. Provisions will encourage the courts, in appropriate cases, to sever financial ties between the parties, sometimes immediately, and sometimes after an interval. But I must stress that those particular provisions do not apply to financial orders where there are children.
The flexible exercise of discretion has been criticised. It is essential that the 1973 Act, as amended by the Bill, should cater for all foreseeable circumstances. The discretion given to the courts must be flexible enough to allow them to deal fairly with the very rich—though a small minority—the ordinary family and the very poor. That flexibility is best achieved by continuing to give the courts a wide discretion. Clause 3 gives the courts necessary further guidance on how that discretion should be exercised.
The only other clause in part II with which I want to deal is clause 7, which amends the Inheritance (Provision for Family and Dependents) Act 1975, to empower the court to order when it is considered just to do so, on divorce or judicial separation, that one spouse shall not be entitled to apply for financial provision under the 1975 Act on the death of the other spouse. That applies, of course, to the clean break case.
The Bill also deals with domestic proceedings in magistrates courts. The last two clauses in part II amend provisions in the Domestic Proceedings and Magistrates' Courts Act 1978, revising the guidelines to the courts on the matters to be taken into account when considering an application for financial relief. The purpose is to ensure that the law on financial provision in domestic proceedings in magistrates courts remains in harmony with that in divorce proceedings. Clause 9 provides for a prospective payer as well as a payee to apply to the court for a consent order.
Parts III and IV relate to overseas divorce. I doubt whether they will be in any way controversial. They implement respectively the recommendations of the English Law Commission and the Scottish Law Commission. Because of the differences between the legal systems in the two countries—I am looking for my hon. and learned Friend the Member for Perth and Kinross, but 402 he keeps moving around — parts III and IV differ considerably from each other. But the broad objective of each part is to empower the courts in England and Wales and Scotland to order financial relief in appropriate cases where a marriage has been terminated outside the British Isles.
For example, where a marriage is terminated by foreign proceedings in which no financial order is made, or in which inadequate financial provision is made, a court in the United Kingdom has no power to grant financial relief. In recent years there has been a small but steady stream of cases coming before the courts which has both highlighted that gap in the law and illustrated the hardship to which it may give rise. I shall cite, by way of illustration, the case of an English woman who marries a wealthy Moslem in Iran but establishes the matrimonial home with him in England where they live together. The husband then returns to Iran and divorces his wife by "talaq". No financial order is made. Such a divorce may be recognised here, but despite the fact that the husband may own considerable property in this country, our courts have no power to order financial relief since a decree of divorce has not been granted by a court in England and Wales, or Scotland, as the case may be. The intention of parts III and IV is to remedy that injustice.
§ Ms. Harriet Harman (Peckham)
The right hon. and learned Gentleman has just given us an example of an English woman who marries a wealthy Iranian. What would the situation be under the one-year rule if they had lived for a period of their married life in Scotland before going to Iran and her parents were Scottish, although she had previously been domiciled in England? Such a scenario is quite possible. What would the position be about whether they could apply for a divorce if that marriage unfortunately irretrievably broke down within a year?
§ The Attorney-General
I am sure that the hon. Lady will allow me to give a little thought to that. With one exception, I doubt whether any hon. Member in the House could answer that question off the cuff.
§ Mr. Fairbairn
In order to give my right hon. and learned Friend time to think, may I suggest that the answer is that those people could get a divorce in Scotland?
§ The Attorney-General
Part V concerns family business in the sense of the business of the Family Division. It makes fresh provision to improve the distribution and transfer of family business between the High Court and county courts. Distribution of business and transfers of cases between the courts will be in accordance with directions to be made by the president of the Family Division with the concurrence of the Lord Chancellor. At present, as soon as a petition for divorce becomes defended, the case must be automatically transferred to the High Court. That rule will be abolished by the new provisions and, as a consequence, defended divorce cases will no longer be heard in the High Court as a matter of course. But they may be transferred there from the county courts, as with other cases, if they raise a particular difficulty. The provisions about transferability of cases are put forward following the response to a consultative paper on proposals for a Family Court published by the Lord Chancellor in January 1983. That paper contained two options for change. The more radical course would have 403 been to amalgamate the family jurisdictions of the High Court and county courts. The more modest option, which is to be implemented by the Bill, was to increase the degree of transferability between the county courts and the High Court. In the light of the response to the consultation, the more modest option was chosen.
The provisions in part V represent a first, but important if undramatic, step towards a more rationalised approach to the distribution of family business, with the possibility of a more radical revision once these amendments have been made. It is right that the House should be reminded that the Lord Chancellor announced in the other place that, with the Home Secretary, he is putting in hand a reexamination of the concept of a family court, beginning with the study of several possible models with a view to assessing the financial and other divorce implications of each model.
§ Mr. Alex Carlile
Does the right hon. and learned Gentleman agree that a thorough and perfectly adequate review on this subject was carried out by the late Mr. Justice Finer and his commission, which reported as long ago as, I believe, July 1974? Why do we need to start once again from scratch when it comes to looking into the question of a family court?
§ The Attorney-General
I entirely agree that the late Mr. Justice Finer provided a very detailed and helpful report. However, so many years later we must consider something that he did not consider, namely, the implications involved, and especially the resource implications. That inquiry will be conducted with the Lord Chancellor and my right hon. and learned Friend the Home Secretary. When that work is complete we shall be able to decide on the feasibility of establishing a family court, as such. Until that has been done, it would be wrong to attempt anything more radical at the moment.
§ Ms. Harman
Is it not the case that the Law Commission has warned seriously against tinkering with the system on a piecemeal basis? Therefore, why is the legislation being brought before the House when we know from the Lord Chancellor that a major research project into the financial consequences of divorce is coming up, the results of which we do not yet know, and that there is another review of family law? Therefore, is the Bill not wholly premature, and is it not tinkering with the subject on a piecemeal basis?
§ The Attorney-General
With respect, I do not call it tinkering. These are proposals that will improve the dispensing of family business. They will make it quicker and more convenient in a number of cases for the petitioners or the parties, particularly when they can stay in the county court rather than having to go to the High Court, which will be either in what used to be called an assize town perhaps some distance away or in London. I do not regard the Bill as tinkering in that sense.
Part VI of the Bill I can deal with, I am glad to say, quite shortly. The only clause of substance is clause 41 which, by amending section 29A of the Maintenance Orders (Reciprocal Enforcement) Act 1972, does for Northern Ireland what clauses 23 and 28 do for England and Wales and Scotland.
Schedule 1 deals with a number of minor and consequential amendments. Some of the minor amendments are perhaps worth mentioning, such as that to the 404 Maintenance Orders Act 1950, which requires a person making maintenance payments through a magistrates court to notify the court of any change of address. This has been the cause of complaint after complaint where the wife who has an order in her favour finds that the husband has disappeared, she cannot trace him and then goes for a long period without payment. There is a criminal sanction for a husband who does not notify the court of his change of address.
Another matter of complaint raised in the media and elsewhere is conciliation, or the lack of it. I shall deal with this because no doubt a number of right hon. and hon. Members would like like to have seen provisions in the Bill in respect of it. It is universally recognised that where the parties are amenable conciliation has a most important part to play. The Government firmly support the principle of conciliation, but there are issues to be resolved over the methods and funding of conciliation. The changes in procedure and practice which may be required are being examined by the committee on procedure in matrimonial causes under the chairmanship of a Family Division judge. Mrs. Justice Booth. She issued a substantial consultation paper last September. Over 1,500 copies of that paper have been sent to interested individuals and I am happy to say that there has been a heavy response, but it will be some months yet before the committee can be expected to report.
In addition to that committee there is the report of the interdepartmental committee on conciliation which has been received and is still under consideration. The Lord Chancellor and the other Ministers concerned have not yet come to a decision on its recommendations. It is not yet possible to put proposals before the House, but I have this reassurance for hon. Members: since conciliation is a procedural and administrative matter, primary legislation is not required. The Bill, therefore, would not be the appropriate vehicle to deal with conciliation.
§ Mr. Best
I am very grateful to my right hon. and learned Friend for giving way on a matter that is of considerable importance to the House. He will know that in the past a number of hon. Members on both sides have spoken on conciliation. I for one am prepared to accept that the Bill is not the right vehicle for conciliation because it is a procedural matter, and I am prepared to await the final conclusions of the committee under Mrs. Justice Booth, bearing in mind that she has already expressed a view that conciliation should be available at the initial hearing. Will my right hon. and learned Friend give us the assurance that there will be no delay in the establishment of pilot projects of conciliation so that there can be constant monitoring of conciliation by the Department? Then we could get to a situation where conciliation becomes an integral part of divorce matters as soon as possible, to the overall welfare of everyone concerned.
§ The Attorney-General
As my hon. Friend will appreciate, I am unable to give that assurance off my own bat, but I shall certainly draw the matter to the attention of the Lord Chancellor.
The Bill contains a substantial package of measures which represent a carefully considered reform of matrimonial law, implementing the recommendations of no fewer than four Law Commission reports.
The first two parts of the Bill are those on which views are likely to differ. Each requires a balance to be struck and it is a matter of judgment where that balance lies.
405 As I said, part I is intended to put an end to the exercise of a discretion based on notions of exceptional depravity and hardship, which the courts have found unworkable. The length of the absolute bar to petition with which it is proposed to replace that discretion has already been the subject of intense debate in another place and no doubt will be thoroughly debated in this House. Likewise, the revision in part II of the guidance which is given to the courts on making maintenance and other financial orders requires a balancing exercise.
As the House knows, so that there can be informed debate upon this in Committee, it is the Government's intention—indeed, the order was made yesterday—to propose that the Special Standing Committee procedure should be invoked for the Bill. I am happy to say that my hon. and learned Friend the Solicitor-General who will be taking the Bill through Committee is one of the few Ministers in the House who has had first-hand experience of that procedure.
§ Mr. John Stokes (Halesowen and Stourbridge)
My right hon. and learned Friend will appreciate that those of us who are not lawyers find some parts of the Bill difficult to understand. Before he sits down, will he answer me on a most vital point of principle? Does he think that as a result of the Bill the institution of marriage will be strengthened or weakened?
§ The Attorney-General
If people are not forced to the alternative of judicial separation to cover the time when they cannot live together, for example, until the period of three years is up, and if we get rid of the abomination, as I would call it, of having to apply for leave by establishing or seeking to establish exceptional depravity, which is hated by judges and by those counsel and solicitors who have had anything to do with it, it will be a more respectable and much cleaner operation. It is less likely to induce people to lie or take an alternative subterfuge. If that is the case, it can only do good to the proposition of the sanctity of marriage.
The remaining three parts of substance are, I think, likely to prove generally acceptable as they stand. As I said, we have filled a lacuna in the courts' powers to deal with overseas marriages. The courts' power to make financial provision for spouses and children will not need to be invoked in a large number of cases.
Part V makes a useful revision in the jurisdiction of divorce courts, and is not in my view tinkering with it. It may be a first modest but important step towards more fundamental changes. I cannot drop a heavier hint than that.
I commend the Bill to the House and ask hon. Members to give it a favourable hearing.
§ Mr. John Morris (Aberavon)
Given the expectation that a third of today's marriages may end in divorce, for those of us who regard the family as one of the main pillars of society—I presume that most, if not all of us, do—there could not be many more important subjects before us than this. The whole House will be grateful to the Attorney-General for his careful explanations of the Bill.
We are told that the essence of the Bill flows from the Law Commission's reports. That should dispose us to give it a fair wind where we can. It is introduced as a 406 Government Bill however, and the responsibility for what is in it, as drafted, must therefore lie on the shoulders of the right hon. and learned Gentleman and his friends.
I begin with what is not in the Bill. Traditionally, the Opposition—I know that this discipline is not limited—have always regarded divorce as a matter of conscience. It falls in the same category as abortion and the death penalty — matters of great social importance best resolved by individual decision. Hence, I shall not ask my right hon. and hon. Friends to do more than exercise their personal judgment on the Bill. I am fortified in that by the Government's response to our request for the Bill to go to a Special Standing Committee to examine its implications and to hear evidence.
If ever there was a Bill—crossing as it does many strands of view, crossing party lines and resting so much on individual decision — suitable for that special procedure, this is it. It will provide the opportunity for those who are gravely concerned and anxious about some of its proposals to ventilate their views at first hand. I look forward with interest to the Committee's observations which will help us all in finalising our views.
Having said that, while my later remarks about what is contained in the Bill will be personal remarks, made only in an effort to assist the House in weighing the Bill's provision, the remarks I make now about what is not in the Bill, but should have been in it, will, I hope, carry a broad measure of agreement, certainly on the Opposition Benches.
The Bill is premature. A Bill that has as its title "Matrimonial and Family Proceedings Bill" should be sufficiently comprehensive to deal with—as opposed to paying lip service to in accompanying remarks — the vital and fundamental matters affecting the state of matrimony when it gets into troubled and difficult waters.
First, I shall deal with family courts. Over the years, body after body has recommended their establishment. There is no greater clog in the way of change than existing institutions. It is frequently easy to change or adapt a principle, but try to change an institutional structure and one immediately comes up against all sorts of difficulties. The forces of reaction and self-interest leap into action to argue why it cannot be done, or at least not now.
The Lord Chancellor—there is no higher authority—is a believer in family courts. He issued a consultation paper more than a year ago. Yet all that he now proposes —and it is a proposal on the margin—is for the easing of the transferability of matters between the High Court and the county court. The idea of family courts even antedates the Finer report — a report that successive Administrations have for far too long allowed to gather dust. It goes to the heart of family reform. Without it, the Bill is Hamlet without the Prince.
Why dabble in the changes proposed, which, in turn, will be used by succeeding generations of bureaucrats as a fresh lever to delay fundamental reforms? Work of importance has been done by Judge Jean Graham Hall and others on costs. At one stage the Lord Chancellor, while saying that he gave the issue his support, also sought to say that, on the whole, the profession was against it, and was certainly not united in favour of it. He was soon corrected and reminded that the Law Society had been in favour of it for years.
407 The truth is that there is considerable support for bringing together the various jurisdictions dealing with the family from the High Court down to the magistrates courts.
§ Mr. Harry Greenway (Ealing, North)
I wish to put to the right hon. and learned Gentleman something that forms a basis for the thinking of some of us on these matters. When he says that there is no higher authority on these matters than the Lord Chancellor, I expect that he is probably speaking in legal terms. Does he accept that many of us feel that Christian principles and the leadership of the church are the highest authority of all?
§ Mr. Morris
I am confining my remarks to the authority and experience of the Lord Chancellor in regard to the administration of justice. If we are to delve into ecclesiastical matters, it is surely not for us to comment on what happened in another place. But we have noticed the way in which the Lord Chancellor dealt with the bishops. Perhaps there are better ways of debating than that, but I say no more.
The change in the institutions would allow a different approach, and the activities of the Supplementary Benefits Commission and the courts would not continue as though there was no connection between their respective roles. I believe, as others do, that the clauses proposed merely play with the problem.
There is the absence of any provision in the Bill for proper conciliation machinery—a matter with which the Attorney-General dealt in his closing remarks. If we believe so much in the importance of the preservation of marriage, a fraction of the resources given to destroying marriages should be expended to try to preserve some of them. The state has to pick up so much of the Bill, not only for the costs of the divorce machine but — and much more important — the resulting costs of state maintenance. But, of course, state maintenance is not on the Lord Chancellor's Vote.
The other great difficulty about our governmental procedures—and I speak with a little experience—and the influence of the Treasury in the allocation of resources is that so frequently in its opposition to proposals which cost money, it cannot see the bottom line of eventual savings. If only one family out of 100 could be saved from becoming state dependants, the cost of a properly funded conciliation service would be a good investment for the Treasury. That, of course, is taking a view right across Government as opposed to looking at it departmental Vote by departmental Vote.
It is all very well for the Lord Chancellor to say—these words were repeated today by the Attorney-General —that no primary legislation is necessary. He may well be right, and I tend to agree that most of these matters, if not all, can be dealt with by changes in the rules of procedure. However, the Lord Chancellor's and the Attorney-General's defence would carry more conviction if their words were accompanied by a positive statement of intent to devote additional resources to conciliation. That is what it comes down to at the end of the day.
The Bill also omits the lack of proper provision for children. I welcome the statement that children will come first in financial provision, but what does that mean—first in time, first in importance? Does it apply to maintenance, capital provision or accommodation? The Bill has been criticised because of an underlying 408 assumption that we can separate the maintenance of wives from that of children. Certainly, for capital provision that can be a useful assumption for children if the wife remarries.
The startling omission of the Bill is the lack of proper provision for the children of one-parent families. Neither in this respect, nor in respect to a relation of the balance between the first wife and the second wife, can one get a quart out of a pint pot. It is the state that has to step in, and only a very small minority depend solely on maintenance.
I appreciate that this is a wider matter than that of pure divorce legislation, but in our view there is a long way to go before the real poverty that exists in one-parent families is properly alleviated. The real answer to the financial problem of protecting the single parent would be either a non-means-tested one-parent family allowance of significant size, or a major increase in child benefit. The latter stands at no more in real terms now than it Ix as in 1979, yet because it is non-means-tested—I emphasise that— it is the best way out of the poverty trap that ensnares so many hundreds of such families today.
It is a cause for wonderment that the Lord Chancellor can proceed to change the law of maintenance when so little research has been done. The Law Commission tells us that thedifficulty encountered in examining any proposal for law reform in this area is that … very little reliable information is available about the operation of the existing law … The lack of such factual information obviously constitutes a handicap to the task of law reform.We have to await the results of the valuable consultation paper referred to by the Attorney-General, issued by Mrs Justice Booth's committee.
How much do we as a House, as opposed to personal experience, know of the cost of bringing up children? What levels of poverty exist? What guidelines will the courts have in deciding what is just and equitable? It is all very well to say, trust the judges, but the judges, be they the registrars, who do most of the work, or High Court judges, are entitled to some guidance, and that guidance should be based upon fact.
The Law Commission proposed thatprovision be made for continuous monitoring of the operation of any amending legislation dealing with the financial consequences of divorce.The precedent was section 105 of the Children Act 1975. The Lord Chancellor would have none of this. His, he said, was not a research Department. In typical Whitehall jargon, he had thought of something bigger and better. This—again I speak from a little experience—is an old Whitehall ploy where the best is deployed as the enemy of the good.
§ Mr. Hind
The right hon. and learned Gentleman has referred to the quantifying of property and maintenance orders. Does he not accept, however, that there exists a well-established body of law, based upon the decision of Wachtel v. Wachtel, and the cases that followed it, that gives adequate guidance as to the criteria that should be followed by the courts in deciding and quantifying the maintenance and property division, that the Bill does not affect that situation, and that the law will be as good when the Bill is enacted as it is at present?
§ Mr. Morris
I shall answer that in a moment. If the hon. Gentleman is dealing with the financial provision in toto I seek to argue that one is doing away with putting the 409 egg back into its shell, and is not replacing it with anything else. If the hon. Gentleman is dealing specifically with the issue of maintenance for children — he has perceived what I intended to say—one of the problems is that we have no idea of the average level of maintenance granted by the courts today. How can we say, therefore, that there is sufficient guidance when, as the Law Commission is saying generally — and as I am sure it would say specifically—we just do not know, no research having been done? In the case of Wachtel v. Wachtel to which the hon. Gentleman referred, I believe the court was dealing with wealthy parties. What is the aim of the courts when dealing with people who have limited wealth at their disposal? I shall return to that point, but I think that I have captured the point on which the hon. Gentleman seeks assistance.
Given the lack of a positive response, I believe that it is time for us to make a real start. As I was saying, the real truth—the House has been told this specifically—is that we do not know the average amount of maintenance orders made. That is a tragic indictment of any reform. We hope to return to these matters in an attempt to improve the Bill at a later stage.
I deal next with some of the main points of controversy arising from the Bill. There are, of course, widely different views on some of these issues, and I emphasise that I speak for myself in this context. The first is the minimum period for divorce, and an absolute bar for a year on commencing proceedings. I would be surprised if there were support for the retention of the status quo. Under the Divorce Reform Act 1969, as the House has been told, there is a discretionary bar on divorce within three years which can be lifted in cases of exceptional hardship suffered by the petitioner or exceptional depravity on the part of the respondent. The House has been reminded that the Scots have no such limitation, and I am not aware that the institution of marriage in Scotland suffers as a result.
§ Mr. Fairbairn
It might interest the House to know that, suffering the bar that the English have at present, in Scotland fewer people are divorced within five years of marriage, and even fewer within three years of marriage, than are presently divorced in England.
§ Mr. Morris
The House has heard the figures, and I would hope that hon. Members will learn and draw whatever lesson they can from them, but bare statistics can prove more than one thing. There is no limitation in Scotland, and the proposal before the House is no more than a compromise solution. I suspect that it satisfies hardly any hon. Gentleman. As the House was reminded by the Attorney-General, this proposal was first made in 1937 as part of the A. P. Herbert package when the grounds for divorce were extended to cover cruelty and desertion as opposed to adultery. That was part of the package in order to get the Bill through the House, if I recollect right, to show that Mr. A. P. Herbert wished not to undermine unduly the institution of marriage. This is a compromise solution. The House heard a little anecdotal evidence from the Attorney-General of the improvement of proofs of evidence when matters came before him in his past. When the parties were told that there was insufficient evidence to make an application within the three years, strange as it may seem, those facts were improved, sufficiently, I presume, for the Attorney-General to be 410 able to give a more positive guidance after more time had been given for thought. That is how I understand it today; if an application is made for a petition to be brought within three years, the chances are that, provided energy and ingenuity are shown, it will be granted.
In any event, how can the courts distinguish between hardship and exceptional hardship or between depravity and exceptional depravity? As the Lord Chancellor said, contrary to what has been suggested, the Bill does not make divorce easier. The grounds remain the same. I suspect that all it does in practice is to make it impossible to have a divorce in less than one year, whereas now a court can, where cause is shown, grant it during that period.
§ Ms. Harman
Does my right hon. and learned Friend agree that just as the courts cannot distinguish between depravity and exceptional depravity or hardship and exceptional hardship — at least, it puts them in an invidious position to have to do so—the same situation exists when the courts are asked to take conduct or misconduct into account when assessing maintenance? Are we not asking the courts to make precisely those judgments in part II of the Bill that in part I we recognise they should not be asked to make?
§ Mr. Morris
I should not have given way to my hon. Friend because I was beginning to deal with what is in the Bill. I shall come to the question of conduct in due course.
I can see situations where one party has entered into marriage ignorant of the condition or intentions of the other in a fundamental respect. In those circumstances, should there be an absolute bar? Does delay in those circumstances strengthen the institution of marriage? On the other hand, there is the danger of marriages of convenience occurring in London and in our port areas, and that, too, is a matter that must be considered. I suspect that the House will want to ponder long and hard to get the right balance in this connection.
I come to the impression created that, somehow or other, the Bill disadvantages women, and by "women" I mean particularly the divorced wife. It could also apply in the rare case of a divorced husband who is dependent on his wife. I suggest that those who have fears on this score should read the speech of Lord Scarman in another place. It is a clear explanation of what he understands—it is his understanding in his legislative capacity—the Bill to mean. Unhappily, in the world at large, few people will read his understanding and compassionate speech. Some of us may not share completely his high belief in the omniscience of judges. Even if we regard them highly, as I do, we may believe that it is for Parliament to decide the principles and give adequate guidelines, and that it is for the judges to interpret them at that stage.
Therefore, so long as this anxiety remains—and it comes from a host of bodies—the burden lies on the promoters of the Bill to quell the fears. A change is proposed in the balance from the point of view of maintenance — in the extension of matters to be considered by the courts and the steps that they can take in the terms of what will be the new section 25—and I ask to what extent that will alter the situation in practice. Again, I feel that, had the changes been confined to childless women below middle age, or to some other suitable point, there would have been little fear. Lord Scarman is right to discount any risk to women who would 411 be "left in penury" after desertion—women unable, for one reason or another, to provide for their own support — and he sees no threat to middle-aged or elderly married women. However, somewhere in between there is a grey area of real fear.
For many of my constituents the debate is largely academic. The one wage packet of my constituents—if they are lucky enough to be in work—will just not keep two families. It is to the state that the majority of my people will continue to look, with or without the Bill.
Many of us have had at our constituency surgeries representations from both sides, from deserted wives whose standard of life has dropped disastrously and from husbands who have remarried and who find the claims of the second family not easy to satisfy at the same time as the claims of the first. We hear heart-rending tales on both sides.
Two feelings have been engendered by the Bill. One is the hope of husbands that their situation will be changed dramatically by the measure. There will be a change for some but, I suspect, for very few. The second is the fear of divorced wives that they will inevitably be a lot worse off. Again, for the majority, if not the overwhelming majority, there will be little change, unless our judges interpret the words "what is just and equitable" in a manner wholly out of character for the British judiciary.
However, so long as these fears remain, it is for the promoters of the Bill to dispose of them; and judging from the representations that I have received, the fears are widespread. I hope that the Government will say that they will consider amendments to allay some of these fears, and that amendments to give clearer guidelines to the courts will also be carefully considered.
The available research tells us that only in a small proportion of cases where there are no children is maintenance the sole resource of the divorced wife after a few years. There must be some cases, if only a very few, where it would be just, in the interests of both parties, to have a clean break. There is a strong argument for saying that the courts should take into account the earning capacity of the wife and, in the same way, the actions of a husband who goes on supplementary benefit to avoid paying maintenance.
I do not dissent from an approach which gives greater discretion to the courts, provided that the guidelines are seen to be just and clear; provided that the disadvantages to a woman who has been married and broken her career to provide a home are properly recognised; and provided that the need to allow for her retraining, her health and her age are properly recognised. It is a pity that amendments along those lines in another place were not accepted. Such amendments would go a considerable way towards allaying the fears that exist.
These are essentially matters of personal judgment and my remarks are made against a background that the Bill will do away with the duty of the courts to try to put the parties back into the state in which they were financially before the break-up. That would, in most cases, be an impossible task. What is not clear — this is the fundamental flaw in the Bill—is what is to replace it. The courts will have to consider the whole series of matters set out in section 25, as amended, but with what aim in mind? The Committee on the Bill may also wish to consider the 1981 report of the Scottish Law Commission setting out detailed aims for the courts.
§ Mr. Fairbairn
Will the right hon. and learned Gentleman confirm that under the present law in England a spouse—I make no distinction between husband and wife—can benefit from the other spouse's income long after divorce to an extent that he or she never enjoyed during the period of the marriage?
§ Mr. Morris
As it is a long time since I had to deal with matters of this kind, I prefer to reserve my position.
§ Mr. Fairbairn
And criticise the Bill.
§ Mr. Morris
I understand that the courts now have a wide discretion, but we do not know how that discretion will be replaced and what will be the aim of the courts when the impossible task of trying to put the egg back into the shell has been abandoned. That is my quarrel with the Bill. It does not say what will replace the present system or what will be the future aim of the courts.
§ Mr. Morris
No, I have given way several times and I must get on.
There is also anxiety about the conduct of the parties being brought into the financial considerations if it would be inequitable to disregard it. No one with any experience in the long-distant past of pleading cruelty allegations in divorce petitions would wish to go back to litigating fault. We are grateful for the explanation given by the Attorney-General and I understand how the courts have interpreted the 1969 Act as confining consideration of conduct to the gross and obvious. The right hon. and learned Gentleman quoted the views of a senior Court of Appeal judge who deals with these matters and whose judicial view is that the clause as sought to be amended would reflect the present position of the courts, but the judicial view on this is not unanimous. Those who have read the views expressed by Lord Denning in another place will not be fortified by the quoting of one judge when another judge, who has played a leading role in the reform of divorce law by the courts. dissents from the idea of putting the clause as amended in the form now proposed.
In another place attempts were made to amend the Bill so that the court would consider only such exceptional cases as would render it inequitable for conduct to be disregarded. Lord Denning said that that was the intention of the judgment that he handed down but which he believed had been misinterpreted by the courts. He was unhappy about the provisions of the Bill in relation to the burden of proof because they might open the door to the kind of investigations that we used to have.
I am fortified not just by Lord Denning's view, but by that of the Law Society, which is also very concerned about this matter. It states:The Council's view is that the new wording is such that it might become the professional duty of solicitors to investigate fully and canvass all questions of conduct on financial applications.That may be putting it a little high, but the danger is certainly there. I hope that the Attorney-General's Treasury advisers will also take cognisance of that view because if solicitors are to have a professional obligation to investigate such matters the legal aid bill will go up, not down. The Law Society has forewarned us of that danger.
The Attorney-General also quoted the Law Commission, which has commented that only exceptional circumstances should be considered and that such a 413 provision should be inserted as a preface. I regret to say that the Lord Chancellor quoted the Law Commission selectively in another place. The Law Commission made it clear in its report that it regarded that specific provision as necessary. The difficulty remains and the House should examine this proposal most carefully.
I think that I have dealt with most of the matters that give rise to concern either because they are included in the Bill or because they are omitted from it. A good deal of what I have said is a matter of personal judgment, but I hope that in the further proceedings on the Bill some of the genuine fears that I have expressed will be put to rest. I very much welcome the Government's agreement to the Bill being considered in the Special Standing Committee. I trust that when it eventually returns to the Floor of the House some of our amendments dealing with omissions will have been accepted and we shall be able to take a more definitive view of the merits of the Bill as a whole.
§ Mr. Toby Jessel (Twickenham)
I listened with great interest to the right hon. and learned Member for Aberavon (Mr. Morris). Like him, I believe that most of the hopes and fears that have been aroused—not so much by the Bill as by the various pressure groups banging about on it—will turn out to be misplaced. The Bill appears to contain a great deal of new law in its 43 pages but I believe that the number of people directly affected will be fairly limited.
I have had the good fortune to be most happily married since my remarriage in 1980, but I must declare an interest in the Bill, as I may be among the small minority directly affected by it. I still have to pay maintenance in respect of a relatively short former marriage. That marriage took place a long time ago, there are no surviving children and my ex-wife earns her living as a barrister. I hope that you, Mr. Deputy Speaker, and the House will not feel that that should prevent me from speaking on the Bill, as it involves a wide range of other circumstances which affect many of my constitutents.
An old age pensioner in Twickenham got in touch with me because he had recently reached the age of 65. For 20 years he had been paying maintenance, fixed at £3 per week in 1962, to a former wife who must have had some other source of income, as no one could begin to live on £3 per week. He had been married to his second wife for 12 years and on ceasing to earn, he wished to end the maintenance payments to his former wife. The court reduced the amount to a nominal 5p per year but under the present law it did not have the power permanently to terminate the maintenance order.
§ Ms Harman
Does the hon. Gentleman agree that if the former husband's circumstances change he can ask for the maintenance order to be varied and that if the former wife consistently reapplies when there has been no change in her circumstances or his she can be ruled out as a vexatious litigant?
§ Mr. Jessel
The hon. Lady is not quite right about that. The ex-wife can apply for the maintenance to be varied, as can the ex-husband, but once a maintenance order has been in existence for some years the court has power to reduce the maintenance to a nominal 5p per year but no less. There is thus always the threat hanging over the 414 former husband that his ex-wife may reapply for an upward variation. That is wrong and I profoundly believe that it should be altered.
My constituent wishes to move with his present wife from his fairly small house to an even smaller one so that the relatively small difference in value can be used to augment their standard of living in his retirement, using either the capital value of the difference or any interest on it. He dare not do that because, in doing so, he would increase his income, which would then become vulnerable to a future application by his first wife for an increase in maintenance. That is wrong, and the Bill would put it right.
All hon. Members will regard the needs of children as being absolutely paramount, and the Bill does that. In what will be new section 25(1) it says:It shall be the duty of the court … to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.That is absolutely clear, and it is right that it should be given top priority.
The trauma of a divorce for a child can be so serious that one wants to ensure that at least financial provision for the child comes first. However, in many divorces no children are involved. In three divorces out of 10 there are no children under the age of 18; in four out of 10 there are no children under the age of 16; and in five out of 10 there are no children under the age of 13. Therefore, broadly speaking, when divorces take place, then within five years, there are no children in half of them. That must be taken into account when maintenance for the family is considered. In about one third of divorces there are no children under the age of 18.
It must be made clear — the majority of hon. Members will support this overwhelmingly — that the court must continue to be able to protect a wife who has devoted many years to the care of her family, as a good wife and mother, and who could not easily acquire new working skills, get a job or start a new profession in her 40s or 50s. The Bill provides for that, because what will be new section 25(2)(a), refers tothe income, earning capacity, property and other financial resources which each of the parties of the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire.If a woman in that position cannot reasonably be expected to take steps to acquire that earning capacity, she would be protected under the Bill.
Subsection (2)(d) states thatthe age of each party to the marriage and the duration of the marriageshall be taken into account. In particular, in respect of wives who have been caring for children, it provides thatthe contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the familyshall be taken into account by the courts. Therefore, that part of the Bill appears to look after that aspect which, rightly, worries the public and hon. Members.
I deal now with how part II may relate to the aim of strengthening marriage and family life, in so far as it interacts with the difficult question of conduct. If conduct is broadly to be excluded from consideration by the courts, except in exceptional circumstances, we shall not strengthen marriage. If conduct is excluded from 415 consideration, the wife who deserts will receive as much maintenance as a wife who is deserted. I am aware that there are strong arguments against discussing conduct in gory detail in court. My right hon. and learned Friend the Attorney-General and the right hon. and learned Member for Aberavon (Mr. Morris) referred to that. Hon. Members must realise that if they do not take conduct into account, they may not be doing what they can to strengthen family life in this part of the Bill. Whatever is in the statute will have comparatively little influence on the law and the courts.
The 1973 Act, which consolidated what was in an earlier Act, clearly and categorically stated that the courts were to "have regard to conduct". Yet the judgment in the Wachtel case had the effect of the courts thereafter taking conduct into account only in exceptional circumstances. It has been said that that was a "development" or "interpretation" of the law, but that is a ministerial euphemism. It suggests that it is a variation on a theme—if a musical analogy may be allowed—of what is in the statute. That is not so, because the statute clearly states that the courts were to "have regard to conduct". However, the Court of Appeal virtually went in the opposite direction, thereby driving a coach and horses through that provision of the Act. The same thing could happen again. Even if Parliament were to decide that conduct should be taken into account, the courts could decide that that was not to happen. One has been taught that statute law must always be paramount over case law.
§ Ms. Harman
The hon. Gentleman says that we must continue to have consideration of conduct to preserve the moral institution of marriage. Does he believe that parties to a marriage try to behave because they are worried that at a future date, if the marriage breaks down, they will be financially penalised if they do not?
§ Mr. Jessel
The hon. Lady cannot have heard what I said. The House is faced with a choice between giving importance to conduct and complying with what the Court of Appeal has said. The House cannot have it both ways. It must choose.
No reference has been made during the debate to the interests of second wives. The Lord Chancellor in another place has said that many second marriages become established, successful and certain, and often last much longer than first marriages. Yet the courts can discuss cases of maintenance, which sometimes come up years later, as if the parties are primarily the husband and wife of the first marriage only. The wife of a second marriage is often placed in a disadvantageous financial position, because her household may have to subsidise maintenance to the wife of a first short marriage, which may have ended many years previously without dependants.
I shall vote for the Bill because I support part II and because to do so leaves open the position in part I. I hope that hon. Members will not overlook part III. Although it is said to be less controversial than parts I and II, it affects a growing number of people because of the increasing tendency of people to travel, marry foreigners and have spouses in another country. If, unfortunately, such an international marriage goes on the rocks and there are assets in this country, the wife, if it is a long marriage, should be able to make a claim on any resources in this country.
§ Mr. Leo Abse (Torfaen)
I hope that the precedent set by the hon. Member for Twickenham (Mr. Jessel) need not be followed by all hon. Members, or we shall all have to declare our marital status. I must confess that I lack the clinical experience which the hon. Gentleman declared, and I admit that I have been married for 28 years. that I have had only one wife —I am too old now to have another—that I quarrel with my wife every week, and that of course we have a sweet reconciliation the following week. I can share the hon. Gentleman's experiences only vicariously, but in view of my long involvement with divorce law reform since I have been a Member of the House, perhaps I can synoptically, as did the Attorney-General, give a history of the events that led to the present position.
In the Attorney-General's account there were many lacunas. From the account generously distributed to hon. Members by my hon. Friend the Member for Barking (Ms Richardson), I was interested to see that she, too, puts a gloss upon history that does not accord with reality. Although I agree with my hon. Friend on many occasions, I neither agree with her recall of events, nor with her general thrust. However, I have no doubt that, as ever, she will speak vigorously for herself, as I am speaking only for myself, in a debate in which the Opposition have, in accordance with tradition, a free vote.
When my colleague and friend Alec Jones and I finally put on the statute book the Divorce Reform Act 1969, that came about only after a long struggle throughout the 1960s, including my Matrimonial Causes and Reconciliation Act 1963 and other efforts, such as that of Mr. Bill Wilson. However, we had to pay a price for the 1969 Act, just as A. P. Herbert had to pay a price for his Marriage Act 1937. In order to take the House with us, we had to concede provisions relating to finance and conduct which were either inappropriate or which had a built-in obsolescence. It was a hard task to move the House away from the doctrine of the matrimonial offence to the doctrine of marriage breakdown. When we did that, alarm and concern was aroused among wives, who felt that laws were being enacted that might leave them lonely and frightened. Since, for the first time, it would be possible to divorce a wife without her consent even though the marriage might have broken down many years before, it was necessary to include in the Bill the provision with which we are dealing today: it was urged that there had to be a guiding rule to the courts making it clear that their goal should be that the parties to a divorce should be returned to the same financial position as they would have been in had there been no divorce. It was impractical, but it was insisted upon by vociferous lobbies in the 1960s.
Of course, because it was impractical and often inappropriate, many injustices resulted. I knew that there would be such an accumulation of grievances and that in the long run there would have to be changes, but those of us who have been Members of the House for a long time know that in all such matters there is a question of timing. It was not until 1979 that I believed the time had come. I received many hundreds, indeed thousands, of letters during the previous decade that blamed me for having created the injustices which those people believed they were enduring. I then initiated an Adjournment debate, with the assistance of the hon. Member for Cambridge (Mr. Rhodes James), in which we put forward the view 417 that it was high time to have a review of the law, and we requested that the Law Commission should review existing provisions.
When I hear, as I do from misinformed Opposition Members, that this Bill is a Conservative one, I regard that with some irony. It was also ironic to hear the Lord Chancellor in another place vociferously defending the Bill, because after that Adjournment debate, and after I had put pressure on him to conduct a review of the law, he wrote to me in October 1979 saying:So far as ancillary relief is concerned, I do not believe that the time is ripe for a further review of the law governing maintenance and the adjustment of property rights following divorce, or that there are any changes in the substantive law which would improve the often difficult financial problems which arise from the hard fact that there is usually insufficient money to support two households comfortably.The Lord Chancellor dug in, and I felt the need for reinforcements. Following that, an all-party group was formed, including Conservative Members and Joan Lestor, Phillip Whitehead, David Stoddart and others who are no longer Members of the House. That group sent deputation after deputation to the Lord Chancellor to demand that the injustices should be reviewed. Let no one be under the misapprehension that this is a party Bill. It has been levered out of the Government as a result of considerable pressure.
The Lord Chancellor—who is not a man to stay over-long in a crumbling intellectual dug—out-referred the matter to the Law Commission. The commission brought in a report that pussy-footed on the whole issue. Perhaps it did so because it believed that, with such a sensitive matter, it would be indelicate to try to impose a view on the House. Perhaps it believed that it could clear the ground and sow the options but that, until it had further instructions, it could go no further. Following that, 230 hon. Members from both sides of the House signed a motion making it clear to the Law Commissioners and to the Lord Chancellor that they wanted a definitive reply. Ultimately, the Law Commissioners, with the concurrence of the Lord Chancellor, put forward a report which is being implemented in part II.
This is a limited Bill. It deals with a private law of maintenance. Perforce, by its nature, it cannot deal with the overwhelming majority of one-parent family problems, and I regret that it cannot do so. Successive Governments have moved away from the definitive report presented by my dear friend, Mr. Justice Finer, who died so prematurely. The report put forward the view that there should be a guaranteed minimum maintenance payment for all. As has rightly been said, dust has gathered upon that remarkable report.
It is true that the omissions, which my right hon. and learned Friend the Member for Aberavon (Mr. Morris) categorised, are much in our minds when we deal with the Bill's restrictiveness. We must do what we can. The Bill is not dealing just with the problems of marriage breakdown in middle-class families. It impinges even in its financial provisions on, for example, skilled workmen whose marriages have suffered. In 40 per cent. of divorces, there are no dependent children, and in 29 per cent. of divorces, there are no children. A high proportion of divorces occur among childless people.
We cannot condone the position in which a man, whose short marriage breaks down, who remarries and has 418 children is, in the years when those children are growing up, under pressure to make payments to his young first wife who had no children by him. In the 11 per cent. of cases in which the children are grown up and where the woman married when young, the divorced woman could be still in her thirties. Her former husband might have a second family. Yet, as the law stands, that woman would have a right of recourse to the court for maintenance until her first husband dies, and the right to pursue the estate. That right would be checked if the Bill were passed. It is intolerable to allow the existing state of affairs to continue.
§ Mr. Fairbairn
Am I right in saying that not only is the injustice by which the woman can pursue that right, which the hon. has outlined, clearly part of the present law in England and Wales, but she can pursue a claim against her ex-husband far in excess of anything she enjoyed when married to him?
§ Mr. Abse
That is so. The hon. and learned Gentleman is only emphasising, my point. The Bill insists, however, even in those cases in which the children have grown up, that the duration of a marriage and the contribution made by the woman in looking after and caring for the first family must be taken into account. There are safeguards for elderly mothers. The Bill would leave the courts, however, with the freedom to escape from the stranglehold in which a woman, still in her thirties, with a grown-up child earning an income, would have a continued right to pursue her claim for maintenance.
§ Mr. Beith
How can the hon. Gentleman challenge that a woman aged 38, who had spent 18 years bringing up children—when she probably had to settle the place of her home in relation to her husband's job rather then hers — has a right to go to the courts to seek some maintenance from a previous husband and should, to some extent, share in any subsequent increase of income of that husband, given that the period when she made sacrifices was when she was married to him? How can we seek to expunge that right?
§ Mr. Abse
That is what the Bill safeguards. I sought to stress that the Bill makes it clear that the duration of the marriage and the contribution made by the woman in looking after and caring for her family are the issue that the courts are commanded to take into account.
Is it correct that the court does not, however, have the discretion to say to such a woman, as is suggested in this Bill, "For 10 years you are likely to receive maintenance, but the goal is self-sufficiency. The opportunity to retrain and to stand on your own two feet must be given. It will be given for a period, but you have not a right to maintenance until death."? When the 1969 legislation was being debated, we heard of women who were brought up to believe that, in return for bed, board and fidelity, come what may, they should have a right to support until death. I should have thought that a modern woman would find it demeaning to be regarded as someone who must be a dependent for perhaps most of her life—as in the case cited by the hon. Member for Berwick-upon-Tweed (Mr. Beith). The court requires the discretion to deal with a particular circumstance. It fails to have that power at the moment, but it would do so if the Bill were passed.
§ Mr. Kevin McNamara (Kingston upon Hull, North)
I have been following my hon. Friend's argument with great care. Is there not the idea of an ideal situation at the 419 basis of his argument? Are not training, maintenance and job opportunities for these individual cases available in our present society? Are they not likely to be available in the society of the next decade?
§ Mr. Abse
I agree with my hon. Friend. I stress that the Bill will not affect the overwhelming majority of divorced people. How can we imagine that it would affect them when we know the plight of one-parent families? Until the Finer report is implemented, we shall find ourselves with the challenges that my hon. Friend clearly has in mind in putting his question to me. That does not mean that I have to take the view of the National Council for One Parent Families, which does itself little justice when it urges us to vote against the Bill on the grounds that we must havepriority for all children, not just those whose parents are able to divorce." It is an ugly form of egalitarianism that would deny any help to a child unless every child in the land received the same help.
I understand and sympathise with the frustration of groups such as the council but the Bill does not set out to implement the Finer report. I do not think either that such groups as the council help their cause by devaluing the first tentative step—one that has been asked for repeatedly by deputations and in motions tabled by hon. Members —that we are taking towards a child-centred divorce. There is the insistence within the Bill that, no matter what the circumstances of the case may be, the court's first consideration must be the children of the family. We are radically altering the focus of the courts when they direct their attention to maintenance.
The lobbies that are dismissive of this new approach and which claim that it is a charade—they are right to say that in many instances the financial situation of the custodial parent and child are in any event inextricably linked— should recall that they often complain about non-compliance with orders. Knowing that there is a greater readiness on the part of an aggrieved spouse to pay for his children than for his wife, it seems bizarre that the various lobbies should oppose a provision that will make it more likely that the obligations of an order will be met.
Surely the second family—the husband and second wife and their children—have a right to know that there may be financial light at the end of the tunnel, and that when the child or the children of the first marriage have grown up the first wife will not necessarily have to be maintained forever. When there is money within a marriage, the courts will be able to order a lump sum settlement. They will be able to do so in a different way if they take notice of the proposed direction that the children's interests must be considered first. They will not necessarily make any capital sums over to the wife, which so often leads, as my right hon. and learned Friend the Member for Aberavon, the shadow Attorney-General, has said, to the first wife dying intestate and to her new husband, who has the estate, leaving the children of the original marriage without the benefit of a settlement.
I reject the view that is put forward by some spokespersons that conduct is irrelevant when assessing financial liability. I understand that my hon. Friend the Member for Peckham (Ms. Harman) has argued that conduct should not be regarded. If a woman has saved money and has put it into a home on marriage, and she has the misfortune to marry an utter waster, a gambler and a 420 womaniser who squanders the money that she may have saved, I do not believe that the courts, in deciding how they should allocate the assets of the matrimonial home at the end of the marriage should disregard the conduct of the husband.
When a husband finds that he has a wife who has failed him — many such cases have recently been coming before the courts—and has taken a lover while having young children, I do not think it right that at the end of the day the courts should not take into account what took place. When a woman takes a lover and ousts her husband from the matrimonial home, the courts will rightly protect the children and allow them to remain in the matrimonial home, but it surely cannot be argued, when the children have grown up, that the courts should not take into account, when ultimately dividing the asset of the matrimonial home what took place earlier. I find this amoral attitude repugnant, and I make no bones about it.
§ Mr. Alex Carlile
Does the hon. Gentleman agree that to take conduct into account in the way set out in the Bill would result in many acrimonious disputes in the courts which would be similar to those that arose in the old cruelty divorce cases? Does he agree also that, if that happened, it would be extremely detrimental to the interests of the children and to the future resolution of possible dispute between the parents about the children?
§ Mr. Abse
When I was taking the 1969 Act through Parliament with the late Alec Jones, we had to include a clause in the then Bill—the provision is still within statute law — that all conduct must be taken into account. That is the existing statutory provision. The judges had more sense than the House. Over the years the judges have become aware of the obvious contradiction which the Bill's sponsors were forced to accept, and have sought to reach a position in which only gross and obviously disgraceful conduct should be regarded. The attempt is now being made to confirm the existing position. The Bill is not seeking to add to it. Indeed. in all probability it is restricting it. 1 share the view of my right hon. and learned Friend that it may be wiser for us in Committee to narrow the provision still further, rather than to leave matters to the judges. We should not, however, satisfy the feelings of justice within the community if we took the extravagant view, which is clearly being urged upon us in some quarters, that we should entirely disregard conduct.
I have insisted that the Bill has been wrested from the Government by the all-party committee, but there has never been any unanimity on the part of that committee on the issues raised in part I. There has been no pressure by way of motions in the House or from the all-party group, or from any other source, on behalf of those provisions The judges have been caused serious inconvenience. They have had the problem of trying to deal with the circumstances in which they have permitted divorce to take place within three years.
The circumstances that the Attorney-General referred to occur in individual cases, and that is well known to those of us who practise in the courts. However, as the right hon. and learned Gentleman said, we must have a sense of balance. There are individual cases of hardship. All of us who practise in the courts can recite cases in which the honeymoon was a traumatic experience rather than a blessing. There are hard cases in which a woman 421 or a man wants to get out of a marriage which she or he has contracted into on the ground that it has brought nothing but distress. That proposition has to be weighed against other consequences and I am not happy, for a number of reasons, about the proposition of quickly in and quickly out.
We know that the Lord Chancellor belaboured the bishops in another place. I do not know why I, such a determined and secular Jew, should so often in these debates have to take the side of the bishops. However, they do not seem to be able to look after themselves very well when faced with the tirades of the Lord Chancellor. The bishops have a stronger case than they have advanced.
I am not interested only in the general moral issue. The question of the children should always be in our minds no matter which principle may be in existence. The number of brides who go pregnant to their weddings should make us pause for a moment. It is not only in my constituency that pregnant women go to the altar. It happens throughout the country. Each year, about 70,000 births take place within the first 12 months of marriage. It is difficult to determine statistically what proportion of those children are conceived extra-maritally, but it is clearly a high proportion.
Again, what happens when a woman conceives within the first 12 months — perhaps in the eighth, ninth or tenth month? Is it being suggested that a woman could be divorced at a time when her husband did not know—or indeed when she did not know—that a child was on the way?
I have no personal experience of divorce, but I have had the blessing of the experience of parenthood. From looking at a little girl and a little boy—I have had both —I know that the little girl anticipates motherhood by playing with dolls. Even in these androgynous days we do not see little boys playing with dolls. They play with other things.
§ Mr. Ken Weetch (Ipswich)
They play with Action Man.
§ Mr. Abse
Yes, that is right.
Most men do not anticipate parenthood. It is when the child is born, and when it is a little older and they can play with it and relate to it, that the sense of parenthood often begins to develop; and with parenthood comes a modification of conduct. That has happened to most of us.
§ Mr. McNamara
Will my hon. Friend give way?
§ Mr. Abse
I hope that my hon. Friend will forgive me. I am bringing my speech to an end.
I believe that it would be dangerous to allow divorce to become easily available just at a time when thousands of children are born. That could result in fathers not being able to establish a relationship with their child. I am old-fashioned enough to believe that children provide an anchorage to marriage. They are not tension-making. In the long run, they are the people who cement marriages. We should not yield to the idea of "quickie" divorces in the first 12 months without having first pondered the question. I do not believe that the other place has pondered well enough—I hope that the Committee will do so—the likely consequences to the family structure in those early years.
422 I believe that we should support the Bill but, equally, that we should consider some of its provisions very carefully. I am glad that the Leader of the House has had the wit and sagacity to make use of the new procedure, so that matters can be reviewed.
My fundamental concern is with the children of second marriages. When two divorced people go to bed—so it is said—they bring with them two other people. They bring with them the memory of other marriages. There is a high incidence of breakdown in second marriages, of which 40 per cent. break down, and there can be little doubt that a considerable number of those marriages break down because added to other problems is that of the financial pressures that flow from the existing situation. I want the children of the second marriages to have a fair deal. There are good and sufficient reasons for us to give the Bill a fair wind, but we should also give further thought to its provisions, especially those in part I.
§ Mrs. Marion Roe (Broxbourne)
I am speaking in this debate not because I have been got at or lobbied by single-purpose pressure groups seeking to advertise themselves, but because I firmly believe that the family is the foundation of virtually every free society known to history. As a woman who has been married only once and has had the good fortune to remain married to the same man for 26 years—as the mother of three children, a housewife and home-maker—I have personal experience of the importance of the family in our society. I also believe that there is no finer career for a woman than to be a wife and a mother.
It is obvious that lifelong marriage is the basis of secure and stable family life and that, to ensure their well-being, children must have that background. However, we should not forget that mothers as well as children need a secure environment while their children are growing up, and that the mother's need for security continues thereafter because, by the time their children have left home, most women are at an age when they are financially insecure unless they are supported.
The past decade has seen an enormous increase in marital disharmony, and reforms in the divorce law have been demanded. When the Bill was published, a considerable number of women expressed their anxieties to me about the effects of the changes in section 25 of the Matrimonial Causes Act 1973. I can understand their reservations. I refer to part II of the Bill—"Financial Relief in Matrimonial Proceedings"—and the implications of the words added in the new section 25(2)(a) which were read out by my hon. Friend the Member for Twickenham (Mr. Jessel):the court shall in particular have regard to the following matters—(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire".Despite the contrary view expressed by my hon. Friend the Member for Twickenham, this new paragraph, taken in conjunction with paragraph (b), has caused great anxiety to many married women, especially the middle-aged. Let us take the case of a woman who has an excellent career with good prospects. She marries, and when she has 423 her first child she decides to give up her job and stay at home to care for that child and for other children later on. Twenty-three years later, when the youngest child is over the age of 18, that woman's husband decides to marry again and start a second family. Paragraph (b) requires a divorce court to considerthe financial needs, obligations and responsibilities which each of the parties … has or is likely to have in the foreseeable future".That must include the husband's responsibilities to his new family. While the Bill does not specifically propose that the welfare of the children of the second marriage is to be the paramount consideration, it is clear that, as the husband's second family expands, the importance of his first wife's financial requirements will be increasingly pushed into the background.
§ Mr. Maclennan
I do not dissent from what the hon. Lady is saying, but she must look at paragraph (b) in conjunction with paragraph (f) which speaks of the contribution made by the family.
§ Mrs. Roe
I shall deal with that later. I take the hon. Gentleman's point. In spite of the words in new section 25 2(f) which relate to any contributions made by looking after the home or caring for the family, I regard with some misgivings the additional words which are being added to the end of paragraph (a). If the new paragraph (a) is taken in conjunction with paragraph (b) it could be construed that the solution that a divorce court will be encouraged to find is that the first wife should become self-sufficient, get herself a job and start a new career in middle age.
I am not one of the advocates of the so-called meal ticket for life for all divorced women by I can fully sympathise with the vast number of middle-aged women in Britain who are deeply troubled and worried about the implications of the proposals in the Bill. When divorce courts no longer have a duty to place parties to a marriage, as far as is possible, in the same circumstances in which they would have been had the marriage not broken up, a woman such as I have described might find herself in an extremely unenviable position.
At the age of 45 or more it is extremely difficult to take up a career which has been left more than 20 years ago, or to start afresh in a completely new job. I know because I have done it. I gave up my job when my husband and I started our family. I became a full-time mother at home caring for my children when they were young. I then started a new career in middle age. One has to overcome considerable problems of adaptation in our modern technological world but I was extremely lucky in that I had the full support of my husband and family. It is not so easy when trying to do that on one's own.
How sad it would be if a middle-aged women might rue the day that she sacrificed her career with the commendable objective of looking after her new family home and caring for her children. Her experience as a mother and housewife is unlikely to put her in a better position than she would have been had she taken the decision to continue her employment. Her circumstances with regard to her occupational pension are just one way in which she would be worse off than if she were still married. As her pension would no longer be linked to her husband's, she would have to start her own. That would obviously mean that she would have a less comfortable retirement and old age. Would it not be right to think that 424 a wife who has participated in the accumulation of her husband's entitlement to pension or lump sum should have a right to share in it?
My noble Friend the Lord Chancellor has said recently that he is on the side of the first wife in marriages of long duration when there have been children. I agree that the interests of such women should be protected in every possible way. I realise that when one in three marriages end in divorce, the interests of the second wife are also important. However, it should not be ignored that the second wife marries with the full knowledge of her husband's first family. Nor do I relish the spectacle of young women, taking note of the predicament of their parents, forsaking the patterns of behaviour associated with normal family life. Young women today might be far less willing to forsake their careers to take care of their families in the natural way if they fear for their security in 20 years' time.
I am deeply worried that the fabric of family life might be exposed to the unwelcome pressures that I have described. I therefore ask my hon. and learned Friend the Solicitor-General for clarification of the clean break principle which is incorporated in the Bill. We in Britain have always valued individual liberty and respected family life. It is to be hoped that, in this age of high divorce rates, the liberty of the divorced woman and the integrity of the family will not be threatened. If we are to create a more stable and secure background in which future generations can thrive and withstand the pressures of pace in the modern world, we must ensure that legislation does not assist in breaking down family life but that it is used to strengthen it.
§ Mr. Alex Carlile (Montgomery)
I wholeheartedly agree with the Attorney-General's statements about the old depravity and hardship tests. I might claim to having practised, professionally, those tests more recently than the Attorney-General and the Solicitor-General. The depravity and hardship tests have recently become characterised by solicitors and counsel perforce wrapping up minor privations as exceptional hardship and trivial conduct as exceptional depravity. Whatever view the House takes about a one-year time bar or no time bar—whatever view it takes about whether there should be a time bar—it is high time that that unsatisfactory pair of tests was removed.
I have substantial objections to raise, one in general terms and three in particular terms. The general objection is as to the miserable narrowness of the Bill's scope. Part V is no more than a tenuous and small step into an area which needs close attention and wholesale review. It has been recognised for years that the law of domestic proceedings is in desperate need of thoroughgoing revision. Indeed, the Attorney-General realistically recognised that today. It needs that revision in regard to procedure as well as to content.
Daily in the High Court, the county court and the magistrates court, in open court and in chambers, overlapping jurisdictions are still exercised. Just over one year ago the Lord Chancellor rightly condemned what he accurately described as "forum shopping". We are all anxious about the sanctity of marriage but our concern for it should not allow us to overlook the unholy mess—for that it is what it is—in the law of divorce.
425 Day after day in the county court, judges have to reconcile apparently inconsistent statutes. That was shown most clearly by the recent decision of the House of Lords in Richards v. Richards in which their Lordships had to reconcile statutes which apparently dealt in a quite different way with the same set of circumstances.
As has been mentioned, as long ago as July 1974, the Finer report on one-parent families recognised the need for a unified family court. We should remind ourselves of that report's aims and ask why we are not putting them into practice today. It is already 10 years since Finer reported. At paragraph 4.283 the report says:In the light of the foregoing considerations, we set out the six major criteria which a family court must in principle satisfy:The latter point is extremely important. The report continues:
- (1) the family court must be an impartial judicial institution, regulating the rights of citizens and settling their disputes according to law;
- (2) the family court will be a unified institution in a system of family law which applies a uniform set of legal rules, derived from a single moral standard and applicable to all citizens;"(3) the family court will organise its work in such a way as to provide the best possible facilities for conciliation between parties in matrimonial disputes;(4) the family court will have professionally trained staff to assist both the court and the parties appearing before it in all matters requiring social work services and advice;(5) the family court will work in close relationship with the social security authorities in the assessment both of need and of liability in cases involving financial provision;(6) the family court will organise its procedure, sittings and administrative services and arrangements with a view to gaining the confidence and maximising the convenience of the citizens who appear before it.
It is fair to say that the Government have shown signs of really wanting to tackle the whole problem, possibly with something along the lines of Finer. My objection to the Bill is that it is far too early. We could not possibly disagree with any of the six aims set out in the passage that I have quoted from the Finer report, but we should be dealing here and now with the far wider problems of family law, and looking for something along the broad lines that Finer recommends. It is not helpful to deal piecemeal with important issues such as those that we are considering today, which should form part of an overall view. We are wasting a legislative opportunity to come to grips with family law.
I move from what is effectively a criticism of part V — its limited consequences — to some particular objectives to it. First, there is the problem of conduct. It is the considered view of almost all the bodies that have given great attention, in the best of faith, to the Bill, that the Bill included a drastic alteration in emphasis to be be given to conduct. I do not say that conduct should never be regarded.
The hon. Member for Torfaen (Mr. Abse), who was involved in promoting earlier legislation with such hard work and care, highlighted a particular type of case in which it would be monsterous not to have regard to conduct — a case in which conduct had led to the dissipation of family assets. The problem is that the Bill's provisions, and new section 25(2)(g) in particular, are such that there is a real danger that those nightmare cruelty cases, which the Attorney-General and Solicitor-General 426 will probably remember better than I do from their time as juniors at the Bar, will be repeated, not in open court but in chambers before registrars or wherever. There will be long issues that it will be difficult to resolve and there will be acrimonious hearings.
There is an illogicality between on the one hand saying that we must regard the interests of the children as paramount and on the other allowing such a dicussion of conduct to take place. If conciliation and resolution in matrimonial disputes are to be important aims, then paragraph (g) is a disaster area for the children of the marriages coming under consideration.
This is particularly so because the future of the children depends so much on divorced parents being able to cooperate for years after the separation about the arrangements for the children, and not just about who sees which child on Saturday afternoon. There will be financial arrangements, schooling, problems of what type of further education, or of the job opportunities to which they can go. They may have to consent to the marriage at an early age of the children. In issues as vital as those, if conduct is to be litigated at the length that is inevitable following the enactment of paragraph (g), these children will be gravely affected.
The test enunciated by Lord Justice Ormrod and approved by Lord Denning in Wachtel v. Wachtel was a test founded on judicial rhetoric and to that extent was unsatisfactory because there was a great deal of uncertainty before and to a lesser extent after that enunciation. Those in practice in the divorce courts fear that the Bill, if it is enacted, will cause a further and extremely lengthy round of litigation until once more judicial rhetoric takes a grip on legislation and a test, perhaps the wrong one, is enunciated once again to deal with the position.
There is then the point about earning capacity. I do not feel that I could do better justice to a subject that has been dealt with with such skill and eloquence by the hon. Member for Broxbourne (Mrs. Roe). I take on board every point that she has made and I could not better what she said, but I shall add one or two points. We should not forget that the most recent research by one of the major insurance companies showed that the value of the work done by a mother of two in the home is equivalent to £227 a week. When we look at earning capacity and hear these whingeing second-time husbands, let us not forget that the wife has been working, doing a job that should in some instances have been paid far better than the husband's job was ever paid, while they were living together.
Let us also not forget, as has been mentioned earlier, the paucity of research into what the effect of paragraph (g) would be. We should not allowed such a provision to become part of the law until we know what its effect will be.
The hon. Member for Lancashire, West (Mr. Hind), who was in the House earlier, made an intervention in which he put forward a view contrary to that of the hon. Member for Boxbourne. He said, in a tone of criticism and obviously not supporting the provision, that it does not mean anything different, but is the present law wrapped up in different paper. Some may argue that he is correct. If we are wrong in believing that the Bill will alter the position of wives substantially, and if it is right that the Bill does not make any difference to the law as it stands, in those circumstances as well we should not be putting these provisions on the statute book. The worst sort of 427 legislation is cosmetic legislation, and the House should not be wasting its time on it. On both counts, paragraph (g) is something that, in agreement with the majority of the bodies that have made representations on the subject, we should not countenance.
§ Mr. Jerry Wiggin (Weston-super-Mare)
I must declare an interest in that I have been through the mangle of divorce proceedings. If the hon. Member for Torfaen (Mr. Abse) had suffered similarly, he too would feel a certain passion about these matters. It would be wrong for me to speak on those grounds in this debate. However, my complaints as a citizen are much echoed wherever I go by those who have been divorced. I do not feel that I have had justice. I have no authority to quote my ex-wife, but I have good reason to believe that she feels the same, and thousands like us complain about the present state of the law. I am aware that from any court, one party usually goes away feeling dissatisfied, but there must be something wrong when both parties go away dissatisfied.
My hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) has been muttering about the wisdom of Solomon for much of the afternoon, and I am the first to accept that a fair and sensible form of justice in the extremely difficult circumstances of divorce is an extraordinarily difficult solution to find. On the other hand, there can be no doubt that an aggressive person who wants a divorce and proceeds to file a petition places the other half in a difficult spot because, no matter what happens, large costs will be incurred and the marriage will not be put back together. That is the advice that I was given, and it is the advice to which I submitted.
There has been much discussion about conduct, and I do not wish to relate it in any way to my case. However, many people say to me how wrong they feel the interpretation of the law is today. The hon. Member for Torfaen spoke most eloquently, and I agree with every word that he said about conduct, but surely this Bill is simply enacting what the courts have been practising. It is wrong to regard conduct only in the way it is regarded now. In cases where a woman is deserted by her husband, who goes off with someone else, after she has brought up the family, surely conduct should be a part of the settlement. I do not agree with the hon. Member for Peckham (Ms. Harman), who believes that this should not be taken into account in the financial settlement after the breakup of a marriage.
There is something that I can say that not many other hon. Members who are here can say, because they are lawyers. The legal costs in divorce have become outrageous. [HON. MEMBERS: "Hear, hear."] The chances are that the woman will not have had much to do with the legal profession before. Indeed, many men will not have been to a solicitor before. At a time of high passion and emotion, there are people—I will not name them, but they are well known in the profession—who use their position to charge outrageously, write letters that need not be written, prolong proceedings unnecessarily—in my case, two years—and behave in a manner that puts the whole legal profession in disrepute.
The responsibility for dealing with the matter lies, I believe, with the judges. I am told that they are frequently unable or unwilling to deal with the question of reasonable costs. I hope that my right hon. and learned Friend will seek to do something about this matter, because, although 428 the issue of legal costs arises in every sphere, in this respect it is an outrage. In part, that is due to the fact that it is necessary to use the existing legal system. I agree with those who believe that, instead of preparing this Bill and taking so long to bring it to the House, work on the family courts would have been a far more profitable exercise. I believe in particular, that attempts at conciliation should always be forced on the parties concerned, and I wholeheartedly concur with the recommendations that have just been read out by the hon. Member for Montgomery (Mr. Carlile).
Divorce is a horrible disease that is catching, and it is spreading far too widely. I do not believe in it. I believe that I have been a victim of it. Socially and morally, we have come to accept it as a routine of everyday life. In my opinion, that is wrong. There is nothing that I can find in the Bill that will help me with my complaints or help the institution of marriage. What we are doing today w ill raise false hopes in many hearts. Moreover, we are wasting time, and wasting parliamentary time is something that we constantly complain about. In my view, we have no business producing legislation of this kind when we have so many more important things to do. I shall not, therefore, support the Government tonight.
§ Mr. Ken Weetch (Ipswich)
I want to make a short contribution to the debate, because much of my constituency work and problems stem from marriages that have broken down. In the debate in the other place the Lord Chancellor said that when a marriage breaks down it is a "calamity". He used the word "calamity", and he was right to do so.
The proposals in the Bill make one realise that legislators attempt to rush in where angels fear to tread. No legal magic wand can be waved to dispel the difficulties. I was interested to hear the hon. Member for Weston-super-Mare (Mr. Wiggin) say that this legislation did not fit his particular circumstances and did not offer any help. The trouble is that there is no legislation to cover every condition. Divorce and marriage breakup give rise to such a bewildering and complex difference of cases that sometimes it is impossible to discern any pattern at all. Of all the cases that have come to me, as a rank and file constituency Member of Parliament, no two have been the same. So legislation which aims to be a general body of principle cannot be satisfactory in all quarters.
To get rough justice in some cases is probably as much as one can hope for from legislation. We are in danger in Britain of expecting too much from legislation.
I look at the issue as a layman, and some of the technicalities are quite beyond me. Nevertheless, it strikes me that legislation should seek to achieve three objectives. First, when there has been an irretrievable breakdown in a marriage, procedures should be such that both parties can get out of the contract with as much dignity as possible. Secondly, of critical importance, and a first priority, must be the welfare of the children, especially if they are very young children. Here, legislation is of little relevance, because no matter what one puts in an Act of Parliament it will not prevent the mother and father from using the children in a most vindictive way, to carry the argument against the other party. The children are used as pawns in a very dirty game. Thirdly, there must be a just and equitable financial settlement, based on as fair an 429 assessment as reasonable people can make. That is difficult, but trying to achieve all three objectives is often impossible.
Much of the argument, in financial terms, arises when there is something to divide. If there is a house, or savings, bits and pieces that are worth something, they give rise to bad feeling and arguments. However, it is much worse when there is nothing at all to divide, when the only thing of value is a council tenancy and the problem is who has the right to live in a council house. That gives rise to desperate problems, and I mean "desperate". I have seen a married man suddenly lose his wife and his tenancy, with no place in which to store his bits and pieces. I have seen such people walking the streets while I sit behind my desk powerless to recommend anything. Divorce is painful for the rich, but, my godfathers, it is painful for the poor. Let us make no mistake about that.
Most of the problems which I, as a layman, see arising from divorce fall under the headings of children and money, usually in that order. The Bill has taken a lot of stick. I have listened to everything that has been said, but it deserves some credit, because it is a reasonable attempt to solve some of the problems. Whether it succeeds is another matter, but the attempt has been made in good faith.
It is encouraging to notice, for example, that the first subsection in clause 3 puts care of the children first. I have read this legislation carefully, and some of that which has gone before, and it is encouraging to see that provision, because children are usually the innocent parties of the disruption that takes place.
It is correct, too, to abandon the principle that the parties can be placed in the same financial position that would have obtained had the marriage not broken down. That is impossible to achieve and it always has been. In my experience many injustices and anomalies have arisen because the courts have been forced to try to achieve that and succeeded only in getting into an incredible mess. The injustices go on and on. It is far better to be flexible and for the court to consider the standard of life enjoyed before the breakdown of the marriage as a factor. That will help to create a sounder framework.
I have considerable doubts about that part of the proposed new section 25 which relates to the conduct of the parties. One of the factors to be considered isthe conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it".I am advised that the conduct of the parties is taken into consideration by those who try to fix a settlement, although often it is not formally referred to. What has to be taken into consideration is whether the conduct is in some way "obvious and gross". If section 25(2)(g) is enacted it will open up a veritable Pandora's box of difficulties. I might be rash enough to make a rough and ready judgment about who was at fault, although I would never say so. It would go through my mind, but, make no mistake about it, anybody who does that can be as wrong as he can be right. It is difficult to allocate blame. If that section is not considered carefully, we shall be starting on a journey through a minefield.
What does "inequitable" mean? I can imagine some lawyers discussing that for days. They argue for longer than that over much more simple things. That will take up 430 much time and money. With the wisdom of Solomon it might be possible to discern who is at fault, but I doubt whether ordinary mortals could do so. I doubt whether it is worth trying to do so at all, because it will give rise to more trouble than it is worth.
I approve the reduction from three years to one year in the time when a divorce can be put in hand. I have never taken the view that easier divorce procedures are the cause of more divorces. In the past people have hung on in marriages that were a prison, and in more civilised times there should be something better. In my constituency I often hear people say that marriage should be worked at and given time, as if to be bound by the letter of the law will make things better and somehow offer salvation. I take the reverse view. I have observed over the years that many marriages totter on and on when both sides should have given up years before for the benefit of each party. However, I admit that that is one person's experience as against another's.
This is a complex measure and much of it will need further debate. It must be scrutinised critically in Committee. However, this Second Reading debate is concerned with principle, and that is always a matter of this and that. On balance, I am disposed to support the Bill.
§ 7.7 pm
§ Mr. Roger Sims (Chislehurst)
My right hon. and learned Friend the Attorney-General and the right hon. and learned Member for Aberavon (Mr. Morris) explained and analysed the Bill at the beginning of the debate in a way that one would expect from such distinguised lawyers. However, the hon. Member for Ipswich (Mr. Weetch) and others have done us a service in reminding us just what we are talking about. They have injected the human element. They have reminded us that we are talking about people.
It is just as well that we should remember that we are talking about the break-up of marriages and the disintegration of families. We are discussing how two people, having pledged themselves to each other before witnesses to become a married couple, who may have started a family, reach the point where they decide to break that pledge. We are discussing how and when they should do that, what conditions should attach, and what the subsequent arrangements should be. I am not trying to be emotional about this, although one could become so. Nor, I hope, do I sound moralistic, although there are strong moral issues involved.
The House, like the Law Commission, normally deals with legislation about the technicalities of the organisation and regulation of our society. We are considering today an extra dimension. The foundation of our society is the family, which is the product of marriage. We undermine it at our peril. My fear is that marriage would be undermined by accepting the recommendation of the Law Commission—embodied in clause 1—to reduce to one year the time that must elapse after marriage before divorce proceedings can commence.
Although I disagree with the Law Commission's recommendation, I commend some of the observations in its report. Paragraph 2.13 states:In social terms we are concerned about the attitudes people have towards marriage and divorce. We believe that it is in the interests of society that the institution of marriage be respected and that divorce be regarded as regrettable. It follows that there is an obvious danger that any move which would appear to make divorce easier to obtain would be seen as further eroding the 431 stability and dignity of marriage … a restriction on divorce 'is a useful safeguard against irresponsible or trial marriages and a valuable external buttress to the stability of marriages during the difficult early years.'
In paragraph 2.15, the Law Commission states:what is in issue is the effect of a change in the law.That is relevant when trying to draw comparisons with what applies, for example in Scotland. Paragraph 2.15 continues:It is reasonable to suppose that the very making of a change would not only draw attention to the matter but would create, at least, an impression that divorce had been made either easier or more difficult.
Making divorce easier must lead to a more casual and less responsible approach to marriage. In the marriage service, the Church of England speaks of matrimony as something that should not be undertaken "unadvisedly, lightly or wantonly". How right, but what will be the effect of clause 1 if it is enacted?
This issue was the subject of some heated exchanges in the other place between the Lord Chancellor and some of the bishops, and in particular the bishop of my home diocese of Rochester. There have been times, particularly during the past four years when I have had some involvement with the Home Office, when I have had occasion to criticise the bishops for their inclination to pronounce on issues on which I felt that they were ill informed. I know that my hon. and learned Friend the Solicitor-General has some sympathy with my point. However, this time I believe that the bishops are talking about a subject that they know about, and my sympathies are with them.
I regret to tell my right hon. and learned Friend the Attorney-General and my hon. and learned Friend the Solicitor-General that their explanations and speeches will not be that widely studied. The Bill will not be examined line by line outside the Chamber. The message that will go out is that in future couples can get divorced in one year. Indeed, the Law Commission comments that when it issued its first working paper, the Daily Mirror carried the headline "The real quickie divorce", and even The Times said:Commission favours easing curbs on divorce".
§ Mr. Fairbairn
Perhaps my hon. Friend can advise me, because I do not know, but before the concept of breakdown of marriage was the ground for divorce, in England could not someone get divorced, or start divorce proceedings the day after the marriage, on the ground of adultery?
§ Mr. Sims
With respect, my hon. and learned Friend's intervention is irrelevant to my point. I am talking about the situation now, and the effect of enacting clause 1. The consequences of the change proposed are very serious. The issue is too serious and important to be decided by the Law Commission—which consists, after all, of only five people—or with respect, by a Standing Committee. Therefore, I am glad to have the assurance of my right hon. Friend the Leader of the House that at a later stage in the Bill's proceedings, there will be an opportunity in some form or another to debate clause 1 on the Floor of the House. I earnestly hope that in keeping with tradition, the issue will be decided on a free vote, as it cuts across party lines.
Having spoken in those terms, I should add that I accept straight away that marriages break down. Alas, we are all imperfect, and all make mistakes. Of course relationships 432 will be subjected to strains and stresses that eventually become unbearable. The point may well be reached at which, in the best interests of the partners and the children, the two individuals should lead separate lives.
Even if that stage is reached fairly early in the marriage, judicial separation—to which there is no bar—is open to the parties and can give all the reliefs that they are likely to need, other than the freedom to remarry straight away. However, given that some marriages break down irretrievably, divorce is, of course, the only recourse. Thereafter, the problem is that there should be some equitable arrangement.
The hon. Member for Ipswich referred to rough justice. One of the organisations lobbying us calls itself the Campaign for Justice in Divorce. That title shows some wishful thinking. Can there really be justice in divorce? Justice for whom—for the husband, the first wife, the second wife, the children of the first marriage or the children of the second marriage? The fact is that in 99 cases out of 100, what is justice for one is injustice for another.
Some years ago I sat as a lay magistrate. A divorced wife would complain that she was not receiving her maintenance. The husband would then come before me explaining his commitments and the fact that he had married again. He would tell me his income. On seeing the figures, one would realise that no course of action would provide justice for all the parties. We all have constituency experience of cases in which, for example, the second wife would like to work. She may well be a qualified person, but she is reluctant to work, because she thinks that if she does so, the first wife will apply for increased maintenance and, in effect she will be supporting her. We know of husbands who have been paying maintenance for years to an ex-wife who is capable of earning some living for herself, but is unwilling to do so. Of course, we are all familiar with the problems of the divorced wife with children. Her problems are more than simply financial.
Some of the later provisions in the Bill make some effort to meet those difficulties. I do not believe that the clean break clause is the revolutionary change that it is portrayed to be in some quarters. It simply involves a further facility being open to the court, which will be used solely in appropriate circumstances. However, it has inherent dangers. There is danger that the divorced mother may feel that she will have to go out to work sooner than she would otherwise have done. She will therefore pay less attention to the children, and that would negate one of the Bill's aims—that the children should be given the first consideration.
It is extremely important that the Government should carefully watch the effect of the change. I draw attention, in particular, to the first recommendation in the Law Commission's report:Any future legislation dealing with the financial consequences of divorce should be subject to continous monitoring and periodical reports to Parliament.In the Bill I see no reference to either monitoring or reports. It may well not be appropriate for such a reference to appear in the Bill, but I hope that my hon. and learned Friend the Solicitor-General will say that the Government intend to comply with that recommendation.
Given that the welfare of the child is the first consideration, I hope that the Special Standing Committee will provide us with an opportunity to look very carefully at exactly what that means. The right hon. and learned 433 Member for Aberavon pointed out that "first" could mean all sorts of things. I shall not repeat the argument, but it is important that the face of the Bill should clarify exactly what "first consideration" means. For reasons that I have never been able to understand, the courts are supposed to be guided entirely by what is in the Act and are apparently not supposed to refer to Hansard.
I hope too that the opportunity may be taken to explore several other problems, including that of the "child of the family". This has caused confusion in the past in circumstances where a husband marries and acquires children from his wife's first marriage. If the second marriage breaks down, such a child is apparently to be regarded as a child of the family. There is an argument for making a distinction between a child of the marriage and a child of the family; one child is acquired, as it were, rather than a product of the marriage.
Clauses 3 and 8 change the Matrimonial Causes Act 1973 and the Domestic Proceedings and Magistrates' Courts Act 1978 by specifying matters to which the court shall have regard. Conduct is included. It should be made clear whether this is purely conduct within the marriage or more widely. If it is the latter, it opens up a wider sphere than perhaps was intended.
I should like to endorse warmly everything said about the absence of any reference to conciliation in the Bill. I thought the interdepartmental report was inadequate and disappointing, especially in the way in which it appeared to reject out-of-court conciliation. I am glad that further inquiries are going on, but this suggests that there will be more delay before something specific on conciliation is introduced.
In an intervention, my hon. Friend the Member for Ynys Môn (Mr. Best) suggested that pilot projects should be established. A number of projects are already in existence. I shall not detain the House by yielding to the temptation to say more about the work being done in the Bromley conciliation service in my constituency, save to point out that 60 per cent. of the cases are conciliated. If the parties can be helped to agree on the issues which follow from divorce, not only will it save an enormous amount of time and money but it will create a far better atmosphere in which the children may develop in a split family.
The Government should realise that conciliation is important. It is urgent. Again, since we are following the recommendations of the Law Commission, may I remind my hon. and learned Friend the Solicitor-General that one of its recommendations was thateverything possible should be done to encourage recourse to conciliation rather than litigation.Part V of the Bill opens by explaining that itmakes fresh provision to improve the distribution and transfer of family business between the High Court and the county courts.As other hon. Members have said, once again the Government have avoided action on family courts, which has been a crying need since Finer, if not before. I know that the Lord Chancellor has set up a new Government study on this but one has the suspicion, particularly with its timing, that this is just another gesture to ward off criticism for lack of specific action on this matter.
There was an earlier discussion document on family courts. Nothing has flowed from it and it seems to have disappeared. I appreciate that there are many different 434 ideas as to how a system can be devised, who will sit in the family court, what exactly its powers will be and what type of cases it should handle. These difficulties are no excuse for nothing happening. I am an active member of the British Juvenile and Family Courts Society which has a working party trying, as an organisation without vested interests in various professions, to produce a scheme which will prove workable.
I intend to support the Bill tonight to enable it to be scrutinised by the Special Standing Committee procedure, which is very valuable, and to be debated in detail. I have expressed my anxiety over some aspects. When the Bill returns to the Floor of the House I shall need far stronger arguments than I have heard so far to persuade me to support clause 1.
§ Ms. Harriet Harman (Peckham)
The Bill is supposed to remedy injustice, but I believe that it will create injustice. At the moment it is possible to get a divorce if the marriage has irretrievably broken down. If someone applies for a divorce within three years of the marriage, one has to show that not only has the marriage broken down irretrievably but that the continuation of the marriage will cause exceptional depravity or exceptional hardship. It is that flexible rule that the Government plan to replace with an absolute bar, that is, that one cannot get a divorce, irrespective of the circumstances, within the first year of the marriage.
I shall give three examples of what has happened in the past. What if the wife decides that the marriage was a terrible mistake and that she does not want to continue it? She wants to marry someone else, goes and lives with him and has his baby, all within the first year of marriage. That has happened. In that circumstance it is nonsense to tell the parties, "Give it a year and see whether it will work." The marriage has clearly broken down irretrievably.
What if the husband discovers that he is homosexual? Again, that has happened. It is nonsense in that circumstance to say, "Give it a year and see whether you make a go of it." What if the husband has severely beaten the wife? Are we to say to the wife, "Give it a year and see whether it will work out"? It is wrong to say that under no circumstances can there be a divorce within one year. There should not be a time bar. People would still have to show irretrievable breakdown to get a divorce, and one of the grounds for irretrievable breakdown. The fears that having no time bar will undermine the institution of marriage are unfounded.
§ Mr. Humfrey Malins (Croydon, North-West)
In the example of the lady who decided after a very short time that her marriage was a disaster, and went to live with another man and had his baby, all within the first year, the hon. Lady said that divorce should be able to take place. She then said that the grounds of divorce ought to be applicable in that set of circumstances. What ground and what guideline would be available to the lady in that example?
§ Ms. Harman
The ground would be that the marriage had irretrievably broken down. The husband could petition for divorce possibly on the ground of unreasonable behaviour or adultery.
In regard to whether the absence of a time bar would undermine the institution of marriage, let us take the 435 example of Scotland. The former Solicitor-General for Scotland, the hon. and learned Member for Perth and Kinross (Mr. Fairbairn) has explained to us that the figures show that in Scotland, where there is no time bar, divorces within the early years of marriage are less frequent. Therefore, there is no cause and effect between the time limit within which one can get a divorce and how long marriage lasts.
We should remember that divorce is a consequence of marriage breakdown. It is a symptom of a marriage having already broken down and not a cause of marriage breakdown. Therefore, I oppose the Government's proposals in part I. I am not happy with the current three-year rule, but I am completely against the idea of an inflexible one-year rule.
The most important part of the Bill is that which deals with maintenance. The assumption behind it is that we must stamp out the "alimony drone" and end the "meal ticket for life". There is no such thing. Only limited research has been done, but research by the centre for socio-legal studies in Oxford has found no evidence of the "alimony drone". The real problem is not a handful of well-publicised cases where a woman gets a big out-of-court settlement from a wealthy husband, but the overwhelming majority of women and their children who get nothing.
We must get maintenance in perspective. Only 4 per cent. of divorced wives rely wholly on maintenance payments—the rest live on supplementary benefit or on their earnings, often from low-paid part-time work. As many as half of the orders made by the courts for maintenance for a wife and child together amount to no more that £10 a week. The hon. Member for Torfaen (Mr. Abse) spoke about the stranglehold of the first wife on a husband. Some stranglehold, if 96 per cent. of those wives depend on supplementary benefit and their own part-time earnings. Some stranglehold, if half of all the orders for a wife and child are for less than £10 a week. It is a nonsense. It is a travesty that the Government should close their eyes to the real hardship and poverty of many divorced wives and their children, in order to pursue that mythical creature, "the alimony drone". The effect of the attempt to catch "the alimony drone" may hit at the already struggling first wife.
I now wish to discuss the clean break. As an abstract theory, the idea that two partners at the end of their marriage can go their separate ways —being separate, independent and equal—is absolutely fine. But what if there are dependent children? There is nothing in the Bill that says that the clean break will not apply to divorced wives with dependent children. The Bill has already been through another place, so the omission could have been noticed and could have been remedied, but it has not. So let us not believe that the clean break will not hurt dependent children—that is only a pious hope unless it is written into the Bill.
Saying that the end of the marriage ends obligations and that that amounts to equality, ignores the effect that marriage, in the real world, has on the earning power of the two spouses. It ignores the division of labour in the home. I wish that matters were not as they are, but in the real world the woman has the primary responsibility for looking after the home, looking after the children and looking after the husband. Her work at home helps the husband in his job. It enables him to do overtime. His wife collects his children from school; he is able to develop his 436 career. The wife's home responsibility confines her eh her to part-time work or to work near to her home. That limits her job opportunities.
Indeed, the wife is encouraged by many people to put her work second to her husband's work — she is encouraged to put her husband first. In doing that, she has directly contributed to the husband's earning power—not only at the time that he is earning, but to his future earnings. At the same time, she is directly limiting her own earning power.
Even if the children have grown up, it is still an unequal position. I agree wholeheartedly with the points made by the hon. Member for Broxbourne (Mrs. Roe). Even if the children are grown up, after many years of marriage it is wrong to say that, because the husband is earning, the wife can go out and earn. She has contributed over the years to his earning power and has limited her own.
I sometimes think that the way in which we describe dependent wives is insulting. We talk in terms of financial dependence — but we overlook the dependence of husbands. Many husbands depend on their wives to look after their children, to keep the home going, to keep the shirts clean and to put the food on the table. We should look more equally at the concept of dependence. The Government say that the woman should stay at home and put her family first, that the relationship between mother and child is all-important, that we do not need nurseries; and they also obstruct proposals for equal pay. Yet, on the other hand, the Bill calls for equality. They are trying to have it both ways.
What about the arguments put forward by some hon. Members that a man's responsibilities may grow and he takes on new responsibilities with a new wife and more children—and supposing that the wife has a boy friend supporting her. In that case he can always return to the court and ask for the maintenance order to be varied. If there is a change in either his or her circumstances, under the present law he can go to the courts and say that he cannot manage the payments. Half of those who have written circular letters to hon. Members about their difficult circumstances—the men with second wives—should go to the courts and explain their position fully and get maintenance orders varied.
§ Mr. Best
Does the hon. Lady accept that the position is not quite so simple? In many cases an ex-husband will not obtain legal aid for returning to the court time and time again. Such husbands find that a grave financial drain. But an ex-wife can often obtain legal aid and can, therefore, go to the court. I do not derogate much of what the hon. Lady says, but I hope that she will acknowledge my point. Is she aware that the Oxford study that she quoted earlier, which she used as statistical evidence, is based on the evidence of only 52 men and 119 women on the question of maintenance?
§ Ms. Harman
I shall return to that research later in my speech. The hon. Gentleman should recognise that the divorced wife is eligible for legal aid because she does not have any money. The husband is not eligible because he does have money.
§ Mr. Hind
Does the hon. Lady agree that there has been a great deal of discussion about the position of the second wife who has no earning capacity? Perhaps she has to stay at home and look after the children. Her position 437 will not be altered by the Bill. It is far from being the second wife's charter. The Bill clearly recognises the need of the first wife for support.
§ Ms. Harman
Either the Bill does nothing, in which case there is no point in voting for it, or it does the wrong thing—which I believe it does, and so I shall not vote for it.
The courts have moved away slightly—although not as much as I want—from having as central in their considerations the question of conduct. Yet the Bill provides for them to take conduct into account, if it would be inequitable to disregard it. That puts conduct firmly back on to the centre stage. Whatever Lord Scarman or any other of their lordships have said—either in the courts or privately to the Attorney-General—about how they think the scenario will emerge, I shall tell the House what I believe will happen. The husband will tell the solicitor that he has plans to marry again, that the future wife is young and wants to have children and that he does not want huge maintenance bills. The solicitor will tell him that the courts must take conduct into account. He will advise the husband that if he can dredge up misconduct allegations against the first wife, and put together an affidavit that shows that she was a thoroughly unworthy creature, that may help reduce the maintenance bill. Unfortunately, that provision gives the husband a financial vested interest in slagging off his first wife in court.
That cuts only one way. The wife will not have a financial vested interest in slagging off the husband in court. However badly he has behaved, she cannot get more than he can afford to pay. Therefore, the provision cuts entirely one way.
The Government have recognised in their arguments for abolishing the three-year rule how damaging mud-slinging is. They have recognised how subjective are the judgments that the courts have been asked to make, so why are the courts still being asked to make subjective judgments this time on maintenance?
Children will suffer in two ways if the maintenance provisions of the Bill come into effect. First, they will suffer because of the mud-slinging that the Bill will institutionalise. The House has heard the warnings of the Law Society in this respect; it is in a good position to know, since its members will be advising the husbands. Secondly, the children will suffer financially. The standard of living of the children cannot be separated from the standard of living of the spouse in whose care they are. How is it possible to punish the divorced wife for her misconduct by reducing her maintenance, and not at the same time punish the children who live with her, and for whose care she is primarily responsible? It is not as simple as looking at who has deserted, or who has committed adultery. I wish that it were that simple, but marriage breakdown, and the deterioration of relationships, are a complicated business. It may be a question of people growing apart, or changing and not being able to get on any more. The idea that one can ask judges to sit in judgment on people, and decide whose conduct is right and whose conduct is wrong, is a terrible one. I hope that I never find myself in that situation with a judge looking at my conduct, and deciding whether he thinks that I have behaved properly in a marriage. Perish the thought. The courts should not consider conduct. The needs of the two 438 parties and their contributions to the marriage should be taken into account — including looking after children, washing the shirts, getting dinner on the table and picking up the children from school, and consideration should be given to the resources available in a marriage.
The House is being asked to legislate in ignorance. I have asked numerous parliamentary questions about the financial position of spouses after divorce. The Lord Chancellor has admitted that information about the consequences after divorce is not available. The study of the socio-legal centre at Woolstone college, Oxford, referred to by the hon. Member for Ynys Môn (Mr. Best) was cited by the Lord Chancellor as the only evidence of what happens after marriage breakdown. I admit that it is a small-scale study. No larger study exists because the information is not available.
The House is asked to take a leap in the dark by changing the law without knowing what the present situation is, let alone what the future is likely to be. The research information in the Oxford study supports what I say, and shows that matters will be made worse if the Bill is enacted.
Much has been made of the fact that the Bill is based on the proposals of the Law Commission. Hon. Members appear to have overlooked the fact that the Law Commission said, firstly, that there should not be piecemeal legislation in this important matter, and, secondly, that there should be more research.
The claim has been made that the Bill is child-centred. It is not. There are two lines of pious hope about putting the needs of the children first, but no suggestion has been made for a framework within which to do that. As I have said, the effect of the Bill will be to penalise children financially by penalising the parent who looks after them, and to harm the children emotionally by encouraging the parents to be at loggerheads.
The Bill fails to give the courts guidance on the costs of bringing up children, although that information is available. The Lord Chancellor's Department should issue circulars to the courts giving guidance on the cost of bringing up a child. I wonder how many judges, when hearing applications for maintenance, have a clue about what it costs to buy the many things that children need.
In place of this Bill, a Bill should have been introduced instituting a conciliation procedure. The parties would then have been encouraged to come to an agreement about the arrangements for children, and how scarce resources should be divided. Secondly, there should be a system of family courts. Thirdly, where there are two households and perhaps only one main income, it should be recognised that there is not sufficient money to go round. Although the Government have not provided in the Bill for increased child benefit or single-parent benefit, it would have been possible to make such provision. If the Government had proposed in the Bill to alter the system of private maintenance, recognising that that represented only a tiny fraction of what divorced wives rely on, and had then substantially increased benefits in line with the cost of bringing up children, such provision might have been acceptable. The Government have not chosen to do that.
Where a husband can pay for children, I believe that he should do so, and should be made to do so. Enforcement procedures for maintenance are wretched and ineffective. Where the husband cannot pay, which will, more often than not, be the case, provision should be made for adequate benefits. Better still, the state should pay the wife 439 and the child, and endeavour to reclaim the amount from the husband, if he is able to pay. Such provision would eliminate the terrible bitterness involved in husband and wife arguing about money in the courts year after year. The Bill goes in the wrong direction and will increase bitterness. It will further impoverish divorced wives and their children. I shall vote against the Bill, and I hope that my hon. Friends and Conservative Members will join me in the Lobby.
§ Mr. Nicholas Fairbairn (Perth and Kinross)
I imagine that you, more than any other hon. Member of the House, Mr. Deputy Speaker, will not be surprised to see that a union between me and the hon. Member for Peckham (Ms. Harman) is an unlikely marriage. When she began her speech I fell in love with her, when she was half way through it, I married her, but unfortunately, as so often in marriage, we drifted apart, and by the end the matter had irretrievably broken down.
§ Mr. John Prescott (Kingston upon Hull, East)
The voice of experience.
§ Mr. Fairbairn
If I may say so to the hon. Gentleman, it is from experience that one should talk—something that he does not always do himself.
Perhaps a Scot may briefly, modestly and humbly make some observations on the Bill. Although there is a Scottish section which concerns foreign marriage, of which I heartily approve, and its financial consequences, I do not wish to dwell on the Scottish aspects. I hope that my right hon. and learned Friends will not take it amiss to receive advice from a tartan junior to their rear.
The main thrust of the objection to the Bill has been in part I, and the concept of the 12-month rule. I think I am right in reminding the House—it is an odd fact—that, in the Royal Commission of 1948 which considered divorce, there was a minority judgment by one man — Lord Walker, who was the Scottish judge on the commission. He proposed — a proposal that was rejected by everybody else—that it was humbug to maintain that a criminal event, be it adultery, buggery, insanity, cruelty or desertion, had to be identified to justify claiming a decree of divorce. He said that those were surely mere claims—that there was no marriage and that the contract which people hoped would be "until death do us part" had come to an end.
Oddly enough, it was the English who eventually, without giving credit to the great Lord Walker, entered first into the concept of irretrievable breakdown as the ground for divorce. It was followed some time afterwards by the Scots who, timidly, as the hon. Member for Torfaen (Mr. Abse) rightly said, were not quite willing to go all the way.
Let us be clear about what happened. Before that step was taken, it was possible to start proceedings for divorce on the day of one's marriage. Indeed, I was involved in a case in which the bridegroom indulged to such an extent at what was called the marriage breakfast that it fell to the best man—perhaps I should call him the better man—to undertake the consummation. What he did not anticipate was that the consummation would take longer than the unconsciousness of the bridegroom.
The bridegroom immediately said, "That is the end of it. I shall have nothing more to do with you," and it created 440 a difficult professional judgment for me as to what to do because he could not divorce on the grounds that the marriage had not been consummated, nor could he sue for nullity because he could not claim that he was incapable of consummating it. However, the law of Scotland, as it usually does, found a way round the difficulty so that justice could be done, and fictional non-consummation was invented for the law.
It it was all right for the English and Welsh to divorce on the grounds of adultery, buggery, insanity, cruelty or desertion the day after one was married—indeed, on the day on which one was married—until 1969, what is wrong with allowing that now? In Scotland we have never had any time limit, partly, as the hon. Member for Torfaen said, because they did it first, and partly because they underwent, as my hon. Friend the Member for Weston-Super-Mare (Mr. Wiggin) said, the judgment of Solomon. However, let us not forget what that judgment was. The judgment of Solomon was not to divide the baby but to threaten the injustice of dividing the baby so as to give it to the right woman.
What we have is a compromise, and I hope that it is helpful when I say that all the chess that we have seen between the bishops and the pawns—I must not call the Lord Chancellor a pawn—in another place has been spurious. It is a help in the United Kingdom for us to have two systems of law—to be able to see one against the other—and there has been no difficulty in Scotland.
Even after we altered the grounds of marriage from the canonical sins — of which adultery required criminal proof in Scotland because it was a canonical offence, to be proven beyond reasonable doubt—we had no lime bar and no difficulty. As I pointed out in an intervention to the right hon. and learned Member for Aberavon (Mr. Morris), in Scotland the incidence of divorce in the first three to five years of marriage is less than in England.
Many hon. Members have said that nothing in the Bill protects the institution of marriage. Behind that I have assumed that they mean Christian monogamy. Other hon. Members have said that the possibility of divorce will activate the disintegration of marriage. What has been the Scottish experience?
Until 1938—extremely unwisely, in my belief, did the Scots allow this House to change it—there were many forms of marriage in Scotland, but they were abolished. There was what we called regular marriage and irregular marriage, and the forms of irregular marriage were many. Essentially, they were that two people lived together and, by habit and repute, were regarded as husband and wife. Anyway, all of us who speak humbug about the nonsense of right and wrong and morality should accept that "Mrs" means mistress; "Mrs. Smith" means that she is the mistress of Mr. Smith. It means nothing else in language, and I am glad to say that in Scotland the habit is still to call people "mistress" rather than "missus".
As I say, until that day we had irregular marriage, and what was the test of people wanting to live together? It was the fact that they did it, that it lasted and that people recognised it. One may say that it was all very immoral Nevertheless, it lasted. If the test for those who are talking about the institution of marriage is whether the relationship between a man and a woman lasts—and not the plastic kit of whether a church or register office label has been put round it—I claim that the institution of marriage was 441 infinitely wounded by making it more difficult to get married than it ever will be by making it easier to get divorced.
Let us consider the concept of making it more difficult to get divorced. I have appeared in more than 40,000 consistorial cases, so I can claim to know something about the circumstances of married life and divorce. I know of no circumstance in which a person says, "Darling, it has been fun, but I will go now because it is easy to leave." It is never easy to leave; it is loathsome, difficult and frightful to leave, and anybody who talks about a clean break is using language in a sense that I do not understand. One cannot have a clean break between hydrogen and oxygen when they have become water.
I do not believe that there are any circumstances in which civilising the ending of a contract, which is usually entered into for reasons not understood, is likely to cause people to enter or leave that contract more lightly or wantonly. There are many circumstances involved in a marriage and its break-up that must be considered, but then we come to the financial provisions, and the law of England at present is, in my view, inequitable. To be equitable in the circumstances of two people who were previously married—and who marry again or who do not marry again—is almost impossible. However, there is a glaring inequity in the law of England by which a spouse — be it a wife or husband — may benefit magnificently from the future prosperity of the ex-spouse, a prospect which was never enjoyed during the union, however short or long it was.
I accept the caution of those who look at the wording of the prospective section 25, which attempts to say, "When the court comes to look at the future financial provisions, it should try to make them fair." If that were all that it said, that provision would be wise. It is right in certain circumstances to take into account the rights and wrongs of conduct. A good person, who behaves well and does well by his family and children, yet is wronged, should not, as in the judgment of Solomon, have the baby divided equally between the sinner and the sinned against. That is not right, and does not appear to be right. It is inequitable. The purpose should be for the court to do its best in the impossible circumstances of division, and to make a fair financial reward.
I do not want to interrupt into the law of England any longer, save to say this. In Scotland, we find no difficulty with a system of divorce without time limit. The incidence of divorce has nothing to do with whether proceedings start early or late. I do not understand the immorality of having a 12-month period that is supposed to protect the institution of marriage for the sake of the children. If I understand the law of England aright I imagine that, if one leaves a first wife during that first 12 months, and conceives a child by the woman who becomes the second wife, the child can never be legitimised because there was a bar to the marriage in the first 12 months. That is the law in Scotland and I do not know whether it applies in England; but the time limit seems artificial even in those circumstances.
It is wrong that the sole prop to the family and the institution of marriage should be to force those who enter into it to endure it for 12 months, however right or wrong that is, in the fantasy that if they endure it for 12 months they will agree to endure it for ever. The beam in part I 442 is a mote which we have never had in our eye and which, with respect, I suggest that the English law should not have either.
§ 8.3 pm
§ Rev. Martin Smyth (Belfast, South)
I rise to follow the hon. and learned Member for Perth and Kinross (Mr. Fairbairn) with some sympathy for his concept of unitary standards throughout the United Kingdom. However, I am not sure whether I can follow his reasoning, as, on the one hand, he talks about the humbug of morality, and on the other speaks about the immorality of the one-year bar. The hon. and learned Gentleman seems to be picking his ground, as most debaters will do, to get his point across.
Most hon. Members who have spoken have tended to acknowledge that statistics are not helpful because they are not really there.
As a Northern Ireland Member, I welcome the fact that the Province is mentioned in the Bill, although I am unsure what benefit it will be to us. I have read the Bill, but I am prepared to be informed further of its purposes. For example, I am not sure whether it will be of benefit to those living outside Northern Ireland who seek to have maintenance paid through the Northern Ireland courts, or whether the provisions will add to the number of those in Northern Ireland especially women, who receive supplementary benefit support, but whose husbands are elsewhere. Occasionally the courts demand that these women bring their husbands before the court, even theoretically, so that the money paid in supplementary benefit can be reclaimed. I am therefore not sure what great benefit the Bill will bring to people resident in Northern Ireland.
Having dealt with that aspect, in view of the time and the number of hon. Members who wish to take part in the debate, I shall deal briefly with some of the general principles. The hon. and learned Member for Perth and Kinross spoke of legislation affecting the entire kingdom, and people in Northern Ireland see the shadow of the Bill falling across their problems. Although my party has a free vote today, I believe that I reflect the views of a high percentage of the people of Northern Ireland, whether one thinks of them in religious or political terms, who are not enamoured of the general trend in the Bill. Indeed, despite all that has been said, I believe that most of us are not terribly happy with what looks like easy divorce and the consequent hazards in the relationship between former spouses.
A considerable amount of anecdotal evidence has been cited. It may be said that that is not really evidence, but I suspect that the statistics bandied about are likewise open to debate. Hon. Members on both sides have cited a statistic which should make us pause. We are told that between 40 and 50 per cent. of remarriages also end in divorce. I believe that one of the purposes of law is to educate. We must therefore be careful about the standards that we send out to the country.
I take the point about regular and irregular contracts. Here I confess my own interest. I believe in Christian monogamy, but I absolutely concede that contracts entered into by non-Christians may be equally binding. I suspect that if one compared the ethos, background and stability of communities one might discover why the divorce rate in Scotland has not spiralled upwards. 443 We need a law to guide us in our relationships for at least a further decade until the long-sought inquiry and in-depth examination of the whole question can produce further guidance for the nation. Having read the proceedings in another place, and listened to the debate here, there seems to me to be great concern about rich husbands being milked by vicious young former wives. Perhaps that is just my impression of the purpose in the minds of some supporters of the Bill, but if it is true, we are legislating for a very small number of people and leaving out of the reckoning the far larger number of people who will be adversely affected.
The pros and cons of the matter have been argued in the debate today. In view of the tenor of the debate in another place, I wish to inject a different note. Emphasis today has been on justice and on justice being seen to be done. I cannot help thinking of the old story about the woman preening herself before a photographer. When she said, "I hope you will do me justice," the photographer looked through the camera and replied, "Madam, it is not justice you need—t is mercy." Often in relationships between men and women there is a place not only for justice but for mercy and forgiveness.
When I read the report of the proceedings in the other place, I noted that a question was asked about the case when an unfaithful wife bears someone else's child. That is a dispute between law and grace. It is significant that it was a preacher who had to bear that burden and had to learn how to deal with it in his home. For the benefit of those who may not be familiar with the story, I refer to the Prophet Hosea, whose wife Gomer was unfaithful on two occasions. That record tells us that instead of constantly seeking for our pound of flesh we should, even in such tragic circumstances, emphasise forgiveness and patience and attempt to make the relationship good again.
I accept the point about drawing out a marriage that has broken down irretrievably. My antipathy to the reduction from three years to one year is not to make life purgatory for the two people who would then have to soldier on—they would not soldier on because they would already be going their separate ways — but because three years gives them longer to think the matter over before they enter into another contract in law. They may do it in another way, but at least it does not encourage them to rush into another partnership within either civil or religious law.
In an age when people may no longer marry for better and for worse, too many people certainly tend to marry not for long. Therefore, we should encourage them to think through the consequences of their decisions. In that context, we cannot automatically, as some hon. Members have argued, remove conduct from our decisions about the law. We may manage to get out of it in cases of separation and divorce. We may be able to say that if people are civilised and do not call one another names they may go their separate ways and be recognised in law as divorced. However, I guarantee that when it comes down to finance and to business relationships, the ball game is entirely different.
In that context it cannot be said that one party is as guilty as the other. There must be a balance of evidence. As we are dealing with human nature, anyone with experience of either family problems or judicial cases will know that no matter how the law is devised to help people, it will always break down at that point. We should be 444 looking for Utopia if we tried to set aside the conduct clause so that people could make some other financial arrangements.
I do not wish to prolong the debate, but I have made what I believe to be important points. I sympathised with the Attorney-General when he referred to the problem of exceptional depravity. I understand that, but how can we differentiate conduct in such matters? Sooner or later there are degrees, as there are in the law, and it would be a rarified position if we could revert to the old Greek concept of moderation being a virtue.
There are some things which are right but which impinge on others, and there are other things which are wrong. I once had a discussion on this point with a lawyer friend, who said that that line of argument was false because as long as there was moderation, there was no problem. I said, "I dare say that is what you plead in defence of your clients. You say, 'Your Worship, my client is a very decent man who has not murdered two people, but only one person, so he is fairly moderate-. We must recognise, although we might not be prepared to admit it, that we are usually ready to say about others, "Some folk are worse than we are." That is what will happen in marriage.
§ Mr. Deputy Speaker (Mr. Paul Dean)
Order. It may help the House if I say that the first Front Bench spokesman hopes to catch my eye at 9.10 pm.
Mr. Humfrey Matins (Croydon, North-West)
I welcome the Bill. We have come a long way in the past few years since the days when so much hinged on the concept of the matrimonial offence, when severe consequences followed to those who had committed a matrimonial offence—loss of custody of children. loss of rights to maintenance and loss of self-esteem. In the old days those consequences followed a finding of guilt. We should all be pleased that divorce is no longer a gladiatorial exercise, with defended divorces now being the exception rather than the rule.
The proposal to replace the three-year discretion bar with a one-year absolute bar is a sensible and long overdue reform. The proposal will not make divorces easier, nor will it undermine the family. The problem with the three-year discretionary rule was, first, the difference in approach among judges and, secondly, the pain involved for potential petitioners, who had to commit, and often exaggerate in their committing, to paper, the sad aspects of the early part of their marriage. Judges have tended to grant applications for leave to petition in the first three years without closely examining the facts. If we take into account the absurdity in practice of the concepts of exceptional hardship and depravity, we can be sure that the three-year rule was bad and that it should go. A one-year absolute bar is a good idea, which reflects society's view and hope that marriage should be a binding institution not to be entered into lightly, and that it should be given a fair chance to work.
Part II of the Bill deals with financial relief, and I am pleased that we are discarding the 1973 aim, which was to place the parties in the financial position that they would have occupied had the marriage not broken down. It was an unrealistic and almost unattainable aim that could have 445 been attained only in those rare cases where there was a great deal of matrimonial income and capital. We now say that the courts, in deciding whether or how to exercise their financial powers, should have regard to all the circumstances, with first consideration being given to the welfare while a minor of any child of the marriage who has not reached the age of 18. That is a laudable approach. We must be clear about what we mean by the phrase "first consideration". Do we mean first in time or first in importance? There is a significant difference. I believe that we mean first in importance, but we should say so.
Two areas are of concern to practitioners in the law. The first is the case of a child who is not a minor but who is dependent either through disability or, more commonly, because he or she is undergoing full-time education. There appears to be no provision for the child who is not a minor but who is dependent. It might be helpful to embrace that child within the terms of the Bill.
Secondly, there has been some confused and confusing thinking about the concept of a child of the family. Not many people are aware that a child of the family need not be a child of the marriage. One can sympathise with the position of stepfathers who, on divorce, find themselves committed to maintaining children who are not the children of their marriage.
In exercising financial powers, courts will need to have regard to conduct, if, in the opinion of the court, it would be inequitable to disregard that conduct. We have heard, in the case of Wachtel, about conduct being gross and obvious. There may be some uncertainty about whether "gross and obvious" has the same meaning in clause 3. The introduction of this clause reflects public pressure. In the early years after the Matrimonial Causes Act 1973 was passed, many husbands strongly felt that they had had what they regarded as an unfair result in their matrimonial cases.
There are two sides to the argument, and we must achieve a balance. It would be wrong to ignore conduct completely. Part of our trouble is that too many people are not prepared to identify right and wrong when they see it plainly. We must not fall into that trap. Conduct must have some relevance, although we hope that it will be in the exceptional, rather than the ordinary, case. There is another end to the argument. If we go too far down the "conduct" road, we shall return to the bad old days of matrimonial offence. Like so many points in this debate, it is a matter of good judgment and good balance, and I believe that the Bill has it about right.
In lending some encouragement to the "complete break" principle, the Bill keeps up to date again with contemporary thinking and shows a good development. Obviously, a clean break will not be appropriate where there are dependent children or if a wife is old. Is it not right that a former wife should be generally encouraged to resume, if possible, her earning capacity and to stand as soon as possible on her own feet? Would that not in the long term lead to greater independence and greater self-respect, less wrangling and more harmony?
There are gaps in the Bill. I am sorry to see a lack of emphasis on reconciliation and conciliation. Section 6 of the 1973 Act required solicitors to give to petitioners the names and addresses of people properly qualified to help effect a reconciliation. That function is not undertaken properly by the legal profession. It adopts a perfunctory 446 approach. That is a problem. It would be a good idea if there were some teeth in the Bill on reconciliation. Perhaps the courts could send for the petitioner just before the petition is issued so that, in effect, there could be a compulsory and early reconciliation discussion with the registrar. Something not dissimilar happens when an access summons is issued in many county courts. As soon as the summons for access to a child is issued, many registrars now send for the parents to try to have an early, if not immediate, conciliation meeting.
There is another small gap in the Bill. I have often wondered why only the petitioner can obtain a decree absolute six weeks after a decree nisi. I can think of no earthly reason why that should not be available to the respondent at the same time.
We have hopes for the future in matrimonial law. Large numbers in the solicitors' profession who feel concern on the matter have joined the Solicitors Family Law Association, in which the whole emphasis is on a civilised and caring, rather than an adversarial, approach to matrimonial law. Many of us care strongly for the prospect of a single, unified family court. I share the views expressed today that the multiplicity of jurisdictions is not a good idea, and that in the long term a unified family court, with its own family atmosphere, must be a good development. In the long term, divorce law and family law must be dealt with on a civilised and amicable basis. We want to develop a law by which the sting is drawn easily, rather than allowed to poison further, by which the husband and wife are not encouraged to feel bitter and hostile, and the children are not permanently scarred by aggresive access disputes, as has often happened in the past. We want a law by which, with dignity and mutual respect, a divorced couple and their children can look forward with some hope to a new future rather than look back in despair at their past. The Bill is another step on the road to that goal.
§ Mr. Deputy Speaker
I am grateful for the hon. Member's brevity.
§ Mr. Robert Maclennan (Caithness and Sutherland)
There have been moments of great emotion during this debate. A number of hon. Members have spoken feelingly about their experiences and brought them to bear on this subject. That is understandable and right. The incidence of divorce is growing and is reflected, lamentably, in the House. The importance of the debate touches not just those who have been affected but those who are worried about the stability of marriage and who are working to see that our laws maintain the strength of family life.
The Government have claimed that this is an urgent matter, although it is five years of Government life since the Bill was first presented. In bringing the Bill forward, whether deliberately or inadvertantly — I presume the latter—the Government are perceived as the champions and representatives of a strong lobbying group set up to change the divorce laws to reduce the maintenance payments made to many ex-wives, the so-called "alimony drones" who could otherwise support themselves. I hope that the Government will listen to the voices of the many hon. Members who want to improve, rather than oppose, the Bill.
I am pleased that the Government have recognised the possibilities of the special procedure for discussing the Bill 447 before again debating it on the Floor of the House. It is especially appropriate to follow that procedure in this suject because there are few divorced wives in the House of Commons, let alone in the Government. Divorced wives are the people who are most at risk of being adversely affected by the Bill.
The Bill should be the subject not of party politics, but of maximum scrutiny, and that is how the Social Democratic party is approaching the Bill. The most striking fact about this matter is the lack of research, accurate figures and up-to-date information about the level and frequency of maintenance payments and about the different problems faced by people in different parts of the country and within different income levels.
There is no statistical evidence of any sort which enables us to take an informed view on how much maintenance is being paid and by whom. Information on the different sorts of maintenance orders that are being imposed by the courts is not being collected by the Lord Chancellor's office, the Home Office or the Department of Health and Social Security. In a sense, we are legislating in the dark. No attempt has been made to consider effective ways of improving the enforcement of maintenance, and what good to an ex-wife or child is maintenance that is never paid? It is an issue that comes before hon. Members in their constituencies with great frequency.
One of the most important matters that the Bill should provide for is an increase in the information that is available to the courts on the cost of maintaining a child before they make financial provision orders in respect of children. Directions should be given to the courts to have regard to the information subsequently made available to them. Such information should include facts obtained from family expenditure surveys and from a number of independent organisations that have access to the best information that appears at the time to be available.
Without that information, many of the decisions made by the courts will be determined by the effectiveness of the advocates in courts and the emotions of those involved rather than on accurate facts. We feel that the provision of more information should be a fundamental objective and requirement of the Bill. Research should be carried out on a proper basis so as to provide information for the courts and to ascertain the effect of making various orders on the parties to matrimonial proceedings and their children.
Some of the matters that the Bill proposes to change have clearly aroused more controversy than others. I shall briefly make the alliance's views known on the major ones. Part I of the Bill proposes to end the rule that a divorce petition may not be presented within three years of marriage other than in cases of exceptional depravity or exceptional hardship, so as to provide an absolute bar on divorce proceedings until a couple have been married for one year.
I must confess—I say this in part as a Scot—that I do not see the logic in any particular time bar. In many instances the realisation that the marriage has been a mistake, for whatever reason, comes early in its existence. If the principle of irretrievable breakdown is to be accepted as the only ground for divorce, surely that principle should operate at any stage. The very young may recognise quickly that the marriage has irretrievably broken down, and sometimes this may be realised by the very elderly who enter a second marriage. The elderly, too, may 448 quickly realise that the second marriage has not lived up to their experience or their expectation of marriage. They, too, should be free from the incubus of the waiting year.
Part II has been the centre of the debate. It will no longer be a statutory objective to seek, so far as is practicable, to place the parties in divorce in the financial position in which they would have been if the marriage had not broken down.
Among the policy objectives of the Bill is the admirable one that the welfare of children under the age of 18 should be the first consideration. However, on its own, the clause which provides for this is mere rhetoric unless it is backed up by more detailed provisions. How are the courts to assess child support when, as I have said, there is a need for more information? In its report the Law Commission stated:Administrative steps should be taken to ensure that the courts have adequate and reliable information about the current costs of maintaining children.The Bill must be amended to lay down some clear criteria for assessing maintenance.
The Bill seeks to implement the principle that the courts should place greater emphasis on both parties becoming self-sufficient. That objective may be appropriate for childless marriages of short duration, and it is such marriages that have been held up as examples of the supposed unfairness of the present law. They are, however, the minority of divorces, and the courts already take the view that where there are no children and both parties are still young after a short marriage, the wife should not rely on maintenance.
In effect, the law is being changed for all divorces to accommodate a tiny minority. The principle of self-sufficiency is inappropriate where there are dependent children because of the effect that child care responsibilities have on the earning capacity of the custodial parent. The principle of self-sufficiency is grossly unfair where one parent has forgone many years of career advancement in order to care for a family.
§ Mr. Patrick Nicholls (Teignbridge)
In the sense that the hon. Gentleman describes, the Bill will benefit a minority. If he is concerned about women who devote many years of their life to bringing up their children and, at a relatively advanced age can no longer maintain themselves, surely he is not reading the Bill in a way that suggests that those women would be likely to be prejudiced. It is clear on the face of the Bill that the courts, among other things, will have to consider the earning capacity of the wife of the marriage. If the wife is a lady in her late 50s or early 60s 'who has not worked for many years because she has cared for her home and children, the Bill cannot possibly be said to constitute a threat to her security. I am wondering whether the hon. Gentleman proposes to take that on board.
§ Mr. Maclennan
I acknowledge to some extent the force of the hon. Gentleman's argument. In an intervention in the speech of the hon. Member for Broxbourne (Mrs. Roe), I directed attention to several criteria in the Bill. However, the Bill rather leaves it to the courts to pick and choose the criteria that they consider to be appropriate. That choice could easily turn on subjective judgments. It is reasonable to raise on Second Reading the philosophy behind the Bill's provisions and the objectives that it is seeking to achieve. For the reasons that I have given, the principle of self-sufficiency could be unfair.
449 A highly controversial issue is the conduct of the parties. A substantial change in emphasis is proposed from the wording of the 1973 Act. I accept that the alteration is probably not intended to give new prominence to conduct in matrimonial breakdown, but the Bill is likely to be seen as a signal to the courts to pay much greater regard to matrimonial conduct than they have been inclined to do in the past 10 years. There has been increased public pressure recently for the courts to give more weight to that factor in financial proceedings relating to divorce.
The idea that conduct is relevant in matrimonial proceedings is a hangover from ecclesiastical jurisdiction and the concept of matrimonial offence. The courts should not allow consideration of the conduct of a party who has dependent children to influence it to make any order that, in effect, would impose a lower standard of living on that party than would otherwise be the result, so long as any such children are living with him or her. I recognise that there are some cases where the resources of the family have been frittered away through the behaviour of a wastrel spouse.
There are cases in which conduct has undoubtedly to be considered. The wording of the relevant provisions as they stand involves the risk of exacerbating the bitterness of matrimonial disputes at a time when there is pressure to increase it. If that happens, the cost of matrimonial proceedings and the burden on the legal aid fund are likely substantially to increase. That will be the result of too much emphasis being placed on conduct.
§ The Attorney-General
I am a little concerned about the hon. Gentleman's statement that the Bill represents in some respects a substantial change from the 1973 Act. The 1973 Act was much wider in its application than the Bill. It set out to exercise powers — there were various guidelines—so … as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been".That does not seem to have any of the limitations of the provisions that are set out in the Bill.
§ Mr. Maclennan
The learned Attorney-General may well be right. I would not seek to quarrel with him at this hour, when a number of hon. Members still wish to contribute to the debate. I shall consider with great attention what he has said.
I alluded earlier to the argument that the Bill is a charter for middle-class men. Perhaps the reasons for that type of criticism revolve around the provisions in the Bill that are seen to encourage a clean break. Particular care has to be taken with the final wording of the Bill's provisions to deal with that. There is major concern over lone parents or older women whose once-dependent children have now grown up. The small amount of research that has been carried out suggests that only about 6 per cent. of divorced women rely on maintenance payments for income 10 years after the divorce. The meal ticket for life seems to be a myth. If a clean break clause is to be included, it must recognise the reality of the position of a woman attempting to obtain work after giving up the best studying years of her life to bring up a family.
Like almost all hon. Members who have spoken in this debate, I regret the fact that the Government have once 450 again postponed acting on the recommendations of the Finer committee. It is too long since those proposals were made. It was disturbing to hear the Attorney-General say that it was primarily the inability of the Government to come to terms with the resource implications that was holding up the implementation of a policy that he seemed to imply was desirable.
After 10 years, can the Attorney-General, or the Solicitor-General, give us any outline of the resource implications of implementing the Finer recommendations? Could he confirm that the Government would wish to introduce a family court, but that the money is not available at present? Even that would be a step forward.
Another theme of the debate has been the desirability of including proper conciliation procedures as part of the judicial process. Could we hear something more about that?
§ Mrs. Jill Knight (Birmingham, Edgbaston)
I find myself in great difficulty over the Bill. When we heard that we were to debate the Bill today, I suspected that other hon. Members on both sides of the House would worry, like me, about various aspects of the Bill. Indeed, my right hon. and learned Friend the Attorney-General must be feeling somewhat concerned about the weight and sincerity of the feelings of great anxiety which have been expressed by hon. Members on both sides of the House. I think particular of the speech of my hon. Friend the Member for Broxbourne (Mrs. Rowe) and the extremely moving speech by my hon. Friend the Member for Weston-super-Mare (Mr. Wiggin) — to take examples only from the Government Benches.
I appreciate that the present law concerning the prohibition on petitions for divorce could justifiably be called intolerable, as it lends itself to different interpretations in different courts and is worded in such a way as to suggest—as my right hon. and learned Friend said—that a certain amount of cruelty and suffering is perfectly tolerable. That is quite unacceptable. Nevertheless, if the law of the land permitted someone to be legally married for the second time within 18 months of his first legal marriage, that would give a signal that the state no longer holds that marriage, in principle, should be permanent. That is one of the main causes for my anxiety about the Bill.
I agree with some of the provisions in the Bill, but—whatever the Law Commission may say, and in spite of all that my right hon. and learned Friend has said—I cannot eradicate from my mind a conviction that clause 1 will weaken marriage. Every few years, Parliament seems to chip away a bit more at the institution of marriage. Perhaps, instead of making divorce easier and easier, we might consider making it more difficult to get married. The hon. Member for Ipswich (Mr. Weetch) does not believe that easier divorce procedures make for more divorces. If that is the case, why has the divorce rate risen more and more steeply as divorce has become easier and easier? In 1981, there were 146,000 divorces in England and Wales. That must be compared with 127,000 in 1976, 74,000 in 1971 and 25,000 in 1961. Other factors may be involved, but the figures certainly do not show that making divorce easier does not lead to more divorces.
The hon. Member for Ipswich also complained about marriages that drag on and on painfully over the years. He would be wrong in imagining that that happens in every 451 case where two people are not necessarily compatible. During the debates on the Divorce Reform Bill 1969, a very senior hon. Member told me why he was worried about that Bill. He said that all marriages go through difficult times, and that that is natural. He said that his own marriage had hit stormy waters and could easily have ended in divorce but that he and his wife had come through it, and were now happier than ever. It is wrong to assume that large numbers of middle-aged people are groaning under the yoke of unhappy marriages and that divorce is inevitably better.
I am very concerned about what we are doing. The message of the Bill is that marriage is not for ever—it is not even for three years—it is for one year. After that time, one is free to seek a divorce. That is the gravamen of my charge.
On the one hand, there are those who say that, as the divorce figures are rising, we should make it easier. I have great sympathy with those who have to face divorce. I can envisage the deeply unhappy situations that exist. I know from friends a little about the cruel hurt which a divorce inflicts. Many people leap into a divorce without any comprehension of the misery that it will cause them. People have said, "If I had only known how dreadful this would be, I would have tried again." However, once one has taken that road, pride and other influences come into play, and one goes ahead. Parliament has no business to encourage divorce. It is an entirely tenable view, however, that, since it is happening anyway, we should make it easier.
On the other hand, if the law tells people that marriageo is not expected to be a contract for life, people will tend to act on that view. We might as well change the marriage service, altering the words from, "till death us do part," to, "until June 1985," or whatever the date might be.
It is a pity that the law ever spelt out a time limit. I would prefer the law to refer only to when the marriage has broken down. Setting a time limit—especially such a short time limit as one year—is highly dangerous. I understand the views expressed by my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn). Earlier in the debate it was suggested that since Scotland has no time limit, it is the mecca for those who wish to get a quick divorce even before a year of marriage. It could be that people might flood up to Scotland, as if to Gretna Green in reverse, in order to get a quick divorce. However, what worries me is setting a time limit in the law. Where is the sense in standing in front of an altar and saying "till death us do part" when one knows jolly well that the marriage might last only a year? Making such a provision in the law is dangerous.
§ Mr. Nicholls
If my hon. Friend wants to make the Christian contract of marriage the basis of the state's attitude to marriage, why have three years? Why not say, "There shall be no divorce"? Although it would be appalling, it would at least be consistent.
§ Mrs. Knight
My hon. Friend must recognise that there is a close connection between the state and the Church. We must not shrug it off in that way. It must be dangerous to publicise the fact that marriage might last only one year. I am aware that couples will have to meet the same grounds for divorce. They are not hard. I agree with the arguments about exceptional hardship and depravity. I have read what the Law Commission has said. 452 However, clever people sometimes do very silly things. None of the information alters the fact that, if the Bill is passed, Parliament will weaken the bond of marriage and discourage those who might have tried again after the first quarrel from trying. The Law Commission has said that the difficulty of predicting the effect of any change in the law on public attitudes casts a heavy onus on those who seek to justify reform. We have not had that justification. Divorce now costs the state more than £1 billion a year. The state wastes an awful lot of money on divorce. The money could be put to much better use. Divorce is a tragedy and involves human agony but we should not forget that we are pouring money down the drain on divorce.
I share the disappointment of other right hon. and hon. Members that there is nothing in the Bill about reconciliation. I was worried by my right hon. and learned Friend's answer to an intervention on that point. He did not seem to be serious about reconciliation, nor was he clear about when or if it would start. The United Kingdom has the highest divorce rate in western Europe. Although the Bill says that the welfare of children should be the first consideration, I see no such provision in it. The Bill's cost has not been evaluated. Its insistence on the financial self-sufficiency of both parties has worrying implications.
It has been said that it would be sensible to encourage women who have experienced divorce to sever the ties, stand on their own feet and start working for themselves again. The Bill will result in many women feeling that they dare not give up time to look after their children and lose their connection with their profession, trade or training, as they might need it in due course. Mothers should be encouraged to stay in the home when their children need them if they so wish. After a divorce, a mother might well have to obtain employment immediately. That is when her children will miss her most. I hold no brief for a woman who callously walks out on a man after perhaps only two or three years of marriage and expects him to keep her for the rest of her life. However, are there really many such women? It would be unfortunate if the law were changed to penalise such women at the expense of innocent and worthy women.
My hon. and learned Friend the Member for Perth and Kinross said that it was never right for a woman to benefit from her husband's income being enhanced after a divorce. What about the woman who has worked to keep the home together and to bring up the children while her husband has studied to become, say, a doctor? We all know of women who have subjected themselves to hard labour to ensure that their husbands pass examinations and get on in their careers. My hon. and learned Friend says that she should not benefit if there is a divorce and he goes on to achieve success. I am not worried about the avaricious woman who does not deserve maintenance for life, but I am worried about the woman who deserves it. In spite of what is being said, I am not sure that the Bill will ensure that she gets it.
Clause 2 removes the aim governing the provision of maintenance—to maintain the parties in the financial position that they would have enjoyed had the marriage not broken down. What is to be put in its place? The Bill does not say. Clause 3, the clean break clause, has led The Times to say in a leader today:In reality, however, the clean break can only rarely be accomplished without causing injustice to the wife … The B ill wholly fails to face this problem.453 I agree. Lord Denning has said that until now the divorce law has always protected the wife but that this Bill has no such safeguards. We are told nothing about reconciliation and we all regret the lack of implementation of the Finer report. No provision is made to achieve the welfare of children. The Bill proposes far-reaching changes in maintenance provision, although the Law Commission report 112 says:There is a complete lack of factual evidence about the operation of the present law governing maintenance.The results of several other highly relevant inquiries which the Law Commission has called for are not yet available. Why the rush? The cost of the proposed changes to maintenance has not been evaluated. We are rushing into legislation the ground for which has not been properly prepared. In their entirely laudable effort to alleviate one lot of suffering, the Government are rushing us into a new lot. There will have to be more legislation if the Bill is passed. I cannot find it in my heart to vote for the Bill. However, there are parts of it that I understand and agree with. I cannot therefore vote against it. I shall abstain.
§ Mr. Kevin McNamara (Kingston upon Hull, North)
Having listened to her speech, I thought that the hon. Member for Birmingham, Edgbaston (Mrs. Knight) would vote against the Bill, and I am disappointed that she has decided to abstain.
This is the first time that I have spoken in the House on a Bill on divorce. I have always taken the view that, as I believe in the traditional concept of marriage—one man and one woman for life—I do not want to take part in anything which in any way condones or pushes on to other people my concept of what a marriage should be. This is something for individuals to decide.
Nevertheless, for the first time I find myself speaking in a debate such as this because I do not think that we can avoid talking about the consequences of legislation passed by the House. One of the things that I most frequently have to deal with in my constituency surgeries is the consequences of broken marriages — the tenancy of homes, people marrying again and coming along to argue the injustice of the settlement that they have suffered, the problem of access to children, and the belief that solicitors have failed them. They want to know whether there is something that Members of Parliament can do to help, but there is not. We are faced with a Bill that is ill-considered, rushed forward and mainly a charter for middle-aged middle-class men seeking to avoid some of the responsibilities that they took on when they were young. I say that particularly with regard to part II.
I agree with the hon. Member for Edgbaston that if we are to have a criterion for divorce it should be irretrievable breakdown, but once one has conceded the principle, whether it is one year, two years, 10 years or 15 years before one goes to the courts, there is still the problem of judgment and degree, into which I do not wish to go this evening.
The hon. Lady said that the legislation of 1973 had increased the number of divorces. We should not necessarily look at the number of divorces, but should look at the number of marriage breakdowns, which is different. A great number of marriages have broken down where the parties have taken up different relationships, but the cases 454 never come to court, for a variety of different reasons—sometimes because of the expense, sometimes because they cannot be bothered and sometimes because they have different criteria for and attitudes to morality than the rest of us.
There are many reasons for the increasing breakdown in marriage, and we do not have to look at the statute book for reasons for the whole host of changes that have taken place in our society. There are economic matters, the breakdown, to some extent, of the family and the breakdown of the customary codes of conduct which have guided these islands for centuries and which are now increasingly subjected to criticism and non-acceptance. There is the terrible fear that people have, "Oh hell, we are all going to be blown to bits anyway." These criteria are different, but they have not arisen because of the existence of legislation.
There is a great injustice in the Bill. Before I go on to deal with that, I should point out to my hon. Friend the Member for Torfaen (Mr. Abse) that I found strange his concept of male parenthood and when the father starts to relate to the child. I believe that the father starts relating to the child as soon as he knows that it has been conceived. Although some would agree with my hon. Friend, many would disagree with his interpretation of when male parenthood starts as an emotional matter.
I shall deal specifically with the position of the woman who is divorced from her husband and is entitled to maintenance. We should all admit that there can never be a clean break in divorce. When people have been so closely united, there are bound to be fragments, wounds and splinters for both parties, whatever has happened. I do not believe in the "meal ticket for life" theory, even if women get maintenance. We have heard the figures of the number of women who exist solely on maintenance, but we all know from our experience of the number of women who have to go for supplementary benefit or have to take up part-time, often low-paid, jobs, to eke out their money after divorce.
The basic justice of the situation should appeal to the House. After a woman has given her life, and perhaps her career—we cannot judge when a vocation is a career—to marry and raise a family, she is entitled, for her commitment and work and what she has put in, to be recognised. That should be recognised in the legislation, irrespective of whether the husband becomes successful, becomes a multimillionaire, or remains in an ordinary job.
By putting criteria into the hands of the judge in this legislation we are allowing the judge to make specific subjective decisions about cases of which often he does not know the background to enable him to reach a reasonable conclusion. Let me give an example. Let me take the case of someone who graduated about the same time as I did, got married, trained as a teacher, started a family and had three or four children. Twenty years later, the children are grown up, the last one has gone to university, and there is a divorce. The couple go to a judge, who looks at the woman and says, "Very reasonable. You are 40 to 45 years old, pretty, and you will possibly get married again. You have a good chance of getting a job." That woman, who has spent 10 or 15 years out of teaching, has no chance of getting a job. Her skills and her methods are outdated. There is nothing in the Bill to suggest that a woman should be given further training or have her position enhanced. The same is true of other jobs. A shorthand typist can get 455 married, raise a family, and then have to come back to the world of word processors and computer technology. What chance has she?
The Bill does not say how a woman can enhance her income. There is a basic injustice to the woman throughout the Bill. In my view, that is wrong. We should reject the Bill because of what is contained in part II. It is unjust and unfair, and it is wrong for this male-dominated assembly to pass legislation of this nature against the majority of the citizens of this country.
§ 9.7 pm
§ Mr. Keith Best (Ynys MÔn)
In the short time that is available to me, may I say to my regret, unlike many hon. Members who have spoken in this debate, that I do not speak with personal knowledge of marriage and children? I trust that I shall not be counted as advertising, but I hope that one day I shall have a family—that is, if 10 years practising as a lawyer in the matrimonial courts have not put me off it altogether. The hon. Member for Peckham (Ms. Harman) is too expensive for me, in view of some of her ideas about the Bill. We are told that a housewife now does work to the equivalent of £227 a week, so perhaps I cannot afford to marry.
This Bill seeks to introduce a greater sense of fairness and justice into a tortuous part of the law, where in many cases it is impossible to achieve total fairness to the satisfaction of both parties. Until one acknowledges that, one cannot grasp the gravamen of the Bill and its purpose. One must also accept that marriage is a civil contract. However much one may wish that it were only a matter of religion—I know that some hon. Members think that that is the right course—the fact remains that it is right for the law to intervene, because marriage is a civil contract and it involves civil obligations. That is why it is right for conduct to remain a part of the financial consequences of divorce even though, since the 1969 legislation, we have had the concept of the no-fault divorce on the basis only of irretrievable breakdown. The public believe that there is unfairness, and indeed there is.
Every hon. Member will have received a volume of correspondence from people who see an unfairness. Many of those may be ill-advised in their conclusion. They may see unfairness where in reality none exists. We must understand that in the tragedy of divorce people are seldom able to take a disinterested view of that awful experience. Of course they are partisan and express their views in that way. There is a perception of unfairness. It was acknowledged by the Law Commission and that is why it is right to have this Bill. The perception and the reality of unfairness is with the existing law, so we must be advocates of change, but change in the right direction.
I do not want to see a return to the old concept of fault in divorce. The Bill does not lead us down that road. It merely acknowledges, in far more restrictive terms than the previous legislation of 1969 and 1973, that conduct should be considered. It is much more restrictive. My right hon. and learned Friend the Attorney-General was good enough to agree with me when I said in an intervention that, whereas the 1973 legislation requires a court to have regard to the conduct of both parties with no qualification—although the courts have put their own qualification of "obvious and gross" on that—the Bill starts with a limitation by saying that conduct should be considered 456 only where, in the opinion of the court, it would be inequitable to disregard it. That is a step in the right direction.
Many matters will come before the Committee and will be debated on the Floor of the House when the Bill returns for its Report stage. There are many matters about which I would have wished to speak but I shall mention just one—conciliation. I accept that the Bill may not be the right vehicle for conciliation, which is, after all, effectively a procedural matter. Nevertheless, I hope that we shall see conciliation become an integral part of our divorce reform. It is so important that people should settle their differences as amicably as possible. There is no doubt that adversarial contest in divorce over children and finance can only lead to greater hardship.
Unfortunately, it is perhaps inevitable that many red herrings have been raised. Many fears have been expressed which do not really exist. Many hares have been brought out but I believe that they will run back into their lairs and that at the end of the day we shall have a piece of legislation of which the House can be proud.
§ Ms. Jo Richardson (Barking)
It is appropriate that we should be discussing the Matrimonial and Family Proceedings Bill today, because yesterday we were discussing low pay and poverty and much of the Bill is about the poverty of families and one-parent families.
§ Sir Paul Bryan (Boothferry)
§ Ms. Richardson
I hope to disprove that.
This may be dubbed the "Divorce Bill" in the public mind, but it is much more about maintenance. That is revealed by the large number of speeches that have been made putting both sides of the argument. It has clearly been worrying everyone.
I still do not have any firm views about the automatic right to petition for divorce after a year of marriage. I shall be able to make up my mind in the course of the Committee stage, although I intend to vote against the Bill tonight. I was tempted by the falling in love and marriage of my hon. Friend the Member for Peckham (Ms. Harman) and the hon. and learned Member for Perth and Kinross (Mr. Fairbairn). They both seem to be in favour of having no time limit at all. I found their arguments very persuasive.
However, like other hon. Members, I shall concentrate my remarks on part II. The Bill removes the aim of placing both parties in the financial position that they would have been in if the marriage had not broken down, but it does not replace it with anything else. It empowers the court to dismiss outright an application for maintenance and requires it to consider whether it would be appropriate for payments to be made for a limited periodto enable the party in whose favour the order is made to adjust without undue hardship.As many hon. Members have said, the Bill also reintroduces—and it is a reintroduction—the concept, of conduct. That concept has always been there, but in the past few years it has not basically been used or brought into play. It is linked to the payment of maintenance. When I listened, in particular, to Conservative Members talking about conduct, it occurred to be that it was all very well to apportion blame to one or other, or both of the partners, but that it was the children who would suffer. Apparently, 457 the Bill's stated aim is that the welfare of the children is paramount. Therefore, it would be a retrograde step if we were to reintroduce the question of conduct.
The supposed aim of the Bill is to give priority to the welfare of the children, but I cannot see how it achieves that. It really contains only a very bland statement of support for children. It then concentrates on spouses. As a result of the Bill, the children of many one-parent families could be worse off. If the Bill's principal aim had been the welfare of children, no hon. Member would have been keener to support it than me. I have always believed that there should be greater state and community support for children. I am sure that hon. Members know that I have compaigned for many years, both in the House and within my party, for increased child support. We, as a society, should consider child support in a much more meaningful and generous way. However, search as may, I cannot find much about that in the Bill.
There is no real attempt to plug the gap left by the removal of the duty of the courts to see that the children do not suffer financially from the divorce. The Law Commission recommended that the courts should be given information about the cost of maintaining a child, but there is nothing in the Bill about that. Thus, there are no real criteria for deciding how to divide the liability for maintaining a child between the partners.
The Bill essentially involves reducing the right to maintenance of the parent who is the carer of the children, and tips the balance towards the non-custodial parent. That must mean less support for the children of a first marriage. The whole Bill is based on the false image of the divorced woman being an alimony drone, and indeed other hon. Members have referred to that. That woman is seen as someone who is lazy, unwilling to work and lying around wanting a meal ticket for life, but in real life that is not so in other than a very small number of cases. The situation is much more complex than that. To try to divide the Bill into drones and non-drones is to deal with the matter wrongly.
I deal next with the care of children and the ability of the caring or custodial parent to stand on her own feet. I say "her" because it is usually the woman who is the caring parent. Reference has been made to the minimal study by the centre of socio-legal studies at Oxford. We would all agree that much more research needs to be done. Indeed, I do not know why it has not been done. So much research is done these days into much more obscure subjects, that good research on this subject is surely warranted. The study revealed some interesting things. Of the sample which it took of those who were dependent upon maintenance, half received under £10 per week, a quarter received between £10 and £20 per week and a quarter received over £20 per week. Many of them had more than one child.
Research done by the National Foster Care Campaign shows that it would cost a parent in the provinces £23.87 per week to care for a child of under four, and in London it would cost £26.95 per week. The amounts increase gradually until for a youngster aged 16 to 18 it would cost in the provinces over £45 per week and in London £53 per week. When we compare those figures with the paltry levels of maintenance, we can see that if someone has to depend upon average maintenance it is no meal ticket for life. These figures do not take account of any contribution 458 towards the living costs of the custodial parent. Therefore, I do not believe that the Bill is about helping children, as it should be and as it states it is. It is about material support for the first family. Therefore, it is about the money for the caring parent.
It has been said that we should be thinking about other provisions which would give women the possibility of standing on their own feet in a real way. I would support amendments which would contribute towards better training, retraining and educational facilities to enable women to stand on their own feet and earn a decent living. The majority of divorced mothers whom I know have great difficulty in finding a job paying more than a very small wage. The jobs they are able to take have to fit in with their responsibilities towards the children for whom they are caring. Simply to say glibly, as has been said by many people, though not during the debate, that this is an opportunity to make women financially independent, is not to face reality. These women are deprived by divorce of support from their husbands and told, "Stand on your own feet and do not rely on me."
The House will know that I am keen to extend the whole area of women's equality and that I am interested in progressing towards the financial independence of women, including financial independence within the family. We must provide the climate and make the reforms to bring that about before we simply cut off poorer women from the only support that they can receive.
I should like to give one example of how women are trying to retrain themselves in situations like this. As we all know, we have skillcentres, some of which are running TOPs courses in manual trades. It has been mentioned in the House that there is one in Deptford, which borders the constituencies of my right hon. Friend the Member for Lewisham, Deptford (Mr. Silkin) and my hon. Friend the Member for Greenwich (Mr. Barnett). I accompanied them when they went to the Department of Employment recently to try to persuade it to allow the two boroughs to provide, at their expense, creche facilities at the skill-centre for the women who wanted to train in those manual trades. The matter is not yet resolved. The boroughs are willing to pay, but the Department is not willing to contribute a penny.
We are told that that is partly because the Manpower Services Commission must be run on a commercial basis, but it is also partly because the Minister has suggested that it would be unfair to give women the impression that because there were creche facilities at skillcentres there would be creche facilities when they eventually worked. If we are not even willing to try to help women to retrain and gain a skill, how can we expect them to stand on their own feet? The House has tonight regarded the matter with the utmost seriousness but I honestly wish that it would take more seriously the difficulties of low-paid women — who are mainly married women — who suffer so badly.
The hon. Member for Broxbourne (Mrs. Roe) mentioned one other category of women. She is an old opponent of mine—indeed, she opposed me in Barking at the 1979 general election. She referred to the older woman whose children have left home. Such a woman may have been a support to her husband. She may have no skills and may never have worked. I know women who have always remained at home — not simply because they wished to, but because their husbands expected them to do so. Their husbands wanted them to be there, wanted 459 them to put their dinner on the table or to entertain their business friends. Even without children, to be cut off from any support—when she may have contributed to the upkeep of her home through her work there-is a cruel act.
The House should take another factor into account. The first wife will never become a widow. If the husband marries again, the second wife becomes the widow and obtains widow's benefits. The first wife does not receive the widow's pension, nor does she in any way benefit from the husband's occupational pension—that will go to the second wife. I understand from reading Hansard of another place that the question of occupational pensions was raised in the debate there and that the Lord Chancellor promised to consider the matter. The Bill ignores the fact that many women are not adequately trained and have not had opportunities to get themselves off the ground or to stand on their own feet.
I hope that the House will look carefully at the reintroduction of the question of conduct. That will bring back all the bitterness that we thought had disappeared. Divorce is a bitter matter, and to introduce conduct will be to return to the old battleground of accusation. I can remember—although not from personal experience—the days when detectives were employed. That was a common occurrence. They were employed to spy on a partner of the marriage and to report on his or her conduct. Surely we do not want to return to that terrible practice. I hope that we shall dispose of the question of conduct in our consideration of this difficult matter. The higher legal costs that may fall upon most parties to a divorce, and the increasing burden on legal aid, should be examined.
The Bill omits a number of matters that should have been taken into account and to which hon. Members have referred. The question of family courts is not properly covered. The hon. Member for Montgomery (Mr. Cathie) mentioned the Finer report. While listening to him I was struck by the fact that, at the end of this month, it will be 10 years since I became a Member of Parliament. In that time the Finer report has come up in one debate or another almost every year, yet we are no further forward in achieving its aims. Progress must be made in establishing family courts.
Much more thought should be given to conciliation services. I was interested to hear what the hon. Member for Chislehurst (Mr. Sims) said about the experiment in his constituency. We should focus on the crucial and central point of child support.
I do not say in a broad brush way that all second wives are wrong and that all first wives are right. Of course there are difficulties, and there is often a lack of financial support when there are two families. I agree with my right hon. and learned Friend the Member for Monklands, East (Mr. Smith) that we should consider a non-means-tested benefit for people in that situation, and also greatly increased child support.
After the careful thought given to the subject by my hon. Friend the Member for Torfaen (Mr. Abse), it is a pity that these matters have not been taken into account and that the House is considering this Bill rather than a child support Bill, which I believe would have commanded support from both sides of the House.
A number of organisations which are known to all hon. Members have opposed the Bill vigorously. These include the Child Poverty Action Group, the National Council for 460 One Parent Families, Gingerbread and the Married Women's Association, among whose patrons are a large number of Members on both sides of the House.
Although Conservative Members have a free vote, the Government of course support the Bill. The Opposition have a free vote, but the Labour party is opposed to the Bill. The women's organisation in the Labour party has expressed concern about the Bill since the initiation of its consideration. The national executive of the Labour party took the position that it was opposed to the Bill.
The Bill has emerged as the result of a powerful, well-organised and well-financed lobby of wealthy middle-class men. The cost of making life a little easier for this small elite will be paid for by the 392,000 divorced women who are bringing up families on supplementary benefit. The Bill is loosely drafted, on what I believe to be inadequate information. It should be remembered that 1,500,000 individuals are living in one-parent families, the majority headed by women, of which a high proportion are living on, or near, the poverty line. The Bill does nothing to improve their lot. If it had, I should have been the first into the Lobby to support it. As it is, I invite my right hon. and hon. Friends to join me in opposing the Bill.
§ The Solicitor-General (Sir Patrick Mayhew)
We have had a debate of absorbing interest. That is not surprising, because the Bill, although limited in its extent and scope, bears on the institutions of marriage and the family. It is common ground — this has been made absolutely clear by hon. Members in all parts of the House—that the family and marriage are seen to be at the centre of the society in which we live and move and have our being.
Many hon. Members have spoken to that effect, including my hon. Friends the Members for Halesowen and Stourbridge (Mr. Stokes), for Broxbourne (Mrs. Roe) and for Chislehurst (Mr. Sims), and the Law Commission has made that clear. This has, therefore, been an important and impressive debate.
I am sorry that the hon. Member for Barking (Ms. Richardson) and others chided the Government for not introducing a grand resettlement of our matrimonial law and complained that the Bill was narrow in scope. The hon. Member for Torfaen (Mr. Abse) gave the answer to that when he said that we should not fall into the old trap of letting the best be the enemy of the good. The Bill cannot do everything. Let us deal with it on its merits; the hon. Gentlemen's speech went into its merits at length and I was pleased by the great extent to which he approved of it.
I was moved, as all hon. Members must have been, by the speech of my hon. Friend the Member for Weston-super-Mare (Mr. Wiggin). He said that he could not support the Bill because it did not do anything to meet the difficulties of his own position, with which all who heard his speech must sympathise. My hon. Friend should appreciate that no Bill can do everything. I hope that he will examine it on the merits of the policies which it addresses. If he will refer the questions of costs about which he spoke to the Attorney-General, they will be investigated. However, I ask my hon. Friend in all sincerity to examine the narrow scope of the Bill, not to dismiss the aims which it seeks to achieve, limited though they are, to see whether they constitute something that is in need of remedy and reform and whether there is good in the Bill. I hope that he will support it.
461 I must correct what the hon. Member for Barking said about Conservative Members being on a free vote tonight. That is not the case, and my right hon. and learned Friend made clear in his opening speech what the Patronage Secretary had authorised him to say in regard to the Report stage on issues of conscience.
Although we agree that marriage and the family are the foundation of our society, the trouble is that marriages break down and families are split up, and then the law must deal with the pieces. It must deal with them by enabling a legal marriage to be ended when it has ceased to be a living one, and it must provide for the consequences of doing just that.
I strongly agree with those who say that we must not make the ending of a marriage in law so easy that we weaken marriage as an institution, something to slip into and out of like a suit. I agree, too, with those who say that we must be careful not to send gratuitously a signal that marriage matters less these days; that was very much the fear of my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight).
When it comes to the consequences — to put it brutally, to the dividing up of the spoils, which all too often include the children—I agree with those who say that, however it is done—and it must be done by the courts; it cannot be done by anybody else, save by agreement by the parties—let it be done fairly and in the interests of the family as an institution so that one's ordinary sense of justice is not offended.
It is easy enough to put it that way, and most of us would say that that is what we look for in our divorce law, but it is a good deal more difficult to secure that effect self-evidently in the language of legislation. One is faced with the old dilemma—we meet it often in legislation—of how to balance the need for certainty, clarity and absence of doubt against the need to secure flexibility so that we do not tie the hands of the judges in this jurisdiction. A number of hon. Members spoke of the infinite variety of circumstances that face anybody who deals with the divorce jurisdiction. One case is not like another, so one must allow for flexibility. One cannot satisfactorily serve both those ends; one must compromise.
We have been advised, and it is apparent, that two areas of our law need improving, go wide of the objective that we want to see served and work harmfully. The Bill was introduced because of that.
Before I deal with parts I and II, which are the main sources of controversy, I shall deal with one or two details. I am sorry that we have not been able to come forward with much more information about our proposals for conciliation and monitoring the effects of the family provisions of matrimonial law, for research and for some other matters that have been mentioned. The Attorney-General gave information at the beginning of the debate about work that is proceeding. We all wish that it could go further, and that there were more resources. I am only sorry that that is not so. However, the picture is brighter than it used to be.
The hon. Member for Belfast, South (Rev. Martin Smyth) asked to what extent the Bill would affect the law in Northern Ireland. Clause 41 is the only provision that affects Northern Ireland, and will enable persons awarded maintenance in a convention country, following divorce or annulment overseas, in or outside a convention country, 462 to bring proceedings in Northern Ireland for recovery of maintenance. A convention country is one to which the United Nations convention on the recovery of maintenance applies. Part III may be copied in due course for Northern Ireland, by an Order in Council.
We all know the provisions of part I, so I shall not weary the House by repeating them. The issue is whether to continue with a three-year time bar on the presentation of a petition for divorce but have a discretionary bar that will allow petitioners to get round it if the court is shown evidence of exceptional depravity in the spouse, or that there will be exceptional hardship to the petitioner if the divorce cannot be granted earlier. That bar can be overcome if the petitioner establishes either of those things and claims the discretion of the court.
Will that time bar remain, will it fall sooner, or will it be absolute? What is the result to be? The Law Commission considered the matter carefully and made a recommendation based on the harm caused by the present arrangements. When one applies for the discretion of the court, all the dirt must be raked up. In almost every case, lawyers advise their clients to rake up as much dirt and evidence of depravity as possible, and a lot that can be additionally imagined, in order to secure the court's discretion.
All hon. Members recognise that that is the foundation of the modern divorce law. When divorce occurs, regrettable and unhappy though that is, the legal separation and the severing of the legal tie after the death of the marriage ought to be done with a minimum of humiliation and stress. The Law Commission said that nothing acts more obviously against that objective than forcing a petitioner to apply for the court's discretion. As more than one hon. Member has said, the bitterness engendered by it spills over into the later negotiations that must take place for access to children and financial provisions.
The hon. Member for Ipswich (Mr. Weetch) spoke about that problem very impressively. The right hon. and learned Member for Aberavon (Mr. Morris) said that he would be surprised if there were support for the status quo. The hon. Member for Montgomery (Mr. Carlisle) spoke similarly, together with my hon. Friend the Member for Ynys Mon (Mr. Best), and other hon. Members. I, too, am surprised that there should be any support for the status quo.
The question is whether we go for a one-year absolute bar or no bar at all. I should be extremely reluctant to follow the recommendations of the Law Commission if I were not satisfied that it had taken on board the danger, of which my hon. Friend the Member for Edgbaston spoke so eloquently, that the message sent out from Parliament might be that divorce is easier, quicker, matters less and now requires only one year rather than three. I should have been far more concerned if I had felt that the Law Commission had not considered that aspect. As my hon. Friend the Member for Chislehurst reminded the House, however, the Law Commission gave the matter deep consideration and stated in paragraph 58 of its report:the difficulty of predicting the effect on public attitudes of any change in the law casts a heavy onus on those who seek to justify reform.I accept that onus. It continued:On the other hand, there is one factor which seems to us very strongly to support the case for change: this is the requirement under the present law to allege and prove exceptional hardship or depravity".463 On consultation, the Law Commission found that those conclusions were amply confirmed. The report states that the great majority of responses to the Working Paper overwhelmingly endorsed the proposition that the present rule was unsatisfactory.
We must therefore ask whether there is any firm evidence that a time restriction acts as a deterrent to divorce rather than merely deferring it or whether the lack of such a restriction would lead to ill-considered marriages. Before 1937 there was no time restriction in England. People could bring petitions for divorce the day after they were married if they were so unfortunate as to wish to do so. That had been the case ever since Parliament gave the courts jurisdiction over divorce in 1857. In other words, that was the case for two thirds of Queen Victoria's reign, so the stability of marriage in those days about which we are so nostalgic, plainly owed nothing to any time bar. As my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) told us in his delightful speech, there is to this day no time bar in Scotland but there is no evidence that the Scots are more frivolous than the English about marriage, or indeed about anything else.
We must also consider whether a disillusioned young husband in the early days of marriage can rid himself of the responsibilities of marriage and the married state only by means of divorce. The answer to that is no. He can get rid of his obligation to cohabit and his obligation to support his wife, which is surely the essence of marriage, by the simple device of petitioning for judicial decree, for which there is no time limit at all. In England and Wales today a person may petition for judicial separation the day after marriage.
Only freedom to remarry is conferred by a decree of divorce. Therefore, I believe that we can say with confidence that the Law Commission was right to say that the danger and harm occasioned by the need to apply for the discretion of the court through a claim of depravity are so great and the risk involved in changing the arrangements so slight that the Law Commission was right to select the change that it did.
I agree that one can argue convincingly for complete abolition, as has been argued by Lord Denning in another place and by the hon. Member for Peckham (Ms. Harman) and others today. One could argue less convincingly for two years, but one argues it most convincingly for one year. No great issue of doctrinal purity is engaged, but on reflection, and especially after the special sessions in Standing Committee, I hope that hon. Members will opt for that because at least they will have heard the evidence.
§ Mr. Abse
Since the Solicitor-General has, understandably, put the case for part 1 on the recommendations of the Law Commission, is it his intention that in Special Standing Committee we shall have the opportunity to question the Law Commission? That has not been done in Select Committee, for obvious reasons, but this is a Special Standing Committee, and in view of the disquiet that many people besides myself have expressed about part I, it would be wise if we had the opportunity to question it ourselves.
§ The Solicitor-General
That is for the Committee to decide, as I understand the procedure. I served on the Criminal Attempts Bill, on which that procedure was followed, and the law commissioner responsible for the recommendation gave evidence before the Committee, which was useful.
464 I apologise to hon. Members if I have not dealt with some points that have been raised, but I am under a time restraint, as the House wished to fit in as many speeches as possible. The objective of the law for financial provision is that it should be able so to deal with the broken pieces of a marriage as to provide for the parties and their families justly and fairly. However, the question facing the House is how that should be put into statutory language. Most hon. Members would regard it as being too wide if we left it open, and Parliament has taken that view in the past. My hon. Friend the Member for Chislehurst asked whether one could ever achieve justice in a broken marriage. We have done our best, and Parliament has ruled that the courts must do justice between the parties but has set guidelines to steer them towards the objectives that they should serve. The problem is that the Law Commission advises us —it is also apparent from our post bags, as many hon. Members said — that those objectives and guidelines are only partially effective. They are guiding the courts wide of the mark. Therefore, the Bill makes modest changes. It is not the great, enormous Bill that it has been portrayed to be by its opponents. It is evolutionary, to use the Law Commission's wording, not revolutionary. However, it has become the subject of tragic misconceptions, as the hon. Member for Torfaen, with his vast experience and great fairness, made clear in his speech.
The objective of the present law which must be served and achieved by the courts—the objective of putting the parties back into the financial position in which they would have been had the divorce not taken place—has gone. That is widely regarded as impossible, as the right hon. and learned Member for Aberavon (Mr. Morris), my hon. Friend the Member for Twickenham (Mr. Jessel), the hon. Member for Ipswich and others agreed. Therefore, it is removed, and instead we ask the courts to do justice between the parties in the light of certain guidelines. I shall return to the guidelines shortly.
The Law Commission says that the children's interests are not given sufficient priority at present. Therefore, the Bill puts that right. First consideration is to be given to them—first consideration in importance, not in time.
I shall deal with the guidelines only briefly because of the march of time. I hope that I shall be forgiven for not being detailed and accurate, which I could be, but only by excluding other matters. Under the provisions of the 1973 Act, eight separate matters are set out, of which the court must take account. Six out of those eight provisions are unchanged, and the most important in the context of today's debate is the one which says that the courts must have regard to the contribution that the wife has made to the welfare of the family—for example, in looking after the household and bringing up children. That is in the present Act and is retained unchanged in the Bill.
It has been said that, for the first time, the issue of a partner's conduct has been brought back into the proceedings. The present Act says that the court must have regard to conduct, because it must try to put the parties back into the position in which they would have been had there been no divorce, to the extent that it is just to do so, having regard to their conduct. That has been put into a different format, but the sense has not changed, because, when the objective went, the format of the clause had to be changed. The Bill now says that the courts shall have regard to such conduct as it would be inequitable not to consider.
465 As the House will understand, I am not reading any text because I wish to get on, but that is the guts of the matter. Anyone who wishes conduct to be taken into account must establish to the court that it would be inequitable not to do so. The Law Commission said that there are circumstances in which it would be repugnant to ordinary people's sense of justice if conduct were not taken into account. That is the Wachtel case as developed by subsequent cases, and that is what we have tried to reproduce. We are advised by parliamentary counsel that we have achieved it, as my right hon. and learned Friend the Attorney-General said. That is the advice that we get privately, and that is its purpose.
§ Mr. John Morris
Will the Solicitor-General comment on the views of Lord Denning, who is unhappy with the clause as drafted and who believes that the burden of proof is wrong?
§ The Solicitor-General
Lord Denning believes that there should be additional guidelines. Equally, Lord Simon of Glaisdale believes that the courts would have no difficulty with this matter. We shall consider what was said in the debate and what is said in the Standing Committee, but we are satisfied at present that the clause achieves the desired effect.
My hon. Friend the Member for Broxbourne mentioned an example of great importance that has given rise to anxiety in the House and in the country. In a nutshell, she asked what happens to a woman who has worked for years bringing up a family but who, when she is divorced, finds her earning capacity eroded and cannot learn a new trade. The courts must do what is just. What will be new section 25(2)(a) says that that which is just and reasonable shall be the criterion for the consideration of the courts. They must take into account whether it would be proper to make an award on the basis that it will, in the end, be terminated or that it will last only for a certain period.
I return to the other criterion that I mentioned, which is that the courts must take account of the contribution that has been made by the wife or by the husband to the welfare of the family and to the bringing up of the children, and then do what is just and reasonable. Since we are quoting the Law Lords today, Lord Scarman says in the clearest terms that there is nothing for a woman in those circumstances to fear from the provisions of the Bill. There is not, and the courts can be relied upon to carry out the intention of the Bill: that they should do what is just and reasonable and accords with common sense. This is in the Bill, and it has been well explained by my right hon. and learned Friend the Attorney-General, although I may not have explained it so well.
It would be useful if the Bill could do a little more, but, the world being what it is, I am afraid that it cannot. That is no reason for saying that we should not have the Bill. It is not a grand resettlement of divorce; it deals with solemn subjects. Some speeches have been for it, and some have been against it. We shall consider both. The Bill is a modest measure designed to remedy some damaging features of our present law. By remedying them, it does not weaken but strengthens our marriage law, and I commend it to the House.
§ Question put, That the Bill be now read a Second time:—
§ The House divided: Ayes 186, Noes 68.467
|Division No. 170]||[10 pm|
|Abse, Leo||Knowles, Michael|
|Ancram, Michael||Lang, Ian|
|Baker, Nicholas (N Dorset)||Lawrence, Ivan|
|Baldry, Anthony||Leigh, Edward (Gainsbor'gh)|
|Best, Keith||Lewis, Sir Kenneth (Stamf'd)|
|Blaker, Rt Hon Sir Peter||Lilley, Peter|
|Boscawen, Hon Robert||Lloyd, Peter, (Fareham)|
|Bottomley, Peter||Lord, Michael|
|Brandon-Bravo, Martin||Luce, Richard|
|Brittan, Rt Hon Leon||McCurley, Mrs Anna|
|Brooke, Hon Peter||Macfarlane, Neil|
|Bryan, Sir Paul||MacGregor, John|
|Bulmer, Esmond||MacKay, Andrew (Berkshire)|
|Burt, Alistair||Maclean, David John.|
|Campbell-Savours, Dale||Maclennan, Robert|
|Chapman, Sydney||Major, John|
|Chope, Christopher||Malins, Humfrey|
|Clark, Sir W. (Croydon S)||Malone, Gerald|
|Clegg, Sir Walter||Maples, John|
|Cope, John||Mather, Carol|
|Cox, Thomas (Tooting)||Maxwell-Hyslop, Robin|
|Dicks, Terry||Mayhew, Sir Patrick|
|Dixon, Donald||Merchant, Piers|
|Douglas-Hamilton, Lord J.||Miller, Hal (B'grove)|
|Dover, Denshore||Mills, Iain (Meriden)|
|Eyre, Sir Reginald||Mills, Sir Peter (West Devon)|
|Favell, Anthony||Moate, Roger|
|Foot, Rt Hon Michael||Monro, Sir Hector|
|Forrester, John||Moore, John|
|Forsyth, Michael (Stirling)||Morris, M. (N'hampton, S)|
|Fraser, Peter (Angus East)||Moynihan, Hon C.|
|Freeman, Roger||Murphy, Christopher|
|Gale, Roger||Needham, Richard|
|Galley, Roy||Nelson, Anthony|
|Gardiner, George (Reigate)||Newton, Tony|
|Gardner, Sir Edward (Fylde)||Nicholls, Patrick|
|Garel-Jones, Tristan||Norris, Steven|
|Garrett, W. E.||Onslow, Cranley|
|Gilbert, Rt Hon Dr John||Oppenheim, Philip|
|Goodhart, Sir Philip||Ottaway, Richard|
|Goodlad, Alastair||Page, Richard (Herts SW)|
|Gow, Ian||Parris, Matthew|
|Greenway, Harry||Peacock, Mrs Elizabeth|
|Griffiths, E. (B'y St Edm'ds)||Percival, Rt Hon Sir Ian|
|Griffiths, Peter (Portsm'th N)||Powell, Raymond (Ogmore)|
|Ground, Patrick||Powell, William (Corby)|
|Gummer, John Selwyn||Powley, John|
|Hamilton, Hon A. (Epsom)||Prentice, Rt Hon Reg|
|Hamilton, Neil (Tatton)||Proctor, K. Harvey|
|Hanley, Jeremy||Raffan, Keith|
|Hannam,John||Raison, Rt Hon Timothy|
|Harvey, Robert||Rhodes James, Robert|
|Haselhurst, Alan||Ridley, Rt Hon Nicholas|
|Havers, Rt Hon Sir Michael||Ridsdale, Sir Julian|
|Hayes, J.||Robinson, Mark (N'port W)|
|Haynes, Frank||Rowe, Andrew|
|Hayward, Robert||Ryder, Richard|
|Heddle, John||Sainsbury, Hon Timothy|
|Henderson, Barry||Sayeed, Jonathan|
|Hickmet, Richard||Shaw, Sir Michael (Scarb')|
|Hind, Kenneth||Shelton, William (Streatham)|
|Holt, Richard||Shepherd, Colin (Hereford)|
|Hordern, Peter||Shepherd, Richard (Aldridge)|
|Howard, Michael||Sims, Roger|
|Howarth, Alan (Stratf'd-on-A)||Smith, Tim (Beaconsfield)|
|Howarth, Gerald (Cannock)||Soames, Hon Nicholas|
|Howe, Rt Hon Sir Geoffrey||Speed, Keith|
|Hunt, David (Wirral)||Spencer, D.|
|Hunt, John (Ravensbourne)||Spicer, Jim (W Dorset)|
|Hunter, Andrew||Spicer, Michael (S Worcs)|
|Jenkin, Rt Hon Patrick||Steen, Anthony|
|JesseI, Toby||Stern, Michael|
|Jones, Gwilym (Cardiff N)||Stevens, Lewis (Nuneaton)|
|Jones, Robert (W Herts)||Stevens, Martin (Fulham)|
|Kershaw, Sir Anthony||Stewart, Andrew (Sherwood)|
|King, Roger (B'ham N'field)||Stott, Roger|
|King, Rt Hon Tom||Stradling Thomas, J.|
|Knight, Gregory (Derby N)||Sumberg, David|
|Tapsell, Peter||Wardle, C. (Bexhill)|
|Taylor, Teddy (S'end E)||Watts, John|
|Thomas, Rt Hon Peter||Weetch, Ken|
|Thompson, Donald (Calder V)||Wells, Bowen (Hertford)|
|Thompson, Patrick (N'ich N)||Wheeler, John|
|Thornton, Malcolm||Whitfield, John|
|Thurnham, Peter||Wilkinson, John|
|Tracey, Richard||Williams, Rt Hon A.|
|Twinn, Dr Ian||Wolfson, Mark|
|van Straubenzee, Sir W.||Wood, Timothy|
|Viggers, Peter||Woodcock, Michael|
|Waddington, David||Yeo, Tim|
|Wakeham, Rt Hon John||Young, Sir George (Acton)|
|Waldegrave, Hon William|
|Walden, George||Tellers for the Ayes:|
|Waller, Gary||Mr. Douglas Hogg and|
|Ward, John||Mr. Michael Neubert.|
|Alton, David||Leighton, Ronald|
|Anderson, Donald||Lloyd, Tony (Stratford)|
|Ashdown, Paddy||McCrea, Rev William|
|Banks, Tony (Newham NW)||McCusker, Harold|
|Barnett, Guy||Madden, Max|
|Barron, Kevin||Meacher, Michael|
|Beggs, Roy||Michie, William|
|Beith, A. J.||Miller, DrM. S. (E Kilbride)|
|Blair, Anthony||Molyneaux, Rt Hon James|
|Campbell, Ian||Morris, Rt Hon A. (W'shawe)|
|Carlile, Alexander (Montg'y)||Nellist, David|
|Carter-Jones, Lewis||Orme, Rt Hon Stanley|
|Cohen, Harry||Paisley, Rev Ian|
|Corbyn, Jeremy||Pavitt, Laurie|
|Cunningham, Dr John||Powell, Rt Hon J. E. (S Down)|
|Davis, Terry (B'ham, H'ge H'l)||Prescott, John|
|Dobson, Frank||Radice, Giles|
|Dormand, Jack||Richardson, Ms Jo|
|Dubs, Alfred||Roberts, Allan (Bootle)|
|Dunwoody, Hon Mrs G.||Roberts, Ernest (Hackney N)|
|Fatchett, Derek||Robinson, P. (Belfast E)|
|Flannery, Martin||Rogers, Allan|
|Foster, Derek||Ross, Stephen (Isle of Wight)|
|Freeson, Rt Hon Reginald||Ross, Wm. (Londonderry)|
|Gould, Bryan||Rowlands, Ted|
|Harman, Ms Harriet||Skinner, Dennis|
|Hart, Rt Hon Dame Judith||Smith, C. (Isl'ton S & F'bury)|
|Heffer, Eric S.||Smyth, Rev W. M. (Belfast S)|
|Holland, Stuart (Vauxhall)||Soley, Clive|
|Howells, Geraint||Straw, Jack|
|Hoyle, Douglas||Thomas, Dafydd (Merioneth)|
|Hughes, Simon (Southwark)||Wigley, Dafydd|
|Janner, Hon Greville|
|Jones, Barry (Alyn & Deeside)||Tellers for the Noes:|
|Kinnock, Rt Hon Neil||Mr. Ian Mikardo and|
|Lamond, James||Mr. Kevin McNamara.|
§ Question accordingly agreed to.
§ Bill read a Second time and committed to a Special Standing Committee pursuant to the order of the House yesterday.
- CONSOLIDATION, &c., BILLS 39 words