HC Deb 24 April 1996 vol 276 cc443-91 3.53 pm
Mr. Edward Leigh (Gainsborough and Horncastle)

I beg to move amendment No. 1, in page 3, line 2, after '(1) ', insert 'For the purposes of an application for a separation order'.

The Chairman of Ways and Means (Mr. Michael Morris)

With this, it will be convenient to discuss also the following: No. 6, in page 3, line 22, at end insert— '.—(2A) If the parties have entered into an agreement, following counselling by a body approved for the purposes of this section by the Lord Chancellor, not to make a statement unless each of them has sought further counselling (either from that body or from any other such body), any statement made by either of the parties, or by both of them, is to be disregarded unless the agreement has been complied with within the period of three months ending with the date on which the statement is made.'. No. 20, in page 3, line 27, after 'year', insert '(or such further period as shall appear to the Court in all circumstances to be just) '. Clause 5 stand part.

New clause 1—Grounds for divorce— '.—(1) The court hearing an application for a divorce order shall hold the marriage to have broken down irretrievably if, but only if, the applicant has made a statement that he believes that the marriage has broken down and has satisfied the court of one or more of the following facts—

  1. (a) that the other party has committed adultery and the parties have lived apart for a continuous period of at least one year;
  2. (b) that the other party has behaved in an intolerable way and the parties have lived apart for a continuous period of at least one year;
  3. (c) that the parties have lived apart for a continuous period of at least two years and the other party consents to a divorce order being made;
  4. (d) that the parties have lived apart for a continuous period of at least five years.
(2) In relation to an application for a divorce order "continuous period", in subsection (I), means a continuous period ending immediately before the application is made.'.

Mr. Leigh

I am grateful to the Lord Chancellor's Department for the considerable help that it has given us in drafting the amendments, and I hope that my hon. Friend the Minister will confirm, when he sums up, that the amendments' effect is simply to leave the present law as it is, except to ban quickie divorces of under one year. We believe that it is important to give the House an opportunity to vote on such a matter.

The amendments may look fairly complex to hon. Members who seek to understand them, but, as I have said, we took considerable advice. Consequential amendments may be necessary on Report if the Committee votes for these amendments in principle at 7 pm.

The backdrop for this important debate is the marital breakdown crisis. Each year, 158,000 marriages—41 per cent.—end in divorce. Moreover, there is huge and mounting evidence, which I am sure would convince anyone, that children are suffering as a result of the divorce epidemic: children of divorced parents tend to be worse educated, more likely to become unemployed and less likely to be able to sustain stable marriages themselves.

Many of us feel that what is needed is not a Bill to allow easier or slicker divorces, but a campaign in favour of marriage; but we can debate that on another occasion. This afternoon, we are simply debating whether we should retain the requirement either to give a reason for wanting a divorce or to allege fault.

Those who support the Bill and oppose my amendments say that the present law simply does not work—that it does not stop divorces, but makes matters far worse. We claim that quickie divorces are to blame for much of the problem, but the supporters of the Bill argue that the present law breeds acrimony, and that, if there is conflict in a marriage, it is better for the partners to obtain a quick and easy divorce than to stay together. They say that they want to "humanise" the whole process.

All those arguments are very beguiling; that is why many hon. Members support the concept of no-fault divorce. However, many of the same arguments were adduced back in 1969 in California, where, for the first time in American history—until then, American law had been very similar to our law—the concept of no-fault divorce was introduced by Governor Reagan. At that time, there was a "happy divorce" movement in California. All the arguments that I have just mentioned about the present law were used then to persuade Governor Reagan and his colleagues to introduce no-fault divorce, and his example was followed in all 50 states of the Union.

Interestingly, just when we are thinking of copying Governor Reagan's legislation, there is enormous controversy in the United States about no-fault divorce. Many states are examining the position, and at least six have produced Bills seeking to repeal the no-fault divorce legislation. I shall not quote from obvious sources, although I could: there has been considerable criticism of no-fault divorce by America's right wing.

A Democrat-based foundation, the Council on Families in America, has submitted a report entitled "Marriage in America". The report, headed "The Failed Revolution", states: The evidence of failure is overwhelming. The divorce revolution—by which we mean the steady displacement of a marriage culture by a culture of divorce and unwed parenthood—has created terrible hardships for children. It has generated poverty within families. It has burdened us with unsupportable social costs. It has failed to deliver on its promise of greater adult happiness and better relationships between men and women. Hillary Clinton, who is not noted as a right-wing guru, has written: for much of the 1970s and 1980s, many believed that a bad marriage was worse than a good divorce. Now, however, we know that children bear the brunt of failed marriages and divorce. Divorce has become too easy because of permissive laws and attitudes.

Dame Elaine Kellett-Bowman (Lancaster)

Does my hon. Friend accept that, every time people in this country have tried to "reform divorce", as they call it, they have always said that it will lead to fewer divorces, but that on every occasion it has led to more divorces?

Mr. Leigh

My hon. Friend is correct, which is why we should consider these matters very carefully—it is a very risky business.

The divorce rate doubled within two years after we passed the last divorce legislation, in 1969. I want to be fair to those who supported that legislation. Many of them argued that there was a backlog of cases, or that there may have been other reasons that contributed to the doubling of the number of divorces; but there was a doubling in the number of divorces. In America, since the introduction of no-fault divorces, there has been a 20 per cent. increase in the divorce rate.

Sir Anthony Grant (South-West Cambridgeshire)

That fact has been demonstrated by research not only in America but in this country—notably in Cambridge, by a very learned professor of criminology. He produced a report that showed very clearly that juvenile delinquency stems from causes at a very much earlier stage, and primarily in cases in which there has been a broken family.

Mr. Leigh

I am very grateful to my hon. Friend. I think that both sides of the argument accept the catastrophic effect of divorce on children. Later in my speech, I might quote a study that demonstrates that there is mounting evidence that the catastrophic effect on children is not produced so much by acrimony in the marriage or even by the divorce proceedings, as by the divorce itself—because one parent is absent permanently from the matrimonial home.

Mr. Patrick Nicholls (Teignbridge)

I am grateful to my hon. Friend for giving way, because, although I shall not come to the same conclusion as he does, I accept what he has just said is the key to the issue. The fact is that divorce produces all the consequences he has just mentioned.

As a former divorce lawyer, I do not understand why my hon. Friend thinks that, if one approaches a marriage in crisis or a marriage that is effectively over and produces "a fault"—whether it is an act of adultery, an act of unreasonable behaviour or an act of desertion—it will reinforce marriage. How on earth will merely producing "a fault" and saying that it is the instrument of dissolution reinforce marriage? I do not understand that thinking, and it rebels completely against all the experience I gained when I was helping people to come to terms with the consequences of divorce.

Mr. Leigh

I am grateful to my hon. Friend, and I shall deal with his points in some detail, because they are, of course, central to our arguments.

We do not claim that divorce legislation or Parliament can stop people getting divorced, but one answer to the point made by my hon. Friend the Member for Teignbridge (Mr. Nicholls) is that, to divorce under current legislation—as he well knows as a former divorce lawyer—one does not need to allege fault. There can be a separation, and one can achieve a divorce with no fault and no consent after five years, or with no fault and consent after two years.

The recent, much publicised divorce of the Duke and Duchess of York was based not on a quickie divorce but on a two-year separation. They remain, as we know, the best of friends after their divorce. I do not think that that divorce, which occurred under current legislation, has contributed to acrimony or bitterness or affected their children.

The answer to the question of my hon. Friend the Member for Teignbridge is that, while Parliament cannot stop people getting divorced, it can lay down a moral cornerstone or a moral foundation for the nation. It can provide some guidance. We believe that that is what the existing law does, and that is why we believe that it should be retained.

Mr. David Chidgey (Eastleigh)

I take the hon. Gentleman back to the figures he quoted about the doubling of the divorce rate after the relaxation of divorce law. Could he contrast that with any statistics on changes in the number of couples who separated, either legally or through some less formal arrangement, and tell us whether the number of separations decreased as the number of divorces increased? Separation and divorce cannot be the same thing.

Mr. Leigh

If the hon. Gentleman will forgive me, I do not understand the point he is making, and I do not think that it is germane to the argument. I do not want to lengthen this debate over statistics, because we know that they can prove anything. As we all know, however, it is undeniable that divorce has dramatically increased in this country, and that we have more divorces than any other nation in Europe. I and those who share my views argue that there is a crisis. We may not be able to stop people getting divorced, but do we want to make divorce even easier, given the state we are in?

I was referring to the American experience. Why should we look into the crystal ball or examine statistics when we can read the book? The book is open in front of us—the American experience is there for us to see.

Ms Jean Corston (Bristol, East)

Will the hon. Gentleman give way?

Mr. Leigh

I shall finish this point and then give way.

Six American states now have Bills before their legislatures that would repeal no-fault divorce. They are Oklahoma, Michigan, Iowa, Idaho, Alabama and Minnesota. The matter is also under discussion in New York, Pennsylvania, Illinois and Georgia.

Ms Corston

The hon. Gentleman keeps saying that the purpose of the amendment is to make divorce harder, or at least not to make it easier than it is now. Those of us who have worked as family lawyers know that, under the present divorce law, often when clients ask how they can get divorced, they are told that they have to wait two years to show that they can no longer live together and that the marriage has irretrievably broken down. They often say that that is too long, and ask whether they can get a divorce more quickly.

The answer is that they could allege adultery or unreasonable behaviour and be divorced within six months. The Bill is going to make divorce harder, and make people think about it more thoroughly than they do when they can allege fault.

Mr. Leigh

The hon. Lady is making my point. That is the problem with the present divorce legislation. The fact that people can within three or four months obtain a divorce based on fault or allegations of unreasonable behaviour or adultery, means that divorce lawyers often advise them to make such allegations. That is what is wrong with the existing divorce law, and it is why we fully support Ministers who want to ban divorce being obtainable in under a year. The hon. Lady makes my point. I am not in favour of quickie divorces.

Sir David Mitchell (North-West Hampshire)

Does my hon. Friend agree that part of the problem with the existing system is that, as soon as a case gets into the hands of solicitors, clients get into a confrontational situation? It is that situation which poisons the atmosphere and makes it worse for the children and harder to reach a settlement. Would it not be much better to avoid confrontation and see where a reconciliation process leads, without the usual tension and crisis?

Mr. Leigh

We all agree, and, although the Opposition spokesman seeks to amend it, the Bill as drafted unfortunately gives no time for reconciliation. It provides for a year's waiting period, but that is a period in which there can be mediation over the division of assets and issues affecting the children. The Bill does not provide time for reconciliation, which we want to build into it. Under the existing legislation, lawyers advise potential clients that the way to get a quick divorce is to allege fault. I agree with my hon. Friend that that breeds acrimony.

My argument is that it is wrong that someone who has been married for a considerable time should not have to be given any reason for the dissolution of the marriage, and that that person's partner is being granted a divorce on demand. Is that fair? That is the question that the Committee must consider very carefully.

Mr. Stephen Timms (Newham, North-East)

Does the hon. Gentleman accept that the amendment does not remove the problem that there will still be an incentive to make an allegation of fault—possibly a fictitious one—because there will still be the possibility of obtaining divorce more quickly that way?

Mr. Leigh

Not, of course, if the Committee accepted my subsequent amendment at 10 pm—that is the simple answer to the hon. Gentleman's question.

Why will the Bill not work? Why will it not achieve the objectives in which we all believe?

Mr. Win Griffiths (Bridgend)

I listened with interest to what the hon. Gentleman said about America. From all the briefing material that we have been sent, I understand that several other countries, such as Australia, New Zealand and Canada, have no-fault legislation. Can he tell us a little about what happened to divorce rates in those countries following the introduction of no-fault?

Mr. Leigh

Yes, I can. There is some dispute about Australia, because the rate went up considerably and then seemed to settle down, but it seemed to increase by about 11 per cent.

Opposition Members might think that they must pass the Bill unamended because acrimony is so bad. They should not be under any illusion that the Bill will not lead to more divorce—it will; it will make divorce easier. In considering how to vote at 7 o'clock, hon. Members should consider very carefully which is more damaging to society—the fact of divorce or supposed acrimony in the divorce process. The Bill's main purpose is to get rid of acrimony, but of course the truth is that it will not.

Last year, there were only five divorce trials in this country. Most divorces are based on petition, and one obtains one's divorce by post. There were, of course, a huge number of trials about very acrimonious disputes over division of property and children, and they will go on.

Whatever the Bill says, whatever its worthy arguments for mediation, one or other partner will be advised by their lawyer either of their rights or that the lawyer should be present at the mediation process, so such legal disputes will continue. The Bill is therefore addressing the wrong target. In Scotland, there is less acrimony, because assets accrued through marriage are divided 50-50. In our system in England, the courts are given almost complete discretion. That is what breeds so much acrimony. We are, first, not dealing with the acrimony issue, and, secondly, sending out the wrong message.

There is another point on acrimony. What about the bitterness of the injured party if no-fault divorces were introduced? Occasionally there are injured parties. We are not always equally to blame in life, although often we are partly to blame. What about the bitterness, the feelings of rejection and the denial of rights of the injured parties to have their day, even on a divorce petition? Those things are being swept away by the Bill, which is very dangerous.

It is therefore not surprising that the Bill is enormously controversial, right across the political parties. Not only Conservative Members feel strongly about it. Norman Dennis, a respected Labour party supporter and academic, said in his book "English Ethical Socialism": The institution of marriage protects children. Generations of children will not welcome an Act which sends out the message that the sexual convenience of adults is of paramount importance. Many ex-Labour Ministers in the House of Lords supported my noble Friend Baroness Young in the amendments she tabled.

There have been a number of academic studies on the matter. The Exeter study, for instance, says on page 55: The most significant factor of those examined was the reordering of the family—the loss of a parent on one or more occasions—rather than the presence of serious conflict or violence. That was most closely associated with children's poorer outcomes as measured". The academic world, politicians, and lawyers themselves are divided on the Bill.

If the Bill were so obviously needed, why has the Scottish Law Commission rejected it out of hand? A jurisdiction not so very different from our own has rejected no-fault divorce. There is not even any overwhelming evidence of public support for the Bill. A MORI poll conducted by the Lord Chancellor's Department showed that 60 per cent. of the public reject divorce based on the unilateral demand of one party.

Mr. John Patten (Oxford, West and Abingdon)

Has my hon. Friend noticed that not one Scottish or Northern Irish Member has spoken in this place in favour of the legislation?

4.15 pm
Mr. Leigh

I am very grateful to my right hon. Friend for making that point. What he says is not surprising, because, in Scotland, 63 per cent. of divorces take between two and five years, and in Northern Ireland, 75 per cent. of divorces take between two and five years. This is largely an English problem.

Quickie divorce is not just the creation of Parliament. It was the creation of the Lord Chancellor's Department in 1977, when the period between decree nisi and decree absolute was cut from six months to six weeks. The Department, although not alone, has to a great extent created the problem of quickie divorces. My answer, therefore, to the hon. Member for Bristol, East (Ms Corston) and to others who have intervened is that we should get rid of quickie divorces.

Sir David Mitchell

Surely, by the time a decree nisi has been granted, a person is effectively divorced, because the whole thing has broken up. The fact that one shortens the time between decree nisi and decree absolute does not affect the fact that the family has come to an end in terms of the operation of normal family life.

Mr. Leigh

The point that my hon. Friend is missing is this—and the hon. Member for Bristol, East made this clear from her own experience. When one is contemplating divorce, one's lawyer will advise one, that if one wants to get divorced within three months and does not want to wait two years, the only way in which to do so is to make allegations. That is what is wrong with the present system.

Dame Elaine Kellett-Bowman

I too was a divorce lawyer. I often found that a middle-aged lady would come to our chambers who had loyally supported her husband for many years by helping him to get on in his industrial life and by bringing up his children. In fact, she had done everything she could. Her one crime was that she had become middle-aged, fat and possibly a little dull. Her husband, therefore, wanted a shiny new model. In what way has such a woman ever committed a fault? As my hon. Friend said, she would feel bitter if she were just discarded like an old glove with no good reason being given.

Mr. Leigh

I understand that my hon. Friend has been very happily married for a long time. She is a beacon and an example to us all.

Another answer to my hon. Friend the Member for North-West Hampshire (Sir D. Mitchell), which may be more germane to the second debate, is that if, under the Bill as unamended, we reduce the time to one year, people will have to settle everything within one year. Under present legislation, after the decree nisi, one can go on talking and arguing about ancillaries. Lawyers refer to disputes over children and property as ancillaries. However, that is another argument, which we can have after 7 o'clock.

The Parliamentary Secretary, Lord Chancellor's Department (Mr. Jonathan Evans)

I do not want to intervene at length during my hon. Friend's argument, because it is important that he should have the opportunity to develop it. However, it would be wrong if the Committee were of the view that 12 months is the period during which arrangements in relation to finance and property must be concluded. My hon. Friend will be aware that the Bill permits that period to be extended by up to two years.

Mr. Leigh

I am grateful to my hon. Friend for that intervention, because he makes the point that I want to make, especially forcefully, in the second debate. Under the Bill, people will not be required to settle everything within 12 months but I suspect that that will become the expectation. Under schedule 1, if one goes to the court and argues that one party is being obstructive—one does not have to prove that—the court can override the objections of the other party. That is, of course, more substantially a matter for the second debate.

However, that point is why we say that, where there is a dispute, where children are involved or where there are difficulties, the period should certainly be extended beyond 12 months. There should be a difference between how quickly a person obtains a divorce if there is consent and no children, and how quickly a divorce is obtained if there is a dispute or if there are children. My hon. Friend the Minister is not being entirely fair.

Mr. Richard Tracey (Surbiton)

May I draw my hon. Friend out a little on the distinction between the view of the Scottish Law Commission and the advice of the English Law Commission? It is interesting that Scotland has not decided to go down the road that is proposed in the Bill. I believe that my hon. Friend said that public opinion in England was against the line taken in the Bill. Does that mean that the English law commissioners totally ignored the views of our people?

Mr. Leigh

It is not one of the duties of the English Law Commission to consider public opinion. As my hon. Friends and I will argue, one of the problems with the Bill is summed up by the question: who has been calling for it? Have our constituents been writing to us in droves asking for it? Was it in the Conservative party manifesto? Or was it driven by lawyers sitting in the Law Commission—one of whom, who is now a High Court judge, has questioned the very institution of marriage?

Should we in this Parliament make laws based on what the Law Commission advises, or laws based on our own experience and on common sense, and on what our constituents tell us is necessary? Every opinion poll tells us that our constituents support the institution of marriage, and do not want divorce to be made easier.

Dame Angela Rumbold (Mitcham and Morden)

Will my hon. Friend continue along that line? Considering public opinion, and reading the letters that I have had from my constituents, it seems to me that the institution of marriage is greatly valued, that it is regarded as a contract made between two people, partly for their mutual enjoyment but also for the procreation of children, with the intention that the children will be brought up within that marriage.

It therefore seems an odd idea to try to undermine in any way the moral obligation that the two people feel towards each other and the basic contract that they make between themselves. I should have thought that we would want to concentrate our efforts on trying to ensure that that contract was made more rather than less solid, and I hope that my hon. Friend agrees with me.

Mr. Leigh

I am grateful to my right hon. Friend, and also for what Cardinal Hume said at the end of last week—that, as a society, we must put far more emphasis on preparation for marriage. I do not know whether hon. Members know that, at a civil marriage ceremony in a register office, there is no requirement to make any promises whatever about the long-term stability of a marriage.

Every society and every culture, throughout history, has recognised that the best way to bring up children is in a secure and stable marriage. That is why every society and every religion in the world envelops the marriage ceremony with solemn vows. It is recognised that human nature is weak; that is why we are required to make those vows, to buttress our determination to stay together. Is the message that we want to give to the nation as a whole the idea that those vows mean nothing, and that, on the demand of just one partner, they can be broken?

Dr. Robert Spink (Castle Point)


Mr. Chidgey


Mr. Leigh

I give way to my hon. Friend.

Dr. Spink

My hon. Friend may remember that, in a previous debate, I called for marriage to be made harder, with the Churches leading the way in preparing people for marriage, rather than for divorce to be made easier. As for public opinion, is my hon. Friend aware that a MORI poll in 1993 showed that 56 per cent. of people who wanted a change in that area of the law wanted to see divorce made harder?

Mr. Leigh

I am grateful to my hon. Friend for making that point, and now I shall give way to the hon. Member for Eastleigh (Mr. Chidgey).

Mr. Chidgey

May I draw the hon. Gentleman back to a comment made a few moments ago and supported by several of his hon. Friends, concerning the case of injured parties who have suffered considerably through divorce through no fault of their own and who, as the hon. Member for Lancaster (Dame E. Kellett-Bowman) explained, are left bereft? That is a real problem, and it is important to realise that either partner may be in that situation, when a divorce of which he or she had no foreknowledge nor any wish to be part of, is forced upon him or her. However, I would be grateful if the hon. Gentleman would explain to the House how his amendment would overcome that problem.

Mr. Leigh

If someone is not at fault, the present law makes adequate provision. People simply have to wait two years, or, if there is no consent, five years. If one is the injured party, one will not be able to stop the divorce. We accept that; we cannot prevent people from getting divorced. But at least the fault of the other party—whether that be adultery, desertion, unreasonable behaviour or, in the words of my new clause, "intolerable" behaviour—will be on the divorce petition, and in that sense the injured party will have had his or her day in court.

Mr. Phil Gallie (Ayr)

Much has been said about the situation in Scotland, and it is time that a Scottish voice was heard. I will be in the Lobby tonight with my hon. Friend. However, if there were a Scottish Assembly, I would be able to go into the Lobby with him to judge English law, but if there were a change of heart in Scotland, I would not be able to take part in the debate.

Mr. Leigh

That is interesting, but I had better not be beguiled down that path.

Mr. David Alton (Liverpool, Mossley Hill)

I support the hon. Gentleman's argument, and I welcome his amendments. Is he heartened not only by the shift in public opinion that has been alluded to but by the fact that commentators such as Ruth Deech and Melanie Phillips, who come from a very different part of the political spectrum to him, have argued strongly against the abolition of fault? They recognise, as many of us do, that it is absurd to pretend that we can remove fault by Act of Parliament. There will continue to be fault; surely redress is the issue.

If people feel that they cannot get redress in law and can be divorced on demand against their wishes, the Bill will have brought an unacceptable principle into British law. Does he accept that the children who are littered throughout our broken-hearted communities are the casualties of divorce? There are 750,000 children who no longer have access to their fathers. The collapse of family life is one of the major causes of our social problems.

Mr. Leigh

The hon. Gentleman presses his point well. Ruth Deech has written penetrating articles and made speeches on that subject.

I was advising the Committee about what we can do. First, we can get rid of quickie divorces. Secondly—this is built into the amendments—we should replace the subjective test of unreasonable behaviour with the more objective test of intolerable behaviour. We were advised to put that in by the Lord Chancellor's Department. Thirdly, we should consider changes to court procedures. We cannot, of course, resurrect divorce trials, but at least judges should be allowed under judges' and court rules to question affidavits. If there is an open-and-shut case of fault, it is absurd that the judge should not be allowed to consider it at all.

Above all, we should not abolish the right of people to demand reasons for their marriages being terminated. Clause 1 states that the objective is to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances".

Mr. Andrew Rowe (Mid-Kent)

I am slightly at a loss to know what the benefit of fault is, except in the relatively small number of cases in which one party is manifestly not at fault. That is difficult to establish. If the party that is at fault got a less generous settlement than if that party had not been at fault, it would raise all sorts of questions about which parent should have custody of the children. Presumably the settlement should go mainly to the parent with the children. I am not certain what the establishment of fault secures.

Mr. Leigh

I can give my hon. Friend a good reason. It is not because we want to say, "You're guilty, you should admit it." We do not want to build up bitterness in marriages. It sometimes serves a purpose to say, "I'm sorry, I was wrong." We all know that from our personal relationships. If I broke the rules of the House and the Chairman of Ways and Means called me to order, he would expect me to apologise, and we could then move on.

If we try to solve problems on the basis of no pain, no shame and no apology, it can make it even harder to start again and rebuild a relationship. If our present fault or reason-based divorce legislation is so bad and is creating all this acrimony, why, every year, do 20,000 to 30,000 couples who have embarked on the process change their minds? Perhaps our present process helps many people to resolve their difficulties to some extent, and decide that they must try to make their marriages work.

Mr. Patrick Nicholls (Teignbridge)

My hon. Friend said that everyone is entitled to know, in a legal context, why their marriage has failed. Does he accept that marriages do not fail because of an act of adultery, desertion or unreasonable behaviour, but because, for a variety of reasons, they simply will not work any longer? The law as an instrument is capable of recognising that fact, but is incapable of carrying out the sort of moral audit which we might want in an ideal world but which, in the reality of a law court, is completely impossible.

4.30 pm
Mr. Leigh

That is my hon. Friend's view and the view of people who want to promote no-fault divorce—they all say that it is six of one and half a dozen of the other.

Mr. Nicholls

It is not.

Mr. Leigh

It is to a certain extent. In fact, Lord Simon of Glaisdale, a former president of the family law division, who opposes no-fault divorce and spoke eloquently in the other place, pointed out that in his experience—he is a practitioner in the field—most divorces result mainly from the fault of one party. My hon. Friend is right: there may be circumstances that lead up to that fault, but that former president of the family law division recognises that fault should be acknowledged in divorce proceedings.

Mr. Tim Devlin (Stockton, South)

There seems to be a fundamental fallacy in my hon. Friend's proposal. Present law is not based on fault—one is granted a divorce on the ground of irretrievable breakdown of marriage. That is evidenced in one of five ways, but none of those is grounds for divorce. At the moment, we have no-fault divorce.

Mr. Leigh

That is a semantic point, if I may say so. Under existing legislation, of course irretrievable breakdown is the ground for divorce, but one has to give a reason or allege a fault, or there has to have been a separation. Under the unamended Bill, one does not have to give a reason—it is divorce on demand. One proves irretrievable breakdown of a marriage by saying, "I divorce you." After one year, one can obtain a divorce without giving a reason.

Sir Michael Neubert (Romford)

Is not the problem the fact that the Bill, this debate and even my hon. Friend's speech in moving his amendment, concentrate on the point of marriage breakdown, whereas, if we are to avoid the terrible crisis of divorce in such high numbers that he has described, we must go back to the original commitment? Is not the removal of fault the equivalent to saying that there is no contract, and therefore that there can be no breach of contract? Is not my hon. Friend trying to establish once again the commitment that comes at the start of a marriage and which will be so much more important later in the event of difficulties?

Mr. Leigh

I am grateful to my hon. Friend, as he has put his finger on it. We all accept that the marriage contract should be the most solemn contract that one makes in one's life. It should be uniquely unbreakable. In fact, it will be uniquely breakable. In any other contract, one has to allege a fault. As one of my hon. Friends said on Second Reading, if one buys a television set and wants to sell it and get one's money back, one alleges a fault. In this, the most important contract of all, one has to allege nothing. One simply says that the marriage is over. None of us thinks that that is the way to proceed.

Mrs. Elizabeth Peacock (Batley and Spen)

Does my hon. Friend accept that, under the present proposals, if a couple get married on Saturday, and if, on the same day, they take out a finance agreement for 24 months, they have a firmer commitment to that agreement to purchase than they have to the marriage that they are embarking on, which is nonsense?

Mr. Leigh

My hon. Friend is right.

Mr. Donald Anderson (Swansea, East)

I have been trying to follow the hon. Gentleman. He talked about a contract and a breach of contract. In our civil courts, judges are regularly able, knowing the law, to state whether there has been a breach of contract in a case. For example, in an industrial accident, a personal injury accident or an accident in which someone has been run down, judges are able to say who is responsible and whether there has been contributory negligence. The question is whether, in a short hearing, a judge is capable of ascertaining whether fault in the lifetime of a marriage is apportioned 50:50, 60:40 or 75:25, and, secondly, whether any proper public purpose is served by that attempt.

Mr. Leigh

The hon. Gentleman is a distinguished lawyer, and, as he well knows, that is precisely why the Divorce Reform (Miscellaneous Provisions) Act was introduced in 1968, and why we have only four or five divorce trials every year. We are not saying that we can or should return to the days of the full-blown divorce trials that we saw in the 1930s—we realise that we cannot do that, whatever our private opinion about divorce and the sanctity of marriage may be.

We are saying that a general public understanding and consciousness is underwritten by the existing law, that, if people want to get a divorce, the State will not stop them and they will get their divorce, but that marriage is for life, and that, if people are going to get a divorce it has to be based on separation of more than two years, on fault, on adultery or whatever. It serves a purpose. I assure the hon. Gentleman that we are not seeking to return to the old divorce legislation that operated before 1968. We realise that we cannot do that, whatever our private view may be.

Hon. Members have been patient, and I hope that they understand that I have had to give way to the hon. Members who wished to intervene. I shall now draw my remarks to a conclusion.

What sort of message do we want to send to young people? Do we want to send out the message that solemn promises, often made in a religious context, do not matter? Do we want to say that desertion does not matter? Do we want to say that adultery is not reprehensible? Are we saying that the law does not influence behaviour?

Do we deny that the public have a right to express a point of view? Do we deny that this is a solemn moment in our history, because, for the best part of 2,000 years, our law in this area has been based on our Judaeo-Christian inheritance? I believe that there was no-fault divorce in Roman times. However, in the past 2,000 years, the divorce law has been based on that Judaeo-Christian inheritance. This afternoon, do we wish to sweep that all away?

The Chairman

I remind hon. Members that with this amendment the Committee is considering amendments Nos. 6 and 20, and new clause 1.

Dr. Jeremy Bray (Motherwell, South)

My amendment is amendment No. 6, which states: Clause 5, page 3, line 22, at end insert— —(2A) If the parties have entered into an agreement, following counselling by a body approved for the purposes of this section by the Lord Chancellor, not to make a statement unless each of them has sought further counselling (either from that body or from any other such body), any statement made by either of the parties, or by both of them, is to be disregarded unless the agreement has been complied with within the period of three months ending with the date on which the statement is made. I am grateful to the Lord Chancellor's Department and to parliamentary counsel for helping me draft my amendment. I puzzled long and hard over the question whether counselling, reconciliation and attempts to save a marriage can have any part in the divorce process. They have precious little to do with this Bill. If one party believes that the marriage could be saved and wishes to save it, provision is effectively limited to the giving of information and does not extend to counselling, to the financing of counselling or to support of it in any way.

There are people who will use any provision out of malice to delay or to refuse divorce. There are other people who believe, out of love and a sense of reality—perhaps a greater sense of reality than their partner—that the marriage can be saved and they want to make every effort to do so, even while their partner is pursuing the divorce process. Counselling, where people have no wish to be counselled, is futile. Any requirement for counselling may rapidly become a dead letter, as indeed the requirement to give information on counselling has done in previous legislation since the Divorce Reform Act 1969.

The amendment caters for people who have made a commitment not only to their marriage partner but to seek help to maintain the marriage if it comes under strain. They may wish to seek help from the community. The amendment opens the way to serious preparation for marriage and support to maintain the marriage during its course.

At present, a conscientious clergyman will meet a couple for two or three sessions in preparation for a marriage, but his or her resources, and the resources of the registrar and the register office, are extremely limited. Properly resourced and supported, marriage preparation sessions may become a highly popular institution. People are required to pay fees for various purposes when they marry, and they incur much heavier expenses at their weddings in a great many cases. A modest fee for marriage preparation and continuing support would not be an objectionable imposition.

A well-managed counselling organisation would keep in touch with couples throughout their married life, as a properly functioning church does with couples who have been married in that church, and would be there to give help if at any time during the marriage it were called on to do so to maintain the marriage.

In making an agreement first to seek counselling at the time of marriage or during its course when there are no problems, the couple can accept that, in the last resort, the court will require them to seek further counselling before they seek divorce under the provisions of the amendment. The divorce process will not be affected, but such an arrangement would work on the fortunes of a marriage at an earlier stage, preventing it from sliding into irretrievable breakdown.

One of the Bill's difficulties is that its sponsors see only the fact of marriage and its breakdown. They do not witness the increasing strains that gradually lead to the breakdown of marriage, and the thousand and one times when it is possible to budge it back or it may slide further forward. It is in that constant help in maintaining the marriage that sensitive counselling has a role.

Some years ago, the Church of England called for the introduction of two types of marriage—one for those who wished to make a lifelong commitment and another for those who would qualify that commitment in various ways. Rightly or wrongly, the Church decided against it, on the grounds that, understandably, it did not wish to detract from commitment in any marriage.

However, the amendment does not seek to set up two types of marriage. It recognises the divorce law and it sets up a reservation, before that divorce law can take effect, that counselling will be sought.

If it is argued that the provision belongs in a marriage Bill, not a divorce Bill, that is not the choice of the House. Many of us feel that, indeed, a commission on marriage and a Bill on marriage is the only context in which a Law Commission report should have been pursued on divorce law reform. Marriage and divorce cannot be treated separately in law in our society. There is very little in the Bill as it stands relating to marriage. Something can usefully be introduced into it so that divorce is viewed in the wider perspective of a lifelong marriage or its breakdown.

It is possible to strengthen the provision for counselling elsewhere in the Bill, and my hon. Friends have tabled amendments to that effect. I am advised, however, that, if it is intended to link the counselling to marriage preparation and guidance in establishing whether a marriage has irretrievably broken down, this is the place to do it.

Not only does divorce law reform affect marriage breakdown, as we argued on Second Reading and will argue continually in Committee, but it is possible to do something positive and use the Bill to strengthen the institution of marriage by direct provisions such as preparation for marriage, counselling, support for counselling and the maintenance of marriages. The amendment's intentions could no doubt be provided in other ways, and the Committee may exercise its ingenuity in exploring those alternatives later in the proceedings.

4.45 pm
Mr. Nicholls

I was interested to hear my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) outline why he had reached particular conclusions. I agree with much of what he said, although I do not agree with the conclusion that he draws. He made the point—as did the hon. Member for Motherwell, South (Dr. Bray)—that we should be talking about a campaign for marriage, as divorce is the ultimate failure of the usefulness of marriage.

I was somewhat puzzled, initially, that a Conservative Administration should approach the matter with a view to altering divorce law rather than by addressing the social context of marriage, to which my hon. Friend referred. I found that slightly strange. I am concerned also that a commission of lawyers is the driving force behind the proposals. As a lawyer, I draw two conclusions: first, that I am entitled to be rude about lawyers; secondly, that I am entitled to say that lawyers are not the best people to conceive legislation of that sort.

I am distinctly unhappy about a measure that was not trailed in the manifesto and that has been prompted by the academic ideas of lawyers on the Law Commission. In some extraordinary way, it has emerged as party policy and, as such, must be accepted. The measure seems completely devoid of politics, which I rather favour.

There is nothing ignoble about politics: it is a matter of trying to identify the aspirations of the people who send us here. Sometimes, the aspirations of the Opposition and the Government parties will differ. What brings me here is perhaps different from what brings Opposition Members to this place, but the political process is the same in both cases: each of us tries to reflect the views of our constituency and answer to it. I must admit that, initially, I could not conceive what Conservative constituency had called me to debate a Bill such as this.

Mr. Patten

Has my hon. Friend received any letters in support of the Bill from any known Conservative supporters—of which there are a great many in his constituency as he is such a popular and excellent Member of Parliament?

Mr. Nicholls

My right hon. Friend may say that, and I could not possibly contradict him. I do not know the politics of the two people concerned, but I have received letters from Cardinal Hume, the Archbishop of Westminster, and from the Bishop of Liverpool writing on behalf of the Archbishop of Canterbury. I would not hazard a guess as to whether they are Conservatives—my right hon. Friend may try to make the point that they are not my constituents, but that is not important. I do not know where those eminent people have their holiday homes—perhaps that will qualify them as my constituents.

My right hon. Friend makes a serious point. When confronted with a piece of legislation with which I was profoundly out of sympathy, I thought it would be a good idea to canvass the views of the Roman Catholic Church and the Church of England. That is not to say that I intended, having sought their views, to put my independent judgment to one side, but I was greatly assisted, reassured and impressed by the quality of the arguments advanced by Cardinal Hume and the Bishop of Liverpool. To the extent that I have made any sort of odyssey in relation to the issue, I was greatly assisted by those contributions.

I was assisted also by the fact that politics entered the process for the first time when my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department held negotiations with my colleagues and me in an effort to identify a possible Conservative agenda in the Bill. I was impressed also by the approach of my right hon. Friend the Chancellor of the Duchy of Lancaster—I hope that he is pleased rather than embarrassed—when dealing with the matter on Second Reading. I began to appreciate that several points needed to be examined.

It was possible simply to walk away from the Bill, saying, "I'm not quite sure how it got here and I will not play any part in it," but I decided not to take that view because of the responses that I received from both the Roman Catholic Church and the Church of England and as a result of conversations that I had with my right hon. and hon. Friends. There was another reason for my decision: although we may lament the fact that it ever appeared in the first place, if the Bill is to pass into law—which seems likely—we have an obligation to ensure that it performs a useful purpose. It troubles me greatly that, if the Bill is left as it is, the one-year period of separation for pause and reflection would go through unchallenged, which would be a mistake. The Bill also poses the problem for the Committee—with which my hon. Friend is dealing—of whether fault should be brought back into divorce.

It is always dangerous to make a speech in the House on a subject about which one knows something, and I declare an interest in that I do not do that often. However, for many years I made my living as a divorce lawyer. I did not handle just a few divorces, as many other humble country solicitors do, but practised nothing but divorce law. That was a few years ago, but people do not change greatly over the centuries. I learned fairly quickly that the misery and unhappiness that two people deadlocked in matrimony can cause each other was a bottomless pit.

When I was a practising divorce lawyer in my 20s and 30s, at least the point was to some extent academic—in so far as the misery of another human being is ever academic. I have grown older and become greyer, and I am at that miserable time in life, in late middle age, when the marriages of my friends, which I thought were as stable as I believe my own to be, are cascading around me. That brings home to me how utterly miserable is divorce.

The prospect of bringing fault back into divorce must be addressed. I say without any attempt at sarcasm that I understand to the hilt that which my hon. Friend is trying to achieve. A contract of matrimony is not the same as a hire purchase contract. On one level, a marriage contract should be harder to enter and leave—but it is anyway totally different. I have seen in the past the way that fault has been used as an integral part of the divorce mechanism, and it does not work. If fault has to be produced, in conjunction with time or without time, one must pull fault out of a hat in a prize rabbit way and say, "Guess what. I've found a fault. I've found an isolated act of adultery. I've found a desertion. I've found a pattern of unreasonable behaviour."

Persons who have not practised in the divorce courts as long as I did can have no conception of the difficulty of using a judicial process to carry out that sort of moral audit, which is what we are talking about. Those of us who are inclined superficially to believe that we should reintroduce fault are looking for a certificate of moral righteousness to show that one person has measured up to their obligations and to bring upon the person who has not a sort of contrition that will help to carry them through. That is a marvellous aspiration, but it cannot begin to work.

What about the situation in which a wife deserts her husband and commits an act of adultery? That is a bad enough fault, but wait a moment. She may claim that she was driven out by a hard and domineering husband, so perhaps the fault was his. But hold on another moment—the husband may claim that he had to control and direct his wife because she was a rotten housekeeper, was getting the finances wrong and the children were suffering. Then the wife might say, "Come off it. I married at 18. I didn't know enough, so obviously I was going to get it wrong." What is the answer? God knows—and He is not going to come down to tell us to help us with our deliberations.

Such a scenario is far from fanciful, as anybody who has practised in the courts knows. It is unreal to think that, in such a complex pattern, we can use the courts to work out definitively and fairly who was at fault and who was not. I am just about old enough to remember how it used to be in the old days, when people had their day in court. No video nasty that I have ever seen is more squirmingly embarrassing and heartbreaking than two people having their day in court, trying to explain to the man up there in the wig how they felt and why they acted as they did. It does not work. I do not see how a moral audit in which the circumstances could be brought out and expanded, to produce a definitive version of events, could ever be workable.

Mr. Bernard Jenkin (Colchester, North)

I think that everyone in the House will agree with my hon. Friend's analysis that the attribution of fault at the point at which the marriage is breaking down is destructive, but how can we allow couples to enter the contract of marriage—the most solemn contract that we ever enter—on the basis that a breach of that contract carries no fault and no penalty, although there is never no penalty for the breakdown of such a close relationship?

Mr. Nicholls

If I may say so, my hon. Friend has given half the answer to his question in his concluding remark, but the real answer to his question is that we should have started a debate—in many ways, it is the great debate—about how matrimony has got into its current situation. Is there a campaign for matrimony that could reverse the process that we have seen? God knows, there is not much in present-day Britain that readily unites hon. Members on both sides of the House, but very few hon. Members would deny that stable marriage is the ideal. We do not have that now.

Perhaps we should have a joint manifesto for the parties at the forthcoming general election about the subjects on which we agree. A good one for the shopping list would be the institution of matrimony, but we are not in that situation. We have the Bill, and we must decide whether we will do something useful with it.

Mr. Jenkin

with respect, my hon. Friend has not answered my question.

Mr. Nicholls

I have not given the answer my hon. Friend wanted.

Mr. Jenkin

My point is whether it is right to advertise the marriage contract as a penalty-free contract. That is the question with which we are wrestling. The point is not whether there is an easy way through the divorce process, but whether the marriage contract should be advertised as a penalty-free contract, whatever the pain of breaking that contract may be.

Mr. Nicholls

My hon. Friend has again given the answer to his question himself. There is no penalty-free aspect to the failure of a marriage. Of course, we have all met the people who are so callous, so unfeeling or so plain stupid that they can go through the process of divorce and feel perfectly happy at the other end, but they constitute a tiny minority. The reality is broken dreams, broken aspirations, humiliations and pain, not just for the couple, but for their family, their extended family, their children, their whole circle of acquaintances and society itself.

Mr. Jenkin

Will my hon. Friend give way again?

Mr. Nicholls

I shall give my hon. Friend another shot in a moment, but others also wish to speak. My hon. Friend suggested that it takes a law court to impose penalties. A broken marriage imposes penalties that are far more hideous and draconian than anything that any court in today's Britain is likely to dish out. Does my hon. Friend wish me to give way again?

Mr. Jenkin

indicated dissent

Mr. Nicholls

I am surprised that I was able to satisfy my hon. Friend.

Mr. Jenkin

You did not.

Mr. Nicholls

In that case, I shall pick up my hon. Friend's sedentary heckle to confirm that that is not so.

There is some confusion. My hon. Friend the Member for Stockton, South (Mr. Devlin) was accused of indulging in semantics, but to be fair it is not indulging in semantics to make the point that fault is not ground for divorce, even as we sit here today. The irretrievable breakdown of marriage is the only ground for divorce, and it can be proved in five particular ways. That point is more than semantics because the great public outside might think that at least some fault is currently needed for a divorce and that the wicked old Tory Government are removing the concept of fault. That is not accurate.

A second point stems from that issue. At times, there is real confusion in the public's mind and, sometimes, in ours—that when we say that fault will not be present, we are also outlawing conduct. The two are different. The issue that matters most is usually the care of the children, who are the ultimate victims of divorce. Clearly the conduct of the parents, their ability to look after themselves and to handle their own lives correctly will be relevant matters for the court.

I can think of many cases, in which I have acted for one party or the other, in which the divorce went ahead on the grounds of two years' separation and was superficially done amicably and without attribution of fault, but when we came to custody and access to the children, the most appalling, distressing and painful allegations about conduct had to be made because it was only by examining those allegations that the court was able to make its decision about the care and control of the children. That is a reason—a distressing, painful, but necessary, reason—to consider the conduct of the parties, but it is a world away from the insistence that fault should be apportioned between the couple involved.

I accept to the hilt that no Conservative Government should be in the business of making divorce easy, but the idea that fault is in some way a means of buttressing marriage does not make sense to me for one moment. I still wish that the Bill had never come before the House, but in one way it could perform a valuable service. We should be talking positively. We should be advancing the campaign for marriage. We can say that it should be harder to get out of matrimony, and in so doing reinforce exactly the points that have been made by some of my hon. Friends. That is an issue that is covered by the next group of amendments and, accordingly, I shall mention it in no detail now.

There is a real debate to be had about whether one year should be extended to 18 months or two years. That is the way in which those of a conservative inclination could consider the Bill. They could say that the Bill, even now, could be made an instrument for doing something, in a small way, to recognise the fact that marriage is a unique institution. That fact should be acknowledged. That is something that the courts can do. They can say arbitrarily, "If you are going to go into this, it will take you time to get out." That is within the competence of the courts; the allocation of fault, the moral audit, is not.

5 pm

Mr. Michael Jopling (Westmorland and Lonsdale)

My hon. Friend has told us at some length about the agonies that are experienced by participants in a divorce where fault is involved. Would it not be true to say that the agonies of the participants are nothing when compared with those of the children, which seem to be infinitely more important? The evidence suggests that, by moving to no-fault divorces, the number of divorces increases. That process brings with it even more agonies for children. How is it sensible for us to move away from divorces that are based partly on fault? The move to the no-fault concept is likely to cause infinitely more agony to the children of marriages that break up.

Mr. Nicholls

If I accepted my right hon. Friend's analysis, I would accept his conclusion at once. I cannot pretend to have a grasp of all the evidence that may emerge from America, Canada or other overseas places. I make no attempt to disguise the fact that I have come to my conclusions as a provincial lawyer who worked a long time ago in divorce and from personal experiences that I am sure are similar to those of other hon. Members.

Introducing a concept of fault in divorce will not help children. If parents will not stay together, they will not. It would be entirely artificial in many marriages, although not all, to say to the children, who in the end remain, "The court decided that mummy was at fault and daddy was not," or "Daddy was at fault and mummy was not." I do not think that children's interests are served by trying to introduce such a construct.

I believe passionately that, to some extent, we are talking about the wrong issues. We should be talking about the positive side of these matters and examining how marriage ever came to be under such threat. Being a legislator is one thing; to an extent we are today reduced to being undertakers.

Dr. Bray

To the ordinary man and woman in the street, the Bill seems to say—this is what will shape their attitudes—that all they need do to obtain a divorce is to claim that their marriage has broken down. They will be given the impression that either party can say that at any time.

Mr. Nicholls

The hon. Gentleman is entirely correct to say that people may have that perception. In terms of carrying the political debate, the way in which we put over these matters initially was defective. If we consider the detail of the Bill—I am not too sure how many people in the street will do that—it is clear that the court must be satisfied that a marriage has irretrievably broken down.

At present, the situation is every bit as bad as the hon. Gentleman suggested. A solicitor in private practice will know that a party to a divorce may well say, "Yes, I have committed adultery. I will tell you the circumstances briefly. It happened at a particular time in a particular street. I cannot identify the exact address because I do not want the other person to be implicated." The solicitor will look that person straight in the eye and say, "I cannot possibly be party to a conspiracy. I am not quite sure that you mean this," and the response will be, "Yes, I promise you that it is true."

The solicitor then writes out a confession statement, including a pretty paragraph about why the party does not want to identify the other person. That is what happens now. It is thoroughly corrupt. It is corrupt in the sense that it draws solicitors into that practice. There is no ideal way of dealing with the situation that I have described, even now. There are many examples of artificiality.

The final and ultimate consideration is that we cannot force people to remain together and to remain married in any meaningful sense if they do not want to. We can make it harder, however, to get out of a unique contract. That is what the next group of amendments would do. I should like to think that, as a consequence of the debate, we may yet, one day, have an investigation into why we ever, as a society, found our way into the jam that we now face.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)

As was rightly said earlier, there is only one ground of divorce, and that is the irretrievable breakdown of a marriage. I was a divorce lawyer when I was in civvy street. The facts that had to be pleaded in support of irretrievable breakdown were merely facts to establish the main ground. Two of those facts involved no concept of criticism or fault. As was also rightly said, we have a no-fault concept of divorce already.

The proponents of the amendment have signally failed to explain what possible good would come of accepting it and the grouped amendments. What possible good can there be in reintroducing the fault concept, as eloquently stated by the hon. Member for Teignbridge (Mr. Nicholls), who has experience of divorce law?

Another important fact is that we cannot legislate to keep parties together when de facto they have decided that they will not—either both parties or only one. It is not feasible, possible or reasonable to try to do that. We should not attempt to legislate for morality. As I have said before, I believe that it is illogical and intellectually unsustainable for proponents of the fault principle to argue that, by encouraging bitterness and mud-throwing, we shall protect the institution of marriage. Fault has never been a deterrent to divorce.

As for making divorce easier, I ask the following question: How many divorces per annum are refused by the High Court? The answer is very few. There may be a couple of dozen refusals. The idea of making divorce easier is nonsense and cannot be sustained.

Certain problems stem from current law. By pleading conduct, one party is sometimes given a bargaining advantage when it comes to dealing with ancillary matters. There is often a scramble with one party wanting to get in with the first set of nasty allegations before there is retaliation or before the other side decides to throw up his or her hands and say, "I will not be bothered with this. I will let the thing carry on as it is." There seems to be a rush to get in with the first set of insults. That provokes unnecessary and pointless hostility and bitterness.

Even when a couple have agreed that their marriage cannot be saved, there is the possibility under the current system that matters will be made worse by encouraging one party to make allegations against the other. It is interesting to note that the Law Commission commented that those people who responded to its consultation paper confirmed the view that there was every reason to believe that the present law added needlessly to human misery.

Mr. Rowe

The hon. Gentleman makes an important point. When he says that couples agree that their marriage cannot be saved, that is exactly what happens, but I suspect that, in many cases, they mean that they have no idea how to set about saving it. That goes back to what the hon. Member for Motherwell, South (Dr. Bray) said about the paramount importance of finding ways in which acceptable forms of assistance can be found at an earlier stage.

Mr. Llwyd

I agree entirely with that view. It is of the utmost importance. I made the point on Second Reading that we should concentrate on assisting in particular young people going into marriage because the divorce rate among teenagers is horrendously high. They should be counselled into understanding the full obligations that they are entering into in the contract of marriage. The earlier we realise that and get something done, the better it will be all round. Incidentally, that might be a reason why divorce rates have shot up so much in the United Kingdom: we are simply not concentrating on the lead-up to divorce, so I agree with the hon. Gentleman on that.

Mr. Devlin

The hon. Gentleman put his finger on a glaring omission in the legislation. It is called the Family Law Bill, but it deals chiefly with divorce. It should deal also with the circumstances in which marriages are made. I would like couples to go through a much more elaborate procedure, perhaps with counselling or arrangements before people get married. Like him, I have met teenagers of 19 who have been divorced after one or two years.

Mr. Llwyd

That is also a useful and valid contribution.

There is no doubt that the law has made it difficult for a small proportion of estranged couples to get divorced. It does so in an arbitrary way, depending on which facts might be proved. As the Law Commission has clearly stated, the present law can make things far worse for the children. Having parents semi-publicly calling each other all manner of things in affidavits and court documents is not the best backcloth for rearing any child. Despite having a thick-skinned constitution, I have frequently been embarrassed in divorce courts and seen the agony in the eyes of young children when mother and father call each other names across the court and say things that would be best left unsaid. The new framework, if it is to pass into law, will do away with much of that heartache and pointless name-calling.

Mrs. Peacock

I understand what the hon. Gentleman says about children having to listen to such awful things in court and sometimes outside, but does he really believe that those children will benefit from having either father or mother missing all the time? Has he not ever heard the sobs of a child whose father is not there any more? Is that any worse than listening to parents arguing, certainly in those early stages?

Mr. Llwyd

I hear what the hon. Lady says and I understand her point, but I go back to what I said earlier. If father has decided that the marriage has broken down and cannot live with mother, it is not ideal in any circumstance, because their child will be brought up amid constant bickering, with one parent—perhaps two—who is desperately unhappy with the position. Frankly, the sooner that is put an end to, the better, although I understand the hon. Lady's question and motives and I appreciate what she says. From my experience, however, I cannot agree with her.

Mr. Nicholas Winterton (Macclesfield)

Having known the hon. Gentleman for some time, I appreciate the genuine sincerity with which he is advancing his argument, but, if we accept the Bill, are we not reaching the position where an increasing number of people will say, "Why get married? Is there any purpose?"

Mr. Llwyd

The hon. Gentleman makes a strong argument, but I return to the point raised earlier. If we are to prepare people for marriage, that is undoubtedly a question that they will ask. I do not know what the future holds, but I do know from my experience of divorce law that too many teenagers marry without any thought and suddenly find that they are not matched to their partner at all. They do not understand the obligations involved. I honestly do not know the answer to the hon. Gentleman's question. Perhaps at some point someone else can respond. Clearly neither of us can predict what will happen, but he made his point with much force and I understand it.

5.15 pm

It behoves us to regard children's interests as paramount. Their welfare is the main issue in all this. The Law Commission states: The present system can also make things worse for the children. The children themselves would usually prefer their parents to stay together. But the law cannot force parents to live amicably or prevent them from separating. It is not known whether children suffer more from their parents' separation or from living in a household in conflict where they may be blamed for the couple's inability to part. It is probably impossible to generalise, as there are so many variables which may affect the outcome, including the age and personality of the particular child. But it is known that the children who suffer least from their parents' break-up are usually those who are able to retain a good relationship with them both. Children who suffer most are those whose parents remain in conflict. That is true and I have seen it in practice over the years.

I shall not quote at length, because I know many hon. Members wish to speak, but the Law Commission makes one or two other important points. It states: the present law can, for all the reasons given earlier, make the conflict worse. It encourages couples to find fault with one another and disputes about children seem to be more common in divorces based on intolerable behaviour than in others. It goes on to suggest various points and reaches the conclusion that a no-fault concept should be proposed. That is correct, based on good sense and a useful contribution to family law.

The simple fact is that divorces are about mud-slinging. To my utter regret, some of that mud sometimes splashes on to the innocent children. They are the parties we should be thinking of. Why should private arguments about personal things be made public in that way, especially as it serves no useful purpose? if I may make the obvious point, divorce, however "amicable", is always a calamity. It is an anxious time for everyone. Why should we, as legislators, make it worse? If a marriage cannot be saved, our duty surely is to ease the way from the point of realisation of the irretrievable breakdown of the marriage to the decree absolute. That is common good sense. It is in the interests of both parties and in the children's interests, which is important.

May I draw a brief analogy? When I was a law student, during lectures on the law of tort, we were told about the New Zealand no-fault system in relation to car accidents, which was hailed as a great step forward. In much the same way as the proponents of the fault principle are arguing today, people in favour of retaining the negligence aspect of the law argued that there would be more so-called accidents, bogus claims and a rash of litigation. That was never borne out. I cannot for the life of me see how the no-fault system here will lead to more divorces.

With respect, the proponent of the amendment is a considerable Euro-sceptic. He did, however, travel the whole world to look for evidence to support his argument. I leave that without further comment.

Some opponents have suggested that there will be a drastic increase in the number of divorces. I honestly do not believe that. May I put it differently? If I did believe it, I would not oppose the amendments, and I do not think that other hon. Members would either.

I do not think that amending the law to do away with the concept of fault will increase the divorce rate. I think that it will ease the way towards so-called amicable divorce for small family units, making divorce less painful for the parties concerned and for their children. That is what a family law Bill should be about.

Dame Angela Rumbold

Thank you for calling me so early, Mr. Morris.

I greatly enjoyed the speech by my hon. Friend the Member for Teignbridge (Mr. Nicholls). I agreed with all of it except the end: I did not agree with his conclusions. Like him, I had considerable doubts about the way in which the Bill arrived in the House; I also had considerable doubts about the politics involved—politics with a large or a small "p". I was worried about the fact that a Conservative Administration wanted to introduce such legislation. That is all in the past, however: we are now considering amendments.

My hon. Friend spoke of the awfulness of marriage breakdown and divorce. I do not want to increase the difficulties involved in a very bad marriage and the irretrievable breakdown of a relationship; I do not want to make it harder for people who have lived in difficult and upsetting conditions for years to extricate themselves. For obvious reasons, I do not think that hon. Members should pontificate about how important it is for people to struggle on simply for the sake of the institution of marriage.

I am not a divorce lawyer. I am simply an ordinary woman—a Member of Parliament, a mother and a woman who has been happily married for some 38 years. They have been very good years. I have also worked with children. One aspect of the Bill worries me enormously: we are saying that people must be able to extricate themselves from difficult marriages, and that fault in itself is not a good reason for them to be able to do so, but non-lawyers outside this place will not see the Bill in that light. People will say, "That is fine. We need not do anything except say that the contract into which we entered no longer need exist or bind us."

That probably does not apply to my generation, or even to people who are 10 or 15 years younger than me, but the effect on young people will be different. To an extent, young people are already saying, "Let us have a happy marriage. Let us float down the aisle in white dresses. If it all gets too difficult and we do not enjoy ourselves later on, that does not matter: we can always get out of it." I do not think that my generation has done enough to make the marriage contract more meaningful to those young people, and I feel guilty about that; but I do not want to participate in legislation such as this.

Hon. Members who are divorce lawyers may disagree with the impression gained by people outside, and I accept their opinion, but the general perception will be that parties can extricate themselves from the contract without having to give any particular reason, or answer to the commitment that they have made—in church, in many instances. I find that difficult to understand.

Mr. Nigel Spearing (Newham, South)

Many people would agree with the right hon. Lady's general argument, but is not one of the basic problems the fact that marriage is not merely a contract between two parties—although young people may see it as such, because we have not made the position clear? Surely marriage is a contract between two individuals who are committed to each other, and society as a whole. Society says, "We too will sustain the couple in sickness and in health, and the quality of our legislation and our community life will help them to maintain their ideals." Is it not our duty to make that clear in a positive way, so that the real meaning of the contract—which I think the right hon. Lady understands—can make things easier, and deal with the terrible tragedies that can and, alas, do occur?

Dame Angela Rumbold

That is probably true to an extent. My point is that, when people enter into that contract and make that commitment, there is a deep understanding that it is not all that easy to extricate oneself. I want to make that clearer.

Over the years, a range of factors will have an effect. We should not consider just what happens in a first-generation marriage breakdown; when they grow up, the children of that marriage are likely to follow the pattern set by their parents. They, and subsequent generations, may say, "Mummy and daddy didn't make it. Now that we are grown up, if we make the same mistakes we can do the same to our children." The legislation should not allow people to say that no fault is involved, and to assume that they can walk away from the commitment that they have made.

Mr. Nicholls

No one is suggesting that there is no such thing as fault. We are considering whether the courts are an adequate instrument for the apportioning of fault.

My right hon. Friend has spoken about the difficulty or otherwise of getting out of the commitment. Surely, the message that can be conveyed—even through the Bill; it is connected with the way in which the Bill came to the House in the first place—is that, although we cannot stop young people getting married, because we have not thought about a campaign for marriage yet, it will be much harder for them to extricate themselves. They may have to wait not just a year, but 18 months or two years. If my right hon. Friend said that, we might wind up in the same Lobby.

Dame Angela Rumbold

I have no doubt that we will wind up in the same Lobby when we vote on the second amendment, because I agree with that point entirely.

I cannot for the life of me understand why young people still want to opt for the commitment of marriage. They no longer have any reason to marry. What is the purpose? Why do they not do what the majority do anyway to begin with, and simply set up home together? A shared mortgage is more of a commitment than a church ceremony.

Mr. Rowe

As my right hon. Friend is no doubt aware, in Great Britain the proportion of unmarried women aged between 18 and 49 who are cohabiting has almost doubled in the past 13 years.

Dame Angela Rumbold

I am grateful for that information, but it does not surprise me.

We have a major responsibility, not so much for adults who make commitments such as marriage, as for the children. I fear that the Bill—whether for the best legal reasons or not—sends the outside world the message that the children will not suffer, because it is far better for parents to live together squabbling and fighting. I am worried that it sends the message that it is far better for children to live in a single household in which there is one parent who is happy and contented.

I do not know how many people realise that small children blame themselves when their parents do not get on and seek to divorce. Little Johnny or Mary wonder what they did to make mummy and daddy think that they could not live together. When we examine this type of legislation, I hope that we do not simply take the point of view of lawyers or of people who sit on committees and say that it must be much better for children to live with one parent under a sensible arrangement in which daddy will have custody of the children at the weekend and mummy will have them during the week.

5.30 pm

Let us think about what the children feel. They ask themselves, "Why don't my mummy and daddy live together, like the parents of little Fred or Johnny at school?" All those things go through children's minds and have a profound effect on them as they grow up. I ask the lawyers, as I have asked many times before, how they can be so certain that what they have decreed for children is best, merely because it seems to be a convenient, clean and better way. What makes anyone think that a single woman will find bringing up two children on her own better than struggling along in a relationship that is perhaps less than good but in which there is another person who will be there sometimes to give her some support?

People experience very difficult periods in most marriages, and most marriages have ups and downs. But the reality is that, if one gets over those difficulties, two people in a household can ultimately come together to provide a stable background for children to grow up in, even if they occasionally argue or if one partner is sometimes away.

Mr. Nicholls

How will the reintroduction of a concept of fault in the eventual divorce make it more likely that parents will stay together for the sake of their children?

Dame Angela Rumbold

That is the very nub of the question. People have to have a greater reason to divorce than simply because they have disagreements. The point that I am trying to make—probably not very well—is that I fear that couples think that a reason for divorce is because they have had a quarrel or because one partner has spent too much from the bank account or fancies someone down the road for three or four days. The situation is straightforward if a greater reason has to be demonstrated, such as when the partners have parted company for two years and the relationship has demonstrably broken down or when one partner has gone and is never coming back.

My concern is that if we do not have a greater reason for divorce, we will hand it on a plate to those who do not have such a sense of responsibility—partly because people such as myself have not given them a sense of responsibility over the years—and that it will become all too easy for them to have children and to part company without serious thought.

I shall not say anything further on the issue, but I feel very strongly that it is important to examine the consequences for children of divorce. We should not accept divorce legislation without some concern for and thought about exactly what will happen to small children, rather than considering the views of the elderly people who sit on commissions and in committees who have decided what will happen to children.

Mr. Devlin

Something needs to be done about the current law on divorce. One matter that everyone—practitioners, commissioners and respondents to the White Paper—agrees on is that the current law does not work and that the current, intolerably high divorce rate is not helped by the current system.

As I said in an intervention on the speech of my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh), the current law is that divorce is available on demand. The current law is a cop-out and represents a failure in the 1960s to bite the bullet in terms of the role of fault in divorce. The result has been a hybrid system that is not satisfactory from anyone's point of view. Fault is not a ground for divorce, but the sole ground for divorce is irretrievable breakdown that must be witnessed by one of five facts. In some cases, that amounts to faults.

As my hon. Friend the Member for Teignbridge (Mr. Nicholls) said earlier in the debate, if one wants a divorce under current law, one can go along and allege adultery—one's own or one's partner's—and obtain it in about three months. Nothing else would have to be said about the adultery, such as when or where it took place. We no longer have the grand old days in which the Queen's commissioners, or whatever they were called, went down to Brighton to take photographs of people coming out of hotels after an indecent amount of time.

The current system has four main shortcomings, such as encouraging recrimination by retaining the fault element. It may seem controversial to remove all elements of fault, but if acrimony is to be taken out of divorce in the interests of saving marriages, we must stop couples blaming each other for the break-up of their marriage. Of course there is an important proviso that the courts must be able to take into account the behaviour of one partner if it would be manifestly unfair to the other partner not to do so.

As the Bill is drafted, clause 3 states: If an application for a divorce order or for a separation order is made to the court under this section by one or both of the parties to a marriage, the court shall make the order applied for if (but only if)— (a) the marriage has broken down irretrievably". The Bill does not say what evidence should be adduced to say that the marriage has broken down irretrievably, but I imagine from my experience—I must confess to the right hon. Member for Mitcham and Morden (Dame A. Rumbold) that I am a lawyer—that that will be done by means of an affidavit. The affidavit could be as short as saying that, "This marriage has broken down irretrievably", or it could be as long as saying that, "This marriage has broken down irretrievably for the following 59 or 600 reasons", as some affidavits currently do.

Although I have never practised divorce law, I have seen divorce petitions that have gone on describing so-called "unreasonable behaviour" for page after page. One Sunday magazine—I cannot remember which one—not long ago carried a mildly humorous account, or at least it would have been humorous if had not been so tragic, of the reasons currently cited as unreasonable behaviour. The reasons varied from such terrible crimes as cutting one's toe nails and leaving the pieces on the bathroom floor to regularly beating up one's wife, going out and getting drunk and not coming home at night. There is obviously an enormous range within those parameters. but the bulk of that survey showed that the vast majority of incidents of so-called "unreasonable behaviour" were very trivial. Anyone who takes a responsible attitude to a marriage would overlook such trivial matters, or at least try to accommodate one's partner to achieve a longer-term good.

The current system has shortcomings in that it affords no opportunity for reconciliation or mediation, not even on such issues as what will happen to the children or how the family finances will be settled. The current process also contains nothing to show that any thought has been given to the children. The principal issue in the current system is the divorce or the breakdown of the marriage, and any thought for the children is purely secondary.

When the Family Reform Act 1969 was passed, it was thought that the period between the decree nisi and the decree absolute would be used as a period for reflection and to make financial arrangements and arrangements for the children, but that has not happened: people get their first decree and then just wait the minimum amount of time until the court automatically grants them the second decree.

Anyone who thinks that the current system in any way apportions blame to either party going through a divorce is living in cloud cuckoo land. Ever year, hundreds of thousands of divorces occur for which a variety of reasons are given. No one feels any shame, publicly or privately, about an allegation of adultery. Yet adultery is given as the reason in the vast majority of cases in which men divorce women. Women tend to prefer to cite unreasonable behaviour. None the less, no one feels any shame about such allegations, and the allegations are rarely, if ever, made public. Indeed, there is no shame these days—if there ever was—in being divorced. It happens to the best of us, and sometimes for reasons that we do not understand until later.

Divorce can occur too quickly. Once a person has made the difficult decision to get a divorce, it is easy to go through the whole process in well under a year and look back later, wondering about everything that was thrown up. The process, once entered into, becomes acrimonious because, as my hon. Friend the Member for Teignbridge pointed out, there is a cycle of allegations against the other party, which does nothing to resolve simple issues that may need to be resolved on the back of a divorce.

As for the amendment, I counsel my hon. Friend the Member for Gainsborough and Horncastle to take account of three points which constitute a test that I have used when considering legislation since I became a member of Parliament. Good legislation should be comprehensible, enforceable and fair. The current divorce law is not really comprehensible. Indeed, it is widely misunderstood. The Bill is widely comprehensible, although perhaps differently from how we might imagine from listening to the debate. In any event, it will be easily understood.

Secondly, it is easily enforceable. Thirdly, the Bill is fair, not just to the two parties involved but to the community at large and, more particularly, to the children. Children do not need to know what father said about mother or what mother said about father in order to get a separation when they felt that their marriage was at an end.

As I said in an intervention on the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), if a family law Bill proceeds purely on the basis that it sets out the arrangements for the irretrievable breakdown of a marriage and the separation of two parties, it is fundamentally weakened. It should prescribe not only the circumstances in which divorce will be granted, but those in which marriage can be entered into in the first place.

It should be made more difficult to get married, and much more difficult to get divorced. With the social status of marriage should go fiscal and other advantages, but that is a much bigger issue than can be dealt with in the Bill. However, when debating a future Finance Bill, we should settle down to consider that matter comprehensively in the round.

Mr. Rowe

The debate has shown that there is unanimity in the Committee about the importance of trying to improve the existing system, whether in relation to marriage, divorce or the upbringing of children. As I understand it, the principal motive for introducing the Bill was an attempt sharply to improve the way in which children's affairs are handled in the event of the breakdown of a marriage.

Hitherto, there has been virtually no concentration on the well-being of the children. Indeed, one of the most depressing features of the many cases that come to my surgery and, I have no doubt, to that of other hon. Members, is the ease with which arrangements made in court are effectively set aside in practice the moment that the decision has been gazetted, whether because the wife moves with a new boyfriend to another part of the country and the father cannot afford to follow or for some other reason.

5.45 pm

We have already heard this statistic, but it bears repeating because it is horrendous: in this country, 800,000 children have no contact with their natural fathers. It is said that in Britain 50 per cent. of children lose contact with their fathers within three years of divorce; yet I am absolutely convinced that the vast majority of children need fathers. The way in which the current system is manipulated to prevent fathers from having a fair deal is very frightening, but I fear that the proposed system will be equally manipulated. I agree that that is one aspect of the problem that we need to consider carefully.

Ten days ago I experienced one of the happiest days of my life. My elder stepdaughter was married from my house. She was given away by her own father, and we had the most lovely day. One can only hope that the young couple will enjoy a marriage of permanence and stability for the rest of their lives. That is an uncovenanted blessing for which I am deeply grateful, but I fear that it is not an especially common experience.

The nation has to deal seriously with the pressures and stresses of divorce on children of whatever age.

The hon. Member for Newham, South (Mr. Spearing) said that marriage is not just a personal matter, but one in which the state, the Government and society at large have a tremendous stake—not only because marriage provides a solid basis on which many children can thrive and the next generation can prosper, but because of the colossal costs payable by the state in the event of a marriage breaking down.

We have grossly neglected our responsibility for preparing young people who want to get married, for sustaining them when they are married and, indeed, for continuing to sustain them when they have children. One feature of the sorry story of the escalating number of divorces in this country is that we have grossly underestimated the financial cost to couples of bringing up children. We need to consider that, because there is no doubt that financial pressure is one of the many pressures that can effectively work to break up marriages.

My hon. Friend the Member for Teignbridge (Mr. Nicholls) spoke eloquently and asked how we got where we are. That question is worth considering. We have not recognised or understood the effects of, for example, the rapidly falling age of puberty, remarkably better physical health and the extraordinary impact of birth control and the extension of education.

Half the nation's young people—or more than half—are sexually capable and aware much earlier than previous generations were. However, circumstances mean that many are incapable of setting up a household of their own until they are perhaps 25 or 26. That means that, throughout their most sexually active years, society's constraints prevent them from taking the next step. Their methods of dealing with that often contribute to the instability of relationships, which do not always provide the very best basis for a stable marriage. The other group of young people who do not have or take the opportunity to stay in education are in a similar situation: their incomes are so low that they cannot easily set up and sustain a household—certainly not one in which they can rear children successfully.

Those are some of the reasons why we are where we are. They are exacerbated by the fact that, increasingly, young couples do not have the extended family close by to help take the pressures off them. There is no doubt that a grandparent looking after children during the working day is very different from a series of casual baby sitters who may be taking hard-earned money out of the household.

I would take issue with right hon. Friend the Member for Mitcham and Morden (Dame A. Rumbold) in one respect. The preservation of the concept of fault at the time of a divorce does not achieve any of the things that she hopes. We know now—it has been said several times—that people who are bent on breaking up their marriage will cheat. They will tell lies about the reasons why they want a divorce if it is the only—or the quickest—way to achieve their purpose. We should make no mistake about this: people who want to get out of a marriage for whatever reason become quite ruthless. I do not think that it helps anybody to provide false reasons simply in order to get out of a marriage.

I also think that we are curiously naive to trust judges to make the best disposition for families. Some judges are remarkably sensitive, experienced, sophisticated and sympathetic in what they do, but, as Lord Kilbrandon pointed out when children's hearings were introduced in Scotland, the whole training of judges makes it less likely that they will be able—especially in a short time—to make appropriate decisions about sensitive family matters. If decisions are to be made about the best disposition for a family's future, they should be made by people who have had a considerable degree of special training, rather than in ordinary courts, even though some judges are extraordinarily good at making such decisions.

My hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) made the point that, in the United States of America, a number of states are now moving away from the concept of no-fault divorce because they say that it has increased the rate of divorce. Although I cannot comment on that, because I have not looked in detail at the research, it seems equally probable that such an increase is post hoc, ergo propter hoc. The divorce rate is rising anyway, for the reasons to which I have referred, and the introduction of no-fault divorce may not have been especially instrumental in that.

I do not intend to support the reintroduction of fault. I believe that it has all the ill effects of which hon. Members have spoken so eloquently, and it does not create any of the appropriate safeguards that we seek.

We believe passionately that careers advice is useful to young people. Many young people undergo a series of quite sophisticated careers advice at school. Part of the purpose of that is to discover what they are good at and what they will fit into to their satisfaction, but part is to do with how much money they can make in the course of their working lives. It is high time that we realised that the most expensive thing that can happen to a person is divorce. It is hugely costly and one of the reasons why a substantial number of people are, in the slightly exaggerated words of the Child Poverty Action Group, "living in poverty". Many such people are living in households that have broken up.

It seems absurd that we should spend so much time, effort, energy and skill on teaching young people what sort of career they might enter to maximise their earnings while spending so little time, effort and energy explaining to them the costs as well as the opportunities of marriage.

Sir Edward Heath (Old Bexley and Sidcup)

To a layman such as myself and, I believe, many laymen outside the Committee, we appear to have an incomparable ability to make this matter extraordinarily complicated. When they read Hansard—which of course they will not—they will find themselves asking what the debate was all about. It would not appear so complicated if we separated the two major objectives and recognised the difference between them. The first is how we deal with a broken marriage; the second is how we deal with the consequences of it. If we confuse the two so that the one influences the other, we are making it unnecessarily complicated and storing up a great deal of trouble for everybody.

The breakdown of marriage is in many ways a tragedy. I cannot accept the view of my hon. Friend the Member for Colchester, North (Mr. Jenkin), who I think has left the Chamber, that marriage is a contract for life that people ought to regard like any other contract. Most people regard marriage both as much more than a contract for life and as much less than a contract for life.

It is much more than a contract because people regard it as a relationship between two human beings which rests on a wide variety of aspects of character in both people. It is much less than a contract because people recognise—most of them right at the beginning—that when things begin to go wrong it is not a business contract that one can say is worth a certain amount and determine how it is to be spread. It is possible for arrangements to be made, of course, and many are, but not in the form of a business contract such as that described my hon. Friend the Member for Colchester, North.

If one tries to make divorce more difficult, fewer people will get married. There is evidence of that already. Our whole society has changed dramatically since the end of the second world war—

Dame Elaine Kellett-Bowman

Will my right hon. Friend give way?

Sir Edward Heath

Perhaps I may just finish one sentence.

Many people are just not getting married. They have their children and sometimes spend their whole lives together. Sometimes, by the time their children have grown up, they reach the stage where they want a change. That has now become part of our society. I do not believe that making it more difficult is any solution to the problem, because all that will happen is that people will not get married.

Dame Elaine Kellett-Bowman

In the 19th century, one had to have an Act of Parliament to get divorced. Until relatively recently, it was extremely difficult to get divorced in this country. Yet far more people got married.

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Sir Edward Heath

I question those figures. I also question the remark by my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) that we have had 2,000 years of Christianity in this country, during the whole of which period Christian values in marriage have been maintained. My hon. Friend should take another little glimpse at the history of this country over the past 2,000 years, because it does not correspond to his description.

My hon. Friend the Member for Gainsborough and Horncastle moved on to another point which has been raised in various forms: how one deals with fault. I believe that it would be absolutely wrong to restore fault in the Bill. The concept of fault breeds perpetual discontent and it especially affects children; quite rightly, we have heard a great deal about children. It complicates legislation, as we heard from my hon. Friend, who has spent much of his life dealing with divorce suits. We should not in any circumstances reintroduce the notion of fault: we should be absolutely clear about that.

The question was raised why a Conservative Government should introduce this legislation. It is absolutely right that they should do so, because the responsibility of the Conservative party and of the Conservative Government is to our community as a whole. We have to make provision for everybody. We may not agree with some people, but we have that responsibility as an elected Government and as the party in power.

In the population today, there are those who, as a result of their religious convictions, believe that divorce cannot be permitted. That is very well for those who accept that belief—there is no challenge—but they are not entitled in Parliament to impose their belief on other members of the community. That is the basic difference, whether they accept it or not. Other Christian beliefs have varying views about what is permissible in terms of marriage. Very well—they are all entitled to their views.

All Governments today have to face the fact that a majority of the population do not acknowledge Christian belief at all. Even if one accepts that 52 per cent. of people do not want to change the law, that still leaves 48 per cent. of the population with whom the Government must cope and whom they have to consider. I cannot possibly accept that a Conservative Government cannot introduce changes in approach to these matters, which will affect many people even though some would claim that they are not the majority. The Government are absolutely justified in dealing with this matter.

My second objective is to improve the situation after divorce, or to prevent divorce. To a large extent, that is the responsibility of the Churches and the social organisations; it is also, in part, the responsibility of our education system. That responsibility is not being carried out. If the Churches approach the matter—to answer the question about the point of getting married—we shall begin to do some good overall. That is why it is so important to keep the two objectives separate and to deal effectively with cases in which breakdown has occurred.

We should also do everything possible to deal with the situation before people enter marriage, so that they recognise what the requirements are, what can be achieved and the happiness that they can get. After a marriage has broken down, we should ensure that the right action is taken for the welfare of children, whether one parent is looking after them or whether both are looking after them. We should ensure that people get the necessary guidance and every possible assistance to allow their children to have a proper life of their own.

For those reasons, I believe that the amendment should be defeated. I cannot understand why my hon. Friend the Member for Gainsborough and Horncastle based the greater part of his speech on the argument that because the Americans were throwing out some aspects of legislation we should therefore do the same. There may be things that we still have to learn from the Americans, but I do not think that morality is one of them. I well know the way in which social forces in the United States work to bring about their ends—we can see what is happening in terms of capital punishment, for example. I know that my hon. Friend will not base his argument on Europe; I hope that he will not base it on the United States either.

I strongly support the position taken by the Minister and by the Government and I hope that the House will defeat the amendment.

Mr. Donald Anderson

Those of us who try to follow the Christian way have to recognise that divorce law has come a long way since its origin in the old ecclesiastical courts. We have to recognise that times have changed. As the right hon. Member for Old Bexley and Sidcup (Sir E. Heath) said, we have to realise that we cannot impose our views on the generality of the population. Nevertheless, we have a right to point out the effects of a failure to follow the precepts that we seek to follow. It is especially important in human and family law to say that we, as far as we are able as legislators, should consider ways—not only at the time when, alas, families break up—in which to bolster the institution of marriage.

Whatever the trends may be, we can point out the sad victims of those trends—the children—and we can point out the great unhappiness that follows. We are entitled to do so and we are also entitled to press the Government to look at ways, across the board, in which the institution of marriage, which is the bedrock of a civilised society, can be strengthened, whether in terms of education, as the hon. Member for Mid-Kent (Mr. Rowe) said, or across the range of policy—fiscal, housing or employment policy. Clearly, it would be going beyond the scope of the amendment to look at those matters.

There are costs, both financial and in terms of human distress, caused by the high incidence of divorce in this country. It has been said that we are the divorce capital of Europe. We may ask why that is so. We see the victims and the costs that flow from divorce.

Mr. Alton

I strongly support the points that the hon. Gentleman has just made. Does he accept that the argument is always advanced—it was advanced even against Wilberforce and his companions—that legislators are trying to impose their morality on the nation? Wilberforce and his friends fought successfully in the House for 40 long years to repeal the slavery laws. Is it not the case that, in a democratic society—we live in a pluralist society—it is not just a question of the imposition of values? No one seeks to do that.

However, there is a responsibility and a duty to share what one believes to be right with the rest of the populace in the hope that people will embrace those virtues. If one believes that that is the best way in which to live, that marriage, as the hon. Gentleman rightly said, is the bedrock of our society and that the strengthening of family life should be our objective, surely it is legitimate for all hon. Members, regardless of whether they have religious values, to try to achieve that objective.

Mr. Anderson

I wholly accept that it was right—as it is at all times—for slavery to be abolished and that Wilberforce and his friends in the Clapham sect were right to pursue that aim. I would not put some of the moral issues that we face today—whether abortion, homosexuality or divorce—in the same category. The equivalent of the anti-slavery argument is to ensure, as far as we are able, that the state uses every possible instrument available to support the institution of marriage.

I accept that our divorce laws may well have an influence, for good or ill, on the incidence of divorce. That is one of the key elements that we need to discuss today. However, I shall come quickly to the nub of the question. Is fault helpful in terms of divorce, and if so, what should be done about it?

Like one or two other hon. Members, I am a lapsed practitioner, so my knowledge is somewhat out of date. However, I recall that our judges, as has so often been said, are brought up in an adversarial tradition and may be ill suited to look into the minds and conduct of members of the public. All too often, the position depends on which party gets to the solicitor first.

It has been said that, in general, the public say, "Yes, we think that divorce should be made more difficult," but when they talk about individuals whom they know—such as their relatives, or people who live in their street—they are far more understanding, and tend to say, "Because we know this couple, we accept that it is not a simple question of 100 per cent. or 0 per cent. There was fault on both sides."

It would be improper if I were to stray into discussing the royal family, so I shall not be specific, but in connection with one or two well-publicised difficulties of some of the senior members of the royal family, it is certain that both the parties could, if they were so minded, rely on various faults in a divorce petition. I shall leave it at that, Sir Geoffrey.

In the generality of cases, the course of events often depends on who goes to the solicitor first. There may be a 10-year marriage, and the wife will say to a solicitor, "I am unhappy." The solicitor will then ask whether, over the life of the marriage, she can think of occasions on which her husband has been difficult. It is a pretty unusual marriage which has not had a fair number of difficult moments over 10 years. The solicitor will then crystallise and distil those examples into 10 or so incidents which, when put together, read in a lurid way, as if the marriage was especially wicked and abnormal, whereas in fact it was probably very normal.

When the petition is passed to the husband, the respondent, he will immediately hit the roof, and will not recognise what he reads in it. That is hardly a basis for dealing with the sad after-effects of marriage breakdown, particularly from the point of view of the children, for whom we should all be concerned.

I am extremely sceptical about the divorce court's searching for where the fault lies. I understand hon. Members' motives, derived from the old ecclesiastical traditions. They will say that there must be contrition—but I say that there must be contrition on both sides. That is a personal matter, and the interest of the state should be rather less concerned with it.

Like the hon. Member for Teignbridge (Mr. Nicholls) and others, my experience is that in very few marriages is the fault wholly on one side. Even if the fault could be accurately divided, there is no real public purpose in seeking to establish its exact apportionment. So although I shall be with the hon. Member for Gainsborough and Horncastle (Mr. Leigh) on his next key amendment, my experience as a lapsed practitioner leads me to tell him that I shall not support him now.

I believe not only that for a court to ascertain with precision the degree of fault is an impossible task, and a highly artificial process, dependent on factors such as who goes to a solicitor first, but that it serves no useful purpose. Indeed, it may exacerbate the situation, which is contrary to our public purpose.

Mr. Michael Alison (Selby)

I support the amendment moved by my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh). It focuses the Committee's attention on the issue of fault, to which most of my right hon. and hon. Friends have addressed themselves in their speeches, not the least of which was the important speech made by my right hon. Friend the Member for Old Bexley and Sidcup (Sir E. Heath).

The only point at which I parted company from my right hon. Friend was over his absolute repudiation of the necessity for fault, both in the Bill and in the amendment. I must draw my right hon. Friend's attention to the fact that fault is already part of the Government's proposals. They have not evacuated fault, or castrated the Bill so that it is a eunuch in terms of fault. Fault remains in the Bill.

6.15 pm

I shall quote from the guidance that was circulated to Members of Parliament by a mysterious agency not a hundred miles from the Lord Chancellor's Department: In addition, the present law, which requires the court to take conduct into account in decisions relating to finance and property orders, where it would be inequitable not to do so, is not altered by this Bill". So fault is at the very heart of the Bill.

The fundamental issue that we must decide is whether fault should be the sting in the tail, or more up front, as a possibly curative and preventive factor, affecting the way in which divorce proceedings may take place.

I take the point cogently argued by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), who is also a practitioner, and who repudiated the idea of fault being up front. My hon. Friend the Member for Teignbridge (Mr. Nicholls) is also a practitioner in that area of the law, and I believe that he thought that, although fault is bound to come into consideration at some point, to have it up front as a major initial hurdle is likely to exacerbate the situation and make things more difficult. That was advanced as one reason for disallowing fault up front.

Mr. Nicholls

The point that I was making was simply that, when we deal with the relatively narrow questions of who looks after the children, or how the money is divided, conduct is a subject with which a court can competently deal—whereas to conduct a moral audit between two people, and to work out how they fulfilled their obligations towards each other, is beyond the competence of any earthly court that I have ever come across.

Mr. Alison

There speaks the reasonable voice of the practitioner in the law. However, I shall quote from a letter to the Committee that shows the attitude and approach of a victim—in this case, a feminine victim—of the various processes that make up a divorce. I make no apology to the Committee for quoting from the letter, which says: to have no 'fault' actually harms reconciliation attempts. Jim"— I shall call the lady's erstwhile husband "Jim", although that is not his name—[HON. MEMBERS: "Sir Jim?"] Having caught the eye of my hon. Friend the Member for Broxtowe (Sir J. Lester), I shall immediately abandon that pseudonym and call the man "Marmaduke" instead, in the hope that I shall not be causing offence anywhere in the Committee.

If one makes that change, the letter reads: Marmaduke would not tell me what I had done wrong from a November to the March when I received the divorce petition in an envelope at the breakfast table. Divorce by post. The letter continues: When I did not know what I had done wrong I could not say sorry to specific things, I could not try to make amends for specific things, and there was no way of negotiating agreement if one did not know what the problem was. Also no one else could come to the rescue and try and reason, if there was nothing to reason about and no way to make amends. The registrar told me that the law upheld Marmaduke's viewpoint, however trivial the accusations were, because the law recognised the feelings of the petitioner as to what he felt was unreasonable, and therefore if I attempted to defend my actions this was counted as being even more unreasonable! In other words, it needs to be defined in law that the accusations are based on behaviour and not only on the feelings of the petitioner. That is a fundamental reason for bringing the factor of fault, which is latent and irreplaceable in the Bill, right to the forefront in the hope that it will help with reconciliation.

I shall again quote from the important document that the Government have circulated. Under the explanation for the minimum period, the 12-month option, it states: Once a statement of marital breakdown has been registered with the court, a minimum twelve month cooling-off period will follow during which couples will be encouraged to reflect on whether their marriage can be saved". How can someone be encouraged to reflect on that if the Bill, without fault, conspires to conceal the underlying factors? We must have up front the factors that the Government themselves propose should be specified and placed under the microscope later in the divorce proceedings.

The very divorce proceedings that are the subject of the 12-month limit are flexible if the factors of fault are not properly dealt with. All that the amendment of my hon. Friend the Member for Gainsborough and Horncastle asks is that the realities of fault be specified, placed up front and used to help focus attention on the root of the problems of the marriage, so that the mediation and reconciliation that is in everyone's sights can be fruitful. It is for that reason that I hope that the Committee will see the sense in the Government maintaining fault. There is a half-open door in the Bill, and the amendment will push it a little wider to add logic to common sense in our approach.

Mr. Patten

I am glad to follow my right hon. Friend the Member for Selby (Mr. Alison), and agree with everything that he said. I shall not labour the point any longer.

It has been an excellent debate, and I congratulate my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) on the way in which he introduced it. He put forward a case that many hon. Members, certainly many Conservative Members, find persuasive. He gave way on many occasions and replied with great authority. The debate lapsed into agreeable high farce only when the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) suggested that this was a Euro-sceptic issue. One of my hon. Friends who was slumbering behind me woke up and rushed off to find whether there was some proposal for a Euro-marriage. He has not come back—Lord knows what he has found out.

Alas that we are where we are. This is a classic case of listening to experts. I have listened to experts; many of my best friends are experts. We have listened to lawyers—many of my closest, oldest and most stalwart friends are lawyers. We have ended up with a process-driven Bill that deals with technicalities and misses the main point, which is about marriage, the family and our social fabric. That is why we are where we are.

My hon. Friend the Member for Teignbridge (Mr. Nicholls) made a remarkable speech. I have listened to him often in the past 13 years, and it was one of the best that he has made. He said that we should use the Bill in Committee and on Report to try to introduce elements that will help to support the institution of marriage.

We are, alas, where we are, as my right hon. Friend the Member for Mitcham and Morden (Dame A. Rumbold) said, but we must try to use the Bill as constructively as possible to underpin the institutions of marriage and family. I suspect that there is much cross-party agreement on that. The arguments will go on in Committee and on Report. At least two days of debate on the Floor will be necessary for proper and careful consideration on Report. There will be changes at each stage to improve the Bill to support marriage, even though it was introduced to expedite and tidy up divorce.

I have only three points: first, a brief comment on the nature of contracts; secondly, a point about what has happened elsewhere in the world where such changes have been introduced; and thirdly, one about what will happen in 2020 if the Bill passes largely unamended.

Much has been said about the importance of contracts and of not lightly entering into agreements. That must be considered most solemnly, whether in a religious or secular sense, when two people decide to marry and live with each other for the rest of their lives. If a marriage contract is empty and has no meaning, marriage has no meaning.

I fall back, as I have on several previous occasions, on one of my distinguished constituents, Dr. Ruth Deech, the principal of St. Anne's college, Oxford. I do not know what her politics are. Lamentably, she is not a member of the Oxford, West and Abingdon Conservative Association. Equally lamentably, she persecutes me from time to time with attacks on the Government's education and other policies. I do not think that she is a close friend of the Government. In 1969, on the previous occasion when we set out to reform divorce law, she was a young researcher at the Law Commission. She saw it happen. She saw the results. Every time that we have legislated on divorce, as we propose to do today—whatever we have done or said—there has been a surge in the number of divorces thereafter.

We do not need to look to the United States or Australia for such evidence. If the Bill is passed, Dr. Deech says: The contract of marriage will become an empty one; there will be no rights and duties, no standards of behaviour, no commitment … Under the proposed new law marriage will be terminable with less formality than, for example, the ending of a lease or the hiring of a car. I only wish that there were another way of filling the marriage contract with meaning that did not force us to consider the issue of fault. It would be agreeable to find some other way of putting commitment into the marriage contract. Alas, fault is all we have. I am totally persuaded by my right hon. Friend the Member for Selby (Mr. Alison).

It is interesting to consider other parts of the world. Wherever no-fault divorce, to use that convenient shorthand, has been introduced, there has always been an immediate spurt in the number of divorces, which has gone on for several years and then plateaued, leaving divorce at a higher level than it was before the legislative change.

Mr. Nicholls


Mr. Patten

I shall give way to my hon. Friend, but he must remember that I have been very nice to him this afternoon.

Mr. Nicholls

I say this with all obsequiousness. My right hon. Friend has pointed out that there has been a surge in divorces. Is he saying that there must therefore have been a surge in marital breakdowns, or is it simply that broken marriages have been formalised?

Mr. Patten

To the best of my knowledge, in Australia, New Zealand and the United States, there has been a surge in marital breakdowns.

I was not invited by President Clinton to his national prayer breakfast in Washington on 1 February, but he was quoted as saying—referring to his lawful wedded wife— Hillary said in her book that 'Till death do us part' has often become, 'Till the going gets tough.' Speaking with American experience, the President said: "It may be that it ought to be a little harder to get a divorce where children are involved". I say, "Hear, hear Mr. President," to that.

Nor have I ever met the Governor of Iowa, a Mr. Terry Branstad. In his state of the state of Iowa message on 9 January 1996, he said: I believe that we can, as a state, reinforce the two-parent family for the good of children … I do believe we should reform our divorce laws to require mutual consent or specific grounds for divorce. Our present no-fault divorce laws have transformed marriage into an arrangement of convenience rather than an act of commitment. Parents need to understand that a divorce can severely hurt children". Again, I say, "Hear, hear."

My third and last point is about what happens in Britain. Some say that we should not look to legislators in America, New Zealand or Australia. We do not have to look so far to see that our European brethren in Germany, France and elsewhere are, very sensibly, not seeking to go down the road of no-fault divorce. They generally have a much more stable social set-up as far as the family is concerned.

I end with two quotations from two letters. One is from my constituents Dr. and Mrs. W. D. Hawes of 74 Hurst Rise road, Oxford, who wrote to me saying: One-year divorce would send out the wrong signal for the nation. Marriages are entered into by two adults making binding vows before God in a church or public promises in a register office and should not be treated lightly. They continue, and this is such a telling phrase: If we continually dismiss our vows and pledges as worthless we are undermining the very basis of our civilisation. Are our words to have no meaning at all? What conclusions will our children come to? 6.30 pm

My constituents are right, as was the head teacher of a primary school in Norwich, Mr. Keith Piercehouse of 57 Christchurch road, Norwich, who wrote to me saying: Why should divorce always be on the basis of no fault? Faults like wrong and responsibility are concepts that are readily used in other branches of law and morals. Often there is wrong done by one party in a marriage to the other and this should be acknowledged … We do not have no-fault crimes so why should there be no-fault divorces? That is very telling from a practised head teacher.

What will happen if the Bill passes into law? The signal will go out from this place that we do not regard the marriage contract as a binding contract and as something which is, or should be, full of commitment, which one should strive to keep to for the rest of one's life.

The evidence from all other countries where that form of divorce has been introduced is that there has been an immediate surge in the number of divorces. My prediction is that our alarmingly high divorce rate, which makes us the divorce capital of Europe, will so increase that by 2020 there will he just as many applications for divorce as for marriage licences in any one year.

We are dealing with a solemn and difficult issue. I wish my right hon. and hon. Friends on the Government Front Bench well in wrestling with these arguments, but I thoroughly commend to the Committee the amendment of my hon. Friend the Member for Gainsborough and Horncastle.

Mr. Paul Boateng (Brent, South)

The Cardinal Archbishop of Westminster, when reflecting on the Bill earlier in the year, thought back to a statement made by the Catholic bishops conference in November last year.

The bishops said: differing judgments can be made sincerely, honestly and legitimately on the details of the bill and its predictable effects". Anyone listening to this debate and to the contributions from the hon. Member for Gainsborough and Horncastle (Mr. Leigh), my hon. Friends the Members for Motherwell, South (Dr. Bray) and for Swansea, East (Mr. Anderson) and the hon. Member for Teignbridge (Mr. Nicholls)—the latter made a particularly worthwhile and important contribution—would agree that that is the case. All were sincere and genuine in their concerns, but were arriving at differing conclusions about the effect of the legislation and calling on us to go into different sides of the Lobby.

It is a good thing that, on both sides of the Committee, we have agreed to treat the issue and the other amendments tabled this evening as matters of conscience and matters for a free vote. Therefore, anything that I say from this Dispatch Box should not be seen as in any way seeking to persuade my colleagues or anyone else how to exercise their vote. It is a matter of conscience.

The right hon. Member for Mitcham and Morden (Dame A. Rumbold) is right to say that lawyers should claim no particular wisdom in this area, as we have a particular role and responsibility in relation to our professional lives, but we make a muck of our marriages and relationships just as anyone else does so we have no particular wisdom. Like other hon. Members, I have some experience of what goes on between a lawyer and a client during the breakdown of a marriage. One has a special relationship with one's client in that context.

I have learnt that, whether one considers the old matrimonial offences, which I can just about remember, or fault as evidence of irretrievable breakdown—there is a distinction, which is not just semantic—the role of fault in divorce and the role of fault as the right hon. Member for Selby (Mr. Alison) would have it—up front—almost universally has the effect of engendering bitterness and conflict between the parties. Almost invariably, it is a source of harm and suffering to those parties and to the children. That is my experience.

Mr. Clive Soley (Hammersmith)

Will my hon. Friend give way?

Mr. Boateng

May I first complete this point?

I am driven from that experience to the conclusion that we ought to take the steps on fault proposed in the Bill. Having said that, we must be clear about what the law can achieve and about the messages it sends, and the importance of ensuring that the law reflects reality. Part of that reality is that there is culpability in the breakdown of marriage. It is no use pretending that, when a relationship breaks down, one can divorce that from fault. One cannot do so.

It is no use pretending either—here there is a real danger—that what we say in this House because many of us are from a different generation and we are in a different place is irrelevant to the way in which people behave out there—or, indeed, the way we behave ourselves. It is not.

Therefore, the law can never be value-free. We have somehow to build into what we are doing in this place in the next few weeks some messages about values. If we do not do so, the continuing escalation of the breakdown of the family and the undervaluing of marriage, which we all regret on both sides of the Committee, will continue. That is a difficult task, but it is one that we have to embrace.

The cardinal archbishop went on to say that the Bill has to be the starting point of deliberations on the topic, and added: any necessary reform of the divorce law can only be part of a larger project of supporting and strengthening the institution of marriage and family life. Written into the Bill, in terms of a practical policy and a mechanism, must be the means by which we can support and strengthen the institution of marriage and family life. It must not be only a pious aspiration.

That is a challenge for us, and it will be a challenge in Committee and on Report. In creating those practical mechanical structures for making something of reconciliation and of education and support for marriage, we need to be clear that we cannot hope to do it in this House unless we change what is on the face of the Bill.

If the Bill were to pass through the House in its present unamended form, or if it were to pass in only a marginally amended form, it would be a disaster of enormous proportions for society. In fact, it would be a disaster comparable with the child protection agency fiasco— I shall refer to child protection in due course, because I believe that it should be written into the Bill. It would be a disaster for the Child Support Agency, and it would go beyond that in terms of its social impact.

In 1971, in the aftermath of the last great reform of divorce law, Lord Scarman said: The law is groping its way towards a new conception of the duties of married life. The duties of married life have been cast aside. Married life and the importance and value of marriage are being widely questioned. Marriage is undervalued, marriage is not supported, marriage is now something that one can win on a game show.

If one turns on the television on a Saturday night, one can see someone win a marriage. The young couples who walk down the pink staircase—I do not know why the staircase is not white; no doubt pink looks better on television—get more preparation for marriage, in terms of what they will get at the end, than we give them in relation to civil marriage today.

The couple I saw the other night were at least asked—as they were about to make the last step down the staircase to their honeymoon in Barbados—what one felt about the other and what one believed the other felt about them. If they got the answer right, they got the marriage and the honeymoon. They were asked whether it was respect or sexual attraction. They gave the right answer: respect—as it happened. They got some preparation.

At the moment, there is no preparation at all for civil marriage, and there is absolutely nothing on the face of the Bill to give any hope whatsoever that that will occur or is envisaged. Are we going to have any assurances about that tonight? That is something that hon. Members want to hear. We also want to look at the experience of other nations within the common law jurisdiction where no-fault divorce has been introduced. The most useful example in this regard is Australia. In 1975, no-fault divorce was introduced by a narrow margin and on a bipartisan vote—I suspect that that experience will be replicated in the House on a number of issues.

There is debate in Australia about what the figures subsequently show. Some statistics, in some forms, show that there has been an increase in marital breakdown; other statistics, in another form, show that there has been a decrease in marital breakdown. I do not see much point in arguing about those statistics.

However, we have to recognise that with that Bill came a whole raft of other proposals—including the proposal to establish the family law court and the Australian Institute of Family Studies. With that proposal came court counselling services; with that proposal came suggestions for the custody and guardianship of children to be subject to independent analysis and review by a court-based officer; with that proposal came a positive mechanism for underpinning reconciliation and supporting marriage generally.

Marriage and the family are the fundamental units of society—and this Bill is silent in that regard. If we are to pass the Bill into law—if we are to see the vote that I think we will have tonight on this issue of no fault become part of a Bill that actually addresses the crisis in marriage and the family—the Government will have to come forward with proposals in relation to reconciliation, or they will have to accept our proposals in that regard.

The Government also have to come forward with proposals in relation to preparation for marriage and with proposals that recognise the need for concerted and focused action to support the institution of marriage and the family. Only then can hon. Members rest easy in terms of the consequences of their deliberations today.

6.45 pm
The Chancellor of the Duchy of Lancaster (Mr. Roger Freeman)

We have heard some powerful speeches in this important debate. I confirm, for the benefit of my right hon. and hon. Friends, that we will have a genuine free vote. Government Members, and—I am pleased to hear—Labour Members, must reach their own conclusions. They must use their conscience and their judgement as to how they should vote. Undoubtedly, the Government will be divided by opinion, but not by party loyalty. The contributions of hon. Members, expressing both sides of the argument, have been very powerful.

There is common ground: the need to campaign for the institution of marriage—I agree with the hon. Member for Brent, South (Mr. Boateng) on that. I note what my right hon. Friend the Member for Mitcham and Morden (Dame A. Rumbold) and my hon. Friends the Members for Lancaster (Dame E. Kellett-Bowman) and for Teignbridge (Mr. Nicholls) said in that regard. I support their views and the need for all hon. Members to do everything possible to support the institution of marriage. It is a tragedy that two out of five marriages in this country end in divorce. All hon. Members are seeking to reduce that number.

My hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) asked me to confirm the consequences of voting for amendment 1 and new clause 1. The Bill, as presently drafted, provides for no fault to be given as a reason for divorce, and for a one-year minimum period for reflection and consideration, with or without children.

Amendment No. 1. on which we are about to vote, is a paving amendment for new clause 1. New clause 1 provides reasons of fault—that is, unreasonable behaviour and adultery—as grounds for divorce, and there will have to be a one-year period of separation. New clause 1 also provides for divorce with consent, but no fault, after two years; and without consent, and without allegations of fault, after five years.

I confirm that, if this new clause is passed and we then come to amendment No. 7 after this vote—in the debate that is to be taken by my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department—the only consequence of amendment No. 7 will be to extend to a minimum of two years if there are children, even if there is an allegation of fault, the period before divorce can take place. Amendments Nos. 7 and 8 are consistent with new clause 1. If new clause 1 is passed, and if amendments Nos. 7 or 8 are subsequently passed, the Government will facilitate appropriate amendments to ensure that they are consistent with the rest of the Bill.

My right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) prayed in aid the examples in other countries, particularly the United States. I urge hon. Members to treat with some caution the statistics that are available from other countries—from Scotland, Northern Ireland and, in particular, the United States—in arguing for or against the amendment. Circumstances are different. Provisions in the divorce law other than those relating to the minimum period, such as whether there is fault or no fault, may influence people's behaviour. In any case, I have to agree with my hon. Friend the Member for Lancaster that, sadly, there is an upward trend in the rate of divorce throughout the western world, whatever the provisions in national legislatures concerning divorce.

I suggest to the Committee that we should take into account two important criteria in reaching a judgment tonight. First, we should ask ourselves: are the steps that we are taking in voting on clause 5—that is to say, fault or no fault—likely to reduce the rate of divorce to lower than it would otherwise be?

I cannot hold out any hope to the Committee, on behalf of the Lord Chancellor and my other right hon. and hon. Friends who have been involved in the preparation of the Bill, that in itself it will reduce the absolute number of divorces. The argument is whether the provisions in the Bill at the moment would reduce the number to lower than would otherwise be the case. The second criterion, as so many hon. Members have said, is the effect on children.

I emphasise that this debate is not about the minimum period for reflection and consideration; it is not about the minimum period before a divorce can occur. Indeed, the lengthening of the minimum period from the few months that can occur at present under our present law to a minimum of one year will, in itself, make divorce harder and send a signal to all those who are contemplating marriage—or, regrettably, contemplating divorce—that it will be harder than at present. Amendments Nos. 7 and 8 lengthen that period to 24 months or 18 months respectively.

I say to my right hon. Friend the Member for Selby (Mr. Alison) that everyone recognises that there are always faults when a marriage breaks down and when a couple look at the prospect of divorce. The issue before us tonight is not the statement of faults, which often occur on both sides and obviously must be explored through the process of reflection and consideration, through mediation and through counselling. The issue is whether the two very narrowly defined faults—adultery and intolerable behaviour—in themselves should be grounds for divorce.

The amendment tabled by my hon. Friend the Member for Gainsborough and Horncastle still leaves fault as an optional remedy; indeed, it is not necessary always to allege fault in order to cause a divorce under my hon. Friend's amendment, because he holds out the prospect of divorce after two years—

Mr. Leigh

Will my right hon. Friend give way?

Mr. Freeman

My hon. Friend will forgive me.

He holds out the prospect of divorce after two years with consent and five years without consent, where fault is not alleged.

Sir David Mitchell

Can my right hon. Friend confirm that there is no relationship between the question of fault or no fault and the form of the financial settlement that may follow?

Mr. Freeman

No. As my hon. Friend will know, in Committee there will be discussion of, and amendments will be tabled concerning, the division of financial assets, but that is a separate issue. I am sure that there will be a formal detailed debate about the alleged shortcomings in present practice—that is to say, the way in which the courts take account of behaviour in the allocation of financial assets.

In the remaining few minutes, I shall try to sum up the arguments for and against fault in divorce proceedings. There were three arguments in favour of the amendment.

The first argument was that it sent a moral message—a sanction—that the reason of fault could be used by one partner against another, and my hon. Friend argued that that might stiffen people's resolve, that it would send a clear message that marriage was a lifetime's commitment. My hon. Friend would be the first to concede, however, that, as my hon. Friend the Member for Teignbridge said in a powerful speech, it is not always the case that 100 per cent. of the fault is on one side. In reality, in most cases, fault is on both sides.

The second argument, advanced in particular by my hon. Friend the Member for Lancaster, was that of vindication. She described the situation of a middle-aged wife who had forsaken her career to support her husband, who then deserted her for a younger woman. The argument was that her ability to allege fault was a vindication and a necessary weapon, as it were, for the wronged party to use. However, as the hon. Member for Swansea, East (Mr. Anderson) said, when there is fault on both sides, much depends on who gets to the divorce lawyer first and who lodges the petition.

Thirdly, the argument has been advanced, especially by my hon. Friend the Member for Colchester, North (Mr. Jenkin), that marriage is a contract, and there is no penalty if the concept of fault is removed. I draw the attention of the Committee to the fact that the Bill, as drafted, provides for a minimum of one year for reflection and consideration. That makes the marriage contract more important than it is at present, as it is currently possible to obtain a divorce in weeks.

I shall now mention the arguments against the amendment tabled by my hon. Friend the Member for Gainsborough and Horncastle. My hon. Friend the Member for North-West Hampshire (Sir D. Mitchell) pointed out clearly that, if one uses fault as a reason for divorce and it is only one of the grounds for divorce, one is in some ways building oneself into a confrontational escalation of the procedure. The mere fact of alleging fault and ascribing the evidence can in itself lead inevitably to the conclusion of divorce, so it can be argued that it makes reconciliation less likely.

As my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department will explain later in other debates, at the heart of the Bill is the introduction of a new procedure of mediation, of reconciliation, of trying to save marriages after the initial process has begun—that is to say, the statement of an irretrievable breakdown. Some marriages can be saved even though proceedings have begun.

The second and final argument against amendment No. 1 advanced by some, although not shared by my right hon. Friend the Member for Westmorland and Lonsdale (Mr. Jopling), was about the effect on children. The Committee must ask itself tonight, what would be the effect on the children of a marriage if we reinserted into the Bill allegations of fault, which would inevitably involve greater acrimony and hostility between the partners?

I will give way at the end of my remarks to allow my hon. Friend the Member for Gainsborough and Horncastle the last two minutes in which to speak.

I urge in the Committee, in a free vote, to use not only its conscience but its judgment.

Mr. Leigh

I am grateful to all those who have spoken so movingly in this debate. I remind the Committee of the words of my right hon. Friend the Member for Westmorland and Lonsdale (Mr. Jopling). He reminded us that, whatever the agonies of the participants in divorce, nothing can compare with the agonies of children of divorced parents.

Of course we want to lessen acrimony, but, as my right hon. Friend the Member for Mitcham and Morden (Dame A. Rumbold) said, what message are we sending out to young people? If we do not pass the amendment, we would send the message of which my right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) reminded us—that the contract of marriage will be a uniquely empty one.

If I may, I shall end by paraphrasing Benjamin Jowett. It is of course true that you cannot make people moral by Act of Parliament; yet the laws and institutions of a country do make it, to a degree which it is difficult to exaggerate, either easier or harder for men and women to walk in the right way.

As we vote today, we should ask ourselves, are we really ensuring that it has sunk into the thinking of all people that, in the wonderfully telling words of the Book of Common Prayer, marriage is not … to be … taken in hand unadvisedly, lightly, or wantonly"?

Question put, That the amendment be made:—

The Committee divided: Ayes 137, Noes 267.

Division No. 105] [18.59 pm
Alison, Rt Hon Michael (Selby) Davies, Quentin (Stamford)
Alton, David Davis, David (Boothferry)
Amess, David Day, Stephen
Arnold, Jacques (Gravesham) Deva, Nirj Joseph
Atkins, Rt Hon Robert Dixon, Don
Banks, Matthew (Southport) Duncan Smith, Iain
Bates, Michael Dunn, Bob
Beggs, Roy Eastham, Ken
Benton, Joe Evans, David (Welwyn Hatfield)
Booth, Hartley Evans, Nigel (Ribble Valley)
Bowis, John Evennett, David
Bray, Dr Jeremy Faber, David
Bright, Sir Graham Field, Barry (Isle of Wight)
Bruce, Ian (South Dorset) Fishburn, Dudley
Budgen, Nicholas Forsythe, Clifford (S Antrim)
Burns, Simon Fox, Dr Liam (Woodspring)
Butcher, John Fox, Rt Hon Sir Marcus (Shipley)
Carlisle, John (Luton North) Fry, Sir Peter
Carttiss, Michael Gale, Roger
Cash, William Gallie, Phil
Clappison, James Gardiner, Sir George
Clark, Dr Michael (Rochford) Gill, Christopher
Congdon, David Goodson-Wickes, Dr Charles
Conway, Derek Grant, Sir A (SW Cambs)
Coombs, Anthony (Wyre For'st) Greenway, Harry (Ealing N)
Coombs, Simon (Swindon) Greenway, John (Ryedale)
Griffiths, Peter (Portsmouth, N) Redwood, Rt Hon John
Grylls, Sir Michael Robathan, Andrew
Hargreaves, Andrew Robinson, Mark (Somerton)
Hendry, Charles Robinson, Peter (Belfast E)
Horam, John Roe, Mrs Marion (Broxbourne)
Howell, Rt Hon David (G'dford) Rogers, Allan
Jessel, Toby Ross, William (E Londonderry)
Jopling, Rt Hon Michael Rumbold, Rt Hon Dame Angela
Kellett-Bowman, Dame Elaine Sackville, Tom
Kirkhope, Timothy Shaw, David (Dover)
Knight, Dame Jill (Bir'm E'st'n) Shaw, Sir Giles (Pudsey)
Lamont, Rt Hon Norman Shepherd, Richard (Aldridge)
Leigh, Edward Shersby, Sir Michael
Lennox-Boyd, Sir Mark Skeet, Sir Trevor
Lidington, David Spellar, John
Lord, Michael Spicer, Sir James (W Dorset)
McAvoy, Thomas Spicer, Sir Michael (S Worcs)
Macdonald, Calum Spink, Dr Robert
McGrady, Eddie Sproat, Iain
Maclean, Rt Hon David Steinberg, Gerry
McLoughlin, Patrick Sumberg, David
McNamara, Kevin Sweeney, Walter
Maginnis, Ken Taylor, Rt Hon John D (Strgfd)
Maitland, Lady Olga Taylor, Sir Teddy (Southend, E)
Marland, Paul Thompson, Patrick (Norwich N)
Mates Michael Thornton, Sir Malcolm
Merchant Piers Tracey, Richard
Mills Iain Trend, Michael
Molyneaux Rt Hon Sir James Trimble, David
Monro, Rt Hon Sir Hector Twinn Dr Ian
Montogomery, Sir Fergus Walker, A Cecil (Belfast N)
Murphy, Paul Walker, Bill (N Tayside)
Neubert, Sir Michael Waterson, Nigel
Nicholson, David (Taunton) Watts, John
O'Brien, William (Normanton) Widdecombe, Ann
Onslow, Rt Hon Sir Cranley Willetts, David
Paisley, The Reverend Ian Wilshire, David
Parry, Robert Winterton, Mrs Ann (Congleton)
Patten, Rt Hon John Winterton, Nicholas (Macc'f'ld)
Peacock, Mrs Elizabeth Wolfson, Mark
Porter, David (Waveney) Yeo, Tim
Powell, Ray (Ogmore) Tellers for the Ayes:
Powell, William (Corby) Rev. Martin Smyth and
Purchase, Ken Mr. Robert Hughes.
Abbott, Ms Diane Brown, N (N'c'tle upon Tyne E)
Ainsworth, Peter (East Surrey) Burden, Richard
Ainsworth, Robert (Cov'try NE) Burt, Alistair
Allen, Graham Butler, Peter
Anderson, Donald (Swansea E) Butterfill, John
Anderson, Ms Janet (Ros'dale) Byers, Stephen
Armstrong, Hilary Caborn, Richard
Ashby, David Callaghan, Jim
Baker, Nicholas (North Dorset) Campbell, Mrs Anne (C'bridge)
Banks, Robert (Harrogate) Campbell, Ronnie (Blyth V)
Banks, Tony (Newham NW) Carlisle, Sir Kenneth (Lincoln)
Barnes, Harry Carrington, Matthew
Barron, Kevin Channon, Rt Hon Paul
Batiste, Spencer Chapman, Sir Sydney
Bayley, Hugh Chisholm, Malcolm
Beckett, Rt Hon Margaret Clapham, Michael
Beith, Rt Hon A J Clark, Dr David (South Shields)
Benn, Rt Hon Tony Clarke, Eric (Midlothian)
Bermingham, Gerald Clarke, Rt Hon Kenneth (Ru'clif)
Berry, Roger Clwyd, Mrs Ann
Betts, Clive Coe, Sebastian
Biffen, Rt Hon John Coffey, Ann
Blair, Rt Hon Tony Corbyn, Jeremy
Blunkett, David Corston, Jean
Boateng, Paul Couchman, James
Boswell, Tim Cousins, Jim
Bottomley, Rt Hon Virginia Cran, James
Brandreth, Gyles Cunningham, Jim (Covy SE)
Brown, M (Brigg & Cl'thorpes) Currie, Mrs Edwina (S D'by'ire)
Curry, David (Skipton & Ripon) Jenkin, Bernard
Dafis, Cynog Jenkins, Brian (S.E. Staffs)
Darling, Alistair Johnson Smith, Sir Geoffrey
Davidson, Ian Jones, Barry (Alyn and D'side)
Denham, John Jones, Gwilym (Cardiff N)
Devlin, Tim Jones, Ieuan Wyn (Ynys Môn)
Dewar, Donald Jones, Lynne (B'ham S O)
Dorrell, Rt Hon Stephen Jones, Martyn (Clwyd, SW)
Douglas-Hamilton, Lord James Jones, Nigel (Cheltenham)
Dover, Den Jones, Robert B (W Hertfdshr)
Dowd, Jim Jowell, Tessa
Dunwoody, Mrs Gwyneth Kennedy, Jane (L'pool Br'dg'n)
Eagle, Ms Angela Khabra, Piara S
Eggar, Rt Hon Tim Kilfoyle, Peter
Evans, Jonathan (Brecon) King, Rt Hon Tom
Fatchett, Derek Kirkwood, Archy
Fisher, Mark Knight, Mrs Angela (Erewash)
Flynn, Paul Knight, Rt Hon Greg (Derby N)
Forman, Nigel Knox, Sir David
Forth, Eric Kynoch, George (Kincardine)
Foster, Rt Hon Derek Lait, Mrs Jacqui
Foster, Don (Bath) Lang, Rt Hon Ian
Foulkes, George Lawrence, Sir Ivan
Fowler, Rt Hon Sir Norman Lestor, Joan (Eccles)
Freeman, Rt Hon Roger Liddell, Mrs Helen
French, Douglas Livingstone, Ken
Fyfe, Maria Lloyd, Rt Hon Sir Peter (Fareham)
Galbraith, Sam Lloyd, Tony (Stretford)
Garel-Jones, Rt Hon Tristan Llwyd, Elfyn
Garnier, Edward Loyden, Eddie
Gerrard, Neil Luff, Peter
Gillan, Cheryl Lyell, Rt Hon Sir Nicholas
Godman, Dr Norman A Lynne, Ms Liz
Godsiff, Roger McFall, John
Golding, Mrs Llin MacGregor, Rt Hon John
Goodlad, Rt Hon Alastair MacKay, Andrew
Gorman, Mrs Teresa Mackinlay, Andrew
Grant, Bernie (Tottenham) Maclennan, Robert
Griffiths, Win (Bridgend) MacShane, Denis
Grocott, Bruce Madden, Max
Gummer, Rt Hon John Selwyn Mahon, Alice
Hall, Mike Major, Rt Hon John
Hamilton, Rt Hon Sir Archibald Malone, Gerald
Hampson, Dr Keith Mandelson, Peter
Hannam, Sir John Marlow, Tony
Hanson, David Marshall, Jim (Leicester, S)
Harman, Ms Harriet Marshall, John (Hendon S)
Harris, David Mawhinney, Rt Hon Dr Brian
Harvey, Nick Maxton, John
Hawksley, Warren Mayhew, Rt Hon Sir Patrick
Hayes, Jerry Meacher, Michael
Heald, Oliver Michael, Alun
Heath, Rt Hon Sir Edward Michie, Bill (Sheffield Heeley)
Heppell, John Miller, Andrew
Heseltine, Rt Hon Michael Mitchell, Andrew (Gedling)
Hicks, Robert Mitchell, Sir David (NW Hants)
Higgins, Rt Hon Sir Terence Morgan, Rhodri
Hill, James (Southampton Test) Morley, Elliot
Hill, Keith (Streatham) Morris, Estelle (B'ham Yardley)
Hodge, Margaret Morris, Rt Hon John (Aberavon)
Hogg, Rt Hon Douglas (G'tham) Mudie, George
Hogg, Norman (Cumbernauld) Mullin, Chris
Hoon, Geoffrey Needham, Rt Hon Richard
Hordern, Rt Hon Sir Peter Newton, Rt Hon Tony
Howard, Rt Hon Michael Nicholls, Patrick
Howarth, Alan (Strat'rd-on-A) O'Brien, Mike (N W'kshire)
Howarth, George (Knowsley North) Oppenheim, Phillip
Hoyle, Doug Ottaway, Richard
Hunt, Rt Hon David (Wirral W) Page, Richard
Hunter, Andrew Paice, James
Hutton, John Pawsey, James
Illsley, Eric Pickthall, Colin
Jack, Michael Pike, Peter L
Jackson, Glenda (H'stead) Pope, Greg
Jackson, Helen (Shef'ld, H) Prentice, Bridget (Lew'm E)
Janner, Greville Prentice, Gordon (Pendle)
Primarolo, Dawn Stern, Michael
Quin, Ms Joyce Stevenson, George
Radice, Giles Stott, Roger
Raynsford, Nick Streeter, Gary
Reid, Dr John Taylor, John M (Solihull)
Rendel, David Temple-Morris, Peter
Renton, Rt Hon Tim Timms, Stephen
Roberts, Rt Hon Sir Wyn Tipping, Paddy
Robertson, George (Hamilton) Townsend, Cyril D (Bexl'yh'th)
Roche, Mrs Barbara Tredinnick, David
Rowe, Andrew (Mid Kent) Turner, Dennis
Sainsbury, Rt Hon Sir Timothy Tyler, Paul
Scott, Rt Hon Sir Nicholas Waldegrave, Rt Hon William
Sheerman, Barry Walden, George
Sheldon, Rt Hon Robert Wallace, James
Shephard, Rt Hon Gillian Ward, John
Short, Clare Wardell, Gareth (Gower)
Simpson, Alan Wareing, Robert N
Sims, Roger Whitney, Ray
Skinner, Dennis Whittingdale, John
Smith, Andrew (Oxford E) Wicks, Malcolm
Smith, Chris (Isl'ton S & F'sbury) Wigley, Dafydd
Smith, Llew (Blaenau Gwent) Williams, Alan W (Carmarthen)
Smith, Tim (Beaconsfield) Wood, Timothy
Snape, Peter Young, David (Bolton SE)
Soley, Clive Young, Rt Hon Sir George
Spring, Richard
Squire, Robin (Hornchurch) Tellers for the Noes:
Stanley, Rt Hon Sir John Mr. Peter Bottomley and
Steen, Anthony Sir Jim Lester.

Question accordingly negatived.

It being after Seven o'clock, THE CHAIRMAN, pursuant to Orders [25 March and 17 April], put the Question, That the clause stand part of the Bill.

Question agreed to

Clause 5 ordered to stand part of the Bill.

Mr. Jopling

On a point of order, Sir Geoffrey. The Committee has just had a Division in which more than 100 Conservative Members voted against the guts of the Bill. I ask the Leader of the House, who is in his place, to reconsider the Bill when things have cooled down a little. [HON. MEMBERS: "Hear, hear."] I ask my right hon. Friend to reconsider whether the Bill ought to be proceeded with.

The First Deputy Chairman of Ways and Means (Sir Geoffrey Lofthouse)

That matter is not for the Chair. We must move on.

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