§ Mr. Roger Sims (Chislehurst)
I beg to move amendment No. 3, in page 4, line 40, leave out 'first' and insert 'second'.
The First Deputy Chairman
With this, it will be convenient to discuss also the following: Amendment No. 7, in page 5, line 14, at end add—'(9A) Where an application for a divorce order is made by one party, subsection (9D) applies if—492
- (a) the other party applies to the court, within the prescribed period, for time for further reflection; and
- (b) the requirements of section 9 (except any imposed under section 9(3) are satisfied.(9B) Where any application for a divorce order is made, subsection (9D) also applies if there is any child of the family under the age of sixteen when the statement is received by the court.(9C) Subsection (9D) does not apply if—
- (a) at the time when the application for a divorce order is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family, with a power of arrest attached under section 44; or
- (b) the court is satisfied that delaying the making of a divorce order would be significantly detrimental to the welfare of any child of the family.(9D) If this subsection applies, the period for reflection and consideration is extended by a period of one year, but without invalidating the application for a divorce order.'.Amendment No. 8, in page 5, line 14, at end add—'(9A) Where an application for a divorce order is made by one party, subsection (9D) applies if—
- (a) the other party applies to the court, within the prescribed period, for time for further reflection; and
- (b) the requirements of section 9 (except any imposed under section 9(3) are satisfied.(9B) Where any application for a divorce order is made, subsection (9D) also applies if there is any child of the family under the age of sixteen when the statement is received by the court.(9C) Subsection (9D) does not apply if—
- (a) at the time when the application for a divorce order is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family, with a power of arrest attached under section 44; or
- (b) the court is satisfied that delaying the making of a divorce order would be significantly detrimental to the welfare of any child of the family.(9D) If this subsection applies, the period for reflection and consideration is extended by a period of six months, but without invalidating the application for a divorce order.'.Amendment No. 17, in page 5, line 14, at end add—'(9A) Where an application for a divorce order is made by one party, subsection (9D) applies if
- (a) the other party applies to the court, within the prescribed period, for time for further reflection; and
- (b) the requirements of section 9 (except any imposed under section 9(3) are satisfied.(9B) Where any application for a divorce order is made, subsection (9D) also applies if there is any child of the family under the age of sixteen years when the statement is received by the court.(9C) Subsection (9D) does not apply if the court is satisfied that the case is one of exceptional hardship suffered by the applicant or of exceptional depravity on the part of the other party; but in determining the application the court must have regard to the interests of any child of the family and to the question whether there is a reasonable probability of reconciliation during the additional period mentioned in subsection (9D).(9D) If this subsection applies, the period for reflection and consideration is extended by a period of one year, but without invalidating the application for a divorce order.'.Amendment No. 18, in page 5, line 14, at end add—'(9A) Where an application for a divorce order is made by one party, subsection (9D) applies if
- (b) the requirements of section 9 (except any imposed under section 9(3) are satisfied.(9B) Where any application for a divorce order is made, subsection (9D) also applies if there is any child of the family under the age of sixteen years when the statement is received by the court.493(9C) Subsection (9D) does not apply if the court is satisfied that the case is one of exceptional hardship suffered by the applicant or of exceptional depravity on the part of the other party; but in determining the application the court must have regard to the interests of any child of the family and to the question whether there is a reasonable probability of reconciliation during the additional period mentioned in subsection (9D)(9D) If this subsection applies, the period for reflection and consideration is extended by a period of six months, but without invalidating the application for a divorce order.'.Clause 7 stand part.
The First Deputy Chairman
Order. Hon. Members should leave the Chamber quietly—and I ask the hon. Members who are holding a sub-committee in the right-hand corner of the Chamber to hold it somewhere else.
§ Mr. Sims
On Second Reading, I supported the Bill's proposal for a period of consideration, so that mediation and reconciliation, if possible, can take place before divorce is finalised. I shall listen to hon. Members who propound arguments in support of the other amendments, as to whether 12 months or a longer period would be appropriate. I want to go further back in the process, and I invite the Committee to consider how soon after a couple have married they should be permitted, to use the language of the Bill, to makea statement of marital breakdown".7.15 pm
It is common ground among hon. Members that the family is the foundation of our society, and that the basis of the family is marriage. Of course two people can live together and produce children without any civil or religious ceremony having taken place—the state cannot prevent that—but a couple's public commitment to each other in a religious or civil marriage ceremony must surely add to the stability of their relationship to the benefit of the man and the woman, the children of the marriage and society.
Ideally, such a commitment should be lifelong, not only on religious grounds—promises made before almighty God should be inviolable—but because it must be in the interests of a stable society that marriage be permanent. We must acknowledge that sometimes, with the best will in the world, things do not work out and the marriage breaks down. If it is desirable for the state to have a formal, public procedure for marriage, there should be a formal, public procedure to enable a couple who feel that their marriage has broken down to break that contract—and to do so as far as possible on mutually acceptable terms, with appropriate arrangements with regard to property and, especially, children. The Bill is all about doing that, and we have been debating and will continue to debate the best way for procedures to be followed.
When framing legislation, it is important to consider—to use the expression that has been employed a number of times this afternoon—the messages that the Committee is 494 sending about the institution of marriage and its status. Our legislation should surely be saying how important and solemn is the undertaking into which a couple enter on marriage, and how important and solemn is the breaking of the marriage contract.
§ Mr. Rowe
My hon. Friend raises an enormously important point. Does he agree that, for a variety of benevolent motives, we have over years unpicked the vast majority of the secular benefits of being married, so that, when people enter into a solemn marriage, the state's investment in that relationship is a great deal less than it used to be?
§ Mr. Sims
I cannot dispute that point—in fact, I strongly agree with my hon. Friend—but I fear that if I were to go into the matters behind his intervention, I would quite properly be ruled out of order. God forbid that that should happen to me, a member of the Chairmen's Panel.
If we were to say that, if a couple have married, there can be no question of divorce for 10 years, that would certainly demonstrate the importance of the commitment, but I fear that it might be seen as a deterrent to marriage. If, on the other hand, it was suggested that we should tell people that they can get married and, if it does not work out, be divorced in three months, we would surely oppose that on the ground that it would devalue the institution of marriage. So what should be the minimum period between a wedding taking place and the point at which a statement of intention to divorce can be lodged? What length of time would be reasonable and practicable and yet at the same time demonstrate the seriousness of the marriage vows?
Before the Matrimonial and Family Proceedings Act 1984, that period was three years, which I suggest is about right, but that Bill sought to reduce the period to one year. I opposed that proposal and sought a compromise of two years. Despite my arguments and my vote, the period on the face of the Act is one year. That is now the minimum period.
We have asked the question so often, but it is appropriate—what messages does that convey to the sort of young people about whom my right hon. Friend the Member for Mitcham and Morden (Dame A. Rumbold) spoke so eloquently in the previous debate? Are we not telling people, in effect, that, if they are thinking of marriage, they can give it a go, but they should not worry if it does not work out because, in 12 months' time, they can get out of it? Are we saying that marriage can be entered into on a trial basis rather than for life? All of us who have been married will know that the first year can be difficult, especially if a baby arrives. To allow the lodging of divorce petition after one year, as now, seems to me to be to allow it far too soon.
Whatever other changes will be made by the present Bill, it still proposes that that one-year period shall remain. That is enshrined in clause 7(6), which reads:A statement which is made before the first anniversary of the marriage to which it relates is ineffective for the purposes of any application for a divorce order.The effect of my amendment would be to replace the word "first" with the word "second". I believe that that would give a more appropriate period. If my amendment were passed, a couple who are contemplating marriage will know that, if they proceed, at least two years must elapse before they can embark on divorce proceedings. As the 495 Bill now stands, there would then be a further 12 months for reflection and consideration, making three years in all. If the amendments with which mine is grouped were passed, that period of reflection could be extended for a further six or 12 months. Whatever the views of the Committee on the other amendments, I hope it will accept the arguments that I have adduced and support my amendment.
§ Mr. Soley
I am sorry to have missed the opening of the debate, but I was chairing the Northern Ireland Affairs Committee. I regard this subject as very important, because I have spent much of my working life working with families who have been in trouble for one reason or another, frequently because relationships have broken down. I am very much in favour of arbitration and conciliation, and that is why I support the general thrust of the Bill. I am not, however, generally in favour of extending the length of time before it is possible to get a divorce.
I am not as worried about amendment No. 3 as I was about amendment No. 1, because I believe that bringing fault into divorce immediately puts children in the firing line of the battle. My hon. Friend the Member for Brent, South (Mr. Boateng) made that point powerfully and I am pleased that the amendment was thrown out. However, there are a number of contradictions here. If it is the view of the hon. Member for Chislehurst (Mr. Sims) that we should make it more difficult for couples to separate, and tell people who are about to marry not to marry without a lot of thought, because, if they do they cannot undo it easily, that is a reasonable position and I understand it, but that course is likely to increase the number of people who choose to live together outside marriage.
I do not mind that—there is something to be said for people living together outside marriage to see whether their relationship works before they make a longer-term commitment by having children. For me, the crucial issue is the welfare of the children, and we should never lose sight of that factor. I would not mind an increase in the number of people living together, but I suspect that the hon. Gentleman might not want that to happen.
I have been struck by the number of times that states or Governments—of the left and right—that have tried to intervene to dictate social relationships between people, have nearly always failed to achieve their aim. People make relationships because of the quality of those relationships. If a relationship does not work, those involved will separate. The problem that we have to face is that, if children are involved in a relationship that does not work, it is very painful for them. The ending of a close relationship is also painful for adults, but it is the children on whom we must focus and for whom we should have most concern.
That brings me to another point, which was mentioned at the end of the previous debate and which the hon. Member for Chislehurst mentioned. We make a fundamental mistake if we assume that a marriage is the same as a family. It is not. Families predate marriage by thousands of years. Marriage is a relatively recent innovation. That does not mean that I am against marriage. If people wish to marry, it is important that the state, the Church or any other organisation involved makes the experience positive and pleasant for them. If people wish to marry, the experience should be an 496 important one for which they make preparation. If the Churches are worried about the divorce rate, they should provide more preparation.
If people do not want to marry, the state should not moralise, find fault or blame. Many people—of whom I am one—live outside marriage. I can tell hon. Members that my children are perfectly happy, they are quite well brought up and we are perfectly happy as a family and as individuals. Many of my constituents, and many other people in the country, live in exactly the same sort of relationship. I would not seek to impose on people who are married a moral code for the structure of their relationship and I ask only that they do not seek to impose on me a structure that I am not willing to accept.
§ Dame Jill Knight (Birmingham, Edgbaston)
I am trying to follow the hon. Gentleman's line of argument. He said at the beginning of his speech that, if the amendment tabled by my hon. Friend the Member for Chislehurst (Mr. Sims) were adopted, it would put people off getting married and they would live together. If I understand the hon. Gentleman correctly, he has just said that he sees nothing wrong with a decision to live together outside marriage. The hon. Gentleman seems to be arguing from both sides at the same time. Will he clarify his argument a little?
§ Mr. Soley
I am saying that, when the state, through Parliament in this instance, tries to legislate on these matters, there are many unintended consequences. If we make it difficult for divorce to take place, people will vote with their feet. They are likely—I put it no higher than that—to do one of two things. The first is that they will choose to live with a partner outside marriage rather than marry first. I do not mind if that happens, but I gather that some people do.
The second is that, when a marriage breaks up and it is necessary for the partners to wait a long time for a divorce—let us assume that there is no doubt that the marriage has ended and neither party is looking for reconciliation—one or both will enter into another relationship and live with that person. That is a common background. If we make people wait three, four or five years for a divorce, more people will live in sin, if that is the phrase that people choose to use.
I am merely setting out the possible unintended consequences of legislation. That does not trouble me too much—I am much more worried about the quality of relationships in people's lives and the way in which we support the family post marriage, including children.
§ Dame Elaine Kellett-Bowman
The hon. Gentleman has said twice that, if it is made difficult to get a divorce, people will be less inclined to marry. That is not true. Until the second half of the century, it was extremely difficult to get divorced. In the previous century, it was necessary to secure one's own Act of Parliament, for heaven's sake. That did not put people off getting married. Only recently has divorce been made easier; before that happened, people married willingly.
§ Mr. Soley
The hon. Lady is right. If she listens, she will hear what I have to say about the matters that she has raised. I merely say that those who support the amendment should understand that there will be 497 unintended consequences if it is adopted. The consequences will not be quite what they expect. As I have said, from my standpoint I am relatively relaxed about the amendment. I advance my arguments in that context.
The problem is that marriage has come to be seen as a passport to happiness. It is assumed that getting married is a good thing—"You will be happy, you can have children and you will be a good parent." Those things do not follow automatically. There is evidence that many young people—I think that I will take hon. Members on both sides of the Chamber with me in this instance—have seen marriage as something of a celebration, almost to the point of its being a party, without necessarily thinking through the longer-term consequences of having children and living together.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
One of my hon. Friend's most telling observations is that many people enter marriage ill prepared. Surely the task is to make the preparation for this most intimate of relationships much more effective. That involves many voluntary organisations, such as Churches, apart from the state.
§ Mr. Soley
That is absolutely right. I shall say something about the registering of children, which we tend to ignore. As I have said, my hon. Friend is right.
Not so long ago, one of my constituents telephoned to complain bitterly that the vicar would not marry her. Hon. Members do not often receive such calls. In any event, I intervened to find out why the vicar was not prepared to marry the lady. He said, "She does not understand that it is not just an excuse for a party." He wanted to make preparation available and she was saying, "I want a party. I have been brought up to believe that getting married is a good thing to do. I will be happy and have children." Someone like me was saying, "Marriage does not equal happiness. Similarly, it does not equal being a good parent. It is much more complex than that." We should be focusing on that.
Divorce rates are high and, in my judgment, they will remain so, primarily for economic reasons. There are, of course, other factors. People are living longer and children become independent. People are divorced at different stages and at different ages nowadays.
In my parents' generation, parents stayed together in loveless marriages. They were bitterly unhappy. It was tragic watching people of my parents' generation locked together in loveless, unhappy marriages. They felt that, because the state had said that they should not get divorced, they had to continue living in that way. I saw many sad elderly people who missed so much in life after their children left home. The same was true of people who did not have children. They, too, were locked into loveless, unhappy marriages. We have no right to impose that sort of life on people through a social code that does not fit with the experience of real life.
If the Government wanted to do something about reducing the divorce rate, they would have to change the role of women. They would have to make women much more dependent on men's earnings once more, so that it would be difficult for them to leave. That will not happen. In a strange way, there is an element of reversal.
498 Men, especially in some of the old heavy industry areas, are now much more dependent on women than hitherto. They are not especially useful as parents, because they were brought up in the macho culture of building ships or digging coal, for example. They suddenly find that they have no role in life because they have no job. They have had no preparation for parenthood, so what use are they to a woman? It is a real problem. It is why we find a fairly high number of single-parent women living in some of the old heavy industry areas. That is also why, in south Wales—many of us would not have believed this some years ago—close to 50 per cent. of the main carers of children at home are men. A fundamental and radical change has taken place in other parts of the country as well.
Before coming to this place, I was a probation officer. I worked with damaged and, at times, extremely violent families. I worked also with families that came to see me because the divorce court or the family court had asked that that should happen. Three things can be done when a family or a marriage is in difficulty. I say "marriage" advisedly, but I am talking about two people living together in that situation.
First, I could say, "You can stay as you are and not do anything about the situation, in which case I can guarantee that you will probably continue to be unhappy together." Secondly, I could say, "You can separate. If you choose to do that you should separate in the least painful way for you and to the children if any are involved." Thirdly, I could say, "You can attempt reconciliation or conciliation." The third option is an important one and it is one that the Bill takes on board, which is why I welcome the relevant part of it.
Of the three broad philosophies that I have outlined, the most damaging one is that people should stay together when they are not able to change an unhappy relationship, believing that they are doing so because they should, or for the good of the children. If parents are staying together unhappily, they are almost certainly not performing well as parents. That does not mean that people should automatically divorce and separate; it means that it is not possible to be a good parent, or as good as one would like to be, if the relationship with one's main partner in life involves much friction and fighting. That is especially true if there is violence. That is the worst and most damaging scene.
Some of the most damaged clients with whom I worked as a probation officer—I worked with some extremely violent offenders—came from families where the father was coming and going and violent and the mother was ambivalent about the relationship, switching love on and off. If we perpetuate such relationships—they often were perpetuated—we produce very disturbed children.
§ Mrs. Ann Winterton (Congleton)
When there is severe violence in a family, no one would suggest that the children might not be better off in a different situation, but all the research that has been undertaken to date shows extremely clearly that children are better off when their parents are still together, even unhappily, than when they are divorced. They are better off in terms of their health and education and every other factor. Virtually every organisation that deals with children says that.
§ Mr. Soley
I have to dispute that. I could list many organisations that work with children which would 499 dispute that view. The research does not prove the case one way or the other, not least because it is hard to do the research reliably.
The research, including that which supports my case, normally relies on small samples, often does not compare like with like and does not take into account all the many and varied factors that affect these situations. What I am concentrating on—and what I ask the hon. Lady, who I know cares deeply about this, to concentrate on—is the quality of the relationship. We should focus on that. Where a relationship is not working, we should help it to work. That is the advantage of conciliation—it does not need to have a time limit; it can be one year, three years or one month—and people will go for it if it is available and they want to make the relationship work.
If, for whatever reason, people do not want to make the relationship work, we can wait one or 10 years, but the chances are that they will not come for conciliation. If we try to make them come, the chances are that it will not work. It must be voluntary—that is the only way to make it happen.
§ Mrs. Peacock
The hon. Gentleman is obviously considering the children in any broken marriage—we would all want to do that. What protection can he envisage being given to a mother who takes the children away, perhaps from a violent situation, and gets a live-in boyfriend? They are not his children and what happens is—I have quite a few cases of this, although I am not a lawyer—that the violence restarts and the children suffer twice: they go through a second stage of violence at the hands of someone who is almost unknown.
§ Mr. Rowe
The hon. Gentleman is making an interesting speech. One of the great turn-offs for people seeking help with their marriages is that it is often provided by people from a different social background from their own. Does he agree that there is a huge opportunity out there for an explosion in what I call mentoring, by people who have time on their hands and who have been through rearing children and can give support and comfort?
§ Mr. Soley
A host of important groups do not receive support and can give the type of support that the hon. Gentleman is thinking of. I would widen it to other family issues.
On the divorce rate, some hon. Members hark back to a golden age that never existed. There will be no repeat of the past because the economy, the role of women and a number of other things in that respect have changed.
I want to be a bit more positive. In the period of reconciliation, be it one year or three, we must ensure that reconciliation and arbitration are available, well resourced and provided by suitably qualified people. Otherwise, it becomes meaningless. It would be especially wrong to have a law that said that couples must consider 500 reconciliation first and then under-resource the service so that, when they tried to use it, it was of poor quality or inadequate. That would be the worst of all things.
I say to hon. Members who support the amendment—I am sure that I carry the hon. Member for Chislehurst, who moved it, with me; I hope that I carry also one or two of the hon. Ladies who intervened—that, if they pass the amendment, they must ensure that they vote for the money to go with it. If they do not make it work, they will be giving people false hopes of what can be achieved. I want to make reconciliation available.
My last two points are also about children and the family. The hon. Member for Batley and Spen (Mrs. Peacock) made an important point. One thing is lacking in all the debate—it has been lacking in the political debate in Britain for many years: family policy. There is no family policy in this country worth the name. Government Departments do not liaise and co-ordinate with each other or with local authorities. There is no liaison with the private sector. Because there is no family policy, we put families into positions in which they are likely to break down.
I shall give just one simple example, but it is dear to my heart. If homeless families with young children are put in bed-and-breakfast accommodation or high-rise flats, parenting problems are produced. Even the best parent cannot bring up kids in bed-and-breakfast accommodation and will get frustrated with kids under their feet in a high-rise flat. Many of them will let them play outside unsupervised and then everyone is surprised when graffiti, violence and crime grow.
I must mention another important lesson to all hon. Members. We are quick—the tabloid press is especially bad—to damn someone who has been through everlasting hell and who has been caught being cruel to children, or vicious or brutal. I agree—I have no problem condemning people for cruel behaviour, but we hardly ever pay attention to the fact that the causation of that is often a breakdown in parenting, and often violent parenting.
It was interesting that, in the case of Dunblane, we were all quick, understandably and rightly, to say, "What a wicked act." We also ignored the fact that the man who killed in Dunblane was not only abandoned by his father when he was very young, which happens to many others, but brought up to believe that his mother was his sister. We did not intervene. We did not do anything. We had no policies.
I could produce a hundred and one cases where the whole nation is deeply sympathetic to the child who is battered, brutalised and badly treated or who is not given the love and consistent care that he requires. Fifteen years later—I have seen the pattern in my working life as a probation officer—that person is up in court for some violent action and everyone is damning him to hell and back, but we did not intervene when we could have done, because of the lack of a family policy.
On the final important point, people sometimes say to me, "It is all very well saying that marriage and the family are different. I understand and accept that, but is there not one thing that makes the marriage aspect special? Marriage is about legitimising the couple's position with children." Sadly, it is not. The real thing that legitimises 501 the position with children is the couple's registering of the child in their name. The mother and father's registering of the child is the important act, as they accept responsibility for the welfare of the child. It is one of the most important acts; unfortunately, there is no ceremony for it.
To return to the point made by the hon. Member for Batley and Spen, we do not even develop the system differently so that a person who moves into a family where there are children by a previous marriage has some mechanism by which he or she can take on responsibility without full adoption, which might not be wanted by other party. We do not allow them even to register it in a meaningful way.
§ Mr. Spearing
The Committee has listened to a sincere and important speech. Does my hon. Friend agree that the real opportunity for expressing responsibility, and for society to take responsibility for children, happens at the point of marriage, when the partners are perhaps looking towards children and their responsibility for them—society has a responsibility in that respect as well—and towards each other? Is not that the answer to his question, "What is marriage about?"
§ Mr. Soley
Yes, but that is why I said in my opening comments that, for people who want to get married, marriage is profoundly important. If people want to get married, that ceremony is not only important to them, but should be made attractive to, and important for, the Church and the state, but we should not assume that it equals happiness or that everyone wants to do it.
We must understand that marriage is different from family, from being a good parent and, above all, from a happy family. There are plenty of good parents who are not married. Plenty of societies before ours never even heard of the word "marriage" before it was invented 2,000 years ago—or whenever it was invented. Let us not forget that they were good parents and good families.
I have no objection to the Church taking this on board, but it must stand on its own feet and not use the family as though people must necessarily get into the family or can become a good parent only by the marriage route. They can do it through a number of other routes. Registering children is important.
I apologise for going on for longer than I intended. Although the amendment would be nowhere near as harmful as amendment No. 1 would have been, my general approach would be to keep the period fairly short, emphasise arbitration and conciliation, and make sure that resources are available for it. We should not worry too much about the period we lay down in law. It is not that important. What matters above all is more support for families and parenting, and the existence of a family and parenting policy. Moreover, it is vital to register children in the name of the parent: in that way, parents undertake to society to be responsible for those children.
§ Mr. Leigh
I wish to speak to amendments Nos. 7 and 8. At this point, we must decide how long it takes to conclude that a marriage has broken down irretrievably. Like many other people, I believe that a year is not long enough. My view is shared by most people in Scotland, where 63 per cent. of divorces take more than two years, 502 and by most people in Northern Ireland, where 75 per cent. of divorces take more than two years. It takes even longer to divorce in other European countries.
My view is also shared by most members of the public. Most respondents to the MORI poll to which I referred in an earlier debate supported the present two-year period for separation with consent, although they felt that the five-year period for separation without consent should be shortened to four years. Interestingly, those who supported the concept of no-fault divorce favoured an average period of 20 months. There is a good deal of support for my amendments from all sections of the community—not least from Cardinal Hume, former Chief Rabbi Jakobovitz, the Archbishop of York and the Bishops of London, Chester and Chichester.
Amendment No. 7 would extend the waiting period to two years; amendment No. 8 would extend it to 18 months. A number of safeguards are provided in regard to children. The waiting period would be only one year if both parties consent to divorce, and if there are no children of the marriage. It could be shortened to one year—but not less—if there is a clear case of domestic violence, with a court order and power of arrest under part IV of the Bill, or if the court concludes that to extend the period beyond a year would be detrimental to the children. Those are clearly special cases.
The amendment is itself a compromise. I know that at least one of my hon. Friends will not vote for the amendments, because he believes that there should be no exceptions. We decided, however, that support for the amendment would be maximised if we extended the period beyond a year, but provided for exceptions—for instance, clear cases of harm to children or violence to a spouse. Let us leave those exceptions aside, however. If the Committee agrees one or other of the amendments, it will send the important message that, if there are children in a marriage, that should make a difference to the divorce process. In such circumstances, the parties should think not just of themselves but of the interests of the children.
How long a period is needed in which to prove that a marriage has broken down irretrievably? "Irretrievably" is a word of great finality: it means that there can be no turning back. Under the Bill, once a divorce order has been made that is it. Under the existing legislation, a number of people do turn back—between 20,000 and 30,000—and we want to give those people a chance. We know from the results of various polls that 50 per cent. of men and 28 per cent. of women regret divorcing, and that—interestingly—10 per cent. of both men and women regret divorcing each other. That is extraordinary, given that everyone agrees that divorce damages society as a whole.
I suppose that, if both parties want to divorce from the start, there will be little chance of reconciliation, but there must be some chance, and there must be a much greater chance if one party does not want to divorce. Should we not make a distinction between divorces that involve consent and divorces that do not? In that way, we would promote reconciliation.
Other European Union jurisdictions that do not have the concept of no-fault divorce make such a distinction. In Germany, it is possible to divorce after a year if there is consent, but if there is not consent the parties must wait for three years. In Spain, it is possible to divorce after one year if there is consent, but the parties must wait for two years if there is not, and there must be a two-year 503 separation. In France, it is possible to secure a no-fault divorce after only nine months, but if there is no consent the parties must wait for six years. It seems that other European Union countries that have introduced no-fault legislation recognise that, if there is no consent, there should be a considerable difference in the waiting time.
Under the Bill—unless it is amended in the way that I propose—a spouse who may have been married for a long time cannot possibly signal his or her objection to divorce. It makes no difference: the divorce will go through within a year. I consider the amendments sensible and moderate; they are certainly in line with what other jurisdictions have proposed.
A practical point is also involved. Again, we should consider what is happening in other countries. Surely, if one party does not agree to a divorce, it may take rather longer to sort out what lawyers call the ancillaries—matters involving children and property, for instance. Under schedule 1—I discussed this earlier with my hon. Friend the Under-Secretary of State—if one spouse is deemed by the court to be obstructive, the court can impose an agreement.
Of course, it is possible that the partner who does not want a divorce is not being obstructive; complicated matters may be involved. Children, and future children, give rise to complicated matters, which may take a long time to consider. For those reasons—certainly if children are involved—we should allow more time. That is not just my view; I think that, in a funny sort of way, it is also the view of my hon. Friend the Under-Secretary of State. I understand that he told a meeting of, I think, the Conservative Family Campaign that the median time for divorce was 14 months. If I have misquoted him, I hope that he will correct me; I heard that at secondhand.
§ The Parliamentary Secretary, Lord Chancellor's Department (Mr. Jonathan Evans)
I have always made it clear that the median time is currently seven months. The latest statistics, which are due to be published shortly, confirm that.
§ Mr. Leigh
I am sorry: I was obviously given wrong information. But my hon. Friend is not the only person who is alleged to have said that: Lord Justice Ackner, a considerable authority on such matters, told the other place that in his view, in the ordinary course of events where there are children involved or where there is resistance to divorce it takes a good 18 months to achieve a divorce. That is in column 628 of Hansard.
§ The Second Deputy Chairman of Ways and Means (Dame Janet Fookes)
Order. I remind the hon. Gentleman of the rule that does not allow Members to quote from debates in the other place unless they are quoting ministerial statements.
§ Mr. Leigh
I was deliberately paraphrasing because I was aware of that rule. I did not read out the entire statement. I do not know how Hansard will deal with that—whether it will paraphrase my paraphrase or report the entire quotation. We shall have to wait and see. In any case, to paraphrase Lord Justice Ackner, it is his view that, in the normal course of events, it takes 18 months if there is a dispute or if children are involved. If people are arguing that waiting really damages children, why is there no uproar about the different waiting times in Germany, France or Scotland?
504 8 pm
In debating these amendments, we could argue about making arrangements for the future. Under existing law, a person can get a decree absolute just six weeks after the decree nisi but he cannot get any final orders on lump sums or property transfers until the decree absolute. In reality, arguments are mainly about ancillaries. As we established in the previous debate, there are only four or five divorce trials every year. People argue about how to divide the assets, but people can continue arguing about the ancillaries long after they are effectively divorced. Expert barristers in this field have confirmed to me that it can often take more than a year.
Under the Bill, everything has to be settled before the divorce is completed. As my hon. Friend the Under-Secretary said earlier, it is therefore possible to delay the period beyond a year but, as I said to him—I think that this is what will happen—there will be an expectation under the Bill that the period for achieving a divorce will be a year.
Even if hon. Members do not support my wish to extend the period to two years, there is a very strong case indeed for extending it to 18 months. That idea is confirmed by various academics. Peter Duckworth, a leading practitioner in divorce legislation, wrote to me. As he is not a Member of the other place I think that I am allowed to quote him. He said:If there were a genuine breathing space of 12 months before steps were taken to end a marriage, then I would be prepared to believe that many marriages would be saved. But that is not on offer.Instead what is proposed is a radical alteration from present law, whereby you cannot obtain substantive orders for ancillary relief before decree nisi, to a situation where all the relevant financial orders not only can but must be made before the divorce, even if in general they will not take effect until afterwards. Translated into practical terms, it is my view that these proposals will eliminate any realistic prospect of reconciliation within the 12 month period, for the simple reason that parties will be so preoccupied with sorting out their children and property that they will have no time to think.In many if not most cases, arrangements for children and money require complex and detailed negotiation. While the Children Act 1989 permits residence and contact arrangements to be settled out of court, the same is not true of money and property orders which need the finality of a court order under the 1973 Act".Peter Duckworth knows what he is talking about—he is a practitioner in this sphere. He is telling the Committee that, unless we extend the period beyond 12 months, there is a real possibility that we shall not get the kind of reconciliation process which I know the Opposition spokesman is so determined to include in the Bill.
§ Mr. Peter Bottomley (Eltham)
I am listening to my hon. Friend with great care. Were the period to be, say, two years. does he think that the time for reconciliation would be before people reached agreement on ancillary matters, after they had done so or at the same time?
§ Mr. Leigh
If one of the amendments were passed and the period were extended to 18 months or two years, I suggest that early in the process there would effectively be a litigation-free zone. Such a period, which is similar to what the Opposition spokesman is arguing for, would be built into the Bill. It would occur early in the divorce process, before people were allowed to start arguing about assets or what to do about the children and before mediators arrived to determine or advise on such matters. The time after a partner had lodged a statement of marital difficulty would be devoted to reconciliation.
505 My argument and that of Peter Duckworth is that, if the period is as short as 12 months, it is simply impossible to have a meaningful period of reconciliation—there is not enough time because there is so much to sort out. If children are involved and if there is not consent to the divorce, reconciliation will not be effective.
A final problem with the Bill, if not amended in the way that I am suggesting, is that permanent arrangements could be in place within three months of the beginning of the process. In theory, everything could be agreed within three months. Were that to happen, one would effectively be divorced within three months although, in practice, one could not remarry for 12 months.
If a woman wanted to eject her husband from the marital home—it is usually that way around—it could be done early in the process, especially if there were an allegation of domestic violence. A lawyer could be obtained to settle these matters quickly and one could effectively be divorced within three months. I know that that is not what the Under-Secretary wants, but often what Ministers want, as we have seen in previous divorce legislation, is not what happens after the courts have interpreted or re-interpreted the legislation.
Ruth Deech has already been cited once or twice in this debate. She is a good person to cite in this instance because she has apparently always opposed us on everything else and so cannot be accused of being a Conservative party stooge. She is, after all, the principal of St. Ann's college, Oxford and a very distinguished lady. In the context of what I am about to read out, it is important to note that she is a woman. She wrote:Our ancillary relief is already a vengeful process and is based on the premise that all husbands should maintain their wives regardless of conduct, and regardless of her ability to keep herself. The pressure to settle in twelve months will make it worse in every respect.Mediators will perforce lend themselves to this process of settling everything regardless of justice within 12 months. The wife who is reliant on Legal Aid will be at the mercy of the mediation process whereas the husband who can afford to pay a lawyer will be able to use ancillary relief for his own ends. Will mediators be able to tell wives about pension-splitting, the effects of the Child Support Agency, mortgage relief, intestacy law, joint bank accounts, etc? It is not surprising that where there is any money at all, ancillary matters can take more than 12 months.That is a powerful point. Before hon. Members consider voting down the sensible amendments, which are themselves very much a compromise, I hope that they will consider what Ruth Deech said in her letter to me.
Writing in The Independent, Polly Toynbee said that the break-up of a marriage should be a cause for celebration. I do not think that most hon. Members would agree with that. Children want their parents to stay together. We would wholly reject any amendment that would reduce the waiting time to less than 12 months. Public opinion supports us on keeping parents together, and the verdicts of other jurisdictions in Europe also support what I am suggesting.
My view and that of many people who practise in this field is that one year is simply too short a time where children are involved or where there is a dispute. I urge the Committee to accept my amendments.
§ Mr. Donald Anderson
I find the arguments proposed by the hon. Member for Gainsborough and Horncastle 506 (Mr. Leigh) quite compelling. It is in that spirit that I and the right hon. Member for Barkston Ash—he is my right hon. Friend in this matter—tabled amendments Nos. 17 and 18, which would achieve the same aim. My remarks will be brief as much of the background was covered in the previous debate in which I was not with the hon. Gentleman for the reasons that I gave.
There is broad agreement on the principles set out in part I of the Bill and on the notion that divorce is extremely costly, not only to the individuals involved and their children but to the state. There is also clear agreement that there should be some restriction on divorce in the early years of marriage. To that extent, I wholeheartedly concur with amendment No. 3, which was so ably moved by the hon. Member for Chislehurst (Mr. Sims). The question therefore is one of judgment—how long should the restriction last and in what circumstances should it be abridged? It was with those objectives in mind that I and—for these purposes—my right hon. Friend the Member for Barkston Ash made our own stab in response to the Minister's invitation to use his Department's resources in that respect.
I looked at the established principle—the formulation that was in being when I was called to the Bar in 1969. At that time, a petition could only be presented within three years of marriage if the court was satisfied that the case was one of exceptional hardship suffered by the applicant or exceptional depravity on the part of the other party. I had a word on that with the right hon. Member for Oxford, West and Abingdon (Mr. Patten), who thought that the word "depravity" very considerably appealed to him. The right hon. Member for Barkston Ash and I thought that, effectively, the formulation that we had proposed was not only more general, but had an established body of case law behind it and judgment on it, and could therefore be well understood.
I must confess that, having looked more carefully at the formulation and having reflected on the matter, especially in the light of the criticisms of it in pages 12 to 15 of the Law Commission's 1982 report, No. 116, "Time Restrictions on the Presentation of Divorce and Nullity Petitions", I have come to the view that that proposed by the hon. Member for Gainsborough and Horncastle is infinitely preferable. I shall briefly explain why.
The time-hallowed formulation, which included the remarkable word "depravity", had in practice proved quite difficult. It encouraged, if not ensured, that the particulars had to be made very unpleasant to bring the applicant within its terms. Setting out the case under it caused immense distress and humiliation. It led to very subjective judgments throughout the country, and, in effect, exaggerated the adversarial element. The task was therefore to find a formula that avoided those drawbacks, but which was simple, comprehensive and did not add further to the conflict between parties.
I wholly adopt the arguments of the hon. Member for Gainsborough and Horncastle. The proposed formula will not encourage further conflict when, for example, the case has already been before the court and there is a relevant non-molestation order. If there had been conflict, it would have been litigated previously and the court would have come to a decision in that respect. His formulation is simple, and using the phrase that has been used before, it gives all the right messages and signals.
507 The key question is therefore one of time. As a former practitioner who, certainly in the 1970s and early 1980s, practised in this field, I well accept what the legal adviser to the hon. Member for Gainsborough and Horncastle said. There needs to be more than one year. I hope that my hon. Friend the Member for Brent, South (Mr. Boateng), whose attitude to the Bill has been to emphasise the key need for adequate time and facilities for reconciliation, will make those aspects a matter of public policy. I hope that, when the Bill is in Standing Committee, the Government will be prepared to look very carefully at reconciliation.
There is also the question of resources. If the Government are really keen on reconciliation, adequate resources must be made available. The point made by the hon. Member for Mid-Kent (Mr. Rowe) must be addressed. Those who are in the business of counselling must be broadly from the same social class as those who need the counselling.
In Chinese society, there was always an Auntie Wu in the village to whom people went when things were not going right. Rather than lawyers and people who will tell one about pension splitting, and so on, one needs an Auntie Wu from whatever particular group of society one comes—someone who has gone through the process herself, who perhaps has children, understands life and can help young couples who have embarked on marriage too early and without adequate preparation—with whom one can talk through problems.
In the waiting period—two years or 18 months instead of one year—there has to be a two-stage process. There must be adequate time before the lawyers get involved, when those with experience of life are able to talk in a very open way in a language that the young people will understand. I repeat to the Minister that the process must be well resourced. Thereafter, if matters do not work out, only at that stage should the detailed question of children and the family assets be addressed. That will be in one sense necessary only if the key and first stage of the process is not successful.
In my judgment, adequate time must be found. On reflection, and with the full concurrence of my right hon. Friend—for this purpose—the Member for Barkston Ash, we are convinced that our formulation is less simple and less relevant to the argument that we seek to address. Given those qualifications, and with total confidence that in Standing Committee my hon. Friend the Member for Brent, South will prevail and triumph in his views on reconciliation, I shall not be pressing the amendments that I have tabled and will give full support to the amendment tabled by the hon. Member for Gainsborough and Horncastle.
§ Mr. Alison
The hon. Member for Swansea, East (Mr. Anderson) only put one foot wrong in his admirable speech—in describing me as the right hon. Member for Barkston Ash. It does not matter, but for the sake of the record, I am now the right hon. Member for Selby.
It was extremely reassuring to hear the introduction of the, to me, strange phenomenon of Auntie Wu. It made me think that perhaps you, Dame Janet, are the incarnation of Auntie Wu—or the nearest we can get to such a person in these highly tendentious and pressured proceedings and the great difficulties facing us all in matters of conscience and 508 decision making. Somebody is in the Chair to whom we know that we can instinctively go and never a cross word will be uttered. Perhaps the same applies to the hon. Member for Rossendale and Darwen (Ms Anderson). I wish that we had more Auntie Wus knocking around this place. As a former parliamentary private secretary to Lady Thatcher, I know exactly what I am talking about in terms of the desirability of having such marvellous Aunt figures. I am much obliged to the hon. Gentleman for opening up a whole new dimension.
On the basis of that commendation of you, Dame Janet, I trust that I shall be able to talk about almost anything I wish for any length of time. I want to dot the i's and cross the t's of the admirable speech that my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) made—behind whom the hon. Member for Swansea, East and I now row in complete harmony—by pointing out once again to my hon. Friend the Minister the extent to which the Government already seem to have taken the essential point that we are trying to argue about the time parameters.
Here again, I refer to the mysterious document which has fallen into the hands of most Members of Parliament. It obviously has its provenance in the Lord Chancellor's office and gives guidance of an authoritative, well printed and vivid kind to Members of Parliament. I refer to the "Key Points" heading in the document and I quote from the third paragraph:The Bill will … allow a divorce to be granted only when couples have settled the arrangements for their children, and the division of property and finances. This can take up to two years".So the briefing says that the procedures can take up to two years, which is the very time frame referred to in the amendment.
At the bottom of the page, reference is made to first marriages. The briefing says:The Bill will retain the current bar on divorce in the first year of marriage. Couples will need to have been married for a minimum of two years before they can get divorced.Here again is the suggestion that a minimum of two years applies before married couples can get divorced. How easily and naturally the currency of the time frame for which the Government have argued slips into periods well beyond the 12 months to which they have referred as the basic period.
I now quote from the annexe to this splendid document which has been circulated to Members of Parliament. The paragraph is headed, "Period for Making Arrangements", and it states:Secondly the period people will have in which to decide their arrangements prior to divorce will be extended from 18 months to a maximum of 2 years, so that people may take a little longer, if they need it, to do this.A passage in parenthesis says:The 12 month period for reflection on whether the marriage can be saved and consideration of the arrangements for a life apart, which is also set out in the Bill, has always been a minimum period. It has always been thought that many people will in practice need longer than this in order to decide the arrangements and thereby be able to proceed to obtain a divorce order.
§ Ms Hilary Armstrong (North-West Durham)
We are wondering just what the document is. I understand that it is a Conservative central office document. As it is being 509 used somewhat fully in this debate, I wonder whether the right hon. Gentleman could ensure that it is put into the Library so that we can all see it.
§ Mr. Alison
I am sorry to tell the hon. Lady that this may be a case of going to Auntie Wu. There is no imprint on the document and I cannot tell the Committee where it comes from. All I can say is that it has the clarity, articulateness and elegance of prose which suggests that it has its provenance in lofty official circles.
I can say without hesitation that the natural currency of references to time frames in the briefing document, which sets out broadly to make the case for the Government, keeps slipping into a suggestion that the 12-month rule is the minimum and that in many practical ways 18 months is more natural for most people. It suggests that the two-year rule will apply to first marriages and that the so-called minimum period is more for guidance and suggestion than anything else.
I hope that, on the basis of the prior indications of flexibility, my hon. Friend the Minister will see the merits of crystallising substantively the inclination which seems to be lurking in the Government's subconscious—or perhaps conscious—predisposition. The Minister would solve many people's problems tonight by accepting at least one—perhaps the longer—of the two amendments, amendment No. 7, which contains the time frame references to which my hon. Friends have so admirably referred.
§ Mr. Spearing
The hon. Member for Chislehurst (Mr. Sims) commended the amendment, as did his hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh), because it focused on the importance of marriage rather on the breaking of marriage as, alas, the Bill has to do. In that respect, the amendment has something in common with amendment No. 1, which we discussed before the Division. I sensed that those who were in favour of amendment No. 1 wanted to ensure that the concept of fault emphasised the importance of marriage itself.
I thought that there were distinct disadvantages in that amendment and I did not vote for it. I do not, however, see many disadvantages—indeed, I do not see any—in amendments Nos. 3, 7, 8, 17 and 18. Surely one of our problems in this debate is that, understandably, we are talking about the law on the breaking of marriage and not about the law on making and sustaining marriage. Many people have referred to that understandable imbalance in our debate. This is a debate in which party makes no difference. Can Members of Parliament entirely estrange the two concepts? I would have thought not.
That point was exemplified by the speech by the right hon. Member for Mitcham and Morden (Dame A. Rumbold) who, in a realistic way, summarised the attitudes to marriage of various generations. It is the generation who are just coming up to the married state or who have married recently for whom the House has a prime responsibility. They will be the beneficiaries or otherwise of any legislation that may result.
Surely we, in looking at the matter, must consider what we are breaking. What is the general concept behind marriage anyway? Unless we are clear about that, how can we be clear about the morality and the law on the breaking of marriage? The two points must go together.
510 In an intervention during the speech by the right hon. Member for Mitcham and Morden, I made a point about the great gap in much of the discussion that has gone on, not only in the other place, but in the media. As I understand it, there are three partners in marriage and, therefore, three parties to its dissolution. I refer to the two people concerned and to what Conservative Members often call the state, which I prefer to refer to as society or the community as a whole. The House of Commons is the centre of law-making for that community.
I suggested in my intervention that the marriage ceremony was not just a commitment of two people to each other but, those two having made their commitment in front of their friends, relatives and representatives of the community—either the registrar or the registered person who is able to preside over marriages—a commitment made by those two people to the community. It is, therefore, a triangular arrangement and not just one between two people.
I now turn to the other important speech this evening, which was made by my hon. Friend the Member for Hammersmith (Mr. Soley), whose sensitivity and courage I commend. He made many important points, based on his professional experience.
I shall use my hon. Friend's speech as an example. As I pointed out when I intervened in it, he made one illogical assumption—that the registration of the birth of a child is at the time a moral and legal undertaking to bring that child up in the nurture of society, and to cherish that child as a new human being. I said to my hon. Friend that surely that was part of the purpose of marriage.
Therefore, at the point of marriage it is not only the two people concerned who commit themselves to the process—if that occurs, which is largely a matter of chance, good luck, or whatever: there is also a contract with the society of which that family, that married couple and any future child are part, to sustain the new life and, by virtue of that, to sustain the family as such. We seem to have forgotten about that.
I put it to my hon. Friend that, at least in connection with that aspect of his speech, he would concede that some people do not see marriage as he outlined it, as an optional extra—I do not think that that description is unfair. It is true, however, that that is the view taken by some of the younger people that the right hon. Member for Mitcham and Morden mentioned earlier.
I suggest that that is not what marriage is, because it is the sort of contract, upheld in good will and love, which keeps our society together in a special way. I do not mean to say that that did not happen thousands of years ago, but in modern society it is even more important than ever.
§ Mr. Soley
The point that I made about registration was that, sadly, it is a fairly cold and mechanical action. When we register the birth of a child we are fulfilling a legal obligation to the child. The ceremony is not especially attractive; perhaps it should be. As for the marriage factor, marriage is a confused concept to some people. For some it is an immensely important ceremony; for others, it is 511 just an excuse for a party. My point was that simply by getting married one does not undertake to have children. That is something that may or may not happen.
§ Mr. Spearing
Indeed—I have conceded that. But the registration of a birth was never meant to be a ceremony as such. Like its opposite, the registration of a death, it is a legal undertaking.
I know that my hon. Friend the Member for North-West Durham (Ms Armstrong) wishes to speak, and perhaps to enlarge on a similar theme, so I shall finish with one more short point. The ceremony of marriage is not simply an opportunity for a party; it is far more important than that. I put it to the Committee, especially to Conservative Members who have been enthusiastic both about the amendment under discussion and amendment No. 1, that it is the responsibility of the community, and therefore of the House and of any Government, to sustain the institution of marriage. Yet that has not happened.
Let us consider the places in which people can now get married. Marriage is now part of a marketplace, and is not upheld with the due degree of importance that it once had. People can get married in all sorts of places, and I wonder how many hon. Members thought of that aspect of those changes, although it may not have been possible to oppose them.
We should think of the need to maintain housing, health, education for children and sustained employment for the breadwinner—and also, perhaps wrongly, the need for more women to go to work to maintain the family income, and the stress that comes from that. All those factors are important in sustaining the marriage and the family. In society, in making laws, and in considering the structure of our taxes, Conservative Members, like the rest of us, have a duty to sustain marriage as it should be and as we wish it to be.
There is so much stress today. Much of the difficulty in marriage is surely caused by society's inability to sustain properly what each of us would like to see, what other people would like to choose, and what others, unhappily, regret that they have had to terminate.
We should support the amendments, because they emphasise the fact that, although the breaking of marriage is important, we should pay much more attention both in the House and in society to the way in which marriages are made, and to the challenge that growing young people face when they advance into that happy state.
§ Mr. Peter Bottomley
Although marriage is a public commitment, most of us who get married do not expect to expose our marriages to more than private reflection. I can tell the Committee that when I got married I knew that it would end in divorce, desertion, dissolution or death—and on the whole I prefer the idea of death, so long as it is natural.
Marriage is something that people tend to catch; if it works, it is a matter of chance as much as of choice. I would not be surprised if I came home one night from the House of Commons to discover a note saying, "You've been a rotten person for the past 25 or 30 years and I'm off." I hope that that will not happen, but one always lives in some kind of expectation of discovering 512 that one has not been quite so good a marriage partner as one ought to have been—or at least, that things may look like that from the other person's point of view.
§ Mr. Bottomley
What I am really trying to say is—to put it another way—I have many friends who have lived in a state of non-marriage for decades, and I do not feel any the worse about them for that. I also have friends, and some members of my family, who have been divorced. That has never been a happy experience. It is clear that many who set out to get married find that it is a good choice, whether it is what they really intended in the first place or not. One cannot really extrapolate either from their experience or from one's own to decide what others should do.
In general in politics it is better to say, "I must, you should, they may," rather than the other way round. However, we in the House and the Committee have the responsibility of making the law—and marriage, whether the ceremony is civil or religious, is a legal contract. We must face the consequences of experience and learn from them.
That is why I think that my hon. Friend the Member for Chislehurst (Mr. Sims) has done the Committee and the country a service in reminding us of a proposal that he put forward some years ago that was not then accepted either by Government or by the House. I do not know whether his proposed amendment will be accepted tonight, but it would not be a disaster for anyone if it were.
The Committee must remember that the real consequence of divorce is to allow people lawfully to remarry. A divorce is not necessary for separation, desertion or cohabitation with somebody else; it is necessary only for someone lawfully to remarry.
Table 1.10, on page 42 of the 1996 edition of "Social Trends", shows us that the state of being divorced and not remarried is a fairly unpopular one. There is no age group in which the proportion of people who are divorced is higher than 6 per cent., and in all age groups, 62 per cent. of people are married—although that does not necessarily mean that they are living together. In addition, 6 per cent. are cohabiting, 24 per cent. are single, 4 per cent. are widowed—obviously that is more likely in the older age groups—3 per cent., on average, are divorced, and 1 per cent. are separated.
The state of being divorced is therefore transitional. The decision that we must make is how long people have to wait before they can remarry. To maintain the bar on an application for divorce during the first 12 months of marriage is essential, and I shall probably vote not to change the situation, although my hon. Friend the Member for Chislehurst made a cogent case.
The alternative or additional way of setting about the issues is that suggested by my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh). Again, the Committee owes him many thanks for the thoughtfulness with which he has prepared his amendments and advanced his arguments. The same goes for the hon. Member for Swansea, East (Mr. Anderson) and my right hon. Friend the Member for Selby (Mr. Alison). I am not sure that their arguments were fully convincing. I regret that there 513 are not many more hon. Members here to listen to the debate. When there is a free vote, we have an opportunity to consider arguments that we may not have thought of before the debate. Although some of the issues have been rehearsed over the past year, it is of benefit to listen to other hon. Members and their quotations from people who have written to them and to hear of their professional experiences as lawyers or Members of Parliament.
One problem involves helping people to know when to get married and how to build marriages. There should be many more discouragements to people getting married when they are pregnant. It is generally better to make that decision after a child is born or before conception. I suspect that that could be done by encouraging churches to have representations of a pregnant Mary with a sign saying, "Society didn't think much of me at the time." It would be helpful if we could make people more open about such situations.
Most ministers of religion are able and willing, either themselves or with someone from their Church or faith, to give advice on when marriage may not be sensible. Some people get married only because society expects it for some reason rather than because of a willingness to make a commitment to becoming a lifelong couple—a union that lasts for life. People should not feel a social obligation to get married.
If we go back to what appears to be old-time moral teaching—which is very up to date for many people—that warns people not to be sexually active unless they are married and that the only way to marry is with the intention of being married for life, we ask people to marry younger than is sensible, given the nature of modern society. This is not the time to unpack those issues, but they should be considered deeply by those who give advice to people.
We must remember that celibacy is not inherited. When the rate of divorce is half the rate of marriage, we could do much to reduce avoidable disadvantage, distress and handicap, and to promote well-being through a mixture of wealth and welfare, by halving the divorce rate over the next five or 10 years. I suspect that were we to make no change in the law, the divorce rate would fall significantly. That is partly because it is linked to the marriage rate. It is a mathematical fact that if there were no more marriages—legal contracts to be together for life—after about 70 years there would be no more divorces. Divorce follows marriage; it cannot precede it or be independent of it.
People can learn from the experience of others. We have to ask what are the ways of making that more likely. Because I was in a Select Committee earlier, I was unable to be here for the first debate, so I hope that I will not repeat what others have said by referring to the work of the BT Forum in its "Communication Matters" papers on the Bill. Its briefings, which do not say what the law should be, give background information. The titles include "The Importance of Information", "Communicating with Children during Divorce", and "Strengthening Communication in Stepfamilies".
They point out that, when communication fails, divorce becomes even more stressful. It can affect people's health and work. Conflict can increase, which can have serious consequences for the couple and for children, 514 grandparents and other family members. Parents can lose touch with each other. Marriage may not be for life, but being a parent certainly is. If parents lose touch with each other and children lose touch with one parent—often the father—that is a loss. Second marriages can be threatened, with the risk of further relationship breakdown.
If communication is positive, conflict can be minimised, parents and children can cope with difficult transitions and children can have the love and security of two parents, even if they live apart. Family networks are not destroyed and new families have a better chance of survival. In considering the law, we should be aware that it is not only the only thing that matters. Much emphasis has been given to mediation, conciliation and the opportunity for people to think and learn from the experience of others.
We have been told about the number of people who regretted applying for a divorce. Those figures may not reflect what people think at all times; people will feel like that some of the time, but not necessarily all the time. We need to learn from the experience of others. In Canada, where there is a minimum period of one year between applying for a divorce and obtaining one, about one application in five is withdrawn. If people choose to withdraw an application because they think that they would be beater off without a divorce, that is clearly a gain. I doubt whether with two years 40 per cent. of people would so choose, although there may be some extra benefit—I do not know.
It is reported from New Zealand—I have not seen the original research study—that if the problems of a first marriage can be tidied up before a second marriage starts, the failure rate of second marriages is reduced significantly. That is also a gain. Promoting better communication within married couples is important, whether or not they go on being married. Being more open about communication, and helping people to learn from experience, is important.
The divorce experience needs to be shared with people who are considering divorce. They should not have to wait to discover it for themselves. Marriage experience should be shared before people get married so that they do not go in with the Pollyanna-ish view that marriage will solve all their problems and permit an easy progression through life.
Relationship experiences matter. The hon. Member for Hammersmith (Mr. Soley) told us of his work in the probation service. I think that he would agree that the problems of many people who are born to fail or, to put it a better way, who do not experience success in many parts of their lives, come down to relationships in the household or households in which they grew up. We cannot change that for everybody, but we can try to make more such information available.
Next month's copy of the Reader's Digest has information about what every adult should learn about basic lifesaving techniques and asks:Could you save your child from drowning?I am looking forward to reading articles about what every young adult should know about marriage-building habits. They are not guaranteed to work, but they would include the sort of things that matter—such as doing things together and talking to each other.
When marriage becomes difficult, and people find themselves in crisis, it is important that they should know where to go for help and have people who can explain the divorce process if that is what they seek. 515 The consequences of divorce should be outlined to them. They may regard some of those consequences as beneficial, but they will regard many as harmful to their happiness. Many couples cannot easily afford living together, and living apart is even more expensive. Re-formed families often add to the expense. Such information is important.
Another important point that must be emphasised—this applies whether or not the amendments are accepted—involves children's need for communication. Can children in divorce communicate with a trusted adult? We cannot lay that down by law, but it matters a great deal. Children need to be kept informed and to have their say. They need to stay in communication with the whole family. They may need access to counselling. They need to be able to communicate, whatever their age. Even adults are not unaffected by their parents' divorce. It can be a difficult time in which certainties and familiar relationships may change. Their parents may form new households, to which it may be difficult to adjust.
In general, people face problems by asking Parliament to change the law. That does not necessarily make much difference. We could make adultery a crime, as it has been in some states in the United States, but it would not stop it happening. The law can be used for dispute resolution. In effect, we are discussing dispute resolution today—how we can reduce the number of people who need to go right through a divorce, how to reduce the pain and ineffectiveness of divorce, and in what conditions and time scale divorce can be achieved.
We should set out with some social policy targets, certainly in the short term, to make the process of divorce less damaging and, in some ways, more effective. It is important to ensure that the ancillary issues of children, property, assets and pension rights are settled. However, the main aim must be to try to reduce the number of people in marriages which break up at any time other than death. That requires a change in the way in which people approach marriage and in society's expectations. Perhaps most of all, it requires people trying to provide effective help for those in marriage by example, to some extent by exhortation, but most of all by understanding the constellation of factors that people find so difficult.
However we dispose of the amendments, in 10 years' time I hope that the divorce rate will have been reduced by at least a third, if not halved, and that more people will find themselves able to commit themselves to matrimony not just in the hope but in the expectation that the marriage will last.
§ Ms Armstrong
I am speaking in this debate largely because of my involvement, both professional and voluntary, in working with children. In that sense, I disagree with one of the things that the hon. Member for Eltham (Mr. Bottomley) said. I do not see children as an ancillary issue in a divorce. Children and dealing with their problems are the prime concerns of our legislation—both in how we draft it and in how we see it. On that basis, I do not agree with the amendment.
I am sorry that my hon. Friend the Member for Swansea, East (Mr. Anderson) is not present, because we come from similar backgrounds. He described himself as a practitioner in the area, and by that he meant that he was a lawyer. I like to talk about myself as a practitioner 516 who wants to ensure that matters never get to the lawyers. I want us to make less work for lawyers, by trying to ensure that we give families the right support and framework so that they can begin to resolve problems without getting that far. That is way beyond being optimistic, but none the less it ought to inform the way in which we approach legislation.
I am also sorry that my hon. Friend the Member for Swansea, East is not here because I. too, was interested in the prospect of Auntie Wu. The Auntie Wus are the people who work with families and children and who know them. So they are the people they go to first and foremost. They are the very people who are strongly urging us not to extend the period. From their experience of working with families, they know that, although a year seems like no time to us and we keep saying, "Goodness me, aren't the months going by quickly?", 12 months in a child's life is a very long time.
We should be debating, not the time space, but what happens and what we are prepared to do to enable a family to face what is happening within it and the effect that it is having on the children.
Measures that ought to be in the Bill are not. I hope that we shall consider such measures in Committee, to ensure that the effect on children of the procedures and of the breakdown in the relationship will be faced and that there will be no option other than to face that because of the way in which the process works.
For many years, I have been involved with what is now NCH Action for Children—in the old days, it was the National Children's Home.
§ Ms Armstrong
Whatever the name, it is the work that the organisation does that I am concerned about. It is a Methodist charity, and I have been involved with it since I was young.
I also trained as a family case worker and was involved as a volunteer in setting up one of the early women's refuges, so I have some experience in working with families facing the worst and most difficult of problems. Without doubt, all the people involved went into marriage thinking that it would be wonderful and that it would solve all their problems. The majority went into marriage without any preparation and also had no preparation for becoming parents.
I grew up in a household that included my grandparents, with other members of the family close by. The family was always much more than merely my brother and me and our mother and father. Far fewer people have that sort of experience now than when I was growing up, because of the difference in social structure and the way in which families live. In such a structure, one learned about parenting because one was part of a larger family and a larger experience.
In recent years, through NCH Action for Children and the Methodist division of education, which has the children's section within it at the moment, we have been constructing and doing much work on parenting courses. They are for ordinary, everyday parents, not necessarily for parents who are in crisis. Indeed, the courses are really not suitable for those in crisis. They recognise that the problems that families confront these days are different and seem much more complex than in previous years. 517 The experience of working together over a period and thinking about one's problems with children and so forth has been instructive. Courses in schools have grown out of that experience. A school in Durham county is part of a pilot scheme for running parenting courses for adolescents.
I want the Government to think through how they can help people to confront what it means to enter a marriage relationship and to take on children in our society. The Bill cannot do all that, but if in passing it we miss the opportunity to face up to those things, we shall be making some serious mistakes. We must recognise that the world and our society have changed and that the demands on young couples these days are very different and more complex than they were even 25 years ago.
Divorce affects children strongly. The breakdown in the relationship of their parents also affects children. So, whether it is divorce or other forms of breakdown, the effect on children can be enormously damaging. NCH is one of the charities that is concerned with the problem. The hon. Member for Chislehurst (Mr. Sims) has enormous experience in working with the National Society for the Prevention of Cruelty to Children, and I have met and worked with him on the issue on a number of occasions.
The children's charities do not simply say, "It's all right, we'll look after your problems." They confront families with what they are doing when they allow relationships to break down. They try to work on that and help families face their problems. They try to find ways in which children can be supported, so that they feel that their integrity can remain no matter what their parents do. They try to allow children to face these terrible issues with some feeling of self-regard and strength.
However, if children's charities are to do that, they need the backing of a framework of legislation that says that when the law is brought in, the needs of the children will be paramount. We say that in the Children Act 1989, and we ought to say it in this legislation. The views of children—the voice of children—should be heard throughout the proceedings. The judge who is taking decisions should ask the sorts of questions that we believe should be asked so that that challenge is met. I hope that the Standing Committee will look at some of those issues.
The NCH began, and has continued, the mediation service in this country. It has been an important way of enabling families who are facing separation and divorce to do so with as little bitterness and recrimination as possible. The worst thing for children is that they are caught in the middle and used as one of the appendages, as one of the accessories, of a divorce—they are bargained over and put one against the other. We cannot frame legislation which allows that or which at least does not diminish it as much as possible.
It is our responsibility to diminish the manner in which children can be used in that way. We should frame the legislation so that we enable couples—whatever their anger with each other—to be helped to think about the future of the children.
§ Lady Olga Maitland
The hon. Lady is talking about an important point. From her experience with mediation 518 services, could she describe how much effort goes into reconciliation—in other words, the process before the couple try to sort out the end of a marriage?
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§ Ms Armstrong
It is a separate issue. The children's charities are involved in trying to support families, which they do in family centres and so on. Family centres work towards reconciliation. Mediation is a different thing. Mediators say, "You may have decided to separate or to divorce, but when you do so, the needs of the children must come to the forefront. The more you are bitter and the more recrimination there is, the less opportunity there will be for the child to grow up feeling respect for both parents. When children are not able to feel respect for parents, it has a damaging effect on them and on their ability to grow up and to mature."
I did a quick survey of mediation services last year when the White Paper was published, and I shall give hon. Members a few examples of what was said in response to a question about how they would face the increased levels of mediation that were envisaged in the Lord Chancellor's initial proposals. Hampshire Family Mediation said:We are unable to continue our level of provision unless we receive some additional funding.Lancashire Family Mediation Service said:We are not equipped at the present time to cope with an increase in work which would inevitably occur if the changes are put into effect.Calderdale FMS and Bradford and Keighley FMS said:We are dedicated, hard working people trying very hard to maintain professional standards on a wing and a prayer and very little support.Cleveland FMS said:Mediation within services is still in a fragile and vulnerable state due to unstable revenue funding.Leeds Family Mediation Service said:Help—the next three years are crucial to the survival of family mediation and the development of all issues. Mediation—without the support over this short term period it is difficult to see how our service can build on the expertise of 11 years and move into the public sector offering a professional well trained service.Worcestershire Family Mediation said:If we are to continue to offer an efficient service and to cope with the extra cases envisaged it is imperative that we get central government funding. Without this funding we would eventually be unable to continue to operate.The London service is called Eye to Eye Mediation—it is an NCH project. It said:Mediation historically has been provided as the result of the good will of mediators who have worked in the main unpaid for many years. The professional qualifications/standards expected of mediators are extremely high and it is hard to see how a full service can be provided to the public until such time as services are properly funded and mediators realistically remunerated.Throughout the country, mediation services have built up enormous good will. Most of the mediators are voluntary; they give of their free time and receive only expenses. Mediation is a very important part of the procedure in the Bill, and it will need the type of support that my hon. Friend the Member for Hammersmith (Mr. Soley) spoke about.
§ Dame Jill Knight
Many of us are upset that in the Bill all the pressure seems to be for mediation—which was borne out by what the hon. Lady has just said—not 519 conciliation. Conciliation is not mediation. The point that I am sure is at the back of the hon. Lady's mind is that she is more in favour of doing a reconciliation job than of divvying up the ante, or the possessions and children of a marriage.
§ Ms Armstrong
I want to draw to a close. I was going to say in closing that I strongly believe that the points that my hon. Friend the Member for Hammersmith made about our need to get to grips with family policy are central.
I know many families who are breaking apart because they cannot accept what is happening to them and around them. Income families in my constituency, the men have worked with pride in their industry for many years using their skills, and are now left at 45 or 50 without any prospect of work. That has an effect on the family. I also meet families who are confronted with homelessness.
A family came to my most recent surgery. The grandfather had just lost the earnings supplement. He had been injured in the mining industry, which meant that he was living with his daughter and her husband and their young children. That family had suddenly lost £30 a week income, and they spoke to me seriously about the effect that that was having on how they looked after their children. That is not an excuse for breaking up, but we need to take account of the pressures that we are bringing to bear on families before we moralise and lecture them on how to meet the challenge of those problems.
We must have a policy of enabling and helping people into marriage and parenthood, which we do not have at the moment. During the passage of the Education Reform Act 1988, I argued that education for marriage and parenthood should be included in the national curriculum, but that was pooh-poohed by the Government.
We should do many things in recognition of the enormous difficulties that confront families these days. We should acknowledge our responsibility, not only to moralise about how things ultimately turn out, but to give people the right type of support and back them up at every stage—before marriage, after children are born, when the relationship is good and when there are signs of strain.
We must ensure that we frame the legislation so that, if a marriage has irreconcilably broken down, the needs of the children are paramount. The needs of the children are that we have decent mediation and do not prolong it, and that we use whatever time there is effectively to challenge those involved, so that they understand what they are doing, take hold of that and work with it in the most effective way. I argue strongly that the means that we use during a period of breakdown—not the time limit—are crucial. The period that we are considering represents a huge part of a child's life. I believe that it would be irresponsible to extend that period without paying much more attention to what is occurring during that time.
I shall not support the amendment, as I am not convinced that the Committee has focused on how to avoid marriage breakdown or how to ensure that the children are cared for properly in the event of breakdown. That is my major concern: we cannot condemn further generations of children to the agony and the distress that the many children of broken marriages have faced in recent years. We owe it to them to get the legislation right.
§ Mrs. Teresa Gorman (Billericay)
I speak in opposition to the amendments and in support of the Lord Chancellor who is responsible for the legislation. Much of my support for the legislation is based upon my respect for the Lord Chancellor, who has come in for an appalling amount of unwarranted invective regarding the drafting of the legislation.
I have some sympathy with the argument advanced by my hon. Friend the Member for Chislehurst (Mr. Sims), who said that couples should not be able to divorce immediately after marriage. I decided to check the figures and see how many quickie divorces result from marriages of convenience. In fact, the number of divorces that occur in the first year of marriage is minute—I cannot remember the figure precisely, but it is only 1 or 2 per cent. I do not think that it is an important consideration.
My hon. Friend implied also that the pressures of having children may lead couples to divorce early in their marriage. I find it difficult to accept that argument, because I imagine that these days most people get married because they want to have children—after all, there is no stigma attached to "living in sin", as it used to be called. Most people get married in order to provide a sound family base for the children whom they are hoping to produce.
§ Mr. Sims
I do not disagree with my hon. Friend's comments. My point is that, during the first year of marriage, when couples are living together for the first time, their lives may be complicated by the arrival of a child. They may face a difficult period, and they must not believe that their problems will be easily solved by a divorce at the end of 12 months.
I accept that there are relatively few divorces after 12 months. However, I am concerned about the impression that the House is giving—the message that we are sending out—by saying that people can divorce after 12 months. I do not dispute the general thrust of my hon. Friend's argument.
§ Mrs. Gorman
I thank my hon. Friend for those useful comments. I put it to the House that there is more to marriage than either religion or the civil contract: there is also a biological bond. Hon. Members may be aware that I am, by profession, a biologist. Throughout the animal kingdom there is a tendency for males and females to get together to produce offspring and to remain together in the early stages while rearing their young. We have not created an artificial situation: it is natural for people who marry and produce children to wish to stay together—and most of them do.
Despite claims to the contrary, three quarters of all marriages last. In the past, couples remained together perhaps because they could not afford to divorce. We have a higher rate of divorce today, not simply because divorces are easier to obtain—although I do not deny that argument—but because previous generations of couples remained together in a very unhappy state. There are no statistics for the number of people who end up happily in second marriages. Perhaps both partners are better off for having got out of their first marriage and into a happy new union. We are fortunate that, these days, women in particular do not have to spend their whole lives unfulfilled and in misery. Divorce is not entirely negative. There is something to be said for the opportunity not to tolerate an unhappy relationship for a lifetime.
521 9.15 pm
I have some sympathy with the argument that a civil marriage contract should be for a minimum period, so that one knows that one is entering into marriage for two years, or whatever. However, the main concern is the time allowed to end a marriage once a couple have decided that things are not working out. Couples often enter a period of separation, often for many years—they do not automatically run off to the divorce court. The important point is that the state should not artificially and unnecessarily prolong their agony.
The divorce process will expand to fill the time available. If 18 months or two years is allowed, the process will take 18 months or two years—but if one year is allowed, a couple will resolve to sort matters out within that time, with all the advantages that that offers in respect of children of the marriage.
Attitudes to marriage vary considerably, depending on whether couples have a religious or secular attitude. People who adhere to a particular Church will stick to its rules and have a stronger impetus to make their marriage a success, because the Church gives a high priority to marriage—although these days, it seems that a lot of clerics have difficulty keeping their marriages together. If the Church is to be so forceful, it would do better leading more by example than it sometimes does.
The state has a role in dealing with the outcome of marriages that break down. There is something to be said for making civil marriage arrangements as clear as any other contract. The Government frequently change the rules, as they did with the allocation of matrimonial assets. There was a time when women could take hardly anything from a marriage, but today they can take more or less half the value of the matrimonial home. That is an example of the state intervening in the ending of a marriage.
There is a strong case for including in the marriage contract an explanation of the obligations to which couples are signing up, such as the distribution of property and joint responsibility for children if the marriage ends. The Government have already intervened in the form of the Children Act 1989 and the Child Support Agency, saying that a couple must accept equal responsibility for their children. The Government also intervened by introducing legal aid, to help meet part of the cost of divorce proceedings.
The state has not got it quite right in making it clear what it is that couples are signing up to in marriage. Although that aspect is not particularly relevant to clause 7, such an explanation might help to reduce slightly the divorce rate. I have no difficulty with the argument that couples can sort out their problems in one year.
Although I sympathise with many of the points that have been made, I believe that, given the time that the Lord Chancellor spent in reflection before presenting the Bill—he has enormous experience and I am a great one for leaning on the experience of people who are much better qualified in a subject than I am—the Committee would be unwise to reject his proposals and his advice, even though many of us would like to see marriages that were made in heaven and that never ended up in hell, as many do.
§ Lady Olga Maitland
I rise to add my support for amendments Nos. 7 and 8, tabled by my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh). I pay tribute to his work. He has put an enormous investment of effort into studying the institution of marriage, and he has played a major part in focusing our minds and those of the country as a whole on what is at stake.
I believe that amendments Nos. 7 and 8 reflect deep public concern, which has revealed itself in the enormous mail bag of letters and in the telephone calls that I have received. Only today, I have received a fair wodge of them. I shall not delay the House too long by itemising them all, but I shall give two examples of the depth of feeling in people outside in the country. The people think that we are trying to destroy marriage.
I received a letter from a constituent that states:I am concerned about the Bill going through Parliament regarding divorce. We need to encourage couples and families to stay together. If divorce is going ahead, couples should have an adequate waiting period, giving a time for reconciliation.That letter is obviously from someone who is not very literate and who has found it difficult to write, but who wrote it none the less.
Another letter from a constituent states:I am worried that the reduced waiting period will encourage more couples to seek divorce when things begin to go wrong rather than to persevere and work at it.We must realise that we have reached a crunch point. It is almost as if long-lived marriages have gone out of fashion. I am proud to say that I have been married for 27 years. Some people would say that I would take that view, but all marriages have to be worked at. Mine had to be worked at. I am the product of very happy parents who will have soon been married for 60 years. Successful marriages are a role model for successful marriages in their children and grandchildren.
It is also significant that children themselves draw together in friendships with other children who come from stable families, by and large. I have seen that in my own children's experience of growing up. Therefore, the lucky ones have had stability, but stability is not provided by chance. That point seems extraordinary, but stability is not just a stroke of good luck. It was provided because parents in each generation had recognised that they had come together in the sight of the community and made a public vow to each other, for the creation and rearing of children.
The children, above all, are the lifelong commitment. One of the implications of the enormous debate that has been raging is almost that the children are expendable. I find it so frustrating to hear inside and outside the Chamber about couples who try to excuse themselves by claiming that the children understand, that they are being very adult and that they are coping. The truth is that they do not cope. They cry. They sob silently. In many different ways, they express themselves heartrendingly.
There have been many studies of the effect of divorce on children. Exeter university produced one that showed conclusively that children do much better if their parents, even if they are in conflict, remain together.
§ Ms Corston
I am following carefully what the hon. Lady says about stable marriages being good role models and how important it is for couples to stay together where 523 possible. What advice would the hon. Lady give to a woman who was a repeated victim of gross domestic violence?
§ Lady Olga Maitland
One of the most important points that I made in my introductory remarks was that I supported the amendments of my hon. Friend the Member for Gainsborough and Horncastle. If the hon. Lady studies the amendments, she will find that it is clear that there is provision for women who have been the victims of domestic violence. A far greater number of marriages come to an end, however, when couples are downright selfish. They do not like this, and they do not like the other.
I had a conversation yesterday with a man in his 30s who had married a lady because he thought he should. As soon as he married, he formed another relationship because he thought that better and more to his liking. That relationship involved a woman with children.
That example told me that we are living in such a selfish society that couples can have a row, fancy something better and say, "Right, I have had enough." As the law is proposed, a couple could have a blazing row on Christmas day and the following year be out of the relationship, with the children thrown to the elements.
§ Mr. Jonathan Evans
My hon. Friend was not in the Chamber when I intervened earlier. It has been made clear for the purpose of debate that, if there is a row between a newly married couple, the earliest that a divorce can be granted is after a period of two years.
§ Lady Olga Maitland
We are talking about established families with children. That is crucial. Such marriages have obviously lasted longer than a couple of years. Children become nervous and terrified. As they are surrounded by a world of divorce, they think that divorce can happen to them, as it were, even when they are growing up in a stable family. They have nightmares. They believe that, if their parents have a tiff, that will be the end. They have seen it happen to others.
§ Dame Jill Knight
The debate was sparked off by real emotion. I was a child of a divorced couple. All this business about how good it is for children to get it over quickly is dead wrong. It has upset me to hear the contributions of hon. Members on both sides of the Chamber. I would have given anything in the wide world to have kept my parents together.
The longer the period in which to consider whether or not to separate would have led me to think that there was more and more chance, and that just maybe divorce would not happen in the end. It is wrong to say that it is helpful to the child to have a quick divorce.
§ Lady Olga Maitland
My hon. Friend has spoken so rightly, so much from the heart and so correctly. We must bear in mind that children do not sanction divorce. They are not the ones who call for hasty divorce. I have not seen them marching in Hyde park. I have not been aware of them pressurising the various children's charities to make divorce easier.
I have heard and read so much about how children pray for their parents to be reconciled. Even if their parents are not entirely happy together, children would rather live in 524 a family that is one stable unit. Once children are cast out into the world and into other relationships, they are never No.1 to the original parents. They do not do so well at school. They suffer later in terms of their future relationships. Some even turn to crime. Some can turn to drugs. Some can experience such restlessness that they never settle down.
We must remember that the crunch and crux of the matter is: what will happen to the children? Therefore, the essence is: are we talking about mediation or reconciliation? We must put more effort and more thought into reconciliation, and ensure that that period in the separation is given due regard, attention and investment.
It is astonishing that a pitiful amount of money is being set aside for reconciliation, when surely that is what will be better not only for the children, but for the country. Funding of £3 million is too little, and almost too late. We should consider the cost to the country, which has been put at £5 billion: the consequence of supporting families when they split up.
Time is moving on, and I know that we want to wind up this important debate, but may I say that we should be listening to the people outside and having regard to the fact that 100 peers on both sides of the House of Lords voted in favour of extending the year to 18 months, where both partners do not consent or where children are involved. If I had my choice, it would be two years.
We should listen to the mood of the country. We have an enormous moral responsibility. We owe it to future generations to enable them to grow up in a stable family where their rights—rather than the selfishness of the world today, which I bitterly deplore—are considered.
I hope that the amendments will go through overwhelmingly, and that my hon. Friend the Under-Secretary of State will carefully bear in mind not only my arguments, but the words of the Churches. Cardinal Hume on reflection conceded that we must ensure that we support families. We have had support from the Anglican Church and the Jewish faith. We can go no further than to say, "Hark to those children." They deserve a better deal than we are giving them.
§ Mr. Boateng
Children have played an important part, as they should, in the debate. Both hon. Members for the amendment and those against it have referred to children and children's interests. Making an important point, my hon. Friend the Member for North-West Durham (Ms Armstrong) asked us to make children's interests paramount in our deliberations, which we must do, because, if the current divorce rate continues, one in four children in England and Wales will see their parents divorce before they are 16. That is the scale of the problem.
I hear what the Chancellor of the Duchy says about the expectations of the Bill, but we are entitled to say that we look to the passage of a Family Law Bill that will make a positive contribution to the reduction in the number of divorces. That is a legitimate object of social policy, which we are entitled to attach to our deliberations on the Bill. The question therefore is how we arrive at that position.
I—like, I am sure, many other hon. Members—have agonised over the question of reflection and consideration of what the proper length of time should be. I have asked 525 myself for what purpose we are intending that reflection and consideration should take place. The hon. Member for Birmingham, Edgbaston (Dame J. Knight) pressed home the point—and, in my respectful submission, with good cause—that there is a distinction between mediation and reconciliation. That distinction has been lost.
I am pleased to see the Under-Secretary of State indicating that that distinction is not lost on him, but it was lost on the Chancellor of the Duchy of Lancaster. As Opposition Members noted—along, no doubt, with many others, including the hon. Member for Gainsborough and Horncastle (Mr. Leigh)—the Chancellor said that the Bill provided for mechanisms to deal with both reconciliation and mediation, but that is not the case: the Bill makes no provision for reconciliation.
There is a signpost to reconciliation. The Bill mentions reconciliation once—and that is the result of an amendment in the other place. I look forward to the Under-Secretary's clarification of the Government's priorities, but if that is the priority that Ministers attach to reconciliation, it is not good enough. We want the Bill to explain what will happen in the period of 12, 18 or 24 months.
I support a 12-month period, and again my reason relates to children. Children are at the heart of our consideration of the Bill. I believe that extending the period is likely to damage children—that they will bear the brunt.
Whatever period we choose, however, the Bill in its present form is likely to focus chiefly on mediation, but on mediation whose primary objective will be the reaching of an agreement about finances and children. Experience shows that, if all the emotional effort is directed at that, no effort will be expended on reconciliation. Th filing of a statement that the marriage has broken down irretrievably is a psychological breaking point, and it is difficult to recover from that and get into the mind set that is conducive to reconciliation.
A number of studies have been carried out. A particularly helpful one was conducted by Professor Davis of Bristol university. He says:We should not delude ourselves about the impact upon the relationship of that first signed statement. It is not the equivalent of a despairing chat with a friend or parent"—there is no Auntie Wu here—it is a formal declaration; it is likely to be self-fulfilling.That is the problem. Once the declaration has been made, there is a real danger that it will prove self-fulfilling. It is a case of: "I believe that the marriage has broken down irretrievably; therefore it has." All of us who have practised law know that, under the old arrangements, solicitors had to sign a statement to the effect that they had considered reconciliation with the client. We have all signed such statements, and we all recall the nature of that consideration. I see a number of hon. Members nodding.
The arrangement was farcical. Unless a designated period is allowed for reconciliation, whether it is 12, 18 or 24 months, there will be no reconciliation unless there is a clear and unequivocal commitment to the provision of resources. Unless there is a requirement for a meeting with a marriage guidance councillor—nothing else will 526 do; I am talking not about an information officer, but about someone with professional skills and aptitude in exploring the possibility of reconciliation—and unless that meeting is properly funded, it will not happen. That is why, in the absence of any proposal in the amendments to focus time and resources on reconciliation, I am unable to support an extension to 18 or 24 months.
If the period is so extended, the parties will concentrate initially on money and the kids, but will be held together in a loveless, non-existent relationship. They will not be assisted in reconciling, and the marriage will simply continue as an empty shell. An empty shell of a marriage, continued for the sake of it, devalues the ideal of marriage at a time when we should be supporting and uplifting the notion of marriage.
§ Mr. Nicholas Winterton
The hon. Gentleman is advancing an extremely good case, and I agree with much of what he says. However, does he agree that reconciliation, which should feature far more positively in the Bill—I must point out to my hon. Friend the Parliamentary Secretary that it is glaringly absent from it—would be much more likely, and that there would be more time for it, if the time limit was increased to 18 months or two years? Having said that, and perhaps put the Opposition spokesman on the spot, I agree that the resources must be available to ensure meaningful reconciliation.
§ Mr. Boateng
My fear is that such evidence as there is on the nature of the counselling process and the dynamics of the break-up of marriage suggests thatTime alone is unlikely to save marriages; better information and more coordinated interventions mightThey are the words of Janet Walker, director of the Relate centre for family studies at the university of Newcastle upon Tyne. However, nothing in the Bill suggests that there is any intention whatsoever on the part of the Government to have co-ordinated intervention whose purpose is to save marriages.
§ Dame Elaine Kellett-Bowman
Does the hon. Gentleman think—this is something at which my hon. Friend the Member for Macclesfield (Mr. Winterton) half hinted—that, once the dust had settled and a couple had got the problems relating to the children and the financial arrangements out of the way, they could perhaps relax, and, with the extra year, might just manage to come together, having seen the difficulties that they set themselves in trying to make one budget do two families?
§ Mr. Boateng
I very much wish that the hon. Lady was right. It is my experience that so much dust will have been kicked up by then that the couple will be blinded by it, and, what is worse, the children will be affected by it. I fear that so much bitterness will have been engendered by then that any hope of reconciliation will be highly unlikely. Intervention—
§ Mr. Boateng
I cannot give way any more.
Intervention has to be at an earlier stage. That is why we tabled our amendments, although I greatly welcome those tabled by the hon. Member for Gainsborough and 527 Horncastle. Our amendments seek to provide for a dedicated space for reconciliation at the outset before the statement is made. It should be a requirement, not a wish, that such intervention take place at that stage.
We must have a response from the Minister. We look to him to assure us that the Government accept in principle the notion of early intervention, that they will make available the resources for that intervention and, if the right messages are to be sent, they accept the need to strengthen the support that has to be seen in the Bill for the institution of marriage.
§ Mr. Boateng
If not, the following. The Opposition supported the Bill on Second Reading on the basis that we support its main thrust. If the Bill is not amended along the lines possible so that we can arrive at a consensus across the House that the Bill aims to save marriages that can be saved and supports the institution of marriage, the Government cannot rely on our support on Third Reading. Let that be made absolutely clear. We are not in the business of presiding over something on our statute book that does nothing to save, support and preserve the institution of marriage.
§ Mr. Jonathan Evans
I should begin by thanking all hon. Members who have participated in the debate. Sadly, many parts of it have been thinly attended, but that in no sense gives the Committee a conception of the quality and intelligence of virtually all the speeches made—both by my right hon. and hon. Friends and by Opposition Members.
We are faced today with a very heavy burden. The decisions we take this evening will have implications for many thousands of people and their children in years to come. We must therefore—I am sure that I, too, shall receive applause from my hon. Friend the Member for Lancaster (Dame E. Kellett-Bowman) for saying this—get it right.
§ Mr. Evans
In developing the policy underlining the Bill, the Lord Chancellor gave scrupulous attention to the responses that he received during the consultation. I should make it very clear to my right hon. and hon. Friends and Opposition Members that there is a lack of empirical research on what the most suitable minimum period for reflection and consideration may be. We are faced with forming a judgment—a personal judgment. That is why it is quite right that there should be a free vote in exercising that judgment.
It is worth while reminding the House of the function of the minimum period for reflection and consideration. It has been said that, by introducing this period, we are in some way reducing from two or five years to one year the time in which parties can divorce. Those arguments have even been presented in Committee.
I am bound to say that I do not think that there are accurate comparisons between the minimum 12-month period for reflection and consideration and the current time requirements for separation in divorce cases where, 528 for instance, no fault is alleged. The system proposed in the Bill is wholly different, and the period for reflection and consideration is in fact an entirely new legal concept.
Under the current system, the two and five-year periods of separation require the act of living apart. It is determined by the parties themselves, and the divorce is applied for on the basis of the parties' evidence of how long they have lived apart. My right hon. and hon. Friends have rightly expressed the damage that is done to children—not by the mechanisms of law that are involved in divorce, but by the departure of one of the parents.
So much in this debate has been quoted about the Exeter study. I was very glad to have a rather private word with my right hon. Friend the Member for Mitcham and Morden (Dame A. Rumbold) about it. The study says that there is clear damage to children who are in a relationship where there is argument between the parents, but that there is more damage to children when one or other party leaves. The point I make to some of my hon. Friends is that that is not the same as talking about the mechanisms of the divorce legislation.
At the moment, during the separation period, parties simply have to wait out their legal time. It is a passive time, for which there are no clear objectives and there is no encouragement to consider the consequences of divorce or the possibility of reconciliation. That is the structure of the current law, and that is why, as I said on Second Reading, I believe so passionately that it is important to address the matter.
§ Lady Olga Maitland
Does my hon. Friend accept that, even as the law stands today, 30,000 couples who place their petition then withdraw it on reflection? If there is only one year in which to consider, reflect and mediate, there simply will not be time for proper reflection. We shall not, therefore, get the same number of people having second thoughts.
§ Mr. Evans
I point out to my hon. Friend—we shall discuss the dynamics of this in due course—that we are talking about a minimum period. The current median time for granting a divorce absolute, as I said to my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh), is just under seven months. Yet we know that, even within that period, between 25,000 and 30,000 petitions do not proceed to divorce. Is that not a further reason why the introduction of a minimum period of 12 months is a constructive step?
By contrast with the current position, under the Bill, once the divorce process is started, there will be a court-monitored period, with clear objectives. That period will not begin until a notice is served to the court, and that cannot take place until somebody has attended the information session.
Deciding future arrangements is vital. It focuses on the obligations of marriage and the special responsibilities that those who enter into it have to each other and to their children. The introduction of a fixed minimum period for reflection and consideration is therefore vital. There may have been occasions when my hon. Friends and I have not seen altogether eye to eye on every aspect of the Bill, but I hope that we are all agreed on the introduction of a fixed minimum period for reflection and consideration.
The length of the period is a question on which hon. Members have more difficulty agreeing. The views held on the length of the period are many, and, I am bound to 529 say, equally valid. The hon. Member for Brent, South (Mr. Boateng) reminded the Committee of the Catholic bishops' conference statement on 15 November last year. Indeed, I quoted it myself on Second Reading. I pointed out then that the bishops were of the view that differing judgments could be made about the predictable effects of such legislation, but that those judgments were made sincerely, honestly and legitimately. I am pleased to say that that has been the character of our debate this evening.
However, we are here to make law, so, however much we respect each other's views, we must settle on one of the propositions before us. The amendments fall into two main categories. There is the extension of the minimum period in the Bill, which currently stands at 12 months, where there are children aged under 16 and where one of the parties does not consent to divorce. For each of the amendments designed to lengthen the minimum period, we have a choice between extending it by six months or by 12 months. That would make the minimum period either 18 months or two years.
I shall discuss first whether the minimum period we decide on should be fixed, without the possibility of an extension if particular circumstances exist. I shall then go on to discuss differing lengths of the minimum period, depending on whether there is consent or whether there are children. The principal aim of a fixed minimum period is to establish, as far as we can, that the breakdown in the marriage is irretrievable. A fixed minimum period is also a clear, unambiguous and absolute statement about the importance of marriage and its obligations. It may be argued that introducing exceptions of any kind to the rule would weaken the way in which the period is regarded.
We should ensure that irretrievable breakdown can be clearly demonstrated by a simple test that avoids scope for pressure by one party against the other to give in and to decide arrangements that will not necessarily be in the best interests of the children—pressure that may abuse the system.
I suggest that we need to emphasise the importance of the full minimum period as the core test of whether a ground for dissolution exists. There is a strong argument against making any exceptions to the requirement that parties can apply for divorce only after some time spent reflecting and considering—and, indeed, only when they have been married for at least two years.
In that context, it might be said that there is some merit in having a definite period that is clear, unequivocal and without any exceptions. My hon. Friend the Member for Gainsborough and Horncastle said earlier that one of his colleagues who shared his views on such matters thought that there should be no exceptions.
Now I turn to the subject of providing for differing periods when the divorce is not consented to by both parties, or when there are children under the age of 16 in the family. Many, including several of my right hon. and hon. Friends, have asked why one party should be able to obtain a divorce in the same time, regardless of whether his or her spouse agrees to the divorce.
There is a strong view that, if one party to a marriage is hostile to divorce and believes that the marriage can be saved, every opportunity should be given to save the marriage. It is thought that time might help. Many might also think that it is different if neither party believes at 530 the outset that there is any hope left for the marriage, and that the length of the period for reflection and consideration should represent that view. Most seem to think the period should be shorter in such cases.
However, it could certainly be argued that, where neither party believes that a marriage can be saved, the people concerned will actually need more time to work on saving their marriage than they would if only one party held that view. Contrary to the thrust of the amendments, that could be said to point to the need for a longer rather than a shorter period where there is consent. But there does not appear to be much support for that view in the Committee—although, of course, there are those who say that, where there are children under 16, the period should be longer even where both parties agree to divorce.
Some argue that the period should be automatically extended where one party objects to divorce. However, in those circumstances, the withholding or granting of consent could become a powerful bargaining chip in negotiating about children and financial arrangements for the future. In such circumstances, it is important that children are not put at greater risk as arrangements for them become part of the bargain.
It may also be felt that the potential for hostility between the parties would be greatly increased if a longer period were required where one party withheld consent, because the parties would enter a power struggle to get the best deal, and would keep at it, each trying to wear the other down. Again, that could significantly detract from the value of the period in encouraging reconciliation between the parties and getting them to focus on the future of their children.
My hon. Friend the Member for Chislehurst (Mr. Sims) has tabled an amendment designed to extend the absolute bar on divorce from one year to two years. If it were accepted, no divorce could be applied for on the basis of a statement made before the second anniversary of a marriage. The overall effect of my hon. Friend's amendment, as he told us, would be to provide that no divorces would be allowed during the first three years of marriage—that is, there would be two years' absolute bar, and then the minimum period for reflection and consideration.
I fully understand the sentiment behind the amendment. I have discussed the matter with my hon. Friend several times, and I have much sympathy with the arguments that he has put to the Committee. It is to send out to the world at large the message that marriage is an important institution, and that it should not be devalued by a precipitate divorce.
However, others have said that disallowing divorce for a period of that length may reintroduce the demand, which my hon. Friend will recall, under the old law that, in cases of exceptional hardship or depravity, access to a quicker divorce should be granted. My hon. Friend's amendments would allow no exceptions whatsoever.
Therefore, I should make it clear to the Committee that, if they are carried, it is likely that the argument on abridgement will be raised at a later stage. If couples cannot get divorced in such situations, my hon. Friend will be interested to know that there is some evidence that suggests, surprisingly, that they may forum shop in other jurisdictions to obtain their divorce. I was surprised to learn that but I am told that that was what happened under the previous legislation during the 1980.
531 There is clear evidence that the number of divorces that are granted in the early years of marriage—
§ It being Ten o'clock, THE CHAIRMAN left the Chair to report Progress and ask leave to sit again.
§ Committee report Progress.