HC Deb 17 June 1996 vol 279 cc559-79

`.—(1) The parties to a marriage may, at the time of their marriage or at any time thereafter declare by deed that neither party will apply for a divorce order save in such circumstances as are provided for within the deed.

(2) Regulations shall make provision for the parties to the deed to lodge the original of the deed at the Principal Registry of the Family Division.

(3) A deed made under this section shall not affect the power of the court to make a separation order and any ancillary financial orders relevant thereto, in respect of the marriage to which the deed applies.

(4) A deed made under this section shall not affect the power of the court to declare the marriage to which the deed applies void and to issue a decree of nullity in respect of that marriage.

(5) A deed made under this section shall not affect the application of the provisions of Part IV of this Act, relating to family homes and domestic violence, to either party to the marriage to which the deed applies.

(6) Regulations shall make provision for persons who have given notice of intention to marry to be notified of the right to execute a deed under the provisions of subsection (1) above, and of the effect of so doing.

(7) Where the parties to the marriage have made a deed under the provisions of this section:

  1. (a) no court may make a divorce order in respect of the marriage to which that deed applies other than in any circumstances provided for within the deed;
  2. (b) no divorce or annulment obtained by either party in relation to the marriage in any jurisdiction outside of England and Wales shall be capable of recognition under Part II of this Act unless the grounds on which it was obtained comply substantially with the circumstances provided for within the deed.

(8) Section 3 (3) and section 4(3) above shall not apply where a deed has been executed in accordance with this section.

(9) A party seeking divorce under this section must additionally satisfy the requirements of Part II of this Act.—[Dame Jill Knight.]

Brought up, and read the First time.

Dame Jill Knight

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No. 10, in clause 2, page 2, line 4, leave out from beginning to 'by' in line 7 and insert— `(1) Except where a deed made under section (Statement of conscientious objection) applies, the court may, by making an order (to be known as a divorce order) dissolve a marriage. (2) The court may,'. No. 119, in clause 10, page 8, line 27, after `includes', insert '—

  1. (a) hardship attributable to the fact that the person concerned has a deeply held religious belief that marriage is indissoluble; and
  2. (b)'.

Dame Jill Knight

The impetus behind the new clause is to allow couples, if they wish, to make a firmer commitment to one another than the marriage ceremony will become when the Bill becomes law.

I draw the attention of the House to the fact that any civil contract, such as purchase of a television set or an electric cooker, hire purchase of a car, buying a house on mortgage, agreement on employment or use of land or education or any other solemn contract between two persons, is framed to ensure that each party keeps his or her side of the bargain. In no contract of which I am aware, and in no contract that I could call to mind, can one party renege on the deal giving no reason whatsoever and against the wish of the other party. Is it so outrageous to permit couples to have as binding a marriage contract as the contract that they would make if they were buying a dining room table?

I cannot help wondering how the marriage service will change after the Bill is passed, as change it surely must. We have reached a sea change in what is lawful in marriage. Members will recall words from the marriage ceremony, but for greater accuracy I have obtained a copy of it. I draw the attention of the House to two parts. Both husband and wife are required to make a vow, for better for worse, for richer for poorer, in sickness and in health, to love, cherish … till death us do part … and thereto I give thee my troth. They make that promise in a most solemn place—usually in front of an altar, and in front of their friends and relatives. Many witnesses hear that solemn and binding promise. A little later in the service, the priest says: so these persons may surely perform and keep the vow and covenant betwixt them made". We should not pretend that marriage is just a pretty ceremony, with the lady in a delightful dress, little tots carrying flowers, bridesmaids, and so on. It is an extremely solemn moment for most couples. But what will happen when the Bill is passed? Without any fault at all, one person can break the contract—and it will not matter whether the other person does not want it to be broken. Divorce has always been available—although never so prevalent as it is now—but there has always had to be a reason. Now, no reason has to be given at all. That is a worry to me and to hon. Members who support what I am saying.

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Some people have said to me that if we are to have a way of signalling that both parties accept the binding nature of a marriage service—some may just go for the breakable sort—we will have to have a two-tier marriage contract. That difference exists already: some people choose to be married in a register office and some people choose to be married in a church.

Hon. Members who support the theory that couples should be allowed to make a binding promise do not think that divorce should not be allowed. For example, there may be cruelty in a marriage, and the Catholic Church allows for the annulment of a marriage. New clause 9 accepts that people can be divorced if there is a real reason for the marriage to end. We are not trying to stop people altogether from getting divorced; we are trying to say that we cannot pretend that the present marriage service will not have to be changed. We are in an entirely different set of circumstances—we have never faced a situation where a solemn promise made in one of the most solemn places in our country can be broken on a whim, for no reason whatsoever.

I ask my hon. Friend the Minister whether hon. Members will be permitted a free vote on this matter. Like many parts of this unhappy Bill, this is a question of conscience. Few Bills in this House have been so strongly linked to a Member's conscience and belief.

Mr. Peter Bottomley

I am trying to understand what new clause 9 will achieve. If this deed were made or declared by the parties to the marriage, would it require both of them to do it, rather than just one of them? If this deed were made, would adultery or desertion be grounds for divorce?

Dame Jill Knight

That is not in the new clause. As I have said, those of us who are interested in giving a couple the right to make a firmer promise than they will be able to make recognise that there are reasons why a marriage sometimes, and unhappily, should end. We are not saying that in no circumstances can a marriage be ended; we are trying to make society recognise how vital marriage is for society. If we go on as we are at the moment—with the divorce rate rising and more children living in one-parent families—we shall all suffer. We are not saying that there should be no divorce; we are saying that two people who decide that they want to be married to each other should be able to make a firm commitment. The Church will have to decide whether to leave the words that I have just read out in the service because they will not mean a thing.

Mr. Harry Cohen (Leyton)

I should be grateful if the hon. Lady could return to the intervention of the hon. Member for Eltham (Mr. Bottomley) in relation to adultery and desertion. If a couple have a deed—as she proposes—which does not refer to adultery and desertion as grounds for divorce, but subsequently there is adultery or desertion, will that couple be entitled to a divorce?

Dame Jill Knight

Of course they will. There are many reasons why divorce has to happen, including violence. I emphasise that we are not saying that there is no reason ever to divorce. The two reasons that hon. Members have mentioned—adultery and desertion—are good reasons why a marriage may become intolerable.

Mr. Cohen

May I intervene further on that point?

Dame Jill Knight

No, I have already given way to the hon. Gentleman and many hon. Members are interested in other provisions of the Bill.

Dr. Bray

I am trying to understand what the hon. Lady is proposing. Does she propose that every couple will draft their own deed or select the items that will go into their deed? Or will there just be a standard deed?

Dame Jill Knight

If the new clause becomes law, I am sure that there would be a standard agreement. The important point is that both the man and the woman would have to agree to, and want to sign, the deed. I cannot see how the Church—my Church, the Church of England—can possibly allow the wording of the marriage service to remain as it is. It will mean nothing to say till death us do part and to make a solemn promise before God when for the first time ever it can be broken for no reason at all, and possibly against the will of the other partner. For those reasons, I suggest to the House that it is not unreasonable to allow people who want to make a solemn promise to do so.

Mr. Alton

I support the cross-party amendment, which stands in my name and in the names of the hon. Members for Birmingham, Edgbaston (Dame J. Knight) and for Bootle (Mr. Benton). The amendment raises some interesting issues that the House is right to spend a little time considering. I thank the hon. Lady for putting her arguments so cogently.

The hon. Members who voted against the Second Reading of the Bill are grateful for some of the improvements that were made in Committee. We recognise that the Minister and his predecessor have done a lot to try to address the issues that were raised on Second Reading. It is important for Ministers to understand and to realise that the conviction that led to opposition on Second Reading may, in some cases, lead to opposition on Third Reading unless something is done to deal with the question of conscientious objection. The House, too, must realise that there is no question of the arrangement's being binding on anyone who disavows it. The legislation, in its Third Reading form, would apply to people throughout the country, unless they chose to opt out—by means of this provision—when they married. Allowance is made for conscientious objection.

The hon. Member for Motherwell, South (Dr. Bray) asked, very properly, about the nature of the deed that would be drawn up. I understand that, according to the drafting of the new clause, the deed would be in accordance with the teaching of the Church of which theperson concerned was a member. Clearly, however, if that person was not a member of a Church, there would be an opportunity for husband and wife to draw up a deed that could be lodged with the registrar at the time of their marriage. The new clause allows for personal responsibility: it allows for a personal affirmation of what the couple intend their marriage to be at the time of that marriage.

Catholics and evangelicals, for instance, would interpret what is meant in regard to adultery differently, as has already been pointed out; but that could be recognised in the framing of the deed, and it would not be binding on anyone who did not wish to have it. If someone wanted to lodge the deed with the registrar at the time of his marriage, however, it would complement and add to the legislation. It would take nothing from anyone who had no religious belief, or did not wish to be bound by it.

Dame Elaine Kellett-Bowman (Lancaster)

I appreciate the efforts made by my hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight), the hon. Member for Liverpool, Mossley Hill (Mr. Alton) and many others to try to improve this appalling Bill. I shall support the new clause, but I still think that it would be very much better to throw out the whole Bill lock, stock and barrel.

Mr. Alton

The hon. Lady has given her view of the Bill in a characteristic way. She and I were in the same Lobby on Second Reading. I should feel much happier about the Bill if it allowed the right of conscientious objection, but I recognise that genuine attempts have been made to improve it.

The hon. Member for Edgbaston mentioned "two-tier marriages". I agree with her. That phrase has been thrown out by various hon. Members who have said, "If we pass the new clause, it will create two-tier marriages." There are so many diverse forms of relationship in this country today that it is absurd to suggest that the one thing that will not be allowed is a covenant between a husband and wife who opt out and say that they want to be bound by the sacrament of marriage for the rest of their lives. That is what will happen, however, if the new clause is not accepted.

Mr. Peter Bottomley

It may be possible to make this trivial point later, but if the parties continue to agree to the vow that they have made the whole issue will become academic. A more serious point concerns ecclesiastical annulments. I understand that, in some Churches, it is possible to go along and say, "Although I openly made a commitment to lifelong marriage, I did not know what I was doing when I made that vow. May I establish that the marriage never actually took place?"—although, according to a secular society, it clearly did. Would the new clause make it possible to go along to the ecclesiastical authorities and say, "Not only was I wrong in believing that I was capable of making a marriage vow; I was wrong in signing the deed"?

Mr. Alton

The new clause makes full provision for annulment, in the sense that if it could be demonstrated that one or other partner was not convinced of what he or she was doing at the time, and if that could be proved to the ecclesiastical authorities, it would be possible—in line with the teachings of the Church concerned—for the marriage to be dissolved as it could be now, through annulment. That is the nature of such a deed.

It must be said that, in relative terms, that procedure is rarely invoked. We are witnessing the dissolution of marriage and family life as an institution. The hon. Gentleman and I share the view that, when marriage breakdowns are fast approaching the American level—nearly 50 per cent. of marriages now end in divorce—drastic action is needed to reiterate the commitment to marriage and family life. I think that hon. Members increasingly agree that we need a Bill that is about marriage and family, not simply about making divorce easier.

Incidentally, the marriages of our parents' generation hit the same rocks that ours hit from time to time. In those days, however, the normal procedure was to try to sort out the problems and stay together. Nowadays, a range of things happen that accelerate the destruction of marriage, with disastrous consequences. As one who has represented an inner-city area for 25 years as a councillor or Member of Parliament, I have observed that my area contains marriage dissolution on the same scale as any other area. Indeed, on the sink estates, where life is often very difficult for all sorts of reasons related to economic poverty, one of the worst problems has nothing to do with that: it is related to the human ecology of the breakdown of social institutions, not least the absence of fathers and the breakdown of marriages.

6.15 pm
Mrs. Elizabeth Peacock (Batley and Spen)

The hon. Gentleman has identified the root of the problem. Perhaps in his parents' generation—certainly in mine—there was a greater commitment to start with, but there was also a greater commitment to the tough times as well as the good times. In inner cities, there were tough times in our parents' day, but the initial commitment is not the same now. As soon as something goes a little wrong, people opt for a divorce because that is the easiest way out. We should try to create a firmer base on which to build.

Mr. Alton

I entirely agree. I think that the hon. Lady would also agree with me—given her experience of working with broken families and children who become the casualties of those families—that we too often trot out the ridiculous statement that divorce is being arranged for the good of the children, and that they should not be caught up in such circumstances. If children are asked what they think, however—The Daily Telegraph, for instance, has asked them in surveys—the majority repeatedly say that they would have preferred their parents to stay together, rather than witness the breakdown of the family. Such breakdowns often have calamitous social consequences.

We must all do more. The phrase "preparation for marriage" has been used again and again in the debate; I cannot think of anything that would prepare people better for marriage than a discussion about whether or not to lodge a deed of this kind. People opting into such a covenant would have to have that discussion. They would sit down with their intended and say, "Which shall we opt for—the conscience clause that means that we will stay together and regard our marriage vows as really being for life, or the marriage settlement that will allow us to divorce easily and quickly?" That would concentrate people's minds in regard to precisely what they were entering into. It would be the fastest possible learning curve. When a person's intended replied, "I would rather opt for the easier alternative, on the basis that we should be able to divorce more quickly," at least that person would know how committed his or her partner was to the relationship.

This a practical, commonsense idea which is in keeping with what Members of Parliament constantly tell us on everything from bio-ethical issues to questions such as Sunday trading: that we must have more and more choice. Let me look at the other side of the coin, for once. If people want choice, let us provide this choice, and allow them to opt out. If it will not affect anyone who does not want it, where is the harm? If it is part of living in a pluralist society—if I may use that rather hackneyed phrase—allowing greater individual choice and permitting people to opt out of legislation, where is the harm? I believe that it could lead to many good consequences. I am happy to support the hon. Member for Edgbaston, and hope that the Government will accept the new clause.

Mr. Rowe

I could not have more sympathy with my hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight) and the hon. Member for Liverpool, Mossley Hill (Mr. Alton) in their attempt to strengthen the institution of marriage. I must say, however, that if a wedding in church means anything—I accept that some families still regard a church wedding as a social photo opportunity, although they are few and far between—it means a young couple seriously entering into what they hope will be a lifelong marriage, bolstered by the Church's historical vows for that purpose and strengthened, they hope, by the many people who have come to take part in the ceremony. One hopes that they will also be prepared for marriage, and all Church denominations are taking increasingly seriously their responsibility to prepare couples for marriage. I fail to see, therefore, how the registration of an additional deed would strengthen their marriage.

A young couple making their vows to each other in the presence of the God in whom they believe cannot make a more solemn undertaking. If, unhappily, the marriage goes wrong and they decide to divorce, they experience huge anxiety as they try to salve their consciences.

Mr. Alton

Does the hon. Gentleman accept that that might be so if both partners freely agree to end their relationship, but in the circumstances that we are debating one or other partner will be divorced against his or her will? How will that leave them if they conscientiously object to the concept of divorce? Some people conscientiously believe that marriage is for life and that marital breakdown excludes the possibility of remarriage. The new clause seeks to cover merely that point and neither the hon. Gentleman nor I should impute what we want on others; let them decide for themselves.

Mr. Rowe

I have no qualms whatever about young couples signing such an agreement, but it is extraordinary to include such a provision in a Bill. We must remember that we are debating an institution to which a growing number of young people do not subscribe. Many young people who decide to live together enter into such a solemn undertaking and sign agreements. Some of them even register the agreements with lawyers or others. The majority of people who enter into any form of marriage do so with the intention of making it last.

Dame Jill Knight

I did not follow the line that my hon. Friend took when he seemed to suggest that what we are seeking already exists. If people can already make an extra commitment, what is wrong with allowing them to continue to do so?

Mr. Rowe

I am not clear how the Bill, as drafted, would prevent them from doing so. That is my difficulty. There is no reason why they should not sign such a document.

Mr. Leigh

Under English law, the courts will rule that statute must take precedence over private covenants or deeds. Therefore, without the new clause, a deed made by a couple at the time of their marriage is not only unenforceable but uniquely unenforceable, and the courts will deliberately overturn it. That is why the new clause must be passed.

Mr. Rowe

I am grateful to my hon. Friend for his explanation because I was not aware of that, but to ask courts, 20 years later, to enforce such agreements will lead to the great difficulties that have dogged the issue of divorce through the centuries. I am not, therefore, very happy about the new clause.

There is the serious risk of the House giving the impression that marriage should be made as difficult to sustain as possible—that penalties and difficulties should be laid in the way of those who want to marry and to try to make their marriage work—whereas it should be a joyful and sustaining partnership in which the state's interest is manifest. If the new clause is agreed, all that will happen is what is happening with increasing speed—more couples will refuse to take the risk of getting married to avoid the obstacle that the House is in danger of laying before them.

Mr. Donald Anderson (Swansea, East)

I have some difficulty in framing my response to the new clause because I have enormous respect for the hon. Members for Birmingham, Edgbaston (Dame J. Knight, and for Liverpool, Mossley Hill (Mr. Alton). I wish to speak along the broad lines of the hon. Member for Mid-Kent (Mr. Rowe).

I well understand the background that motivates the new clause: the decline of marriage as an institution, the casualties—especially children, who are often the innocent victims—and the wish as far as possible to buttress the institution of marriage. I am not sure, however, that this instrument will have any effect.

The new clause has been sold by the hon. Member for Edgbaston as allowing couples, if they wish, to make a firmer commitment at the time of marriage. She and I, at different times, went through a church marriage. We made our solemn vows and they are binding on us. As the hon. Member for Mid-Kent said, there can be nothing more solemn than a couple's joint declaration in a church before God.

I do not know what more the hon. Member for Edgbaston wants. If, in addition to the church declaration before God, any couple wish to make a covenant between themselves, they are entitled to do so. The real question is whether that covenant, declaration or whatever should be underpinned by statute or by the state. I doubt whether such an underpinning would have any real effect.

It implies some lack of trust if one partner, having gone through the church ceremony of marriage and having made a most solemn undertaking, insists on some further measure to prove undying commitment. One knows from personal experience that those who are ready to make the most grand declarations and to enter into the most serious covenants may not be those who are most serious about marriage.

My first unhappiness about the new clause is that it implies a lack of trust among people who enter into marriage and my second is that it would have no practical effect. Yes, I am as unhappy as the hon. Member for Edgbaston about the decline in respect for marriage and all the other matters that have been mentioned, but how will the problems described by the hon. Member for Mossley Hill—feckless fathers and the neglect of children—be affected one jot if the new clause is passed?

It would not tackle social ills. If partners want to enter such an agreement, so be it. The hon. Lady said that it was a matter of conscience. Conscience is for individuals, and we are devising—however inadequately—ways in which the state can deal with the institution of marriage and with marriages that do not last. Although I respect the motives behind the new clause, it would not work.

Mr. Leigh

I rise to support the new clause tabled by my hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight) and to speak to my amendment No. 119. My hon. Friend and I support the verdict of the House, which wants no-fault divorces. We are not seeking to reverse the vote in favour of them but is there any reason, in a free society, for not allowing people to state at the time of marriage their conscientious belief in the Christian concept of marriage? Such a deed would be drawn up according to the teachings of the various Christian Churches. I am not familiar with the teachings of other religions but no doubt they could do the same.

To reassure my hon. Friend the Member for Eltham (Mr. Bottomley) it would certainly be possible, under the teachings of the evangelical Churches, for adultery to be a ground for divorce and there is a provision for annulment under the teachings of the Roman Catholic Church. We are fundamentally talking about freedom of choice.

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We are not trying to put fault back into the Bill. There is no question of including words such as "adultery", "desertion" or "conduct". The contract would be a matter of free choice but solemnly entered into—and it would not create two classes of marriage. There are already many different sorts of marriage ceremonies. No vows are made in the register office but solemn vows are exchanged in church.

As I told my hon. Friend the Member for Mid-Kent (Mr. Rowe), the problem with any solemn vows made in church at present is that the courts view them as uniquely unenforceable.

Mr. Peter Bottomley

Is adultery a ground for annulment? If so, what would be the effect of the commitment in the new clause?

Mr. Leigh

I must be careful not to speak on behalf of the Holy Father or to enter into protracted ecclesiastical discussion with my hon. Friend as to what are or are not grounds for divorce under the teachings of Christian Churches. The Catholic Church allows annulment and even permits divorce. It holds that if one is divorced and wants to remain a practising member of the Catholic Church, one cannot remarry. There is little use delving deeper into theological matters—the hon. Member for Liverpool, Mossley Hill (Mr. Alton) explained them well.

Amendment No. 119 is separate from my hon. Friend's new clause. which I hope the House will be minded to accept. If it does, the House can also accept my amendment. If the House does not adopt new clause 9, my amendment would still stand alone. Some hon. Members may feel unable to support my hon. Friend's new clause but I hope that they will support my amendment.

Under present divorce law, if one partner seeks a divorce on the ground of five years' separation, the innocent party who does not want a divorce is allowed to tell the court that a divorce would cause him or her great general or financial hardship. Then the court might delay the divorce or, in a few cases, might stop it. The test is high. It is estimated by legal commentators that only one divorce has been prevented by the grave hardship bar in 25 years and that the financial hardship test has been successful in only half a dozen cases. Actions on the ground of five years' separation account for only 5 per cent. of divorces.

The Bill will allow individuals to cite hardship in all divorces, and the word "grave" is replaced by "substantial". The test could still be high. A new corpus of law will grow over the years and the courts will take their own view of "substantial", but there will still be a high hurdle to jump.

Mr. Donald Anderson

Am I correct in thinking that courts consider hardship, in relation to divorce after five years' separation, only in terms of financial hardship?

Mr. Leigh

Yes. Half a dozen cases related to financial hardship, and a court accepted general hardship on only one occasion in 25 years. Many of the Bill's opponents do not consider that the Lord Chancellor's concession of extending the hardship bar to all divorces amounts to much—it is hardly worth the candle. Even replacing the word "grave" with "substantial" would still present a high hurdle.

Having discussed the matter with my hon. Friend the Minister, we have tried over the past couple of weeks to devise a way of allowing people to register their conscientious objection to divorce. I cannot speak for my hon. Friend the Minister but if he has problem with the deed concept, perhaps there is another way. We want protection for people who are divorced against their will and who adhere to the concept of lifelong marriage. We alighted on the hardship bar, which already exists in clause 10. My modest amendment would provide for the courts to consider hardship attributable to the fact that the person concerned has a deeply held religious belief that marriage is indissoluble". My amendment would not create two classes of marriage or require couples to sign deeds. It would merely provide that if a person holds the view that marriage is for life and does not want to be divorced, he or she could apply to the court to delay or prevent the divorce. Judging by the past 25 years, I suspect that no divorce would be prevented. There could be delay.

Sir Timothy Sainsbury (Hove)

My hon. Friend's amendment meets one of the concerns felt by many hon. Members. If the person who applied for delay or prevention was—to use the familiar jargon—the party guilty of unreasonable conduct or even of adultery, would such an application not be allowed under my hon. Friend's amendment?

Mr. Leigh

My amendment would apply only to the person who was resisting divorce. I suppose that it is possible to conceive of rare circumstances in which the party resisting divorce was the one guilty of intolerable behaviour or adultery but says, "I have deeply held religious views and, despite my adultery, I do not want a divorce." That case would be impossible to argue in court, so it would not arise. Nevertheless, I am grateful to my right hon. Friend because it is important to consider how the amendments might be interpreted by the courts.

The only people who would take recourse to the conscience clause under the hardship bar in clause 10 would be those who are innocent of any of the traditional grounds for divorce and want to register their objection to divorce. I offer the example of a middle-aged lady who has spent all her life building up a home and who suddenly discovers that she is being divorced against her will. She could tell the court, "I need more time to put my affairs in order." At present, she would have to meet the substantial hardship test in clause 10. The problem is that the courts, over the years, have interpreted hardship as that arising from the divorce process. They say that, when people complain of hardship, they are really complaining of the marriage breakdown. The court is not concerned about that and so it has been extraordinarily difficult for anyone to overcome the test. That is why it has been used only half a dozen times in 25 years.

If the House accepts my amendment, it will be much easier for people to go to court and to say, "I am being divorced against my will. I have deeply held religious views. Please listen to me and give me a bit more time," or, in extreme cases, "Prevent the divorce," which, I suspect, the courts will never accept. Hitherto, the practice has been for the courts, in any event, to allow divorce after five years, even if a party is innocent and wishes to stop the marriage. In that sense, the amendment is modest and I hope that, on that basis, the House will feel able to accept it.

Mr. Cohen

I oppose new clause 9. It is a dog's dinner of a new clause, and its consequences will be viciously reactionary. This country would end up with as many multiple versions of divorce law as multiple versions of the deeds. Presumably its supporters have in mind a standard deed, but they have not had the confidence to show it to hon. Members. That is an insult to us.

Mr. Alton

I think that the hon. Gentleman misunderstands the clause's purpose. If someone were a member of a particular denomination, it is likely that he or she would draw up a deed that was in accordance with the teachings of their denomination, but people of no faith or other faiths might nevertheless still want to record their dissent in some way. The hon. Gentleman is right, therefore, to say that there could be different interpretations and formulations of the deed, depending on the conscience of the person concerned. That would inevitably be the case, precisely because this is a conscience clause. That is its strength, not a weakness.

Mr. Cohen

The hon. Gentleman makes the point that, under this new clause, we would have as many divorce laws as possible deeds.

Mr. Peter Bottomley

I am tempted to go further than that. The hon. Member for Liverpool, Mossley Hill (Mr. Alton) claimed that there would be different interpretations, so we would have not just different divorce laws, but different interpretations of the same words, which is peculiar.

Mr. Cohen

That again is a point well made.

Under the new clause, any sort of deed could be made by a couple when they get married. Some of those deeds will try to stop divorce under any circumstances, which is not right. In an intervention, I made the point about adultery, desertion and cruelty. That point is not in the new clause. I ask the hon. Member for Birmingham, Edgbaston (Dame J. Knight): where is it in the new clause? We may have various forms of deed, but it may not be in the deed that the two parties to the marriage sign, which is a serious flaw.

I remind the House what is in the new clause. Subsection (7) states: (a) no court may make a divorce order in respect of the marriage to which that deed applies other than in any circumstances provided for within the deed; (b) no divorce or annulment … shall be capable of recognition … unless the grounds on which it is obtained comply substantially with the circumstances provided for within the deed. So the deed would overrule everything, and, as I have said, we do not know what will be in the deed. There will be many different deeds, interpreted in many different ways.

I support the notion and the idea that national law should take precedence over private deeds, even if they have religious backing. In many sectors, the acceptance of decent standards should be the norm. A person should not be trapped for ever in a spiteful, violent or desperately unhappy marriage. That should be a nationwide standard. No deed should be able to wipe that out.

I give just one example. People make mistakes when they get married. The person they have married may change from being loving to inflicting cruelty. In those circumstances, making a marriage for life or signing a deed for marriage for life may be viewed as a mistake, although I am not sure it is. Therefore, people in that position should be safeguarded and have the opportunity to get out of that desperately unhappy marriage.

The new clause is fundamentalist claptrap. It will be used by fundamentalists of all religions, and it could inflict great pain on partners. If passed, it could cause enormous heartbreak and misery, so I oppose it.

6.45 pm
Mr. Peter Bottomley

To regard the new clause or the amendment as fundamentalist claptrap is strong language, but it is not justified by the arguments that have been advanced, which should be tackled on their merits.

I am not a lawyer or an expert in the different ways in which a marriage can be ended or can be said never to have existed in the first place, some years after people thought that they were involved in a perfectly valid marriage. I know of one couple who married with the intention of making a lifelong union. After some years and some children, they got divorced. Later, one of the parties to the marriage received a letter saying that the Church had decided that the marriage had not taken place in the first place, because one of the parties to the marriage had managed to convince the Church authorities that they had not been capable of making the decision to be married in the first place.

I pay tribute to the Catholic Church's role, from the Holy Father through to the ordinary member of that Church, but, frankly, that example shows how people can change their minds about being capable of making the decision to get married in the first place. We should therefore accept that they are likely to be capable of changing their minds about the marriage vow they made in church and about the deed they might have signed in contemplation of the new clause.

Four or five hon. Members who have spoken in the debate are among those who voted or who acted as Tellers against the Bill's Second Reading, so we must understand that the proposals in the new clause or the amendment are almost certainly designed to improve the Bill, but that the hon. Members proposing the new clause and amendment wish that the Bill would not go through.

If the Bill did not go through, 75 per cent. of divorces would be quickie divorces on the ground of fault. People say that the idea of no fault is introduced by the Bill, but that is not right. The Bill says that the fault ground cannot be used in future. At present, it is possible to get divorced without fault. The two-year and five-year separations are examples.

We should consider the new clause and the amendment on their merits. The amendment has been supported by the hon. Member for Liverpool, Mossley Hill (Mr. Alton) on the ground that it will help to delay the divorce process. It will not end that process. I may have misheard him, or he may have misspoken, but the point was made that it would make divorce more difficult. It means either that people who may later want to be divorced will be caught and will be unable to be divorced because they have signed up to a deed, or a different form of marriage from the ordinary commitment that the marriage will go on until death, or it does not mean that.

The amendment of my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) proposes an alternative, and takes a different view on hardship. It is difficult to start to bring the hardship argument in. In either case, I should be interested to know whether the traditional reasons or justifications for a legal or an ecclesiastical end to a marriage would apply either in the hardship test that my hon. Friend proposes or in the new clause that my hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight) has tabled.

It is worth consulting the views of people who have a greater ecclesiastical standing than me—although, over my years here, some of my colleagues have been more forward in mentioning their Church connections than I have. I do not want anyone to believe that those of us who are relatively quiet about our work in the Church have any less strong views than anyone else about the importance of marriage, or about trying to make the marriage process easier, and the process of divorce less frequent.

Mr. Leigh

My hon. Friend asked me a question and I shall try to answer it. The whole essence of my amendment is, that if someone goes to the court to ask for a hardship bar, he will not argue that his divorce should be based on fault or desertion—that is irrelevant. The hardship bar already exists.

All that that person will do is say, "Can I have some more time"—the court may well reject his request—"because I have a deeply held religious view about marriage, and I believe that it is only fair that I be given more time before the divorce takes place?" That person will not go into the nature of the divorce; there will be no argument about adultery, desertion or anything else. I assure my hon. Friend that I am not trying to get anything like that into the Bill.

Mr. Bottomley

I accept that. Some of the issues relating to delay now come under clause 7, which we will consider during our discussions on later amendments.

I have deep sympathy with people who believe that their marriage could have continued, but, because one partner to the marriage decided that it could not, the marriage came to an end. Perhaps a longer delay would have made that more acceptable. I cannot judge that. However, having watched people who have been through that process, my sympathies go in a number of directions, because a number of issues matter.

I want to bring to the attention of the House what has been said by a number of ecclesiastical authorities. The first is: The Bill has been strengthened during its difficult passage through Parliament to date in at least three key areas: there is now a longer waiting period in some circumstances"— in a way, that meets some of the points made by my hon. Friend the Member for Gainsborough and Horncastle— which more clearly signals the seriousness of marriage; a greater emphasis on reconciliation, offering a better prospect of saving savable marriages; and a statutory provision for marriage support services. That was said by His Eminence the Cardinal Archbishop of Westminster in a letter to The Times on 28 May.

It is worth noting a letter to the Prime Minister from the Family Law Bill Coalition, which said that the Bill offers the best chance for a generation of scrapping a system which is widely misused and frequently harmful to the interests of children adults and families as a whole, and of achieving reforms which have a broad basis of support. This approach has been tried in other jurisdictions and is long overdue here. It would be a lost opportunity if the Bill were to be abandoned or rejected now. That letter includes among its signatories Christine Eames, worldwide president, Mothers Union; James Richards, the director of the Catholic Children's Society; Rabbi Dr. Julian Jacobs, adviser to the Chief Rabbi on inter-faith matters; and Geoffrey Blumenfeld, the director of the Jewish Marriage Council. I shall not give all the names from the Anglican Church.

I have shown how a number of Church authorities are not arguing the option of a two-tier marriage. There is the marriage ceremony, which a number of us have been through—whether civil or religious—where we say that it is our intention that the marriage should last until death. The option is being put before the House today of a separate commitment, which people could opt into, to strike out a number of reasons for the marriage ending if either or both parties want a divorce.

Mr. Alton

I do not quarrel with the quotations that the hon. Gentleman has cited. However, does he accept that none of them addresses the new clause, because it had not been tabled when those letters were written?

Mr. Bottomley

I accept that. The question that I earlier put to the hon. Gentleman and other hon. Members was whether any of the reasons why people could go to the ecclesiastical authorities and say, "Please tell me in arrears that the commitment I made was one that I was not capable of making," would be caught either by the amendment or by the new clause.

Until one of those hon. Members who voted against Second Reading but support either the new clause or the amendment can give me the answer to that question, people will still be able to change their minds, either about what they want to do for the rest of their lives, if they believe their marriage has come to an end—which is sad—or that they want in arrears to go back to the ecclesiastical authorities and say, "Can you please be convinced that I was not capable of making a commitment in the first place, either to the deed or to the marriage?"

Mr. Alton

The hon. Member for Gainsborough and Horncastle (Mr. Leigh) earlier made the point about annulment and what is done in accordance with a person's denomination or Church. That is the answer to the hon. Gentleman's question. If, in the covenant at the time of drawing up the deed, someone writes in the proviso that he will be able to avail himself of annulment procedures, that is not a retrospective action—that person is saying in advance that he may seek, through the ecclesiastical authority of his Church, to annul the marriage if it does not succeed.

For someone from the Catholic tradition, that would undoubtedly mean that that person would disavow the right to be married again. That would be a decision entered into freely and fairly at the time of the marriage. That is why it is a matter of conscience—and one that should not trouble the hon. Gentleman too much, because it is something that will be decided by the two people getting married.

Mr. Bottomley

If I understand the hon. Gentleman correctly, I do not think that he can be right. Is it possible for me to say at the time of my marriage in, let us say, the Roman Catholic Church, that the marriage is going to be for life, but then later on to go to the ecclesiastical authorities and try to convince them that I was not capable of making that commitment at the time, as I did not understand the nature of marriage or there was some other bar?

Mr. Alton

There may be a reason.

Mr. Bottomley

There may be a reason. If the hon. Gentleman confirms that it is possible to make a commitment and then later say that I was not capable of making that commitment, would the same thing apply to the deed that is the subject of the new clause?

Mr. Alton

Yes.

Mr. Bottomley

If so, what happens to those who have not made that commitment in the Roman Catholic Church, but, perhaps, in a register office? They would not be able to go to an ecclesiastical authority some years later and ask it to judge their state of mind some years earlier at the time they made the commitment. It shows that the new clause—not the amendment, which approaches the issues in a different way—is not helpful in trying to introduce a two-tier marriage.

What is worse, the new clause basically says to people that, when they are considering marriage, whether civil or religious, they should go through a list of reasons that are traditionally used as justifications for ending a marriage, and knock them out in advance. It is rather like saying, "Do you intend your marriage to be short-term?" I do not think that people know in advance how they will feel later.

Even if we could manage to halve the number of divorces from 160,000 a year to 80,000, which would be highly desirable, we should do it by convincing people that they want their marriages to continue, rather than saying that, when they believe they have come to an end, they are not in a position to remarry.

I want to cite one or two further quotations because they are important for those who follow our debates. It would be quite wrong if Catholic MPs were to be swayed in their view of the Lord Chancellor's proposals by incorrect information about the Catholic bishops' view … We can point out to legislators the bishops' positive response to the proposals made in the White Paper. That was said by Monseigneur Kieran Conry of the Catholic Media Office on 20 October 1995. Again, that was before the new clause was tabled, but it gives the Church's view on trying to move forward to a happier way of allowing people to apply for divorce if they so choose.

The last quotation I want to share with the House—there could be more—is: should Christians, and Catholics in particular, shun all attempts to reform the present divorce laws on the basis that divorce goes against the explicit statement of Christ: 'What God has joined together, let no man put asunder'. That was a reference to Matthew 19, verse 6. The quotation continues: I think not, because any attempt to lessen the harm done by divorce should be supported. That does not entail approving divorce but rather tolerating it as a lesser evil if it is the only way of ensuring the rights of the parties and the care and protection of children. That was said by the Right Rev. Peter Smith, the Roman Catholic Bishop of East Anglia, in a letter to The Times on 5 November 1995. All those quotations are in the context of a Church—although I am not of the same denomination, I regard myself as being in the same Church—where people make a commitment that marriage will go on until death ends it. The only occasion when some of the provisions in the Bill come into effect is when people find that their circumstances or their minds have changed. It is on those grounds that I believe that the House should not accept the new clause.

On slightly different grounds, the House should not accept the amendment moved by my hon. Friend the Member for Gainsborough and Horncastle. We should accept the advice of the leaders of our Churches, and get on with trying to take away some of the unnecessary misery caused by the current state of divorce law.

7 pm

Dr. Bray

I have a good deal of sympathy with the new clause moved by the hon. Member for Birmingham, Edgbaston (Dame J. Knight). However, I think that there is a real problem in calling on the apparatus of the state—the courts—to enforce a declaration made privately, or, as she has acknowledged, very privately.

The approach of the hon. Member for Gainsborough and Horncastle (Mr. Leigh) has fewer difficulties about it. There are precedents for the idea of conscientious objection as a recourse; the phrase, of course, comes from conscientious objection to military service, for which there is a well-developed apparatus of tribunals to judge whether the complaint is genuine, although there is not an enormous apparatus of appeal through the courts. Presumably such an apparatus could be introduced into a context like this one, although it requires some widening out. The hon. Gentleman's amendment is an interesting suggestion for consideration in the wider context of the law of marriage, rather than as a recourse to deal with some of the Bill's problems.

I am not prepared to go into the Lobby to support the amendment of the hon. Member for Gainsborough and Horncastle, but I think that it has real merit for future consideration.

Mr. Patten

I support my hon. Friends the Members for Birmingham, Edgbaston (Dame J. Knight) and for Gainsborough and Horncastle (Mr. Leigh). It strikes me as political correctness gone mad to seek to deny people, man or woman—in a society in which they have the freedom to do almost anything else they like—the freedom to put in their marriage contract that which my hon. Friend the Member for Edgbaston has proposed, or the provisions that are necessary for the hardship bar to be brought into play, as proposed by my hon. Friend the Member for Gainsborough and Horncastle.

Uniquely in my time in the House, this is the first occasion on which the Government have not stepped forward to support freedom of choice. Uniquely in my experience in the House, this Bill—for the first time—introduces the concept that there should be no fault and no responsibility in English law, in either the criminal code or the civil code. Although the Bill is important, today we are debating principles that go far beyond its provisions. We are saying that, in future—in this law as perhaps in later laws—we may well strip fault and responsibility out of laws when people are brought for judgment in the civil or criminal courts.

Those principles are why I found myself unable to support the Bill in the debate on Second Reading, and they are why I may find myself, uniquely—I use that word again—for me, alone in trying to resist the Bill, perhaps in a Teller-free zone.

The principles contained in the Bill deny freedom of choice, and strip away personal responsibility and fault.

Mr. Llwyd

rose—

Mr. Patten

No; I am coming to the end of my speech.

We have heard some frightening words. I do not want to terrify my hon. Friend the Minister too much, because he knows that he has my strong personal support, but we have heard many terrifying words today from the hon. Member for Brent, South (Mr. Boateng) about how, unless he gets this, that and the other, he will lead his troops into the Lobby against the Bill. I suspect that that is a political bottle-free series of threats.

It is absolutely right for hon. Members—these amendments have been supported by hon. Members of all political parties—to register their opposition to a landmark change in the way in which we do business and regard criminal and civil law.

I hope that, between now and the close of play today, my hon. Friend the Minister can persuade me; if not, I shall vote against the Bill, if Tellers can be found.

Mr. Boateng

I am rather saddened by the intervention of the right hon. Member for Oxford, West and Abingdon (Mr. Patten), not least because on many issues—I thought also on the issues of the importance of marriage and the importance to society of establishing stable family relationships—it was possible for hon. Members from both sides of the House to make common cause.

I well understand what lies behind this new clause, the amendment, and the concerns of the hon. Members for Birmingham, Edgbaston (Dame J. Knight) and for Gainsborough and Horncastle (Mr. Leigh). I had the opportunity to observe at close hand the commitment of the hon. Member for Gainsborough and Horncastle on this issue in Committee.

The approach of Opposition Members to the new clause and to the amendment is shaped by a desire for the Bill and for the House's deliberations to arrive at a goal and a place that do not undermine the institution of marriage, and that reflect the circumstances in which marriages are brought to an end.

In relation to new clause 9, Opposition Members believe that the creation of what would be—de facto and de jure—a two-tier marriage system is fundamentally corrosive of the institution of marriage. It would put the parties to a marriage in an absolutely impossible position, not least those parties who choose—many still so choose—to make their vows to each other within the context of a Christian or other religious ceremony.

It is quite wrong that couples who make that choice should find themselves faced with a law produced in this place that requires them to consider entering into this type of covenant or deed. That would not promote good marriages or create a good start to marriage.

For those reasons, Opposition Members—although it has found a ready echo among Conservative Members—have always put the emphasis on the importance of the House, at some stage, examining the issue of marriage preparation, and to do so in the most practical way. In view of the Bill's short title, clearly it was not possible to examine the issue during the course of our deliberations on this Bill, but we hope to do so at an early stage.

There are lessons to be learned about such preparation from work being done by various denominations and religious bodies. The work is important, practical and supportive of the institution of marriage, and it is succeeding in keeping people together when strains and stresses in the marriage are manifested.

For that reason, today we shall not join in the Lobby those who put their name to new clause 9.

As for the amendment moved by the hon. Member for Gainsborough and Horncastle, I am bound to say that my experience of family law tells me that it will not in practice make any difference at all to what happens in court or to people's conduct. In those circumstances, I will not be voting for it. The view taken by other Opposition Members is a matter for them, and we shall have a free vote on this amendment.

Mr. Streeter

We have heard yet another interesting and stimulating debate. Once again, I believe that the House is at its best when there are free votes.

I am fully aware of the concerns of many hon. Members, and of many of those in another place about people who have deeply held religious beliefs that marriage is indissoluble. I share that view. The new clause and the amendments can be separated into two groups, which seek to meet this concern in very different ways. I shall deal briefly with each of them in turn.

I deal first with new clause 9 and amendment No. 10. By and large, we have had an interesting and constructive debate on new clause 9, although I did not agree with some of the language used by the hon. Member for Leyton (Mr. Cohen). I am afraid that the Government cannot accept new clause 9 or amendment No. 10, even though I personally have enormous sympathy with the motives of those who tabled them. However, I have grave reservations about their working in practice. My hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight) will be reassured to know that this is a matter of conscience, and will certainly be a matter for a free vote on Conservative Benches.

I believe that the marriage contract is already a contract made between one man and one woman for life. The amendment is saying that, in future, only some marriages would be regarded as being for life. Others would be made indissoluble until a particular circumstance occurred. It also implies that, where there was no deed, a couple would regard their marriage as a contract from which they might opt out at any time, and shrug off their responsibilities and walk away.

I can think of no more terrifying statement for the House to make than that the marriage contract made between a husband and wife is not to be regarded by them as being for life when they make it. This is the basis of our current marriage law, and would be seriously undermined by the amendment. People who believe in lifelong marriage have no need for such a deed. Several hon. Members have pointed out that people can already decide that they will not divorce, even if their relationship has broken down.

When I made my marriage vows in accordance with the 1662 Church service, I made them before God, and I meant them. I meant them then, and I mean them now. If I break those vows, I answer to a higher authority—on this occasion, the House will be pleased to hear that I do not mean the Chief Whip. I need say no more than that.

Were the provision included in the Bill, would not at least one half of a couple come under enormous pressure to sign such a deed, because not to do so would imply that that person did not take his or her marriage seriously or did not love their intended partner enough? Would it not be cruel to put young people under that sort of pressure? There might subsequently be disputes about whether the agreement was entered into voluntarily and in full knowledge of the implications. How will it support the institution of marriage to have couples litigating over the extent to which they have agreed to commit themselves to each other?

I agree with the notion that young couples need maximum preparation before marriage, but let us tackle that matter in response to the ideas produced by the working party. If pre-marriage preparation is the idea of the moment, let us embrace it fully.

My biggest concern is that those who do not sign such a deed might come to be regarded by society as having an inferior relationship, a second-class marriage. Couples might come to believe that their marriage was somehow inferior and not worth sustaining. They could simply shrug their shoulders and walk away, saying, "After all, we have only a second-class marriage." That is not the message that we want the House to send. Let us not have first and second-class marriages, but strive to make all marriages first-class.

Hon. Members made a number of interesting points, and I shall deal with them quickly. My hon. Friend the Member for Edgbaston asked what it would mean for marriage vows if the Bill is passed tonight. I can tell her that marriage vows will mean exactly the same. Today, 45 per cent. of all divorces come under the heading of "unreasonable behaviour". Many such claims are exaggerated or fabricated. The current law encourages exaggeration, conflict and deception.

We are told that we have a two-tier marriage system because marriages can take place in a church or a register office, but under the civil law, all marriages are treated exactly the same for all purposes.

I have already mentioned that we shall be allowing a free vote on this matter.

I have enormous respect for the hon. Member for Liverpool, Mossley Hill (Mr. Alton), and usually support much of what he says, but I believe that he is misguided in this instance. He talked about the speeding up of the divorce process. The very point of the Bill is to slow it down, to introduce a period of reflection and consideration, so that couples genuinely think about whether they are doing the right thing.

My hon. Friend the Member for Lancaster (Dame E. Kellett-Bowman) intervened to say that we should throw out the Bill lock, stock and barrel. By doing so, she would be throwing out the three-month cooling-off period, the period of reflection and consideration, and all the provisions for marriage counselling, which she supports.

Is it not a tragedy that those who would be attracted by the proposed deed would almost certainly be those who are capable of and more likely to enter into a strong and committed marriage in any event? Those outside it would be in difficulty, or have second-class marriages. The hon. Member for Swansea, East (Mr. Anderson) made a telling point, asking whether it did not denote mistrust if one needed an extra deed to sign to show to what extent one was committed to one's partner.

7.15 pm

My right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) referred to freedom of choice, but is it right for the House to vote for something that we believe to be harmful to the institution of marriage, which is the very bedrock of our society?

For all the reasons I have outlined, I cannot recommend that the amendment be supported.

Amendment No. 119—

Mrs. Maddock

Will the Minister state clearly how he sees his party voting on the issue? Will there be a free vote on amendment No. 119? There have been rumours that it will not be a free vote, but, if ever there was a matter of conscience, this is it.

Mr. Streeter

Obviously, I am not coming across as I thought I was. I have already said that there is to be a free vote on the first amendment and now on this amendment. The hon. Lady should not listen to rumours.

I deal now with amendment No. 119, which concerns an amendment to the hardship bar. Under current legislation, and under the terms of clause 10 as drafted, the court, when considering an application for an order preventing divorce, can already take into account hardship other than purely financial hardship.

However, the amendment clarifies the fact that the definition of hardship in the Bill includes hardship attributable to the fact that a person has a deeply held religious belief that marriage is indissoluble. Bearing in mind the importance of this issue and the fact that it clearly raises issues of conscience, it is appropriate that the amendment is subject to a free vote. On this issue, the Government are neutral.

Personally, however, I should like to support the amendment, and shall do so. There are people with deeply held religious convictions who married in good faith, believing that till death us do part meant precisely that. The amendment does not, however, create two tiers of marriage, which I believe risks undermining rather than strengthening marriage.

In my view, it is right that "hardship" should include hardship attributable to the fact that a person has a deeply held religious belief that marriage is indissoluble, and that such a person should be able to apply to the court under the hardship provision. It will then be for the court to decide. It will be a stiff test. Although this is a free vote, I shall be voting in the same Lobby as my hon. Friend the Member for Gainsborough and Horncastle.

Dame Jill Knight

Bearing it in mind that we have a long way to go, and having listened to what has been said, particularly by my hon. Friend the Minister, who supported amendment No. 119, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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