§ Order for Second Reading read.
§ Mr. Deputy Speaker (Sir Geoffrey Lofthouse)
Before I call the Minister, I should inform the House that Madam Speaker has placed a limit of 10 minutes on speeches between 7 pm and 9 pm.
§ The Chancellor of the Duchy of Lancaster (Mr. Roger Freeman)
I beg to move, That the Bill be now read a Second time.
Let no one doubt that marriage is intended for life. The current level of divorce at about 160,000 each year in England and Wales is a matter for regret and its relatively high rate in comparison with that of other European nations is a matter of concern. The purpose of the Bill is to strengthen the institution of marriage by encouraging the process of reflection and consideration and by giving couples every opportunity to effect a reconciliation before divorce is granted. It will better protect the interests of the children of a marriage by reducing unnecessary acrimony and by ensuring that conduct is taken into account where it is relevant to the upbringing of children. In financial settlements, conduct will continue to be taken into account where it would be inequitable to disregard it.
Divorce should not be available effectively on demand. Commitment to a lifetime of marriage should be emphasised to all those who propose to enter upon it.
§ Mr. Julian Brazier (Canterbury)
I apologise for asking my right hon. Friend to give way so early in his speech. He used the word "continue" with regard to conduct in financial settlements, but surely he must acknowledge that, in almost all cases, courts currently disregard conduct. Two courts did so in a case where a wife had ousted her husband on false testimony and had assisted him in an attempt to commit suicide. The case went all the way to the Court of Appeal before even some account was taken of the conduct in it.
§ Mr. Freeman
I am grateful to my hon. Friend for raising that important issue and I know full well that he and other right hon. and hon. Members are concerned about it. However, that is a matter for the Standing Committee, and I hope that my hon. Friend will have a chance to advance his argument in the Standing Committee if the Bill receives a Second Reading. My hon. Friend will also be able to return to the subject when the Bill is on Report.
The provisions of the Family Law Bill were brought forward after wide-ranging consultation. One of the most striking aspects of the consultation is that hardly anyone has supported the present method of dissolving marriages. The overwhelming majority of people agree that the present system is not working properly. Therefore, the Government have a clear duty to bring forward legislation to address the problem.
The Bill has been the subject of careful and detailed scrutiny in another place. The Government have been able to draw on the considerable expertise on the subject 739 available in the other place and have been able to strengthen and refine the Bill's proposals in the light of suggestions. In particular, we have inserted in clause 1 a statement of the general principles underlying marriage, divorce and mediation.
At present, the ground for divorce—the reason given to the court for seeking a divorce—is the irretrievable breakdown of the marriage. That can be proved by one of five facts, three of which are fault-based: adultery, intolerable behaviour and desertion. The other two facts are two years' separation with mutual consent and five years' separation without mutual consent. Most people use the fault-based facts. Under those facts, a divorce is often granted in less than six months and before arrangements for children, finance and property are settled. Allegations of fault are often exaggerated and unsupported.
§ Mr. Andrew Rowe (Mid-Kent)
Will my right hon. Friend take it from someone who has failed to maintain his first marriage successfully that the idea that people going through divorce do not feel at fault is nonsense? Nearly everyone of whom I can think wants their marriages to succeed and if their marriages break down, they feel very much at fault. Does my right hon. Friend also accept that the idea of being asked by a solicitor to list the most unreasonable behaviour that can be dreamt up for the other spouse while he or she is asked by his or her solicitor to do the same makes the possibility of either a reconciliation or making appropriate arrangements for children very much harder to achieve?
§ Mr. Freeman
My hon. Friend has put succinctly one of the main reasons for changing the procedures and criteria for divorce. I know that my hon. Friend the Parliamentary Secretary agrees with the position put forward by my hon. Friend, and I am sure that when he winds up the debate he will refer to that crucial fact: recourse to the law and the disclosure of evidence concerning the alleged facts lead to acrimony and bitterness and, in many cases, are not in the children's interests.
Figures for 1994 from the Office of Population Censuses and Surveys show that, in a total of nearly 160,000 divorces, 26 per cent. used adultery as a reason for divorce, 45 per cent. used behaviour, 1 per cent. used desertion, 22 per cent. used two years' separation with consent and 6 per cent. used five years' separation without consent. Hence, in 72 per cent. of all cases, fault was the basis for the divorce—leading to divorce taking place in less than a year and often before arrangements are decided for children or financial matters. At present, the median period for all divorces in England and Wales is about seven months.
§ Mrs. Elizabeth Peacock (Batley and Spen)
I am listening carefully to what my right hon. Friend is saying and I read some of the things that were said in the other place. I am concerned that we may be sending out the message that it is easy to marry and plan a divorce in 12 months. If one signs a hire purchase agreement on the same day, one has a longer commitment to that financial agreement than to the marriage. That worries many people and perhaps my right hon. Friend could comment on that.
§ Mr. Freeman
My hon. Friend, of course, appreciates that the present law prohibits divorce taking place within one year of marriage. Under the Bill, that period would 740 be extended by a further 12 months. I hope that my hon. Friend will bear with me as I develop my argument; it is important to lay out the arguments carefully for the benefit of the House, and I shall be dealing with some of them.
I hope that hon. Members will listen to the reasons that we shall give for introducing the Bill. I appreciate that we should not send signals to the community—particularly to young people—that encourage the attitude that divorce is easily reversible or that marriage or divorce are available on demand. However, it is important to understand the underlying reasons why my right hon. Friend the Lord Chancellor brought the Bill before the House of Lords, and my hon. Friend the Parliamentary Secretary and I shall enlarge upon them today.
§ Mr. Freeman
If my hon. Friend will permit me, I shall make a little progress and then give way. I will not depart from the point to which I think that my hon. Friend wishes to refer.
Statistics published by OPCS show that the incidence of decrees based on allegations of behaviour to establish irretrievable breakdown has doubled from 21 per cent. in 1973 to 45 per cent. in 1994, whereas the use of five years' separation has dropped from 16 per cent. in 1973 to 6 per cent. in 1994. I shall outline the proposals and then give way to my hon. Friends.
Under the proposed new system, which is intended to come into effect about two years after Royal Assent, the ground for divorce will remain the irretrievable breakdown of the marriage. That will be established by the passage of a fixed period. It should substantially reduce the acrimony, hostility and legal costs associated with the current system. The Government want to ensure that there is an adequate period to test whether the marriage has genuinely broken down and to enable the couple to consider whether the marriage can be saved.
Marriage involves mutual legal obligations of support and sharing that other relationships do not. Under the new system, during the minimum period for reflection and consideration before divorce can be granted, the couple will have to consider those obligations and decide arrangements for children, finance and property before the divorce can be granted. The couple can take longer than the minimum period to decide arrangements if necessary. Professional mediation services will assist in such matters. In some circumstances, the court can refuse to grant a divorce after the minimum period if one party can show hardship, either financial or non-financial.
§ Mr. Bottomley
I refer my right hon. Friend to the comparison with hire purchase agreements. Is my right hon. Friend saying that, whereas almost three quarters of marriages break up in less than a year at present, no marriages would be ended in less than a year under the legislation? Has he seen the evidence gathered in Canada—where people must wait for at least one year for a divorce—which shows that up to one fifth of divorce petitions are withdrawn? In New Zealand, where the problems of the first marriage are tidied before a second marriage is possible, the success rate of second marriages is far higher than it was. Should we not view the legislation as a pro-marriage measure?
§ Mr. Freeman
I am grateful for my hon. Friend's observations. He reminds the House that, under the present procedure, people can be divorced in a few months. Under the Bill as it is presently drafted—even with a 12-month minimum period for reflection and consideration—no divorce can take place in less than a year. Therefore, by definition, the median length of time between marriage breakdown and divorce will rise.
I am not familiar with the Canadian experience—perhaps my hon. Friend the Parliamentary Secretary will refer to it in due course. However, evidence gathered by Bristol university revealed that 53 per cent. of men and 28 per cent. of women regret having entered into divorce, which can become largely irreversible once one relies on fault under the present system and begins the process of legal argument.
§ Mr. Anthony Coombs (Wyre Forest)
I recognise that the Government wish to remove the rancour surrounding divorce and that the Bill may have the effect of reducing the number of quickie divorces based on fault. However, it is important to remember that our divorce rate is 41 per cent. Should we not do all that we can to minimise that figure? The effect of no-fault divorce in the United States in those states that introduced the measure more than four years ago—from about 1990—was a 24 per cent. increase in the number of divorces. While I understand the Government's intention in trying to promote the institution of marriage via their proposals, will they not have the opposite effect?
§ Mr. Freeman
I believe that the evidence points in the other direction—therefore, the answer must be no. The Bill provides a mandatory 12-month minimum period for reflection and consideration. I believe—speaking personally—that that will lead to a downward pressure on the number of divorces. We are providing a cooling-off period during which individuals can reflect on the consequences of divorce, both on their children and financially. I hope that many will reconsider their decision.
§ Mr. David Alton (Liverpool, Mossley Hill)
Notwithstanding the good faith of the Minister, and of the Lord Chancellor, does he accept that there is genuine concern on both sides of the House that, as was the result of other legislation enacted in the past 20 years, it will lead to more rather than fewer divorces? Perhaps the most devastating change in the social landscape in the past 20 years is the number of children who are caught up in divorce, not least the 750,000 children who no longer have access to their fathers—something that results in all sorts of adverse consequences, of which the Minister is well aware. Would not the Bill be better if it contained more about reconciliation rather than mediation, more about preparation for marriage and about the impact that policies have on family life? In other words, would we not do more for family life if we helped families to stay together rather than making it easier for them to break up?
§ Mr. Freeman
The reconciliation part of the process—to which I shall refer in detail in a moment—is as important as the mediation proposals, if not more so. I agree entirely with the hon. Gentleman: advice before and during marriage when there may be a breakdown is very 742 important. It must be funded and the normal sources of marriage guidance information should be reviewed to ensure that they are effective.
§ Mr. Freeman
Before I give way again, I shall confirm for the convenience of the House that the Government recognise that the Bill involves important issues of confidence. Therefore, we intend that there should be free votes on clauses 5 and 7—which I hope that hon. Members will accept encompass most of the key points on fault and on the length of period for reflection and consideration. I am well aware that there are free votes and free votes. The votes that I describe are genuine free votes, in which my right hon. and hon. Friends on the Front Bench are included.
It is my intention, and that of my hon. Friend the Parliamentary Secretary, to facilitate the drafting of amendments after Second Reading to ensure that they are accurate and, if passed, can be incorporated in the Bill. Effective from tomorrow, I offer the facilities of parliamentary draftsmen to all hon. Members who may wish to draft appropriate amendments to those two broad clauses in order to promote an informed debate.
§ Mr. Patrick Nicholls (Teignbridge)
Initially, I had considerable misgivings about the way in which the matter was handled politically. For 12 years, I dealt with virtually nothing but divorce law in practice and I learnt that the fault structure does not provide time for reflection: it provides an instant divorce, which exacerbates the opportunity to bring people together—if only to produce a good funeral for their marriage.
If there is a defect in the Bill—I appreciate my right hon. Friend's comments—it is that it should emphasise more strongly the need for time for reflection and consideration so that people realise that it is harder to get out of marriage than they may have thought. They can use that time constructively. We should consider extending the one-year period to 18 months or two years. However, the idea that a moral audit can take place which will satisfy the concept of fault is not borne out by the experiences of divorce practitioners like me.
§ Mr. Freeman
I thank my hon. Friend for those comments. Consideration of the Bill in Committee should reflect genuinely the divisions of opinion in the House: it should not be a narrow reflection of those views that might nominally be regarded as appropriate. My hon. Friend seems to be talking himself on to the Standing Committee.
§ Dame Elaine Kellett-Bowman (Lancaster)
Will my right hon. Friend assure the House that the genuinely free vote will apply to parliamentary private secretaries also? They should not be obliged to vote: they should be allowed to absent themselves and not vote. Why can we not have a free vote on the whole Bill?
§ Mr. Freeman
The answer to my hon. Friend's specific question is that it will be a genuine free vote. All Ministers and parliamentary private secretaries, including my own, will have a genuinely free vote. We are considering important matters of conscience. My hon. Friend asked why is it a Government Bill. The Lord 743 Chancellor, on behalf of the Government, has introduced a Government Bill that needs to be supported by a majority in the House, and to receive proper consideration on the Floor of the House, in Standing Committee and on Report. Perhaps I should remind the House that, in certain circumstances, even issues that are discussed in a Committee of the whole House can be considered again on Report.
§ Mr. Freeman
I shall give way first to my hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight), then to my right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) and then to my hon. Friend the Member for Shoreham (Mr. Stephen).
§ Dame Jill Knight (Birmingham, Edgbaston)
I am not sure whether he finished the point that he was making, but my right hon. Friend has laid it clearly on the line that the Bill abolishes the concept of fault. Some Members are in favour of that and some are not. Others are somewhat puzzled by its reference to conduct. Surely bad conduct is a fault. I do not understand how no fault will be judged, yet conduct will be judged. Will my right hon. Friend address that point?
§ Mr. Freeman
I speak as a non-lawyer, but in the past, we have spoken about fault in a rather narrow, legalistic sense. Fault has been a reason for bringing a divorce action. Conduct is extremely important, however, and my hon. Friend the Member for Canterbury (Mr. Brazier), who raised the matter in an earlier intervention, was alluding to what he believes to be the need to strengthen schedule 8. That needs to be argued through, but I believe that the Standing Committee is the right place to do that.
The conduct of a partner is extremely important in matters concerning children and the division of financial assets. I hope that my hon. Friend will not get caught up in too narrow a legalistic argument. There are faults on both sides in marriages that either continue or end in divorce. The aim of the Bill is to save marriages, not to create more divorces. Its main thrust is to create a period for reconciliation through advice and mediation on the division of assets, and that is one reason why we hope that it will reduce the number of divorces.
§ Mr. John Patten (Oxford, West and Abingdon)
I warmly congratulate my right hon. Friend on his speech thus far. I am sure that he is dying to get to the end of it, so I shall try not to delay him too long. As I am sure that he will appreciate, I do not necessarily agree with everything that he said; however, I congratulate him warmly on his splendid new constitutional convention of the real free vote as opposed to the free vote. We constitutionalists have longed to see that drawn out of the closet.
Will my right hon. Friend wind his mind back to the point that he was making before this serial intervention? He said that, in his personal view, he judged that the Bill would bring about a reduction, and not an increase, in the number of divorces. I am sure that he recognises that he is speaking not in a personal context, but as a Government Minister. What is the Government's prediction and what is his firm policy view as to whether the Bill will reduce or increase the number of divorces?
§ Mr. Freeman
I am sorry if I confused my right hon. Friend. As the Bill provides for a minimum period for reflection and consideration of 12, 18 or 24 months—at present, it contains a provision of 12 months as agreed in the other place—there will be a lengthening in the period before divorces can occur. That must be mathematically correct because, at present, it is possible to obtain a divorce after a matter of a few months. As to supporting the argument about the total number of divorces, it is probably more accurate to reflect that as a proportion of the number of marriages rather than as an absolute number, but however we define it, I understand that my right hon. Friend wants some evidence or argument in detail. It is a central point, and the Parliamentary Secretary is planning to deal with it when he replies to the debate.
§ Mr. Michael Stephen (Shoreham)
Is it not important that a clear signal goes out from Parliament that those who faithfully abide by their marriage vows will not be treated in exactly the same way as people who deliberately violate their marriage vows? I agree that it would be inappropriate to bring in concepts of fault at the dissolution stage, or the stage at which custody of the children is considered; however, the concept of fault or conduct should be an important factor for the court to consider when dividing property between a husband and wife.
§ Mr. Freeman
That is clearly understood. The matter has already been referred to in interventions. I assure my hon. Friend that the courts already have the power to take into account conduct and the implications of conduct. The point has been made that that power is not discharged as efficiently and effectively as some hon. Members would like. That is best dealt with in Standing Committee rather than on the Floor of the House.
I shall endeavour to make rapid progress, as it is important to lay some facts before the House and I am aware that other right hon. and hon. Members wish to speak.
Let me turn to the proposed new separation and divorce procedures. It is obviously of critical importance that marriages should not be dissolved if they can be saved. The mechanism for testing breakdown must be clear and unambiguous. The Government's proposal in the Bill is, therefore, that the irretrievable breakdown of the marriage should be established solely by the passage of a fixed period of time. It will be a period for reflection, and for consideration of whether the marriage can be saved, and it will provide an opportunity to effect a reconciliation or to think about what arrangements can be made for the future should divorce be inevitable.
We recognise that whether allegations of fault should have any place in the divorce process is a matter of conscience for some hon. Members. As I have already said, the Government intend to allow a free vote on that issue.
The period of time for reflection and consideration would start by the lodging of a neutral statement that one or both parties believed that the marriage had broken down. Such a statement would not contain allegations, nor would it state that the marriage had broken down irretrievably. One of the concerns that emerged most strongly in debates in another place was the need to ensure 745 that proper emphasis was placed on reconciliation through the divorce process. The Bill has been strengthened in that area by ensuring that the possibility of reconciliation is always before the parties. As it now stands, the Bill states that one of the purposes of the period is to provide an opportunity to effect a reconciliation.
It is important to make it clear that the Bill will allow the door to reconciliation to remain open throughout the divorce process. Couples will be able to attempt reconciliation at any time during the period without prejudicing their position and may also suspend the period if they want longer to attempt a reconciliation.
Between 20,000 and 30,000 couples each year start divorce proceedings, but do not proceed to divorce. I believe that the number proceeding to divorce is likely to decrease under the new system. At the information meeting, parties will be told about marriage counselling and other support services, about the importance to be attached to the welfare, wishes and feelings of children and about how they may acquire a better understanding of the ways in which children can be helped to cope with the breakdown of a marriage. They will be told about the financial issues that may arise on divorce or separation and the services that are available to help, such as mediation and the availability to each of them of independent legal advice about the divorce and separation process. Couples will be much better placed than at present to understand what divorce is likely to entail. As a result, I expect more couples to decide to try to keep their marriage going. I have already dealt with the Bristol university study on those matters.
The Lord Chancellor has taken over the funding of marriage support services so that there can be the best possible integration of the policy on supporting marriage with that on divorce law. The Government have set up an interdepartmental official working party on marriage to see how best use can be made of the resources available to support those who are considering marriage and those whose marriage is in difficulty.
Research since the last major reform of the ground for divorce has shown us how important it is to try to reduce conflict in separation and divorce cases, to reduce at least some of the damage caused to children. It is clear that the children who do best after divorce are those whose parents reach amicable arrangements for the future of their children and co-operate in the upbringing of their children even though living separately. In those important respects—the improvement of communication and the reduction of conflict—mediation has been shown to be most effective.
Mediation has enormous potential in appropriate cases, so part III provides for the Legal Aid Act 1988 to be amended, to allow parties who are eligible to apply for state funding for the use of mediation. Any mediation will not become compulsory.
Legal advice will be available in support of mediation for those who need it and will be state funded for those who are eligible. When couples mediate, they negotiate together with the help of a neutral mediator—in other words, they represent themselves in negotiations. They should not need a lawyer to represent them in those same negotiations. They may, however, need legal advice and assistance in support of mediation and, as I said earlier, that will continue to be available when needed.
746 It is important that a couple should face up to the practical consequences, including the financial consequences, of divorce before they end their marriage. By confronting what life will be like after divorce, they may realise that it is not what they want. Clause 9 requires the couple to have decided their financial arrangements before they can divorce. The court is currently under a duty to take the conduct of the parties into account when considering financial provision on divorce, where it would be inequitable to disregard it.
The most significant change to the present law is that financial provision and property adjustment orders can be made before the separation or divorce order is made but cannot take effect before that time. The only circumstances in which such orders can take effect before divorce or separation is where the circumstances are exceptional and it would be just and reasonable for the orders to do so. It is important that the orders are capable of being made before the divorce order or separation order, so that the couple are compelled to focus on the consequences that will result, if they go ahead and get divorced.
§ Mr. John Redwood (Wokingham)
What would my right hon. Friend say to a man or woman who feels that he or she has done nothing wrong, and would like their marriage to continue for their own sake or that of their children, but whose spouse has decided to petition and would—as I understand the Bill—be granted a divorce 12 months later? Is that not a grave change from current law, whereby the spouse has to wait much longer, separated, before he or she can get a divorce?
§ Mr. Freeman
I understand the strength of feeling of people who—on moral, religious, spiritual grounds—feel that they cannot become party to a divorce and for whom, at present, divorce might have to wait five years. When we debate clause 7 on the Floor of the House, my right hon. Friend may advance an amendment to protect those persons who feel strongly that the minimum period of reflection and consideration should be longer. Without over-emphasising and placing too much weight on clause 10, which contains the hardship bar, I draw my right hon. Friend's attention to the fact that an application to extend the minimum period depends on not only financial but non-financial hardship. That point will be debated, argued and perhaps further amended in Committee.
§ Mr. Edward Leigh (Gainsborough and Horncastle)
My right hon. Friend knows that a large number of us are opposed in principle to the Bill, but while we can exercise our conscience, some hon. Members on the payroll might find that more difficult. Can my right hon. Friend give the assurance that, in addition to the genuine free votes on clauses 5 and 7, he will consider free votes on the hardship bar in clause 10 and on court orders, which are dealt with in clause 14 and schedule 2, on the Floor of the House? Those provisions are also germane and central to the Bill, and it is important that those of us who can exercise our consciences look after the interests of those hon. Members who cannot.
§ Mr. Freeman
My hon. Friend will have read the committal and business motions. I am prepared to reconsider those issues as grounds of conscience, but I am 747 not persuaded at present. If my hon. Friend can persuade me, we can return to those issues on Report, on the Floor of the House.
§ Mr. Brazier
I am grateful to my right hon. Friend for indulging me a second time. My right hon. Friend referred to property settlements. As someone who supports the Second Reading, I put it to my right hon. Friend that unless we make the one-year bar—some of us would like the period to be a little longer—absolute on final orders on property, without any just and reasonable let-out of the sort that my right hon. Friend described, and through which our liberal-minded judges could run a coach and horses, we would find that although the divorce on paper would be held for a year, de facto the family home could still be broken up in a matter of weeks. The divorce would take effect in those cases that the court ruled to be exceptional—which, as asylum seekers and everyone else finds, can be case after case after case in far too many instances. We must tighten up the Bill and remove the exceptions.
§ Mr. Freeman
I understand my hon. Friend's strength of feeling, as he represents the Conservative family forum. There may be cases in which one party becomes terminally ill, disabled or desperately needs somewhere to live, to facilitate seeing his or her children. I give my hon. Friend an undertaking that that matter will in Committee receive the attention of my hon. Friend the Parliamentary Secretary, who is well aware of the amendment that my hon. Friend the Member for Canterbury has in mind—he too seems to be talking himself on to the Standing Committee.
§ Mr. Bill Michie (Sheffield, Heeley)
Concern is felt by many people, including by couples who go for mediation—which I certainly encourage, for the reasons that the right hon. Gentleman outlined—that they may be disfranchised. They can take legal advice for mediation, but that may jeopardise taking a second opinion because mediation is not to do with negotiation but with trying to work things out. Either spouse might want a second opinion from a solicitor or lawyer. Is the right hon. Gentleman saying that legal aid will not be available in that respect?
§ Mr. Freeman
My understanding is that mediation would not jeopardise the ability to seek a second opinion. My hon. Friend the Parliamentary Secretary, who is more qualified than I in such matters, will clarify that point if necessary.
§ Sir Jim Lester (Broxtowe)
Does my right hon. Friend agree that all the evidence is that children are the principal sufferers in a divorce, whether it is amicable or contested? The majority of divorces are petitioned because of fault in the short term. Those of us who have served constituencies for a long time know that the most pressing reason for change is the effect that divorce has on children. Everything that my right hon. Friend has suggested so far will improve the situation, not destroy it.
§ Mr. Freeman
I am grateful to my hon. Friend for his observation. The interests of the children in a divorce must be paramount. I am sure that the House will support anything that can be done to protect their interests and to avoid wounds that can last a lifetime.
748 I refer next to the minimum time for reflection and consideration, and to pension splitting. Some individuals who have contributed to discussion of the Government's proposals have suggested that the longer the period, the more chance there is that there will be a reconciliation. The Bill sets the minimum period at one year. On the one hand, the period should be sufficiently long to give parties a realistic amount of time in which to reflect on whether the marriage could be saved, but also a realistic time within which the practical questions about children, home and finances can be resolved. On the other hand, the period is meant to be an active period of reflection and consideration. If it is too long, the parties could postpone active consideration of their situation—thereby making it more likely that their marriage breakdown becomes irretrievable, as the longer the time the more likely it is that attitudes will become hardened. Alternatively, they simply walk away from the marriage that has broken down into a new relationship, without any of the practical questions being resolved.
The majority of responses to the Law Commission and the Government's consultations favoured a period of 12 months. In particular, that period was regarded by the main children's organisations as being long enough, and they recently repeated that advice. An extremely important factor in deciding the appropriate length of time is that when children are involved, uncertainty is bad for them. It cannot be stressed too strongly that 12 months is a long time in the life of a young child living with uncertainty. Too long a period would prolong the agony not only for the adults, but for the children. Children are after all the innocent victims of marriage breakdown. It is vital that the divorce law should do all that it can to minimise the damaging effect of divorce on children. Recognising that, it is vital that, so far as possible, children emerge after the divorce having a good relationship with both parents.
There have been suggestions that if the minimum period for reflection and consideration was lengthened to say 18 or 24 months, the period should be capable of being abridged in exceptional circumstances. The Government believe that there should be an absolute minimum period to demonstrate irretrievable breakdown. It is the Government's view that there should be no abridgement below 12 months. Provisions elsewhere in the Bill are adequate to deal separately with circumstances of domestic violence.
I accept that this issue is controversial and a matter of conscience and I repeat my offer to meet any right hon. or hon. Member to begin the process of drafting amendments.
§ Mr. Anthony Coombs
My right hon. Friend is right that this is an area of controversy. Many people might regard the fact that children thrive better after an amicable divorce as a myth that is perpetrated by people who want a divorce. Is not it true that recent research shows that even those children who live in unhappy marriages thrive better in the long run—because they have both parents at home—than those who are subject to divorce?
§ Mr. Freeman
I understand the strength of feeling and that is precisely why we are determined to have genuinely free votes, for Ministers and Back Benchers alike. I look forward to a serious debate and my hon. Friend's contribution to it.
§ Mrs. Peacock
To add to that point, there is great concern also that when divorce takes place children are left usually with their mother and sometimes another relationship develops. The father is not present and, on occasions, children are ill-treated by the mother's new partner because they are not his children. There are statistics that prove that point and we must not say that children are so much better off once they are removed from a family through divorce.
§ Mr. Freeman
My hon. Friend is right that one cannot be dogmatic about this issue. There is evidence on both sides and it is a question of reaching a balance, as in most of our legislation, on what is in the interests of children overall.
We have modified the provisions of the current hardship bar contained in clause 10. As the Bill now stands, if the court is satisfied, on the application of one party, that the legal dissolution of the marriage would cause substantial hardship to that party or to a child of the family, for financial or non-financial reasons, and that it would be wrong in all the circumstances, including the conduct of the parties and the interests of any child of the family, for the marriage to be dissolved, the court may order that the marriage not be dissolved. That will apply to all cases, not just to the 6 per cent. of divorces that proceed on the basis of five years' separation, as at present. There have been criticisms that, because of the way in which the hardship bar operates under the present law, it is ineffective. The changes we have made demonstrate the Government's commitment to making it an effective protection against substantial hardship caused by the divorce itself, where such protection is needed.
§ Mr. Alton
May I draw attention to a case in Liverpool two years ago, in which a constituent of mine, when she said that she wanted her marriage to continue, was told by a judge that she was living in mediaeval times if she dared to suggest that she was being divorced against her will? Will the Minister assure the House that this new provision will be transmitted to judges in such a way that they will realise that when people involved in divorces say that they do not wish to be divorced against their will, their feelings will be taken into account?
§ Mr. Freeman
On behalf of the Lord Chancellor, I can give that assurance. It is not only important to get the legislation right, but it is important to communicate the intentions of Parliament to the judiciary in a fair and impartial way. I take the hon. Gentleman's point.
Pensions can be an important element in the totality of assets, financial and otherwise, that form the basis for an equitable financial settlement between divorcing couples. The Government have already taken a number of steps to ensure that pensions are fully recognised in such settlements.
In the Pensions Act 1995, we clarified the courts' existing duty to take pensions into account in financial settlements, which had not always been recognised in practice. The courts already have the power to order maintenance payments to the ex-spouse, payable from the former partner's income including pensions. But the Pensions Act 1995 extended that power to allow the courts to order a pension scheme to pay the relevant sum from the scheme member's pension, including any lump sums payable, directly to the ex-spouse, when the pension 750 comes into payment. I take the opportunity here to clear up any confusion on this matter—the courts will not be constrained to order a 50:50 allocation: they will have the flexibility to order whatever allocation or none, as seems appropriate. Those provisions will take effect from July this year.
During the passage of the Bill through the other place, some of the noble Lords argued that the courts should be given the power to split the pension fund itself at the time of divorce—again, not necessarily 50:50. We have always recognised the force of the arguments in favour of pension splitting, especially the contribution towards achieving clean-break settlements.
However, the technical complexities of pension splitting should not be underestimated. Let me mention just two. An occupational pension is deferred pay, and it is the relationship between employer and employee that governs the pension scheme and the related tax reliefs and benefits. If the pension is split, the former wife would effectively become a pension scheme member on an entirely different basis from the other scheme members. The employer's obligations to this new member would have to be defined, making sure that the scheme's tax-approved and, in some cases, contracted-out status was not placed in jeopardy. Similarly, it would be necessary to define the obligations of the pension scheme's trustees and managers and what rights the ex-wife might acquire, including benefits for her dependants.
We must also have regard to the effects on public spending of any changes. It is vital to ensure that former spouses—usually wives—are not able immediately to withdraw their portion of the pensions of members of unfunded public service schemes. Otherwise, that could mean immediate public expenditure costs of up to £500 million a year in the early years. The position of the state earnings-related pension scheme and its interaction with guaranteed minimum pensions must also be safeguarded.
Those are just two sets of complications. There are many others. We have already identified some 30 Acts of Parliament that would need changing. That is why the Government resisted the Opposition's amendment in the other place which sought to achieve immediate pension splitting. Indeed, the scale of the complexity is demonstrated by the fact that the Opposition's amendment, drafted with the help of some of the best minds in the pensions industry, is still defective and insufficient. It fails to give the wide powers necessary to make pension splitting a reality. Indeed, it would be quite unreasonable to take such wide powers before fully working through how they would be used.
We believe that the best way forward is to introduce proposals that are of genuine benefit to individuals, that are workable for pension scheme administrators, and that are affordable for taxpayers. Given the scale of the task, and the importance of getting it right, it is simply not feasible to introduce pension splitting in the Bill. No sensible person would want to foist an unworkable set of provisions on to courts and pension schemes.
The Government accept, however, that pension splitting is right in principle. We will publish a Green Paper in the summer to consult about how it can be achieved, and we will introduce legislation at the earliest opportunity thereafter to put that principle into practice. That legislation will replace or amend the Opposition's 751 amendment, which does not fully achieve what we assume is the intention and which could otherwise have undesirable and unintended consequences, given its acknowledged incompleteness. As a measure of our acceptance of the principle we will not be seeking to overturn clause 15.
§ Mr. John Butterfill (Bournemouth, West)
I am reassured by what my right hon. Friend has had to say, but what would be the likely time scale of any new legislation? Much work has been done behind the scenes by those who are concerned about this matter, including the National Association of Pension Funds, the Association of Consulting Actuaries and others. It therefore seems likely that a Bill could be brought forward quite quickly if there were a quick consultation period.
§ Mr. Freeman
It will be for my right hon. Friend the Secretary of State for Social Security to commence the process. My hon. Friend the Parliamentary Secretary and I have discussed this matter with Ministers in the Department of Social Security and we will get on with it. The commitment to publish a Green Paper in the summer—probably July—is a firm commitment. I cannot give a commitment as to when a Bill will be introduced, but we agree with the principle and we are leaving the clause in the Bill. We shall issue a Green Paper and we will legislate as quickly as possible thereafter.
§ Sir Michael Neubert (Romford)
Does my right hon. Friend agree that—on the question of pension splitting—not the least consideration is to come up with a scheme that will provide a deterrent to divorce, not an inducement?
§ Mr. Freeman
My hon. Friend touches on an important point—the tax consequences for those who are not married as compared with those who are. That is a matter for my right hon. and learned Friend the Chancellor of the Exchequer. I assure my hon. Friend that he and I are both aware of the issue. I shall draw to my right hon. and learned Friend's attention the comments of my hon. Friend—and I dare say of others—in this regard.
§ Dr. Robert Spink (Castle Point)
Should people considering lodging a divorce petition and wanting to take advantage of the new pension splitting arrangements delay until after 1 July?
§ Mr. Freeman
The earmarking provisions come into effect this July—I refer to earmarking when the pension is paid. That does not necessarily, however, protect the spouses of those who have died. Sometimes a pension may not be in payment so as to be able to be earmarked or split. I can assure my hon. Friend, though, that the provisions will come into effect in July; and that legal advice should be sought from those competent to provide it, not from a Minister unversed in the law of pensions. For further information, my hon. Friend might like to write to me or to the Parliamentary Secretary, and we will endeavour to give him further detailed advice.
§ Mr. Donald Anderson (Swansea, East)
Given the complexities of the issue the Government should obviously consult further, but am I right in thinking that implementation may not be delayed much in any event? 752 The mediation element in the Bill will take two years to implement, so the processes of consultation in respect of pension splitting may have been concluded by then, and can thus be implemented at the same time.
§ Mr. Freeman
I am grateful to the hon. Gentleman for reminding the House of the timetable in which the measure will become effective. It is important not to send the wrong signal about pension splitting. The argument has to do with protecting the legitimate rights of spouses who get divorced but do not enjoy the benefits of a pension scheme. At the same time, we want to ensure that we have thought the subject through—both the policy and the practical implications, direct and indirect.
§ Sir Peter Hordern (Horsham)
I am glad that the Government accept the principle of pension splitting, but it would seem from what my right hon. Friend has said, and from what some of us already know, that interfering with pension funds and occupational schemes is an immensely complex business. Indeed, my right hon. Friend has mentioned several Acts of Parliament referring to the issue.
Is it not possible, even at this late stage, to consider a scheme that splits the entitlement to a pension between the beneficiary and the original wife or husband, instead of trying to tamper with the pension scheme itself? If we do not do that, I fear that these problems will be resolved in the courts for years to come, so complex are they.
§ Mr. Freeman
I am grateful to my right hon. Friend. The courts already have the power to take into account the accrued rights of a pension scheme in the allocation of assets. This July, a further provision comes into effect: the allocation of a pension when it is paid—the so-called earmarking provision. I am agreeing on behalf of the Government to a third stage, which is a logical development: splitting the pension assets themselves. That gives rise to fundamental and difficult problems, and we shall have to consult thoroughly with the help of the National Association of Pension Funds.
I apologise for going on at length. I turn, finally, to part IV, which deals with domestic violence and the occupation of the family home. This part of the Bill substantially reintroduces the provisions of the Family Homes and Domestic Violence Bill, which was before the House in the last Session. Controversial points arose on that Bill at a late stage, and unfortunately the timetable did not allow it to complete its passage in that Session. A number of amendments have been made to the contents of the earlier Bill to clarify the principle that the courts must take into account the difference between marriage and cohabitation when settling occupation orders.
We shall introduce at the conclusion this evening a motion for committal to the Floor of the House of the clauses relevant to free votes.
As the Lord Chancellor has stated, and as I am sure all right hon. and hon. Members are well aware, this is an important Bill that deals with areas fundamental to people's lives. It will lengthen the median period in which a divorce order can be made. It gives couples both the information and the time that they need to consider whether they can effect a reconciliation; and it makes them focus on the consequences of divorce, regarding financial matters and, more importantly, children, before they take this step. 753 Ministers have always said that we should be happy to listen to suggestions for the improvement of the Bill's proposals, consistent with the principles that we have set out. I commend the Bill to the House.
§ Mr. Paul Boateng (Brent, South)
Families are the natural, fundamental units of our society, and safe, secure marriages are the most certain buttress of those families. We shall be concerned in the course of our deliberations to ensure that nothing that we do here adds to the strain and stress already manifest around the institution of the family.
The history of the House legislating in the area of family law has not been altogether happy. In 1969, we stated as a House that the objective of what is now the law wasto buttress rather than undermine, the stability of marriage, but when a marriage had irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness, and the minimum bitterness, distress and humiliation".
§ Dame Elaine Kellett-Bowman
With his knowledge of history, the hon. Gentleman may recall that it is almost 150 years since a Government introduced a Bill on divorce. The Leo Abse Bill was a private Bill taken through with Government assistance, but it is not usual for a Government to bring in such legislation.
§ Mr. Boateng
The hon. Lady makes an important point. It is because this is a Government Bill that we have a special responsibility to get it right, and we shall do so together for as long as it takes in the weeks and months ahead.
Since the Divorce Reform Act 1969, the incidence of divorce has escalated, with the consequential increase in bitterness and alienation on the part of the parties to it. All too often, the children are forgotten during the battles fought out in divorce proceedings. Moreover, the House Library estimates that the consequences of divorce cost the country about £5 billion per year.
The impact of the current law on marriage can be clearly seen in the statistics. Men and women are marrying later, and fewer of them are marrying. More and more people are divorcing younger and younger and after ever shorter marriages. In 1951, 10 per cent. of marriages had ended in divorce after 25 years. By contrast, 10 per cent. of couples who married in 1971 were divorced by their sixth wedding anniversary and 10 per cent. of those who married in 1981 had divorced within four and a half years. It is a problem with immense human consequences.
Labour Members will be guided by the following criteria: how we can best support marriage and family life, how we can best encourage shared parental responsibility and how we can best protect vulnerable family members. Each part of the legislation must be judged against those criteria.
We welcome the fact that the Government, in sponsoring the Bill, have recognised their responsibility to ensure that there will be free votes on those parts of the Bill which are peculiarly matters of conscience. Other matters, however, are equally important. I very much hope that there will be a prevailing spirit on both sides of the House that enables us 754 to approach them in a manner that is free from partisan considerations. Partisan considerations should not apply because every hon. Member and every Government—present or future—will have to live with the consequences of the legislation that we make. We must approach our consideration of the Bill with that thought very much in mind.
At the heart of the Government's proposals is the notion that the family's interests are better protected by mediation than by the adversarial approach that is all too often associated with lawyers and with the current law. The Lord Chancellor has referred to that aspect on a number of occasions, and the Chancellor of the Duchy of Lancaster referred to it in introducing the Bill. That proposition must be tested with great care. While mediation undoubtedly has a role to play, and I welcome it, we must ensure that an infrastructure is in place for it and that it is undertaken by properly qualified people. There are gaps in the Bill in relation to such provision.
In appropriate cases, there is a role for mediation, but it is folly to believe that it is primarily concerned with justice and equity, because it is not. Mediation is about arriving at a settlement with a minimum of conflict, whereas conflict is sometimes necessary to achieve justice and equity. During our deliberations on the Floor of the House and in Committee, we must ensure that we do not propose a two-tier divorce system which says, in effect, "If you can afford a lawyer, you will receive justice and equity; if you cannot afford a lawyer, it will be the mediators for you." That cannot be right, and we must ensure that it is not a consequence of the Bill.
The matter does not end there, because there is another confusion at the heart of the Bill, which the Lords were beginning to tease out so as to remedy it. The confusion arises from the notion that mediation and reconciliation are somehow interchangeable; they are not. Mediators tell us that they are not concerned to effect reconciliation or to save those marriages which can be saved. They have another interest, which in some senses may be opposed to the achievement of reconciliation between the parties. Their interest is to achieve the speediest possible resolution of outstanding conflicts about the disposal of property, the children's future and parental responsibility.
Reconciliation is a very different matter. The Bill says much about mediation, but much less about reconciliation. The Chancellor of the Duchy of Lancaster, in his opening remarks, did not allay my concerns on that score.
§ Mr. Boateng
There is no point in approaching the issue on the basis that there would necessarily be greater attempts at reconciliation if one had 18 or 24 months to wait as opposed to 12 months. That would be a mistake. That is not to say that, in Committee, we should not try to ensure that some time is designated in which reconciliation is the focus and to discover where the link can be made between that opportunity—whether it is through meetings with marriage guidance counsellors or in some other way—and the information meeting. It is an illusion to suppose that at the information meeting a magic wand can be waved that will direct people in the "right direction" of mediators, lawyers and people concerned with reconciliation, because it will not happen.
755 In Committee, we must examine in much more detail what form the information sessions or meetings will take and what opportunities there will be for people to go from information meetings into a process that is primarily about reconciliation rather than mediation. We shall table amendments on that issue in Committee.
The Government also need to deal with the issue of infrastructure—I very much hope that the Parliamentary Secretary will deal with it at the end of this debate—and the related issue of resources. The Chancellor mentioned that it would be necessary to make resources available for reconciliation. I do not know what thought has been given during the preparation of the Bill to the exact scale of resources that will be necessary. It has been said—the Lord Chancellor's Department has gone on at some length about it—that the Bill is a cost-neutral measure, but that is impossible. As currently constituted, the measure cannot be cost neutral. If it is intended, in appropriate cases, that there should not be a reduction of access to legal advice, assistance and representation, that it will continue to be available under the legal aid scheme and that there will be access to mediation, reconciliation, marriage guidance and counselling, where will the money come from? How much will it cost?
§ Mr. Donald Anderson
Does my hon. Friend agree that it is not only a question of resources, however important those are, but of people? It is unlikely that an army of people will emerge like terracotta Chinese soldiers from the ground to reconcile and to mediate. Will such people be available and can they be trained in time? Will the effort be put in to ensure that the people are available as well as the money?
§ Mr. Boateng
That is another unanswered question. The Government must publish their figures, as we have asked them to do in the past. Some costing must have been done during the preparation of this measure. If the House is to give the Bill the detailed consideration that it must have, we must know how much it will cost. If we do not know that, anything that Ministers say about the importance that they attach to reconciliation will amount to little more than weasel words and pie in the sky. As the Chancellor recognised, one cannot hope to have adequate machinery for reconciliation without resources being made available for it. We ask that the Government publish the figures, that we have an informed debate on the resource implications of the Bill and that the pretence that the Bill is cost neutral be abandoned. If cost neutrality is to be obtained by abandoning access to legal aid, I have to inform Chancellor of the Duchy of Lancaster and the Parliamentary Secretary, Lord Chancellor's Department that we shall fight them tooth and nail.
There are some cases in which mediation is simply not appropriate. That is most true in cases involving violence against women. To ask a woman who has been the victim of repeated assaults and who has been terrorised in her own home to sit down in the same room as her victimiser and oppressor and to believe that there can be a hope in hell of that resulting in adequate mediation is to live in cloud cuckoo land.
My experience of family law dates back to the very start of my career as an articled clerk—long before going to the Bar—when I acted for a marvellous woman called Erin Pizzey, who was a founder of the women's refuge movement. There is not an estate in south London around 756 which I have not been chased by a wife batterer or partner, for the entirely innocent reason that I attempted to serve an injunction on him.
I know what it is for a woman even to contemplate bringing an action to deal with a violent man. We want to ensure that women have ready access to legal aid for that purpose and that disadvantaged women generally have access to legal aid. The Bill needs to be strengthened so that people responsible for the perpetuation of violence in the home are dealt with adequately.
§ Mrs. Teresa Gorman (Billericay)
The hon. Gentleman's point is well taken but, as I understand it—I am sure that the Minister will confirm this—mediation is legally aided and not compulsory and those parties who do not want it can still obtain legal aid to consult solicitors in the usual way.
§ Mr. Boateng
Like the hon. Lady, we look forward to receiving the clearest assurances along those lines. The thrust of the Bill is to do little more than encourage people to move towards mediation. We are anxious to dispose of that element which comes perilously close to compelling the party relying on legal aid to adopt mediation rather than any other court-based remedies. There must be a free choice in that respect.
We want the scourge of domestic violence—for it is nothing less than a scourge—dealt with in the Bill. The Bill makes some welcome additions to the law in this area, but it is right to consider how it can be improved still further. On that point, we need do little more than consult those who deal daily with domestic violence and who are to be found in women's refuge movements and district courts across the country. District court judges have to deal with the nuts and bolts of family law in relation to domestic violence.
There is one point, to which we shall return in Committee, on which the Government may well need to think again. I refer to undertakings and their role in combating domestic violence. I am thinking especially of Judge Stephen Gerlis and his experience. He said that undertakingshave clear advantages—they reduce confrontation, they avoid the need for full, often lengthy hearings and findings of fact, there are no winners and losers thus mitigating feelings of resentment. Because of these effects, they are breached somewhat less than injunctions. To put it plainly—they are popular and they work.It is his view, and he is not alone, that elements of the Bill are a disincentive to undertakings. We want that examined in Committee. We also want to examine in Committee the link between the new warrant of arrest—the concept and the order—and undertakings themselves to see whether there is scope for new warrants of arrests to be attached to undertakings. These are all aspects of the law that we should approach with a view to ensuring zero tolerance of domestic violence.
The Bill will require careful scrutiny. It contains welcome elements, but its faults need to be remedied. In the area of family law, we cannot pretend that there is no such thing as culpability or that what is decided in the House and enacted in law has no bearing on the nation's approach to family and marriage or the nation's perception of family and marriage. Similarly, however, we would be deluding ourselves if we believed that it was somehow possible to reverse deep-rooted trends in our society simply by passing an Act of Parliament.
757 We cannot legislate for domestic virtue—nor, in all humility, are we as a House especially suited to do so. What we can do, however, is to send important messages about what is valued in our society. We value families—the domestic relationship and the safety and security provided for children by families—and we must make it clear that we are not prepared to see the family continually eroded. That is why, in our consideration of the Bill, we shall make a specific proposition to change the way in which we approach and monitor family law.
Inadequate attention has been given to the impact of family law on the institution of the family. Reference was made to the experience of Canada and Australia. Australia is especially interesting. In the 1970s, the Australian Parliament held a debate similar to this and similar concerns were expressed about what the move to no-fault divorce would entail. There was concern about the message that would be sent out, and about the impact on family life and the institution of marriage. It has to be said that the evidence from Australia is that there has not been an escalation of divorce as a result of the move to no-fault divorces. The research also seems to show that there is much room for good work to be done—this was found to be so in both Australia and New Zealand—through early intervention in terms of marriage guidance and counselling and that marriages can indeed be saved if there is a proper approach to education for marriage.
All too often, of necessity—it is perhaps in the nature of the Bill—our consideration of what might be done has focused on almost the last moment. What about considering what we might do at the beginning? What about considering what we might do in introducing registration for marriage? What about provision of information for those who intend to marry? Despite the increase in marriage failures, in terms of numbers and earliness, the evidence is that most people still want to marry. Most people continue to share the fantasy of what a perfect marriage might be, but all too often the fantasies with which we surround marriage cause the failure of marriages. We have an ideal notion of what marriage might be, but unfortunately, when that ideal is confronted with the difficulties and challenges of sustaining a relationship, it is unable to endure.
§ Dame Elaine Kellett-Bowman
I have been blessed with two happy marriages. Would the hon. Gentleman agree, however, that even the happiest marriages include difficult periods? Surely it is far better to make divorce more difficult so that couples have to run through those difficult stages.
§ Mr. Boateng
We must ensure that people enter into marriage with something approaching a realistic expectation of what is involved. We must also ensure that when the stresses and strains of domestic life begin to emerge there is somewhere for the people concerned to confront those stresses and strains. There should be help available to show them a way through. That is a responsibility that the House must recognise.
The experience of Australia and Canada has shown that if no-fault divorce is to be given a chance of working and not contributing towards deterioration of the fabric of society, it must be introduced within the context of greater 758 emphasis on counselling and guidance. That is what the House must commit itself to in the weeks and months ahead.
If the Lord Chancellor's Department is to take on the role of seeing through the pilot projects that are to be the precursors of the proposed legislation, and if it is to have the role of funding marriage guidance and counselling, it must itself seek guidance. I do not believe that the Department as constituted and the civil servants within it necessarily form the best structure and body of people to determine these matters. They are not necessarily the sole depositories of wisdom in this area. That being so, let us examine how we can bring other influences to bear which are sustaining and supportive of marriage.
Against that background, we intend at a later stage to propose the establishment of a Lord Chancellor's advisory committee on family law and marriage. There is ample precedent for that. There is an opportunity to set up a committee that will report to Parliament through the Lord Chancellor. It would be based, as with Australia's experience of family studies, on the notion and with the specific object of promoting the protection of the family as the natural and fundamental group unit in society. That would be its prime objective. That is necessary if we are to monitor pilot projects. It will also be necessary if we are to monitor the impact of the law on the family. The Opposition intend to share that proposition with the House, and we hope that it will find support on both sides of the Chamber.
We need a body of men and women with the requisite expertise and experience and committed to the notion of the family as the fundamental unit in our society. It will have the responsibility of monitoring pilot projects. We do not want a repeat of the Child Support Agency fiasco, but when I consider some features of the Bill, the spectre of that agency comes very much to mind. A great deal is left to the future. There are many hopes and aspirations, but there is not necessarily the will to see them implemented.
An advisory committee would be able to monitor pilot projects. It would be able to offer independent, objective advice which would be supportive of the family. It would not be clouded by any other consideration. Importantly, it would be able to ensure that we are in the business of commissioning research into why families break down. It would also be in a position to commission research into why some families succeed and endure.
We need to do all that, but not merely as a means of imposing another layer of bureaucracy. The approach should be taken as a means of preserving an institution which the House should be committed to upholding: the institution of the family. It is with that objective and determination—maintaining and developing the family and supporting the institution of marriage as the best buttress of the family—that the Opposition will approach the Bill.
§ Mr. Deputy Speaker (Mr. Michael Morris)
Order. I remind right hon. and hon. Members that Madam Speaker has ruled that from 7 o'clock until 9 o'clock speeches must be restricted to 10 minutes.
§ Mr. John Patten (Oxford, West and Abingdon)
I listened with great care to the eloquence of the hon. Member for Brent, South (Mr. Boateng), who spoke from 759 the Opposition Front Bench. I am sure that he was as right about the importance of reconciliation as he will turn out to be wrong in his evaluation of what has gone on in New Zealand and Australia. In those countries, despite all the best efforts of reconcilers and mediators, whatever they are called, divorce rates have shot up since the introduction of no-fault divorce.
I congratulate my right hon. Friend the Chancellor of the Duchy of Lancaster on the way in which he handled the House this afternoon. He has demonstrated open-mindedness and has introduced himself to the annals of parliamentary history with a new phrase. We have long known about the free vote, to which Ministers, parliamentary private secretaries and the payroll generally do not necessarily apply. We now have the Freeman vote, which really is a free vote. It will find its place in "Erskine May" in generations to come.
That having been said, I am sorry that the Bill is before the House. I greatly regret that I am unable to support it. My objections are twofold. They rest on principle and on the practical outcomes of the reforms, should the Bill reach the statute book.
I refer first to principle. I have a strong conscientious objection to the Bill as drafted. That objection does not rest on how the Bill might emerge after consideration in Committee. The core of the Bill is founded on the introduction of what is commonly thought of as no-fault divorce. No no-fault divorce, no Family Law Bill. That is absolutely central. The Bill would strip the marriage contract of commitment and thus meaning. It is my strongly held conviction that the vows exchanged and the contracts thus sealed, whether in a secular or religious ceremony, should be meaningful, not meaningless. In no other part of British law are we as a Government—I strongly support the Government—bent on stripping all responsibility from contracts.
In this instance, uniquely, the Government wish to take away the freedom of choice of my constituents to say, when they exchange their marriage vows, "I mean it; I want a binding contract." It is wrong for the Government to wish to remove that freedom. If the Government wish to do that, they should introduce legislation at least to give people a choice of having what might be considered a real marriage contract or what might be considered a no-commitment contract.
I have not received a letter or representation from any of my constituents in favour of the Bill. For example, my constituents, Dr. and Mrs. W. D. Halls—entirely unknown to me personally—wrote from Hurst Rise road, Oxford, to say:If we continually dismiss our vows and pledges as worthless, we are undermining the very basis of our civilisation. Are our words to have no meaning at all? What conclusions will our children come to?To my mind, they are absolutely right, as is the head teacher of an infant school in Norwich, Mr. Keith Pearshouse—again unknown to me personally, and who wrote to me out of the blue. He writes from Christchurch road in that city:Allowing marriages to wither away as though they were friendships that have merely been neglected demeans marriage.How right he is, for marriage contracts are, apparently, no longer to mean, "till death us do part," but rather, "until the going gets rough."
760 The Bishop of Chester, who has said that the Billundermines the meaning of marriage, and will make it a temporary contract",is surely right. Principles and contracts must be about setting out to try to keep one's word.
§ Dr. Spink
Does my right hon. Friend believe that more effort, counselling and guidance might be given to people and couples before marriage, so that they can resist and overcome the difficulties that inevitably come in marriage? Should not Churches give a firmer lead in preparing couples for marriage?
§ Mr. Patten
My hon. Friend is absolutely right. I have, in a spirit of helpfulness, a six-point plan to help Her Majesty's Government, with which I intend to conclude. One of those points is exactly the one to which my hon. Friend referred.
§ Sir Jerry Wiggin (Weston-super-Mare)
Does my right hon. Friend recognise that although what he says will, I suspect, have the support of the whole House, the tragedy is that many of the evils that he describes exist in the present situation and that today's law allows all those things to happen? This is a genuine attempt to try to improve what is currently an outrageous situation.
§ Mr. Patten
I do not doubt that. I listened with great care to what my hon. Friend said. Of course, he is right when he puts forward the view that, on many occasions, there is no or very little—fault when a marriage breaks down. People fall out of love, get bored with each other, drift apart, and, alas, a marriage dies on its feet and they end up in the divorce courts. It is wrong of the House to send a message to people in the real world outside, who know that from time to time a fault occurs in a marriage, that we in this place say that that fault can never happen.
That is why I was so interested to hear the hon. Member for Brent, South say that we must recognise that, in marriage, as in other areas of human relations, culpability exists. I remember exactly what he said and look forward to hearing what he has to say during later stages of the Bill as to how we can take into account that recognition of culpability. It does us no good, whichever party we belong to, to pretend to the outside world that something does not exist when the outside world knows jolly well that it does.
§ Mr. Patten
I am trying, in the spirit of Madam Speaker's earlier ruling, to make a quickie speech, but I shall give way to my two hon. Friends and then try to crack on.
§ Mr. Devlin
Does my right hon. Friend agree that, if there is a fault in a marriage, it is not compulsory that one must immediately exercise one's right to divorce, and that 761 many people gloss over faults to continue with a perfectly viable marriage; but on the other hand, people who have no wish to continue in an unhappy marriage will—and do—often manufacture a fault to divorce quickly? Given that that is the current situation, surely we should seek to ameliorate that process and make it more acceptable for everyone.
§ Mr. Patten
I am sure that my hon. Friend and I agree that much more effort will be needed in reconciliation. I sense from interventions that have been made that there is common ground on that between hon. Members on both sides of the House.
I now give way to my hon. Friend the Member for Billericay (Mrs. Gorman).
§ Mrs. Gorman
I am grateful to my right hon. Friend for giving way, and I address myself to his sincere remarks. Is it not a fact that the Catholic Church has welcomed the Bill, particularly because it helps to protect children?
§ Mr. Patten
His Eminence the Archbishop of Westminster, in an article in The Tablet, made his views perfectly clear and suggested ways in which he thought that the Bill could be improved, but I argue my case purely personally and on secular grounds, to which I now wish to refer.
Surely, practice must be about learning from experience. Bitter experience in this country has taught us that predictions made when the divorce law was last reformed, in 1969, have turned out to be entirely wrong. The hon. Member for Brent, South made that point. Experts told us then that as a result of that legislation, the divorce rate would stabilise, the rate of illegitimacy would drop, and cohabitation in place of marriage would become rare. Yet my distinguished constituent, Ruth Deetch, principal of St. Anne's college, Oxford, has demonstrated that nothing of the sort has happened.
Since 1969, the rate of births out of wedlock has risen from 6 per cent. to more than 30 per cent., and in 30 years the divorce rate has more than trebled. In 1969, doubtless for the best of motives, we in this place set out to make changes, which, alas, have made us the divorce capital of Europe.
These new reforms will, in their turn, considerably quicken the rate of divorce, for they will speed up the 27 per cent. of divorces that are currently granted on the basis of at least two years' separation. They will also speed up many divorces that are already based on fault.
Fortunately for the people of Scotland and Northern Ireland, the Bill does not apply there. I do not see many Northern Irish or Scottish Members here clamouring for the measure to be introduced in their countries.
§ Mr. Patten
I see my right hon. Friend from the Ulster Unionist party indicating assent. I do not think that he and his hon. Friends wish to have the Bill visited on them.
762 We already know that, in Northern Ireland and Scotland respectively, about 60 per cent. and 75 per cent. of divorces are granted after two or five years' separation. Why is this new divorce law being uniquely visited on England and Wales? Why is there no clamour for it in Scotland and Northern Ireland? Why have not those who bear the heavy responsibility of formulating this legislation harkened to the experiences of the United States, where individual states began to go in for no-fault divorce from 1969 onwards? Since then, they have reaped a social and economic whirlwind.
I was told in January this year that records in the state administrative office in Oklahoma show that, over the past three years, the number of marriage licences issued across the state has nearly been matched by the number of divorce petitions. There are as many divorce petitions as there are applications to get married. The reaction against no-fault divorce and its social and economic consequences, particularly for women, has led to the introduction of Bills to reform no-fault divorce in six states in the United States. As its journal, Newsweek, pointed out on 18 March, that movement is beginning to sweep America.
In America, many who would class themselves as feminists, some of whom once supported these forms of no-commitment marriage, now believe that they are creating a whole new class of people in poverty as a result—divorced women with children. As Mrs. Deech says, there is an equal danger in this country of accelerating the trend towards a two-tier system that disadvantages women; in other words, a world with husbands who can afford their own lawyers and where many wives will have to rely on mediation.
In conclusion, I shall make some practical suggestions, in the same measured and constructive way as my noble Friend and constituent, Baroness Young, did so far-sightedly in another place. These debates are certainly not a waste of time, for they have brought matters to a head, giving the Government the chance to stop and rethink what they are doing.
I have six suggestions for Her Majesty's Government. First, if they wish to proceed with the Bill as drafted, they should give my constituents the choice of a real marriage contract if they insist on trying to forge ahead with a no-commitment marriage contract. Secondly, we must introduce an element of consideration of conduct or of fault, or, to borrow the phrase used by the hon. Member for Brent, South, of culpability in the divorce process.
Thirdly, we should lengthen to 18 months—or perhaps two years would be better—the period during which couples with children should go through not just mediation but reconciliation procedures. That is very important. Fourthly—this deals with the point raised by my hon. Friend the Member for Castle Point (Dr. Spink)—Churches, voluntary organisations and others need to do much more to provide couples with courses explaining what marriage is like and how they can surmount the problems before they marry. That should be not just encouraged but supported by the Government.
Fifthly, if a divorce is contemplated, specific attempts at reconciliation should be made before mediation. They should involve frankness. Advice should be given to couples with children which spells out the uncomfortable facts that many do not wish to hear, although, sadly, they are true. For instance, despite the best efforts of many 763 divorced or divorcing parents, the children of such parents are five times more likely to live in poverty, and at least twice as likely to suffer from health problems or difficulties with employment or to take drugs.
That is the rough, tough stuff of reconciliation: putting the facts before a man and his wife before they split and help to wreck their children's lives—although they do not mean to. We should be talking about that rather than about mediation and the divvying up of spoils, which is a secondary and residuary matter. The Government must accept the consensus that clearly exists in the House. What is being said is hard-edged, nasty and not nice to say or to think about, but it is true.
Sixthly, the Government must have the courage to avoid relativism, and to make trying to reduce the divorce rate stated Government policy rather than merely regretting that divorce rate, as my right hon. Friend the Chancellor of the Duchy of Lancaster did in his excellent speech. The Government must face the fact that, under the present legal regime—which goes back to the 1969 reforms—they are bequeathing a great social challenge to their successors in the new century. The emotional, social, economic and health problems of the divorced generation that we are now breeding will be much worse for that generation than the problems of those who grew up during the depression or wartime years.
Worst of all, if the Bill is passed, it will compound three decades of error, dating back to 1969. It will also set in train irreversible trends. I predict that, by the year 2025, there are likely to be as many applications for divorces as for marriage licences. No Government should countenance that.
§ 7.2 pm
§ Dr. Jeremy Bray (Motherwell, South)
Given that this is a Family Law Bill, we should have started with a commission on marriage and the family rather than a Law Commission report on the grounds for divorce. Even to get divorce law right, we need to see what has happened to marriage.
Some of the Bill's sponsors seem to have an unrealistic concept of marriage. It is not a remote, irrelevant or unattainable ideal; it is a practical working arrangement in which most people still choose to live with a loved partner, to make love, bear children and raise them, and to live in circumstances that provide mutual help, society and comfort until they die. Even today, when Britain has the highest divorce rate in Europe, most people—for better or for worse—live out that commitment.
An initial mistake on the part of the sponsors was to suppose that divorce law has no effect on the breakdown of marriage. Of course, once a marriage has broken down, a tighter divorce law will not save it; but it might well have prevented that marriage, and other marriages, from collapsing under a strain. As hon. Members have pointed out, every marriage has its rough spots. If at the first sign of difficulty either partner can think, "I can walk out and be shot of all this in a year," the marriage will be weakened.
The law has a declaratory effect on behaviour. Even the climate of debate on divorce law has an effect on the resort to divorce. People are influenced for the rest of their lives by the contract that they thought that they were making when they were married. The Government demographer John Haskey has shown that the two groups 764 of couples who married in the years when divorce law was being changed—in 1970 and 1981—are more ready to resort to divorce, and remain so for the rest of their lives, than those who married one or two years earlier or later. It is a small but clear effect. It is as if marriage were a bond in which the very act of bonding has a lasting effect on the strength of the union. Influences are difficult to trace if we look only at the surface, but there can be turmoil underneath.
The increases in marriage breakdown and divorce have occurred over the same period, and among the same age groups, as changes in the pattern of sexual behaviour. In the sterilised, fault-free world in which the Bill seeks to operate, it is almost necessary to remind the House that marriage and sexual behaviour are related—and both are related to other influences, such as contraception and the greater economic independence of women. The most systematic and objective evidence was provided by the recent "National Survey of Sexual Attitudes and Lifestyles" produced by Kay Wellings, Julia Field, Anne Johnson and Jane Wadsworth, and by Haskey's articles, which I have already mentioned.
In the 1960s, fewer than 5 per cent. of women cohabited with their future husbands before marriage; today, 70 per cent. do. Of people aged over 45 today, 52 per cent. of women and 20 per cent. of men were married or engaged to be married when they first had sexual intercourse. Of those over 25 today, only 3 per cent. of women and 1 per cent. of men were married or engaged when they first had intercourse, but 63 per cent. of women and 48 per cent. of men were in a steady relationship. In all age groups, about 90 per cent. of people had had intercourse by the age of 25. In all age groups, the proportion of both men and women who disapprove of a married person having sexual relations with someone other than his or her partner is rock steady at 80 per cent.
How do those sexual attitudes and experiences relate to divorce? Divorce rates have risen in all age groups. Among men and women over the age of 55, the annual divorce rate jumped from about 0.1 per cent. before the Divorce Reform Act 1969 to 0.4 per cent. after it, and has remained virtually steady ever since. The Act clearly had a lasting effect. Among those in their 30s, the annual divorce rate has risen to around 2.8 per cent. per annum, and is still rising. Among those in their 20s, there has been a marked fall in the rate of marriage; but among those in their 20s who did marry, the divorce rate peaked at over 3 per cent. per annum after the Matrimonial and Family Proceedings Act 1984, and has fallen sharply since then—to 2 per cent. per annum among those under 25.
The broad pattern that emerges is that the first act and the first years of intercourse used to coincide with the first years of marriage, and helped to create a life-long bond within which the marriage relationship could develop. With the first years of intercourse now preceding marriage, the bond from early intercourse does not contribute to the strengthening of a lasting relationship. Lasting relationships are still built, but that has become more difficult, and more relationships break down. Society has a deep sense of the underlying commitment that is required in love and marriage, but the Bill does not recognise or support that commitment.
The adverse consequences of marriage breakdown for the development of children, the plight of single parents, the burden of support costs for second families and the stability of family life in general are widely agreed on and 765 must be addressed, but it is no good doing so in a way that increases the number of children in distress. What we should look for in a divorce law is a framework within which successive age groups can learn from their own experience, and from observation of their parents' and grandparents' generations, sometimes reacting against them and sometimes returning to them, so that they can shape their own relationships and the life and values of their own family. It has not helped that we have been presented with this somewhat sterile and morally anaemic Bill.
§ 7.9 pm
§ Mr. John Butterfill (Bournemouth, West)
When the Bill's predecessors were presented I had grave reservations about much of what they intended to do. I am grateful to the Government for ensuring that this Bill is a considerable improvement. My hon. Friend the Member for Canterbury (Mr. Brazier) and I went to see the Lord Chancellor to express our grave concerns about the Family Homes and Domestic Violence Bill. I am grateful that the Bill before the House differentiates significantly between cohabitation and marriage. It is absolutely right that it should.
In the context of divorce the Bill has emerged from the other place considerably improved, and I am grateful to the Minister for considering all the representations that he received and for giving due weight to the changes that were made in another place. As a result of that and because of the procedures that we now intend to follow, we shall ultimately ensure that the Bill is considerably improved, although I doubt whether it would be possible to accommodate the varying views in all parts of the House about its detail.
I am in favour of the removal of fault from divorce proceedings because I have seen many of my friends getting divorced in proceedings where one side alleges adultery and the other side counter-petitions for unreasonable behaviour. The resulting acrimony leads to untold misery for those concerned and to even more misery for any children of the marriage. It is incumbent on us to do anything that we can do to make the sad event of divorce more tolerable for all those who are affected by it. Unlike some hon. Members, I believe that mediation and the fact that one year will have to pass will play a powerful part in that.
The fact that the parties to a divorce will have to agree all the details in advance in relation to the children and finances will make many of them confront the reality of what they intend to do. In doing that and in realising what they face, at least some of them may withdraw from the course of action on which they have embarked. That would not be possible if we were to retain the present fault system under which people would immediately engage—in some cases, I regret to say, encouraged by their lawyers—in a process of mutual acrimony which can only be corrosive and destructive.
My principal concern is not about matters in the Bill but about pension splitting, and their Lordships were right to amend the proposals on that. They have done the House a service, albeit that the amendment is defective in some respects and major changes to other legislation will be necessary to give full and proper effect to it. It would not 766 be understood by women or by any fair-minded man if we let this legislative opportunity pass without agreeing to split the assets of pensions in a way that may be determined by the courts. The alternatives are entire unsatisfactory. Although the proposals in other legislation for earmarking go some way towards meeting the problem, they still leave the position very unsatisfactory for many divorced women.
Women who have to wait until their husbands retire before they can get any pension benefit are uncertain about when or whether they will receive it, and about the amount. We have a public duty to ensure that this is sorted out because many women are forced to rely on state benefits if they are divorced and retired, and that must be unsatisfactory. If we can at least remedy that we will have achieved a great deal.
I do not accept some of the Treasury arguments that people will be encouraged to seek a divorce to gain a tax advantage. Anybody who believes that a person would go through all the trauma and agony of a divorce simply to achieve a tax advantage must be living on a completely different planet. Even if in some extraordinary way that were the primary motive, all that it demonstrates is the fault within our existing tax legislation which discriminates against the institution of marriage and pays couples to live together rather than to commit themselves to marriage. None of those Treasury arguments is reasonable.
I am grateful to the Minister for confirming that the Government will leave their Lordships' amendment in the Bill unscathed but will seek to present their own legislation as soon as is practicable. I urge him to advance the time scale. I am puzzled as to why it should take until June or July to produce a White Paper because much of the work that needs to be done has already been done. The National Association of Pension Funds has studied the matter in great detail. As long ago as 1993 the Pensions Management Institute, sponsored by the Rowntree Foundation, produced a booklet on pensions and divorce which outlines in great detail the issues that the Government will need to consider. That booklet alone would be a good foundation for a Green Paper. The Association of Consulting Actuaries and the Law Society have done a great deal of work on the problem.
We do not need to wait until July for the Green Paper, and when it is produced I should like an assurance from the Minister that legislation will be presented within a reasonable time. If we have to wait until the summer for the Green Paper it would be reasonable to have the responses by the autumn so that we could decide on the form of the legislation by the end of the year and a Bill could be presented by the new year. I should like the Minister to commit himself to such a timetable, or some hon. Members will suspect that the matter will be shuffled off into the long grass until after a general election, and that after that everything may be somewhat different. I do not think that that will happen because there is determination in all parts of the House to achieve the appropriate legislation. I hope that when he responds to the debate the Minister will be able to give assurances on the concerns that I have expressed.
§ Mr. Chris Davies (Littleborough and Saddleworth)
The Bill divides Members of all parties and it is with some difficulty that I rise to speak as the spokesman for 767 the Liberal Democrats because I know that among our ranks opinions are equally divided. I hope that my hon. Friends will respect my views just as I respect theirs when they differ from mine.
I give the Bill a guarded welcome and support much that is in it. It is based on reality and its spirit credits individuals with intelligence and expects them to face the responsibilities that they have to face at a time of emotional crisis. It also recognises the limitations of Parliament in intervening in such matters, let alone in trying to resolve them.
Of course the Liberal Democrats support the family and the institution of marriage, but I am conscious that perhaps my interpretation of that institution and of the role that its members should play within it will differ from that of some of my colleagues and of other hon. Members. It is important, however, to recognise that the Bill is not about strengthening the institution of marriage, but about sorting out the problems when marriages fail. Some hon. Members may not have taken full account of that.
Marriage should be a partnership, entered into freely by individuals, which brings much good. It brings economic benefits. It is said that two can live as cheaply as one. That may be true, but there is no question that the accumulation of wealth is one of the reasons for the institution of marriage. The statistics and the evidence of single parents demonstrate that poverty hits people who are not part of that basic structure.
Marriage provides a framework for the rearing of children, security and happiness, I hope, for the individuals who are joined together it. It represents a commitment, publicly entered into by two individuals, that can strengthen both. That, however, is not always the case. Just as the individuals freely chose to come together, so either one or both have the right to choose at any time to take steps to dissolve that partnership and to go their separate ways. Parliament's job should be not to stand in the way of that choice, but to ensure, so far as possible, that the responsibilities that the individuals accept when they enter into a marriage are properly exercised, if necessary for the rest of their lives.
I hope that the right to exercise free will does not blind couples to the truth that almost all successful marriages have their ups and downs. The hon. Member for Lancaster (Dame E. Kellett-Bowman) referred to that earlier. There are many ups and downs, as well as much simply getting along. Rather than speak from my experience. as a husband—although the years are starting to accumulate and to provide me with some respectability on that score—I shall speak from the perspective of a long-distance runner.
Anyone who has run 100 miles at a single stretch will know that we go through some bad and good sections. A niggling problem with a knee at 40 miles disappears by the time we get to 50. We may feel absolutely low one moment and, a few miles later, suddenly run strongly again and feel high. Some hon. Members may think that an illustration more of hell than of marriage, but a good marriage is not unlike that. The problems that an ultra-distance runner can experience may be an appropriate metaphor. When we look back from the finishing line, we appreciate how much we have enjoyed the experience, but it is not Parliament's job to force people to go the whole 100 miles. Individuals must make their own decisions.
768 I am sorry that the Bill does not deal enough with how marriages can be encouraged, how counselling can be provided where that is appropriate and how the difficulties of marriage can be explained to couples thinking of joining together in matrimony. The Bill is aimed at dealing with problems when marriages fail, but its strengths would be brought to the fore if emphasis were given to the desirability of encouraging the family and the institution of marriage. Some of the opposition to the Bill would thus be reduced.
Members of a marriage partnership must balance their short-term wishes with the fact that the break-up of the marriage and of their family unit can lead to much distress. It can lead to economic hardship, to which I have referred. It can cause great unhappiness among the children and, not least, for the partner who has been spurned by the other partner, to whom he or she has looked for so many years. It can also, however, lead to great unhappiness for the person who spurned the other partner because, in time, he or she may realise that the grass on the other side was not all that greener.
Sometimes, those misfortunes are all wrapped up together. All hon. Members have had experience at their advice centres of members of the public asking for assistance in dealing with Child Support Agency matters. Hon. Members have felt the full burden placed on people whose marriages have failed and who face difficulties, but let us remember that divorce is by no means a disaster for all. In many cases, it is a liberation for one party; sometimes it is a liberation for both parties.
Statistics were bandied about earlier suggesting that a high proportion of people who have become divorced regret that they entered into the process, but I have yet to meet a divorced person who still wishes to share a bed with or to live under the same roof as the person from whom they are divorced. On the contrary, more often, the venom with which people refer to their former partner is a stronger and more frequent emotion than the desire to recover that which they have lost.
The House has no power to revive a marriage that is emotionally dead. We should not seek to prevent individuals from making a free choice or add to the misery of an already distressing position. It has been said that the Bill will make divorce easier and that it will therefore contribute to an increased number of divorces. I do not think that it is true. By abolishing the concept of fault and by standardising arrangements, the Bill makes the process of divorce more clinical, perhaps even more acceptable, but it does not make it easier for people to drift out of a marriage or to run away from it.
In relation to cases where emotions run at their highest and, often, where the hurt goes most deep—where one partner is revealed as an adulterer—the Bill ensures that there is probably greater time for reflection and for a sense of perspective to be restored than at present. By abolishing the notion of fault and by clarifying the administrative arrangements for divorce, the Bill may increase the number of marriages. The majority of couples live together before getting married. A growing number choose never to get married. I suspect that fear of the future and of love eventually being replaced by the degrading procedures of a divorce court are reasons why they are reluctant to enter into the public avowal of commitment that marriage entails. The Bill may lessen those fears and make that initial commitment easier.
769 What about the children when a divorce takes place? Adults may have the right to choose to do as they wish, but I recognise that children have no such freedom. As hon. Members have said, there is evidence that children prefer their parents to stay together, however much they may argue. That may be so. Every loving parent will take that factor into account when considering their future relations, but now that the stigma of having divorced parents has, in effect, passed—because, sadly, it is commonplace—it must be recognised that the emotional upset of rows between parents who do not wish to be together is also a cause of pain. It is difficult for children to be in the middle of a household in which their parents have come to loathe each other. We must treat parents as adults in every sense of word and trust that they will place their children's interests high on their scale of priorities. I am not sure that we have the right to do other that than.
The 12 months of preparation before the granting of a divorce should be sufficient for the views and wishes of children to be impressed on the parents. I do not accept the argument that, in all circumstances, people who loathe each other must stay together for the sake of children. I welcome the Bill's provisions requiring agreement over responsibilities for the care of children, although it may be easier written in statute than undertaken in practice. I will seek clarification about that when the Bill returns from Committee. I hope that those matters can be resolved there.
Throughout my remarks, I have stressed the importance of individuals being ultimately free to make their own choice, but the initial commitment to a marriage implies the acceptance of responsibilities that may be lifelong. Where there are children, it includes parental care and a financial contribution. Where one person has developed a career while the other has maintained the home, it involves a recognition that both parties have a right to the economic benefits of that partnership. My party is united in its determination to support the pension splitting arrangements that were insisted upon when the Bill was considered in the other place. I welcome the Minister's commitment to the principle of that, but I endorse the view of the hon. Member for Bournemouth, West (Mr. Butterfill) that we want more detailed undertakings about the timetable for the necessary legislation. We see no reason for delays in bringing it forward.
I can think of no worse advertisement for the institution of marriage than the 60-year-old business man who runs off with a young woman, leaving his partner of 30 years or more living on a pittance. The House must protect the weaker partner in such circumstances and stand up for the principle of equality within marriage.
I want briefly to refer to mediation. It is often said by former couples that the divorce was proceeding amicably until lawyers became involved. Whether or not that is true, the Bill's encouragement of mediation is welcome. It is a sensible, practical and humane step. However, I have reservations about whether the funding will be adequate and whether the resources exist to provide high-quality assistance. I fear that whatever the good principles involved, the practice may prove sadly lacking.
§ Dame Jill Knight (Birmingham, Edgbaston)
I must confess puzzlement tonight on two counts. The first is about the name of the Bill. Why is it called the Family 770 Law Bill? I would have thought a more appropriate name to be the Break-up of Family Bill. If we talk about these matters in the House, we should call a spade a spade and call it the Divorce Bill 1996.
The second reason for puzzlement is that I do not understand why Conservative Members are whipped to support the Bill. From what the Minister said, it appears that because the Lord Chancellor introduced the Bill it had to be a Government Bill and therefore there could not be a free vote on Second Reading. I think that that is quite wrong. Hon. Members should understand that when the Minister spoke previously about a free vote, he was dealing not with tonight's vote, but votes in Committee. I find that strange because not since 1857 has there been a whipped Bill on divorce. It is so obviously a question of conscience.
We are dealing with a subject fundamental to the whole fabric of society. Divorce is a deeply unhappy business. I have not been divorced, but friends who have speak of it with obvious pain, even years after the event. However, I do have personal experience of how divorce affects children, my parents having divorced when I was a small child. I was deeply unhappy about it. My feelings were a tangled mess of rejection, shame, insecurity and the belief that, somehow, it was all my fault. Many children feel that way. My feelings lasted for many years. I would have given anything and everything in my small world to keep my parents together.
I accept that all children may not feel the same, but research clearly shows that divorce upsets children far more than losing a parent by death. That is an extremely serious point that should be well understood by the House. We know that children from divorced families are twice as likely to do badly at school, have less chance of going on to university, have less chance of finding a job when they leave school, are more likely to be divorced themselves and—perhaps not altogether surprisingly—are two thirds more likely to become regular smokers.
I accept that it is true that some children grow up perfectly well in one-parent families and that it is not only divorce that makes one-parent families. We all understand that. However, there is no doubt in my mind that children get a better start in life with both mother and father in a stable marriage.
So far, I may not be in disagreement with any of my colleagues. I want to make it clear that in no way do I question the Government's sincerity or good intentions in introducing the Bill; there is no doubt that they mean well. I agree that the present position is not satisfactory, but that is not the issue. We are not arguing about the effectiveness of the Bill or the Government's good intentions. The questions we need to ask include, will the Bill be better in all ways than the present position; is it just; will it buttress the institution of marriage; are we safeguarding a couple's right to pledge themselves to each other for life; is there a public demand for the Bill? The answer to all those questions is no, which is why I feel impelled to speak and, probably, to vote against Second Reading tonight.
This is a lawyer's Bill, cooked up by the Law Commission. I shall never forget that a very prominent member of the Law Commission—without doubt an architect of this Bill—said in 1980:We have reached a point when we should be considering whether the legal institution of marriage serves any useful purpose.771 Perhaps that is not a universal view among all members of the Law Commission, but lawyers do not understand that a concept enshrined in a Bill passed in this House sends out a clear signal.
It is true that we cannot legislate for goodness and I agree with what the hon. Member for Brent, South (Mr. Boateng) said about that. However, in passing this Bill we show that we no longer have a great deal of faith in marriage. The signal that we will send out tonight is that marriage vows are of no great importance and can be cancelled speedily for no reason at all.
It cannot be right that an unwilling spouse, man or woman, anxious to keep the marriage alive and accused of no fault of any sort can find himself or herself divorced against his or her will. I cannot think it right that divorce should be available on demand with no reason necessary. I must tell the hon. Member for Littleborough and Saddleworth (Mr. Davies) that we are not talking about a couple who hate each other; we are talking about one half of a couple who is desperately anxious for the marriage to succeed and is ready to make sacrifices to achieve that. If two people loathe each other, I would not object to a divorce. My objection is to an innocent, well-intentioned partner being abandoned for no reason. That is what upsets me about the Bill.
It is important to remember that fault came in on the back of a statutory instrument passed upstairs in Committee, not on the Floor of the House. The purpose of that statutory instrument was to facilitate a quickie divorce. I have been given figures that show that when Australia, for example, brought in a no-fault, quickie divorce, the divorce rate rose from 5 per cent. to 18 per cent. It has since dropped back, but only to 11 per cent. In other words, there are more than twice as many divorces under the no-fault system. In America, the divorce rate rose by 50 per cent. under the no-fault system. As my right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) reminded us, many states in America are reverting to fault divorces because they are convinced that no-fault divorces push up the divorce rate.
In Northern Ireland, where the statutory instrument did not apply, the divorce rate is a quarter of that in the United Kingdom as a whole. Of course Northern Ireland is extremely anxious not to have the law, as my right hon. Friend the Member for Oxford, West and Abingdon said. It is interesting that, in Scotland, the other part that he mentioned, which was also not affected by the statutory instrument, the Scottish Law Commission has made it very clear that it will in no way support a no-fault divorce.
Other people are worried about the speed at which divorce will be carried out. In another place, their Lordships tried to ensure that where there were children, or where one spouse did not want a divorce, the time waited should not be one year but 18 months. I deeply regret that that amendment was not successful. Perhaps we can have another shot at it.
The Bill acknowledges that conciliation may be possible, although I could not find much reference to conciliation in it. It encourages and introduces mediation, which of course is not conciliation. It would merely sort the money out, as the hon. Member for Brent, South (Mr. Boateng) said. Many questions on mediation are still to be answered. Some suspect that enthusiasm for mediation has been brought about because it is thought to be cheaper 772 than legal advice. Conciliation would not be compulsory, and it is difficult to imagine how it could possibly be made so. A would-be divorcee—
§ Mr. Bill Michie (Sheffield, Heeley)
This is a very serious debate, about which we all have opinions and individual emotions. One has to be rational. I must say, however, that the hon. Member for Birmingham, Edgbaston (Dame J. Knight) really got under my skin. Someone who has had some experience of divorce and who has waited a considerable time to enable the children to understand it, would take it as misinformation to say that children are affected more by their parents divorcing than by their families living together.
There are many reasons why children do not like divorce and feel guilty about it. One of them is when other institutions, in which partners may not necessarily believe, insist that marriages are for life, unless certain circumstances mean that they break down. Not only divorce causes emotional problems in children. Society makes judgments on parents that are reflected on children. I know many couples who have undergone a proper divorce in—if it can ever be—a civilised way, and the effect on their children has been minimal. Society accepts to some extent that children can be born outside marriage without feeling guilty about it or being called all the names under the sun. It is possible for them to be respected in society and be no worse off. They will certainly not start smoking or taking drugs as a result of their parents divorcing or never getting married. Such an assertion is absolute nonsense.
An introduction to a Sheffield family conciliation service pamphlet, which I fully endorse, says:There is no such thing as an easy separation or divorce. Partners often have strong feelings of anger, or helplessness, or betrayal, or shame. It is difficult for them to be sure what will be best for the children. Important questions about the future of the home and family must be decided, but husband and wife may feel unable to talk together. On the other hand, if they simply take legal action to settle their affairs, solicitors or courts may deal with matters which the couple would prefer to decide for themselves.That is the premise on which we start the conciliation procedure in the Sheffield area.
I support the proposal to abolish the principle of fault in divorce, but, in many other respects, the Bill is seriously flawed. There are many concerns, for example, about the requirement to attend "information sessions". Are they to be in public? There cannot be group therapy. How are they to be arranged? As far as I know, that is to be left entirely to regulation that will be created by the Lord Chancellor's Department. Will there be privacy for those who need it? Will there be a media jamboree for those in the public eye? All Members of Parliament could find ourselves in a difficult situation.
Will services such as mediation and couple counselling be funded adequately and be available to those in remote areas? Will a market-based system fail those needing support? How do we get round those problems? How do we enable information to be given privately by licensed providers, including solicitors, who are the usual first port of call at present? How are we to define mediation and place on the Lord Chancellor the obligation to ensure, through funding, the availability of such services?
773 Other concerns focus mainly on the proposals for mediation, and require assurances from the Government on the following points. Will separating couples be entitled to treat mediation as a truly optional facility in the same way as Relate counselling? It is a betrayal of the concept of mediation for it to be provided on any other basis, and if so provided will send out the wrong signals to participating couples.
There should be an assurance that there will be no inducement for couples to enter into mediation or that prejudice will be incurred if either or both choose to withdraw from it, regardless of whether they qualify for legal aid. The concern is that the Government propose to specify circumstances in which mediation would be considered inappropriate. If the concept of mediation were fully appreciated, there would be no need to specify any such circumstances. Specifying such circumstances raises the overwhelming inference that any individual or couple who decline mediation for non-specified reasons will be disadvantaged in some way. That aspect requires special scrutiny. As has already been said, there would be no way in which violent partners would go for such mediation. Will such circumstances be considered special cases? Non co-operative partners might decide not to participate in any shape or form and sabotage any mediation process. There are obviously other problems, too.
I should stress that mediation is the facilitating of communication. It is not a forum for giving advice. Negotiations cannot take place without advice. Legal advice must therefore be available throughout. If it were not, those receiving legal aid would be severely disadvantaged. I intervened on the Minister on that point to try to get an answer to that question. I hope that we shall get an answer by the end of the evening. It would be unfair to those on legal aid if they were disfranchised from seeking a second opinion after or during mediation.
There should be an assurance that legal aid regulations will not be amended in any way to give legally aided people who opt for mediation any advantage within the system over those who decline mediation, especially those who do so for non-specific reasons. I note from reading through my stuff this weekend that the South Yorkshire Group of Solicitors Family Law Association is in no doubt that full legal aid certificates will be denied to people who choose not to attend mediation, and that the claw-back on cost—the statutory charge—will be waived for couples who opt for mediation. The same constraints on paying back legal aid should apply to people who opt for mediation as well as to those who do not.
The proposed pre-condition to a decree absolute being granted, that all arrangements for children and finances must first be settled, wholly undermines the central premise of a "period for reflection and consideration" by encouraging litigation. The divorce process will force individuals to litigate immediately to be sure of resolving financial and child-related issues in time to obtain a divorce at the first attempt.
The proposal that the divorce should be abandoned if matters concerning the children and finances are not resolved within the cooling-off period needs to be re-examined. In appropriate cases, particularly complicated ones, the court should have the power to extend the period. Divorces should be abandoned only in 774 the event of reconciliation; they should not be kept artificially and technically alive because of a dispute that is not resolved within the time limit. Future arrangements should not be made a pre-condition to divorce. Instead, the scope of the hardship bar should be extended to provide appropriate protection.
The proposed pilot project will, hopefully, accurately reflect the mediation services that will be required. It is estimated that currently only 110 accredited mediators are able to undertake financial and child-related disputes. There are, on average, 160,000 divorces every year. The pilot scheme must be located where it can be rigorously tested. If the pilot scheme is considered a success, we must have an assurance that a national scheme will not be implemented until it is fully resourced to avoid court delay. As my hon. Friend the Member for Brent, South (Mr. Boateng) said, the scheme must be rigorously monitored to avoid any repetition of the fiasco over the Child Support Agency.
The sensitive nature of divorce proceedings is obvious and should be respected. I hope that, for the good of all who find themselves in such difficult circumstances, the House takes its time in passing the legislation.
§ Sir Ivan Lawrence (Burton)
It seems obvious that a Bill that addresses the awful problem of the growing number of divorces in our country, that follows a large-scale consultation exercise that has effectively been going on for three years, that has received support from a large number of agencies—from Relate, the leader of the Catholic Church, the Christian Churches, the synagogues, Marriage Care, the National Society for the Prevention of Cruelty to Children and the Law Society to name but a few—and that does something to strengthen the institution of marriage, should have the support of the House. I find it difficult to follow much of the criticism that has been levelled against the Bill. Those who want to get rid of easy divorces and those who want to provide better protection for the children of a marriage should welcome the Bill with open arms.
There are currently four major faults with the divorce law for those of us who think that marriage is important. First, divorce is now, to all intents and purposes, available on demand. Is that what the Bill's objectors want? Secondly, by alleging fault and inventing and exaggerating, someone can obtain a divorce as soon as three months after he or she petitions for it—72 per cent. of all divorces are secured on that basis within six months. Is that what the Bill's objectors want?
Thirdly, the process causes bitterness and unnecessary distress to the children caught in the middle, who are often made the excuse for the divorce. Is that what the Bill's objectors want? Fourthly, there is little attempt made, or encouragement given by the present system, to save a marriage that can be saved. Once one of the parties does not want to be married any more, all he or she has to do is to reach for the divorce gun. Is that what the Bill's objectors want?
Why anyone who cares about marriage should think that the law should remain as it is and that it is better than the Bill is beyond me. The Lord Chancellor's proposals will considerably strengthen marriage and considerably reduce divorce—for several reasons. First, there will be no quickie divorces—everyone will have to wait a year 775 before anything can be done and before getting a divorce. That means that, in many cases, there will be no divorce for 18 months or more after proceedings have been started.
Secondly, there will be no divorces at all under the legislation for a year after it is implemented. Thirdly, if the element of fault is taken out of the legislation, there will be much less bitterness to distress the children. Fourthly, if everyone has to wait a year or so and is encouraged to seek conciliation, many marriages will be saved. That is why Relate, with all its experience, so favours the process. That is why the divorce rate has fallen in Australia, New Zealand and Canada, where such a system operates.
My right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) was wrong when he said that the rates had risen there—they have fallen in all those countries after a short period in which they increased. Fifthly, through mediation, those who are determined to divorce can use the year to get their financial and property arrangements in order, which will remove or reduce much of the misery for the children and the expenditure of court time—to say nothing of costs.
It is a flight of fancy—and shows a lack of awareness about today's world—for hon. Members to pretend that fault is now a necessary element in saving marriages and protecting the children; it is no such thing. It may have been in the 1900s when women were chattels—the property of their lord and master. But the reason why divorce has doubled and the marriage rate has halved in the past 20 years is precisely that fault is being deployed as a reason for divorce. If I am wrong about that, why are as many as 72 per cent. of all marriages ended with allegations of adultery and unreasonable behaviour after only six months? The answer is that fault is used as an excuse—an easy excuse—for divorce. There can be no other reason. Fault does not save marriages; it is being used as a weapon to destroy them more quickly.
In the 1990s, what is "fault"? Who can really judge the truth? I should think that most of us have experienced surgeries when the biggest complaint against the legal system has been that the judge believed the "lies" told by one spouse about the other in the divorce court. Some people pretend that most of the cases involving fault are one sided, but the truth that can be learnt from every divorce judge is that most allegations are a matter of "six of one and half a dozen of the other". How on earth is "fault" then worth defending? In 1996 we should say goodbye to fault as a ground for divorce and bid it good riddance; it has become totally counter productive.
We should start to do what we can to save marriages that can be saved and to make the dissolution of those that cannot be saved as painless as possible for the parties and children involved. To accept the principles of the proposed regime is not, however, the end of the matter.
§ Sir Ivan Lawrence
I am sorry but I cannot give way as I have just 10 minutes for my speech.
Many details need to be worked out and there has been much useful discussion in another place. The Government have responded with a number of significant 776 improvements to the original scheme; they are on record, so I shall not burden the House by listing them. But I must mention one.
I very much welcome the pension splitting arrangements which are under consideration. They are extremely complicated and it is impossible to implement them immediately without creating more problems than they solve. I welcome the acceptance that pension splitting is right in principle and the Government's determination to create a scheme that works. It is not widely enough appreciated by people who have not gone through a divorce that, under existing law, pension income is taken into account in the assessment of future assets.
I have heard some strange objections to the Bill raised in the House this afternoon. In her question to my right hon. Friend the Chancellor of the Duchy of Lancaster, my hon. Friend the Member for Batley and Spen (Mrs. Peacock) seemed to think that people may enter into marriage in order to secure a hire purchase agreement. I do not think that that is why people enter marriage. My right hon. Friend the Member for Wokingham (Mr. Redwood) seemed to think that a marriage can be sustained where one party wants it and the other does not. He must have been reading too many Galsworthy books, "I shouldn't wonder". It is another era and he will have to read about Soames Forsyte to realise just how that family looked on marriage and the fact that if one party did not like it, that was just too bad.
My hon. Friend the Member for Wyre Forest (Mr. Coombs) argued that children do better in bad marriages than if there is no marriage—that may be true for some, but for others it is not. In any event, my hon. Friend misses the point: the Bill seeks to save marriage—that will help children in the marriage, even if the marriage is a bit rocky. My hon. Friend should support, not oppose, the Bill because if it helps children, it answers his point.
Besides, the measure largely refers to marriages that are breaking up, not about bad marriages that are sticking together. The removal of fault does not harm the chances of the partners in a bad marriage remaining together, but it eases the misery of the children from the marriage that is breaking up.
The hon. Member for Brent, South (Mr. Boateng) spoke in support of the Bill, but then began tilting at a windmill when referring to victims of domestic violence. No battered wife should have to mediate with her tormentor, as he will see if he reads the Bill and the words of the Lord Chancellor, who said in a press release:Clearly there will be cases where the breakdown of the marriage has been too painful for couples to negotiate in this way, and legal aid will be available in situations where mediation is not appropriate.I hope that the hon. Gentleman will be less heated about that aspect of the legislation. So, I disagree with a great many of the arguments presented by those who oppose the Bill.
We should, if it were possible, address preparation for marriage in the future: nothing could do more to make marriage more meaningful, and therefore less likely to be dissolved. It might help if we could devise some way of requiring preparation for marriage. However, the infringement of civil liberties and the cost to the taxpayer or to those anticipating marriage might be substantial. That is why I am afraid that we must leave that issue for the future.
777 Meanwhile, it is sensible to face the fact that the present system is increasing the number of divorces, is driving the parties into the hands of lawyers and the adversarial system, and is leading to anger and bitterness and to a preoccupation with the past, which is less important than our concern for the future—and we should change it.
§ 8.1 pm
§ Ms Jean Corston (Bristol, East)
I welcome the Bill with reservations, as someone who has been through the trauma of divorce and who practised for a time at the family Bar dealing with matters concerning children, domestic violence and ancillary relief.
There is a contradiction inherent in the present divorce law. In theory, there is only one ground for divorce—irretrievable breakdown—but it must be proved by one of five facts. Two of those facts are based on fault: adultery and unreasonable behaviour. When the Divorce Reform Bill was enacted in 1969, it was assumed that most divorcing couples would wait two years for a divorce instead of relying on the allegations of adultery or unreasonable behaviour.
As we have heard, in 1993 73 per cent. of divorce petitions were based on one or other of those two faults, because they are often seen as a convenient way of getting a quickie divorce. As many hon. Members have said, that can take as little as three or four months. That is simply not long enough for people to think through the consequences of divorce, to consider whether divorce is appropriate or to resolve all the issues arising from divorce. Some hon. Members have said that it is just about money, but it is also about the family home, who lives in it, who will pay the mortgage or the rent, and the resolution of financial matters and issues relating to the children—who they will live with, contact with the other parent and other family members, and child support considerations.
As it is almost impossible to defend a divorce petition nowadays, allegations of fault that are difficult to challenge heighten tension and foster acrimony. That potentially poisonous climate inevitably affects children.
It is time to recognise that the two-year wait under current law is too long—most couples who adopt a mature and a constructive attitude can resolve issues within a year. It is important to remember also that time is a different concept for children. All people with children know that, if one tells them that they must wait a week for something, they think that it is eternity. When I was in court, I would often hear someone suggest an adjournment of three months or so on the ground that it would give the lawyers time to write some letters. However, three months is an eternity for children: it is wrong to make them wait two years before their lives regain a settled pattern. I believe that a one-year waiting period, as a time for reflection and resolution of consequential issues, is about right.
When I listen to the critics of the Bill, I remember the campaign against the Divorce Reform Act 1969. I remember some woman—I do not recall who it was—describing it as a "Casanova's charter". I do not know whether anyone else remembers it, but she said that women would be discarded like old slippers. However, women are more likely to petition for divorce. In 1993 778 women petitioned for two and a half times as many divorces as men. Perhaps we should acknowledge that men and women have different expectations of marriage and we should ask what so many women appear to find so unsatisfactory about marriage. Critics of the Bill have said that it will undermine marriage and family life, but the Government have done little to nurture and support families—a point to which I shall return.
I turn now to the subject of mediation during the one-year period for reflection. I emphasise that it is not a cheap option and it will not always be appropriate—I agree with what my hon. Friend the Member for Brent, South (Mr. Boateng) said about mediation and the victims of domestic violence. I am pleased to say that mediation, like other good ideas such as health centres and victim support, started in Bristol. I am proud to be a patron of the Bristol Family Mediation Service. Through my contacts with that service and from my experience at the family Bar, I have seen how mediation assists in the mature resolution of issues that are potentially a source of major conflict. The current system encourages irresponsibility.
It is ironic that, as the Government extol mediation, local services are under threat from underfunding or must levy charges that are beyond the reach of many. I have some reservations about the proposals for mediation. For example, there should be a range of options to ensure privacy during information sessions or meetings. Both parties should have access to independent legal advice so that the weaker party in a marriage—economically, it is often the woman—does not lose out. As other hon. Members have said, there is not enough emphasis on reconciliation in the Bill.
Domestic violence is a huge social issue about which I have spoken often in the House. Current legislation in that area is a mess. Injunctions are available under the Matrimonial Homes Act 1967, the Domestic Proceedings and Magistrates' Courts Act 1978, the Domestic Violence and Matrimonial Proceedings Act 1976 and under the inherent jurisdiction of the court. Half a million violent assaults on family members occur each year, and they are usually perpetrated against women and children. It is estimated that 750,000 children are affected by domestic violence. The Bill is mainly a consolidation measure. For the first time, the remedies will be available to all courts which will operate the same law. That will be of great benefit to those seeking injunctions and to their legal advisers.
In summer 1994, the all-party parliamentary group on parenting, of which I am an officer, held public hearings in the Grand Committee Room. We heard evidence over three weeks from a large number of organisations and interested people and we produced a cross-party list of recommendations supporting marriage and families and seeking to improve parenting skills. We called for co-ordination within Government Departments to ensure that families receive the necessary support and for relationship education funding.
A couple of weeks ago I spoke at a National Society for the Prevention of Cruelty to Children conference in Bath, the subject of which was "Listening to Children". A 15-year-old student attending the conference said that she was alarmed to think that in a few years' time she could get married and have children. She said that she thought she should receive some parenting education first, and I agree with her.
779 The all-party parliamentary group agreed that there should be preventive work with families to catch problems early and to help families through crises.
We called for a reform of the benefits system to remove disincentives to work and to address poverty in families and low-paid work. Many families with children who are caught up in divorce are poor because they can just manage to run one home on two wages and, therefore, find it impossible to run two homes. We also agreed that it was important to provide and encourage good quality childcare, to reduce stress and to help families out of poverty.
Another important consideration is to allow fathers to become more involved with their children through boosting family-friendly employment practices. That cannot be stressed enough because, all too often, children end up living in a world of women.
I remember my father saying that there are only two people who can know what went wrong in a marriage and usually neither of them do know. I hope that the Bill will give people who are divorcing the time and space to think through the issues and decide whether divorce is appropriate, and if it is, to resolve it in a way that enables the children afterwards to relate to each of their parents without a betrayal of trust or loyalty and without feeling that in being nice to their Mum they are betraying their Dad and vice versa. That certainly does not happen at present. I hope that we can establish a system that enables to us say that the divorce rate has gone down because we are supporting marriage.
§ Mr. Roger Sims (Chislehurst)
Some of the Bill's critics say that it will make divorce quicker. As my hon. and learned Friend the Member for Burton (Sir I. Lawrence) said, that is a misconception, as it is now possible to start divorce proceedings after one year of marriage and to divorce within four or six months. If the Bill becomes law in its present form, it will be one year before one can put in a divorce statement and another year before the divorce can take place.
There have been references to the message that the 12-month period is sending from the House. I would ask about the message conveyed by existing law, which allows a divorce application 12 months after a marriage. Before 1985, the period was three years. The marriage service stipulates that marriage is not to be entered into "unadvisedly, lightly or wantonly", but at present surely the message is that one can get married and, if after one year, it does not work out and there are difficulties, one can undo the marriage.
There is much discussion about the proposal that 12 months should elapse between the statement of intention to divorce and that intention being fulfilled. I would not alter that, but I would look again at the minimum period between marriage and the ability to make a statement of intention to divorce. I would like to see it increased at least to two years—I endeavoured to do that in 1985, but there was insufficient support in the House for my proposal—if not the three-year period that applied before 1985. I hope that at a later stage of the Bill, the House will be given the opportunity to consider that amendment.
If two people have decided that their marriage is not working and is not likely to work, they should consider the implications, but do they need to justify that decision 780 publicly? The Bill is said to be introducing no-fault divorce, but as my hon. and learned Friend the Member for Burton said, a no-fault divorce can be obtained after two years. It can be sooner if fault can be quoted, but what exactly does that achieve? Listing faults makes divorce more unpleasant and acrimonious as each side digs around for real or imagined grievances against the other—a process that culminates in distasteful court proceedings. It also makes that process more expensive. Does detailing faults really help the procedure? No-fault divorce is a misnomer. The Bill is not saying that when a divorce takes place, there is no fault. Of course there is almost certainly bound to be fault on both sides, but it does not seem advantageous to have a recitation of those faults as a ground for divorce.
I have heard it argued that there is not necessarily fault on both sides—if, for example, adultery or violence is involved that may be so, but we can be sure that if adultery is claimed, there will be a counterclaim in similar terms or it will be said that the other party showed a lack of interest or was frequently absent. If violence is claimed, we can be sure that there will be counterclaims that it was provoked. Surely a reasonably amicable settlement is more likely if listing faults on both sides can be avoided.
Speaking of settlement brings me to mediation and I very much welcome the Bill's endorsement and promotion of mediation, which I fear is sometimes misunderstood and misrepresented. It is not counselling—helping married couples through problems so that their marriage can continue. It is not reconciliation—discussing with couples considering separation whether and how their differences might be resolved and the relationship continued. Mediation serves those who have started or contemplated divorce proceedings and it is defined by National Family Mediation asa process in which an impartial third person, the mediator, assists couples considering separation or divorce to make arrangements, to communicate better, to reduce conflict between them and to reach their own agreed joint decisions. The issues to be decided may concern separation, the divorce, the children, finance and property.The hon. Member for Bristol, East (Ms Corston) mentioned correctly that the first mediation services started in Bristol rather less than 20 years ago. Similar services were set up in Wandsworth and the one in Bromley in my constituency was one of the earliest. I have been on the management committee of a Westminster-based mediation service for a number of years.
There are now 66 local services and 700 trained and accredited mediators. In 1981, the National Association of Family Mediation and Conciliation Services, known as National Family Mediation, was established and most of the local services now belong to that body. It selects, trains and accredits mediators and trains local supervisors. Earlier this year, the various bodies involved in mediation formed the United Kingdom College of Family Mediators to set and promote standards for mediators, to operate a register and to issue a code of practice.
Mediators are drawn from a variety of backgrounds, including probation officers, social workers and solicitors. It must surely be self-evident that, instead of the cost and ill-feeling involved in the exchange of letters between two parties' solicitors culminating in acrimonious court proceedings, there should be available a third party who can discuss with both parties separately and together how to reach agreement with regard to the house, other 781 property and, most importantly, their children and to decide with whom, and where, the children should live, and access arrangements.
Mediation does not replace legal help. As the study carried out by Newcastle university in 1994 commented:Legal advice and mediation are complementary.It pointed out that39 per cent. of cases of mediation resulted in agreement on all issues and 41 per cent. of cases resulted in some issues being agreed".Those are fairly high proportions.
In 1993, 165,000 couples divorced and fewer than 5 per cent. of them had access to mediation. It is obvious that we need rapidly to expand, develop and build upon existing services. I regret that, at present, the Government appear to be taking no steps to facilitate that expansion by supporting existing services. My concern is that they are operating on a shoestring. Unlike Relate, National Family Mediation gets no core grant funding from the Government. Each local service depends on charity, charging fees only to the extent that its client can afford. It may have contracts, but, on the whole, must rely on charitable donations, which are diminishing. Some services have closed for lack of funds, while others are in difficulty. Bristol is under threat, Sussex is about to close and the Westminster service, with which I am involved, is waiting for the next cheque—otherwise it may have to close.
I have written and spoken to my noble and learned Friend the Lord Chancellor and to my hon. Friend the Parliamentary Secretary, asking for support for those organisations. I was told that funds will be available under legal aid when the Bill becomes law and is implemented. However, it will be later this year before the Bill receives Royal Assent and two years before it is implemented. By then, it will be too late to fund mediation services that, at the very time that they need to expand, are withering on the vine. I heard my hon. Friend the Parliamentary Secretary say on the radio this morning that he wants to promote mediation. I urge him to demonstrate that desire by giving mediation services the financial support without which it will be more difficult to put the Bill's good intentions into practice.
§ Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)
I declare an interest as a solicitor who practised in a firm that did a fair bit of divorce work.
Forty one per cent. of marriages in the British Isles, or 3.1 per 1,000 population, end in divorce—a shocking figure that is twice the European average. No doubt, those statistics have exercised the minds of the Bill's opponents, who wrongly claim that the measure will make divorce far easier and increase the divorce rate. Broadly speaking, nothing in the Bill is likely to do that. The contrary is true. If the Bill's opponents were to come clean, they would admit that they are against divorce per se. Arguing about the time involved and the no-fault concept is just to use the Bill to their own ends. Those opponents are not in step with the majority of the public.
The Lord Chancellor's stated aim, which everybody would welcome, is to safeguard the institution of marriage, However, a friend who is an experienced 782 divorce lawyer put it to me that the Bill approaches the problem from the wrong end. He reminded me that it is already much more difficult to dissolve a marriage than to enter into marriage. Should we not consider more thorough and compulsory preparation for marriage, and increasing the minimum age for marriage? The incredibly high divorce rate among teenagers bolsters the arguments for both. The current legal limit was introduced by the Age of Marriage Act 1929, when life expectancy was substantially less. It almost goes without saying that the decision to enter the most sacred contract of all is momentous—that view is generally held. It is, alas, entered into without formal instruction, advice or counselling. I hope that that aspect will be meaningfully addressed during the passage of the Bill, because I believe that such preparation would decrease the divorce rate at a stroke, and save young couples and their children a great deal of heartache and emotional turmoil.
I cannot cover all the points that concern me on Second Reading, but I welcome the broad thrust of the Bill, which is a helpful attempt to reform and codify existing matrimonial law. The no-fault debate has polarised the argument. As the law currently stands, at least two grounds for divorce do not involve fault. One is the irretrievable breakdown of the marriage. No-fault divorce is not a new concept, so the true picture is not that presented by the Bill's opponents. The so-called no-fault concept, which is much maligned by opponents of change, is nothing new and is welcome.
It is illogical and intellectually unsustainable for advocates of the fault principle to opine that pitting spouses against one another deters them from divorce and protects the institution of marriage. It is self-evident that the fault concept has never been a deterrent to divorce. Nearly three quarters of all couples choose divorce as the route out of their marriages, with all the acrimony and upset that it causes them and, more importantly, any children of the marriage.
Every divorce lawyer spends hours going through intimate details that have been dredged up by warring clients. They are often painfully retold, and would always be best left unspoken. What possible use can there be for that practice, apart from allowing the parties to the divorce to exercise their minds and be as horrible as possible to each other? In many cases, the parties to a divorce are being self-indulgent, and it almost becomes some kind of a game to them—and it is a waste of legal aid to boot.
I welcome the extension of the no-fault concept. It will bring a saving in emotional stress to many divorcing couples and their children, in lawyers' time, and in costs to the legal aid fund. Everyone would like to see fewer divorces, and the Bill extends the length of time needed to divorce from an average of seven months to a minimum of one year and two weeks. The one year allowed for consideration and reflection is also welcome. Relate, which does excellent work, is firmly of the view that one year is appropriate. It is significantly longer than the present limit and will allow couples sufficient time to make arrangements about children, property and finance—but not so long as to cause disadvantage or hardship to families who need to make decisions and take action in respect of the distribution of assets, including the matrimonial home. One year is long enough. Relate refers to it as a year with a purpose, which sums it up well.
783 I welcome, with many other hon. Members, the mediation principle, and the Lord Chancellor's assurance that it will be voluntary—but some reassurances are needed. By which authority will directions for mediation be given—a circuit judge, deputy circuit judge or district judge?
I do not accept that the Bill will be cost neutral. There are only two mediators in the whole of Clwyd in north Wales and not one in Gwynedd. To get up to speed will be an uphill task but I am sure that will happen in due course, in the spirit of the Bill. However, it is clearly impossible for the Bill to be cost neutral.
I will not comment in detail on the provisions on domestic violence but I appreciate and accept the reasons for them. The codification of existing law is substantially overdue.
Children's voices should be heard throughout the Bill. Where complex and difficult cases arise, the child's needs should be protected by the appointment of a guardian ad litem and reporting officer. It is crucial that independent advice and assistance is offered to children, because they are often the real losers—not only emotionally but materially. There should be a legal requirement, as exists in Scottish legislation, for parents to have regard to their children's views. When a parent makes a statement of marital breakdown, courts can provide children with information appropriate to their age. Those proposals enjoy support from many organisations involved in child welfare. I also welcome the pension-splitting provisions, although I would like them in the body of the Bill.
The Bill is a step in the right direction and its opponents are mistaken if they think that it will imperil the institution of marriage. Much could be done to strengthen the Bill. Many questions need to be answered and we need to know exactly what form the delegated legislation will take. Far too much of the Bill will be at the mercy of delegated legislation, including core issues such as information about meetings and arrangements for the future. Those substantial issues should have proper, detailed parliamentary scrutiny.
I broadly welcome the Bill as a genuine attempt to improve the current divorce law. As I have said, several amendments are needed to deal with some of the points that I have made. I hope that there will be an opportunity substantially to improve the Bill during its passage through the House.
§ Mr. Edward Leigh (Gainsborough and Horncastle)
I am grateful for the extreme courtesy shown to me and my colleagues by my hon. Friend the Parliamentary Secretary and my right hon. Friend the Chancellor of the Duchy of Lancaster in the way that they have listened to our representations about the need for free votes. I regret to say that, despite their great courtesy, I remain opposed in principle to the Bill. Unlike the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), I do not think that it is amendable, because the concept of no-fault divorce is at the heart of the legislation.
The Bill would have a great impact on millions of lives and it is also of enormous quasi-constitutional importance. Many of our institutions are based on the concept of the Judaeo-Christian state. Even the layout of the Chamber is based on the mediaeval chapel of St. Stephen's. The gospel view of marriage is clear: marriage is for life. The 784 Bill would advance further down the dangerous road of ending the concept of a Christian state laying down the framework of social life.
In the past 30 years, we have effectively said that the courts should no longer consider conduct in granting custody or dividing assets. Now, fault would not even be a trigger and would not even be considered. We would explicitly end the fiction—I accept that it is a fiction—that fault is considered by the courts. We would get rid of that altogether. The Bill, therefore, would not buttress marriage: it would undermine it. If we really wanted to get rid of quickie divorces, we could simple repeal the Matrimonial Causes Rules 1977. It does not apply in Northern Ireland—Northern Ireland Members have attended the debate—where 75 per cent. of divorces take between two and five years.
The Bill would explicitly give us divorce on demand when previously we implicitly had divorce on demand. If the current legislation is not being implemented or is being abused, that alone is not a reason for sweeping away the concept of fault. What message would we give to young people and our children? People make vows to maintain their marriage for life. That is a unique contract. Therefore, it follows that if a marriage ends, one or both parties are at fault. That may be unpleasant, but it is the logical reality. I am asked whether it is right to force people to make allegations against each other to achieve divorce. I agree that that is not pleasant, but the nature of the marriage vows mean that they can be ended only by a breaking of those vows and fault, on one or both parts, is involved.
I am told that the process of alleging fault damages children. They need not necessarily be involved in any consideration of fault, but they are necessarily involved in the fact of divorce. Therefore, divorce negotiations need not necessarily damage children, but divorce damages children. That is why at least eight states in the United States, where they have had no-fault divorce for 20 years, are considering getting rid of it. Hillary Clinton, who is not a crusty reactionary, has written:For much of the 1970s and 1980s many believed that a bad marriage was worse than a good divorce. Now, however, we know that children bear the brunt of failed marriages … Divorce has become too easy because of our permissive laws and attitudes".The governor of Iowa, in his 1996 state of the state message, said:I do believe we should reform our divorce laws to require mutual consent or specific grounds for divorce. Our present no-fault divorce laws have transformed into an arrangement of convenience rather than an act of commitment. Parents need to understand that divorce can severely hurt children and impact the opportunities their kids have. Please join me in our effort to find a better way".No-fault divorce has simply resulted in the divorce rate in America increasing by 20 per cent. Even if we wanted to sweep away the concept of fault—I do not believe that, given the nature of the marriage vows, one can do that—are we really arguing that a year is adequate time when children may be involved and when a promise has been made for life? A year is far too short a time. Is it too much to argue that we should wait just 18 months or two years as a period for mature consideration of reconciliation and before mediation begins? It has been pointed out from both sides of the House, noticeably by the hon. Member for Brent, South (Mr. Boateng), that mediation is not reconciliation. Mediators are not trained to reconcile. They resolve conflicts about property or about custody: they do not save marriages.
785 Why is the Bill so important to the Government and to the Conservative party? It is of vital importance to all of us because the Conservative party is not a devil-take-the-hindmost, free-trade, libertarian movement. We are a traditional party and we believe that the market on its own is not enough. There must be a moral foundation and a Judaeo-Christian basis to ethics and society. Perhaps, the view now is that the state no longer has the courage or the will to provide that basis. I believe that it can and it should.
§ Mr. Paddy Tipping (Sherwood)
I am pleased to take part in what, so far, has been a thoughtful debate. Few things are more important than partnership, marriage and having children, and seeing those children go through the cycle again. That is the fundamental life-blood that runs through our society and we all have experience of it.
We must learn not to let our experience prejudice social policy, because all marriages are different. People adapt in different ways and people find different solutions to their problems. My own experience before coming to the House was of working for 20 years with families. I must confess that most of those families were experiencing real problems, including marriage difficulties, being in the process of separating and in some cases having separated.
That brings me to my first major concern about the Bill. It seems to me to be set in a social vacuum—it has already been pointed out that it was drafted by lawyers—and it takes no account of the social climate, of unemployment, housing and the stresses on families. There is no recognition in the Bill, or in the documents which preceded it, of what constitutes a good marriage. We need to do more research on that, and the Lord Chancellor's Department has an important role to play. I do not believe that the Department should be just a cipher. The Lord Chancellor should commission and evaluate research and bring forward social policies, in conjunction with other Departments, which will strengthen partnerships and marriages.
There is a curious asymmetry in the Bill: it allows a period of 12 months for reflection at the end of marriage, but it says nothing about what might be done before marriage. The Government should have an important role in promoting discussion and education about partnership and marriage.
I generally support the notion of a no-fault divorce. My experience suggests that the acrimony which can arise in the current circumstances is extremely distressing. I believe that a no-fault approach can help children, who are the real losers when marriages break up.
I was interested to hear the Minister say that children's needs are paramount. He will recall that that is a phrase used in the Children Act 1989. It is no good idealising marriages or determining what is best in general for children because there is no common rule. I have spoken to hundreds of children in difficult marriages. I have talked to children who have been physically and sexually abused by their fathers. Some of them want their fathers to stay—they want to maintain a relationship—while others think it better to have the father expelled. There is no common solution, and we cannot say that it is always best for children if families are kept together.
786 Children's views should always be taken into account, of course, and I am pleased that the Bill reinforces that idea. I am also pleased that it includes a 12-month period for reconciliation and mediation. That is a long time in a child's life—50 per cent. of a two-year-old's life, 33 per cent. of a three-year-old' s life, and so on. For a child, a day or a week can be a very long time. I believe that a year is long enough to settle uncertainty, and short enough to find a way forward by means of mediation or reconciliation.
I am sorry that so much of what lies behind the mediation and reconciliation provision is to be stipulated in regulations after the passage of the Bill. I should like to know whether the information sessions will be private or public. I should like Ministers to explain, perhaps in Committee, the difference between mediation and reconciliation: they are different processes. We need to focus, too, on the resources necessary for the whole process. The Bill is described as cost-neutral. I always take the view that when legislating for something new we have to accept, at least in the short term, that it will cost more. We should be investing in the people who are to mediate and reconcile; otherwise, in two years' time there will not be enough people with the requisite skills to pursue the task.
I hope that in Committee we shall consider the subject of domestic violence and that we shall listen to groups such as the Women's Aid Federation and Rights for Women. They point out that 500,000 women are victims of domestic violence, and that there were 1,015 rapes in 1977 and 5,082 in 1994. Half those rapes are perpetrated by husbands or partners.
For groups like those, the notion of no-fault divorce has a hollow ring. For a woman who has been beaten half to death, the concept of no fault is of no help—she wants early action, not reconciliation. Such women want justice, and soon. They do not want to wait a year. I hope that the Minister will assure them of the right to legal aid. I hope that we shall use this Bill as a platform to give women who are the victims of domestic violence greater protection. There is certainly scope to do that.
I am pleased that the Government have accepted the principle of pension splitting. Now we want them to work hard to ensure that when the Bill comes into force, in two years' time, pension splitting can be dealt with at the same time.
Supporting marriage is the key task that lies ahead. Strong marriages and partnerships create healthy children, who in their turn create healthy families and good communities. Children are our future and we neglect them at our peril. Investment in children is investment in all our futures.
I am far from confident that the Bill provides all the answers, but it is a good platform for discussion and positive movement. I look forward to the Committee stage because I want to amend the Bill and to strengthen it. Above all, I want to invest in children. We must take a look at policies which can create strong families and healthy communities: their future is our survival.
§ Sir Jerry Wiggin (Weston-super-Mare)
I got divorced—I use the phrase deliberately, as I did not want to be divorced and I do not believe that there was a reason for the divorce, but I shall not trouble the House with the 787 details of my personal affairs. I strongly disagree with the hon. Member for Sherwood (Mr. Tipping), who said that our personal experiences should not influence our attitudes to social legislation. In my view, it is our personal experiences which drive us and give this House its life.
As a result of my experience, I am infinitely more pro-family and pro-marriage. Being deprived of something makes one realise its value. I was very shaken and upset by my experience, which was the worst of my life and one that I would not wish on my worst enemy. One thing that I learned was that all divorces are different. There seems to have been a steady assumption in the commentaries on the Bill that divorce is always a matter of men going off with bimbos and leaving their wives and children behind. Yet many divorces are similar to mine, instigated by the woman, who either gets bored—there was no third party in my case—or decides that she wants to change her life. Such women then seek legal advice.
The solicitors who live by divorce fall into two distinct camps. There are those who try to make it as easy, cheap and gentle as possible, and there are those who deliberately exacerbate divisions between the partners and are quite willing to run up high costs. I am afraid there are far too many of the latter sort.
My hon. and learned Friend the Member for Burton (Sir I. Lawrence) made an excellent assessment of the situation, which I fear has not been appreciated by many of my right hon. and hon. Friends who have spoken against the Bill. The fact is that no fault or bad conduct is taken into account at present, even though that may not be what the law says. I acknowledge the long experience of my hon. Friend the Member for Teignbridge (Mr. Nicholls) as a divorce lawyer. He made it clear that "unreasonable behaviour" may amount to no more than a couple of rows undergone in the previous four years.
I was advised that I could go to court and have my case heard before a judge, and it would last two or three days and cost tens of thousands of pounds which I could ill afford. As I was a Minister at the time, my name would have been spread across the papers and my children would have read about the family divisions. It was simply not a common-sense option; anyone serious about arriving at a practical resolution as easily as possible would not entertain it. One party is forced to submit; one partner can do that to the other without any difficulty.
Not much has been said about the division of money in today's debate—the Bill is not primarily about that—but that is what causes so much concern. Once the lawyers decide that there is effectively no blame in a divorce, the objective with regard to the family's funds should be to leave the two parties as near as possible to their financial situation before the split. That objective is fine for millionaires, but it is a farce for the rest of the population—97 per cent. of us—to attempt to split the family's funds so as to leave the situation as before.
The ping pong played with and by the lawyers—the allegations, the letters that have to be answered, the papers that have to be found and, all the while, the costs ticking up on a one-way ratchet—does nothing to calm people down or to persuade them to approach the situation with a gentle attitude. Misunderstanding and acrimony can become totally unbearable.
The Bill is a very well-intentioned attempt to solve a nigh-on insoluble problem. I support mediation. I hope that, as some hon. Members have mentioned, mediation 788 will sometimes even lead to reconciliation. When I saw Father Jack Dominian, a very well-known expert in these matters—he gave me time on a Sunday night, which was very good of him—he said:I can help you only if I can talk to your wife.She did not wish to go, and there was no compulsion on her to go, so no more came of it.
I support the one-year period. I believe that any longer period would be damaging. Some resolution of people's problems is perhaps better than allowing them to run on. The hon. Member for Bristol, East (Ms Corston) rightly mentioned in fulsome terms the Bristol Family Mediation Service, of which I am a patron. It wrote to me:For these reasons, we support the replacement of the fault clauses (as a means of establishing that the marriage has irretrievably broken down) by a period of reflection for a year. It is our experience that a year is about the right length of time. Any less does not give time for everything to be sorted out constructively; longer than a year is to prolong the period of uncertainty for the children"—and, they might have added, for the parties as well.
I am concerned about the odd aberration: the person who discovers on honeymoon that there is no possible hope for a marriage to continue. I am familiar with a person who married a strange man who for many years had a mistress: he thought that marriage might be rather fun, so he married this person. There could be no future in such a marriage and since there were no children involved it was quickly ended. Under this Bill, there is no way in which there can be a rapid divorce. I hope that, perhaps in Committee, some thought might be given to them.
There is not one hon. Member who has not had his or her surgery filled with Child Support Agency cases. A part of those CSA cases is the physical distress of the parties. Those hon. Members who have never been involved in divorce personally have only to come in contact with it on that basis to recognise the great personal distress experienced by the parties.
I should like to add my voice to those asking that the mediation service should receive money. It is a very strange situation that we spend not millions but billions of pounds of public money dealing with the aftermath of divorce, supporting the lone women and men and dealing with all those tragedies. There must be a multiplier benefit if some of that money were to be hived off, in modest terms, for some assistance, even if the success rate was low.
I know that time is very short. Finally, therefore, I commend to the House the debate in the other place, which was of an extremely high order. The one comment that really caught my mind was that of the Chief Rabbi, who described marriage and divorce in the Jewish community and how the practice of divorce has—as in the case of every other religion—grown steadily in recent times. He asked why people did not divorce in earlier times. The answer was that it was because of the stigma: he repeated the word many times, and I think that we all know what he meant.
My mother would not have a divorced person in her house. She perhaps took an old-fashioned view, but because there was a stigma many people stayed together. I do not believe that we can—or, it might be argued, should—reintroduce stigma into our society, but any attempt, however modest, to solve the problem should have the wholehearted support of right-thinking people.
§ Mr. John Hutton (Barrow and Furness)
When the Law Commission first published its proposals for divorce law reform in 1990, one in three marriages ended in divorce. The figure now, sadly, is nearer to one in two. In 1993, there were nearly 160,000 divorces, which directly affected the lives of nearly 200,000 children under the age of 16.
Marriage breakdown, quite simply, despite all its traumas and financial hardship, is now an everyday event. Unlike some Conservative Members who have spoken in this debate, however, I do not think that those statistics can reasonably be attributed to legislation. Social and economic factors are much more important in determining the incidence of marital breakdown than is divorce legislation—which leads me to conclude that divorce legislation will never succeed in altering those basic social facts of life. Marriages will continue to break down whether we like it or not. That was certainly true of the time before the Divorce Reform Act 1969. Divorce was not invented in 1969. So although the law alone is unlikely directly to influence the rate of marital breakdown, it should not make matters worse than they already are and, wherever possible, it should make things better.
Two fundamental principles should guide the development of divorce and family law. First, we should try to save as many marriages as possible. That will require better access to well-resourced marriage guidance and reconciliation services. Divorce should not be the first option when a marriage gets into difficulty. Secondly, we should ensure that, when a marriage is not capable of being saved, it can be dissolved as quickly as possible, with a minimum of bitterness and distress.
Everyone knows that divorce is an ugly and painful business; it is probably the lowest point in a person's life. But it is absolutely right that we should look again at our current rules on divorce to ensure that couples who split up are able to leave their marriages with the least pain and in circumstances in which they are required to make proper provision for their finances and for the welfare of any children. That simply does not happen under the present rules. I believe that the Bill will improve the present procedures and should therefore be supported.
In particular, I welcome part I of the Bill, which comprises one clause setting out the general principles which are to guide the courts and the individuals responsible for discharging the legislation. I am in favour of such "general principle" clauses because they are of value to the courts, lawyers and others involved in divorce proceedings.
Many of the opponents of the Bill have concentrated on clauses 5 and 7 and the abolition of the fault principle. They have criticised the Bill for introducing what they see as divorce on demand after 12 months. This, they believe, will undermine the sanctity of marriage and damage society. I do not believe that that will be the case—in fact, quite the contrary. This is one of the rare occasions when there is probably more support for a Government Bill on the Opposition side of the House than on the Government side. That has been reflected in many of the speeches made by Conservative Members today. It is a sad reflection of the fact that some Conservative Members have fallen under the spell and influence of some pretty disreputable leading articles in The Daily Telegraph and 790 the Daily Mail, which have tried to characterise the Bill as striking a fundamental blow at the sanctity of marriage. That is rubbish, and I am glad that some Conservative Members support the Bill and have made their support public and obvious.
The fault principle contained in existing divorce law is used in nearly 75 per cent. of cases. Fault in the form of adultery or unreasonable behaviour is cited so often as the reason for marital breakdown precisely in order to obtain a quick divorce. The existing emphasis on fault in our divorce law has not resulted in fewer divorces taking place; nor has it acted as a buttress for the Judaeo-Christian moral norms to which the hon. Member for Gainsborough and Horncastle (Mr. Leigh) referred.
Many hon. Members referred to the Family Mediation Service. I shall read briefly from a letter that I received from the Cumbria Family Mediation Service on 19 March and which deals with the question of fault. Marcia Start, the administrator of the Cumbrian service, said:It is our clients' experience that, if they have had to allege fault in order to get divorced more quickly than two years … this has added to the tension between them and has had effects on their children by making it difficult to maintain a secure atmosphere for them. The Bill cannot get rid of 'fault' and most divorcing parents blame one another. But it can remove the need to use fault as a means of establishing breakdown.That is the important point. If we can remove fault from the proceedings, we have a chance of ending up with a better result.
It is also worth reminding ourselves of what Mrs. Justice Booth argued in an article in The Guardian on 8 March. She said:In reality, the existence of fault in our present divorce law creates no obstacles to divorce: quite the reverse.She then compiles a pretty dismal catalogue of deficiencies in the existing arrangements and concludes:The present law and procedures have evolved without any clear direction or consistent policy. They are manifestly unsatisfactory. The opportunity for reform should not be lost.I agree with those comments.
I hope that, by removing the concept of blame from the divorce process, the Bill will create an opportunity for both parties to face up to their own responsibilities. This in turn can make the divorce process itself less acrimonious. That will be of obvious benefit to all the parties involved, especially the children. The combination of no fault and a cooling-off period is much more likely to protect the emotional interests of children caught up in the nightmare of divorce than a continuation of the present laws.
We have to be honest with ourselves and recognise that no law that we could devise will succeed in compelling people who do not want to live with each other to continue to live with each other. We simply do not live in that world any longer. We delude ourselves if we pretend that we can devise some legislative formula that will suddenly turn back the tide of divorce. We should be deluding ourselves if we thought that such a device existed or that we could create one. We cannot. If people no longer love each other and do not want to live with each other we cannot make them, and it would be foolish to try. We must be concerned to devise procedures and mechanisms that will allow the break to take place in the best possible circumstances.
791 Many of the organisations involved in family law have expressed their support for the abolition of the fault principle and the promotion of mediation services. That is the right way to proceed, but there must be greater emphasis in the Bill on marriage guidance and reconciliation. I have read the Bill quite carefully, and I do not think that the words "marriage guidance" appear in it at all—and they should. As we know, mediation and guidance are not the same.
The Family Policies Study Centre expressed concern about funding for mediation services, a matter to which several hon. Members have referred today. Under clause 24, the Legal Aid Board will have new powers to fund mediation services. That is to be welcomed, but the FPSC has reported concern that more resources need to be devoted to these services now in order to guarantee their current level of existence. Without that, there may be an even smaller base of existing provision on which to peg the operation of the proposed legislation. I hope that, either now or in Committee, the Government will give us the benefit of their opinions on these matters. The Government must deal with these problems. I am afraid that there is no escape from the simple conclusion that there will be a need for extra resources.
Our top priority should be to create the right legal framework in which to support and protect families. There are a number of aspects of the Bill that could be improved, and I hope that they will be improved in Committee. Nevertheless, the Bill takes us broadly in the right direction, and for that it is to be welcomed.
§ 9.5 pm
§ Mr. Julian Brazier (Canterbury)
I share the horror of divorce, as expressed by the majority of hon. Members on both sides of the House who have contributed to the debate. As the father of three young children, I am constantly aware of the advantage that my children have in life, in having parents who are married. If my wife remains as tolerant as ever, we shall remain married throughout their childhood. I believe firmly in marriage. I support the Bill and I urge the House to give it a Second Reading. With amendment, it will represent a substantial and worthwhile improvement to the present state of the law.
I commend my right hon. Friend the Chancellor of the Duchy of Lancaster, and especially my hon. Friend the Parliamentary Secretary, for the open and listening way in which they have received the issues that colleagues have raised.
Most of us agree that the courts have trampled over Parliament's clear intentions. The most frequently quoted example is the way in which unreasonable behaviour has been extended to the most trivial matters. In any event, it is no longer verified. That is important. We may have pious hopes that we all agree with in the early clauses and the introductory material, but it is the letter of what the law states and enjoins on the courts that is critical.
Under the control of the courts in England and Wales we have had divorce on demand, without fault and without conduct, for some years. The Bill offers three main advantages. The first is the one-year delay. It has already been said that that will effectively double the average time that is taken for a divorce.
The second advantage is the provision for mediation and reconciliation. I am surprised that there are some who think that the information session should be compulsory. The 792 first contact that most people have at the beginning of a divorce is with an adversarial lawyer. Whatever his personal motivation, he has a direct financial interest, both in the marriage breaking up and in that break-up being as bloody as possible. We know that the bloodier it is, the longer it will be, and the larger will be the fee. It seems eminently sensible that initially there should be a compulsory information session, so that the parties are made aware of the opportunities for reconciliation and mediation.
In cases where domestic violence is not involved, legal aid should be restricted to green-form advice, as the Government propose, until people have tried mediation. That process encourages people to talk about their problems first. I understand that mediators will have a statutory duty to bear in mind the possibility of reconciliation. That will again tend to make people aware of the opportunities for getting together again. There is no such duty at present.
The third advantage bears on children. We know that the vast majority of divorces are initiated by women. Over 70 per cent. were initiated by women last year. They are usually brought about by young women with children, who know that under present arrangements their chances of getting custody are overwhelming. They know also that, with that advantage, they will get control of the house along with guaranteed maintenance for the children and, usually, for themselves.
By balancing a little the arrangements for children and by making courts slightly more reluctant to hand custody automatically to the mother, we shall remove one of the main incentives for divorce, as well as being much fairer to the children and, dare I say it, to the father.
Thus I am glad that the Government were prepared to take on board Baroness Elles's amendments, as introduced in the other place. They were drafted by the Conservative Family Campaign. The amendment will make it a specific duty of the court to consider the conduct of both parents towards the children in making custody arrangements. Before divorce is granted, the courts will consider access arrangements for fathers. I should like to see more teeth in the proposed arrangements. In any event, courts will have to consider access arrangements for fathers, or for the other parent, before a divorce is granted. They will have to take account also of any new partners who come on the scene.
The hon. Member for Sherwood (Mr. Tipping) mentioned the fact that many cases involve child abuse. I have news for him: the overwhelming majority of child abuse cases involve not the natural father, but the new partner of the child's natural mother. That is why it is absolutely right that one of those amendments accepted in the House of Lords says that, when it comes to the custody of the children, the court must look at any new partners, too, before the divorce is granted.
I am aware that my hon. Friend the Member for Teignbridge (Mr. Nicholls) wants to speak, so I shall be brief. Two areas in the Bill should be strengthened: first, orders on the family home. The Government have rightly majored on the fact that there will be a minimum period before a divorce can be granted. Personally, I should like it to be longer than a year and will support an amendment for 18 months on a free vote, but the essential point is that the period must be watertight.
My hon. Friend the Parliamentary Secretary will know from my earlier urgings that a number of us are concerned that, if we allowed orders other than "ouster" orders, 793 arrangements for domestic violence and so on, to be made on the family home in the first few weeks of the proceedings, any provision for mediation, reconciliation and the rest would be a waste of time. The marriage would already be dead. The divorce might not have gone through as a piece of paper, but, de facto, it would have happened. I urge that there should be no exceptions where final orders are to be made on the family home during the year concerned.
The other issue on which I urge amendment to improve the Bill is conduct. I think that five hon. Members specifically referred to it. The hon. Member for Brent, South (Mr. Boateng), part of whose speech I had to miss because of a constituency engagement, mentioned culpability, by which I take it that he means the same thing. There is a strong feeling among some hon. Members on both sides of the House that, when it is manifestly clear that one party is largely to blame for the break-up of a marriage, that should be taken into account by the court. I accept the Government's argument that it should not be through fault. We do not want to begin the process of divorce with fault as a way to speed it up. Even when reconciliation has failed, many couples will none the less be able to settle their differences without fault.
We do not want a return to fault. We want conduct, which has also effectively been abolished by the courts. In the minority of cases in which there has been no reconciliation and there has been an inability to settle the terms amicably through mediation and a divorce will go ahead, the court should take account of the conduct of the parties. The innocent party should be able to argue, whether it is domestic violence, desertion or whatever, that when making the various orders—not just about the children, where we have had the concession already, but orders on financial matters—conduct should be taken into account. That was quite clearly Parliament's intention in the original legislation. The courts have departed from that in practice.
One example illustrates that point, that of Kyte v. Kyte, where a wife lied to the courts to get her husband ousted from the home, installed the new boyfriend and went out of her way to assist her husband in an attempted suicide. Two courts of this country ruled that even that was not sufficiently serious conduct to be taken into account. That had to go all the way to the Court of Appeal to be overruled, and it still forced some financial settlement on the husband.
I believe that the Bill is a courageous attempt to tackle a very difficult problem. I urge the House to support it on Second Reading, but very much hope that my right hon. and hon. Friends on the Front Bench will continue to listen to the representations that some of us will make, because the Bill needs considerable strengthening.
§ Mr. Donald Anderson (Swansea, East)
I share many of the assumptions made by the hon. Member for Canterbury (Mr. Brazier). Like him, I am blessed with a happy marriage, which I believe has lasted 30 years—although I always forget the precise number of years.
§ Mr. Anderson
I always forget the date as well. Moreover, like the hon. Gentleman, I have three children.
For several years I practised in the family division; I was also a member of the Home Affairs Select Committee that produced a report on domestic violence—along with a number of distinguished hon. Members on both sides of the House who are present tonight.
Although I agree with the hon. Member for Canterbury that the saddest element of divorce is the need to protect the children involved, I do not agree with him about fault. In my long experience of the family division, I have rarely seen a case in which the fault is 100 per cent. on one side. The hon. Gentleman mentioned the case of Kyte v. Kyte, but that was nothing like the generality of cases. We are discussing complex human circumstances. Mr. Justice Ormrod, as he then was, put it well in his judgment on the famous leading case of Wachtel v. Wachtel, reported in 1973:The fact is that the forensic process is reasonably well adapted to determining in broad terms the share of responsibility of each party for an accident on the road or at work because the issues are relatively confined in scope, but it is much too clumsy a tool for dissecting the complex inter-actions which go on all the time in a family. Shares in responsibility for breakdown cannot be properly assessed without a meticulous examination and understanding of the characters and personalities of the spouses concerned, and the more thorough the investigation the more the shares will, in most cases, approach equality.On the basis of practice, I know that the petitioner is normally the person who has the incentive to consult a solicitor first. All too frequently, following the "escalator principle", the solicitor or counsel will ask the petitioner about incidents in what may be a normal marriage, but a marriage which—if it has lasted for six, seven or 10 years—may feature incidents that, if isolated and combined in a petition, will make that marriage appear the most lurid possible. The juggernaut will then move on, and the bitterness will overflow into the ancillary proceedings. That will affect children and, to a less important extent, property.
That is the reality of fault in marriage: it is a complex human situation. The courts are ill adapted to say precisely where the fault lies. Even if a wife has committed adultery, that may be put in the context of a long period of unreasonable conduct on the part of her husband. Certain considerations are not helpful when decisions must be made about the dissolution of an unhappy marriage. It is, however, in the public interest for marriage to be preserved. Not only is that morally right, given that marriage represents a cornerstone of our society; as many hon. Members have pointed out, the breakdown of marriage is very costly to the public purse, to the tune of some £4 million. We should not be too bemused by the divorce law, or consider it to be the only or best way in which the public and the Government can have an impact on the family. Tax, housing and benefits law should also be considered.
I wholly accept what has been said about the need for reconciliation as well as mediation. Those are two very different concepts. Perhaps in Committee we can look at ways in which a statutory time might be set aside for reconciliation and mediation. I should like to look at amendments which would seek to preserve the interests of parties who do not consent to divorce and which would allow a longer period for consideration. I should like to consider ways in which judicial separation might be 795 abused and could move into divorce without one of the parties being properly consulted. A number of areas need close examination, but fault, as traditionally defined in the old ecclesiastical law days and which to some extent was preserved in the Divorce Reform Act 1969 and continued in the Matrimonial Causes Act 1973, is not a helpful concept.
In broad terms, the Bill is a step forward. It will not stem the sad tide of increasing divorce, but it may give people who are so inclined time to stand still and consider. However, it must be buttressed with far more education about responsible marriage, especially for young people. There must be more attempts to advise people at each stage of the marriage before they step on to the escalator on which solicitors are concerned, alas, in so many sad cases, simply to see the matter through without looking at the broader public interest. That broader interest is the preservation of marriage and the protection of the vulnerable, particularly children, and that is what the House should be concerned about.
§ Mrs. Barbara Roche (Hornsey and Wood Green)
This has been an extremely good, sober and serious debate and we have had high-quality contributions from all parts of the House. We all bring to the debate our own experiences. We are elected to serve by our constituents and, much as we like to think that we are elected for our own sakes, which I am sure we are in part, we are elected mainly to serve under our party political colours.
When we debate issues of this kind we bring to bear our own experiences, histories and backgrounds. We have experience as husbands, wives or parents and, of course, as members of families. There are probably no more important subjects to be discussed in this place than marriage and families. I am sure that there is broad consensus on that. As my hon. Friend the Member for Brent, South (Mr. Boateng) said, families are the building blocks of society. The family is the unit that sustains us in time of trouble and it brings us joy, hope and comfort.
It must be the objective of every hon. Member from whatever party they come to do everything that they can to bolster families and to support and preserve the institution of marriage. Perhaps our most important aim is to do whatever we can to make sure that our children, the nation's children, are brought up to lead good and fulfilling lives and give something to society.
I have said that we have had high-quality contributions in the debate. There were some impressive personal testaments by hon. Members in all parts of the House and from different viewpoints. The hon. Member for Birmingham, Edgbaston (Dame J. Knight) spoke movingly about the importance of children and about divorce. The hon. Member for Weston-super-Mare (Sir J. Wiggin) spoke from his own experiences, as did the hon. Member for Mid?Kent (Mr. Rowe) in a short but pertinent intervention. The right hon. Member for Oxford, West and Abingdon (Mr. Patten) spoke about the importance of reconciliation, a theme that hon. Members have returned to time and again. It comes as a surprise that, as originally presented in another place, the Bill did not mention reconciliation. That illustrates some of the confusion about this matter. It is one of the things that Labour Members intend to emphasise in Committee.
My hon. Friend the Member for Motherwell, South (Dr. Bray) mentioned the social context of marriage. That was echoed by my hon. Friend the Member for Sherwood 796 (Mr. Tipping) who has a wealth of experience of working with children. He and my hon. Friend the Member for Barrow and Furness (Mr. Hutton) put the context of the debate in terms of the stresses that are sometimes placed on families and that involve not so much the law, but social problems, unemployment and many other factors that are pertinent to marriage.
The hon. Member for Bournemouth, West (Mr. Butterfill) mentioned pension splitting and his support for that. There was an interesting debate about mediation. An interesting thing about this place, especially when we have important debates such as this one, is that we learn about the background of hon. Members. For example, my hon. Friends the Members for Sheffield, Heeley (Mr. Michie) and for Bristol, East (Ms Corston) and the hon. Member for Chislehurst (Mr. Sims) not only spoke with passion and enthusiasm about mediation, but clearly knew what they were talking about. Perhaps all hon. Members will agree that, sometimes, there is a tinge to speeches in this place which shows that Members may not know what they are talking about. That was certainly not the case in this debate. We all benefited from that. The Committee that considers the Bill will benefit from hon. Members' experience.
The hon. and learned Member for Burton (Sir I. Lawrence) and the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) spoke about preparation for marriage, which is relevant. For those of us who enter into marriage, it is probably the most important decision that we make in our lives, yet preparation for it is often patchy and sometimes non-existent. Again, that theme is not dealt with in the Bill, but it will emerge when hon. Members discuss the matter in Committee.
My hon. Friend the Member for Swansea, East (Mr. Anderson) managed in a short time to put the whole question in context. He reminded me of the case of Wachtel v. Wachtel, which I dimly remember from my Bar exam days. What was good about his speech was that he placed his experience at the Bar at our disposal in telling us what the position was.
The aim of the Divorce Reform Act 1969 was to buttress rather than to undermine the stability of marriage, but, where marriages were thought to have irretrievably broken down, to provide a structure where they could end with minimum bitterness and acrimony. Unfortunately, that has not been the case. As my hon. Friend the Member for Bristol, East said, the 1969 Act had one ground for the ending of the marriage: irretrievable breakdown. That is established by five facts. Three of the facts involve fault, but it was assumed—certainly by the House at the time—that the two years' separation fact would be the one mostly used.
As hon. Members on both sides of the House know, however, that is not the case. Seventy-five per cent. of all cases go on the facts of adultery and unreasonable behaviour. We know the reason for that: to have a quick divorce. Thirty-two per cent. of divorces are granted in under six months and 82 per cent. in under one year. The facts illustrate that the Act's two purposes, which I mentioned—to support marriage and to provide the appropriate structure where they had irretrievably broken down—are not being achieved by current legislation.
The one-year period provided for in the Bill will be subject to a free vote on both sides of the House, as will the removal of the concept of fault. The Bill moves away 797 from the sometimes adversarial nature of divorce towards mediation. I acted for both petitioners and respondents when I was at the Bar, so I have some experience of these matters. Both the solicitors' profession and the Bar have moved on and now the majority of solicitors and barristers recognise the importance of acting responsibly and in the interests of the family.
There is no doubt that our court structure is adversarial. Just as this House is based on adversarial lines, so is our court structure. The Bill moves away from that towards mediation. However, it cannot be stressed enough that mediation is not reconciliation; nor is it counselling. As we go through the Committee stage, we must keep returning to that point—and make no apology for doing so. We must ask some hard questions about the structure of mediation, the training required and the pattern throughout the country. Mediation is not an easy option; it is not something that the enthusiastic amateur can take on. We cannot simply talk about mediation and assume that it will be provided everywhere. Nor can we assume, as my hon. Friend the Member for Brent, South (Mr. Boateng) said, that the structure exists to bring about mediation. It will require highly trained and skilled people. I shall listen closely to the Minister when he replies as I want to hear in detail about the preparations to bring that about.
I understand that there will be a number of pilot projects throughout the country. How will they be run? How will the people in those projects be trained? How will we provide for monitoring? How will we allow for regional variation? If we get it wrong, we could create something as unpalatable and unworkable as the Child Support Agency in its early stages. We will create something that will not work.
In Committee, we must examine how the practical structure will work. We must look at the practical experience of other countries such as Canada, Australia and New Zealand. We must look at best practice. Again, we need to ask hard questions about the information meetings. How will they be held? In what context will they be held? How will they safeguard privacy? How will we ensure that people feel comfortable in those meetings? How will we ensure that people go to them with the best possible attitude?
We must remember that mediation is not always suitable. Some cases, because of their complex nature or the particular facts involved, will not be appropriate for mediation. We must ensure that the need for independent legal advice in such cases is recognised. We want an assurance from the Minister that that legal advice will be available. We certainly do not want the Bill to result in a two-tier divorce system, with one remedy available for those rich enough to pay for it and another for those who are not. That is important.
As well as being members of our political parties, we all have another role as constituency Members of Parliament. Mention has already been made of the effects of marriage breakdown. We see them in our surgeries every week. We see the distress caused to families, the financial hardship and, most important, the distress caused to that group that we can never forget, our children—the most vulnerable people in our community. I say our children because we all have a responsibility for the 798 children in our society. We will need to ensure that during the Minister's reply and in Committee, those hard questions are answered.
An important part of the Bill deals with domestic violence, which is of course tackled by existing legislation, but in a very piecemeal fashion that sometimes makes it difficult for practitioners, and more importantly victims, who are overwhelmingly women, to seek help.
Together with other hon. Members, I was extremely proud to be a member of the Select Committee on Home Affairs, which reported earlier this Session on domestic violence. The most important thing that the House can say about domestic violence is that it is a crime that will be punished by the full weight of the law; that the House takes it seriously; and that the courts and the police take it very seriously. It is important that we consider the Select Committee's conclusions, so I should like to quote a passage from them.We were very impressed by the commitment of many of those we encountered in this inquiry: those who work directly in refuges and with the Women's Aid movement, police officers, probation officers, Crown Prosecutors and others. We should now like to see the energy and zeal displayed by the best in each service becoming common to all. Awareness of the issue must be spread throughout the relevant practitioners in the criminal and civil justice system, and it must be complemented by the full-hearted commitment from the centre of Government to guarantee that most basic of a citizen's rights: the one of living a life where violence is not feared and individual dignity is respected.Violent crime of whatever description is completely abhorrent to the House and society. The unique thing that distinguishes domestic violence from any other violent crime is that it occurs in the very place where we are entitled to feel most secure, safe and protected. For too many of our citizens, especially women and children, the home is a place of fear and violence, where they feel totally unprotected. I am very glad that, in part IV, the issue of domestic violence has been introduced. I am sure that we shall be having detailed discussions of the proposals in Committee.
There has been a great deal of discussion in another place about pension splitting. It is clearly an issue of fairness and equity. The pension built up during a marriage is obviously a family asset. Like the matrimonial home, it needs to be taken into consideration on divorce. I should like to pay a very full-hearted tribute to my noble Friend Baroness Hollis for the campaign that she waged in another place.
Although we welcome the Government's announcement that they will not oppose clause 15, I should like to hear from the Minister—the point was echoed by other hon. Members, certainly the hon. Member for Bournemouth, West—the reason why the time scale for introducing the Green Paper is so dilatory. Why are we talking about June and July? We know that a great deal of preparatory work has been done. Surely the sooner the Green Paper is published and the sooner we can consider some of the complex technical issues the better. We welcome the Government's announcement, but we want to hear more. We certainly want to hear more assurances about the time scale and about how the measure is to be implemented.
I do not think that I am egging the pudding too much when I say that we face a solemn task today. We shall certainly face a solemn task in Committee when we consider the Bill. We are not merely considering the way in which we live our lives in society today, but how we 799 will lead our lives in the next century and the sort of society that we build for our children and grandchildren, who are our future. The Bill is about the future of marriage, the future of families and the future of our children. We owe it to all of them to ensure that we get it right.
§ The Parliamentary Secretary, Lord Chancellor's Department (Mr. Jonathan Evans)
I begin by echoing the words of the hon. Member for Hornsey and Wood Green (Mrs. Roche)—we came to the House at the same time, the last general election. I have participated in a number of debates in the short time that I have been in the House, and I do not recall a debate as good as this. At a time when so much of parliamentary life is derided in the press, it would have been a revelation for some of those who have had so much to say about the subject in our newspapers if they had been present to hear the debate. The quality of contributions from both sides of the House has been immense. It has been said that many hon. Members have chosen to contribute on the basis of personal experience; many other hon. Members have brought strong personal views on conscience issues to bear in the debate—that has all contributed to the quality of the debate.
I shall quote some remarks issued by the Catholic bishops conference on 15 November last year. In touching on the issue of divorce law reform, the bishops said:In respect of the proposed legislation to reform the divorce law, we recognise that differing judgments can be made, sincerely, honestly and legitimately on the details of the Bill and its predictable effects.I agree with that view; that approach has underlined the stance taken by my right hon. Friend the Chancellor of the Duchy of Lancaster.
I am grateful to my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh), and to my hon. Friend the Member for Canterbury (Mr. Brazier), who said earlier that he could not be present for the winding-up speeches. They have had the opportunity to outline their specific concerns, of which the Government are keen to take account.
The core aim of the Bill is not to introduce no-fault divorce, as some have claimed. The core aim of the Bill is to introduce a new concept of a minimum period for reflection and consideration—the introduction of a sort of cooling-off period. It is important to stress that that is wholly different from anything that has been part of our law hitherto. It is true that two of the grounds under current divorce law require people to have been living apart for periods of two years, for a consensual divorce, or five years for a non-consensual divorce. But, as with fault-based grounds, from the time that the petition is presented, one is on a conveyor belt—or, as others have put it, an escalator—the outcome of which is the divorce itself.
What do we know about the presentation of the petition? We know that there is a median time of, broadly, seven months from the time that the petition is presented to the time that a divorce order is granted. We also know that many thousands of people withdraw their petitions within that time—the petition is presented, but the petitioner then thinks better of it. How many other marriages might have been saved if there had been time for reflection and consideration?
800 I must take Issue with one of the points raised by the hon. Member for Littleborough and Saddleworth (Mr. Davies)—I am sure that he will take my comments in the spirit in which they are intended. He said that he did not know anyone who regretted having gone through a divorce. However, the statistics are slightly against him: more than half of men and 28 per cent. of women who have been through divorce regret it and, oddly enough, 10 per cent. regret divorcing each other—in other words, both husband and wife regret the divorce. I believe that the introduction of the cooling-off period is an essential step.
The legislation will encourage reconciliation. The hon. Member for Barrow and Furness (Mr. Hutton) said that marriage support services are not mentioned on the face of the Bill. I do not expect him to have read all the legislation at this stage, but clause 8 refers specifically to marriage support services, and reconciliation is mentioned in other parts of the Bill.
§ Mr. Hutton
I am grateful to the Minister for giving way in his usual courteous manner. I said that the Bill does not refer to marriage guidance services. Will he confirm that he is prepared to use clause 20 to provide active support for marriage guidance services? Whether we call it marriage guidance or marriage support is neither here nor there. The Bill certainly does not refer to marriage guidance.
§ Mr. Evans
The new structure that we shall put in place will channel people towards marriage support services. For example, we have introduced the information meeting. Under current law, lawyers are required to advise their clients of the availability of marriage support services. No doubt due to the stress of the divorce process, 75 per cent. of people have no recollection of those services having been outlined to them.
That is one of the reasons why we need a structure that will ensure that people receive the requisite information. We are receptive to all sorts of proposals—to which hon. Members referred in the debate—as to how that information may be conveyed to the individual. The Lord Chancellor's Department proposes to deal with it by establishing an advisory committee and a pilot project. I am sure that that approach will be welcomed across the House.
A statement can be served only after the information meeting has taken place. The cooling-off period then begins. We are promoting mediation—I shall refer later to the issues raised by the hon. Member for Brent, South (Mr. Boateng) on that subject—which we believe is the best way of reducing much of the hostility in the divorce process. I state clearly at the outset that no one claims that the Government are in a position to remove the acrimony or hostility from divorce: we could not contrive a situation to achieve that objective. However, we can remove from our divorce process those structures that build upon hostility and acrimony and that emphasise or exaggerate those elements. I believe that they are not in the interests of children.
It has been said that the proposals will lead to quicker and easier divorces. As was made clear during the debate, the median time for granting a divorce is seven months, and that time will almost double under the proposals. Greatest interest was expressed in what has been characterised wrongly as the "no-fault divorce". It is wrong to claim that the proposal to move to one, set 801 ground for divorce—the irretrievable breakdown of the marriage—was dreamt up by a liberal Law Commission in the 1990s. We must go further back to a committee established by the Archbishop of Canterbury in 1966—I do not know whether some of my hon. Friends would express the same view about that Archbishop of Canterbury as they have expressed about more recent Archbishops.
According to "Putting Asunder", the Archbishop of Canterbury's report in 1966 said that the structure of the marital offence built upon the very hostilities to which I have referred and, for the first time, proposed moving to a structure in which the irretrievable breakdown of the marriage should be the ground for divorce.
A matter has been raised on many occasions by my hon. Friend the Member for Canterbury, and my hon. Friend the hon. Member for Gainsborough and Horncastle raised it with me tonight. It is certainly not a part of our law that conduct has no part to play. Section 25 of the Matrimonial Causes Act 1973 states that conduct should be taken into account. I have listened with care to the points that have been raised and, in view of the concerns that have been outlined in that regard, I shall certainly examine what the practice has been in the courts.
In the same way. the period of time is clearly a matter of conscience and must be subject to a free vote. I am pleased that the whole House has welcomed that.
My hon. Friend the Member for Batley and Spen (Mrs. Peacock) is not in her place, but my right hon. Friend the Chancellor of the Duchy promised that I would respond to her earlier intervention. Under current law, one is unable to present a petition for divorce unless a period of at least 12 months has elapsed. Therefore, a petition could be presented by a newly married person only after that 12-month period has elapsed. Under the proposed new law, that period would double to a minimum two-year period—the one-year period during which no petition can be presented and the following year, during which the couple would have to engage in reconciliation and consideration of their position. That is a great advance on the current state of the law.
My right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) should examine one aspect of the current structure of our law in relation to the two-year and five-year periods. It is a requirement of those conditions that couples should live apart. I am very much aware that concerns have been expressed in many quarters about the fact that once a couple separate, they are moving towards the eventual break-up of their marriage. If the difficulties in a marriage lead to circumstances in which a couple are required to live apart, they may inexorably proceed to divorce. The two-year and five-year grounds both require the couple to live apart for a period of two or five years.
I would argue that a proposal such as that on the face of the Bill—that, from the time that a statement is made stating that the marriage has irretrievably broken down, the couple would be required to concentrate on the prospects of reconciliation because they will be directed towards that through the information sessions and the mediator will be under a requirement to keep the prospects of reconciliation very much to the fore—is very much better than the position in our current law.
§ Mr. Patten
Does my hon. Friend recognise that, by attributing to me an approval of the present law that requires people to live separately for two or five years, he has baited a trap and fallen into it? At no stage have I argued that. I have argued, however, that there should be a proper period of reflection for 18 months or two years, during which people can go through reconciliation and mediation. Does he recognise that it is not wise to put words in other people's mouths?
§ Mr. Evans
I am grateful to my right hon. Friend for that clarification. The outcome of his comments is that he recognises that the current structure of the law should not be supported, and in those circumstances the Bill presents us with the opportunity to address the very problem that he has outlined.
Let me also deal with a specific point to which my right hon. Friend the Chancellor of the Duchy promised that I would respond. My right hon. Friend the Member for Oxford, West and Abingdon asked what was the Government's view as to whether there was likely to be a decline in the number of divorces. I am loth to make too many predictions, because my right hon. Friend quoted an article in The Spectator by Ruth Deetch—whom my right hon. Friend said is one of his constituents. She wrote:Experience should have taught us to be wary of predictions about future human behaviour.I pay attention to her interdiction about predictions, but I am happy to predict that when the Bill is passed, the requirement for a 12-month cooling-off period is certain to result in a reduction in the number of divorces. It follows, and is clear from the measure, that no one will be able to go through the divorce process before the one-year cooling-off period.
§ Sir Michael Neubert
As that point has been made more than once, will that not be a one-off effect and, thereafter, the sequence will follow and there will be no reduction in the number of divorces?
§ Mr. Evans
I accept my hon. Friend's point, but I was invited to predict the outcome of passing the Bill. My hon. Friend probably agrees that that would be the response. However, the structure that I have outlined infinitely promotes reconciliation over the current situation. I hope that, in due course, we would not return to the current figures. The objective of not returning to that disadvantageous situation underpins the Government's proposals. I would be surprised if my hon. Friend is happy with the current structure of divorce law. Our proposals present my hon. Friend and me with the opportunity of doing something about it.
§ Mr. Evans
I certainly do not want to follow the American experience, which is one reason why we have not gone down the American route of a specific period of separation and the no-fault provision. The requirement for a cooling-off period, and for a period during which active steps will be taken through mediation to resolve issues in relation to children, finance and property in a less hostile atmosphere is a big advantage over the practice in the 803 United States of America. The experience of some other jurisdictions, notably those quoted in the debate, is wholly different—the signs are that there has not been an increase in divorces. I will be happy to provide my hon. Friend with that information in due course.
The hon. Member for Brent, South asked for an idea of the way in which mediation will proceed. Particular interest was shown in the debate in the situation in respect of legal advice and representation. The current cost of supporting lawyers to undertake legal aid divorce cases is £376 million—a huge sum that amounts to much more than £2,000 for each couple. It is clear from all the studies of mediation that it is not likely to be anywhere near as expensive as a protracted or contested divorce. My hon. Friend the Member for Chislehurst (Mr. Sims), who has substantial knowledge of the subject, recounted his experience. He will confirm that the costs of mediation are significantly less. It is important that couples should have access to green form legal advice and, if they are eligible, it will be available to them during the mediation process. If the parties are found not to be susceptible to dealing with matters by mediation, ultimately the court process will be available to them.
I say to my hon. Friends, as I said at the outset of the debate, that we are dealing with issues of fundamental importance to the people of Britain. Some people have asked whether we should be engaged in a debate about divorce. Divorce touches more than half a million people a year. If the current structure does not work well, we have to resolve it, and that is what the Bill will do.
§ Question put, That the Bill be now read a Second time:—
§ The House divided: Ayes 280, Noes 13.805
|Division No. 85]||[10.00 pm|
|Abbott, Ms Diane||Brandreth, Gyles|
|Ainsworth, Peter (East Surrey)||Brazier, Julian|
|Aitken, Rt Hon Jonathan||Bright, Sir Graham|
|Alexander, Richard||Brooke, Rt Hon Peter|
|Alison, Rt Hon Michael (Selby)||Brown, N (N'c'tle upon Tyne E)|
|Anderson, Donald (Swansea E)||Browning, Mrs Angela|
|Anderson, Ms Janet (Ros'dale)||Bruce, Ian (South Dorset)|
|Arbuthnot, James||Burns, Simon|
|Arnold, Jacques (Gravesham)||Burt, Alistair|
|Arnold, Sir Thomas (Hazel Grv)||Butler, Peter|
|Ashdown, Rt Hon Paddy||Butterfill, John|
|Atkinson, David (Bour'mouth E)||Callaghan, Jim|
|Atkinson, Peter (Hexham)||Campbell, Mrs Anne (C'bridge)|
|Baker, Nicholas (North Dorset)||Campbell, Menzies (Fife NE)|
|Baldry, Tony||Carrington, Matthew|
|Barnes, Harry||Chapman, Sir Sydney|
|Batiste, Spencer||Churchill, Mr|
|Bayley, Hugh||Clappison, James|
|Beith, Rt Hon A J||Clark, Dr David (South Shields)|
|Bellingham, Henry||Clarke, Eric (Midlothian)|
|Bennett, Andrew F||Clarke, Rt Hon Kenneth (Ru'clif)|
|Beresford, Sir Paul||Clifton-Brown, Geoffrey|
|Bermingham, Gerald||Coe, Sebastian|
|Betts, Clive||Congdon, David|
|Biffen, Rt Hon John||Conway, Derek|
|Blunkett, David||Coombs, Anthony (Wyre For'st)|
|Boateng, Paul||Coombs, Simon (Swindon)|
|Boswell, Tim||Cope, Rt Hon Sir John|
|Bottomley, Peter (Eltham)||Corston, Jean|
|Bottomley, Rt Hon Virginia||Couchman, James|
|Bowden, Sir Andrew||Cran, James|
|Bowis, John||Cunningham, Jim (Covy SE)|
|Currie, Mrs Edwina (S D'by'ire)||Hunt, Sir John (Ravensbourne)|
|Curry, David (Skipton & Ripon)||Hunter, Andrew|
|Dalyell, Tam||Hutton, John|
|Davies, Chris (L'Boro & S'worth)||Jack, Michael|
|Davies, Quentin (Stamford)||Jackson, Robert (Wantage)|
|Davies, Ron (Caerphilly)||Jenkin, Bernard|
|Day, Stephen||Jessel, Toby|
|Deva, Nirj Joseph||Johnson Smith, Sir Geoffrey|
|Devlin, Tim||Jones, Barry (Alyn and D'side)|
|Dixon, Don||Jones, Gwilym (Cardiff N)|
|Dobson, Frank||Jones, leuan Wyn (Ynys Môn)|
|Donohoe, Brian H||Jones, Nigel (Cheltenham)|
|Douglas-Hamilton, Lord James||Jones, Robert B (W Hertfdshr)|
|Dover, Den||Kennedy, Charles (Ross,C&S)|
|Durant, Sir Anthony||Key, Robert|
|Eastham, Ken||King, Rt Hon Tom|
|Eggar, Rt Hon Tim||Kirkhope, Timothy|
|Elletson, Harold||Knapman, Roger|
|Emery, Rt Hon Sir Peter||Knight, Rt Hon Greg (Derby N)|
|Evans, Jonathan (Brecon)||Kynoch, George (Kincardine)|
|Evans, Nigel (Ribble Valley)||Lait, Mrs Jacqui|
|Evans, Roger (Monmouth)||Lang, Rt Hon Ian|
|Evennett, David||Lawrence, Sir Ivan|
|Faber, David||Legg, Barry|
|Fabricant, Michael||Lennox-Boyd, Sir Mark|
|Field, Barry (Isle of Wight)||Lester, Sir James (Broxtowe)|
|Fishburn, Dudley||Lidington, David|
|Forman, Nigel||Lilley, Rt Hon Peter|
|Forsyth, Rt Hon Michael (Stirling)||Lloyd, Rt Hon Sir Peter (Fareham)|
|Forth, Eric||Llwyd, Elfyn|
|Fowler, Rt Hon Sir Norman||Luff, Peter|
|Fox, Dr Liam (Woodspring)||Lynne, Ms Liz|
|Fox, Rt Hon Sir Marcus (Shipley)||McFall, John|
|Freeman, Rt Hon Roger||MacGregor, Rt Hon John|
|French, Douglas||Mackay, Mr Andrew|
|Gale, Roger||Mackinlay, Andrew|
|Gallie, Phil||Maclean, Rt Hon David|
|Garnier, Edward||McLoughlin, Patrick|
|Gilbert, Rt Hon Dr John||Major, Rt Hon John|
|Gillan, Cheryl||Malone, Gerald|
|Godman, Dr Norman A||Mans, Keith|
|Goodlad, Rt Hon Alastair||Marlow, Tony|
|Goodson-Wickes, Dr Charles||Martin, David (Portsmouth S)|
|Gorman, Mrs Teresa||Maxton, John|
|Greenway, Harry (Ealing N)||Merchant, Piers|
|Greenway, John (Ryedale)||Michael, Alun|
|Griffiths, Peter (Portsmouth, N)||Michie, Bill (Sheffield Heeley)|
|Gummer, Rt Hon John Selwyn||Milburn, Alan|
|Gunnell, John||Miller, Andrew|
|Hague, Rt Hon William||Mitchell, Andrew (Gedling)|
|Hall, Mike||Mitchell, Austin (Gt Grimsby)|
|Hamilton, Rt Hon Sir Archibald||Mitchell, Sir David (NW Hants)|
|Hampson, Dr Keith||Moate, Sir Roger|
|Hanley, Rt Hon Jeremy||Monro, Rt Hon Sir Hector|
|Hannam, Sir John||Montgomery, Sir Fergus|
|Hargreaves, Andrew||Moonie, Dr Lewis|
|Harris, David||Morgan, Rhodri|
|Harvey, Nick||Morris, Rt Hon John (Aberavon)|
|Haselhurst, Sir Alan||Mullin, Chris|
|Hawkins, Nick||Nelson, Anthony|
|Hawksley, Warren||Newton, Rt Hon Tony|
|Hayes, Jerry||Nicholls, Patrick|
|Heald, Oliver||Nicholson, David (Taunton)|
|Heathcoat-Amory, Rt Hon David||Nicholson, Emma (Devon West)|
|Hendry, Charles||Norris, Steve|
|Heppell, John||Olner, Bill|
|Heseltine, Rt Hon Michael||Onslow, Rt Hon Sir Cranley|
|Hill, James (Southampton Test)||Oppenheim, Phillip|
|Hill, Keith (Streatham)||Ottaway, Richard|
|Hinchliffe, David||Page, Richard|
|Hogg, Rt Hon Douglas||Paice, James|
|Horam, John||Patnick, Sir Irvine|
|Hordern, Rt Hon Sir Peter||Pawsey, James|
|Howard, Rt Hon Michael||Pickles, Eric|
|Howell, Sir Ralph (N Norfolk)||Pike, Peter L|
|Hughes, Simon (Southwark)||Porter, David (Waveney)|
|Portillo, Rt Hon Michael||Taylor, Mrs Ann (Dewsbury)|
|Prentice, Bridget (Lew'm E)||Taylor, Ian (Esher)|
|Rathbone, Tim||Taylor, John M (Solihull)|
|Raynsford, Nick||Taylor, Matthew (Truro)|
|Redwood, Rt Hon John||Taylor, Sir Teddy (Southend, E)|
|Rendel, David||Thomason, Roy|
|Richards, Rod||Thompson, Patrick (Norwich N)|
|Riddick, Graham||Tipping, Paddy|
|Roberts, Rt Hon Sir Wyn||Trend, Michael|
|Robertson, Raymond (Ab'd'n S)||Twinn, Dr Ian|
|Robinson, Mark (Somerton)||Tyler, Paul|
|Roche, Mrs Barbara||Viggers, Peter|
|Rowe, Andrew (Mid Kent)||Waller, Gary|
|Sackville, Tom||Ward, John|
|Shaw, David (Dover)||Wardle, Charles (Bexhill)|
|Shaw, Sir Giles (Pudsey)||Waterson, Nigel|
|Shephard, Rt Hon Gillian||Watts, John|
|Shepherd, Sir Colin (Hereford)||Wells, Bowen|
|Shersby, Sir Michael||Whitney, Ray|
|Simpson, Alan||Whittingdale, John|
|Sims, Roger||Wicks, Malcolm|
|Soames, Nicholas||Wiggin, Sir Jerry|
|Spencer, Sir Derek||Willetts, David|
|Spink, Dr Robert||Wolfson, Mark|
|Spring, Richard||Wood, Timothy|
|Sproat, Iain||Wray, Jimmy|
|Squire, Rachel (Dunfermline W)||Wright, Dr Tony|
|Squire, Robin (Hornchurch)||Yeo, Tim|
|Stanley, Rt Hon Sir John||Young, David (Bolton SE)|
|Steen, Anthony||Young, Rt Hon Sir George|
|Stern, Michael||Tellers for the Ayes:|
|Sumberg, David||Mr. Michael Bates and Mr. Gary Streeter.|
|Alton, David||Skeet, Sir Trevor|
|Bray, Dr Jeremy||Skinner, Dennis|
|Butcher John||Smyth, The Reverend Martin|
|Townend, John (Bridlington)|
|Kellett-Bowman, Dame Elaine||Trimble, David|
|Knight, Dame Jill (Bir'm E'st'n)|
|Molyneaux, Rt Hon Sir James||Tellers for the Noes:|
|Neubert, Sir Michael||Mr. Bob Dunn and Mr. Edward Leigh.|
|Patten, Rt Hon John|
§ Question accordingly agreed to
§ Bill read a Second time.
- (a) Clauses Nos. 5 and 7, and
- (b) any new Clauses or new Schedules appearing on the Order paper not later than Monday 1st April and relating to the circumstances in which a marriage may be taken to have broken down irretrievably or in which a divorce order or a separation order may be made by the Court, or to the period for reflection and consideration.
- be committed to a Committee of the whole House;
§ That the remainder of the Bill be committed to a Standing Committee;
§ That when the provisions of the Bill considered, respectively, by the Committee of the whole House and by the Standing Committee have been reported to the House, the Bill be proceeded with as if the Bill had been reported as a whole to the House from the Standing Committee.—[Mr. Freeman.]
§ Committee tomorrow.