§ 6.35 p.m.
§ The Lord Chancellor
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD NUGENT OF GUILDFORD in the Chair.]
§ Clause 1 [Bar on petitions for divorce within one year of marriage]:
Lord Denning moved Amendment No. 1:
Page 2, line 4, leave out ("For").
§ The noble and learned Lord said: I beg to move Amendment No. 1. My amendment is very much connected with Amendments Nos. 2 to 5. It might be convenient if they were all taken together.
The Deputy Chairman of Committees
Yes, they can be debated together, but will be voted on separately.
§ Lord Denning
In those circumstances I shall speak to Amendments Nos. 2 to 5 as well.Amendment No. 2: Page 2, line 7, leave out from ("obtained)") to end of line 14 and insert ("shall be repealed.").Amendment No. 3: Page 2, leave out lines 9 to 14 and insert—
§ "Restriction on petitions for divorce within two years of marriage.
§ 3.—(1) Subject to subsection (2) below, no petition for divorce shall be presented to the court before the expiration of the period of two years from the date of the marriage (hereinafter in this section referred to as "the specified period").
§ (2) A judge of the court may, on an application made to him allow the presentation of a petition for divorce within the specified period on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent; but in determining the application the judge shall have regard to the interests of any child of the family and to the question whether there is reasonable probability of a reconciliation between the parties during the specified period.
§ (3) Applications for the presentation of a petition for divorce within the specified period shall be heard and determined by a Judge otherwise than in open court.
§ (4) If it appears to the court, at the hearing of a petition for divorce presented in pursuance of leave granted under subsection (2) above, that the leave was obtained by the petitioner by any mispresentation or concealment of the nature of the case, the court may—
- (a) dismiss the petition, without prejudice to any petition which may be brought after the expiration of the specified period upon the same facts, or substantially the same facts, as those proved in support of the dismissed petition; or
- (b) if it grants a decree, direct that no application to make the decree absolute shall be made during the specified period.
(5) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which occurred before the expiration of the specified period. ".").
Amendment No. 4: Page 2, line 11, leave out ("one year") and insert ("two years").
Amendment No. 5
After Clause 2, insert the following new clause:
§ ("Application to court for financial orders.
§ .In subsection (4) of section 23 of the Matrimonial Causes Act 1973 after the words "from time to time" there shall be inserted the following words "and shall be exercisable on the application either of a party to the marriage, or in the case of a child over the age of sixteen, by the child".").
§ The existing law is that a petition for divorce cannot be presented within the first three years except in cases of 932 exceptional hardship and exceptional depravity. On Second Reading it was quite clear that everyone agreed that that provision should be repealed. The one question for consideration this evening is what should take its place. I would like to suggest that there be no time limit at all, that a person can present a petition for divorce if the marriage has irretrievably broken down, as it might do within three months, six months or a year of the marriage. In making that suggestion I think I have the great support of the Scottish law and the Scottish Law Commission. The law in Scotland is that if there is an irretrievable breakdown of marriage, the petition can be launched within the three years or at any time after the marriage.
§ I should like to say as a matter of general principle that it is important that the laws of Scotland and England should be uniform on this matter. I know that, under the Act of 1707, Scotland had its own separate legal system and separate laws. But by judicial decision and legislation the two countries have come more and more together. For example, in regard to homicide and murder, Scotland, 100 years ago, had the defence of diminished responsibility. We followed Scotland's example just a few years back. Suicide was a crime in England until a few years ago—again, we followed Scotland in that respect.
§ As a matter of general principle, if these two countries remain separate it is easy enough for a couple who live and dwell in England to know that they must go to the divorce court in England and wait three years or whatever the period may be. But a couple married and living in Scotland may, if there is an irretrievable breakdown, go to the courts at once. I ask the question, what is to happen when an Englishman marries a Scotswoman, or vice versa, and the marriage irretrievably breaks down—which court are they to go to? Or, if one of them is living in Scotland and the other in England, which court are they to go to? To answer that question involves very complicated research into the Domicile and Matrimonial Proceedings Act 1973, because now a wife can have a separate domicile from her husband and does, and a person can live in Scotland and still have a domicile in England.
§ There are many complexities in the case of an Englishman married to a Scotswoman, and there ought to be none. Therefore, my first point is: remove all differences between England and Scotland in this matter. Marriage is being brought together. Long ago we did away with the smithy at Gretna Green. The Scottish law on marriage is uniform with ours. When we introduced the irretrievable breakdown of marriage as a ground for divorce, Scotland followed us. This is about the only matter of substantive law where there is a difference between England and Scotland. So my first point is that England and Scotland should be the same, because Scotland has tried it out.
§ In its report the Law Commission has drawn particular attention to the good working of the Scottish system, where there is no time limit. It says that only a very few marriages break down in the first two or three years. In my experience they break down only in extreme cases when the husband goes off with another spouse or the wife goes off with another spouse and perhaps has another child by him; surely the innocent spouse ought to be able to get a divorce. If they have 933 to wait for three years, it only delays the divorce, it does not save the marriage. To wait for three years, two years, or even one year does not save a marriage; it only delays it. The Scottish experience shows that. Therefore, I would say that we should follow the Scottish experience, because that has been shown to be good, working well and apportions justice between the parties.
§ I should like to say how valuable are the reports of the Law Commission in showing all the arguments, pro and con. The only argument in favor of one year is that it is a provision which helps to stabilise marriage and gives the parties a better idea of the permanence of marriage. I do not think that that is legitimate or a good argument in the least. When people marry they do not contemplate separation. The Scottish experience shows this. This one year is simply something and nothing.
§ Perhaps I can tell the Committee how the original three years came into being. Before Sir Alan Herbert's Act of 1937 divorce could be granted only if there had been adultery. Noble Lords may not remember, but I do, the collusive divorces prior to that Act where, if the marriage had broken down, one of the parties would go to a hotel and give a faked hotel bill as proof of adultery when, in fact, there had been none. Then Sir Alan Herbert introduced his Bill giving cruelty and desertion as grounds for divorce.
§ It was at that stage that everyone thought that divorce should not be made too easy and so the three-year period was introduced. That is how that provision came into being. Now we have got rid of all those provisions. They have been replaced by a new principle—the irretrievable breakdown of marriage. That old three-year limitation has gone in logic completely, and it seems to me that that applies equally to two years or even to one year. Therefore, I should like to suggest that we simply repeal that old, out-of-date provision, and put no new limitation in its place, not even a limitation of one year. I recognise the force of what the Law Commission has said, but I do not think that we should have even that one year. I think we should leave it, and at the same time bring the law of Scotland and the law of England together. I beg to move.
§ Lord Elwyn-Jones
The noble and learned Lord, Lord Denning, has suggested—and I think helpfully—that we should discuss together (but, of course, they will have to be divided upon separately) Amendments Nos. 1 to 5, which it falls to us to consider. The noble and learned Lord has greatly emphasised the complexities which will arise if the law of Scotland is different from that of England and Wales. Unhappily, that conflict has arisen frequently in the past in the realms of crime, family law, civil law and in many other ways. Somehow the amity between the two nations and peoples has survived, and I have little doubt that it will survive again if we have a difference in this important field of the Matrimonial and Family Proceedings Bill.
We have here a difference of opinion, and I suspect that there will be no great feeling of dogmatic conviction on any side. One view is that there should be no restriction whatever in terms of time; that is to say, there could be proceedings for a divorce within 934 weeks or even days of the marriage taking place, and all would be well, all would be happy. The other view which the Bill takes, which I confess I take and which the Law Commission took, is that there ought at least to be some interval before the plunge into divorce takes place. The majority of marriages are between the fairly young, and perhaps it is a conviction and a weakness of old age which seems to think that a little waiting time would be very good. It is certainly my view, and it was the view of the Law Commission, that there should be a reasonable interval in order to decide whether or not the marriage has irretrievably broken down, and that there has not just been a quarrel or a crisis about this or that difference. I, personally, would have thought that a year was a reasonable interval in which to enable the parties to decide whether that is so one way or the other.
The noble Lord, Lord Robertson of Oakridge, moved towards a suggestion of two years. That is twice as long as one year, but I should have thought that the conclusion of the commission and of the provisions in the Bill was satisfactory. No great difference of principle arises between one year and two years. It is just a judgment—I hope a sensible one—of how long the time should be.
Amendment No.3, in the name of the right reverend Prelate the Bishop of Rochester, again proposes a two-year period, but then maintains what has been almost universally condemned—certainly by the judiciary and elsewhere—that if a party wants to petition for divorce within those two years, the husband or the wife can do so if he or she can show "exceptional hardship or depravity". The strongly expressed view has been that such applications, even if made in closed court, would only increase the mischief between the parties. To do so in closed court would certainly not eliminate the mischief, the bitterness and humiliation which could arise if those issues are to be fought again, which could well prejudice any reason able settlement between the parties about financial provisions and arrangements for custody of and access to the children. Therefore, my view, which I express in regard to that matter in a somewhat dogmatic way, is that that would be a retrograde step and contrary to experience in the courts and elsewhere. We have no whip on in this debate; the vote is a free vote, and accordingly I support Clause 1 as it stands.
§ The Lord Bishop of London
I rise to support Amendments Nos. I and 2, in the name of the noble and learned Lord, Lord Denning. I much regretted that I could not be present for the Second Reading, but I had to be in Jamaica for the centenary of the Province of the Church of West Indies. However, I have read the debate carefully and can appreciate the difficulties which a three-year time bar has created for the administration of justice. I must admit that I find the arguments in favor of the one-year time bar less than convincing.
§ The Lord Chancellor
I am so sorry; I was consulting the learned Clerk on a point of order. I apologise for interrupting the right reverend Prelate. It was very rude of me, but I had to know what to do next.
§ The Lord Bishop of London
If I may, I shall continue. I thank the Lord Chancellor. I find the arguments in favor of a one-year time bar less than convincing, and certainly not such as to convince me that there are reasons why the Scottish practice should not be adopted here.
I agree with what the noble Baroness, Lady Macleod of Borve, and the noble Lady, Lady Saltoun, said about the effect on the understanding of marriage which the reduction in the period of the time bar might have on the expectation of marriage when it is undertaken and on the willingness to work for the success of a marriage. I remind your Lordships that that willingness is necessary in all marriages, and not just in certain marriages which are difficult. I must confess to a certain sense of disappointment on reading the debate that comparatively little was said about this aspect of the matter. Much was said about the administration of justice, which I accept and appreciate, but little was said about the effect upon public opinion of what is proposed in the Bill. However, if the three-year time bar is not to be retained it would seem to me much better to have no time bar at all. That would resolve the judicial difficulties which are pleaded as a reason for its reduction. But it would also avoid giving the impression that one year is an adequate time in which a couple can and should judge whether their marriage is to be a success. With all respect to the noble and learned Lord, Lord Elwyn-Jones, I think there is a great difference between one year and two or three.
I hope that we all here desire to encourage the stability of marriage. I do not believe that the introduction of a one-year time bar would do that, but rather the reverse. Putting into people's minds the notion that within the first year the marriage must show all the signs of a lasting relationship and if it does not it can be ended forthwith, can only undermine this essential and God-given institution. Two years is a lot better than one. It is difficult to say why. but I maintain that two years is better not merely in degree but in kind. The noble and learned Lord, Lord Elwyn-Jones, used the phrase "a reasonable interval". I would suggest from my not inconsiderable pastoral experience of dealing with marriage problems and with education for marriage that a reasonable interval might be two years. I do not think it could be one year. It takes that time to get used to being married, however good a marriage is.
In his opening speech on the Second Reading the noble and learned Lord the Lord Chancellor spoke of the Scottish practice and said:the Scots would not be particularly complimented by the implied criticism that they are less zealous than the English for the Christian religion and doctrine, the stability of marriage or the sanctity of family life".—[Official Report, 21/11/83; col. 33.]I quote those words in my own defence now as saying that in pleading for the abolition of a time bar I do not believe that I am in any way undermining the institution of marriage, but rather the reverse. The noble and learned Lord then went on to point out that the Scots have facts on their side as illustrated by the graph on page 56 of the Law Commission Report.
When I come later in his speech to his arguments in favor of the time bar I find what he says far less convincing. He says: 936a reduced time bar will not in fact impose intolerable hardship and is unlikely to operate at all, except in a relatively insignificant minority of cases".If it is only for an insignificant minority of cases, why do we need it? He goes on to draw attention to the fact that the Commission originally sounded a rather uncertain note in its consultation paper, and he says:I believe with their final report that an absolute bar for one year is the right rule for England and Wales. Otherwise I must say at once that I would get rid of it altogether and conform to the Scottish practice".—[cols. 33–34.].I find it hard to see convincing reasons why we should not conform to the Scottish practice, and I find the arguments in favor of the Scottish practice by the noble and learned Lord the Lord Chancellor much more convincing. I hope that he might accept the force of his own argument in favor of Scotland and give a lead to your Lordships in supporting this amendment.
§ Baroness Lockwood
On Second Reading there was great concern in all parts of your Lordships' House not to diminish marriage as an institution, nor to do anything that would encourage the break-up of marriage. I think the one-year bar in itself diminishes the institution of marriage. I do not think it gives the parties a sufficiently long time to work out the marriage and to make sure that the marriage will continue. But it is difficult for us to determine just how long is required to make a successful marriage. The marriage itself and the two parties involved should be the determining factors. We should concentrate on the quality of the marriage. Therefore, in that sense I support the amendment in the name of the noble and learned Lord, Lord Denning. This puts the onus and responsibility on individuals to ensure that their marriage will continue.
I say to those noble Lords who feel that a time bar should be imposed on the institution of divorce that, whatever the time bar, it does nothing to discourage the break-up of marriage itself. In the few exceptional cases which occur in the early stages of marriage, I think it would be much better if those individuals could have a clean break rather than that we should impose upon them a bar of any period. I support the first amendment.
§ Lord Robertson of Oakridge
I rise to put the case for a two-year time bar. I enter your Lordships' discussions with considerable trepidation. I find much in the Bill to welcome, and I accept that it is largely a tidying-up operation. I would not have spoken at all in Committee had it not been that a number of organisations have expressed concern to me, and much of this concern stems from the proposal to reduce the time bar to one year.
At the Second Reading debate your Lordships heard the doubts of the Church of England expressed by the right reverend Prelate the Lord Bishop of Rochester. I have heard from the Baptist Union who are of the opinion that the one-year time bar is too short. They say that in the early days of marriage there are difficultues created by learning to live together. In their view, a lengthening of the time would encourage couples to try reconciliation rather than go for the easy way out of dissolving the partnership. The Responsible Society and Care Campaigns have expressed to me the same view.
937 The National Council of Women of Great Britain have stated to me that they consider that—and I quote:A longer time than a year is desirable to give couples the chance to adjust to each other, resolve differences and reach a fair compromise on the matters in dispute".The Mothers' Union are also in favor of a two-year time bar, an absolute time bar of two years. Indeed, 50 per cent. of their members are in favor of three years and the Mothers' Union have expressed their view that the existence of a time restriction helps protect those who marry from doing so casually or without due consideration.
This brings me to my own reason for supporting a two-year time bar which is based on the word "commitment", which I would explain as follows. In the field of human relations, with the possible exception of conceiving a child, marriage is the greatest commitment that one can make. That being so—and this I say with the utmost respect to your Lordships—I wonder whether sometimes we tackle the problem of divorce from the wrong end. Once a marriage has started on the wrong foot, there is often little that can be done, certainly by the law. It is what happens before the marriage that matters. For this reason, I have always felt that the key to a happy and lasting marriage is the degree of commitment given by the two people concerned to each other at the outset, having considered the implications of what is involved. The question therefore is whether this Bill, and this clause, in particular, is likely to help or to hinder commitment.
May I say that I accept what the noble and learned Lord the Lord Chancellor said in the Second Reading debate about the effects of the Bill having been exaggerated and its contents distorted. When the leading article in a Church newspaper said that the Bill—and I quote:makes possible divorce after one year of marriageit was making a gross over-simplification. Nevertheless, I believe that that is just what many people will think. Rightly or wrongly, couples will enter marriage believing that if it does not work they can always call it off after a year and try again with someone else. The amendment moved by the noble and learned Lord. Lord Denning, would not be helpful in this respect.
Therefore, at a time when we should be doing all we can to help people getting married to deepen their commitment to the marriage, I believe that the reduction of the time bar to one year, or, indeed, its abolition, would have a psychological effect in the opposite direction. I would therefore prefer to see a two-year bar on petitions if only to encourage couples to stop and think before marriage about the step that they are taking and to consider the degree of commitment which they will need to develop.
Furthermore, a two-year bar would be consistent with the view taken by Parliament that a two-year separation constitutes a prima facie case of breakdown. I wonder whether, if we have a time bar that is less than two years, we shall not get a great many cases under the first two grounds of the Matrimonial Causes Act 1973, adultery and what we might call impossible behaviour. In the context of a promise to live together and to love each other for life, 938 two years does not seem an unreasonable period to wait before taking steps to undo that promise.
§ 7.5 p.m.
The Lord Bishop of Rochester
In supporting Amendment No. 3, I speak with even greater hesitation than I did on the Second Reading debate. In that debate, I expressed the hope that we would look in Committee at some of the alternative options that the Law Commission themselves considered before recommending a one-year bar with no exceptions. I am therefore very glad that we are now looking at four of those options simultaneously. I would remind your Lordships again that the Law Commission themselves said in their report:There is an obvious danger that any move which would appear to make divorce easier to obtain would be seen as eroding the stability and dignity of marriageand that I was not alone in suggesting that the reduction of the time restriction to one year does just that.
Speakers on both sides of this House, while in general they welcome the Bill, have raised doubts about a one-year bar. The noble Lord, Lord Robertson, has referred to the views expressed by the Mothers' Union to the noble and learned Lord the Lord Chancellor nearly a year ago. Those views are echoed by many social workers and marriage guidance councillors who are often involved before any lawyers come on the scene. Indeed, the noble and learned Lord, Lord Denning, in speaking the other day of the importance of reconciliation and conciliation said that the right procedure before the parties go to a solicitor is for them both to go to a marriage guidance councillor. I would remind your Lordships that the Booth Committee have already said:Moreover, there is evidence that conciliation can lead to reconciliation, sometimes in apparently unpromising cases".For these reasons, I presume to ask the Committee to consider this amendment, the effect of which would be to re-enact Section 3 of the Matrimonial Causes Act 1973 with a two-year bar instead of a three-year bar and with the addition of subsection (3) which provides for applications to be heard by a judge in Chambers, as I understand has been the custom for several years.
This amendment offers some relief in the first year as well as the second, while the proposed absolute bar does not. I believe that we all accept that there are cases of extreme need which require immediate relief. The present rule provides for this; the new clause does not; my amendment does. I submit that this is a less harsh procedure than that which the Government are proposing. We have been told by the noble and learned Lord, Lord Scarman, and others that the present procedure is open to abuse and that it is an embarrassment to the judges. If that is so, then surely it must be possible for new guidelines on exceptions to be issued—which was one of the Law Commission's options—or for new rules to be drawn up for the courts.
The Bill has been described as a lawyers' Bill and not a social workers' Bill. I believe that many Roman Catholic priests, Free Church Ministers and Anglican clergymen feel the same. The Law Commission may consider this Bill to be a tidying up of the existing law; distinguished judges may consider it a good Bill which 939 will relieve hardship; but there are many people of all religious beliefs and of none who have serious anxieties lest the reduction of the time bar to one year will further undermine the public sense of the value placed on marriage in the law.
It is because I believe that, in its content and its procedure, law must do all that it can to underline the seriousness of the marriage contract and encourage people to enter marriages with this in mind, that I ask the Committee to think again about the proposed one-year bar, if we must legislate now rather than waiting for the Booth Committee report or for the Government proposals for family courts.
I acknowledge at once that I may not have got the wording of this amendment right. But, given any assurance that the Government will think again before Report stage, I would withdraw my amendment at once. Meanwhile, I hope that the noble and learned Lord the Lord Chancellor will do me the courtesy, as the longest-serving Member of these Benches and one who has had 44 years of pastoral ministry, of believing that I understand as well as any lawyer the misery and unhappiness which are caused by all divorce proceedings.
§ Baroness MacLeod of Borve
May I very briefly add a word? The noble and learned Lord, Lord Denning, was very persuasive about trying to make the Scottish law the same as the English law. I was married to a Scotsman but I am a Sassenach and half French. Therefore I do not feel I can go all the way with him on those grounds only, and I am afraid I do not go very far with his argument either. As I tried to say, very inadequately, on Second Reading, I have done a lot of homework. During this last weekend I have seen young people of one's children's ages—not necessarily very young still, but they know what is happening in the world—and I asked them how they feel. Every single one said that he or she thought it would debase marriage still further if we allowed young people or newly-weds of whatever age to take divorce proceedings at any time that they so wished. They all felt, oddly enough—as I, very much older, also felt and tried v to say on Second Reading—that a couple should not enter marriage knowing that if they had quarrels or if there were problems they need not necessarily fight on to try to make the marriage work, but could go round the corner to the divorce court within a year.
It is all making it very much too easy. I am sure that all of us in your Lordships' Chamber value marriage. Some of us may have had the good fortune to have had happy marriages. On the other hand we all know, from our own experience, that there are many people who are unhappy in marriage. But under two years, I feel, would be too short a time for any young couple or newly married couple to get used to each other. I should like to support the noble Lord, Lord Robertson of Oakridge, in his Amendment No. 4.
§ Lord Mishcon
How right it is that this should be made a completely free vote, with members of your Lordships' Committee anxious to do as justly, as reasonably and as mercifully as they can with a very difficult social problem. If one wanted to be persuaded of the rectitude of that course, one has seen a very distinguished former Master of the Rolls differ from an 940 equally distinguished former Lord Chancellor in the shape of my noble and learned friend; and one has even seen a right reverend Prelate differing from an equally right reverend Prelate. So it is a judgment that each one of us has got to take.
I suppose one ought to start off logically by deciding whether or not the present law needs to be amended or indeed repealed. I shall not take a lot of time in regard to that, because this was debated on Second Reading and I believe your Lordships will be convinced, if the right reverend Prelate the Lord Bishop of Rochester will forgive me for saying so. by the way in which everyone seemed to realise that the present law was both impossible, and indeed harmful, to administer.
As a humble legal practitioner, may I repeat to your Lordships in, I promise, somewhat different words what I tried briefly to say at Second Reading? That is, that you will find that a lawyer for the petitioner endeavouring to obtain leave to file a petition within the three years has, as a matter of professional duty, almost to ask his client: "Is that the worst you can say about your spouse? If so, the court will not find this to be exceptional hardship or exceptional depravity. Can you not search in your memory for something a little more distressing, harmful, cruel and horrible to say about your spouse?—because otherwise I must tell you that you have no chance of succeeding".
Apart from that, we asked ourselves the question as to what, in hardship, is exceptional and what, in depravity, is exceptional. We found that that was an impossible question for us, as lay members of your Lordships' Chamber, to answer. How difficult therefore it must also be for the judges. So one came to the conclusion that the present law is not a good law. Then the question arose: is this the time to alter it? I ventured to express the opinion that this was not the time to alterit. Possibly I was expressing a minority view in saying that at a time before we knew anything constructive about conciliation procedures and courts, before we knew what was going to happen to Bristol, for example, and before we knew what the recommendations of the Law Commission (now considering the matter) would be on the grounds for divorce, and before we had anything other than an interim report from the Booth Committee. This was not the time to alter the law.
Your Lordships may feel that that is a view which is not going to find favor in this Committee, and so I move from there to say this. If you do not find it favourable to wait and you do decide that the law ought to be altered or repealed, then it is a question of deciding upon the period. Your Lordships may feel that three years, if we are altering the law, is too long. It is my respectful opinion that one year is too short; and my opinion, most definitely, is that to have no period at all—and I say this with the utmost deference to the noble and learned Lord, Lord Denning, because I know he will forgive me if I say it with all humility—is, from the legal practitioner's point of view, a very, very harmful provision.
I would assure your Lordships that there are cases where it is possible for the lawyer, for the marriage guidance clinic, for the parson and even perhaps for the family friend, the family doctor and the sensible mother-in-law—and such a person does exist—to 941 point out that, "In any event, my dear, I know you may be disillusioned after your honeymoon to come back to the humdrum life that does exist by way of contrast after a honeymoon but, before you can file a petition, you know you have to wait for a certain period. It cannot do any harm, can it? Go back and try to make a success of things". The lawyer plays his part in this. It is his first professional duty, as I understand it, to try to see whether there is not a chance of reconciliation. But if there has been a bitter quarrel and a petition can be filed tomorrow, the wayward young wife or the wayward young husband will say: "No, please, I have come to you for a divorce. Can you file the petition tomorrow?—because, if you can, please do it." Once that is done the harm is done too.
So it is a question, in my humble submission, of "No" to no period at all and "No" to three years. Then comes the question: should it be one or two years? I go instinctively for the longer period, to give the opportunity for second thoughts. I would ask your Lordships to bear in mind, with respect, that we are thinking in the main of young couples. They have not had a great experience of life and they have not had a great experience of compromise perhaps, or of the give-and-take which makes up marriage—marriage. So let all of us who are rather more adult than the people we are thinking of give ourselves the opportunity of saving marriages instead of destroying marriages within a too-short period of time. That is why 1 find myself, if we have to legislate now—but I hope I have made my view plain about that—supporting the two-year period which was so eloquently dealt with by the noble Lord, Lord Robertson.
§ Lord Monson
Although I was here for only part of our Second Reading debate on this Bill, I subsequently read from cover to cover the Hansard which reported on that deabte. Although, as always, I found the arguments of the noble and learned Lord the Lord Chancellor powerful and persuasive, I am bound to say that I was far more convinced by those who opposed what we might call the one-year rule and nothing I have heard this afternoon in our deliberations has caused me to change my mind.
Indeed, my attitude has been reinforced by the quite amazing unanimity among people outside your Lordships' House of widely varying ages and social backgrounds with whom I have discussed this matter: and here my findings accord entirely with those of the noble Baroness, Lady Macleod. All of them were worried at the implications of the state appearing to say to young people, "Very well, you can give marriage a go for one year and, if it does not work out, you can pack it in at the end of 12 months".
Of course, that is not what the state is actually saying to people, but that is the impression given to people who do not take the time or the trouble to analyse legislation, or even to analyse newspaper reports thoroughly—and that, after all, includes most people. In other words, the one-year rule appears to be a psychological blunder, however logical it may appear to members of the legal profession—or to some members, because the noble Lord, Lord Mishcon, agrees with me on this.
942 Of the various alternatives I prefer that of the noble Lord, Lord Robertson of Oakridge, or possibly that of the right reverend Prelate. But if neither of those should be acceptable to the Committee, I would prefer no time bar at all to a one-year time bar.
The Lord Bishop of Norwich
I apologise for being so late in coming into your Lordships' House, but responsible tasks in my diocese made it necessary for me not to be here earlier. I should like to take up one word which the noble and learned Lord the Lord Chancellor used on Second Reading, because I believe it to be particularly apposite tonight and I am encouraged by what the noble Lord, Lord Mishcon, said to make this point.
The noble and learned Lord on the Woolsack said that, although it may not deter marriage it defers marriage, and he made some play at Second Reading, at column 33 of the Official Report, on the deterrence and the deferment. I should like at this late stage of this part of the debate to suggest that we ought to support either the noble Lord opposite, or my fellow Prelate the Bishop and the noble Lord, Lord Mishcon, in pressing for at least a two-year period.
This is not in any sense a wrecking amendment. Obviously, we would not after Second Reading be party to a wrecking amendment. But it is, at least, a gentle, small and modest attempt to strike a blow for young marriage and for the idealists who have recently set out on marriage. When all is said and done, even in the Old Testament, as your Lordships know, the young soldier was let off his national service in the first year of his marriage, so that he might bed down—yes, that will do—with his young wife for that first year, and we should do no less than that.
Therefore, before the noble and learned Lord on the Woolsack replies to these amendments, we should just say that it is one of our tasks and duties in this historic House to maintain the Christian emphasis on marriage.
In no way can we call a one-year period a Christian marriage. I would not use the word "laughable"—if I can think of a better word to use I will use it—but it is totally opposite to the Christian view of marriage. Your Lordships will remember that we are not simply concerned with Christian marriage in our nation, because marriage is a creation ordinance from the early dawn of time. We are concerned, therefore, with marriage as an institution, whether for Christians or for people who feel towards the stability, happiness and joy of Christian marriage. Therefore, though we strike but a very small blow for the idealism of marriage, let us at least vote not to wit but to conscience on the matter of at least a two-year period.
§ Baroness Ewart-Biggs
May I very briefly support one aspect of what my noble friend Lady Lockwood said? I feel that there has been a lot of talk about marriage being debased, but in the end it is only the two partners to a marriage who can debase it. After all, what will eventually keep those two partners together is either their love for each other, or, if they are not so lucky and as time goes on, it will be the discipline which they exert. It is a matter of how the law can best help them exert that discipline, and I feel that any time bar—and I do not mind how long it is—could well deflect them from exerting that discipline of concen- 943 tration and effort to keep their marriage together. Therefore, as it is they, those two human beings, who are either going to honour marriage or debase it, they should be given all possible help to exert and focus on the concentration of keeping it together; and no time bar is, possibly, the way in which they will best be helped.
§ The Lord Chancellor
I think it is time that I said something. First, I am afraid that I must speak a little longer than I would have liked. I apologise again, but this is virtually a Second Reading debate on Part I of the Bill. First, what are we discussing? I do not believe that a single Member who has so far spoken has even got to the beginning of what we are discussing. We are discussing, first, whether we are going to substitute an absolute bar of time for a discretionary bar in certain circumstances which exist. Nobody has said that, but that is the basic fact that we have been discussing. Obviously, if we are going to discuss an absolute bar instead of a discretionary bar, we must have a shorter period rather than a longer period. Let us get that absolutely plain.
Secondly, we are not discussing one year, two years or three years for divorce. That has nothing whatever to do with it. The period which we are discussing is the period before you present a petition and not the period in which you get a divorce. The principal Act, which nobody has yet referred to, indicates that after a decree nisi there might have to be a six months' delay, anyhow, and of course there are other ancillary matters which have to be discussed. So that those who want a two-year period are really arguing for a three-year absolute period and not for anything else. That is what they have to face and none of them has faced it.
I begin by reminding the House not of what I said, but of what the noble and learned Lord, Lord Scarman, said when he spoke on Second Reading, because I think he said something with experience that we ought to remember. He said that unless the recommendations of the Law Commission are demonstrably wrong, they should be supported as being the product of detailed consultation and careful consideration. I start from that premise.
We are not discussing conciliation. I must tell the Bishops that we are dealing now with a discretionary bar which has existed since 1937. My noble and learned friend Lord Denning reminded us of that. So we have had nearly 50 years of this provision and it is wholly unworkable. It is conceptually disgraceful, because it suggests that there is an acceptable degree of depravity along with which judges can work. It is unworkable, because, there being no acceptable and normal degree of depravity, each judge applies his own idea of what is exceptional. Therefore, it is incapable of just or consistent application and it has, as a matter of fact, been proved to have deleterious effects.
I want to remind the House of something, and I want to remind, in particular, the Bishops, to whom I am afraid I am going to say some harsh words. I am going to say harsh words as a Christian and I am going to say harsh words as a member of the Church of England. The only Bishop with whom I agreed was the Bishop of London and I hope he will forgive me for 944 saying that: if not, he will probably excommunicate me for saying it.
First, we heard a remarkable speech during Second Reading from the noble Lady, Lady Saltoun. Her father, whom I remember, was a Scot. The noble Lady lives in Scotland. She wants to impose on the English a law which the Scots have never been prepared to bear. I rather suspect that my noble friend Lady Macleod of Borve, although she is a crypto-Englishwoman, carries with her the experience of a Scottish title, too. I do not myself believe that the Scottish law must necessarily be in harmony with the English law. Nobody has ever suggested that it should, but it is an advantage, as the noble and learned Lord, Lord Denning, said. However, the point about the Scottish law is that it has proved beyond any possibility of doubt that the time bar makes no difference to the divorce rate. If only the Bishops would read the report of the Law Commission, they would find that that is so, but they do not appear to be interested. As I must put on record—
The Lord Bishop of Norwich
After making that statement, would the noble and learned Lord comment on the leader in the Daily Telegraph of Thursday last, which quoted what the noble and learned Lord said when he was a learned and wise member of the Opposition Bench in another place? The noble and learned Lord then,confined himself to the sage observation that if divorces were made easier they would become more numerous".The Daily Telegraph continued:He has been fully justified by events in this action of productivity".Would not the noble and learned Lord agree that, as he is now speaking to an amendment concerning the lengthening from one year to two or more years, he is not correct when he states that making divorce easier does not in fact make more of them?
§ The Lord Chancellor
I shall comment, although I was trying to present a coherent argument. I hope that the right reverend Prelate will not intervene too often. The Daily Telegraph was quite wrong. I did not confine myself to the alleged sage remark. It was one of very many remarks that I made. I thought the conclusion they arrived at was ridiculous. So I have commented rather briefly on the right reverend Prelate's intervention.
I wish to say something about conciliation because it seems to worry a certain number of people. I do not know, but I cannot imagine anything less likely to make two young people come together again than to say that what one of them is determined to try to do he cannot possibly do. I can say, with some experience of attempting to save marriages (as has the noble Lord, Lord Mishcon) that the first thing to do is to ask them to try to see whether or not they can make a go of it and come back to one another. The wise mother-in-law, or whoever it may be, will do that, but, if one tries to put them into the straitjacket of the law, they will go ahead with greater determination. As for the idea which the noble Lady, Lady Saltoun, put forward, that two passionate young people about to engage in marriage would solemnly say to one another, "If it doesn't do we can get out of it after a year", it shows 945 a misunderstanding of the young which I personally regard as totally incredible.
I just want to remind your Lordships—this is why I have to spend a little time upon it—of what the Law Commission in fact said. I am afraid it involves me in one or two quotations. I make no apology for this because the right reverend Prelate the Bishop of Norwich does not appear to have taken it in. This is what the Law Commission said in their report, after they had had the fullest consultations, except that in these consultations the Church of England did not surface at all, although the other major denominations did. They said:This proposition"—the one they were putting forward and which is now in the Bill—was overwhelmingly endorsed by the great majority of those who wrote to us, several with distressing experiences of both marital breakdown and applying for leave to petition in the first three years of marriage. A few commentators, however, thought the present system operated satisfactorily. The most vigorous criticisms of the present rule were directed at the need to establish exceptional hardship on the part of the petitioner or exceptional depravity on the part of the respondent in order to obtain leave to petition for divorce within the first three years of marriage. The effect of this provision is said to be to encourage, if not actually to require, the petitioner to make the most unpleasant allegations possible about his or her spouse in order to make out a convincing case. Both practitioners and others who responded to the Working Paper wrote of the embarrassment of having to 'wash one's dirty linen in public;' and the prospect of judicial scrutiny of such sensitive matters was seen as degrading. Thus, although the present law of divorce is designed to minimise 'bitterness, distress and humiliation', it seems that the making of the allegations thought to be necessary to ensure that leave is given often causes considerable bitterness, distress and humiliation, even to the extent of jeopardising any reasonable settlement between the parties about financial provision and arrangements for custody of and access to children. As if this were not bad enough, it appears that the distasteful process of applying for leave, coupled with its unpredictable outcome, is such that practitioners sometimes advise clients against it, suggesting either that they seek some other less distressing form of relief or simply wait until the three years have expired when the more neutral fact of separation can, perhaps, be relied upon. We were particularly troubled to note that such advice is apparently sometimes given even in what would appear to be extreme cases of hardship or depravity which should be allowed to proceed to an early divorce. Thus, it seems to us, the system has been turned against itself.Then they quoted from Lord Justice Ormrod. I must say to the right reverend Prelates, as they sit there, that we lawyers are the social workers. We have had to fight this battle again and again and again during our lives. We do think that we know what we are talking about. This is what Lord Justice Ormrod said about the existing law. I claim in addition both the noble and learned Lord, Lord Denning, and what the noble and learned Lord, Lord Scarman, said on Second Reading.The principal difficulty lies in knowing what standards to use in assessing exceptional hardship and what is meant by the phrase exceptional depravity. Both involve value judgments of an unusually subjective character…moreover, standards in society in these matters are not stable and are subject to considerable changes over comparatively short periods of time;…the change in the basis of divorce from the matrimonial offence to irretrievable breakdown with the expectation of relatively easy divorce may have increased the hardship involved in waiting for the specified period to elapse". "The fourth criticism"—here I am quoting again The Royal Commission—of the present provision concerns the way in which it is used and to what effect. As we have seen, the permitted exceptions to the rule are not always taken advantage of and, where they are, it seems that making an application for leave to present a petition is capable of producing considerable and suffering. The response to the 946 Working Paper has confirmed us in our view that the main achievement of the restriction is to defer rather than to deter divorce".That is not my phrase but the phrase of the Law Commission which the right reverend Prelates chose to quote.Further comment as to effectiveness, however, begs the question of what effect the restriction is intended to have. This is a matter which we will consider below".If the right reverend Prelate will turn to page 55, which is the page before the graph to which I drew attention on Second Reading, he will read this. I think that we ought to take it into account:If it be accepted that the main effect of the present restriction is to delay rather than prevent divorce, it would follow that the restriction only preserves, for an arbitrary period of time, the legal bond between some couples whose marriage has in fact irretrievably broken down. The restriction cannot compel them to live together, but it can and does prevent them from creating a new legally recognised relationship. This (it may be said) is tantamount to imposing a penalty for having made a mistaken choice of partner: and the penalty may in some cases be severe—for example, a wife deserted soon after marriage might wish to re-marry and have children; a wait of three years could make child-bearing difficult or dangerous for the mother and imperil the health of her child. Such cases undoubtedly involve hardship, but possibly not such as would qualify as 'exceptional' for the purposes of an application for leave to present a petition within three years from the date of the marriage".Then follows the graph, and this is the relevance—and the only relevance from the point of view of this side of the argument—of the Scottish experience, which shows quite conclusively that not one single marriage, so far as one can judge from figures, has been saved by the imposition of the time bar which is so dear to the heart of the right reverend Prelate.
Having said that, it seems to me that one comes back again to the experience of the Law Commission about which such careful consultation took place. Supposing a young woman finds herself married to a person who, without her knowledge, is a paedophiliac and under charge of a serious sexual offence; or who is a homosexual? Supposing a young man finds himself—as only too often he has done in the past—married without his knowledge to a woman pregnant but with a child who is not his own? Supposing one party to the marriage without informing the other—and, alas, how common this is—is suffering from syphilis, gonorrhoea, AIDS, or herpes? I know of a case—but I will not give the name because he would be known to most of your Lordships—of a man who married a young woman who, on the honeymoon, told him that she had only married him because she wanted to remain the mistress of an French aristocrat and was using his name as a cover for her continuing to do so. I can think of a woman who was a prostitute and who married in order to prevent herself being deported. Those are the kind of cases with which lawyers have to deal.
The right reverend Prelate asks me to respect his position on the Bench as a person who has been in the ministry for 44 years. I have been a lawyer and a communicant of the Church of England a great deal longer than that, and I think that I know what I am talking about when I am talking about this subject. It is the situation we are faced with after not quite 50 years—between 40 years and 50 years—of this particular restriction. I say, therefore, that the worst of all possible worlds is the amendment proposed by the right reverend Prelate the Bishop of Rochester. That 947 amendment retains exceptional depravity and exceptional hardship. It imposes a bar which precisely retains the very features of the law which have been declared to be intolerable by the Law Commission after nearly 50 years' experience. That is what the right reverend Prelate is proposing to do.
If the right reverend Prelate will not listen to me and if he will not listen to the Law Commission, and if he does not care about the experience of the legal profession, then—and I have given him notice that I was going to say this—let the right reverend Prelate ask himself who said this:Then spake Jesus to the multitude, and to his disciples, saying, 'The scribes and the Pharisees sit in Moses' seat: all therefore whatsoever they bid you observe, that observe and do; but do not ye after their works: for they say, and do not. For they bind heavy burdens and grievous to be borne, and lay them on men's shoulders; but they themselves will not move them with one of their fingers'.And who said this?Woe unto you also, ye lawyers!"—and he did not mean practitioners of the law when he said that; he meant people who were using the law as an instrument for purposes for which the instrument of law was not appropriate. He said:Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers".The right reverend Prelate can disregard the Law Commission if he likes, but he cannot disregard the words of the founder of our holy religion. I told him that I was going to speak as a Christian, and I am speaking as a Christian. I must say that the worst of all possible worlds is created by the amendment of the right reverend Prelate the Bishop of Rochester.
So far as concerns the difference between two years and one, I have only this to say. The one year was, after profound consultation by the Law Commission, chosen as better than two for the reasons which they set out. It was not in order to save marriages, because the Law Commission had already decided that it could not be done that way. It was done in order to put down a marker about the importance which the state of England attaches to the institution of marriage. It was to say that there are cases where the institution of marriage is being abused at the moment.
§ Lord Mishcon
I am sure that the noble and learned Lord the Lord Chancellor will pardon me if I interrupt his flow as one who does not claim a monopoly of wisdom in these matters for my profession. Since we so often get divorce cases and marriage breakdowns after the marriages have broken down, the Church and others who work in different religions get them before they break down. Before the noble and learned Lord goes on, as he has quoted other portions, will he please quote paragraph 2.14 of the Law Commission's report? I am referring to the last three sentences of that paragraph, on the reasons why the Commission went for a period?
§ 7.47 p.m.
§ The Lord Chancellor
I certainly will. Paragraph 2.14 states:We have already referred to the question of what policy is intended to be advanced by a restriction on the availability of divorce in the early years of marriage. It is appropriate here to 948 comment further on this question. It is perhaps a little simplistic to think of measuring the effectiveness of the restriction solely, for example, in terms of the number of marriages saved, as the underlying objective is more subtle: it is to shape an attitude of mind. That is not to say, however, that there is no merit in the direct effect on particular individuals. There will no doubt be some cases in which a restriction on divorce is an obstacle which causes re-consideration of the decision to divorce, with the result that the marriage is preserved. Equally a restriction can be regarded as a valuable restraint on hasty re-marriage—a view which a number of commentators voiced strongly. On this view there is still some force in the opinion we expressed in 1966 that a restriction 'is a useful safeguard against irresponsible or trial marriages and a valuable external buttress to the stability of marriages during the difficult early years'.".In fact, they came to the conclusion, after taking that fully into account, that a year's delay with an absolute bar in place of a discretionary bar was the best solution to what is admittedly a difficult problem. They went on to say that such evidence as they had—which was based on a very long period of Scottish experience—showed that, statistically at any rate, there was not one single particle of evidence that even one marriage was saved by the additional bar.
I am sorry to have spoken strongly, but I feel strongly about this matter. I myself am quite sure that your Lordships' Committee would be making a grievous error if it failed to back the Law Commission in what is a relatively small change. But, on the same side, I must say without any hesitation whatever that if I had to choose between the noble and learned Lord, Lord Denning, and the right reverend Prelate the Bishop of London, on the one hand, and a two-year period of absolute bar, on the other, or the right reverend Prelate's return to "exceptional depravity" or "exceptional hardship", then I would choose the noble and learned Lord, Lord Denning, every day of the week.
Having said that, I agree with the remarks of the two noble Baronesses opposite. I think they got it exactly right so far as the psychology of the matter is concerned. I can only say that I have tried in good conscience, believing as much as anyone and as much as the right reverend Prelates in the stability of marriage, to do the best I can in advising the Committee both as a Christian and as a man.
§ The Lord Bishop of London
Before the noble and learned Lord sits down I feel constrained to ask him one question. He has quoted holy Scripture and the words of Our Lord. He has not quoted the words of Our Lord about marriage and divorce. Is he aware that for those of us who sit on these Benches we, as all Christians in our society do, face the great problem and agony of trying on the one hand to be faithful to what Our Lord says while at the same time trying on the other hand to be as compassionate and realistic about the needs of people as they are. Will the noble and learned Lord not, misguided as he may think some of my brother Prelates are, give them the credit for trying to live within that agony?
§ The Lord Chancellor
We must all try and live within that agony. The right reverend Prelate makes a perfectly fair point. I have always had a very strong respect for, and temptation to agree with, what I understand to be the Roman Catholic view of marriage. They have holy Scripture very largely on their side. I did not quote it because it was not relevant 949 to the argument. What I have been saying has been about the secular status of marriage and not about the sacrament of marriage as it is practised in the Christian Church. I have always had a very great respect for the Roman Catholic view of marriage, which is very largely supported by the three Gospels, and is that it is in fact indissoluble and when you talk about divorce you are talking about an impossibility. I can understand that. But the Church of England has abandoned that; it was very largely responsible for the change in the law in 1969—the part of my speech that the right reverend Prelate the Bishop of Norwich quoted from the Daily Telegraph—by suggesting that irretrievable breakdown was a thing which ought to dissolve civil marriage. Once you have accepted that, you must accept the consequences.
The Church is perfectly entitled to preach, although it does not in the case of the Church of England, that you cannot have divorce because marriage is indissoluble. Then you are faced with a whole set of problems about nullity and other things which we do not have to face. But once you have got off that standpoint and recognised that marriages have to be dissolved from time to time on the grounds of irretrievable breakdown, then I do not think you can have it both ways.
The right reverend Prelate asks me to quote the Scripture. I have not got it with me, but I had it in mind all along, but it is based on a view of marriage which is different from that which the state is bound to impose and which the state deliberately imposed as a result of the Church pamphlet Putting Asunder. I personally feel very strongly that the view of marriage thus discussed, that it is in fact indissoluble, is in fact wrong. But this is not the argument today. What we are asking today is whether, assuming the dissolubility of marriage on the basis of irretrievable breakdown, you should have a discretionary bar or an absolute bar, and, if you are going to abandon the discretionary bar for what period of time the absolute bar should be imposed, assuming that the absolute bar for one year will take at least 18 months and it may be two years to complete. That is what we are arguing about. Of course I do not dispute the good faith of the right reverend Prelates, or either of them who have spoken. I do hope they will give me a little credit for having good faith too.
The Lord Bishop of Norwich
Before the noble and learned Lord sits down, may I, with some nervousness, correct him on one point of fact, when he said, with all the majesty which his position means the nation gives to him, that the Church of England has departed from the standard of marriage set out by Our Lord? May I remind the noble and learned Lord that the text of Canon B.30 has not been rescinded, is the position the Church of England stands to, and says with the greatest clarity:The Church of England affirms, according to our Lord's teaching, that marriage is in its nature a union permanent and life-long, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.950 At the end of that canon the Lord Chancellor will know that the Church is in fact agonising on how it can stand firm to the ideal of Christian marriage set out in its canon while at the same time with compassion it can care for those who have fallen short of that. But the standard remains firm.
§ The Lord Chancellor
I thought I had made it clear on Second Reading that I agreed with that standard. I did also say on Second Reading, and I hope the right reverend Prelate will take this to heart too, that the Church has every right to legislate for its own communicants. All Churches claim that right and they have all got it. What they have not got the right to do is to impose their views about marriage on the kind of marriages which the state has to celebrate. We have to celebrate the second, third, fourth and fifth marriages, we have to celebrate marriages between Jews and atheists, we have to celebrate marriages between Quakers and Presbyterians and Methodists, all of whom have different views of marriage from that of the right reverend Prelate. The suggestion behind the right reverend Prelate was that I was trying to suppress something. I promise the Committee that I am not trying to suppress anything. I say, as I said on Second Reading, that the Church has every right to legislate for its own communicants, but we can have only one law of marriage in England and Wales, even if it is not to be the same as Scotland, and it must cover all the types of marriage that we have to celebrate.
§ Lord Denning
There is very little I would say now, except that I should like, if I may, to commend the attitude taken by the Bishops of the Church of England here. It seems to me that the right reverend Prelate the Bishop of Rochester had a really good point in keeping, if you please, the case of divorce, in the case of exceptional hardship or exceptional depravity, from the very beginning of the marriage when it has irretrievably broken down. My noble and learned friend the Lord Chancellor has given those graphic illustrations of the wife who is pregnant by another man, and the party who has syphilis. I have had cases where the wife has gone off immediately after the honeymoon and gone back to a former lover. I have had cases where the husband, after being on honeymoon, has gone off to he a homosexual within a few weeks of the marriage. In those cases I always gave leave to proceed at once with the petition of divorce well within the one year. Those are the very sort of cases which the right reverend Prelate is saying must be preserved.
I agree they must be preserved, but you do not preserve those cases as exceptional cases by making a one-year absolute bar or a two-year absolute bar. What we are contesting is not only the discretionary cases. This is to be an absolute bar even in those extreme cases for the whole of a year, or two years, as the case may be. It is the absolute bar which I suggest is not really to be commended by this Committee. And if you are not having an absolute bar you ought to have a discretionary one. I would simply say I would prefer no bar at all, because that leaves scope for those cases where there is irretrievable breakdown of the marriage to be remedied at once. With all respect to those who think otherwise, the taking away of this one year, or imposing an absolute bar, is wrong, because if 951 there is no bar at all then people will not think, "Well, we can always get a divorce after a year". They have not thought that before. They will realise there is no time limit at all, but when the marriage has irretrievably broken down. In cases such as I have put and those other cases we are dealing with they can plead for a divorce at once without waiting for an absolute bar of one year. I would still press my amendment to do away with any time bar altogether but let the divorce go forward when there is an irretrievable breakdown of marriage.
§ 7.59 p.m.
§ On Question, Whether the said amendment (No.1) shall be agreed to?
§ Their Lordships divided: Contents, 40; Not-Contents, 63.
|DIVISION NO. 2|
|Aylestone, L.||London, Bp.|
|Carmichael of Kelvingrove, L.||McGregor of Durris, L.|
|Cork and Orrery, E.||McNair, L.|
|Craigavon, V.||Masham of Ilton, B.|
|David, B.||Melville, V.|
|Dean of Beswick, L.||Merrivale, L.|
|Denning, L. [Teller.]||Monson, L.|
|Ewart-Biggs, B.||Norwich, Bp.|
|Foot, L.||Ponsonby of Shulbrede, L.|
|Glenamara, L.||Raglan, L.|
|Hacking, L.||Renton, L.|
|Hale, L.||Roskill, L.|
|Halsbury, E.||Seear, B.|
|Irving of Dartford, L.||Stoddart of Swindon, L.|
|Jeger, B.||Thomas of Swynnerton, L.|
|Killearn, L.||Tweeddale, M.|
|Kilmarnock, L.||Underhill, L.|
|Kinloss, Ly.||Wells-Pestell, L.|
|Llewelyn-Davies of Hastoe, B.||Winterbottom, L.|
|Lockwood, B. [Teller.]||Young of Dartington, L.|
|Ailsa, M.||John-Mackie, L.|
|Avon, E.||Kaberry of Adel, L.|
|Bellwin, L.||King of Wartnaby, L.|
|Belstead, L.||Lane-Fox, B.|
|Beswick, L.||Lauderdale, E.|
|Bishopston, L.||Long, V.|
|Blease, L.||Lucas of Chilworth, L.|
|Campbell of Alloway, L.||Lyell, L.|
|Cledwyn of Penrhos, L.||Mackay of Clashfern, L.|
|Coleraine, L.||Macleod of Borve, B.|
|Crathorne, L.||Mansfield, E.|
|Croft, L.||Marley, L.|
|De La Warr, E.||Maude of Stratford-upon-Avon, L.|
|Denham, L. [Teller.]|
|Drumalbyn, L.||Mishcon, L.|
|Elwyn-Jones, L.||Mottistone, L.|
|Fanshawe of Richmond, L.||Murton of Lindisfarne, L|
|Fortescue, E.||Pender, L.|
|Gardiner, L.||Peyton of Yeovil, L.|
|Glanusk, L.||Portland, D.|
|Glenarthur, L.||Prys-Davies, L.|
|Gowrie, E.||Robertson of Oakridge, L.|
|Gray of Contin, L.||Rodney, L.|
|Gridley, L.||Ross of Marnock, L.|
|Grimston of Westbury, L.||Skelmersdale, L.|
|Haig, E.||Swinton, E. [Teller.]|
|Hailsham of Saint Marylebone, L.||Trefgarne, L.|
|Harvington, L.||Vaux of Harrowden, L.|
|Hawke, L.||Whitelaw, V.|
|Hornsby-Smith, B.||Wise, L.|
|Hylton-Foster, B.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 8.8 p.m.
§ [Amendment No. 2 not moved.]
§ The Lord Bishop of Rochester had given notice of his intention to move amendment No. 3:
§ [Printed earlier: Col. 931.]
§ The right reverend Prelate said: I remain unconvinced that this is the right moment to legislate, but in order to support the noble Lord, Lord Robertson of Oakridge, I shall not move this amendment.
§ [Amendment No. 3 not moved: Col. 931.]
§ Lord Robertson of Oakridge move amendment No. 4—
§ [Printed earlier.]
§ The noble Lord said: I move amendment No. 4—
§ Lord Denham
I am sorry. This amendment has already been discussed, has it? In that case, if there is to be a Division, of course we have time to take it.
§ Lord Robertson of Oakridge
Clearly I am persuaded by the noble and learned Lord the Lord Chancellor, but I must weigh against that the eloquent speeches of support from noble Lords on all sides and the opinion of organisations in the pastoral field. May I just say that we are legislating for vulnerable people, who are subject to tremendous pressures from the media and other sources which portray—
§ 8.10 p.m.
§ On Question, Whether the said Amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 32: Not-Contents, 66.953
|Aylestone, L.||Lauderdale, E.|
|Beswick, L. [Teller.]||London, Bp.|
|Bishopstone, L.||Macloed of Borve, B.|
|Chichester, Bp.||Mishcon, L.|
|Cledwyn of Penrhos, L.||Monson, L.|
|Coleraine, L.||Norfolk, D.|
|Coventry, Bp.||Norwich, Bp.|
|Croft, L.||Pender, L.|
|Fortescue, E.||Prys-Davies, L.|
|Gardiner, L.||Robertson of Oakridge, L. [Teller.]|
|Harvington, L.||Rochester, Bp.|
|Hawke, L.||Rodney, L.|
|Home of the Hirsel, L.||Thomas of Swynnerton, L.|
|Hylton-Foster, B.||Wells-Pestell, L.|
|Inglewood, L.||Wise, L.|
|Irving of Dartford, L.|
|Ailsa, M.||Llewelyn-Davies of Hastoe, B.|
|Bellwin, L.||Lockwood, B.|
|Belstead, L.||Long, V.|
|Blease, L.||Lucas of Chilworth, L.|
|Campbell of Alloway, L.||Lyell, L.|
|Carmichael of Kelvingrove, L.||McGregor of Durris, L.|
|Cockfield, L.||Mackay of Clashfern, L.|
|Craigavon, V.||McNair, L.|
|Crathorne, L.||Mansfield, E.|
|David, B.||Marley, L.|
|Denham, L. [Teller.]||Maude of Stratford-upon-Avon, L.|
|Drumalbyn, L.||Melville, V.|
|Elwyn-Jones, L.||Merrivale, L.|
|Ewart-Biggs, B.||Mottistone, L.|
|Fanshawe of Richmond, L.||Murton of Lindisfarne, L.|
|Foot, L.||Peyton of Yeovil, L.|
|Glenamara L.||Ponsonby of Shulbrede, L.|
|Glenarthur, L.||Portland, D.|
|Gowrie, E.||Raglan, L.|
|Gray of Contin, L.||Renton, L.|
|Gridley, L.||Roskill, L.|
|Grimston of Westbury, L.||Seear, B.|
|Haig, E.||Skelmersdale, L.|
|Hailsham of Saint Marylebone, L.||Stoddart of Swindon, L.|
|Swinton, E. [Teller.]|
|Hale, L.||Trefgarne, L.|
|Hornsby-Smith, B.||Trumpington, B.|
|Jeger, B.||Tweeddale, M.|
|Kaberry of Adel, L.||Underhill, L.|
|Killearn, L.||Vaux of Harrowden, L.|
|King of Wartnaby, L.||Whitelaw, V.|
|Lane-Fox, B.||Winterbottom, L.|
|Lawrence, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 8.17 p.m.
§ Lord Glenarthur
I think it might be a convenient moment to break for dinner on this Bill until a quarter-past nine. I therefore beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.