Divorce Law (Hansard, 1 February 1983)

§ Lord Milverton
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, the present law is based on the legislation of 1969, as consolidated in 1973. The ground for dissolution is the irretrievable breakdown of the marriage, and thus excludes the religious beliefs of the respondent. Irretrievable breakdown is proved by first establishing one of five states of fact. The first three are based on the fault of the respondent, and therefore can hardly be dependent on his religious beliefs. The fourth is conditional on consent. Only the fifth remains, and that is conditional on five years' separation. Parliament in effect decided on a free vote that in these circumstances it would be wrong to deny 680 either party the right to remarry after decree. Neither party is bound to do so. It is customary for these questions to be decided on a free vote of each House.

§ Lord Milverton
My Lords, I thank my noble and learned friend the Lord Chancellor for his useful reply. May I ask whether it is not right that we should try to bring back to marriage all the moral and spiritual incentives so that the health of mind and body of our children and also of us men and women is restored and we are saved from the great sadness, wretchedness and unhappiness which we know exists and which people like myself come across so often? Is there not a probability that in the next decade, if things go on as they are, there could be five million children of one-parent families rather than the present one million? Is it right that the present system contributes to the maintenance of that situation?

§ The Lord Chancellor
My, Lords, personally—but I speak, of course, from this place as a member of the Government—I respect the sanctity of marriage as much as my noble friend, but I think that he should ask himself one or two simple questions. We live in a society in which there are Moslems who have an establishment of four wives—and they can divorce any one of them by talaq—of Jews who, if they enter into a religious marriage, have one wife—and who can dissolve the marriage by gett—of atheists, who may not believe any of the things which the noble Lord and I believe, and also of people who have, one, two, three, four or five successive marriages, dissolved, all of them, by divorce.
One has to ask oneself what Parliament can do in legislation of this kind. It cannot depend solely on the religious views held by the Church of which both my noble friend and I are members.

§ Lord Elwyn-Jones
My Lords, was not the legislation passed in 1969 the outcome of prolonged parliamentary discussion in both Houses and, as the noble and learned Lord has said, was not the ultimate outcome the result of a free vote? On the whole, has this not provided satisfaction to the community and is it not the case that there are many second marriages—thereby not confirming the observation of Dr. Johnson that a second marriage is a triumph of hope over experience?

§ The Lord Chancellor
My Lords, I am grateful to the noble and learned Lord for his contribution. I try to stick to facts. What he says about the legislation is entirely correct. I think it is true—indeed, I know it is true—that second marriages are not infrequently more happy than first marriages. Having said that, I would also agree with him that you cannot go on tinkering with the law of marriage and divorce every 10 years. Marriage, whatever its values and whatever doctrine apples to it, is not something with which one ought to tinker from time to time; it ought to have a certain degree of durability. It is bad for the law to be messing about with fundamental institutions. I agree with all these propositions. As the noble and learned Lord will probably remember, I have referred various questions to the Law Commission and made public speeches to the Family Division and to family lawyers on the 681 subject; and there is before the other place a Private Member's Bill which has Government support.
May I say that I am much obliged to my noble friend Lord Milverton for his reference to children? This is uppermost in the minds of every decent man and woman who approaches this rather painful subject. Of course, the number of children involved is increasing and will do so until the level of divorce reaches a plateau. The courts—and really I can answer only for the courts and for the Government—have laid it down for a very long time—since, I think 1925—that, in handling questions in relation to children, the welfare and the interest of the children are the first and paramount considerations.