§ 4.17 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, I rise to move that this Bill be now read a second time. Before I embark upon what I have to say, I must apologise for the length of the speech I am driven to make. I have tried to reduce it, but find I cannot do so without failing to do justice to my argument. The Bill has been widely misunderstood and widely distorted, and it is right that I should seek to put the record straight.
This is an important Bill and it is urgently needed. I do not think it is possible to exaggerate the need, for the reasons which I will give, but it is possible to exaggerate its effects and therefore distort its contents. May I begin by quoting from a recent leading article in the New Law Journal, which gets it exactly right in this respect—and I hope that if I do quote I shall not be 29 accused of giving any personal or subjective bias to what it says. The article read as follows:The myths and exaggerations are already forming around the Matrimonial and Family Proceedings Bill and need to be dispelled. The reality is that the Bill is not an assault on the family or the institution of marriage. It does not presage the return of fault-based divorce, nor would its enactment create a new class of destitute jobless first wives on the breadline while their husbands' second families live in luxury.Indeed the practical effect of the new measure, when implemented, is likely to disappoint, or alternatively assuage the fears of those who expect it to introduce dramatic changes in the way the courts deal with the financial aftermath of divorce.The Bill brings together proposals of three Law Commission and one Scottish Law Commission reports, and adds a dash of procedure inspired by the Lord Chancellor's Department, not least to attempt to unravel the jurisdictional problems that Richards v. Richards revealed".Lest anyone should think that I have introduced this measure out of my own ideas, let me reassure them. Apart from Part V and the miscellaneous section Part VI, there is nothing in this Bill which has not been proposed by the Law Commission. There is nothing in this Bill proposed by the Law Commission which has not gone through the full procedure of working paper, consultation, reconsideration and publication of final reports—the full and proper methodology which law reform in an important field is now recognised as requiring. This is not—if I may contradict a religious programme—Lord Hailsham's Bill; it is a Law Commission Bill backed by the Government.
The Bill embodies the substantive recommendations of Law Commission Reports Nos. 112,116 and 117. It does not alter the grounds of divorce as laid down by the Act of 1969 (now consolidated in the Matrimonial Causes Act 1973). It does not pre-empt the consultation paper recently issued by the Booth Committee, which has not yet gone beyond the consultation stage.
I said a moment ago that the reforms were urgent. Within literally a week or two of taking office in 1979, I discovered one outstanding difference between my first term of office as Lord Chancellor which began in 1970 and my present term of office still continuing in 1983—the complaints of the injustices alleged to arise from the law of divorce. This was not surprising. The law of divorce had been altered in 1969, and by 1979 the consequences were beginning to be felt as the vastly increased number of broken marriages began to accumulate.
I need not remind your Lordships of the nature of the reforms of 1969. By that statute, which I criticised at the time in another place, irretrievable breakdown was substituted as the one ground for dissolution, in place of the old grounds which were largely based on fault. It was done, at least in part, on the initiative of the Church of England in a booklet called Putting Asunder. Whether or not I was right to criticise the Bill does not now arise. But I recall that I said then that it was brought forward very largely on the advice of the Churches, and in particular the Church of England, and would greatly increase the number of divorces. It has, in fact, done so. For the present, at least, it is enough to say that the decision taken in 1979 is irreversible.
Lest anyone should doubt my own views on the subject—and some foolish people have—let them now be placed on record. I believe that the family is the 30 solid foundation upon which all human society should be built. I believe that the ideal of marriage is one man and one woman during their joint lives. When it occurs, I regard divorce as a misfortune—even a disaster—for both parties, and especially for the children of the marriage. I believe that people flounce out of marriage too often, little recognising and seldom understanding the abiding consequences of dissolution. Marry in haste, they used to say, repent at leisure. Divorce in haste, say I, and the consequences will be with you for the greater part of your life to come.
Nonetheless, one must be realistic. The Churches need not celebrate marriages of which they disapprove, and each possesses distinctive and divergent views as to the nature and degree of dissolubility of the vinculum of marriage applicable to their own communicants. One Church has a distinctive law of nullity which differs substantially from that of the secular law of the land. But whereas the Churches have jurisdiction over their own communicants, they have no jurisdiction over others and the state has no such option.
We have a single status with which we have to contend. We have marriages between Catholics, Protestants, or mixed, Jews and Quakers, Moslems and atheists, agnostics and believers, first marriages, or marriages of divorced persons who may, in theory, have anything between one and 10 former partners between them. All partake of the civil status of marriage. To one and all the English laws of nullity and dissolution apply. The children of all are entitled to maintenance, and the laws of maintenance and property of divorced partners must apply to all, irrespective of creed. Broken marriages are with us. We are not in the field of moral theology. We are in the field of law and social policy and, although there is room for many views in this free country about the nature, dissolubility and sanctity of marriage—or any particular marriage—there is only room for one law of divorce and one law of the consequences which follow from divorce.
It soon became apparent to me in 1979 that those affected by divorce resolved themselves into three divergent classes. There were the children—innocent, silent, inarticulate, and almost unrepresented. There were the husbands and—where they existed, as they usually do—their second or subsequent wives. There were the divorced wives, in the nature of things less numerous, and therefore less vocal, than the husbands and their second spouses. After divorce, wives remarry less often, and, since their claims to maintenance disappear on remarriage, not all of those who are divorced remain upon the field of battle.
Each group had a case. Each had an irrefutable case in many instances. Each underestimated the strength of the case on the other side, because each generalised from his or her own experience. Each blamed the law, usually unfairly, because what each was complaining of in substance was not, in fact, the fault of the law but the result of the facts of life. The husbands complained of the fact that one income will not keep two families, and the continuing expense of a former partner proved an unwelcome burden on the resources of a second union. The divorced wives complained because, in the nature of things, a wife's earning capacity is 31 diminished or perhaps destroyed by marriage, especially when her renewed earning capacity after dissolution is further impaired or rendered impossible by responsibility for the children and their care and control.
So I referred the matter to the Law Commission and have since had recourse to the Booth Committee, in the circumstances that, though the law could not alter the facts of life, it need not unnecessarily exaggerate the hardships inevitably involved. Above all, we have no right to use the law concerning the sequelae of divorce as a tool to impose on others our own moral theology regarding the dissolubility of marriage which, by that time, ex hypothesi has already taken place in the form of dissolution.
There are three separate groups of proposals in this Bill with which I must deal in this speech. I shall not deal in detail with Part IV (Scotland), Part VI (Miscellaneous) or, except cursorily—for it is technical, and more suitable for the Committeee stage—Part V. I shall therefore deal primarily with Parts Ito III. I shall deal with them in inverse order of their importance and discussibility, and not in the order in which they occur in the Bill. The first, which in my view need hardly be discussed at all on Second Reading because it is so obviously right, is contained in Law Commission Report No. 117 under the heading "Financial relief after foreign divorce". The report recommended, and Part III of the Bill provides, that the High Court should have power to entertain applications for financial provision and property adjustment, notwithstanding the existence of a prior foreign divorce, annulment or legal separation. This is particularly important where there are assets in this country.
Its advantages are limited to persons domiciled or habitually resident in England and Wales and to persons whose matrimonial home was in England or Wales (in which case the powers are still further circumscribed). It is highly technical and, because the other parts of the Bill are so much more important, I shall for the moment leave it at that. I submit that it is obviously required and fills an obvious gap in our existing legislation. The jurisdiction is heavily circumscribed and is wholly within the discretion of the court.
Part IV of the Bill contains Scottish provisions which correspond to those for England and Wales in Part III, to provide in Scotland for financial relief after foreign divorce. The nature of the jurisdiction conferred upon the Scottish courts by Part IV will be rather different, but the differences arise on the whole from the fact that we are dealing with dissimilar systems of law on either side of the border. The purpose of the reform in each case is the same.
The second and in my view the second least contentious part of the Bill is Part I. I say "in my view" because, strangely enough, owing I believe largely to the fact that one religious body failed to respond to the invitation to participate in discussions on the consultation paper, and did not even bother to notice the report till a year after its publication, it has been largely misunderstood and misrepresented.
The case was fully argued in Law Commission Report No. 116 and, if only the critics had taken the 32 trouble to read it, I cannot help thinking that a great deal of muddled thinking and acres of print could have been saved. At the time the report was issued it received almost unanimous approval. There are two provisions in this part of the Bill. The less contentious is in Clause 2. This gives the court a slightly enlarged discretion to admit petitions for nullity of a voidable marriage after three years from the date of its celebration where the petitioner himself was suffering from mental incapacity during the first three years. This slightly amends what is now Section 13(2) of the consolidating Act of 1973 which was derived from my own Nullity Act of 1971, and this provision is based on the revised view of the Law Commission contained in paragraghs 3.1 to 3.6 of the Law Commission Report No. 116. Their revised opinion was based on principle and on experience. I do not myself believe the point to be contentious and, at least at present, I do not intend further to enlarge on it.
More important in Part I is Clause 1, which amends and replaces what is now Section 3 of the 1973 Act, although the substantive law goes back to the 1969 legislation. The 1969 legislation imposed a discretionary bar against proceedings for divorce within three years of marriage, a discretionary bar which can be lifted in cases of "exceptional hardship suffered by the petitioner or exceptional depravity on the part of the respondent". Contrary to what has been suggested, the Bill does not make divorce easier. The ground for divorce remains the same; namely, irretrievable breakdown, provable only by establishing one of five alternative states of fact. It deals solely with the time which must elapse after the celebration of the marriage before the presentation of a petition by either party. The Bill, following the views expressed in paragraph 2.32 of the report, imposes an absolute bar of one year in place of a discretionary bar of three. This might be considered illogical since the comparable Scottish law without social harm imposes no bar at all. What is obvious, however, to me and what was obvious to the commission, was that the discretionary bar must go and that any bar which remained would have to be absolute and, being absolute, would have to be shorter. The inescapable choice is between no bar at all, as in Scotland, and an absolute bar, as in the Bill. The status quo is a non-starter. After consultation, the proposal, as I said, received almost unanimous support among those consulted.
I now summarise the arguments against the discretionary bar. These are, first, that it is conceptually absurd and therefore unacceptable; second, that it is incapable of enforcement consistently or in practice at all and has been recognised as such by the judiciary; thirdly, that it can be circumvented by a simple device; and, fourthly, that in practice it has increased bitterness, done harm to the children and reduced the chances of conciliation because it encourages use in the petition of damaging and sometimes inaccurate allegations of a painful kind.
It is conceptually unacceptable because it assumes that there exists a normal standard of depravity which should be condoned and accepted despite irretrievable breakdown and which is capable of precise definition, or a similarly normal standard of hardship with the same characteristics. On reflection, I should have thought it was obvious that there are and can be no such normal standards, and since the question arises 33 only on proof of irretrievable breakdown the whole apparatus is nonsensical, anyway.
It is incapable of consistent application because in the absence of a precise definition of exceptional depravity or hardship each judge will apply, and does apply, his own subjective and different standards to a particular case. In practice it cannot be enforced at all, because petitioners simply put in allegations of such an extreme character that, in the absence of sufficient scrutiny, applications nearly always succeed, and once the proceedings are commenced they are commenced and the doors close behind the petition. Where petitioners resort to this device, conciliation often becomes impossible. Where they do not, they circumvent the law by proceedings in the first place for judical separation, following their petition for that with one of dissolution.
I must add here, sadly, that I heard it seriously suggested by one eminent ecclesiastic that the parties should be compelled to use judicial separation as a separate device. I must say that that cock will not fight and that no practising lawyer would accept the ecclesiastic's view. No doubt judicial separation must be an option for a petitioner who believes in the indissolubility of his or her own marriage, but for those who do not it is a straitjacket which it is unjust to force upon them.
I must add my note on the Scottish experience, which is illuminating in the extreme. As I have said, the Scots have no time bar at all and, although the matter has been referred to them more than once, have resolutely refused to accept the English rule. As a race, I would respectfully have said to my ecclesiastical critics that 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. Indeed, they would have facts on their side which are best illustrated by a graph on page 56 of the Law Commission Report. The time bar may, indeed does, defer divorce in some cases. It does not deter it. The graph establishes this conclusively. What the time bar does is to increase the number of "limping marriages"—that is, marriages which have broken down irretrievably but are not yet dissolved. A more potent stimulus to immorality outside marriage I can scarcely imagine. That the Church of England should in the report of the Board for Social Responsibility on this set of proposals thus encourage adultery or fornication is not a particularly good cause for Christians to advocate or adopt.
It may be asked, if this be so, why have a time bar at all? Logically this is a good question which is dealt with in paragraphs 2.12 to 2.15 of the report. The answer to this is that, under present procedures, a 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. There are, however, certain abuses of the law of marriage—for instance, in order to obtain nationality —which might be encouraged, particularly in London, if there were no bar at all. Though the commission originally sounded a rather uncertain note in their consultation paper, 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 34 rid of it altogether and conform to the Scottish practice.
I now come to what is the most important of the proposals in the Bill. It is more important because it affects more people, and in particular the two classes of person I referred to at the beginning of this speech. It amends Section 25 of the consolidating Act of 1973 which lists the matters to which the court must have regard in exercising its powers in relation to the financial settlement following divorce. It is these which have given rise to the greatest amount of correspondence, and in which the difference between the former wife on the one hand, and the former husband and his subsequent partner on the other, have been most viciously and articulately expressed.
I must say at once—and one starts from this proposition—that fundamentally the policy of the existing Section 25 and the cases based on it is right. It is as well to remember why it is right. It is right for the following reasons: First, it is right because it recognises that the circumstances of each case vary so infinitely that it is impossible to do more in the Act than to enumerate the factors which the court should take into account in making provision, and it cannot put the court in any form of simplified straitjacket compelling it to come to a conclusion contrary to justice and commonsense.
Secondly, despite much talk by husbands condemning what they call the principle of the "meal ticket for life", it enables the court to recognise that a wife frequently—I would say in the case of a marriage of substantial duration or where normally there are young children—loses or impairs her earning capacity during a marriage of any length, while a husband normally does not, and that this effect of disparity continues after dissolution more particularly when—as again is normally the case—the children are young and remain in the care and control of the wife. This is inescapable even though it means that, though the marriage is dissolved, the ex-husband continues to have for an indefinite period some responsibility for his former partner; unless of course there are capital assets which can facilitate a clean break, or, in the absence of children, a young wife can go back to earning at something like her own level before too long. It is in this connection that it is no good talking of a "meal ticket for life" where there has been a cruel or unfaithful husband and an innocent and caring wife who has lost her earning capacity and has care of young children. There is a continuing moral responsibility which the law must recognise. May I just add here how deeply I resent the suggestion put forward by some one-purpose pressure groups that the intention of this Bill is to deprive such wives of their existing rights. My intention is to preserve them, and I believe the courts will act the same way.
Thirdly, the existing section is right because, although it provides that conduct can have some influence on financial settlement and that it would be repugnant to conscience if it did not do so, the section, as interpreted by case law, makes it quite clear that nothing—I repeat "nothing"—would justify a return by the courts to the degrading and squalid experience which we can all remember as "the defended cruelty case".
35 While these elements in the old section are right, I very rapidly came to the conclusion, shared independently, as it now appears, by the Law Commission, that there are defects in it which urgently require amendment, and in their practical operation give rise to legitimate complaints. The first, and the least controversial, of these relates to financial provision for the children of the dissolved marriage. Subsection (1) of the new Section 25 (contained in Clause 3 of the Bill) provides that in exercising its powers first consideration is to be given to the welfare while a minor of any child of the family who has not achieved the age of 18. The old section did not give the same degree of priority to the children of the marriage—even though the courts in practice may to some extent have done so. We have, however, continued the old subsection (4) which qualified this with respect to children not physically the children of one or both parents.
My Lords, the second, and most important, change is to the last words of the old subsection (1). This limited the discretion of the court by enacting that, in exercising its powers, the court should place the parties, so far as it is practical, and, having regard to their conduct, just to do so, in the financial position in which they would have been had the marriage not broken down. This is to set the court an impractical and wholly undesirable objective. The basis of divorce being the irretrievable breakdown of the marriage, it is neither practicable nor desirable to attempt to put the financial eggs back in their shells. That would involve the courts in a miracle worthy of my reputed predecessor, Saint Swithin, who is reported to have done just that on a famous occasion. It is this which has led to the most anomalous of decisions and given rise to the legitimate element in the "meal ticket for life" complaint.
The comparable passage in the Bill requires the court to have regard to the standard of life enjoyed by the family before the breakdown of the marriage, and of course to their means. Given that divorce has taken place, the so-called principle of the clean break in appropriate cases, but only, I repeat, in appropriate cases, is the only practical and by far the most desirable outcome. Say a broken marriage lasts six months without children, or where capital assets allow a clean and permanent break, prolonged maintenance and repeated variations can only, in my judgment, lead to prolonged bitterness. At present the courts cannot of their own motion give effect to this principle. If you are going to base dissolution on irretrievable breakdown, the sooner the parties can be parted, if they can be parted without injustice, the better. The new law alters the status quo by enjoining the court to take into account the possibility and the justice of the clean break principle where it is applicable at all, and provides consequentially, reversing a previous decision under the old law, that a prayer for further relief may be dismissed at the suit of either party. I am sure that this is both wise and just. Given that divorce takes place there must come a time, at least in a minority of cases, but I would suggest only a comparatively small minority, when the financial dependency should come to an end. In an extreme case this time may come relatively soon, but in other cases only after a period of years.
36 The third respect in which the old Section 25 is altered is, I believe, more verbal than real. The courts early took advantage of the manifest policy of the old Act of 1969 that the old "defended cruelty" cases, to which I referred a moment ago, should not be resurrected under another name. This decision was embodied in a reported case known to lawyers, after the name of the parties, as Wachtel. But for a time after the decision there was a tendency to treat certain phrases in the judgment as if they constituted an amendment to the plain wording of the Act, when they were only intended as a piece of judicial rhetoric when they were uttered on the lips of Lord Justice Denning, as he then was. This, of course, it could not have been intended to do since it would have been contrary to the main terms of the Act. Recent practice, I am told, has recognised this, and it is made plain beyond doubt in Section 25(2)(g) of the Act, as it would be inserted by the present Bill, which provides that the court is only to take conduct into account if the conduct is such that the court considers that it would be inequitable to disregard it. This is in effect slightly more restrictive than the wording of the old Act, but slightly less restrictive than the judicial rhetoric "gross and obvious" of Wachtel might lead one to suppose if taken out of context.
My Lords, I come now to Part V of the Bill, which differs in character from the first four parts. Part V is entirely about the machinery of justice. Its main thrust is to improve the distribution and transfer of business between the High Court and county courts, and to abolish the rule that, if defended, matrimonial causes must automatically be transferred to the High Court. There is also a transfer of rule-making powers to what has hitherto been called the Matrimonial Causes Rule Committee.
These provisions about distribution and transfer represent the policy I have decided upon following the responses to a consultative paper we issued last January. That paper canvassed two alternative options. One was to improve and rationalise the present distribution of business between the High Court and the county courts. The other was to amalgamate the family jurisdiction of the High Court and county courts by creating a Family Court, although not at that stage one which would have included the jurisdiction of magistrates' courts. The response to that consultation was not all one way. A majority of those who replied were in favour of the Family Court, though many of those who took this view regretted that I was not going further and proposing the creation of a new Family Court with exclusive jurisdiction in all family matters. A minority expressed the view that it would be wrong to take family business away from the High Court, and that to do so would appear to downgrade it, whereas it was said that in reality a good deal of family work is some of the most important of all the work done by the High Court.
I myself have never concealed the fact that I am attracted by the concept of a Family Court, though I do not believe it would usher in the millennium in the way that some of its supporters seem to suppose. I have also been impressed by the views of those replying to my consultative paper who regretted the fact that the paper did not canvass the possibility of 37 including the jurisdiction of the magistrates. Given the continued strength of support for the idea of a comprehensive court with exclusive jurisdiction in all family matters, I have agreed with my right honourable friend the Home Secretary that we should now re-examine the idea of a unified family court, starting with a detailed study of the resource implications in terms of finance, manpower and accommodation.
In the meantime, I am anxious to meet the main criticisms that have been made about the way in which family business is distributed between the High Court and the county courts. In the present Bill, therefore, I have decided to proceed on the lines of the first option in the consultative paper. The elements of the scheme are very simple. First, the rule that a divorce or other matrimonial cause automatically transfers to the High Court on becoming defended is abolished. Secondly, the criteria according to which family business is distributed and transferred between the High Court and county courts will he set out in directions given by the President of the Family Division with the Lord Chancellor's concurrence: that is, Clause 31. Clauses 32 and 33 make general provision to facilitate transfer, the powers for which will be exercised in accordance with the President's directions. "Family business" is defined by Clause 26 as all the business which is assigned exclusively to the Family Division of the High Court. That assignment is, itself, alterable by subordinate legislation under the Supreme Court Act 1981, so that it will be possible to alter the scope of these new transfer provisions without the need for primary legislation.
I hope that this scheme, which should ensure the maximum flexibility of transfer between the High Court and county courts, will go a long way to ensuring that the right cases come before the right judges, and I am confident that it will eliminate the vagaries of the present system. Much will, of course, depend on the contents of the President's directions, and that is something on which we must work together in the coming months. Finally, the powers of the Matrimonial Causes Rule Committee are extended to cover all family business.
A number of the clauses of Part V, for example Clauses 28 to 30 and 35, make no significant change in the law but have simply been carried over into the Bill, with little or no amendment, from the Matrimonial Causes Act 1967 so as to facilitate in due course the total repeal of that Act.
I should perhaps mention one thing which is not in the Bill because it may be that some of your Lordships will have hoped to see something about it; that is, the topic of conciliation in matrimonial proceedings. Let me say first that I heartily support the principle of conciliation. It is of course better and more civilised for people to resolve their differences amicably than to fight them out, though in the context of divorce the interests of the children need to be watched. The real issues over conciliation are about methods and funding.
I must, however, emphasise one point. This Bill is not a necessary vehicle for advancing the cause of conciliation. Quite apart from the fact that it would be premature to bring provisions into it in advance of 38 decisions on the report, the cause of conciliation does not need primary legislation to promote it. It needs people with skill and dedication, it needs money and it may need changes in procedure and practice, which can be effected by rules of court and other subordinate legislation. This latter aspect is being examined by the Committee on Procedure in Matrimonial Causes under the chairmanship of Mrs. Justice Booth, which issued a substantial consultation paper a few months ago. I hope, therefore, that no noble Lord will attribute the silence of the Bill on this topic to a lack of interest or activity on the part of the Government or myself.
I am conscious of having taken up a great deal of your Lordships' time, but I do not think I could have presented the terms of the Bill more shortly, and I hope your Lordships will forgive me. I beg to move.
§ Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 4.55 p.m.
§ Lord Elwyn-Jones
My Lords, I do not think that the noble and learned Lord the Lord Chancellor need apologise for the length of his speech in view of the complexity and importance of this Bill. Indeed, if I may say so, we were forewarned when on First Reading he read the Long Title of the Bill, which achieved a record for worthy inclusion in the "Guinness Book of Records", if that were not an unsuitable place for so important a pronouncement.
I respectfully agree with the opening words of the noble and learned Lord that the family is the solid foundation of society. Further, I believe that to maintain and support the family is a primary duty of Government—alas, too often neglected in this day and age. The Bill we are now considering affects a very large number of families—husbands, wives and children—in our community. I doubt whether I have received such a large postbag on a Bill as I have on this since I have been a Member of your Lordships' House. I have to say that a great deal of it comes from one source—the supporters of the Campaign for Justice in Divorce. I make no complaint about that. I have also received serious and substantial representations, some of them critical of the Bill, from the rights of women organisation, the one-parent families organisation, the Children's Centre, and also a helpful briefing from the Family Policies Centre. What has been communicated by them indicates that we are to have a pretty lengthy Committee stage, and if there are any Whips present—I see one—no doubt that will be notified to the appropriate quarters so that we shall not have too much impatience reflected by the Government Chief Whip, in his own inimitable fashion, when the matter comes to the Committee stage.
One of the difficulties mentioned by some of the organisations is concern about the rise in the number of divorces since the Divorce Law Reform Act 1969 came into force in 1971. That has given rise to concern, possibly legitimate concern, about the future of the family. But I do not think there is any actual evidence that more easily obtainable divorce has in fact led to more marital breakdowns. Divorce is the end result of the breakdown of a marriage, not its cause. When that has happened in a way the divorce itself becomes the least important part of the 39 proceedings. When legal aid for undefended divorces was withdrawn—a step for which I take responsibility—legal aid remained available for financial relief and matters relating to children. These are the problem areas and, not surprisingly, they constitute the crucial elements in the Bill, as the noble and learned Lord indicated.
One of the difficulties that we are facing is a certain inadequacy of information about important matters, particularly when we are considering financial provisions; that is to say, much more information is needed about the cost of bringing up children. That is especially important in considering the circumstances of children living in one-parent families.
If and when the Bill comes into force, we believe that it will be of great importance to ensure that provison is made for continuous monitoring of its operation, particularly the parts dealing with the financial consequences of divorce. In this context perhaps I may be permitted to remind the noble and learned Lord of the provisions of Section 105 of the Children Act 1975 which require the Secretary of State to lay before Parliament every five years:a report on the operation… of the Act… and… institute such research as is necessary to provide the information for those reports".That is an important precedent. I hope that the noble and learned Lord the Lord Chancellor will perhaps comment on this either at the end of this debate or later as a precedent which should be followed in view of the uncertain impact at present of the financial provisions of the Bill.
There is a geat deal of concern in certain quarters about the so-called clean-break provisions of the Bill. However, it is claimed on the Bill's behalf that a clean break to end financial liability between spouses following divorce would not apply where children are involved. When we come to consider the detail of the Bill we shall want reassurance that that is clearly spelled out. The presence of children in the family surely makes a clean break impossible. After all, parents cannot divorce their children.
So far as concerns the proposal that wives should become more self-supporting, we should consider the fact that at the time of divorce most wives are not in a position to be so. In the Committee we shall examine very carefully whether the Bill will fetter the discretion of judges and registrars to decide whether short-term maintenance or a clean break is appropriate in a particular case. If they have that discretion it may be that the effect of the Bill will not be as fierce as some critics have indicated. I think that it is right that we should bear in mind that wives do suffer serious economic disadvantages from marriage itself, as well as from divorce.
Mostly—although there are many exceptions —wives are still expected to put their jobs and their economic independence second to the interests of their husband. They are still the principal carers of children, the elderly and other dependent relatives. Few in those circumstances can manage to keep a full-time job throughout their marriage. Many women are prevented from taking paid employment outside the home because of the wholly inadequate day nursery facilities at the present time. Opportunities for training 40 and retraining are limited. Sadly, women in general still do not enjoy equality of opportunity and pay at work. No doubt my noble friend Lady Lockwood will enlighten us on this matter when she addresses the House.
Therefore, while it may be right—as the Bill does—to consider the wife's earning capacity when there are no children of the marriage, I submit that it is not realistic to expect a mother raising children to take steps to increase her earning capacity. When the Bill is discussed in detail we shall have to consider the impact of the provisions of subsection (2) (a) in the amended Section 25 of the 1975 Act—namely, that regard shall be had to the earning capacity of the mother in the marriage and:any increase in that capacity which it would… be reasonable to expect a party to the marriage to take steps to acquire".It is simple to state but not easy for many wives to achieve.
The reassuring provision in the Bill is its pronouncement that the first consideration in the financial provisions will be financial support of young children. That will be generally welcomed in the House. The Children's Legal Centre, however, which has communicated with me, casts serious doubts on whether the Bill achieves that aim. We shall have to consider that in due course. There may indeed be something to be said for giving the children the right themselves to apply to the court independent of the parent or the guardian in certain circumstances. Maintenance as a child's right would concentrate the court's attention on the child's needs—although I venture to think that most judges and registrars will be most concerned about that. Unhappily it is the case sometimes that neither the father nor the mother has much concern about the children. I recollect the father who said: "If it was not for the children, my wife and I would have been divorced years ago. She will not have them and I will not have them". That, I trust, is a very unusual condition.
The new Section 25(1) in Clause 3 perhaps covers too narrow a limit when it speaks of:first consideration being given to the welfare while a minor of any child of the family"—and then it adds—who has not attained the age of eighteen".Many children necessarily remain dependent on their parents beyond the age of 18 for educational, medical and other needs. Perhaps this is a matter for adjustment in Committee.
Some fear has been expressed about the impact of the new Section 25(2)(g) and the duty to have regard to:the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it".There is a fear that that will reopen the unhappy disputes about behaviour and conduct which have so long in the past prolonged divorces: increase the likelihood of contested hearings; and perhaps cause grave damage to any possibility of a long-term relationship between the parents and the children. Perhaps we can revert to that in the Committee stage of the Bill. It certainly is desirable that we should avoid as far as possible the creation of discord in this already difficult field.
41 The noble and learned Lord dealt in devastating fashion with the criticisms that are made about Clause 1 of the Bill which will substitute for the present three-year requirement an absolute bar during the first year of the marriage of the possibility of a petition for divorce being available. I confess that I am in full sympathy with the noble and learned Lord's criticism of the present language of the law, the present provision that if a party wants to petition for divorce within three years they can do so, but must show exceptional hardship or depravity. In the past many judges have condemned that; and, if I may say so, it is gratifying to see among the list of speakers today judges of great experience in this field. No doubt they will give us the benefit of their own experience of dealing with these matters.
I am bound to say that my own inclination is to support some time restriction before divorce proceedings can be brought. I think that in the interests of public policy it is important that there should be a limited period of experience for the newly married. I venture to think that it could well devalue the institution of marriage if divorce were readily obtainable within days of the marriage taking place. Therefore, I favour a time restriction. I certainly agree with the view expressed by the noble and learned Lord and by the Law Commission that the law would be simpler and more comprehensible if it asserted the general policy by means of an absolute bar upon divorce during the first year of the marriage. I am not dogmatic as to whether the period should be one year or two years. I am inclined to the view expressed by the noble and learned Lord and the commission that,where the spouses' incompatibility is revealed during the early days of marriage, the balance of social advantage clearly lies with the speedy termination of the marriage".I do not think that I should like to be quite as speedy as they are in Scotland about these matters without there being any great harm to the public or indeed the private morals of Scotland. I think that a year's waiting time is a helpful suggestion.
I conclude by referring to the matter which the noble and learned Lord the Lord Chancellor dealt with at the end of his speech; namely, the need for conciliation. If he will allow me to say so, I confess that I was not greatly reassured by what the noble and learned Lord said. I can quite see that it might be difficult to make a statutory provision requiring conciliation. Compulsory conciliation is indeed almost a contradiction in terms. But the ready availability of conciliation services has already proved itself in different parts of the country—in Bristol, and in other cities. Even if conciliation would not save a marriage—though it might do so in some cases, with second thoughts—conciliation conducted by neutral and independent conciliators can reduce much of the bitterness in divorce in the drawing up of agreements on custody access, and even financial settlements.
Therefore, I hope that the Government will now really take this matter seriously. If I may say so without impertinence to the noble and learned Lord, lip-service is not enough. Public finance is needed. Most of the people who do the work do it either for nothing or for most inadequate reward. I do not think that what I suggest would impose a tremendous burden upon the Exchequer. Therefore, I hope that 42 before we finish the debate the noble and learned Lord the Lord Chancellor can at least give us an assurance that he will have a go at the Treasury—as I venture to suspect he has done from time to time in the past—to see that this important aspect of conciliation is provided for, as I, too, tried to do in my own time.
As the 1966 Law Commission Report, The Field of Choice, expressed it:When a marriage has irretrievably broken down it should be possible for the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.".Those are indeed notable words. We believe that conciliation and the efforts of conciliators could help greatly to achieve that purpose.
§ 5.16 p.m.
§ Lord McGregor of Durris
My Lords, the issues with which this Bill deals touch deeply held and often conflicting views about family life and about the relationship between private and public morality, and therefore raise strong feelings. For example, feelings have been aroused among women who have feared, happily mistakenly—the noble and learned Lord the Lord Chancellor has reassured us on this point—that the Bill was intended to strengthen the husband's hand against his wife in respect of maintenance. I do not regard this debate as a proper occasion for contributing to such discussions; nor do we in the Alliance regard the proposals of the Bill as a subject for party politics.
The noble and learned Lord the Lord Chancellor has set an excellent example in his urbane, tolerant, and most helpful discussion of the purposes and content of the Bill. The Bill stems from some of the major changes in family law which were shaped by the English Law Commission in its early days under the chairmanship of the noble and learned Lord, Lord Scarman. In part, those changes represented an adjustment to the silent social revolution which has taken place in the family as an institution as a result chiefly of demographic developments and of the movement of wives towards equality with their husbands.
In considering the Bill it is helpful to have in mind some aspects of this transformation, because in order to support the family we must understand it. First, changes in the last 40 years in the sex ratio and in the propensity to marry have given women equality of opportunity to marry. We have a high proportion of the population marrying, and until very recently they did so at younger and younger ages. That, combined with the fall in adult mortality, has greatly increased the duration of marriage, so that for the average couple it has become an institution which lasts for 45 years.
To put these points in more dramatic terms, I would say that Professor Anderson has calculated that the cohorts born in 1861—the grandparents of the interwar years—were the first people in our history a majority of whom would know all their grandchildren. Today men can expect to live for 14 years and women for 23 years after the birth of their last grandchild. The lifespan of the family has indeed lengthened as the number of divorces has risen.
It is not possible fully to assess the significance of the huge increase in divorce and to compare the experience of the present with that of the past, because there 43 are no means of knowing what proportion results from greater access to divorce as a consequence of the growth of equality before the law, and what proportion represents a greater willingness among people at large to seek divorce as a cure for the ills of marriage.
The lengthening of the duration of marriage gives at least the statistical perspective upon the estimate that somewhere around one-third of married couples will soon be experiencing divorce. It is not possible to predict whether this proportion will increase or decline. Good arguments can be put either way, but there are certainly no signs of a flight from marriage given the very high re-marriage rates of divorced persons. We know that a high proportion of women remarry. What we do not know is whether those who remarry are the mothers with the larger number of younger children. One may reasonably suspect that they are the very people who fail to reconstitute themselves easily into new families.
From these Benches, we shall not oppose the Bill, and we are glad to accept most parts of it. However, we feel some disappointment. The noble and learned Lord, Lord Elwyn-Jones, has mentioned the inadequate factual information that is available for law reform in this area. In its response to its own discussion paper on the financial consequences of divorce, the Law Commission referred to this difficulty. It said:Even the most basic questions about the extent to which the existing private law imposing financial obligations on spouses does, in reality, provide any significant support for their families cannot be answered. We do not know how much maintenance is in fact ordered to he paid by the courts. Still less do we know in what proportion of cases such payments are actually made, and for what period of time they continue".So we are in a position—under what the noble and learned Lord the Lord Chancellor called a degree of urgency—of legislating about maintenance in complete ignorance of the social reality we are attempting to regulate. That is not an adequate basis for effective law reform. Indeed, when the legislation was being framed in the late 1960s and early 1970s, the Law Commission considered a proposal to monitor the financial consequences of the legislation that we have been discussing. Unhappily, that proposal fell through. but had it been undertaken there is no doubt that many of the difficulties now being experienced would never have arisen. It is a considerable disappointment that there is no provision in the Bill for monitoring its results. This is in sharp contrast to the monitoring arrangements proposed in its draft Bill by the Scottish Law Commission. I hope that the noble and learned Lord will be able to consider the desirability of providing monitoring.
It is perhaps an oddity of family law reform that the area about which there is considerable and detailed knowledge of the wishes of the population at large—that is in respect of matrimonial property—is the one area in which the Government rejected legislation. They are now proposing legislation about an area of which everyone agrees we are ignorant. It is desirable that we get rid of the requirement in the legislation under which parties must be put in the financial position that they would have enjoyed had the divorce not occurred. That would necessarily put judges, who are, in any event, engaged very frequently 44 in judgments of Solomon in this area, in a position in which they had to speculate in the absence of effective information. I suspect that the use of phrases in the present Bill of the order of earning capacity and future earning capacity will involve very similar speculation.
It is desirable beyond dispute to make the welfare of the children a first consideration when dealing with maintenance. But this is not, in practice, as simple as it sounds. It was stated by the noble and learned Lord, Lord Elwyn-Jones, that the notion of a clean break would be quite inappropriate where there was a mother with young children. I think that we would all agree about that. But when you face the other ranges of circumstance, from the young couple, both with jobs, who have no children, to the couple in which the wife has never worked and who has now reached her mid-60s, you move across the arc. You face the most formidable of all problems in administrative justice. No formula can possibly secure just results. There must be the exercise of very wide discretion to achieve justice in individual cases. That justice must also depend to a large extent on very much greater knowledge of the consequences of maintenance awards than we possess at present.
There has been a small amount of academic research, all of which points in the direction of confirming that little has changed since the publication, in the late 1960s, of the Graham Hall report, which contained a small-scale study of maintenance in the divorce court, and the Finer Committee on One-Parent Families in 1974. Both of those reports and all of the present studies show that the problem is not so much what law we ought to apply, as the fact that in a very large number of instances there is no money to apply the law to. Surveying the whole area of maintenance there will, of course, be a number—but it will be a minority—of persons who have money, who can allocate it, and who will respect the allocations. But in a large number of cases the casualties of broken homes must be borne by the taxpayer, and the taxpayer in fact carries them and has carried them since the first Poor Law Act 1601. All that has changed has been the circumstances in which the payments are made.
The Finer Committee on One-Parent Families showed that maintenance contributed only 12 per cent. of the total amount received by one-parent families on supplementary benefit. The maintenance that came from the Supplementary Benefits Commission was the substantial, crucial element, and what came from maintenance orders and voluntary payments was marginal. I believe that this situation is the norm of what exists in this society. I do not suggest for a moment that we should consider removing the personal responsibilities of husbands or, in a very small number of cases, of wives, for maintaining their spouses. But what we must certainly do in the long run is to stop treating the institutions of the law and the institutions of social security as separate organisations with no connection with each other in this area. What we have to do is to bring the private law of family maintenance into a much better relationship with the public law of social security. That inevitably points in the direction of the family court, because the main argument of the Committee on One-Parent Families for having the family courts was precisely that the 45 social security authorities and the courts could work in effective harness.
So I am very disappointed that we make no progress in this Bill towards the family court. I certainly welcome very gladly the decision of the noble and learned Lord to set up an inquiry into aspects of the establishment of family courts, but I would again echo what the noble and learned Lord, Lord Elwyn-Jones, said about conciliation. Conciliation is urgent; it has reached the stage at which support and very small amounts of money would help it to become established, otherwise it will wither and those who are engaged in it will become frustrated, disappointed and will go elsewhere.
We all know about the admirable scheme in Bristol and of the schemes elsewhere. Not in Treasury accounting terms, but in realistic accounting terms, conciliation will save money in all kinds of ways which do not need to be listed, just as Judge Jean Graham Hall in a recent piece of research has shown the likelihood that the establishment of a family court based on the divorce county court will lead to savings in public expenditure in this area. I very much hope that one of the areas that the noble and learned Lord the Lord Chancellor will investigate will be the costing of family courts and also, if possible, a cost benefit analysis of the effect of establishing a family court.
I have said enough to indicate that the Alliance welcomes the Bill because of the parts of it which are necessary and useful; that in respect of family courts its expectations have been aroused; but in respect of the financial provisions we have considerable anxiety about the future effectiveness of provisions which rest on no foundation of economic or social fact.
§ 5.37 p.m.
The Lord Bishop of Rochester
My Lords, the historic partnership of Church and state in the life of our nation is a precious thing and has long been acknowledged by those of all faiths and of none. But as one who is not a lawyer I speak in this debate with more than usual trepidation.
However, there are few matters which affect more of our fellow citizens than those of marriage and divorce, because the family formed by marriage is the foundation for democracy and the keystone to stability and happiness for husbands, wives and children. So notwithstanding a recent unfortunate lapse, to which the noble and learned Lord has referred so graphically and so understandably, a lapse which I personally much regret, it has been the most natural thing in the world that in recent years the Church should have been involved not only in examining Christian teaching about marriage and how it should be exercised within its own membership, but also in looking at the law of the state concerning divorce.
That double role is not always understood as it should be, but in a book on Marriage in Church and State, published as long ago as 1912, the author, T. A. Lacey, writing of the duty of a Christian called to the reformation of the laws of the state, said:In doing this he has no right to put aside what he has learnt as a Christian, and in the quality of citizenship to act as a mere natural man … But neither is he bound to insist that the laws of the State, in regard to marriage or in regard to anything else, shall conform exactly to Christian teaching. Not all subjects of the State are Christian and the State must legislate for all.".46 It was in this spirit that in 1966 a report was presented to the then Archbishop, Lord Ramsey, entitled, Putting Asunder: a divorce law for contemporary society. This report, to which the noble and learned Lord has already referred, considered what provision should be made in civil law for divorce, and the Law Commission's response in its own report, The Field of Choice, and the consultations which followed both reports, were the basis of the 1969 Act passed by Parliament.
The central recommendation of the report, Putting Asunder, which was implemented in the subsequent legislation, was that divorce law should be based on the concept of matrimonial breakdown as opposed to matrimonial offence. This was seen as being more in accord with the true nature of marriage and of what divorce means. It was thought that the doctrine of the breakdown of marriage ought not to lead to "divorce by consent", and that it was,not unworthy or incompatible with the covenant of lifelong union".The report stated:In our opinion, this is a move away from superficiality towards a serious attempt to deal justly both with the complexities of the matrimonial relationship itself and with the interest of other persons upon whom the conduct of the spouses may have impinged. The social context of the family is thus recognised".The group of people who produced Putting Asunder believed that, in putting forward this basic argument, they were assisting those who had to consider the framing of the reform of the divorce law in this country. They were not commenting on the form the Church's internal discipline should take, but on what the state ought to do to fulfil its obligations in the provision of law for marriage and divorce.
The essential consequences of such a change in the basis for divorce in civil law were, I believe, seen to be threefold: first, that the court should have a duty to inquire into what attempt at reconciliation had been made; secondly, that the trial of a divorce case should become much more of a judicial inquiry into the alleged fact and causes of the "death" of a marriage relationship, where associated questions concerning children and property could also be decided; and, thirdly, that the inquiry as to whether a marriage had irretrievably broken down should be of sufficient length and depth and that all verbally formulated grounds for divorce should disappear.
Although the law as it now stands makes the irretrievable breakdown of marrige the sole ground for divorce, it does not make provision for some of the key elements in the thinking of the report, Putting Asunder. The emphasis on reconciliation, so strong in the report, is minimal in the Act. The procedural proposals for proper inquiry into marriage breakdown have never been instituted or followed and, of course, now the sheer number of divorce petitions makes such provision hard to contemplate. However, it is perhaps worth observing that the authors of Putting Asunder gave a warning, that,to alter the law while leaving the method of administration as it is, would make divorce easier to obtain".The Law Commission Working Paper No. 76 pointed out that, although the ground for divorce is that the marriage has broken down irretrievably, it is not necessary for the court to be affirmatively satisfied 47 that such breakdown has occurred. On proof of one of five facts—such as adultery or cruelty—the court must grant a decree, unless it is satisfied that the marriage has not broken down irretrievably. As your Lordships all know, over 90 per cent. of all divorces are uncontested and are completed by post without the necessity for any court appearance by the applicants.
I submit that this is the background against which we need to see and assess whatever rule is made about the timing of divorce petitions. In fact, the present rule goes back to 1937. It was introduced to counterbalance the effects of some extension of the grounds for divorce. I believe that the original draft Bill contained no such restriction. In another place a clause was introduced to place an absolute bar on presentation of petitions for five years. But your Lordships' House amended this to three years with provision for cases of "exceptional hardship" or "exceptional depravity".
Nearly 30 years later in 1966 the Law Commission, following the recommendation of the report, Putting Asunder, favoured retention of the three-year rule. It said that divorce should not be so easy:that the parties are under no inducement to make a success of their marriage and. in particular, to overcome temporary difficulties".Now, after the passing of another 17 years, as the noble and learned Lord has told us, the Law Commission thinks that there are strong reasons for change, the strongest of which is surely that the three-year rule seems to defer, but not to deter, divorce.
After considering five options, the commission decided in favour of the reduction of the time restriction to one year and the abolition of all exceptions. I think that we should take careful note that the commission believed that the lifting of all restrictions would have a bad effect on marriage as an institution, for it said: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 marriage".However, there are many who believe that the option which the Law Commission has chosen does just that. So I hope that, in deference to those who feel strongly about the progressive erosion of the institution of marriage, during the Committee stage of this Bill we shall look very carefully at the other four options which the Law Commission considered, especially the possibility of issuing new guidelines for the courts on exceptions and of maintaining the three-year rule or possibly reducing it to two years. After all, it was this House that made a change in the Bill of 1937 which brought in the three-year rule. Perhaps it would not be inappropriate, therefore, if it were to be this House which makes a change nearly half a century later on the same matter.
I believe that there are a number of reasons why we should look very carefully at this proposal. If the basic concept underlying divorce law ought, in practice as well as in principle, to be "the irretrievable breakdown of marriage", then before such can be demonstrated, a marriage will normally need a sufficient time to get itself established. Of course, there will be some marriages which, for one reason or another, are non-starters from the outset. But surely it ought not to be beyond the capacity of the law to make 48 provision for such cases through the humane and compassionate exercise of legal discretionary powers.
Secondly, in view of the evidence that at least 25 per cent. of those who present petitions do not proceed with them to the point of obtaining a decree absolute, there are clearly a minority of petitioners who in effect are saying, "Our marriage is in a deep crisis; we can see no way forward except divorce".
Such pleas for relief and help surely indicate that the most urgent need is not so much to alter the three-year rule, as for serious consideration to be given to more adequate support for marriage growth and development, and for the appropriate professional resources to be made available to support this, as I believe the noble and learned Lord, Lord Elwyn-Jones, was suggesting.
The third reason why we should think carefully before amending the law in this way is that, as he has told us tonight, 15 months ago the noble and learned Lord the Lord Chancellor appointed the Matrimonial Causes Procedure Committee under the chairmanship of Mrs. Justice Booth. Judging by their consultation paper, the report of this committee is going to be far-reaching and of great significance. If the Booth committee is looking at the tension between the fundamental concept of the breakdown of marriage and the facts which are used to demonstrate breakdown then, my Lords, would it not be wiser to hold over any change until the whole package of changes likely to be proposed by the Booth committee are before us and we can assess their mutual interdependence?
The committee's provisional view is that a hearing should take place as soon after the filing of a petition as is reasonably possible, and that the parties should be brought together in a non-adversarial setting. This could be an important proposal, as indeed could be those of the Booth committee about conciliation, for they say quite categorically, "there is evidence that conciliation can lead to reconciliation, sometimes in apparently unpromising cases."
The Booth committee is looking at the whole scene. Is there not a real possibility that its report might offer us a better climate in which to think about humanising divorce procedures? Will not the one essential requirement for their proposals about a hearing and those about conciliation be time? Should we not therefore think long and carefully before making any piecemeal decision affecting the time within which petitions for divorce can be made?
Marriages have to be made in the sharing of love and of life. It is surely the duty of the community, if we wish marriages to succeed, to do all in our power to prepare the ground for success. Is it not also the duty of the community to frame its law so that couples are encouraged to make their marriage work? To do this requires both time and the commitment of the will.
I speak only for myself, and I recognise the problems of the three-year rule, but I question whether the alternative proposed is the right one at this time. I also see the need for some action on maintenance; but only, if I may say so, if we bear in mind that many divorced wives as well as divorced husbands will sadly be among the 3 million unemployed today. What might have been a reasonable and possible expectation 49 of employment in the 1960s is for many in the 1980s a sheer impossibility with the best will in the world.
I presume to hope that under the guidance and leadership of the noble and learned Lord the Lord Chancellor, whose passion for justice and whose compassion for the suffering we all respect, this House will look critically, and, if need be, radically at this Bill in Committee. Like the noble Lord, Lord McGregor, I do not think that this is a matter for party politics. My own hope is that we, the Lords Spiritual and Temporal, can reach such an agreement on a matter of human and spiritual importance that when it comes before Members in another place they will feel that the people of England, in all their need and frailty as well as in all their great potential, will find that the law is concerned to strengthen and stabilise their marriages and their family life.
§ 5.55 p.m.
§ Lord Stallard
My Lords, in rising to make my maiden speech in this House, I find it difficult to define in precise terms exactly how I feel at this moment. Suffice it to say that if I knew what the term was, roughly translated it would mean extremely nervous. I am also very much aware of the established conventions on these occasions. I respect those conventions, and it is not my intention to offend them in any way. Having said that, however, I recognise the task that I have set myself by choosing to make a speech on the Second Reading of this Bill. So I hope that if I stray a little from my good intentions, the House will forgive me and noble Lords will continue to show me the same friendliness and courtesy I have experienced and appreciated since becoming a Member nearly two weeks ago.
When I first read the Bill I had reservations about some of its proposals, but I was hesitant about expressing them in this House which is so richly endowed with legal expertise, feeling that my own non-legal opinions might not be considered relevant. I must confess that the opening remarks of the noble and learned Lord the Lord Chancellor have done little to assuage those fears. However, after listening to the recent debate initiated by the most reverend Primate on the problems of crimes of violence, and hearing contributions during that debate from the Lord Chancellor, the Lord Chief Justice, my noble friend Lord Soper, and other noble and learned Lords, I was encouraged and inspired to make this short contribution because I found that many of the remarks made in that debate coincided with my interpretation of parts of this Bill.
For example, the most reverend Primate the Lord Archbishop of Canterbury in his opening speech on the 15th November (at column 1156 of Hansard) said:Unless we can do more to strengthen families and to reduce the frightening increase in divorce and separation we shall not be getting at the roots of violence.The Lord Chief Justice, after listing what he considered were some of the causes of violent crime, said at col. 1179:But on top of that there is a host of other reasons—easier divorce—soon to become easier still … with broken homes as a result, easy abortion, the Pill at the age of 11 and 12 with all that means by inference …".Running through many other speeches in that short but extremely important debate were pleas for a return 50 to Christian standards, for a strengthening of family ties, and for more to be done here and elsewhere to assist this process.
I felt that here in this Bill was an early opportunity to perhaps begin that process. Informed opinion of many people outside this House, people involved with the implementation and effects of legislation in this field, seems to suggest that, far from assisting the achievement of the ideals expressed during that debate last week, certain aspects of this Bill might even be seen to be compounding, in part at least, some of the problems outlined by noble and learned Lords.
Indeed, Part II, Clause 3 of the Bill is unique in one respect: it seems to have united leading churchmen and organisations like the Legal Action Group, One-Parent Families, the Children's Legal Centre, and others in opposition in similar terms. One eminent Christian is reported as saying:This Bill does nothing to strengthen marriage and if enacted it will weaken marriage".Another leading Christian has said:At a time when steps should be taken to rehabilitate the family as a stabilising influence in society, there is a danger that those people who take their basic morality from what the law permits will increasingly view marriage as a temporary contract".The Legal Action Group says:The Bill will impede conciliation, create uncertainty in the law, and is unlikely to do anything significant to help dependant children who are involved in 60 per cent. of divorces".Other organisations have made similar comments. My view is that we should listen to, and consider, those views.
I am concerned, too, about the social implications of the Bill, particularly when we consider the size of the problem. I have not time to give many statistics except one that frightens me. In 1981 159,000 children under the age of 16 in England and Wales had parents who were divorced, nearly double the number affected in 1971. If the current trend continues, it is estimated that about one in five children will experience their parents' divorce before they reach the age of 16. So, if we get it wrong at this stage, the social implications could be quite dramatic to say the least. I wonder at this point whether there was a DHSS input at the drafting stage of the Bill.
There are fears, too, in many quarters that the amendments to the Matrimonial Causes Act 1973 contained in Part II, Clause 3, of the Bill, could worsen the situation for many one-parent families. These doubts and others about the provisions of the Bill arise, in part, from the fact that very little reliable up-to-date information is available. Indeed, the Law Commission Report No. 112, in paragraphs 8 and 9, noted:One of the most serious difficulties encountered in examining any proposal for law reform in this area is that—notwithstanding a valuable study of the matrimonial jurisdiction of registrars carried out between 1973 and 1975 under the aegis of the Centre for Socio-Legal Studies at Wolfson College, Oxford—very little reliable … information is in fact available about the operation of the existing law.The lack of such factual information obviously constitutes a formidable handicap to the task of law reform.".The Commission went on to say in paragraph 11:it is in our view unsatisfactory that law reform should have to proceed on the basis of inadequate information about the operation of the law".51 Because of time, I will not further develop those arguments, but I hope that your Lordships will agree that they deserve further consideration.
I recall, too, the Private Member's Bill introduced earlier this year in another place which now forms the basis of this Bill. Permission was granted for the Bill to be read a second time, but on the appointed date, 4th February, objections were raised, the Second Reading was refused and the Bill was dropped. I found myself wondering what has happened since to make this measure so urgent that that Private Member's Bill now has the full weight of the Government machine behind it so soon and is being given such a degree of priority.
So far I have not been able to find any record of debate or official response to the Law Commission's reports on Family Property (in 1978) and Illegitimacy (in 1982), and we know that the Booth committee is currently consulting the public on its proposals on matrimonial procedures. The Law Commission is in the midst of a study on the legal consequences of the present grounds for divorce, all very relevant. I quote the Lord Chancellor's remarks during a short discussion in this House on 1st February last, when he said:you cannot go on tinkering with the law of marriage and divorce every 10 years".—[Official Report, 1/2/83, col. 680.]With that I agree. I should have preferred it if we could have waited for the outcome of considerations of all those excellent initiatives taken by the noble and learned Lord the Lord Chancellor, as well as the need for full-scale review of court procedures, of the need for a national conciliation service and for the possibility of Government action on the desirability of establishing family courts. I welcome the Lord Chancellor's remarks on those aspects earlier today.
I look forward with others to the Committee stage of the Bill, when, hopefully, we shall discuss in some detail those matters to which I have briefly referred. For now I wish to thank noble Lords for the patient and kind consideration that they have shown me this afternoon.
§ 6.3 p.m.
§ Lord Rawlinson of Ewell
My Lords, it is always a privilege to speak first after a maiden speech and therefore to offer the maiden congratulations to the maiden speaker. I do so particularly after the noble Lord's contribution with his particular experience of social care, his ministerial experience and also the arcane experience which he had in the Whip's Office in another place. That means that my noble friends Lord Denham and Baroness Trumpington must look after their onions, if that is the right expression, and noble Lords opposite will have to be even better marshalled than they have been in the past. The noble Lord has joined us in this debate. I am sure his name will appear many times on the Paper and he will always be listened to with great respect and great attention.
It was in 1815 that William Lamb wrote to Lord Landsdowne. He said:I know enough of domestic inquietude not to be surprised at any step a man may take under the pressure of it".He certainly knew what he was talking about. Though it was expressed by a man married to Caroline Lamb, 52 that was a sentiment which could equally have been echoed by many a woman of the time.
It was not until 40 years later that there was first established a new court to which was removed all the old jurisdiction of the ecclesiastical courts. It took another 66 years, till 1923, before the sexes were put on a similar footing as to the grounds for divorce. It was after the Royal Commission in the 1950s, following the Bill of the noble Baroness, Lady White, who will speak in this debate, that there came the Divorce Reform Act 1969, which altered the whole concept of the law of divorce with the elimination of fault and guilt.
Thus, divorce has become progressively easier over the past 130 years. Therefore, the institution of marriage, as traditionally conceived, has obviously been affected. Some of the criticism of the Bill has surely been absurdly exaggerated and, in part, grossly distorted, for society has accepted the need to provide for dissolution of marriage and the prime duty therefore is to ensure that the rules concerning the consequences of dissolution provide a fair and balanced system, especially when modern society openly accepts arrangements of living-in lovers and the children of such unions, and, in some aspects, seeks to require the law to provide rights to property and maintenance—the "palimony" syndrome, which in some quarters gains increasing acceptance. If it be that some sanctions are socially desirable so as to protect and enhance the status of marriage, it may be that the law should ever be used to enforce the legal consequences of marriage, but never the moral obligations arising out of associations outside marriage.
It is therefore understandable that the changes which were introduced by the 1969 Act and the legislation in the 1970s have not yet wholly provided a fair and balanced system of law. Like other noble Lords—indeed practically every noble Lord, I suspect—I have received massive representations, as I did following shortly after the 1973 Act. That attempted, as your Lordships will appreciate, to oblige the courts to put the parties into the same financial position after divorce as if the marriage had not broken down, while at the same time applying the new rules that guilt and fault had been eliminated.
In my view, many of these representations convincingly demonstrate some of the wholly inequitable consequences of Section 25. I accept that the people who write are usually the articulate who come from a particular section of society, but I have no reason to doubt that the same traumas are experienced by others in other sections of society. Apart from representations, more personally influential is my own experience and that of many practitioners. There is no doubt that there have been many inequitable consequences from the operation of the 1973 Act and the obligation of the court to put the parties on the same footing as though there had been no breakdown of the marriage. This has accentuated the feeling of resentment when, in every case and whatever the circumstances, conduct has to be wholly ignored. These are the cases which arouse the most bitter resentment—where one of the parties to the marriage has caused the family life of the marriage to break into pieces, has behaved scandalously by any standard, but 53 nevertheless ends up with a handsome financial settlement and with amenities to enjoy the fruits, and sometimes of wicked wrongdoing, while the wronged party suffers loss of marriage and home and is left quite unable to create another.
By that, I do not mean returning to the old syndrome of defended divorce. But I do believe that there can be cases, and are cases, where it is only equitable for the court to take conduct into account. The breakdown of marriage, as every one of us in this Chamber realises, affects and wounds individuals more than any other experience in life—more than death, more than illness, more than financial disaster. None of those creates such pain and distress or engender such bitterness; which can be, and is, targeted upon an individual, an individual who once, even for a short time, was loved and admired. Time is usually, but not always, the only healer. I am sure that it has been the experience of other noble Lords to have heard across their tables in the Temple or in their offices the voice which says "Never, never, will I forget or forgive". But, fortunately, people do forget and people do forgive. Time is the only thing which makes that possible.
Therefore, it is always a moving and distasteful task for the practitioner in the representation or the advising of those engaged in divorce. So often parties find it difficult to consider rationally which is best for them, and indeed, what is best for their children, because they are so blinded by their own immediate unhappiness. I think that we should appreciate in this House the task which is given to the judges of the Family Division and the appellate courts—requiring the judgment of Solomon, as the noble Lord, Lord McGregor, has said. It requires men and women of particular ability and character to man those courts; and, although they are entitled to guidance from the statute, nevertheless for justice to be done they must be given wide powers of discretion.
I turn now, if I may, to the passages in the Bill which have principally concerned the debate so far. I welcome the abolition of the "exceptional hardship and depravity" provisions. As the noble and learned Lord the Lord Chancellor has demonstrated, it is an impossible concept when looked at conceptually. What is "exceptional depravity" compared to "depravity"? What is the standard of cruelty where you have to find exceptional cruelty or exceptional perversion? What is perversion, apart from the obvious loopholes which have existed through alternative remedies?
I share the view of the noble and learned Lord, Lord Elwyn-Jones, and the right reverend Prelate: a preference for the substitution of some absolute and unqualified period when proceedings are barred. The question of course is what period? This is the most difficult judgment. Let nobody underestimate the very careful review and the arguments set out by the Law Commission, nor the importance of the Scottish experience. It is clear that on the Law Commission some wanted a period of more than one year. Would it be unreasonable for mature parties—because they ought to be mature if they get to marriage, sufficiently mature to realise what they are doing—that at least the marriage be not broken for more than one year? Would it not be reasonable for persons entering into 54 the contract of marriage to accept that it cannot be broken for a period longer than one year? Personally, I am troubled if one year is sufficient. One year is sufficient to deter the sham marriage and to restrain the impulsive and ill-considered proceeding.
But in the context of the solemnity and social importance of marriage and to mark the gravity of the social contract—and I leave aside the question of sacrament—I wonder whether it ought not to be extended beyond one year. Of course, we cannot force parties to live together if there is a breakdown within that first year. Yet is it not reasonable to have a longer period? This question will be debated in Committee. I would say that the views I had expressed have been much tempered by what the noble and learned Lord the Lord Chancellor has said in his speech proposing this debate. I saw and heard very vividly the power of the argument against either no absolute bar or one year. I think that my own view at the present time is that perhaps it should be longer than one year.
I wholeheartedly support Part II. There are many examples of injustice, particularly since the acceptance of the "living together outside marriage" provision. We have all had the letters. I remember some that I had years ago which I put before the noble and learned Lord when he became Lord Chancellor many years ago—the letter, for example, of the wife who has won the home and maintenance until remarriage, cohabiting with her lover, selling the home, moving into a more manageable house, both working. It is not fair, it is not acceptable, and the noble and learned Lord the Lord Chancellor should be congratulated on his courage in deciding to change it. I do not believe that the provisions of this Bill affect the position of the middle-aged wife, after a long marriage, who is ill-equipped (after 20 years of bringing up children) to earn a living. She has got the right to expect—and will, I have no doubt, receive—the long-term maintenance. In those circumstances she will be protected.
However, with the proper claims of women being met and their increased participation in employment we must accept in appropriate cases the desirability of their becoming financially independent. The "clean-break" solution may be rare but it is desirable in particular cases. Even then, there are some hard cases which flow from it. Above all, the increased emphasis upon the financial support for the children must be commended. It is the children who are principally wounded by breakdown and theirs are the interests that, above all, must be safeguarded.
Some critics say that this Bill gives insufficient guidance to the courts. I do not accept that. I believe that there must remain this large sphere of discretion. The consequences of divorce are so painful, so complex and often so very different in application that, for parties to receive justice, the court must have ample discretion. The provision of the certainty of flexibility is, I think, achieved in this Bill.
I apologise to my noble and learned friend the Lord Chancellor and to the noble Lord, Lord Mishcon, who I understand will be winding up the debate for the Opposition, for not being able to be present here at the conclusion of the debate. I should like to say that I think that this Bill, within the limits—and I have sometimes criticised the way in which we make law in 55 this country—of the present methods of the lawmaking processes, has been sensibly and carefully prepared in response to the demonstrably unfair effects of the present law. As I have said, and repeat, my noble and learned friend the Lord Chancellor should be commended and congratulated for bringing in this Bill so early in the present Parliament.
§ 6.20 p.m.
§ Lord Denning
; My Lords, may I second the congratulations of the noble and learned Lord, Lord Rawlinson, to my noble friend Lord Stallard on his maiden speech, prepared with such care and research.
This topic is one with which I have been concerned for most of my time. At the beginning of this century marriage really was a lifelong institution. It conformed both in Church and state to the definition: the personal union of one man with one woman to the exclusion of all others on either side for better or for worse so long as both shall live. That is how it was in 1900. There were hardly any divorces then.
Now, in my time, the structure of society has changed radically. Let me give four instances. First, the emancipation of women: at the beginning of this century the woman was subordinate to the man in law and in almost every other way, in professions, in life. Now she is free and equal, or should be. The second is the institution of marriage itself: whereas it was lifelong, now it can be terminable for irretrievable breakdown, often by consent, without any formality at all or with the barest formality.
Next, divorce was a social stigma, bringing shame and disgrace on the participants so that they failed in any appointment to anything of that kind. Now it is all right; it is no stigma at all, it is an object of sympathy for those concerned and there is the hope that they will be able to rehabilitate themselves as well as may be.
The other great change in the structure concerns the change in grounds for divorce. Until 1969 the petitioner had to prove adultery, cruelty or desertion for three years—and we would often go through days and days on trivial incidents of cruelty when both sides wanted a divorce. They fought it out at such length and at such expense, often on legal aid, because on it depended the vital questions of maintenance and custody of and access to the children. That has gone aside and, quite rightly, we now have irretrievable breakdown as the sole cause of divorce.
That brings me to this Bill. If I thought that it would in any way weaken the institution of marriage or that it would imperil it in any way I would vote wholeheartedly against it, but I see this Bill not as infringing or weakening marriage itself but as simply remedying injustices which have appeared in it.
Let me take the three-year limitation introduced by Sir Alan Herbert's Bill in 1937. The three-year limitation was a bar on a petition except when there was a case of exceptional hardship or exceptional depravity. Let me tell your Lordships how it worked in practice, because I sat in many cases where such applications were made, and I gave a judgment in Bowman v. Bowman which was reported in 1949 Probate. These were the sort of cases we had. Within a few days or weeks of marriage, the wife went off to 56 her former lover and lived with him. The husband was left alone; and the wife became pregnant by her former lover. Needless to say, I granted leave at once: the marriage had irretrievably broken down.
Then there was the reported case in 1980 which was heard by my learned friend Lord Justice Ormrod. There was a honeymoon, a perfectly heterosexual relationship; and after three weeks the man went off with a male cousin, committed homosexuality with him, and discarded his wife. Of course, leave was given at once to present a petition even though a few weeks only had elapsed. Those are the sort of cases in which we gave leave. If I rightly think back—and your Lordships may read my judgments—whenever the marriage had irretrievably broken down within the three years we gave leave to go on at once. Here we come to the same test as is in the modern law. If it has irretrievably broken down, then do what you can at once to rid the parties of the impossible position which they are in.
I would agree with the practice in Scotland. Do not put any time limit at all on the matter. When the marriage has irretrievably broken down, whether it is in six months, or nine months or two years, let the petition be then filed. Mark you, having that three-year or even one-year limitation does not bring the parties together again. There is no mending of the marriage: they have only to wait until the two years or the three years are up, whatever it may be. It does not deter the breakdown; it just defers the formal finding of it.
I sympathise with what my noble and learned friend Lord Rawlinson says. In a way it is putting a mark on it, a one-year limitation. In a way I can sympathise; I do not mind it. I am quite agreeable to the Bill as it stands, but I am not sure that the better way would be to follow Scotland and put no time limit at all on it. If the marriage has irretrievably broken down, let the party petition for divorce. That is on the time limit.
The next and much more important matter is the question of maintenance for the first wife to the hardship of the second wife. This all stems from a section in the 1973 Act which provided for the order for maintenance in respect of the first wife. Imagine for the moment that the case involves an innocent wife and a guilty husband who has gone off. The duty of the court was to put the parties, so far as practicable and having regard to their conduct so to do, in the financial position in which they would have been had the marriage not broken down and if each had properly discharged his or her obligations and responsibilities to the other. Taking the instance of the innocent wife and the guilty husband who has gone off, the words of that section are imperative: you have to put the first wife in the same financial position as she would have been if the marriage had continued, so that she need not go out to work. She can go on and say, "You must pay me and keep me in such a good financial condition as if the marriage had not broken down".
That is an appalling provision when you remember that by law there has been a divorce enabling remarriage, so that the first wife has no common law claim to maintenance or to a roof over her head. The husband has married a second wife, by permission of the law, and he has all the responsibilities to her of 57 keeping a roof over her head, bringing up the children and maintaining her. He has all those responsibilities. How wrong it was, unknowingly, for Parliament to say that the husband has still got to pay the first wife just as if nothing had happened!
I have taken the case of the innocent wife. What about the much more frequent case when both parties are to blame? How far is the first wife's conduct to go in diminution of the case for maintenance? There is trouble about that with our case law. My noble and learned friend the Lord Chancellor is quite right. We had a case called Wachtel v. Wachtel. My noble and learned friend Lord Roskill was also involved. We agreed on the judgment, and what we said was that we wanted an end to all those innumerable cruelty cases when each side charged the other with cruelty, whether it was throwing a kettle at the husband or using some swear words. Those cases used to rake up pages and pages of particulars of frivolousness and they took days and days to try—nearly always at the expense of legal aid, so we all had to pay for them—simply to say who was to get the divorce which both really wanted. They were doing all that in order to have a better claim for maintenance or for access to the children.
We wanted to get rid of all that situation. Therefore we said: "Don't go into conduct at all in all those ordinary cases"—these are Lord Justice Ormrod's words, not mine—"when it is obvious and gross, because they are easy and simple to inquire into". We did not want to put it in the words of a statute. We just wanted to show that one ought not to go into all those matters. If it is the wife's fault and she has gone off, then she ought not to be entitled to maintenance. If there are children, that is another matter.
I am saying all this to show that I am very glad that the section is to be repealed about putting the wife in the same financial position. Instead there are comprehensive statements so that you are, first, to have regard to the children, provided that the husband has to pay, then see whether it is inequitable. See, also, about the earning capacity of the first wife. If she is a youngish woman she ought to go out to work. All those matters will now be left open to the court, the children being the primary responsibility.
It has been asked: is it wise to leave all that discretion to the judge? Each judge or registrar will have a different view, and so on. I do not see any way out of it. This is essentially a matter where the circumstances vary so much in every individual case that you must leave it to the individual judge to decide. The guidelines are quite clear enough and quite good enough in the proposed clause of this Bill.
I have dealt with conduct. Let me now say just a word about reconciliation. Years ago, in 1946 or thereabouts, when I was chairman of a committee, we considered all these matters of reconciliation. It is quite unreasonable, or even impossible, to operate by compulsory means. Reconciliation or conciliation must be attempted at an early stage. The right stage is before the parties go to a solicitor. Let them go first to the Marriage Guidance Council. When they go to a solicitor, let the solicitor see whether there has been an irretrievable breakdown. Let the solicitor inquire into the marriage and ask: "Isn't there a chance of you coming together? Why don't you go to a marriage 58 guidance counsellor?". That is what I think the greatest number of lawyers do now, and that is the best way of seeing what you can do to achieve a conciliation.
I do not think that any statute or any provision will do anything about it. Conciliation should be attempted at the early stages, before the marriage has broken down. It has been questioned whether our procedure has become too simple and easy. You do not now have to go to a High Court judge and go through that formality. You sign an affidavit and, if there is no objection, the divorce goes through. Having dealt with no end of undefended cases in court, which went through as mere formalities, I am quite sure that this special procedure, as it is called, this ordinary procedure, is an excellent one and is the right way to dissolve a marriage when it has irretrievably broken down.
I should like to say one word about the courts. In 1946, when I was chairman of that committee, we had a large body of evidence asking: "Ought we to have family courts specially for the purpose?" I am very glad that my noble and learned friend the Lord Chancellor said that, yes, he is considering them. I hope that he will consider them and that the outcome will be that we shall have family courts.
I am not sure whether they ought to be staffed with a chairman and two laymen—a man and a woman. They ought to be differently staffed. They ought to be persons who are not too legal, with humanity and not going by all these precedents. There ought to be a tier of appeal—because these matters are so vital—dealing with all those important things such as access, custody, property and the like. There is a wealth of jurisdiction upon the subject, and I am very glad that my noble and learned friend is to look into the present system.
Sometimes, cases of the first importance are dealt with by registrars in the county courts, whereas they ought really to be dealt with by a High Court judge who is specially versed in these matters. I gather from what my noble and learned friend said that this will be looked into. However, I would make this plea, coming back from all those years ago. Is it not time that we had family courts, properly staffed, to deal with these vast and important matters which affect so many people in the land, with all their troubles which are so heartrending and difficult to deal with? You can never tell what is right or wrong. You simply hope for the best in giving one parent or other the child. There is no law about it. You have to use your discretion hoping that, in the end, your decision will be right. So I suggest that family courts should be considered for these cases. If I thought that this Bill would weaken the institution of marriage, I would vote against it at once. But this Bill will simply remedy injustices which are there and, for that reason, I wholeheartedly support it.
§ 6.38 p.m.
§ Baroness White
My Lords, I intervene briefly in this debate because I have found myself out of sympathy with some of what appear to be the main provisions of the Bill which is before us. I listened with the closest attention to the noble and learned Lord the Lord Chancellor and also to the noble and learned Lord, Lord Rawlinson, but I am still not entirely 59 reassured. As the noble and learned Lord, Lord Rawlinson, kindly mentioned, some 30 years ago I introduced through the fortune of the ballot in another place the first major divorce law reform Bill, following the milestone legislation that was introduced and carried by Sir Alan Herbert in 1937. I was, of course, of a generation which was brought up on his entertaining, but profoundly serious, book Holy Deadlock.
My Bill was introduced in 1951—a critical electoral year for the Labour Party. In spite of an overwhelming majority in its favour on Second Reading, the late Herbert Morrison was fearful of the possible electoral effect in the country if it were passed. He indicated to its supporters, with great lucidity, how he would take steps to block its further progress. Abetted by the then Attorney-General, Sir Hartley Shawcross, he fobbed us off with one of the most divided Royal Commissions in history. I am afraid that even after the passage of the years my indignation at the way we were treated has not entirely evaporated. In consequence, legislation substituting breakdown of marriage as the primary justification for divorce had to wait, as has been mentioned several times in this debate, until 1969. Needless to say, I was happy that at long last this provision reached the statute book.
May I deal with just one or two of the matters that concern me about the Bill which is before us? I am far from happy with the proposition that there should be a one year complete bar to the presentation of a petition for the dissolution of marriage. It seems to me that this makes the worst of all possible worlds. I can understand, from the explanation very clearly given by the noble and learned Lord the Lord Chancellor and referred to by other noble Lords, that the three-year period, discretionary power being given to the court, is difficult to enforce. But surely a one-year period is unsatisfactory. It is neither one thing nor the other. A successful marriage—in the experience of most of us, I would suppose—demands persistence, perseverance and hard work. What encouragement is it to any couple to exercise these qualities if the law takes such a short-term view?
In former days, there was at least the tenable proposition that serious sexual incompatibility could not with propriety be discovered before entering into the married state. Nowadays this simply is not so, even in the most respectable quarters. I simply do not believe that people who have entered responsibly into matrimony can be sure, within a twelvemonth, that they have made an irretrievable mistake. If they are so convinced, they can separate, but they should do so knowing that they must make their own arrangements for at least another year—that is, if one has any time limit at all.
Having listened to the debate this evening, I have come to the conclusion that the Scottish provision of no time bar is probably the most sensible. Then you do not pretend. It appears to me that to have a period as short as one year must indicate to the public that Parliament really does not care one way or another whether marriage matters. But for those of us who still believe that marriage and the family are among the most worthwhile relationships, one year seems to me to be, as I have said, the worst choice of all. I trust, 60 therefore, that at the Committee stage we can very carefully reconsider this suggested proposition.
I would suppose that all of us are agreed nowadays that if a marriage really does not work it should be terminated as fairly and decently as possible. But are the changes proposed in the Bill really conducive to fairness? I am not usually a passionate feminist, but what I have read of the commentaries on the Bill convinces me that its provisions could be strongly detrimental to many women other than young career women who reach marriage and then divorce without having any children. Most of us have seen the Family Policy Studies Report which makes it clear that the majority of lone mothers with young children are subsisting at a very low level of income, with a significant number relying on supplementary benefit. Surely this is not a satisfactory basis for bringing up children if you can possibly avoid it. At the other end of the age range, a woman who has brought up one or more children to the age of 18 cannot but have lost in the careers race, unless she has exceptional resilience and ability.
It is not clear to me that, as the Bill stands, justice is likely to be done to those women who find themselves in such a position, particularly taking into account, as the right reverend Prelate remarked. the state of the labour market, the low level of women's earnings and the complete uncertainty about the ability of people, and of women in particular, to comply with the proposed revision of Section 25(2)(a) under which they will have to take steps to increase their earning capacity in ways which, in the opinion of the court, it would be reasonable for them to take.
As I understand it, once matters are settled, there seems little chance of later readjustment, whatever the circumstances. In other words, the clean break, which is the intention of this proposed legislation, does not seem to me always to be attainable with reasonable justice for both sides. The noble and learned Lord the Lord Chancellor indicated that he considered that a clean break would be attainable in a minority of cases, but he did not, as I understood it, make it quite clear in what circumstances he considered that this would be achieved.
Finally, there is the reference in Part II to conduct: I refer to Clause 3 and Section 25(2)(g). This seems to me again to be an extraordinarily difficult area in which to reach sound decisions. Unless it is demonstrably outrageous, those of us concerned with earlier reform were of the view that conduct in marriage is extraordinarily difficult to judge fairly. There are even situations in marriage in which nothing is more desperately exasperating than the worthiness of a "worthy" husband or the "virtue" of a good wife.
We must be grateful to all those who have laboured on the Law Commission and the various other reports but, as the Family Policy Studies Report makes clear and as the noble Lord, Lord McGregor of Durris, most admirably described, there are still many gaps in our knowledge about what really happens and what, therefore, it is really desirable for us to endeavour to legislate about.
This Bill is a lawyers' bill rather than a social workers' Bill. We have to legislate, but I would hope that the noble and learned Lord the Lord Chancellor 61 might consider the pleas which have been made for possible further consideration of some of these matters. I should be very much less concerned about the inadequacies of the Bill if he could indicate that he would consider most seriously the pleas which have been made for family courts. I believe that many of the matters with which this legislation is concerned cannot be settled by ordinary judicial procedures and that the family court, with the right kind of advice at its disposal, would be more likely to bring about the justice and fairness to all concerned which I am sure we greatly desire.
§ 6.48 p.m.
§ Baroness Faithfull
My Lords, the Conservative Party manifesto put forward the proposal to improve family law. It also put forward the proposal to support the family. The Bill which is before the House today is not a comprehensive reform. It is an important Bill but one hopes that it will be the precursor of wider and more imaginative reforms, to which I shall refer at a later stage.
First, may I deal with Part I of the Bill which removes the discretionary bar of three years from the date of marriage to the presentation of a petition for divorce and substitutes an absolute one year bar. I agree with the reduction from three years to one year for four reasons. First, if a marriage has broken down within one year and the couple are not physically living together, the period of three years while waiting for a divorce prolongs the bitterness. This is helpful to neither partner and does nothing to re-establish the marriage. It has to be remembered that at present with the three year waiting period petitions for judicial separation have increased. Half such petitions are made by couples who have been married less than three years. Under the present law these couples may go through two stages: judicial separation; and, three years later, a divorce.
Secondly, if a couple for housing, financial or other reasons, continue to live under the same roof in disharmony until the three years is up, they rarely take advice or conciliation at that stage. It can happen—and has happened—that, in an attempt to make the best of a bad job, almost unwillingly a child is conceived who later is the subject of dispute and faces a disrupted life. Reference has been made to Scotland, where there is not the three year ban. Within seven years the figure of divorces per thousand of the married population is the same as in England and Wales. This suggests that the three year restriction postpones but does not avoid divorce taking place.
Fourthly, under the three year rule a petitioner may be given leave to present a petition on the grounds of exceptional hardship or depravity on the part of the respondent. This may encourage would-be petitioners to vilify the respondent in order to obtain a divorce before the three years are up. For those four reasons I support Part I of the Bill.
Part II of the Bill deals with the financial consequences of divorce. I cannot think that the eventual outcome of this Bill is any different in principle from the Matrimonial Causes Act 1973. I suggest it is more a matter of emphasis. The present 62 Bill places greater emphasis on children's needs. I quote:First consideration is given to the welfare, while a minor, of any child of the family who has not attained the age of 18 years.I support the noble and learned Lord, Lord Elwyn-Jones, in questioning the age of 18 years. I think probably 21 years would be a better age, considering what our education policy is in regard to grants for students, for instance, up to the age of 21 years.
With regard to financial relief, it is surely impossible to devise rules which take sufficient account of the variation of individual circumstances. In this age women are calling for equality of opportunity with men. If when children are off her hands and it is assessed that she has the capacity to earn, then is it not reasonable for her to be accorded the dignity of doing so? I am sure that many of your Lordships will have had copies of an enormous number of letters as I have had. I think that the letter that impressed me most was from a woman who does not have a professional background, who has been divorced for eight years, and who resents taking money, or being thought to be taking money—which she is not—from her husband. She prefers to be independent.
There are those who do not accept this Bill. I could wish it was being passed against the backcloth of other changes which I believe would then make it acceptable to all. I come to the question of family courts, to which so many of your Lordships have referred. As the noble Lord, Lord McGregor, has said, this was referred to and recommended in the Finer Committee report. I believe that if we were to have family courts, and if the questions of maintenance and the care of the children were to be dealt with by family courts, then each case could be dealt with individually on its merits and on its needs. I understand that Judge Jean Graham Hall has costed this and that the cost is not as great as Ministers and civil servants would have us think.
If family courts were to be set up along the lines of the courts of Australia the settlement of the claims of husband and wife could be approached in an entirely different manner. Instead of a legal battle, there would more likely to be settlement by mutual consent with both husband and wife being involved in the discussions. According to the Queens land registry, this is proving to be a successful method of dealing with such cases. Both husband and wife and their solicitors are directly involved in discussion and negotiation.
The Matrimonial Cases Procedure Committee chaired by Mrs Justice Booth reports next July. For the moment we welcome the consultation paper, where she again has recommended both conciliation and reconciliation. If when a marriage breaks down the case is referred at an early stage, as the noble and learned Lord, Lord Denning, said, then there is hope for constructive support to the family, possibly reconciliation, but at any rate a more kindly and more understanding conciliation.
I am bound to say that the inter-departmental report on conciliation is a disappointing and poor report. Consideration seems to have been given only to the saving of money in the short-term, arising, if I may say so, from some questionable costs—very questionable. I believe that the consultation paper issued by Mrs Justice Booth supports the conciliation services, 63 and I much hope that in her final report next July this will be strengthened.
Finally, those of us who support this Bill believe in marriage, we believe in family life, and we believe that children need stability, continuity of affection and care. The Bishop of Birmingham wrote in The Times on Friday, 18th November:Easy divorce is no answer.I would submit that harsh divorce does not lead to the stability of marriage.
§ 6.59 p.m.
§ Lord Scarman
My Lords, I welcome this Bill. It is not a Bill of fundamental law reform. The fundamental reform in family law was, as noble Lords have already pointed out, fulfilled in 1969, when irretrievable breakdown was introduced as the sole ground of divorce. This Bill, properly considered, deals with the consequences of divorce or the breakdown, and contains some valuable pieces of law reform. But let us dispel at once any suggestion that there is any fundamental change in the law proposed by this Bill. All its provisions are completely consistent with the fundamental change in the law that was carried through in 1969.
The noble and learned Lord, Lord Rawlinson, and my noble and learned friend Lord Denning, good advocates that they are, have dramatically displayed to your Lordships the inequities of the existing law and the need for some law reform. It is therefore unnecessary to go over that ground except to remind your Lordships that we are discussing a Bill which is based on the recommendations of the two Law Commissions. As the noble and learned Lord the Lord Chancellor said, this Bill, in so far as it is concerned with the subject matter of the reports of those two Law Commissions, adheres to their recommendations. It is always a good rule in this House, and I hope in another place, to give very favourable consideration to recommendations of the two Law Commissions, perhaps to the extent that, unless they can be demonstrated to be erroneous or undesirable, they should have the benefit of the favourable consideration of the House. That is true of this Bill.
What does this Bill do? So far, I have noticed in the debate a good deal of eloquence on matters not covered by the Bill; a good deal of eloquence on the inequities which the Bill must remedy, but rather less attention to what the Bill proposes. Since there have been some tragic misconceptions abroad in this country as to the effect of the Bill upon married women, I will spend the few minutes during which I intend to detain your Lordships on directing attention to the Bill.
Part I substitutes for a discretionary bar of three years an absolute bar on divorce of one year. The essential piece of law reform in Part I is to get rid of an ugly and objectionable discretion which is causing embarrassment to judges and a good deal of hardship and bitterness to the parties whose marriage has broken down. Of course, one can have a view as to whether there should be any bar at all, granted the principle of irretrievable breakdown. If there should be a bar, for reasons one could well understand, should it be for one year, two years or three years? This is very 64 much a matter of judgment and conscience and it is a matter on which one would hope the good sense of Parliament will ultimately reach a sensible solution. As to the removal of the discretionary character of the ban, that can only do good, relieve hardship and improve the purity of justice in this field.
I now come to Part II of the Bill. This is perhaps the most important part. It is certainly that part which has given rise to the greatest volume of misconception outside this House. There is nothing in Part II which need cause apprehension to the middle-aged or elderly married woman who has been deserted by her husband and who has no reasonable prospect of supporting herself either by earning or from her own resources. There is absolutely nothing to cause apprehension, as I shall very briefly demonstrate. The positive value of Part II is that it gets rid of certain errors that have crept into the law which have already been the subject of eloquent analyses by other noble Lords.
Let me now indicate what Part II does. It substitutes new guidelines for the existing guidelines which judges follow in determining whether there should be any, and if so what, financial support and property adjustment after divorce. These are largely based on or include the old guidelines but contain some new ones. Let me remind your Lordships of what they are. In the new Section 25—which substitutes for Section 25 of the 1973 Act—we find, first, that the judge is to give first consideration,to the welfare while a minor of any child of the family".Nobody suggested that there is anything wrong with that. That is a first consideration. Are people really worried lest High Court or county court judges will forget that first consideration when dealing with subsequent questions affecting the wife and mother with whom the children are? Of course he will not. If he did, as my noble and learned friend Lord Denning knows, he would soon be corrected by the Court of Appeal.
What follows? Much of this is repetition of what is already in the law, but there are one or two matters of value, none of which is of the slightest danger to needy women who have been desertd by their husbands, and much of it is of very real support for them. The court must have regard to the resources of the parties to the marriage. The court must have regard to the needs—I underline the word "needs"—of the parties to the marriage. That is to say, in every application for financial support or property adjustment the judge must assess the needs of the parties. Of course, one of the needs of both husband and wife after a marriage has broken down may be a need arising after dissolution. That must be considered too, because those needs as well as the needs of the spouses in other respects have to be considered. Bear in mind that, throughout, the judge must look at all the circumstances of the case. Then the judge must take account of the disability, if any, of either party and of the contributions of either party to the marriage. He must also take account of their conduct. Your Lordships have heard how conduct comes in subject to the judge being satisfied that it would be inequitable to disregard it. There is a matter not yet mentioned—the right of the wife to have her financial support assessed on the basis, if it be the fact, that she may lose her chance of 65 sharing in her husband's pension. All those are good, straightforward guidelines, containing no threat to the middle-aged or elderly married women.
We then come to new Section 25A. This would incorporate the "clean break". I was distressed to hear the anxiety of the noble Baroness, Lady White, on this part of the proposals. Although she has had to leave us, I hope I can say a few words which will allay her distress, very temperately put to your Lordhips' House but somewhat hysterically felt by many people outside the House. What is embraced by this nice piece of developing jargon, the "clean break"? Let me remind your Lordships. If the court thinks it is a case for financial support, it shall then,be the duty of the court to consider whether it would be appropriate so to exercise those powers",on the basis that the financial obligations of each party to the other might be subject to a time limit, and only of course if to do so would be "just and reasonable."
Again here is a branch of the law, and here is a Bill, which of necessity confers upon the judge a very wide-ranging discretion, as one noble Lord has already emphasised. Is it to be thought that county court judges exercising divorce jurisdiction or High Court judges will overlook the limit on their power? They must do only that which is just and reasonable. Is it really so dangerous that you must not entrust to a High Court or a divorce judge the power to consider the possibility of termination? Do your Lordships really think that there is any risk there to women who would be left in penury after desertion—women unable for one reason or another to provide for their own support? Once looked at in those ways these misconceptions are, with respect, nonsensical.
There is, of course, the power which has disturbed some—and which I think disturbs the noble Baroness, Lady White—that the court may direct that no futher application for maintenance shall be made by a spouse who has made an application. Again this is not an inevitable guillotine hanging over the neck of a penurious and deserted wife. It is a discretion given to a judge of the Family Division or a judge exercising family jurisdiction. He can do it in cases where it is appropriate. He already has the guidelines which I have enumerated. He already has the duty to look at all the circumstances of the case.
Everyone agrees that with the emancipation of women there are an increasing number of cases in which women can and do wish to look after themselves after the break-up of their marriage. All that this provision does is to empower the judge in cases where it is appropriate to impose the so-called clean break. I say no more about Part II of the Bill, save to implore your Lordships both now on Second Reading and later in Committee to pay attention to what the Bill says and not to the misconceptions which outside this House have been allowed to develop.
I would make two other points on this Bill. First, very little has been said in this debate about the valuable provisions enabling the courts of England and Wales and Scotland to order financial relief to a woman whose marriage has been dissolved by an overseas decree. Of course there will be jurisdictional conditions to be met; of course there is a filter to ensure 66 that the marriage, the married life or the woman herself has real connection with this country. That is a very valuable provision indeed. It has been a dangerous and miserable gap in our law. Part III of the Bill bridges that gap.
Part V of the Bill has been seen by some—and I confess I am one of that number—as paving the way towards a family court. Like many of your Lordships, I was very pleased to hear the noble and learned Lord the Lord Chancellor tell us that family courts were to be examined. Like others, I was greatly heartened by what we have so far learned of the work of the Booth Committee on matrimonial causes procedure. It appears that we are at last seeing a slight movement in the log jam which has prevented us from proceeding towards family courts.
The right reverend Prelate the Bishop of Rochester, the noble Lord, Lord McGregor of Durris, and even I think also the noble and learned Lord, Lord Elwyn-Jones, made speeches which were really directed to the issue of the desirability of a family court. To that extent, with respect, I profoundly agree with them. I am very sad that this Bill contains no provision for a conciliation service. I am very sad that it contains no attempt to deal with the problem of the occupational pension and the right of the wife who has been divorced to have some share of that pension. I am also concerned—again it has not been mentioned in this House yet—at the very wide discretion inevitably conferred upon judges by this and any other legislation in the same field. I see that none of these matters are perhaps ripe for inclusion in this Bill. I certainly should not regard any of them as a reason for not proceeding with a tierce loyalty with this Bill to ensure that it passes to another place, enshrining the principles of reform which it does at the moment.
Having said that, I hope that this Bill will help pave the way towards a later consideration of fundamental law reform in the procedural field comparable only with the fundamental law reform in the substantive field of 1969 and completely suited to it. This is a good, healthy and just Bill, relieving hardship and doing nobody any harm at all.
§ 7.17 p.m.
§ Lord Hatch of Lusby
My Lords. it has been a privilege to listen to the learned legal opinions stated this afternoon. I do not intend in any way to follow that trend. However, I pick up the point made by the noble and learned Lord, Lord Scarman, regarding pensions. I do not have time to deal with this tonight, but it seems to me—as it appears to him—to be an unwarranted omission from what the noble and learned Lord has described as a Bill that does nobody any harm, and one which may do some people some good. The Bill could do more people some good if it included the provision that he mentioned—the right of a divorced woman to participate in the pension.
I do not attempt to deal with the Bill on legal grounds. But we have seen from a number of speeches from both noble Lords and noble Baronesses that the real issue is social rather than legal. Some speeches made this afternoon seemed to me to be a long way away from the real social world in which we live. In debating the Second Reading of this Bill, it would be 67 wrong for us in this House if some of the fears that have already been expressed in examining the Bill from the social angle were not at least put into the pot. We hope that in the Committee and Report stages the Bill's provisions can be further examined and possibly amended.
I make this point in particular. There is no party debate on this issue. We are responsible for the happiness or unhappiness of millions. We know—and it is a truism to say—that we cannot by law create married happiness. The same applied to the Race Relations Act. We cannot create racial harmony. But what we can do, and what it is our responsibility to do, is to diminish the unhappiness and in this kind of circumstance to frame laws in such a way that people are protected.
If I may, I should like to put before the House some of the fears that have been expressed; and I am sure that they have been expressed to most noble Lords who have put down their names to participate in the debate. As the noble and learned Lord on the Woolsack so lucidly explained to us at the beginning of the debate, the Bill is the product not just of Government action, but also of the Law Commissions, the Booth Committee on matrimonial procedures, and the courts. I have no doubt that each of them did their utmost to find a form of words which would create a better atmosphere in the unhappy period which follows any divorce than is at present the case under the law, the 1973 Act.
But there are many people, and indeed many legal people, who would say that the Bill is a part of a trend, is the latest development in a trend. It is a trend which has begun to make it more difficult for wives to obtain and enforce injunctions against violent husbands. It is a trend to reduce the importance of the welfare of children in comparison with the father's property rights, as they are claimed, in deciding who shall occupy the matrimonial home; a trend to reduce the rights of dependent wives to maintenance on divorce, to create procedural obstacles to the applicants for injunctions and maintenance, almost all of whom are women, and to threaten the use of legal aid in matrimonial proceedings.
Not for a moment am I suggesting that I am capable, or desirous, of supporting all those criticisms. I simply draw to the attention of the House the fact that these criticisms are coming from responsible circles, and that when we come to examine the Bill in detail it is our responsibility to do so in the light of the criticisms that are being made on the kinds of grounds that I have mentioned.
I now turn to the more detailed parts of the Bill, and first I wish to refer to Part 1 and Clause 1. In the debate we have heard about the change in the minimum period from three years to one year. Many people would consider this to be a liberalising measure. In fact, the noble and learned Lord seemed to suggest that he had at least considered possibly introducing the Scottish provision in England and Wales, though I did not appreciate his reference to the danger that it might be used in order to dissolve marriages of immigrants who had simply married in order to attain nationality. But——
§ The Lord Chancellor
My Lords, I must say to the noble Lord that he must disabuse himself at once of any idea that it has anything to do with immigrants. The reference that I made—if the noble Lord is interested in the subject—was to a case called Vervaeke, in which I sat judicially. If the noble Lord cares to look at the facts of that case, I do not think that he will be edified by them, but he will at least know what I meant.
§ Lord Hatch of Lusby
My Lords, I of course unreservedly withdraw any suggestion that the noble and learned Lord was talking of immigrants if he says that he was not. That is what I had interpreted his words to mean. I am very glad that he intervened and made the position absolutely clear; and I apologise to him.
On the question of reducing the period from three years to one year, there is one point that worries me. To give a man and woman the right to dissolve their marriage before the three years is up might be liberalising, but I am concerned that, with the introduction of the period of one year, there is to be an absolute bar on any petition within that one year. I am concerned about this proposal because I am certain that we all know of cases where early in a marriage it turns out that one of the parties—usually the man—is found to be violent. As a layman I am concerned about where this absolute bar on the submission of a petition of divorce within the first year could lead. Here I am thinking in particular of working class circumstances. where the woman has nowhere to go, the police will not interfere because it is a domestic issue, and she is unduly exposed.
At the moment we have the three-year rule except, as has been continually pointed out, where the leave of the court is granted. But, as I understand it, the change proposed in Clause I will remove the possibility of the leave of the court being granted for a petition to be submitted during the first year of marriage. If we do not go as far as the Scots—and I certainly support those noble Lords who have said that the proposal might well have a beneficial effect socially—it seems to me that the court should be given some discretion to provide for the protection of such women.
Much has been made of Clause 3, in Part II. Despite what the noble and learned Lord, Lord Scarman, said to reassure us. I believe that there is a danger in the substitution of Clauses 25 and 25A for Section 25 of the 1973 Act. This comes about in the following way. As the noble and learned Lord on the Woolsack has pointed out to us, the first consideration is to be that of the welfare of the child. I believe that we would all agree on that.
But then there are certain guidelines added to that first principle. There is the desirability that the parties become self-sufficient. This is where I find a gap between the legal interpretation of the Bill and the social reality. How many women—and they do not have to be old or middle-aged—spend 10, 15 or 20 years doing nothing but home-making, looking after their husbands, bringing up their children, making homes for their families, only to find that their husbands then leave them? During that period, the woman, who may be no more than, say, 40, has been denied the opportunity of outside occupation, outside 69 education, external training and fitting herself for what the Bill describes as the desirability of the parties becoming self-sufficient. Surely this is not good enough.
While it may very well be the case, in particular in middle and upper-class societies, that the woman has had sufficient education before she married, in very many more instances that will not be the case, and the question of self-sufficiency is totally unreal to a very large number of women who will be left in this position. Note, too, my Lords, that in the clause the court is empowered to dismiss outright—and I stress the word "outright"—an application for maintenance.
I wish to deal briefly with Clause 5 which empowers the court to direct that the party shall not be entitled to apply for an extension of a maintenance order of a limited duration. Again, circumstances change. Surely, there should be some more discretion rather than this cast iron prevention of a court extending a maintenance order as the circumstances change. I suggest that this clause, like Clause 6, which similarly deals with maintenance variation, could be loosened up to give a great deal more discretion and less guidance to the courts.
I have already mentioned the pension issue which, I understand, comes in Clause 7 under the inheritance provisions. I shall simply say that I agree wholeheartedly with what the noble and learned Lord, Lord Scarman, had to say about the right of a wife to participate in her husband's pension after divorce. The financial provision on the death of the husband is something that we might examine more closely in Committee.
Clause 8 in some ways worries me more than any other. Paragraph (f), on the contributions made by each of the parties to the welfare of the family, is excellent. It improves greatly the recognition of the participation of the wife in an unpaid capacity as the homemaker. But that is followed by paragraph (g) which again introduces the old idea that the conduct of the parties should play a part in the decision on maintenance following a divorce. That, again, goes back, as I understand it, to the old concept of the fault.
§ The Lord Chancellor
My Lords, I am sorry to interrupt the noble Lord again. He has got it absolutely wrong. Under the existing law, which I hold in my hand, conduct is relevant. The words in Section 25(1) of the existing law say:so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so…".That is the present law. The change is that they are to regard conduct if, and therefore only if, it would be inequitable to disregard it. Far from reintroducing something, it is putting an added restriction upon it. I hope that I have at last made it clear to the noble Lord.
§ Lord Hatch of Lusby
My Lords, yes. Again, I accept the noble and learned Lord's interpretation. All that I would say to him—I think he would agree—is that the question of fault within the whole of our matrimonial laws has declined over the past decade. It would seem to me that the addition of this clause, with the words that the noble and learned Lord read out: 70the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it,is bringing back at least a danger of the old concept of fault. I remind the noble and learned Lord of the cases that have been quoted in support of what I say. The noble and learned Lord, Lord Denning, quoted the case of Wachtel v. Wachtel in 1973. But, in October last year, there was the Robinsoncase—I am sure that the noble and learned Lord is aware of it—in which it was held that the conduct should be taken into account in assessing a wife's maintenance when to disregard it would be a reasonable person's sense of justice. The Court of Appeal, in this case, reduced the maintenance to be paid to a wife who had a young baby simply because she had deserted her husband.
I remind him further of the case of Richards in July this year when, again, the conduct of a wife in leaving her husband was given greater importance than had previously been thought correct. There are some members of the learned profession who, as I am sure the noble and learned Lord knows, believe these two cases, particularly the second, are undermining the principles that were established by the Wachtel case in 1973.
§ The Lord Chancellor
My Lords, I really must interrupt again. I sat judicially in Richards. The noble Lord has given a travesty of what was decided. It was a question of an interim injunction ousting a husband from the matrimonial home for which it is necessary, and always has been necessary, for the wife to make some sort of a case. It was decided unanimously by five of the noble and learned Lords who sat, I being one and the noble Lord, Lord Scarman, being another, that she had not begun to get off the ground. It is a travesty to describe it in the way the noble Lord has.
§ Lord Hatch of Lusby
My Lords, that may be the case but the travesty is not mine alone. It is a travesty supported by the Legal Action Group, as I am sure the noble and learned Lord is aware, which has quoted specifically the three cases I have used to show the way in which there is at least a danger that the old concept of fault within the matrimonial causes is being reintroduced. I say no more than that, in the hope that the matter will be raised and debated by much more learned Lords than myself at the Committee stage. I raise it because I hope that it will be recognised that there are some members of the legal profession who believe that this is a danger.
I must wind up my remarks, although I have to remind your Lordships that I have not been speaking all the time since I rose. This Bill has been described—I had better give the exact quotation lest it be challenged—in the bulletin of the Legal Action Group as part of a middle-aged, middle-class, male backlash based on the false claim that women have been receiving more favourable treatment in the courts. It is not for me to criticise the courts. I simply draw to the attention of the House that this is an opinion stated by a legal body. It is our responsibility to ensure, when we come to examine the details of the Bill, that that kind of accusation cannot stand up. I believe that it would not have been made in those terms unless there had been fears within the legal profession, as well as among those directly affected by 71 our matrimonial law. If those fears had not been there, they would not have been expressed. I bring them to the House not in any censorious manner but in order to put the quite legitimate fears that are raised among ordinary laymen when members of the legal profession describe the Bill in these terms.
Nobody would doubt the fact that men generally hold the economic assets in a marriage and that it is the men who are usually violent towards women. Women need the help of the courts to redress both the economic imbalance and to obtain protection against violence. The value of this law will depend upon how effective we are in giving a remedy to women in divorce so far as their economic future is concerned and so far as their own protection is concerned if they find themselves as the abandoned woman.
§ 7.40 p.m.
§ Baroness Macleod of Borve
My Lords, I am glad to follow the noble Lord, Lord Hatch, because I agree with him that this is not just a legal Bill; it is a human Bill. Indeed, that is what I think the noble Lord said. I am most grateful to my noble and learned friend the Lord Chancellor for introducing the Bill. For many years I, in company with many other people, have been worried about the financial strictures of the 1969, the 1973 and other Acts, and have felt that much more flexibility should be given to those who adjudicate on separation orders and on divorce proceedings.
My noble and learned friend has, as usual, made a complicated Bill as easy to digest as is possible. Before speaking to the Bill I should like to make a passing reference to the work of the Order of Christian Charity who are initiating pre-marriage counselling. I hope that this idea—which they hope to further—prospers.
Today in this Bill we are dealing with broken marriages and it might be of interest to know that the recently published figures show that in England and Wales in 1982, 51.8 per cent. of marriages were religious marriages and 48.2 per cent. were civil marriages. Indeed, 177,027 were religious marriages, and 165,089 were civil marriages. Those are the figures for last year which came out last week. So tonight—and we shall be doing so throughout the rest of our discussions on the Bill—we are dealing with the breakdown of all marriages, whether a promise was made in church or not. I was lucky in that I was able to be married in church for both of my marriages and I consider that that was of tremendous benefit to both marriages.
Since 1973 so much has happened in our society; for instance, far more women have a job before marriage and obtain qualifications which can be valuable later on. That, in turn, means that more women, who are often mothers, are able to leave their husbands—in some cases their husbands and the children. I have known many of those very tragic cases.
I turn to the Bill and to Clause 1. It is suggested in the Bill that the bar which prevents spouses from seeking a divorce should be reduced from three years, as now, to one year. I find this provision the one upon which I may beg to differ from my noble and learned friend the Lord Chancellor. I think that in all marriages there is a period of honeymoon during 72 which a couple appear to everybody to be on "Cloud 9" living for the present and often oblivious of the future. They are blissfully happy and presume that their ecstasy will last for ever. The honeymoon seems to come to an end with the first quarrel, usually after about nine months of marriage. If the couple are very young, if they are also, because of immaturity, rather unstable, if there is no baby on the way, and if one or both are unemployed, then the temptation to seek a divorce after a year might be a very real one. I believe that if they had to wait a little longer it is more likely that their affection for each other might well weather the temporary storms. Therefore, I should like to suggest, as other noble Lords have done, that the period should be for more than one year. I would perhaps suggest two years. There are also, of course, cases—usually occurring in the armed services—where the spouses are separated soon after marriage and the strain leads to quarrels. I believe that they should be given a longer time to adjust.
I turn to Clause 3. Divorces are sometimes, though rarely, by mutual consent and unfortunately money is the root of much bitterness and argument. Who shall have what? Who shall pay for what? How much can be afforded by either spouse? How are any children to be maintained? Up until now financial arrangements have been based on trying to maintain the standard of living which the parties have previously enjoyed. This has led to much hardship and, I think, to unfair discrimination in favour of the wife. If there are no children then it seems right that the court should, by order, contrive a clean break so as not to inhibit either party in the future. But where children are involved they must—and this is the intention of the Bill—be the first consideration; they should receive maintenance (from either parent) before maintenance for the ex-spouse, and the cost of their financial upkeep should have priority in the mind of the court. Where an ex-spouse is capable of keeping himself or herself it seems fair that the maintenance should not be too prolonged and that at the court's discretion it should cease.
I should like to ask my noble and learned friend the Lord Chancellor one practical question, the answer to which I am not aware. As a magistrate sitting on separation cases I granted orders, but I never actually saw the orders. So whether they were on one piece of paper or whether the order regarding the children was on a separate piece of paper, I do not know. But it seems practical to me that, if one were going to order a wife's maintenance to cease, that order should be torn up forthwith, and that the order for the children's maintenance should be on a completely separate piece of paper.
Paragraph (g) in Clause 3(2) has been referred to by many noble Lords. It refers to the conduct of the parties being taken into consideration, only where applicable, by the court. It seems to me that spouses are prepared to agree that it takes two to tango, that it takes two to conceive a child, but spouses will not admit that in the vast majority of cases it takes the behaviour of two people to decide on divorce.
As regards Clause 8, I am glad to see that the far-reaching requirements of the court in Clause 3 shall also obtain under Clause 8 in the magistrate's court. It will, I feel, mean that magistrates will be able and, indeed, will have to inquire more closely than before 73 into the problems of the couple appearing before them for a separation order. I suppose, like other noble Lords, especially perhaps the noble and learned Lord, Lord Scarman, it cannot be a part of the future Act to ask the couple if they have sought professional help with a view to reconciliation. In my court I used to ask them, and sometimes they agreed to try. So many agencies do such brilliant work in this field that I would like, if it were possible, to make it part of the Bill.
Very briefly, I should like to refer to Clause 16 in Part III of the Bill. This clause deals with the matrimonial home. It has always seemed to me that the home—the bricks and mortar which make a base for a child or children—is of enormous importance to the stability of their childhood. We all hope that home is where both parents live, but in the event of a divorce, I think that if it is possible for the home to be kept and lived in by the caring parent, it will make a considerable contribution to the welfare of the child. This clause seems very adequately to meet all the problems.
This is a very important Bill. The unhappiness of a broken marriage, which leads to divorce, is felt by the spouses, by their children and by all their family and friends. The complexities of human relationships mean that every case is different and every case is special to those involved. Marriage and family life are a very precious part of our society and anything which anyone can do to underline the seriousness of the undertaking to our young people should be encouraged.
We cannot pretend that this Bill—or any other—can meet all the problems. But my noble and learned friend the Lord Chancellor has had the courage and the humanity to bring it before us today, and I wish it well.
§ 7.52 p.m.
§ Lord Roskill
My Lords, in view of the hour and the number of your Lordships who still wish to speak. I shall endeavour to be as brief as I can. May I begin where the noble Baroness, Lady Macleod, left off and offer respectful congratulations to my noble and learned friend the Lord Chancellor upon his having introduced the Bill so early in this Session, and also to congratulate the Law Commission and everyone else who, over these last years, have worked to produce what has gone into the Bill.
Of course, as many of your Lordships have said, this Bill is not perfect, and of course opinions will differ as to the merits of various proposals. But I venture to suggest to your Lordships that this Bill's great merit is not so much that it is a great measure of law reform as that it seeks to learn from the experience which has been gained in the operation of the law as that law has developed in the past 15 years or so, or rather less, since the great reforming statutes instituted in 1969 and 1970 by the Law Commission in my noble and learned friend Lord Scarman's day, which changed the law radically, got rid of the old concept of matrimonial offence, and introduced the new concept of the irretrievable break down of marriage. This Bill, for the first time, seeks to put right that which experience has shown in the courts has gone wrong in the working out of that legislation.
74 I have always ventured to think that the jurisdiction of the courts, whether the High Court, county court or magistrates' courts in family matters is the most sensitive of all judicial jurisdictions. It is even more sensitive—and this is saying a lot—than having to decide whether someone should be subject to an immediate custodial sentence or whether, say, a particular accident case should be decided one way or the other. In cases of that type there is at least a possibility of the court being able to be reasonably certain that it has reached a right conclusion. But in jurisdiction in matrimonial disputes the courts are all too often faced with that recurrent judical nightmare: not what is the right decision, but which of the various possible options is the least wrong.
In these cases the courts are not dealing with one or two people only; they are dealing with whole families and have to make decisions which though on their face may appear only to concern an ex-husband or an ex-wife and one family, in truth are most likely to concern two, three or even more families according to the current relationships of the former husband and wife, each of whom may—and in all probability will—have joined forces with some other former husband and wife, with children sometimes extending ad infinitum more numerous than one would ever believe were genetically possible. Indeed, it was only last week that I learnt of a case which came before the Domestic Panel in Basing stoke Magistrates' Court, of which I am still privileged to he a member, where the various families concerned had between them no fewer than a dozen children, every one of whom was likely to be affected by that court's decision.
When one noble Lord indicated a few moments ago that those of us who sit in any court—whether it is the House of Lords, a magistrates' court on matrimonial matters, or somewhere as trial judges—are not sensitive to the social problems involved, I can only say with the utmost respect that it is because of the sensitivity of the Judiciary at all levels to the social problems involved that we are deeply personally interested and involved in these problems.
The pattern of the problems must vary infinitely and that is why the legislation must be framed in the most general terms, seeking to enjoin the courts as to the principles which they must apply, but at the same time leaving them free to apply those principles in the light of the special problems to which individual cases must inevitably give rise. I would venture to echo what the noble and learned Lord, Lord Rawlinson of Ewell, said a couple of hours ago, that Parliament must lay down the principles; but the courts must be trusted in the individual cases in the exercise of an enormously wide and far-reaching judicial discretion to apply the principles which Parliament has laid down.
There are many provisions in this Bill upon which one could comment. In the interests of brevity I shall single out a very few for special mention. Let me take first Clause 3 in relation to the High Court and county courts, and Clause 8 in relation to magistrates' courts. May I venture to echo what the noble Baroness, Lady Macleod of Borve, said a few moments ago, that it is a comfort to those of us who have been deeply interested in this work for a long time in both courts to see that what will now happen will enable both courts to administer the law in absolutely identical terms. That is of absolutely crucial importance.
75 Each of these clauses enjoins the court to ensure that the welfare of the child is the paramount consideration. It is most welcome to see that on the statute book; but, of course, this has been the subject of judicial decision for more years than I care to remember and it is an illustration of what sometimes is not recognised, that in these matters very often the courts are very far ahead of the legislature in giving effect to that which is so obviously right.
Another improvement—and my noble and learned friend the Lord Chancellor has already mentioned this—is to remove the old provision—which could never have been more than a pious hope at best—that the courts were required to place the parties in the same position as if the marriage had not broken down. That was never feasible, if only for one reason: that one income has never been able to support more than one family unless one was dealing with that rare case of the millionaire with a large number of wives.
Still, on these two clauses, may I just say a word or two about conduct. I hope that the noble Lord, Lord Hatch of Lusby, will forgive me—and my noble and learned friend the Lord Chancellor has already intervened twice to correct him—if I say that he really has got the provisions of the new Bill wrong, for one reason or another. Some of your Lordships may recall—and my noble and learned friend the Lord Chancellor has already referred to this—the unhappy provision that persisted before 1969: those old contested divorce cases in which truth was a casualty on the first day of a 25-day case, and everybody was merely fighting madly not to tell the truth but over money or custody of the children, and no one could resist trying to tell the judge that his former partner was wholly unfit either to have any money or the custody of any child.
It was that situation with which my noble and learned friend Lord Denning and I and the late Lord Justice Phillimore were faced. The right reverend Prelate may recall that Lord Justice Phillimore, who unhappily died 10 years ago, was part author of the Church work, Putting Asunder and knew more about this than most of us. In the Wachtel case the three of us were faced with this problem: there were some—dare I use the phrase—old-fashioned judges of the Family Division who thought that the old concept of cruelty had been carried into the 1970 statute. It was quite plain on the language of the statute that that might be a possible interpretation and we had a cri de coeur literally from the judges of the then new Family Division, "Will you sort this out?"
The three of us set about sorting it out and, as my noble and learned friend has already said, that judgment was in fact a composite effort and we tried to kill the old concept of "conduct" for good and all. I believe—and I have watched this from my days in the Court of Appeal sitting with my noble and learned friend Lord Denning—that we succeeded. Indeed, we have succeeded to such an extent that there is now a body of opinion which thinks that perhaps the law has gone a little too far, and that the type of wife who milks her husband to go off with her new boyfriend sometimes is able to live off her former husband to a greater extent.
I personally believe that that is a rare case, but, if it 76 does exist, the new provision, to which my noble and learned friend the Lord Chancellor drew Lord Hatch's attention a few minutes ago, will enable the courts to reflect. But conduct must not be, and never will be, introduced by a back door, otherwise you find yourselves introducing the old idea of matrimonial offence again by a back door, and, worse than that, saying to a divorced wife, "Well, I would have given you £100 a week, but because you have been guilty of some matrimonial misdemeanour I am only going to give you £50". That is almost turning adultery into a criminal offence for which a fine is the appropriate penalty. We have moved a long way from that, and I trust and believe that it will never come back.
Next, a word about "clean break". There has, as your Lordships know, been a slight difference of judicial opinion as to whether or not under the existing legislation there is power, say, where there has been an express agreement, to order a clean break in the ordinary straightforward divorce case. Who is right and who is wrong does not now matter in the slightest. There are obviously some cases where a clean break is desirable in the interests of everybody, and that power is now being given. But to suggest that that power is going to be used by the courts to penalise the devoted wife whose husband has deserted her after 20 or 25 years of married life and to leave her penniless, I am afraid is a suggestion of someone who really is wholly divorced from reality. The power to bring about a clean break is a power which I am quite certain is necessary, but it is a power that will be most cautiously exercised.
A word about Part III. Curiously enough, only my noble and learned friend Lord Scarman has referred to it. My noble and learned friend Lord Denning will remember from Court of Appeal days that there was a time about eight or nine years ago when we were occupied with the endless problem of foreign divorces, and whether or not they had to be recognised in this country. Some of them were obtained in circumstances—I hope I cause no offence in saying this—which were shocking by any ordinary English standards of justice, and yet because they were valid under the local law we had no alternative in private international law and after some of the statutes but to give effect to it.
What was the effect of that on scores of wives of immigrant population in this country who had come from overseas? They had found themselves divorced in some foreign country which I shall not mention, and because there were no divorce proceedings pending here our courts had no power whatever to deal with what were often very substantial quantities of matrimonial property. This is a much needed and most welcome reform.
Before I sit down may I add one other word? Much has been said this evening about family courts. I am not going to stray into that sphere because it is more perhaps a political than a legal problem. But I should like to take this opportunity—and I know that my noble and learned friend the Lord Chancellor will agree—to draw attention to the work that is being done in this field in magistrates' courts. In many respects the jurisdiction now exercised by the domestic panels of magistrates' courts is indistinguishable from the work which is done in the High Court or in the county court 77 in matrimonial matters. It has the enormous advantage that it is not being dealt with by one lawyer sitting alone. It is being dealt with by two or three justices, all or most of whom will have been married and have brought up families, some of whom will have been through the traumas of the divorce court themselves, and who will be familiar with all the problems.
I have often thought that jurisdiction was conferred in 1978 really for policy reaons in order to ease the burden on the Family Division and on the county court, but I have often thought that if we were going to move in the sphere of family courts and try to extend the much-needed conciliation services, then, rather than destroy the jurisdiction of the magistrates' courts, which it has been suggested should be destroyed and everything put back in the High Court or the county court, we should do better—and the Lord Chancellor has heard me say this before in another place, I know—to build upon the foundation of the magistrates' courts and use them as part and parcel of the foundation of a family court in the future.
The sooner this Bill reaches the Statute Book the sooner justice will be able to be done to high and low alike, and the social problems—which I have ventured to repeat in view of what the noble Lord, Lord Hatch, said—which are a constant daily and almost nightly concern of the judiciary at all levels will be able to be, eased.
§ 8.6 p.m.
§ Baroness Ewart-Biggs
My Lords, it is really impossible to speak in this debate tonight without reflecting on the great human tragedy and all the attendant pain which is brought on by divorce. And it is therefore of particular concern to know that with divorce rising in all the Western European countries, it is nevertheless Britain which is in the forefront with its rate of divorce having increased by 150 per cent. in the last 10 years. That means, of course, that an enormous number of children have had their lives turned upside down in that period.
I neither have the ability, the qualifications nor the experience to see this Bill in purely legal terms, so although I have listened carefully—and I have been much reassured by what all our noble and learned friends have said—I would nevertheless like to make a few remarks from a social point of view, and indeed represent some of those anxieties which have been put to me, notably from the National Council for One-Parent Families.
I think when considering this whole question of divorce it is important to recognise that within our particular society marriage is not an arranged affair of property relations but is brought about by emotional relationships. It is consequently that emotional relationship which has to bear the brunt of the pressures brought about by the fluctuating and mobile society in which we live. Furthermore, it is obvious that such pressures will be exacerbated when a family is unable to cope financially. Thus, it is hardly surprising that there is a higher divorce rate among those in the lower income bracket.
In the first place, the poorer couples experience a very real drop in living standards merely on having children. Apart from the actual expense incurred by 78 the child itself, there is usually either a shift from two sets of salaries to one, or the need to pay for child care facilities. I need hardly say that the level of child benefit in this country in no way relates to the cost of bringing up children. Indeed, the Foster Care Association estimate that this benefit corresponds to only 10 per cent. to 20 per cent. of the real cost of bringing up a child.
Therefore, in spite of the financial difficulties already encountered by families when living together, together with the obvious disincentive of having to make the same inadequate income spread over two households, the divorce figures are spiralling. Indeed, three-quarters of those petitioning for divorce are women; the majority of whom will of course become the custodial parent to the child. Inevitably this brings in its wake a rising number of financially disadvantaged families headed by a lone mother; women, moreover, who rarely enjoy regular support from any extended family network.
It must be further recognised that these women can hardly he described as having emerged from marriage on an equal footing to their husbands. For many of them reasonable career prospects may have been sacrificed in the process of child care. Similarly, there will be women who have made endless sacrifices to their own short-term well being and long-term career prospects in the interest of assisting and furthering their husband's developing career. Here I really am in a position to bear witness to the particular instance of diplomats' wives, who probably more than anybody make great career sacrifices in order to make their contribution to their husbands' jobs which is expected from that career. So those seem to be the key factors in the rise in divorce, especially among people worst hit by the nation's present economic ills and including a growing number of poor families headed by a lone mother.
Contrary to what is generally thought, as much as one half of these lone mothers already create sufficient earnings to bring up their own children; a further one-third rely on supplementary benefit and—as the noble Lord, Lord McGregor of Durris, said—only 6 per cent of the ex-wives rely on maintenance as the main source of income. The reality of the manner in which maintenance arrangements affect these women at present is that too little is ordered, too little is paid; and, finally, enforcement measures are totally inadequate. That is their problem.
Having tried to give a few ideas about the economic havoc brought on poor families by divorce, I shall now comment briefly on Part II regarding maintenance. It is clear that one of the aims, as the noble and learned Lord the Lord Chancellor said, is to eliminate the species of women known popularly as "alimony drones"—these women without dependent children who refuse to work and instead subsist on the meal ticket for life provided by their divorced husbands. It suggests other changes which have been enumerated today.
It seems possible that many of these changes are irrelevant or unfair. First, it seems to be a fact that the "alimony drone" has become a myth. There have been one or two highly publicised cases, but incredibly few. The reality is that ex-wives are not receiving excessive amounts of maintenance. This is not 79 surprising when one realises that already the courts expect women to take paid employment once their children no longer require full time care. Furthermore, the attendant difficulties of enforcing maintenance orders and making sure they keep pace with inflation means that many women simply abandon their orders. The real problem is not "alimony drones" but, as I said earlier, it is the poverty which affects women and children after divorce.
This is borne out by that enormous increase of one-parent families seeking the advice of their associations. Lone mothers come to them in despair, unable to make ends meet. Many would agree that wives should be financially independent. I am sure that the whole of the women's movement must be behind that quest; but surely reducing the right to private maintenance is an unfair way of enforcing that independence without having first ensured that women enjoy equal status with men under the tax and social security laws. It is equally unfair to expect women with children to look after to take, or remain in, paid employment without first providing adequate day care, nursery facilities, opportunities for training and re-training, genuine equality of opportunity at work and equal pay and fringe benefits.
The proof that we are still light years from achieving this provision lies in that fact that in 1981 the average of all female earnings was only 67 per cent. of the average of all male earnings. The European Court of Justice ruled in July this year that the United Kingdom Government had not fulfilled the EEC Treaty obligation on the right of women and men to claim equal pay for work of equal value.
Whereas it is realistic to accept that on divorce the partners cannot expect to be in the same financial position as they would have been if the marriage had not broken down, nevertheless the Bill does not provide any alternative criteria. It makes no attempt to achieve an equitable distribution of the economic assets and advantages of marriage towards which both partners have contributed.
Again, although the Bill—as has been said so many times today—appears concerned with children, surely its true priorities are revealed when the lengthy clauses on maintenance are compared with the five line subsection which provides simply that children's needs shall be given first consideration without it in any way being written into the Bill as to how this should be done. There is nothing about how much it costs to keep a child as it grows up, including the costs of substitute care. There is nothing about how the liability for children should be divided between the parents. These and other questions should not be left to the courts to work out over lengthy periods of expensive litigation.
This brings me to my last point regarding the most serious flaw which has been pointed out by most speakers today: that is the failure to provide an out-of-court conciliation service. In my view this omission makes a mockery of the Bill's very title—the Matrimonial and Family Proceedings Bill. Surely that is what it is not. If it was concerned about families it would have set up a conciliation service which in Bristol, as elsewhere, has shown that much of the bitterness of divorce can be reduced by providing neutral and 80 independent conciliators to draw up agreements on custody, access and even financial arrangements.
I end by saying this. In view of the great gravity of the present level of divorce figures, together with the many representations and anxieties which have been expressed concerning the Bill, the lack of information that there is over certain areas of this matter, would the Government not agree to put more thought into the Bill and try to make it something which will be in tune with the full gravity of the situation of divorce among families today?
§ 8.19 p.m.
My Lords, I am very pleased to be allowed to say a few words, particularly to the noble and learned Lord the Lord Chancellor. I have been in both Houses with him and I have always found his explanation of Bills to be thorough and excellent. When we have legal matters to discuss, he gives great heart to people such as myself who are not legally trained. His patience and the clarity with which he puts things forward are quite amazing.
I should also like to thank the noble and learned Lord, Lord Scarman, for his explanation of new Clause 25(2)(a), because that solves the problem. We can be reassured that the rights of the woman or the man will be well looked after. I very much regret that the noble Lord, Lord Hatch of Lusby, described this as a "middle class" Bill. Very often I have found that the weekly wage earners can look after themselves far better than the middle class and I feel that they will not be detrimentally treated by the Bill. I should also like to support my noble friend Lady Faithfull in regard to her Australian family courts, because I have visited them and they work extremely well.
I will mention one or two subjects. The first concerns maintenance agreements. The noble and learned Lord the Lord Chancellor may remember that in another place in 1955, which I entered at that time, I was successful in the ballot for a Private Member's Bill. I was fortunate enough to get an early place and brought in a Maintenance Orders (Attachment of Earnings) Bill. I succeeded in getting a Second Reading and the Bill went to Committee. I should mention that maintenance could be obtained by employers deducting maintenance money from a man's wages to pay the sum required by the court, if agreed by him. In another place in Committee—I regret to say I was not happy when the noble Lord, Lord Diamond, suggested we might adopt the same system—three Conservative and three Labour Members sat outside the Committee room in order that I should not get a quorum. In that was my Bill was defeated.
I am sorry that the noble and learned Lord, Lord Simon of Glaisdale, is not here because, as the Minister concerned, he was marvellous. He came to all the so-called Committee meetings to support us. The final outcome was all right because the Home Secretary, Mr. Butler, later Lord Butler, brought in a similar Bill which is now the Maintenance Order Act, 1958. I mention this because it is referred to in the Title to the Bill which in the last few lines reads:… to impose a duty to notify changes of address on persons liable to make payments under maintenance orders enforceable under Part II of the Maintenance Orders Act 1950 or Part I of the Maintenance Orders Act 1958; and for connected purposes".I regret to say that in previous years this operation has 81 not been very successful. The men either changed their names or used to change their jobs; this is not quite so easy now. I should like to know whether this new Bill will make it easier to contact these people and how it will be arranged. I should like also to say that most of the one-parent families are headed by women now living in poverty and maintenance plays a very large part in their lives. When I had my interview sessions, one of the numerous questions asked was about housing and the other one was about how they were going to get their money for maintenance. Very often, their income was totally inadequate and then one was able to get them supplementary benefit for the time being.
But the situation is very difficult if they have maintenance orders which are not applicable to a particular court or where they usually have to pick up their maintenance. They go there unsuccessfully day after day or week after week. I should be very grateful if we could have some knowledge of whether, in future, it is going to be easier for them to get their maintenance money when it is granted.
This Bill also appears to me to seek a reduction in the maintenance of divorced women who have a chance of getting better jobs. But Section 25A does help a little with this point. I feel that it is going to be very difficult for women to obtain jobs, particularly women in the 45-to-50 age bracket. I should like to know what might be the idea of the restricted specific period; whether it should be up to several months or a year that they could get some help. It appears to me that divorced women would be better off in Scotland, since paragraph 67 of the Scottish Law Commission report places a priority on the needs of children and makes detailed recommendations for fair sharing of matrimonial property and other assets in recognition of the contributions and disadvantages of both parents. I wonder whether later we could perhaps consider adopting some of the Scottish measures. This, I think, would be a fairer sharing of the economic burden of child care.
This Bill, as I understand it, requires the court to give first consideration to the welfare of any children when making orders for financial relief. But this Bill means more consideration in the financial arrangements and a greater emphasis to be placed on the parties becoming self-sufficient. I am sure that all people want to become self-sufficient, but I think it is going to be very hard for women to be self-sufficient, except after some time. I believe that the Law Commission (in paragraph No. 118) recommended that illegitimate children should be treated in the same manner as legitimate children in regard to maintenance payments. I do not know whether this could come under the Long Title of the Bill, but I hope it might be possible for consideration to be given to giving illegitimate children equality with other children by an amendment to this Bill, or by another Bill, perhaps, in the future. I feel that mothers should have the same rights as wives.
The "clean beak" can be made now; and, for parties with no children, this often happens. For spouses with children, the concept of a clean break from children and their needs is not very appropriate; nor does it generally express the desire of a non-custodial parent. I do not think that the non-custodial parent has been 82 mentioned before. It is not just more reasonable (as Section 25A(1) suggests) to order a clean break in the majority of families where there are children; but also the courts have power to make the break at the present time; so that I do not understand why it is in this Bill.
There is a fear that this Bill will mean greater poverty and hardship for the one-parent families by reducing or restricting maintenance payments to divorced women and by increasing bitterness and conflict between the divorcing couples and ignoring the plight of the children outside the marriage. When it is realised there are 1.6 million children living in one-parent families, I think that they are not likely to get very much help from this Bill. If a court considers that there is no continuing obligation to be imposed on either party, it may dismiss the application straight away and, I think I am correct in saying, the applicant is not entitled to make a further application. Also, the court can direct that a party shall not be entitled to an extension of maintenance payments. Perhaps, at a later date, I might get answers to the points to which I have drawn attention.
§ 8.27 p.m.
My Lords, I listened with great interest to the explanation of the noble and learned Lord the Lord Chancellor of Clause 1, and I listened also to the noble Baroness, Lady Faithfull, with very great interest and sympathy. But I am not altogether happy about it. Like the noble Baroness, Lady Macleod of Borve, I am rather afraid that it will lead to some very young, immature couples saying, "Oh well, we can get a divorce after a year if it doesn't work". So that they will plunge into marriage without due consideration. When you are very young, say, 17 or 18, three years seems a very long time. After all, it is, perhaps, between one-fifth and one-sixth of your whole life. I think it is long enough for them to think: "If we have to to stick it out for three years, perhaps we had better not marry until we are more sure of our feelings". I think that, if they have married, the prospect of having to stick it out for three years might make them try a bit harder. I know a number of social workers feel like that.
In addition, there are two categories of people to whom I think this clause will be God's gift—or, perhaps, I should say, in the first category, "Allah's gift"—because there are in Pakistan marriage bureaux which, for a consideration, will arrange marriages between Pakistanis who want British nationality and British girls, the understanding being that divorce will follow as soon as it is legally possible. The immigration authorities are doing their very best to prevent this but I believe that quite a number still slip through their net; and those people will be absolutely delighted. Also, as the law in Scotland does, it will benefit a particularly nasty sort of young woman, the kind who marries a man for the sole reason that she wants to have a legitimate baby and, as soon as the baby is born, she leaves the man because she does not want to be bothered with a husband. Your Lordships may think I am romancing, but I can assure you that these people exist. I have met them.
Otherwise, my Lords, I welcome the Bill. The idea of trying to place both parties in the financial position in which they would have been had the marriage not 83 broken down is, I think, quite nonsensical. I cannot think how it will get through this House. If you cut a cake in half, you do not have two cakes; you have two half cakes.
I have heard certain representatives of the Church of England say: "Oh well, when people got married in church the bridegroom endowed his wife with all his worldly goods and that should last forever". I am very sorry, but very few bridegrooms now make that promise, thanks to the earning capacity of women and their reluctance to promise obedience to their husbands. Instead they say, "all my worldly goods with thee I share", but nothing is specified as to the proportions in which the worldly goods are going to be shared.
The 1969 Act and the 1975 inheritance act really were a gold-digger's charter. There always have been, and there always will be, girls who marry a rich young man for whom they do not particularly care; they stay with him long enough to have one or two children and then leave him for another whom they prefer, having collected a handsome settlement en route. I certainly do not see why they should get a caviar and champagne ticket for life. The courts usually award the custody of young children to the mother, even in cases where she is not really a very fit person to bring them up. They are frequently sympathetic to erring wives, so I do not think that this Bill will harm the children of divorcing couples. Indeed, Clause 3 specifies that the first consideration must be given to the children and I cannot see that there is any cause for concern on that account or for older women whose earning ability may be non-existent. I believe that the courts will look after them as they have always done hitherto.
§ 8.31 p.m.
§ Baroness Lockwood
My Lords, I approach this Bill with a sense of unease and uncertainty—a sense of unease which not even the noble and learned Lord the Lord Chancellor in his very illuminating introduction of the Bill, nor the persuasive comments of the noble and learned Lord, Lord Scarman, have quite removed.
I want to concentrate on Part II of the Bill, although in passing I would just say I have some sympathy with those noble Lords who, in commenting on Part I, have said they are inclined to be persuaded that perhaps it would have been better for us to follow the Scottish example in this area. I would also say that I am sorry the noble and learned Lord the Lord Chancellor has not followed his own inclinations and his own expressed sympathy towards an introduction of a family court; nor his sympathy towards conciliation services in the form of this Bill. However, as I say, I want to concentrate on Part II.
The Bill has abandoned the objective of the present law to place the parties in the same financial position in which they would have found themselves had the marriage not broken down. I understand the problems to which this principle has given rise but I do think we should at least admit that it was an attempt to realise equity between the parties, and it did express a general principle as to how to approach the breakdown of marriage.
84 It has been said of this Bill that it is an attempt to introduce greater equity between the parties involved. This is a very difficult objective to attain, particularly as in the majority of cases equity between the parties does not exist prior to the break-up of the marriage. let alone afterwards. I suppose it is not surprising that the objective of leaving the two parties in the same financial position has been abandoned because that objective really is one that is incapable of being achieved. We can only get two half-pints, not two pints, out of one pint.
Inevitably, therefore there is going to be suffering and financial deprivation in the majority of cases where a marriage has broken up, and I think this is the starting point. How is this suffering and deprivation to be shared between the two parties? The new and overriding objective of the Bill is to give precedence to the welfare of the children of the marriage, and this is an objective for which I think all noble Lords have expressed support, although some of us may differ as to how that objective is to be achieved.
I think we have to bear in mind all the time, however, that the welfare of the child or children will be very closely linked to the welfare of the party to whom custody of the children is given; and it is in cases where children are involved that to arrive at equity between the parties is most difficult. Here we are talking about 71 per cent. of divorce cases, or 60 per cent. if we consider only those cases involving children under 16—and, as many speakers have said, it is unrealistic to think in terms of children under 16.
There are two aspects to equity. One is the financial side and the other is equity in relation to the custody of the children and the day-to-day care of the children. The new reference in Section 25—and here I think we are all indebted to the noble and learned Lord, Lord Scarman, for reminding us that Section 25 remains very much as it was in the previous Act, with the exception of the reference to the children and with the exception to the reference to the earning capacity of the wife, and not only the present earning capacity but the future expected earning capacity of the wife——
§ The Lord Chancellor
My Lords, if I may say so, the noble Baroness is not quite right there. The earning capacity is not limited to wives but applies to both parties.
§ Baroness Lockwood
My Lords, I do thank the noble and learned Lord the Lord Chancellor for reprimanding me on that. Of course the earning capacity is related to spouses, but in the present situation I think he would agree that in the majority of cases it is the wife who has care and custody of the children and therefore it is the woman who is in the greatest difficulty in this respect.
When you take that particular subsection in the new Section 25 and relate it to the completely new Section 25A, which deals with the financial break, it seems to me, and it has seemed to a number of people and a number of organisations, that the position is being oversimplified and that the substantial difficulties of women in the employment field are not taken fully into account.
I have referred on many occasions in this House to the disadvantages of women in the labour market and 85 I do not want to go into details this evening; but I should just remind your Lordships of one or two facts. The average earning capacity of full-time women workers is 64 per cent. of the earning capacity of full-time male workers; that is the weekly earnings capacity. Therefore, the chances of a woman being able to maintain her children at a reasonable standard are considerably less than those of a man.
The reasons for these differences are partly cultural, partly educational and partly due to the family role. Indeed, recent research has indicated that it is the break in a woman's working life and her family role that accounts for the greatest difference in her earning capacity, compared with that of a man. A woman who has taken 10 years, or even the average of 7 years, out of her working life to have a family will not have the same earning capacity as a man who has remained in continuous employment—not only present but future earning capacity, because such women have lost their seniority and the possibility of promotion, time and time again, which affect not only present earnings but their capacity to earn an adequate retirement pension.
Therefore there are very real difficulties and, while I am reassured to some extent by what noble and learned Lords have said in the debate this afternoon, I hope that, when we come to the Committee stage, we shall look very carefully at these clauses to ensure that they cover the needs of the spouse who is given custody of the children, who, as I said, tends at the present time to be the woman.
That brings me to my second point, which is the custody of the children. Again, the reason for women being given custody is usually the cultural one that it is a mother's place to be with her children. In this respect, men suffer deprivation, and I have a great deal of sympathy with the report of the Law Commission, which states that they would like to see more awards of joint custody given. But in order to do this, we need to have more conciliation services. These have been referred to on many occasions this afternoon and I would say only that I very much support what has been said.
However, I would draw attention to the fact that even the consultation paper by the Lord Chancellor's Advisory Committee on this matter does not look at the conciliation services. The Booth Committee stated in their consultative paper that conciliation, such as the Bristol conciliation, is outside the matrimonial causes procedure and therefore they have not dealt with it in detail. I think that it was the noble and learned Lord, Lord Denning, who said that the formal conciliation services within the courts are of little value, and I should like to think that we could give more resources to the conciliation services outside the courts.
Time is getting on and I shall merely say that there are many gaps in this Bill—gaps which have been referred to, gaps to which the Law Commission referred in their report and gaps in knowledge which make it difficult for us to decide at this stage what are the best procedures to be followed. The noble and learned Lord the Lord Chancellor said in his introduction that this was an urgent matter, but I wonder whether it is so urgent that we cannot stop and look at some of the areas, particularly the areas covering maintenance, where there are such tremen 86 dous gaps, before proceeding with the Bill. However, if the Bill receives the support of your Lordships' House, I hope that we shall take very seriously the recommendation of the Law Commission that the working of the new Act should be carefully monitored. Indeed, I hope that we shall follow the precedent cited in their report and require a periodic report to be laid before Parliament.
§ 8.46 p.m.
§ Lord Foot
My Lords, when I am called upon to speak in a Second Reading debate at this late hour, I tend to be oppressed by the thought that everything that can properly be said has been said, and sometimes much else besides. But it is not idle courtesy to the noble and learned Lord the Lord Chancellor, or to the others who have taken part in this debate, to say that this has been a most useful debate, because it has enabled us to identify the issues raised by this Bill and, indeed, to identify to a large extent the matters which we shall be considering later in Committee, at Report and so on.
The noble and learned Lord started by saying that this Bill had, unfortunately, been widely misunderstood and misrepresented. If this debate has done nothing else, it has gone a long way to deal with those misconceptions, misunderstandings and misrepresentations, and we have been able to identify what I regard as the central issue in this Bill. What has emerged is that the parts of the Bill other than Part II are probably the parts about which there will not be any acute controversy. Those have received widespread support and the debate has centred upon the issues raised by Part II.
Of course, the basic, central issue which is raised by Part II, is the issue which was put in the report of the Law Commission in their summary of recommendations. I imagine that I shall be referring to these for the last time tonight. They stated:The provisions of section 25 of the Matrimonial Clauses Act 1973 should he amended in the following respects:
- (i) To seek to place the parties in the financial position in which they would have been had the marriage not broken down should no longer be the statutory objective.
- (ii) The guidelines contained in section 25(1) of the Matrimonial Causes Act 1973 should be revised, to give greater emphasis to the following matters:(a) the provision of adequate financial support for children should be of overriding priority"—then I omit some words which are not immediately relevant—(b) the importance of each party doing everything possible to become self-sufficient should be formulated in terms of a positive principle; and weight should be given to the view that, in appropriate cases, periodical financial provision should be primarily concerned to secure a smooth transition from the status of marriage to the status of independence.The major issue with which we are confronted in the Bill is whether the intentions of the Law Commission, as expressed in those paragraphs, are in fact translated into the Bill. Two of the criticisms of the Bill, not so much in this House but outside, are directed less at the things which the Bill does than at the things which the Bill does not do. And two matters have been referred to more than once. The first criticism is that the Bill does not make any progress over setting up concilation schemes. The second criticism—certainly more from outside this House than within it—is that the Bill does 87 nothing to advance the solution of the problem of one-parent families.
When those criticisms are made, it should be borne in mind that the Law Commission themselves gave full consideration to them. They considered in some detail the concept of a conciliation scheme, preferably outside the legal process, and they came down very strongly in favour of it. Equally, they made it clear that they thought that the problem of one-parent families was of very considerable public concern. But, having considered those matters, they came to the conclusion—and I am bound to say that I believe they were right—that it would be inappropriate to defer the very important reform which this Bill accomplishes in order to take on board those other matters. More than that, they came to the conclusion that they did not think it was appropriate, in a Bill concerned with the reform of the private law in matrimonial cases, that one should try to incorporate a reform of the general public law about such matters as one-parent families. Therefore I believe that they were right and I am glad that the Bill as it is now written deals only with this major central issue.
The second problem which we shall have to consider, particularly in the later stages of the Bill—if, that is to say, we approve the general principle set out by the Law Commission—is whether the Bill does indeed achieve that purpose and whether it achieves it without going too far in the opposite direction and introducing some injustice on the other side.
There are two matters with which we are concerned, as I see it. First, we are concerned with the changes in the guidelines, as contained in the new Section 25. The House has enormously benefited from the close analysis of those guidelines and of the provisions of Section 25A that was made by the noble and learned Lord, Lord Scarman. If only those observations and that analysis had been more widely available before this debate took place, many of the misconceptions which have arisen would have been averted. I hope that what the noble and learned Lord, Lord Scarman, had to say tonight will be widely reported and fully considered by those who have had reservations about the Bill.
Having said that, may I conclude by saying that there are a number of matters of wording in the Bill which will have to be considered carefully in Committee. One example—I shall not weary the House by giving more than one—is the wording of the Bill so far as it relates to conduct and what it says about conduct. On this matter I take leave, with some hesitation and diffidence, to disagree a little with what the noble and learned Lord said about this in reproof of the noble Lord, Lord Hatch of Lusby. The noble and learned Lord is quite right in saying that there is a provision about conduct in the present law. Under the present law, the court is enjoined to exercise its powers,so far as, having regard to the conduct of the parties, it is just to do so".So conduct is already one of the considerations which the court has to consider and observe. The Bill provides for the same matter but in different words. The Bill provides that the court shall have regard to,the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it".88 I differ a little from the noble and learned Lord because I am not quite sure what the difference is between something which it would be just to consider and something which it would be inequitable to ignore. At a later stage of the Bill perhaps we may enter into the semantic question as to what the exact difference is. The noble and learned Lord said that in his view the words in the new Bill are a restriction upon the words in the present Act. I took, curiously enough, exactly the opposite view. When they raised up the question of conduct from the tail end of the section and put it in with a piece of its own, I thought that the intention was to emphasise the importance of the court having regard to conduct. If that is right, I believe it is a retrograde step, because the more conduct can be kept out of the matter, especially in ancillary proceedings, the better. But I use it only as an illustration of the kind of matter which we shall have carefully to consider in the later stages of the Bill.
Again I should like to thank the noble and learned Lord for the way in which he has proposed the Bill and for the very great assistance and guidance he has given to the House. For my part, I wish the Bill a fair wind and I hope it will receive the approval of the House.
§ 8.58 p.m.
§ Lord Mishcon
My Lords, if ever there were a field in which the legislator has to be careful it is the very field that we have journeyed through tonight. It is true to say that while one has to have moral values and standards, one cannot he merely the preacher. It is also true that while it is useful to have experience one cannot be only the practitioner. Lastly, it is true that although you have to have views you must not be only the partisan. It is indeed in that spirit that we have to look at a Bill of this kind, assisted as we always are by the reports of the Law Commission, for which this House ought to be most grateful, and assisted, too, by the guidance that we have had from the noble and learned Lord the Lord Chancellor in his opening remarks.
May I make it perfectly clear from this Dispatch Box—and I hope, in all humility, that this will be true of all parts of your Lordships'House—that we on these Benches do not intend to take a composite view on a Bill of this kind. It is wrong that one should take such a view. It is only right that everyone should be able to express an independent point of view. When we consider that in 1982 we reached the stage where over 170,000 petitions were filed, I suppose that every one of us would say—even though many of us are of years where this is no longer appropriate—"There, but for the grace of God, might go I." If we are of that age we say of our children and grandchildren, in an age when one in every three marriages ends in divorce, "There, but for the grace of God, go they". So that is the spirit, I suppose your Lordships would agree, one ought to have in looking at this Bill. Indeed one almost might echo the words of the prophet Micah in asking for guidance:What does the Lord ask of theeexcept to act justly and to love mercyand"—I put in parenthesis—to walk humbly with your God".89 Having said that, I suppose it would be the view of everyone that the participants in this debate have all made a contribution, and a useful one. The fact that one differs in some ways with the provisions of the Bill, or the way they are worded, or the views as expressed by one or other of your Lordships, does not mean by any sort of count that it is not necessary to have some Bill at this stage to deal with some of these matters.
My Lords, can I get on immediately to the very first matter that in the course of this debate in your Lordships' House in some cases caused controversy, in other cases caution? That was the question of reducing to one year from three years the period within which a petition could or could not be filed. I would have said that there was not one voice that spoke up in support of the existing legal provision, which is of course that unless you can prove exceptional hardship in regard to the petitioner or exceptional depravity on the part of the respondent you cannot bring your petition within three years. Nobody spoke in support of that, and those of us who practice in the law know what those difficulties are, and the obscene way in which the practitioner has to encourage the petitioner, thinking that he is doing his duty to his client, "Cannot you think of anything worse than that? Are you quite sure that is all that happened? I don't think that amounts to exceptional hardship or exceptional depravity." It is something which does not do very much to aid civilisation or social standards. So no one spoke in defence of it.
The only thing is, is this the appropriate time to deal with the period of three years and turn it into a period of one year? There I must say I have my doubts. I have my doubts, and I put them before the House with every respect, for the following reasons. You can measure statistics about the number of cases dealt with by the divorce courts. You have no statistics of those cases which are saved from the divorce courts. I know perfectly well from my own experience that there are so many cases of young people—we are obviously dealing in the main with young people when we are dealing with one year marriages or three year marriages—where a young and immature wife has returned from her honeymoon feeling that marriage is all the romance you see in the films or, these days, on television. Then comes the housework and waiting for the husband, or possibly doing a part-time job and then having to do all the drudgery of housework; the husband returns tired, and the romance does not seem to be there. There are many cases of that kind where sensible parents, sensible friends, sensible conciliation services where they do exist, indeed a sensible padre, if I may say so, if he has a chance, or the family doctor, have the opportunity of saying: "Now look, please do try again. In any event, my dear, you cannot get a divorce now; so try again; it can do no harm. You cannot get a divorce for three years, or two years. Go back and try". It is not always the case that there is the walk-out and therefore it is only a question of postponing it.
Therefore, I am a little apprehensive about the one year. I might be happier if it were two years. I am a little apprehensive about legislating at this moment before we have the further report of the Law Commission—and they are sitting on this matter and they will come out with a report one day on grounds 90 of divorce, which is the next thing they are talking about. Is it not a little premature to be legislating on a matter of this kind when the whole grounds for divorce are going to be looked at? It is a little premature to consider this before the Booth Report on procedure comes out. The Law Commission say in so many words that these procedural matters have to walk hand in hand with substantive law; otherwise you do not make sense of it. They have said that very clearly in this report. So, my Lords, I think possibly when we come to the Committee stage, individually, with our experience, pooling it, we may he able to get the right answer. I wonder whether this should be deferred. Is this the right period? I repeat that in no circumstances at all would I like the idea to go on very much longer of exceptional hardship or exceptional depravity.
I then move on, if I may, to this question of the clean break, as it is called, the finite orders, the power of the court to say that a wife's petition for maintenance, or even a husband's, is dismissed, and therefore the party concerned cannot make one ever again. Then there is the question of periodical maintenance orders. It has been said in this debate that there has been much misrepresentation, much misunderstanding. I do not think one can blame the media. It may be that some organisations have become a little too optimistic about the meaning of the Bill. I am sure other Members of this House have had the same experience as myself. I must have had at least 100 letters during the past week asking me to support the Bill. The letters have come mainly from husbands, but also from a few wives, all of them, with only a few exceptions, have been in support of a situation in which they think that the day after the Bill is enacted they will all be able to go to court and end maintenance orders and end the situation under which they are burdened with looking after the first wife.
In case anyone thinks that these letters came from people who have not had the benefit of an education, a proper understanding, or whatever, may I move to the next important point. It is dangerous when making a provision of this kind because one can lead to that belief. One does not help the situation if the clause that is put into a Bill is not as precise as it can he made. Here, again with humility, I differ from those who have spoken in this debate and even from the noble and learned Lord, Lord Scarman, for whom I have absolutely limitless respect and admiration. It is not proper to say that where one gives the court unfettered discretion in an "appropriate"case—and that is the only guidance anyone has given—that one makes the finite order or the periodical order or dismisses the prayer for maintenance. That is not good enough.
In case your Lordships think that this is not a view that should have anyone's regard for a moment, may I point out that The Times takes that view. It does so in an editorial in this morning's paper headed "When a marriage has broken down". Your Lordships will forgive me if I quote from it. I am not going to deal with the previous question. The editorial states:That apart, the Bill is quite directionless. Nothing is said about the aims to be pursued when a 'clean break' is not appropriate (presumably the majority of cases), nor about how the court is to decide when such an order would be appropriate.There must of course be flexibility in this branch of the law, because of the widely varying facts of each case, but there is a real danger that the almost complete lack of guiding principles in the Bill 91 would create widespread uncertainty and inconsistency of practice. The danger here is particularly acute because the decisions involve the exercise of a judicial discretion and so are rarely appealable. The courts are entitled to more guidance than this from Parliament".So is the practitioner entitled to more guidance when advising a client, and before accumulating costs, in order to create new precedents and, indeed, to find what a court may direct. As practitioners we will have to advise people who come to us and say with this new Bill, "Have we got a chance of ending it all?" This clause ought to contain words which guide the courts and tell them that, among other things on which they will have a discretion, they should take into account the length of the marriage, the state of the employment market and matters of that kind. No one knows where they stand.
I now deal with the last couple of points that I wanted to make.
My Lords, before the noble Lord leaves that point, could he say whether he would enjoy drafting those particular guidelines?
§ Lord Mishcon
My Lords, I always enjoy answering the noble Lord, Lord Morris, when he intervenes but I am afraid that is where my enjoyment ends. I hope that with others of your Lordships' House it may well be possible to draft such an amendment. I believe that as legislators we will not be doing our job if we do not. I remind the noble Lord and your Lordships that judges, county court as well as High Court judges, registrars, and so on, are hut human. I assure your Lordships that the definition of "appropriate" may well be different in Suffolk from Southwark and may well be different in High gate from Harwich. It is not good enough merely to deal with these terribly important changes by using the word "appropriate".
So, with the leave of the noble Lord, Lord Morris, I move on to conduct. Here I find myself with great pleasure echoing the words of the noble Lord, Lord Foot. If I may, I would put it in this way. I think that this was the noble Lord's point and therefore I am indebted to him for it; I know that he will not think that this is plagiarism. It is obviously good legislation when you do things, if you can, positively and not negatively. You are being positive when you introduce the question of conduct when it just to do so. That is a positive comment. You do things negatively and with some obscurity if you say that you ignore, if you like, conduct unless it is inequitable so to do.
Again I speak with humility as a legal practitioner, but I can foresee the amount of legal aid money—quite apart from the private purse—being spent upon arguing before the courts cases of conduct where the clients will say, "You put this forward, because it would be quite inequitable in my view if the court did not know how my wife had behaved, and quite inequitable and negligent of you not to put it forward"; on the other hand, "What an absolute"—I cannot find a noun suitable for your Lordships' House—"my husband is and has been during the course of our marriage".
We shall be bringing conduct right into matters of ancillary relief in divorce cases. We shall be doing the very thing which we have been trying hard to avoid doing and which we managed to escape when we 92 altered the rules of divorce by introducing the concept of a marriage which had irretrievably broken down. That will not do any good for the parties and it will not do any good for the children.
I could talk in terms of maintenance and relief of maintenance in certain low income cases, but we do not have time for it, so I merely deal very briefly with the question of conciliation. I find it regrettable, as did the noble and learned Lord, Lord Scarman, and my noble and learned friend Lord Elwyn-Jones, that we have not moved on with encouragement for conciliation when dealing with a Bill of this kind. With great respect, it is no answer at all to say that these are procedural matters—fiscal matters—and they need not and should not be incorporated into this Bill. If that had been the argument, I should have been perfectly content if the thinking had been contemporaneous with this Bill and announcements were made in regard to conciliation services at the same time as the passage of this Bill.
There is not the slightest doubt but that good is being done by voluntary organisations like that in Bristol which are at this moment almost bereft of funds. It would be quite wrong if a debate took place at Second Reading on a Bill of this kind which dealt with maintenance, ancillary relief and all the other things and we did not think in terms positively of encouraging those conciliation services.
If I may say so, I think that when the noble and learned Lord, Lord Denning, was talking about these matters, he confused reconciliation and conciliation. As your Lordships will realise, I say this with great deference. People can say that when a marriage has broken down, as a rule it is too late to do the reconciliation job. We are not talking about that in the main. When we talk about conciliation, we mean getting people round a table and dealing with these questions of periodical orders, financial orders, can the wife obtain employment, and so on. We are talking of getting round a table in a civilised way and not in the antagonistic and adversarial way that we have to in the courts at the present moment.
I think that your Lordships have heard me enough. I say in conclusion—this being a personal point of view, as I have said, although I am privileged to speak from this Dispatch Box—there is much that has to be done by a Bill of this kind and therefore should be done, but there is much that has to be looked at with the greatest caution when we come to the Committee stage.
§ 9.19 p.m.
§ The Lord Chancellor
My Lords, I am very grateful indeed to the noble Lords who have played a part in this debate, particularly, if I may be allowed to say so, my noble and learned friends on the Cross Benches, my noble and learned friend Lord Rawlinson of Ewell and my noble friend Lady Faithfull. I should also like to congratulate the maiden speaker, the noble Lord, Lord Stallard. I wish that I had more time in which to do so, but it would make it more difficult to say what I have to say if I expatiated on it.
If I may, I shall try to pick out some of the questions so far as they are relevant on Second Reading. I fear that this will mean that I must leave either to correspondence or altogether many of the interesting 93 points which have been made. First, I should like to commend to the House something which was said by my noble and learned friend Lord Scarman. The whole of the discussible part of the Bill has been processed by the Law Commission in three separate reports. That has meant that it has produced provisional conclusions in a working paper, which has been circulated. It has gone through the consultation process. It has then gone through the reconsideration process. Lastly, there has emerged a final report, and at last, with some difficulty, I have secured a slot in the legislative programme for what I believe to be an essential piece of social reform.
Therefore I commend the words of my noble and learned friend Lord Scarman that the Law Commission is entitled to a prima facie view that what it says is probably the best of what is necessarily a series of compromises between divergent considerations, all of which have a certain validity. I add to that my own conclusion that the truth is that there is no way to handle the ancillary orders to be made after divorce—whether one is dealing with access, custody, care and control, or with financial maintenance, the distribution of assets, or the matrimonial home—except to give the courts the considerations which they ought to bear in mind, and then to give the greatest flexibility in order to give effect to those considerations. That is what the existing law has attempted to do, and what this Bill attempts to do a little better.
The law is like a new shoe. After 12 years it has been found to pinch various parts of the foot, and it is known very much where are the points at which it pinches. The object is to ease the shoe at the points of which it is known to give trouble, and not to reduce—but rather, if anything, to increase—the flexibility given to the courts.
I have been taken to task for not including a large number of matters which interest noble Lords. I start by defending myself against that charge. I did not of course introduce the vexed question of illegitimacy, or the whole question of one-parent families. As a matter of fact I have already accepted the illegitimacy report (No. 118) as a valuable piece of law reform, and I should wish to see it implemented as soon as resources become available. But it is quite clear that this Bill is not an appropriate vehicle for that subject. Apart from anything else, it would involve the complete abolition of affiliation proceedings, and it would not be within the compass of this Bill.
Secondly, I have been taken to task—I forget exactly by which noble Lords—for not introducing into the Bill the Law Commission reports relating to matrimonial property. The House will remember that we had at least two debates (I think in two successive Sessions) at the instance of my noble and learned friend Lord Simon of Glaisdale. I would remind the House that when I pointed out the relationship which must exist between matrimonial property and dissolution of marriage, my noble friend said very firmly to me, "My proposals have to do with property during marriage, and have nothing whatever to do with the distribution of assets after marriage". And he was right. That alone is an adequate reason for not including such a matter in the present Bill.
94 I was also slightly criticised, although in a friendly kind of way, by the noble Lord, Lord McGregor of Durris, about the need for research. I fully agree. With the help of the Office of Population Censuses and Surveys, I am looking into a feasibility study with a view to undertaking precisely the research that he recommended into the effect of maintenance orders, and so on. Meanwhile, valuable but limited research is being carried out by such bodies as the Centre for Socio-Legal Studies, and the Department of Social Administration at Bristol University. However, I cannot really wait for that research. Nor do I think that when it comes it will yield new material which would lead me, at any rate, to want to see any of the terms of the present Bill altered. I agree about the necessity. I plead not guilty to an omission that would alter the terms of the Bill by not dealing with it now.
The same would be true of the demand for research into the cost of maintaining a child. This will he valuable whenever it comes and whatever its results, but I do not think that it will alter the terms of this Bill at all. I cannot see why it should be held to be a necessary preliminary to legislating the issues raised by the Bill. This was recommended. It is shortly intended to publish in the document known as Court Business information for registrars giving them the current scales of supplementary benefit rates and the fostering rates provided by the National Foster Care Association. These are figures already within the public domain, but it is possible that not every registrar knows the exact amount. However, I must say—I say it rather firmly to the noble Lord, Lord McGregor of Durris—that a child who is the subject of a broken marriage deserves a little better from caring parents than the mere cost of his maintenance. He is entitled to look to the whole assets of the marriage and the whole assets of both parents to give him something better than that. It may take the form of an education; it may be amenities of all kinds. I cannot therefore see that that ought to be used as an argument for postponing this Bill.
I wish next to say something about conciliation. I got the impression that a number of noble Lords and Baronesses who spoke were not aware that I am pressing ahead with conciliation throughout the country. Admittedly, it is in-court conciliation. But that is the inevitable step to take if you are going to have a standardised system of conciliation throughout the divorce courts in the country. There is no other way of doing it. I am perfectly familiar with the work of out of court conciliation done in Bristol and one or two other places, but I cannot standardise that at the moment. Even if I could, it could not go into the Bill. I conclude my remarks on conciliation by saying that, as a matter of fact, it can be done without legislation at all. I hope that, in the end, we shall be able to do it either by administrative action or by rules of court. It is not necessary to put it into this Bill. I must emphasise this: nor would there be the smallest justification, if the provisions of this Bill are otherwise acceptable, to postpone any of them to the advance of conciliation. That will be a bonus whether you keep the law as it is, whether you alter it, or however you alter it.
Having dealt—I hope not too summarily—with the alleged sins of omission, to which I do not plead guilty 95 at all, I should like to turn to some of the issues that have been raised as matters of principle to the main provisions of the Bill. First, as regards the time bar I must say that I am utterly unrepentant. I noted that in his criticism of it the noble Lord, Lord Mishcon, found not a good word to say for the present situation. I am sorry to cross swords with the right reverend Prelate especially in view of the rather generous words which he spoke of me, which I would not have attempted to apply to myself. However, I think he will see that, on the whole, those who have spoken most warmly in favour either of the particular time bar provided by the Bill, or some alternative time bar, were precisely those who had familiarity with the misery and unhappiness which is caused at the moment.
I hope that the right reverend Prelate will take that back to his church authorities because I must say to him in all gentleness that of course the Church—by which he meant and I mean, the Church of England in this connection—is entitled to what he called a "dual role"; that is to say, it is entitled to legislate for its own communicants, and it is entitled to express an opinion about matters of social policy and the stability of the family and marriage. However, I must say to him that it is one thing to say that you want marriages to last, and that people ought to be encouraged to make marriages last, as I said in my opening speech. I happen to think that people flounce out of marriage too easily and I would very much agree to any proposal which advised them to give the marriage a serious second chance. I even issued a much more formidable warning against divorce than anything which was uttered by the episcopal mouth. Alas! as we shall see as we go along, marriage may be dissoluble but divorce is only too often indissoluble and lasts, painfully. for the rest of the parties' lives.
However, having said that, and having reminded the right reverend Prelate of his own statement that there are a large number of divorce petitions presented at whatever time after the celebration of the marriage which do not culminate in a decree of dissolution, I say that that is an argument which cuts both ways. The right reverend Prelate has produced not an atom of evidence that the reconciliation was brought about by the three year bar—not one. Nor has he—and this goes much more deeply to the root of his case—produced any reason whatever to suppose that to place the parties in a straitjacket when they believed that their marriage had irretrievably broken down, made them more and not less likely to come to a reconciliation. All that is done by putting the parties into that position is to encourage fornication and adultery.
I say to the right reverend Prelate rather firmly that I have been a communicant of the Church of England since I was 14, and my daughter, who practises in family law, has been a confirmed member of the Church of England ever since she was about 14. But I find it rather sad that the Church of England on this particular matter allowed the working paper to go by; they were asked for their views; they gave no sign of interest at all; and they were the only major religious body who did not reply at all. They allowed the report to come out and they took no interest at all for a year. They then issued a document which said that the report had come out six weeks before theirs, when in 96 fact they had remained silent for a year. I must say to them that they have shown no interest at all, so far as I know, in the views which may be held strongly—and in my case are held very strongly—by the communicant members of their own body who have some familiarity with the practice of the Family Division and who know something of the misery and the unhappiness which is caused by limping marriages. If they had only done so, I do not believe that they would have acted as they did: nor do I believe that there is any rational basis at all for the attitude which they adopt.
I hope that when the right reverend Prelate reports to his colleagues about this time bar business he will at least report that it is very sad that the Church of England seeks to use the law as a tool for encouraging reconciliation when there is no evidence whatever that it helps in that way and when—alas!—there is a great deal of evidence—and to my mind largely conclusive evidence—in the Scottish experience which shows that it makes not the slightest difference except to encourage limping marriages.
I come now to the question of the clean break. I hope that noble Lords who have taken part in this debate will recognise from what I said in opening—and I have the impression that some of the speeches had been prepared rather carefully before they heard mine—that it is not in the least the intention, either of the Law Commission or of the Government, to disregard the rather obvious facts with regard to a wife's loss of earning capacity during the course of her marriage. especially when, as the result of the dissolution, she has the sole care and control or the custody of the children. On the contrary, I believe that the situation should be broadly as it is: that the husband of the defunct marriage owes a continuing obligation to the spouse which is not different in either quantity or quality from what he owes at the moment.
These are obvious considerations. They are taken into account by the registrars and judges as they stand, and there is not the smallest intention of disturbing them. But I must say this to critics, where they exist: that the assumption has been—even from the various noble Baronesses who have taken part—that it is the divorced wife who is the only woman in the case. That is not so. Of the vast number of letters that I have received, by far the bitterest have come from second wives. Of course, one never knows what the first wife would have said because unfortunately I have not yet received letters about the same marriage from the opposite parties; if I had, I think that I would have passed them on one to the other and I might have learned a little more. What is said by the second wife (and who knows whether it is true or false) is "Look, this woman"—meaning the first wife—"is living with her boyfriend who is very well off. She is getting maintenance from my husband and I have to go out to work, leaving my family at home in the hands of an unsuitable baby sitter in order to keep her". I am sure that some of the letters I have received have been reflecting fact; they certainly reflected feeling.
Therefore, it is important for noble Baronesses and others to realise that when you are dealing with divorce, very often you are dealing with two women, each on a different side of the fence; and, if I may say 97 so to the noble Lord, Lord Hatch, that is true whether you are middle or working class.
I now come to conduct. I really did not agree entirely with what the noble Lord, Lord Mishcon, said. The advice that I have received—and not the advice I am giving—is that the words in the Bill represent the view which registrars take—that is to say, the people who do the work on the ground—of what they are doing now in the light of the aftermath to Wachtel. Wachtel introduced a rhetorical phrase, the context of which was well explained by my noble and learned friends Lord Denning and Lord Roskill. In relation to misconduct it used the rhetorical phrase "gross and obvious", which was incapable of being reduced to an Act of Parliament. Registrars found that it was offensive to their conscience to have to give effect to it where it clearly was inequitable to disregard conduct. They found that there were a number of cases where, if they had given literal effect to it, they would be violating their own consciences. I am told that the wording of the Act which emerges from the judiciary, which has to operate this, is precisely what they are doing now. I do not think that there will be much difficulty in the noble Lord, Lord Mishcon, advising his clients, provided he takes account of what is now happening.
§ Lord Mishcon
My Lords, I am tempted to rise for only one second to say to the noble and learned Lord that the view that I expressed was one that is shared by many legal practitioners who are specialists in this field. The very fact that he mentioned that Wachtel v. Wachtel is being followed at the moment means that anything in its place must be abundantly clear if it is not to lead to a lot of litigation.
§ The Lord Chancellor
My Lords, it obviously has to he abundantly clear, but it must be sufficiently flexible to enable registrars to do justice in the light of the almost infinite variations of conduct and of non-conduct which take place. I simply do not think that it is possible to disregard conduct. One has to remember certain things which have not been stressed. First, that conduct can be good as well as bad. It can be good in favour of the deserted wife who has had to look after children when she has been deserted just as much as it can be good in favour of the husband. It can be bad, and very bad. One has known many cases in one's professional experience where the husband knocks his wife about and leaves her penniless. Sometimes he deliberately goes on supplementary benefit rather than pay his wife a penny. Is one really to say that these things are not to be taken into account in any circumstances? We are doing no more than represent the ordinary conscience of mankind by trying to insert this in an intelligent form, although not in an inflexible form, in the Bill.
I have dealt with a number of these cases. I was glad that the noble Lord, Lord McGregor of Durris, pointed out that maintenance contributes only 12 per cent., I think he said, of the total content of what is received by these divorced families, because the hard fact of life is—and I am sure that the noble Lord, Lord 98 Hatch of Lusby, would echo this—that in practically no circle of society can a man keep two separate households with two separate sets of children. This is the problem we are faced with. That is a fact to bear in mind, rather than to treat as a criticism of, or a reason for supporting, the Bill.
There is one matter on which I differed from the noble and learned Lord, Lord Elwyn-Jones. I think there was practically only one thing on which I differed from him at all. I do not think that the clean break ought to be available only where there are no children. I can think of cases, and not a few, where there is an uncaring parent who has left his, or her, children—whichever sex that parent belongs to—and remains without any interest in them at all. In such a case the clean-break principle may well be available against him, or her, even if there are children. The children's welfare is admittedly something which one has to take into account as a first consideration both in distributing the assets and in considering the ancillary problems in deciding whether a clean break is desirable or not, and it will be.
I am very conscious that I spoke for a long time in opening and now I am speaking a long time in replying, but it is a subject which merits consideration. So far as regards family courts, which I should have dealt with when I was dealing with my alleged sins of omission, I take the view of my noble and learned friend Lord Scarman. I regard the modest proposals in Part V, I think it is, as a way of paving the way to family courts. But it is not simply a question of resources, although resources are involved. Originally, when I plotted this Bill, I wanted to amalgamate the jurisdictions of the High Court and the county court, which I think will still be a desirable step further along that road. But one cannot deal with family courts until one decides what to do with affiliation proceedings and the jurisdiction of magistrates' courts in matrimonial cases. We are not ready to do that, nor are we ready fully to legislate on the subject until we have digested the Booth Committee's proposals which are still in their consultative phase. I say sincerely that I think we have done the best that can be done with an almost incredibly complicated subject.
I would just say this to those who rather depreciated the role which lawyers can play in this case. We are always supposed to live in an ivory tower of our own while the social consciences of ordinary people are more fully engaged than we are in the hardships and injustices which an inequitable law provides. I believe that that is the opposite of the truth. I was called to the Bar in 1932 and I have been facing the facts of divorce in one way or another ever since; that is 50 years. I say from the bottom of my heart, with my noble and learned friend Lord Denning, with my noble and learned friends Lord Scarman and Lord Roskill, and with my noble and learned friend Lord Rawlinson of Ewell, this is the best that can be done at the present time. Delay is not desirable. I beg to move.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.