HL Deb 21 March 1989 vol 505 cc648-54

7.35 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell) rose to move, That the draft order laid before the House on 1st December 1988 be approved.

The noble Lord said: My Lords, in moving the first of the three orders before the House this evening, I think it would be for the convenience of your Lordships—indeed, I hope that your Lordships will permit me to do so—if I were to speak also to the second order; namely, the Matrimonial and Family Proceedings (Northern Ireland Consequential Amendment) Order 1988. If I were to do so, I think that it would save the House a great deal of time.

The two draft orders before the House which deal with this subject—that is, the substantive Northern Ireland order and the consequential amendment order— will implement for Northern Ireland most of the recommendations contained in four Law Commission reports. The first was called Time Restrictions on Presentation of Divorce and Nullity Petitions (Law Commission No. 116). The second was entitled Financial Consequences of Divorce (Law Commission No. 112). The third was entitled Financial Relief After Foreign Divorce (Law Commission No. 117) and the fourth, Declarations in Family Matters (Law Commission No. 132). The substantive order, the first of the three orders to which I am speaking, corresponds in the main to the Matrimonial and Family Proceedings Act 1984 and Part II of the Family Law Act 1986 both of which apply to England and Wales.

The substantive order departs in one respect from the recommendations of the Law Commission in its report on Time Restrictions on Presentation of Divorce and Nullity Petitions. The commission recommended that the discretionary three-year bar on the presentation of divorce petitions should be reduced to an absolute time bar which would preclude the presentation of a divorce petition within the first year of marriage. The recommendation was implemented in the Matrimonial and Family Proceedings Act 1984 in respect of England and Wales.

The draft order when published as a proposal last year contained a provision in Article 3 which followed the Law Commission's recommendation to reduce the time bar to one year. The Government consulted extensively on the issue with interested parties in Northern Ireland and many commentators expressed the view that a two-year bar would afford greater protection for early marriages. Clearly the question of whether an absolute two-year bar is more appropriate than a one-year bar is one of degree; and one, I suggest to your Lordships, which the courts are quite capable of dealing with. However, the Government accept that a two-year bar is fully in keeping with the principle expressed by the Law Commission in its report; that is, an absolute bar on divorce early in marriage. Accordingly the order contains provision for a two-year absolute bar on divorce petitions instead of a one-year bar as originally proposed.

Article 4 of the first order follows the Law Commission's recommendation in relation to time restrictions on the presentation of nullity petitions. Under that article the court will be empowered to grant an extension of time for the presentation of the petition for nullity of marriage (in those cases where there is currently an absolute time limit of three years) where the petitioner has suffered from mental disorder within three years of marriage.

Part III of the first order which is based on the recommendations contained in the Law Commission's report on the Financial Consequences of Divorce amends the Matrimonial Causes (Northern Ireland) Order 1978 by revising the guidelines which apply where a court makes a financial provision order in matrimonial proceedings.

Under this part of the substantive order, the present rather unrealistic statutory directive which obliges the court in Northern Ireland to exercise its powers so as to place the parties in the financial position in which they would have been if the marriage had not broken down is removed. The provision of financial support for the children of the family is highlighted by requiring that the court should give first consideration to the welfare of any child under 18 and a greater emphasis is placed on the importance of each party becoming financially self-sufficient in so far as that is consistent with the interests of the children.

The proposed removal of the requirement that the court should attempt to restore the parties to the financial position in which they would have been had the marriage continued, has necessarily involved a reformulation of the circumstances in which conduct should be taken into account in a financial provision order. The new wording in Part III gives effect to a series of judicial decisions on the issue of conduct in that it provides that the conduct of the parties would weigh in the balance of considerations only where it would, in the opinion of the court, be inequitable to disregard it.

The Law commission's recommendation for a greater emphasis on self-sufficiency is achieved by requiring the court to have regard, along with other specified matter, to any increase in the earning capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire. That is of course linked to all the other circumstances of the case including the age of the party and the duration of the marriage and his or her experience, qualification and prospects of future employment.

The court is also given a specific duty under new Article 27(A)(1) to consider whether, what I call and shall continue to call, a "clean-break" would be appropriate in the circumstances of the case. Under the new Article 27(A)(2) when considering an application for financial provision or property adjustment after a divorce or nullity decree, the court would be under a duty to consider whether the financial obligations of one party to the other should only be of limited duration, taking into account the length of time that it would take the party in whose favour the order is made to adjust without due hardship to the termination of his or her financial dependence on the other party. The new Article 27(A)(3) gives the court the power to dismiss a claim for periodical maintenance payments and direct that no further such claim be made. We considered that those new guidelines generally introduce a more equitable balance between the interests of the divorcing parties than exists under the current Northern Ireland legislation.

Part IV of the order implements the Law Commission's Report No. 117 on Financial Relief after Foreign Divorce. Under that part the court in Northern Ireland will be given power to order financial relief for a former spouse whose marriage has been dissolved or annulled or who has been legally separated outside the United Kingdom, the Channel Islands or the Isle of Man, providing such divorce, annulment or separation is entitled to be recognised in Northern Ireland.

Part V implements for Northern Ireland the Law Commission's Report on Declarations in Family Matters and gives effect to the commission's recommendation that "the existing hotchpotch"—that is its words— of statutory and discretionary relief be replaced by a new legislative code based on consistent principles". The order also contains provisions re-enacting the provisions for the transfer of certain protected and secure tenancies between spouses on divorce and it amends the Domestic Proceedings (Northern Ireland) Order 1980 so that the award of maintenance in matrimonial proceedings in magistrates' courts is governed by the same considerations as apply in the divorce courts, in so far as that is appropriate given the differences between the two types of jurisdiction.

The contents of the order were the subject of wide comment in Northern Ireland. I have already referred to the change in Article 3 which came about as a result of much debate. Part III of the order (the revised financial guidelines) also attracted comment. A number of commentators, notably those representing women's organisations, expressed the views that the new guidelines in their emphasis on self-sufficiency and a "clean break" were disadvantageous to women. The Government, while accepting that those fears are genuinely held, are not persuaded that they are well-founded nor are they borne-out by the experience in England and Wales where similar provisions have been in operation since 1985.

The consequential amendment order amends the Maintenance Orders Act 1950 so that Articles 18 and 21 of the Matrimonial and Family Proceedings (Northern Ireland) Order are brought within the definition of maintenance order for the purpose of Part II of the 1950 Act; thereby rendering such orders enforceable in other parts of the United Kingdom in accordance with that part. I beg to move.

Moved, That the draft order laid before the House on 1st December 1988 be approved.—(Lord Lyell.)

Lord Prys-Davies

My Lords, I wish to begin by thanking the Minister for introducing the order and for speaking to the consequential order. Apart from one provision which the Minister mentioned, and to which I shall refer later, the order harmonises the law in Northern Ireland. In so doing the order proposes, at least theoretically, some significant changes in the law relating, in particular, to financial provisions on divorce.

I have no expertise in divorce law, but I understand that Parts I to IV are taken almost word for word from the Matrimonial and Family Proceedings Act 1984. However, I understand that Article 5 comes from the Administration of Justice Act 1982; Part V follows the provision of the Family Law Act 1986, and Part VI follows the provisions of the Matrimonial Homes Act 1983.

I understand that there is support for the reduction of the bar on filing petitions for divorce to two years, and that the England and Wales precedent of a one-year bar has not been followed in the order. There is also support for the award of interest on lump sum payments. The emphasis on the welfare of the child of the family is obviously correct, but I understand that in practice that is very much the current approach of the courts in Northern Ireland. There is nothing new except that the provision is now based on statutory authority.

Those provisions are helpful, but they are at the margin of the order. The central area of the order relates to financial adjustment between the parties to a marriage on its dissolution. It is my understanding, and the Minister referred to this point, that that is a controversial matter. On 23rd July 1987 at col. 354 in a Written Answer in another place the then Minister of State for Northern Ireland acknowledged that of the 16 organisations which had submitted representations on the provisions relating to financial relief, 10, including the Northern Ireland Marriage Guidance Council, the Northern Ireland Women's Rights Movement and the Northern Ireland Association of Socialist Lawyers were opposed to the provisions. They were only endorsed by one of the 16 organisations.

We wonder why the Government introduced the order. I have not come across any hard evidence that the intended changes are necessary in Northern Ireland. As the Written Answer of 23rd July 1987 indicates, there does not appear to be a popular demand for its central provisions. In addition, the criticism voiced by the Women's Law and Research Group, supported by many other Northern Ireland organisations, is that this part of the order is based on an ill-informed assessment of the circumstances of divorced parties and single parents in Northern Ireland.

The Minister referred to the criticism from the Women's Law and Research Group. It appears to me that he dispatched it in a few sentences. Having read the group's response and also the working paper prepared for the Northern Ireland Law Society, I have no doubt that had this legislation been incorporated in a Bill rather than an Order in Council, its provisions and the key articles (Articles 6 and 9) consisting of about 140 lines, would have been subjected to rigorous, line by line examination by the House.

Can it be regarded as satisfactory that the Government are pressing ahead with changing the law by this unamendable Order in Council, particularly when there is no urgent need for the provisions? Or so I am advised. Would it not have been better to delay the legislation until the Northern Ireland Assembly has been re-established? Then the provisions could be considered and amended in the full understanding of the views and wishes of the elected representatives of the Province. Moreover, if the order is controversial—as I understand it to be—is it in the interests of the Province that when a controversial order reaches Parliament it should be a fait accompli?

There is no doubt in my mind that the order emphasises above all the weakness of the present machinery of government in Northern Ireland and the importance that we should attach to re-establishing an elected Assembly when its view and the views of others can be fully addressed. Meanwhile, there is no Assembly and the Government have introduced the order. We give it support, subject to the reservations which I have tried to voice.

Lord Meston

My Lords, I too wish to thank the noble Lord for his introduction and explanation of the orders. I am only able to examine them from the perspective of an English experience of similar provisions, most of which have been in force in England and Wales since the 1984 Act. The provisions have filled a gap in providing financial relief after overseas divorces. They have added a greater sense of realism to ordinary domestic financial and property disputes. They focus on the acquisition of the earning capacity and the desirability of a clean break, if at all possible.

Experience has shown that the English courts exercise the power to impose a clean break cautiously. To those who say that the power to impose a clean break is disadvantageous to women, I can only say that experience shows that clean breaks do not come cheaply to the husbands concerned. The tendency has been that if a clean break is imposed on the wife, she does far better in capital terms than she might have done under the old regime. I have no reason to think that that would not apply in Northern Ireland as it does in England and Wales.

The noble Lord, Lord Lyell, has mentioned the curious anomaly which will exist: whereas in England and Wales there is an absolute bar on divorce within the first year of marriage, it is to be an absolute bar in Northern Ireland within the first two years of marriage. I understand the explanation he gave for that and I venture to suggest that it is not a matter of great importance. Either provision is clearly better than a discretionary three-year bar. My experience was that applications for leave to present petitions within three years—whether they were successful or unsuccessful—were contentious, expensive and distressing, particularly when they gave rise to appeals, as they quite often did. For those reasons, I support the orders.

Lord LyelI

My Lords, I am sure that the House will be very grateful to the noble Lords, Lord Prys-Davies and Lord Meston, who have studied the two orders. Unless my memory fails me, this is the first time that the noble Lord, Lord Meston, has entered the lists in regard to Northern Ireland legislation and I welcome him. I was grateful for his views in the field. As a batchelor I have not yet had any experience of it, let alone the next stage. Perhaps I may deal with his remarks later.

The noble Lord, Lord Prys-Davies, raised a number of points. He seemed reasonably satisfied with the first, although he pointed out that these were at the margins of the order. I shall have to study the full meaning of his remarks. He quite rightly drew attention to the need for the financial provisions. I hasten to confirm to your Lordships that the provisions in the order are based on the proposals of the Law Commission. I do not think that they are disadvantageous to women. As the noble Lord, Lord Meston, has pointed out, in this difficult area the courts take a sympathetic view and try their best to be reasonable to both sides.

It seems from the experience of the noble Lord, Lord Meston, and from his descriptions of the measures in England and Wales which are broadly similar, that the proposals in the order dealing with financial provisions have not proved to be disadvantageous to women. We are of the view that the courts in Northern Ireland will be likely to deal with similar provisions in roughly the same way.

The noble Lord, Lord Prys-Davies, referred to the legislation. He will be aware that in Northern Ireland it is four years behind similar legislation in England and Wales. So far as possible we have waited to see how the provisions have worked here and it seems to us that they work well. The noble Lord, Lord Meston, drew our attention to the clean break concept which has been introduced in England and Wales. It has been imposed cautiously, and from the experience of the noble Lord it seems to have worked quite well.

The noble Lord, Lord Prys-Davies, also mentioned the Order in Council procedure. It is quite novel that we should not bring any major legislation (let alone legislation as complicated as that before us this evening) into effect until a Northern Ireland Assembly is introduced. Even under a different form of government for Northern Ireland, your Lordships' House and another place would still be discussing the measures before us, be they through a Bill, an order or similar legislation. The noble Lord would still raise the same points and we would still have the same problems of consultation. However, we have taken very wide consultation. The noble Lord is quite right to point out that we could not agree that many of the opinions that were expressed to us were well founded. We believed that the measures in Northern Ireland should be brought into line, so far as possible, with what appears to be working in England and Wales. We believe that the measures in the order should work. We believe there is a reasonable chance they will be successful.

The noble Lord, Lord Meston, mentioned the financial provisions and how they had operated in England and Wales. In the experience of the noble Lord the courts have interpreted t he particular provisions which apply to England and Wales in a sympathetic and realistic way. Their interpretation has been fair to both parties, so far as that is possible in such cases. We believe these measures should and will be applied in the same sympathetic way by the courts in Northern Ireland. But this is of course a matter for the courts. I commend the order to the House.

On Question, Motion agreed to.