Divorce: Law Commission Report

HL Deb 31 January 1991 vol 525 cc812-54

4.25 p.m.

Debate resumed.

Lord Mishcon

My Lords, the noble and learned Lord who graces the Woolsack has, as one would expect of him, given a most lucid account of the law as it stands and of the recommendations of the Law Commission. He has adopted, again as one would expect, a listening attitude. We are dealing today with a very serious national social problem. If there is a wholesale breakdown of marriage in our country it is a serious threat to the fabric of our society which is founded on the institution of marriage and the concept of the family. As the noble and learned Lord said, we are also dealing with a matter which is a grave threat to the mental, physical, educational and indeed financial future of our children.

One gets an idea of the scope of the problem if one looks at some general statistics in regard to the very matters we are discussing. If the current trends continue, more than one-third of new marriages will end in divorce. That means that around 3 million people will have broken marriages in the decade we have just entered. Half of the divorces come from marriages which have lasted less than 10 years. Fifty-six per cent. of the divorces in 1987 involved children under 16. The majority of those involved children under the age of 10. On present trends that means that one child in five can expect the divorce of his parents before he is 16 years old. So when your Lordships' views are asked on matters that affect divorce, conciliation and the children of divorced couples, you are considering a matter of immense importance socially to our nation.

The first reaction to those figures must be to ask whether we need some counselling and education in regard to marriage and not just after marriage and when the marriage looks as though it is breaking down. Against figures like these, do we not need to consider very carefully whether we are doing enough in our schools, in our propaganda and in our national education of youngsters after they leave school and before they enter into matrimony to encourage them to talk about the responsibilities of marriage? Marriage is not just a honeymoon and romance. It has its problems and the old adage of give and take is a very necessary constituent of marriage bondage—in using that word I do not mean it at all offensively to the institution of marriage.

There is criticism in the report, and rightly so, of our present divorce law. The noble and learned Lord dealt with the constituent factors which enable people at present to go to our courts and obtain a divorce, whether it be a "quickie" as it is sometimes called or a defended divorce.

The criticisms expressed in the report, with which your Lordships may agree, appear under five headings. The first is that our present law is confusing and misleading and often downright dishonest. The reasoning behind that finding is, as every practitioner knows, that the real breakdown of the marriage and the reason for it seldom appears truthfully in the divorce petition. The lawyer states upon what grounds the divorce can be obtained and then takes instructions to see whether the facts which are given lend themselves to any one of those grounds. The lawyer cannot investigate whether the parties have actually been living separate and apart for two years. Moreover, he cannot really investigate whether there is a genuine confession by the other spouse of adultery. Such grounds for divorce are often grossly deceptive.

The second objection to our present system of law is that it is discriminating and unjust. I know full well, as does everyone who has practised divorce law, that if you have a wealthy client and you talk to him about living separate and apart, he does not experience much difficulty in acquiring another residence. However, if you have a poor client, the difficulty of "living apart", as our law defines it, is very real. If a client who happens to be a council tenant wishes to obtain a separate residence from the council, he will find that it will insist upon a court order, which is an ouster order or an order for possession of some kind, before granting him a separate residence.

Thirdly, the report states that the present law distorts the couple's bargaining position. That is absolutely true. Fourthly, there is what is possibly the chief ground, and one which was emphasised so correctly by the noble and learned Lord the Lord Chancellor. I refer to the objection that it provokes by an antagonistic and adversarial attitude, when alleging either unreasonable conduct, adultery or something of that nature, unnecessary hostility and bitterness which so often carries over to the children. Finally—and how truly is this objection brought forward in the report—the present law does nothing to try to save the marriage.

Before we consider the reform of our law, perhaps I may draw the attention of your Lordships and especially the noble and learned Lord the Lord Chancellor to what happens at present in conciliation in regard to the children. I do so with a plea that the facilities and the atmosphere be altered as soon as possible, regardless of whether such reforms ever find their way on to the statute book. I say nothing to impugn the kindness and the patience of our registrars and court officials. At present in the Family Division, if there is a child case in regard to access and all the matters which affect children and parents so vitally, one makes an application which is heard before the registrar. At that point the registrar urges conciliation. It is a convention that the application hearing lasts no more than half an hour during which time the registrar in good faith tries to see whether there is a chance of conciliation. If the parties do not have an agreed order, they are ushered into a corridor of the court where a welfare officer is waiting to offer help.

The corridors of a court are not the proper places in which such matters should be considered. Moreover, if, as is so often the case, there happens to be a child present and a vacant room is available, he or she is put into a room alone. Although the child is usually visited by the welfare officer, there are no toys or comics in that room. If there is agreement at the end of the "corridor procedure", the parties go back to the registrar. The pressure in those circumstances on a mother to agree to such an order can be pretty terrific. On the other hand, if no agreement is reached, the parties go back to the registrar and arrangements are made for the matter to be heard by a judge.

If that is the conciliation procedure designed to try to reach an agreed order in respect of the children, I believe that your Lordships will feel that such facilities—I use the word "facilities" as an understatement—are scarcely adequate or suitable. I ask the noble and learned Lord to inquire into such procedures. If he should find that what I say is correct, perhaps he will see whether something can be done to improve the system.

I turn now to the sort of considerations which your Lordships may think we ought to have in mind when discussing the report. The first—apart from the welfare of the children, which we obviously have in mind—is not to make divorce too easy. There is a great temptation among young people to give up when faced with the practicalities and problems of living together and when they find that the romance of marriage wears off a little, or sometimes quite considerably. Let us not make divorce too easy. On the other hand, I do not ask that it should be made too hard. As the noble and learned Lord said, if you make divorce too difficult it will not, in the short or medium term, mean that you have made marriages more happy or that you have stopped the breakdown of a marriage.

The second factor which we should bear in mind is the possibility of saving the marriage. The third must obviously be to try to take the bitterness out of matrimonial disputes, if only for the sake of the children. It is in that spirit that we should examine the main recommendation of the report which, as we have been told, calls for a process over time, allowing some 12 months for counselling, consultation and mediation.

In my view—I know that the noble and learned Lord the Lord Chancellor will agree—we must not take for granted the fact that we can translate words into an Act; that is, if ever we adopt the suggested Act which has been so usefully drafted as a Bill at the end of the report. We must ensure that we do not make ourselves responsible for words that mean nothing. It is wonderful to talk about a conciliation service, an advisory service, an advising service, a counselling service and so on. There are voluntary organisations dealing with this matter now and they will tell your Lordships that they are inadequately financed. They could do a lot more if only they were adequately financed.

If we are embarking upon a new era and if we are to pass an Act to carry out these recommendations, in safeguarding the children and trying to see that marriages are saved, we must have a conciliation and counselling service. I look to the noble and learned Lord, and I am sure he would not want to be responsible for this. We must not pass an Act of that kind without a firm assurance that there is the ability to find and train personnel and for them to have the proper facilities to enable them to carry out their duties. It is astonishing to ask: Have we not got enough financial burdens nationally and can we really deal adequately with the financial implications of the recommendations put forward in this report?

A very worthy organisation called Relate, which deals with family advice and counselling, has saved many marriages. I believe it is the largest organisation of its kind. It set up an independent inquiry to investigate these matters about which I will tell your Lordships. In the period 1987–88 central government spent over £3.5 million every day in social security payments to divorced and separated people, with other directly related costs. Local authorities spent over £70,000 every day in 1988 in child-care costs directly resulting from marriage breakdown. This represents, so the investigation found, over £10,000 on average for every divorce or separation where children are concerned.

Those figures take no account of the cost of juvenile crime; and we know perfectly well that crime-related costs owe a substantial amount in their computation to the results of broken marriages. They take no account of additional housing costs, of child guidance or of family therapy. Therefore in the light of those figures we may think that if we had an adequate counselling and conciliatory service, operating as recommended in the report, we would be indulging not only in human saving but in national finance saving as well.

I have only one comment to make before I conclude and that is on the recommendations themselves. Your Lordships may feel that my comment is not a material one, but I feel that it has some relevance and ought at least to be raised in this debate. As the noble and learned Lord said, the recommendation is—and this is mandatory—that there should be a period of at least 12 months between the statement that the marriage has broken down—he absolutely correctly left out the word "irretrievably"—and the actual divorce. To have that as a mandatory matter, with no exceptions at all, cannot in my respectful submission be right.

What about the cases where there is a conviction for child abuse? Must there be a wait of 12 months at least between the statement that a marriage has broken down because of the conviction and the grant of a divorce? Must there be the same mandatory period where other relationships have been formed which, one hopes, to the party concerned are going to be of a permanent nature and a child is on the way? Must the child be born out of wedlock by statutory enactment because there is no discretion in a case of exceptional hardship? Must there be a further wait by mandate of at least 12 months where the parties have been living apart for a great number of years? I believe that is an important matter which ought to be looked at, with an exception being granted in a case of exceptional hardship where the court should be given discretion. Save for that matter, I believe there is much good in the recommendations of this report.

4.46 p.m.

Lord McGregor of Durris

My Lords, like all your Lordships, I am indebted to the noble and learned Lord for the succinct clarity of his exposition. I am also grateful to the noble Lord, Lord Mishcon, for his vivid insight into some elements of the procedure that we are discussing.

A debate in your Lordships' House on the report The Ground for Divorce is a proper occasion for paying tribute to the Law Commission's contribution to the making of our family law during the past quarter of a century. One year after the setting up of the commission, described by the noble and learned Lord, Lord Hailsham, as the single most important event in this century in the field of law reform, a group appointed by the Archbishop of Canterbury published Putting Asunder: A Divorce Law for Contemporary Society. That group attacked the principle of the matrimonial offence and proposed breakdown of marriage in its place.

The Law Commission immediately seized the opportunity for reform thus offered by publishing a brilliant paper, The Reform of the Grounds of Divorce: The Field of Choice, which defined the objectives of a good divorce law as both to buttress the stability of marriage and, when a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and with the minimum bitterness, distress and humiliation.

From the early initiatives of the Law Commission under the chairmanship of Mr. Justice Scarman, as he then was, and his colleagues, notably in the field of family law, Professor L. C. B. Gower, came the Divorce Reform Act 1969 and the Matrimonial Proceedings and Property Act 1970 as the first design of a new divorce law. Nevertheless this legislation left the summary jurisdiction unchanged, with several matrimonial offences as grounds for complaint for the many maintenance orders which testified to surviving shells of dead marriages which had not been afforded decent burials.

In one sense the present report is an inquest on the law and practice which have stemmed from those reforms of 20 years ago. First, as has already been pointed out, fault was never abandoned, because we all know that the legislation would not have passed if it had been. As the commission put it, … the law tells couples that the only ground for divorce is irretrievable breakdown, which apparently does not involve fault. But next it provides that this can only be shown by one of five 'facts', three of which apparently do involve fault. But worse still, … the present law pretends that the court is conducting an inquiry … when … it can do no such thing… Moreover, the system still allows, even encourages, the parties to lie, or at least to exaggerate, in order to get what they want. The bogus adultery cases of the past may have all but disappeared, but their modern equivalents are the 'flimsy' behaviour petition or the pretence that the parties have been living apart for two years. In that 'wider field which includes considerations of truth, the sacredness of oaths and the integrity of professional practice' the present law is just as objectionable as the old". What the commission describes as a "formidable case for reform" is reinforced by evidence that the present system is discriminating and unjust, provoking unnecessary hostility and bitterness, that it does nothing to save marriages and often makes matters far worse for children. The case for reform is elegantly and fully documented and presented with all the authority of the early Law Commission reports: it is overwhelming and accepted as such on these Benches.

We note, too, that the commission was at pains to obtain information about its proposals from a commissioned survey of the attitudes of the general public as well as sounding opinion extensively among those working in the family justice system.

Behind the criticisms of technical law and procedure lie the many long-run social changes, the cumulative effects of which we are now experiencing to their full extent. Chief among them are transformations in the social status and economic position of wives. One hundred years ago, when mothers said to daughters about to marry, "You are making your bed and will have to lie in it", they spoke the exact truth. Most wives were subject then to religious, legal and economic restraints which prevented escape from marriage. Two world wars broke many marriages and introduced wives to the labour market, so that today most wives spend the minority of their lives discharging the duties of motherhood and the larger part as workers outside the home with independent earnings.

Abundant evidence testifies to the methods by which families have adapted to this development. Married women tend to withdraw from the labour force to have babies and to rear them when they are infants: they take part-time work when their children go to school; and many go back to work full-time when their youngest child has reached school-leaving age. Seventy per cent. of mothers with dependent children work full-time. Eighty-two per cent. of childless women under the age of 30 are working full-time, 7 per cent. of mothers whose youngest child is under five are working full-time and 20 per cent. are working part-time. When the children have reached the age group 11–15, more than three-quarters of their mothers are working. Thus the care of children is a paramount consideration for most mothers when deciding the timing and form of their employment. That is why most women in the labour market are married women whose children are nearly grown up.

Wives have legal equality with their husbands in all the main areas of family law, and the legal aid scheme opened access to the divorce court in the 1950s, since sustained by the more recent introduction of "do-it-yourself' divorce by the noble and learned Lord's department in order to reduce the costs falling upon the Treasury.

Changes during this century in the sex ratio, in the proportion of the population marrying, in the age at marriage, in the compression of child bearing into a narrow span of years and in the expectation of life have greatly increased the proportion of the population marrying, as well as the duration of marriages. Till death us do part now means on average 45 years, almost twice what it was in late Victorian days. So that today the cement of marriage is as strong or as weak as the affection and loyalty of the spouses and it is a matter of choice.

There were some quarter-of-a-million marriages between spinsters and bachelors last year, accounting for around two-thirds of all marriages. No one suggests that they will cleave to their spouses till death parts them. Marriage in this society has become a romantic lottery and, as John Stuart Mill observed, whoever is in a state of mind to calculate chances calmly and value them correctly is not at all likely to purchase a ticket. Those who marry after taking great pains about the matter, generally do but buy their disappointment dearer. The massive increase in divorce during the last 40 years has been a recurring theme of many commentators' anxieties about the state of society. The rate at which marriages collapse varies considerably according to the duration of marriage, age of the spouses on marriage and their marital status before marriage. Further, a higher proportion of divorced husbands and wives will marry again, one-third of them within two-and-a-half years. Whatever may be the motives for divorce, it appears that divorced persons do not seek to escape from marriage.

Despite the retreat from the ideal of monogamous marriage, more than three-quarters of those living in private households in Great Britain in 1987 were in families headed by a married couple. Indeed some 44 per cent. of all people in such households lived in traditional family groups, consisting of a married couple with dependent children.

The existence of the family—and this is a fundamental point which we must recognise in the course of assessing the effects of these social changes—does not depend upon the law which is powerless to create, though it can regulate, the expression of the deep-rooted conjugal and parental sentiments on which the institution rests. Moreover, marriage and its informal substitutes are rooted in the family, and not the family in marriage. I do not believe that the retention of fault in divorce offers the slightest assistance to the casualties of broken homes or to the prevention of family breakdown.

Nevertheless, we must note the recent startling increase in cohabitation demonstrated by Mr. John Haskey in Population Trends in 1989. He estimated from the general household survey that there were about 900,000 cohabiting couples with some 400,000 dependent children. There are surprisingly high rates of cohabitation in certain age groups. If such trends persist it will not be long before your Lordships are debating a new Law Commission report on a regime for cohabitation.

All the evidence suggests that changes in the law of the grounds for divorce are unlikely to affect the rate at which marriages actually collapse. Abundant survey data for the past 40 years demonstrate the consequences of family breakdown to be poverty and seriously disadvantaged children in horrifyingly large numbers, as the noble and learned Lord stressed in his opening speech. It is a bitter irony that men in the lowest income groups experience more than twice the rate of divorce of men in the upper income brackets.

One reality behind the present debate on maintenance is that marriages in which husbands have the lowest incomes undergo the highest rate of breakdown. This type of commentary could be extended at great length, but I have said enough to show that considerable social concerns and developments are raised by, and cannot be separated from, a consideration of the Law Commission's report on The Ground for Divorce. The commission describes divorce not as a final product but part of a massive transition for the parties and their children. Undue concentration upon the technical law may distract attention from the social means which alone can mitigate the sufferings of children who are the chief casualties of family breakdown.

These have been examined by Professor Douglas Hooper and Mr. Mervyn Murch of the Socio-Legal Centre for Family Studies at the University of Bristol as part of a most valuable programme of research. The centre, under Mr. Murch, has been responsible over many years for a series of studies of such problems. The authors of the new report point to defects in the handling of cases which cannot be cured by changing the ground of divorce and which indeed obstruct a main aim of the commission; namely, that opportunities and encouragement to resolve matters amicably should be built into the system when appropriate.

If we are to have a divorce over time, emphasising the interests of children and the importance of conciliation and mediation, the whole range of relevant welfare services must be deployed and integrated. But the new research concludes: Whether eventually the family justice system is organised around a unified system of local family courts or upon the existing tiered but separately administered court structure, all those who have assisted this inquiry agree that in the interests of children and families the [present] system should be made more coherent and efficient … Although government is doing much in relation to the implementation of the Children Act, there are still serious structural obstacles. [Departments] remain divided at a ministerial level, at a local level, and in respect to the organisation of court welfare services. Every effort should be made to eliminate overlapping duplicated responsibilities, and to reduce the number of organisations involved. This is because structural boundaries reinforce the conceptual boundaries in the mind. These hinder the development of mutual cross-disciplinary understanding and collaboration which is so vital in this field. Administratively they also result in family justice matters being seen as marginal, and given low priority". I regret this administrative fragmentation, which in itself would have been considerably mitigated if governments had supported the establishment of a unified family court, as recommended by the Committee on One-Parent Families. We have not got a unified family court, but it is essential that we have unified and integrated welfare services if the perils to which the noble and learned Lord referred in his opening speech are to be tackled.

5.7 p.m.

The Archbishop of York

My Lords, I am afraid that I shall have to start with an apology. The Statement on the Gulf and the unexpected length of the list of speakers have put me in a difficulty and it may be that I shall have to leave before this debate is concluded. I apologise to your Lordships' House for that.

I start by saying how much I agreed with the speech by the noble Lord, Lord Mishcon. In fact, I agreed with every word of it except the last section where it seemed to me that his proposals about, on occasion, shortening the one-year process would in time run the risk of opening a door through which all sorts of unexpected cases would start walking into court.

I welcome this report, which I believe is moving in the right direction, and I endorse the claim that its aim is to make divorce law not harder or easier but better, and particularly better for children. The Church of England has not yet had an opportunity to express its mind on this latest report, but as the noble Lord who has just spoken said it is noteworthy that the basic thinking behind the report is an extension of the 1967 report Putting Asunder, for which Archbishop Michael Ramsay was, in the end, responsible. Since then it is clear that subsequent representations by our Church of England Board for Social Responsibility have been generally supportive of the Law Commission's thinking in this direction.

Although I speak in this debate as an individual I believe that what I want to say reflects the broad centre of Church opinion; and if it does not the right reverend Prelates on the Bench behind me will soon let me know.

Lord Molloy

So will we.

The Archbishop of York

Touché. Christians are always in a dilemma over divorce.

Within our Churches we have our own marriage disciplines but we recognise, as did Putting Asunder, that secular legislation cannot be expected fully to express Christian ideals. It is important, though, that the concept of marriage enshrined in the law should not depart so far from Christian ideals that there would in effect be two types of marriage in which Church and state would have to go their separate ways. I do not believe that the proposals before us fall into that trap, but they will need careful exposition. The principles will need careful safeguarding in the legislation, should it come about, if an unbridgeable gap between different concepts of marriage is not to be opened.

Some of the religious objections have already centred, and will centre, around the removal of fault. I find the arguments against any return to fault as a ground for divorce convincing. What they do not meet satisfactorily, though, as the noble and learned Lord the Lord Chancellor recognised in his opening speech, is the deep sense of injustice often felt in the course of the divorce, particularly when one of the parties may suddenly and unexpectedly have been abandoned and is then expected to accept it as a fait accompli without any sense of justice being done.

I grant that the processes of mediation and conciliation may help to alleviate this sense of injustice by helping people to accept faults on both sides. However, this may not happen. I suspect that it will not happen when one party is determined to break a marriage against the wishes of the other.

There is a recognition of this in paragraph 3.19 of the report which suggests that an element of fault may still play its part in the process of deciding how to divide the property and what to do about the children. However, the paragraph makes it clear that the reference to fault is only to be made in what it calls "exceptional cases". I doubt whether it is wise to confine it to exceptional cases. It all depends on how exceptional "exceptional" is. It seems to me that the moral flavour of the process may depend quite heavily on where that line is drawn. If any legislation is brought forward I hope that it will be given careful consideration.

The second religious objection which we have heard already is the claim that what is proposed is in effect "divorce by consent". This phrase is frequently used in arguments without defining precisely what it means. A paragraph from the earlier report, Putting Asunder, is worth repeating: The fatal defect of the consensual principle is not that it requires both parties to agree in wanting divorce (that spouses do agree on this not infrequently is a fact that a realistic law needs to take into account) but that it subjects marriage absolutely to the joint will of the parties, so making it in essence a private contract. Since it gives the court, as representing the community, no effectual part in divorce, it virtually repudiates the community's interest in the stability of marriage. Moreover, if the covenant that initiates marriage is to be revocable by mutual consent, its intention cannot meaningfully be called 'lifelong': provision for divorce can be reconciled with a lifelong intention only if divorce is subject to an authority that is independent of the will of the parties. Dissolution of marriage ought always to require a real exercise of judgment by the court, acting on the community's behalf". That is well said and needs repeating. It seems to me quite fundamental and in the light of it I believe that the report can still be said to preserve the intention of lifelong marriage.

However, there still needs to be discussion about precisely what kind of judgment under the new proposals the court could be said to exercise. If we look at the criteria set out in paragraph 5.78 of the report—the criteria on which it is proposed that the court will make its judgment about the admissibility of divorce or separation—we see that those are all purely formal criteria. They are in no way dependent, so far as I can see, on what may or may not have been achieved during the process of time in terms of making a satisfactory settlement.

There are two points about that which alarm me. The first is the provision in paragraph 5.54 of the report that the court may make final orders relating to children, spouses and property before the completion of the process—in other words, before the year has elapsed. I can understand the reasons for that, particularly the necessity to settle the care of children as early as possible, and I note that such final orders can, according to the proposals, be rescinded, but the effect of making and ratifying all these decisions at perhaps a quite early stage in the process would surely be to make the final judgment of the court even more of a formality and thus, in time, reduce the significance of the process.

In other words, this provision could tip the whole procedure further in the direction of divorce by consent. Would it not be possible to have some system of temporary orders when these are needed in particular cases, which could then be made permanent when the divorce is finally granted?

My second cause for alarm is that a purely formal judgment at the final stage is scarcely a judgment at all. I hope that more emphasis will be given to the suggestion which appears in the report in paragraph 5.56, and the following paragraphs, which would allow the court to extend the period of waiting when a satisfactory settlement has not been reached by the two parties. I believe that the existence of such a possibility as more than a very exceptional occurrence, as the report suggests, would strengthen the role of the court in a helpful way and allay some of the fears of those who would regard this final judgment as no more than a rubber stamp.

I wish to say a few words about conciliation, as did the noble Lord, Lord Mishcon. I was delighted with what he said and I must declare my interest as one of the two patrons of the National Family Conciliation Council. The other patron is the noble Baroness, Lady Faithfull, who will be speaking next.

I welcome the prominence given both to reconciliation and to conciliation in the report. I wish to stress what has already been said; that the effectiveness and acceptability of the services provided will be crucial to the implementation of the principles of the report. The worst possible result would be to initiate divorce by a process in time and then empty the process of any but a formal content by failing to provide proper reconciliation and conciliation services.

I believe that to be acceptable the services need to be voluntary. We cannot force them on people. They must be seen to be independent of the courts. They must be voluntary to be acceptable, but to be effective they must have proper funding. Here I can only speak of the National Family Conciliation Council which is in the process of developing a nationwide network of local agencies. However, to do so it has had to depend entirely on voluntary giving and fees. The result is that a huge and unnecessary amount of energy has been spent on fund raising by skilled people. The central organisation of that council is absurdly fragile when one considers the weight it has to bear. I believe that some core funding is essential if the council is to bear the weight envisaged in the future, or even for it to survive and grow in the present circumstances.

I repeat that I welcome these proposals provided that the content of the process can be strengthened in the ways that I have indicated. I am quoted in the report as saying: If a law is not easy to operate my experience is that the lawyers will find a way to make it easy to operate". I am gloomily conscious of the fact that that premise is true. The legislation has to be framed in such a way that divorce cannot become a mere formality, otherwise we tip the balance too far in the direction of the couple themselves and away from the long-term interests of the community in maintaining that marriage is a social reality—I maintain it is also a spiritual reality—and not just a personal contract.

5.22 p.m.

Baroness Faithfull

My Lords, I too must apologise to the House as I cannot be present for the end of the debate. I apologise to the noble and learned Lord the Lord Chancellor. I believe he knows of the appointment that I have.

I join with other noble Lords in thanking the noble and learned Lord the Lord Chancellor for his clear explanation of the present law and of the recommended changes in the Law Commission Report The Ground for Divorce. I presume to speak in this debate as a former social worker with experience of child guidance clinic work. I am also a former children's officer and director of social services. In those roles I have dealt with cases of divorce in all sectors of society. I have dealt with the wealthy, the poor and those in the middle financial band. The cases involved conciliation work. As the most reverend Primate has said, that entails mediating between the divorcing parents on such matters as housing, finance, the education of the children, the terms of access and the adjustment of the children to the breakup of their parents' partnership.

In some cases the outcome of such discussions was reconciliation. However, in many cases the outcome was an agreement between both parents on the terms of the divorce. My remit extended to working in the courts. My training and experience leads me to accept the recommendations of the Law Commission's report on divorce which recommends removing the five faults provision and replacing it with the passage of time provision.

As the noble Lord, Lord McGregor, has said, it is a sad reflection on our society that there is such a high divorce rate. I wish it were otherwise. This is not the time or place to go into the possible reasons for the breakdown of marriages save to say that in many instances a crisis in human relationships develops. That may be due to emotional deprivation in childhood, social factors, factors of war or incompatibility of temperaments. Be that as it may, we must accept that a divorce that is withheld, delayed or obstructed does not save a marriage.

I agree with the noble and learned Lord that the rights of children are paramount as laid down in the Children Act 1989. For the sake of the children we must surely seek a divorce process which will harm them least. We must also seek a rearranged structure which involves the least hurt for their parents and on which they can build a future life which is without bitterness. That brings me to the grounds for divorce in relation to their effects on children. I wish to refer particularly to the five faults provision that the Law Commission wishes to remove.

A child's love for his parents is a golden nugget. A child identifies with his or her parents. If that child hears ill of the parents he loves and if a finger of blame is pointed at those parents, that child's image of himself is diminished. The child in turn can be emotionally hurt and damaged. Therefore divorces should be conducted in such a way that this does not happen.

A small girl came to me in tears because the children at her school had spoken disparagingly of her mother. The children had called her mother a whore. The girl asked me what that word meant. She said the children at school did not understand that she loved her mother and that her mother was good to her. The girl asked me why the children spoke about her mother in that way. She said the remarks made her feel bad. On another occasion a boy aged about 12 said to me, "Miss, the children at school say that my father is unkind and wicked. He has never been unkind to me and I love him". He said that he felt damaged in some way by the remarks made about his father.

I submit that the process of trying to prove the fault in a divorce is damaging to the children. Divorce by passage of time, as recommended in the report, does not diminish the children to such a great extent. The children may be taken from the parent who in law has committed the fault when none of us can really know what goes on within a family and who is to blame for the breakup.

Representations have been made to me—I expect other noble Lords have received similar approaches—that if one takes away the fault procedure from the process of divorce, one diminishes the moral fibre of society. A notable moral philosopher and theologian, the Reverend Canon Dunstan, wrote: What does this mean in terms of Christian morality? Where in the teaching of Jesus are we taught to blame others to our own justification or advantage? In terms of strict gospel morality the fault basis of divorce can have no standing at all". A marriage is a deeply personal experience. In the deep recesses of the spirit it is not easy for any of us to judge where the fault lies when a breakdown occurs. The one perpetrating the fault could have been aggravated and forced by the other partner to behave unreasonably. I say: Judge not, that ye be not judged". In a divorce there should be a duty to minimise bitterness and harm to both the parents and the children. Therefore, in my view, divorce by passage of time offers the wisest way to reconstruct broken relationships in such a way that the children of separating partners have the opportunity to rebuild their lives and to have a positive future with as little hurt and bitterness as possible.

Much can be done in that year: settling the questions of the custody of the children, access, housing and maintenance. As I see the process, parents will register the divorce. They will be told that within a year they can have the divorce if they have come to understand each other and to understand the difficulties and if they have reached agreement regarding the children, access, money and housing.

They should not be forced to conciliation, but the conciliation service offers great help to parents. I support the noble Lord, Lord Mishcon, in calling for Government support for a good conciliation service throughout the country. As the most reverend Primate said, we are both patrons of the National Family Conciliation Service and Council. I believe that we think alike on that matter.

After conciliation, the parents may opt for a divorce. Unfortunately, I shall not be present to hear the noble and learned Lord, Lord Simon. However, I believe that he may say that we should have family courts and that parents cannot be assessed except on the basis of fault. I may be wrong, and I shall read the report of his speech in Hansard. I would prefer that we proceed on the basis of the document Children Come First which recommends that there should be a formula determining how much parents should pay for the upkeep of their children and that maintenance should be assessed on the basis of that formula.

If divorce must come about—and we cannot force people not to divorce—we should seriously consider adopting the recommendations of the commission.

5.33 p.m.

Lord Stoddart of Swindon

My Lords, on Monday of this week I received representations from a religious organisation. I said then that I had no intention of speaking in this debate. However, I then received further representations from an organisation called Families Need Fathers. That persuaded me that I should at least listen to the debate and perhaps say a few words on the subject.

Having heard the previous distinguished speeches I fear that anything that I have to say may be repetitive and perhaps inadequate. I shall say it, nevertheless.

I should like to thank the noble and learned Lord the Lord Chancellor for putting forward the report in a way that those of us who are laymen in these matters can understand. The report will undoubtedly assist in taking some of the bitterness out of divorce. I am glad that there will be some delay in implementing the proposals contained in the report because I believe that there are other matters which need to be attended to. I shall refer to those later.

I was also impressed by my noble friend Lord Mishcon when he referred to conciliation and counselling. I agree with him that there is a need for counselling not only after marriage but before marriage. Anybody who has been through a divorce knows that divorce is a great trauma. It is an experience which wounds. Although wounds may heal over a period of time it is almost inevitable that the scars will remain throughout the lifetime of the person who has divorced. The bitterness also remains and taints a person's life until the end of his or her life.

It is very important that all of us in society—particularly parents—should counsel our children before they embark upon marriage. As my noble friend said, marriage is not a perpetual honeymoon. It involves great responsibilities. It involves the creation of children and the rearing of children. That is a serious matter for individuals and for society. The family is the basis of the nation. Let us make no mistake about that. The family unit is the very fundamental of the nation. If the family is broken up and if the concept of the family does not persist the nation itself will suffer.

The attitude of society towards personal relationships and marriage has changed over the years. I believe that it has changed for the worse. People are allowed to embark upon marriage too easily. I believe that the media have much to answer for in the matter of personal relationships and of sexual relationships. All too often the media portray sexual relationships as about not procreation but recreation. They have put the cart before the horse. When young people embark upon marriage it is essential that they understand that although the marriage may not be for life they ought to try to make it for life and not enter into it with the idea that if it does not work divorce will be relatively easy.

As my noble friend and other speakers have said, it is most important that we ensure that resources are available for conciliation and counselling services. Not only should financial resources be available, but the people who undertake such work should be trained for the work and also fitted for the work. Noble Lords will understand exactly what I mean by that. Simple training will not enable proper conciliation and counselling to be given. Often it needs experience. People with experience and training will be invaluable in providing that service.

I should like to conclude on one very important point which I believe has to be addressed in the matter of divorce; namely, the adversarial nature of divorce where in fact the solicitors of the parties do not try to conciliate or do the best for both parties and the children, because that is not the system. They try to do the best for their client. That often means trying to get the most money for their client or obtaining the custody of the child or children of the marriage with the least possible access for the person who does not have custody. That matter must be addressed. We must try to eliminate the adversarial nature of the system.

Also, during proceedings and consultations the solicitor will do his best for his client in the financial sense. That is his job. No one criticises solicitors for that. Under the present system that is what solicitors are expected to do. Unfortunately, in the English system anyway, no proper guidance seems to be given to the courts on the matter of how property should be shared. I understand that a different situation pertains in Scotland. In 1985 the Family Law (Scotland) Act came into force. It gives guidance as to how property should be shared. For example, account is taken of the fact that people might have had property before they were married and that there is family inheritance which perhaps should be passed to children. Account is also taken of property which has been accumulated by both parties. As so often is the case, matters in Scotland seem to be arranged better than in England and Wales.

It may well be that before decisions on grounds for divorce are finalised we should consider the question of financial disposal and sharing and perhaps bring to England the benefits that obtain in Scotland which, I understand, have been working very well for the past five years.

5.42 p.m.

Lord Simon of Glaisdale

My Lords, at the impressive start of his impressive speech the noble Lord, Lord Mishcon, gave some striking statistics. I wish to isolate only one of them; namely, that today one third of marriages break down. Moreover, as the noble Lord pointed out, that is a rising trend. The figures today are double those of 20 years ago. We should bear in mind that 20 years ago saw the coming into force of the Divorce Reform Act 1969 which is now consolidated in the 1973 legislation. Obviously that Act was not the sole cause of the alarming trend. But that it would be a cause was predictable and indeed predicted by my noble and learned friend Lord Hailsham who was then the spokesman on home affairs in the other place. It was also predicted by Sir Lionel Heald who was by his side during those debates.

In approaching this report one should bear in mind the hyping—the high pretensions that were made when that Act was under discussion. It was described as "a kiss and make up Bill". I venture to think that there has been altogether a high degree of complacency in the approach to this report and the attached Bill. I hope that I may be forgiven for saying that I thought that that was particularly marked in the speech of the most reverend Primate. It seems to me serious that this report has not faced the fact of the increase or what has caused it. Nor indeed has it distinguished the Divorce Reform Act of 20 years ago as one of the influences. That it has failed to do so seems to me to be a serious flaw in the report, but it is by no means the only one.

As the noble Lord, Lord Mishcon, pointed out, marriage and the family are institutions of society. Marriage is the institution which gives rise to the institution of the family; and in our culture the family is the institution by which society ensures its survival. The family ideal is that marriage is a life-long relationship. The most reverend Primate claimed to discern recognition of that in the report. I myself fail to find even lip-service paid to it.

The life-long relationship has two principle aspects that concern us today, although there are others. In the first place there is a division of responsibility—a division of labour—between husband and wife. The wife necessarily incurs economic disadvantage by bearing children, suckling them and generally looking after them in their early years. All too often she has a part-time rather than a whole time job. Where there is a functional division of labour of that kind, there is a claim to share in the fruits of the labour and that is a life-long claim since the economic impairment of the wife is a life-long feature.

The other aspect is not purely economic. Bacon said, in a way which to us is perhaps distasteful and, as we might put it, male chauvinistic: Wives are young men's mistresses, companions for middle age, and old men's nurses". I think that that could be equally put with the genders reversed, that being changed which has to be changed; so that the life-long relationship, the life-long element in a marriage, is not only economically fair but psychologically fulfilling. We endanger it at our peril. Again, that issue has not been considered by the Law Commission.

In Part II the commission has forcibly pointed out the grave disadvantages of the 1969 Act. It is now the 1973 Act. It pretends to something that it does not deliver; namely, irretrievable breakdown as the sole cause. While purporting to eschew fault it introduces two, perhaps three, grounds which embody the concept of fault and which are prerequisites to the finding of breakdown of marriage. Having demolished the pretensions of the 1969 Act the Law Commission merely discards what my noble and learned friend calls the five facts. However, it goes back no further than the breakdown of marriage.

"Breakdown" was very much in the air during the late 1960s. It was one of those extraordinary gales of intellectual force that sometimes sweep through a society. A similar but more dangerous gale appeared in the late 1920s; namely, the gale of pacificism. It is true that it was soon reversed when the true nature of Hitler's danger was perceived. However, during the late 1960s breakdown as the ground for divorce was all in the air. The Church of England's pamphlet, Putting Asunder, relied on breakdown as the sole ground. However, it went on to say that each case must be fundamentally investigated to ensure that there is true breakdown. As the Law Commission pointed out in The Field of Choice, that was quite impracticable.

In considering the speeches that are made in support of the report one must bear in mind the attitude of the Church of England at that time. Putting Asunder had virtually crippled the principle on which the Church had been depending as regards its view of marriage for a long time; indeed, until Archbishop Fisher gave evidence to the Royal Commission in the 1950s. The evidence was printed as being the view of the Church. Putting Asunder was quite at variance with that. Not only was the principle crippled but willpower in facing the 1969 Act was also impaired. Therefore, the Church offered no real critique to the 1969 Act. I do not know whether it agrees with the strictures that are now passed on it by the Law Commission. Again, that is a matter that has been insufficiently considered in the report.

What are the implications of breakdown? Obviously it encompasses divorce by consent because if both parties say that the marriage has broken down who is to gainsay them? But breakdown goes further. It allows the divorce by one party against the will and the wish of the other party who may have substantially performed her matrimonial obligations. I wish to quote a case which I had to try. It was the case of Qureshi and appears in the Law Reports. It concerned a Pakistani marriage, the parties being domiciled in Pakistan. By general Islamic law a divorce can take place at the suit of the husband by his simply pronouncing the talaq, "I divorce you", three times. However, the Pakistan legislature had imposed a stay, a stop; a pause for reflection and consideration, to adopt the words of this report. The parties had to go before a counsellor to see whether the marriage was irretrievable. In this case, the parties being in England, they went before someone from the Chancery of the Pakistan High Commission. The gentleman thought that the marriage was savable; the wife wished to be reconciled. In fact, the marriage could not be saved because the husband was adamant that he would not return to his wife whatever was said.

I cannot see that any mediation can do anything to help in such a situation. The husband, for instance, can say, "You may think that my wife is a charming woman but I am the one who is married to her. I am not going back". For good measure he may add, "What is more, there is someone I prefer". After all, we must face the fact that divorce is a licence to live apart coupled with a licence to remarry. Again, that is not considered by the report. It does not consider that breakdown as the sole ground, particularly as it is delayed only for a year's interval for consideration and reflection, allows the repudiation of a substantially innocent spouse by the spouse who is substantially at fault in the marriage.

I do not apologise for using those terms. There was a silly catchphrase at the time of the 1969 Act; "There is no black and white in marriage, only degrees of grey". Humanity being fallen, I do not doubt that in general there is no white but that does not mean that there is no distinction between off-white and charcoal. I can say from all my experience that it is absolutely impossible to deal fairly with financial and property matters in general without considering a fault in some measure.

Finally, I turn to the subject in respect of which the report is most at fault; namely, children. The Government's main paper is entitled Children Come First. That was also proclaimed by the Children Act passed two Sessions ago. But do they come first here? Do we not rather invite the parties to please themselves as to the future of their marriage and then, as the report states, look round to see what one can do to mitigate—not obviate —the harm that is liable to be caused to the children? I need not expatiate upon that harm because it was graphically and truly described by my noble and learned friend on the Woolsack in his opening speech. The damage is likely to be serious and to last long beyond childhood.

Therefore, should not the Law Commission at least have considered whether divorce should be permitted at all where there are children under the age of 16? After all, in these days of general contraceptive measures, both natural and mechanical, the birth of a child is generally an advertent and intended act. On the birth of a child parents take on new obligations. They are no longer entitled to consider only themselves or each other. They have now a child who comes first in the view of the Government. If divorce is so damaging to young children, should it not at any rate be examined—as it was not—whether divorce should be available at all where there are young children?

The final matter that I wish to mention was touched on by the most reverend Primate. How far is society really entitled to interfere in matters such as marriage which are founded on contract? He is right when he says that society is entitled to do so because marriage is an institution of society. Indeed it is politic to do so where children are involved. However, is it politic to do so when the parties no longer have obligations to children? Would it not be reasonable in that case to allow freedom of choice; in other words, divorce by consent which is the proposal by the Law Commission.

From that suggestion I should have excepted those for whom marriage is a sacrament, or is of the nature of a sacrament as in the case of the Church of England. However, is it not arguable that those people should be allowed to contract a marriage which does not allow divorce? When that was suggested in about 1969, the proponents of the Bill, who were very anxious for easier divorce, said that that would involve first and second class marriage; in their view, a first class marriage being one where there is no divorce. Surely that is a curious concession. Why should people not be allowed to contract out of divorce at the time of marriage? Again, that has not been considered in this report.

I return to the point at which I started. One-third of marriages are now foundering and the proportion is rising. It does not take great powers of prophecy to prognosticate as to the effect of the Bill annexed to the report. I have not the slightest doubt that it would mean a further increase in divorce.

6.4 p.m.

The Earl of Selkirk

My Lords, I had not realised that I was to hear an important statement by the noble and learned Lord the Lord Chancellor. I am very glad to have heard the statement of his intentions. They are very far-reaching, and I wish him good luck with them. It will be very difficult to achieve what he has in mind and what he has laid before us today.

I have read a recent report from the English commissioners and it is extremely impressive. I was particularly touched by the depth of humanity shown in that report. I do not understand what has happened in this country. However, there have been very far-reaching changes in this sphere in my lifetime. Perhaps I may give one example to illustrate that. One of the senior commanders in the armed forces divorced his wife. He resigned his office immediately. That may be a small matter but that would not happen today. That is a measure of the change of standards which are the essence of the problem which my noble and learned friend the Lord Chancellor has in mind. Those standards have drifted astray and we must put that right.

I found some strange figures on this matter. I do not know whether they are true because it is very difficult to obtain figures on this subject. I read that 72 per cent. of men asked thought that the present English law on divorce was right. That seems very strange. I saw another statistic that 51 per cent. of the men who become divorced are very sorry that that happened. I do not know whether those statistics are true. I do not live in the realms of statistics and do not know what they are all about. I wonder about the anxieties that the law is in some way forcing people to divorce. That has never been my experience of lawyers. They have always used every defence possible—not that I have ever sought divorce.

The essence of the matter is that opinion is changing. Perhaps I may take an example. The birds of the field learn how to make a nest. Without being discourteous, I do not believe that any noble Lords know how to make a nest because it is extremely complicated and detailed. How do the birds learn to do that? I do not know, but they do learn it. If one becomes an engineer or a lawyer, one spends years learning how to to do that. That probably takes three or four years. However, no one is trained in marriage. That was the point which the noble and learned Lord made. No one attempts to ensure that the functions of the body and the other needs arising in marriage are understood. We do not attempt that. Should we not make some sort of arrangement? If you are an a actor, you take years to learn your profession. For a minister of religion, there is a long and exacting training. I know more about Scottish ministers than English ministers but that is by the way. Those matters are commonplace. Some sort of introduction should be put together so that it is known what marriage amounts to and what problems may arise. Some people are by nature open, and some are very selfish.

The essence of this matter—and it is not necessarily to do with divorce—is our standards. Do we maintain today anything like the level of standards which has existed previously? I agree that those standards were different. Some things were allowed which we do not allow, and some things were forbidden which we allow.

My noble and learned friend is dealing with a matter which will receive enormous response. We shall expect that action will be taken to make marriage fuller and nobler. I believe that a married man is held in greater dignity and is wiser than an unmarried or divorced man. I am sure that that is because of the richness of marriage. We are taught by our religious leaders about the sanctity of marriage. To many people that sanctity is natural, because how else would one treat someone whom one has offered to make one's wife? I wish the noble and learned Lord the Lord Chancellor every good fortune with his proposals.

6.10 p.m.

Lord Molloy

My Lords, I rise at a stage in the debate when most of the fundamental points contained in the commission's report have been touched upon. However, there are some vital aspects of divorce procedure which have not been covered wholly by the report, and I hope to mention them later. We have been fortunate to hear superb speeches from the noble and learned Lord the Lord Chancellor and my noble friend Lord Mishcon, who set the scene for us. A number of matters that I did not understand, I understood more clearly after I had listened carefully to their speeches.

Divorce is a terrible social failure. It is an exaggeration of failures. Most lawyers agree that divorce is unfair to men. I have heard from many barristers and lawyers, who are divorce law specialists, that more often than not divorce is grossly unfair to men. I shall not go into details, but I can supply them if required. We have to consider the sharing of property when a marriage is over. According to knowledgeable specialists in the legal profession, that is also unfair to men. They seem to lose much more, and, what is worse, especially where children are not involved. That is an aspect of divorce that we must study.

The problem of people who marry late in life has not been mentioned. After three or four years they may go through a divorce. Their lawyers again say that it is always the man who suffers. The little lady is the innocent one, while the man has to pay up. Much of what I have learnt has been the result of the superb reply I received from the noble and learned Lord the Lord Chancellor to a question I asked. That reply was published by the press. It resulted in me receiving hundreds of letters. I am pleased that I received them, because they enabled me to understand a great deal. As a result, I shall be supporting the propositions being put forward.

In many cases after a five-year marriage many elderly men have had to transfer their entire old age pension to pay what the Americans call alimony and what we call maintenance. That is serious when one considers that a man has paid for his pension since he was 16 years of age. He reaches the age of 68 or 69 and has been drawing his pension for three or four years. It is then taken away from him. That is something we must consider.

The Law Commission's report is a timely and valuable response to the public's anxiety over the rate of divorce. It is an intelligent, deep searching endeavour to find a good divorce law. We cannot outlaw or abolish divorce, but we can try to find a good, fair and just divorce law. The report is a fundamental step in that direction. However, it fails to examine some of the distasteful activities that are carried on within the law by a minority of the legal profession, mainly the so-called specialist solicitors.

The proposal for a one-year cooling off period will not make the ending of marriage any easier but it will encourage civilised forgiveness, understanding and tolerance. Some aspects of the commission's report deal with those issues. It is a wonderful thing to be concerned about those matters. In some situations which seem to be impossible, a pause to consider what is involved, especially where there are children, may help to avoid divorce. What is wonderful about the report is that it concentrates upon that endeavour. It is not just talking about what is a fair or good divorce, it tries to bring about a situation where divorce can be avoided. The other point for which it deserves credit is that it puts the future of children high on the agenda and that is given proper consideration.

The noble and learned Lord the Lord Chancellor gave a moving reply to my question. He said that one should show concern for husband and wife and uphold the sanctity of marriage. As I have said, that reply brought me hundreds of letters. It gave me some experience of many of the things that people go through during a divorce. The present system of accusation and counter-accusation means that any form of reconciliation is greatly reduced. The commission's report mentions that point. The present system seems to be saying that we should kill the marriage rather than seek to cure its faults. The Law Commission's proposition is better. It seeks to cure the faults rather than to kill the marriage. The Law Commission eschews the present procedure. People sometimes tell me that they have wanted to stop the divorce from proceeding but arguments in court bring up the bitterness all over again.

Organisations such as Dads Against Divorce feel that there is too much exaggeration in court and that it creates bitterness and gives reconciliation no chance. As the noble and learned Lord the Lord Chancellor and my noble friend Lord Mishcon have said, there seem to be two categories of divorce. One is adultery, and the other is the quarrels and misunderstandings which lead to bitterness. Solicitors have to do the best they can for their clients. That is what they are paid for. They sometimes have to heap coals on the bitterness. The present system is barbaric. It should not exist in a civilised society. The Law Commission's report recognises that fact.

The many hours of discussion there have been with deeply sad divorced people compels one to fear that our land—bastion of freedom that it is—is marred by divorce court procedures. I am told that 30 per cent. of the men involved in divorces commit suicide. I have had those figures checked. I have spoken to responsible members of the legal profession involved in divorce law. Those figures are sad. A recent study revealed that a substantial proportion of divorced men and women wished that they had remained married to their former partners. The report backs up 100 per cent. the wisdom of the Law Commission's proposals.

The dispersal of property must also be studied seriously, especially in England. In Scotland there is a much fairer basis for the dispersal of property. I use my words with care, but the procedure is almost criminally unfair in England when it deals with the division of property between spouses. Part of the current procedure is redolent of authoritarianism. I am referring to Rule 77(4) of the Matrimonial Causes Rules 1977. A man can be served with a summons which merely states that he should come to court to show why he should not go to gaol. We do not do that to train robbers, city crooks, vandals or drunken drivers who kill. They do not have to put up with that form of legal threat. I hope that the noble and learned Lord the Lord Chancellor and my noble friend Lord Mishcon will study that aspect of the procedure. Out of the 90 letters that I have received from Dads Against Divorce, 73 mention that aspect of divorce. Those men have done nothing. They have never been accused of any crime. They are not like me: I was put on "jankers" so often in the Army that I could never forget it. Those are people who have done nothing. British law says, "Come here and tell us why you should not go to gaol". We do not say that to murderers or drunken drivers; but we say it to men involved in divorce. No matter what happens to this important report that kind of provision should be stopped forthwith.

There are other occasions when men are irritated when they appear before a judge for the first time in their lives. It may be that a solicitor has not supplied the other side with all the relevant material. One very well known and superb lawyer said to me, "There are instances in my experience, Lord Molloy, when I have had to stand by and watch an appalling exhibition of terror being imposed through harassment on a person simply because he cannot get on with his wife and is seeking a divorce". These matters have t o he looked at very closely indeed. One has to underline the fact that the overwhelming majority of lawyers have experience of these things.

When a person goes to court, sometimes the judge will make a fifth-rate joke at that person's position which is taken up by the press. Judges have no right to indulge in that kind of conduct. I hope that the leaders of the legal profession in this country will see to it that any judge who, to use an ordinary British working class expression, "takes the mick" out of someone brought before him, is removed from the Bench. He is unfit to be a judge. A number of such judges exist. I cannot speak more honestly than that. As I have said, if anyone requires evidence to confirm what I have just said I am quite prepared to provide it.

The commission's report seeks at least to have divorce without anger. It is a remarkably good subject for a debate. I believe that the noble and learned Lord the Lord Chancellor may be primarily responsible for the report. His survey in introducing the debate was magnificent, as was the speech made by my noble friend Lord Mishcon. I am particularly pleased that the report acknowledges that marriage itself becomes a terrible casualty when divorce is entered on. It is a heartbreaking situation for the husband, wife and children. The commission's proposals are that it would like to have mediation rather than acrimony. It is an extremely difficult situation. The subject of divorce is complicated. It is very difficult to find a reasonable solution. This particular Law Commission Report is making a good start so that one day we can perhaps have a more civilised, fair and just situation where divorce is inevitable and children are involved, and that the best that the courts can do for everyone concerned is to the credit of our country.

6.22 p.m.

Baroness Macleod of Borve

My Lords, I have had the pleasure of sitting through the debate this afternoon and hearing brilliant speeches led by my noble and learned friend the Lord Chancellor. I have learnt a very great deal. I do not want to repeat what has been so ably said because it is late and noble Lords would not wish me to go over matters again.

I begin by reminding your Lordships that for the second day this week we are dealing with problems that affect millions of people each year. Yesterday we debated drugs. We were told that in 1988 there were 19,179 addicts known to the Home Office. Today we are dealing with divorce. Although there were 382,000 marriages in 1989 in Great Britain, there were 162,500 divorces. Half the number of divorces occur during the first nine years of marriage, with 28 per cent. occurring between the fourth and ninth years. That means that any children involved are very young. Fifty-two per cent. of divorces affect children; that is over 2,800 children every week.

I was shattered when I read that statistic which I am sure is true. These terrible figures mean that not only are 3 million people in our midst experiencing heartbreak, tragedy, emotional and practical upheaval in their lives from which they will never completely recover, but I sincerely believe also that the children, of whatever age, never fully recover from the trauma of losing a parent. I also believe that children are entitled to be brought up by one parent of each sex.

What are we to do? I was one of those who was disappointed that there was no mention in the Queen's Speech of discussing the problems of marriage and divorce within this Session of Parliament. I now understand that there needs to be far more discussion at every level in order to ensure that we get the matter right when we have a new divorce Bill.

I wish to compliment the commission on its report, as did the noble and learned Lord, Lord Simon of Glaisdale, and especially for the understanding way in which it was written. It certainly came across to me that the people involved had a deep understanding not only of what they wanted in the Bill but also of the human relationship between one person and another. I agree that there should be a single ground for divorce. I would prefer a period of two years rather than one year. Proving any of the present five reasons for divorce must lead to more acrimony and bitterness and make the possibility of future relationships even more difficult.

I agree with the value of the passage of time. However, as I said, I would prefer a period of two years. I suggest that if the couple in disagreement have the benefit of helpful conciliation the conciliator should help the court by submitting a report to the judge who eventually makes a decision on the divorce. A conciliator would probably have had more opportunity of finding out what are the true problems and be able to judge and act accordingly. I do not know what proportion of marriages take place in church and registry offices. I say in the presence of the most reverend Primate that more emphasis should be put on the words in the marriage service: Those whom God hath joined together let no man put asunder". The officiating clergy who have the responsibility of seeing couples before conducting the marriage service should refer to those words and remind the young couples (they are usually young) about the problems that they might become involved with. I think that the clergy can do that. It has been suggested that families and schools should also follow that course. I go along with the family suggestion to this extent. If the parents of the couple to be married have good reason for thinking that the marriage may not work then in my view they would be abrogating their responsibilities if they did not inform the young people of those fears.

When two people marry they remain two individuals. In the fullness of time they are bound to have disagreements and quarrels. At the crucial time of their first disagreements the relationship would be much helped if more services were available when they need the friendly advice that they probably cannot get from family or friends. That help would be available from people who have their interests at heart and who are able to give advice. Although such services are necessary and urgent, I do not consider a new body of professional advisers to be necessary. In my view, people who have common sense, patience, broad shoulders, and who are married and have children of their own, can and do step in to provide from their own experience the necessary friendly word which can defuse the situation.

An excellent organisation, with which I am glad to hear the noble Lord, Lord Stoddart, is also involved, is Families Need Fathers. That name says exactly what it stands for—families do need fathers. The members of the organisation find that they can help, probably over a pint in the local pub, the many men who have lost not only their wives but their precious children as well. Such men can also lose the roof over their head, their job, their self-esteem and their pride. But after friendly help through this organisation it has been possible in many cases to bring couples satisfactorily together again. We need more unpaid organisations of that kind. Plenty of people in this country have wide experience of family situations and can help in such cases. They can help the young people involved.

We are fortunate in having the well-established Relate organisation to act as mediator and conciliator. These are trained people. In 1989 the organisation helped 55,000 couples and individuals. The organisation needs more money; a point which I draw to the attention of my noble and learned friend the Lord Chancellor. Who does not? On the other hand, as other noble Lords have said, we might be saving not only the future of the parents but also the future of the next generation. That is what is so important. At present, because of the shortage of staff the normal waiting time for an appointment is three months. By that time all is probably lost. I am sure that non-professional listeners can save a large number of marriages. That is the tenor of my few remarks today.

The report is a large and very important document. Although married couples and their problems are the reason for it, we must never forget that the welfare of the children is paramount. It is to the children and their future that legislation must address itself. I have spoken to many people going through a divorce. I have a feeling that they do not realise how vitally important both parents are for the nurturing and upbringing of their children. I can quote the case of a mother who absolutely refuses to give the father of their child access to him. He is now 14 and his parents have been divorced for the past six years. Unknown to the mother the boy goes round the corner and telephones the father once a week. The mother is now very surprised to learn that the child wants to become a submariner, like his father. She wants to know how the boy learnt of that. The boy has now had to tell her that he has been talking to his father behind her back every single week since the divorce.

I conclude with an important quotation from the Guardian of 2nd November 1990: Single parents are not the issue; divorce law is not the issue. The issue should be saving marriages. It is so much easier just to shell out blame but, if the government is to do the job that the Law Commission and the Lord Chancellor say needs to be done, if it is serious about a family policy, then marriages have to be supported and irretrievable breakdown prevented wherever possible. And that needs money and a shift in public and political attitudes".

6.35 p.m.

Lord Donaldson of Kingsbridge

My Lords, I found the report so interesting and good that I felt I must come to the House to say I support it. I realise that most of the reasons for supporting it have already been given but I put down my name to speak in case some noble Lords did not agree with it. My evening was saved by the fact that my noble and learned friend Lord Simon of Glaisdale, an old and revered friend, did not agree with it. His reasons for not agreeing with it, although understandable, are irrelevant.

My noble and learned friend said that the report did not deal with the problem of divorce. But it is not meant to deal with why people divorce. It is meant to deal with what happens to people when they feel they have to be divorced, which is an entirely different matter. The report seems to deal with that admirably. Other issues arising from it—issues such as why people are not nicer, why people are not more Christian and why we behave so frightfully badly—are best dealt with not through a Law Commission report but through careful, individual social work.

One or two noble Lords have spoken of the importance of the family. I have always believed that the family is the biological unit in society. For a number of years just after the war I was fortunate enough to work for the Pioneer Health Centre in Peckham, about which the noble and learned Lord and I spoke to each other the other day. We had there a family club. The members were families. Doctors were available, and social workers were fellow members. At the high point there were about 900 families. If something began to go wrong it was observed. It was sometimes possible to assist before a marriage went wrong and do something to put it right. That cannot be done by the law. What the law can do—and what it is trying to do, I think, admirably—is to stop the terrible things so eloquently described by my noble friend Lord Mishcon. He said that the present law does not do what it ought to do. I hope that, whatever else we think, we are in favour of going on with the proposals. The report was splendidly introduced by the noble and learned Lord the Lord Chancellor. He said that the issue was very difficult and that he was being very cautious. I do not think that he should be cautious and I do not see the difficulty. What the report says is clearly right.

I speak on this issue with confidence because I celebrate my 56th wedding anniversary in three weeks' time. So let no one think that I am speaking against marriage. I believe I am correct in saying that the most reverend Primate the Archbishop of York said that we should not have separation by consent. If I am wrong about that, I apologise. I not only believe that we should have separation by consent; I also believe that it should be the only acceptable reason. When consent is not possible, it will require the very elaborate system in the proposed Bill to ensure that nothing goes wrong. In the case of only one person consenting, the matter should be put back for a full year with an insistence upon conciliation, and so on.

My second point is one which has been made repeatedly. I refer to the extremely difficult question of conciliation. Bearing in mind the number of people concerned, it must be said that bodies such as Relate, about which we have all heard and which is an extremely good organisation, cannot undertake all the work involved. Such organisations must be given enough money to carry out the work. It is no use saying that many other organisations need money. That is true. But if you want to make such a system work, you must ensure that there are adequate funds. After all, this is a fairly cheap job as social workers are all under paid. It is not difficult to obtain such people to do the work. However, there must be enough money to ensure that the work is done properly.

My third point concerns children under the age of 16 years. I am perfectly clear in my mind about the fact that divorce and separation are far more serious when the children are below the age of 16. I agree with my noble friends on that issue. That is not to say that you should prevent divorce or separation when the children are under 16. A bitter and quarrelling husband and wife are as bad an influence on the children as would be the case with a one-parent family.

It is all a question of degree. If two people really dislike one another—and those are the couples we are now considering—they can make the upbringing of their children worse than would be the case if there was only one parent. Therefore, one should not refuse the possibility of divorce even in such circumstances. However, far more money should be spent upon trying to produce conciliation.

I have relations who separated after their children had reached the age of 16. The children seemed to me to be entirely unaffected by what happened. Indeed, they are very fond of both parents. I do not believe that the experience has hurt them in the least. However, if the process had been carried out when they were four or five years of age, I am quite certain that it would have been ghastly for them. I do not have much else to say, but I should like to stress that I believe that the proposal which has been put forward is a very good one. It is something for which we have all been waiting. I hope that we do not have to wait too long before the legislation is introduced. I also hope that, when we have it, we shall all willingly support it.

The Earl of Longford

My Lords, I wonder whether my noble friend is aware that I came into the House especially to hear his speech. I must tell him that I am most disappointed that he concluded his remarks so soon.

Lord Donaldson of Kingsbridge

My Lords, I very seldom receive such a compliment from my noble friend.

6.43 p.m.

Lord Ashbourne

My Lords, in the introduction to its report the Law Commission begins by saying, There is widespread concern about the current prevalence of divorce in this country and the consequences which this can have both for the couple concerned and for their children". That statement is manifestly correct as we have the highest divorce rate in the European Community and the highest rate of increase, while 27 per cent. of all children are born outside marriage. Surely, are those not clear signs of national moral decay?

Against that background, should not the aim of the Law Commission's report have been to buttress the stability of marriage? The Law Commission, however, does not agree; its implied aim is to make divorce "better". As the commission says in paragraph 3.4, for our predecessors, it was important that divorce law should send the right messages, to the married and the marrying, about the seriousness of permanence of the commitment involved". That apparently no longer applies, because the Law Commission now recommends that divorce should be granted on filing a statement of marital breakdown, followed by a period of 12 months, thus reducing the status of marriage to a terminable contract.

A recent public opinion survey shows that there is no great support for change of the present divorce law. The survey found that 84 per cent. of respondents were in favour of, divorce for fault; i.e., where one party can show adultery, intolerable behaviour or desertion by the other". That finding was confirmed by a Gallup poll published in the Daily Telegraph on 11th June 1990 which found that the majority was not in favour of "no-fault divorce". Yet the Law Commission recommends that all consideration of fault should be removed from the divorce and that a decree should be granted on the expiration of one year from making a statement of marital breakdown. I humbly submit that that is a grave mistake, for does there not have to be a moral base—that is, a sense of right and wrong—upon which the stability of family life, the law and the cohesion of society depend?

It is proposed in the report that once a statement of marital breakdown has been lodged with the court, the court should have power to make final orders relating to the financial provision for children and spouses together with property adjustment orders. Once there is a property adjustment order—usually a transfer of the matrimonial home—there is in effect a divorce because the break up of the home is central to the divorce process. It is true that the orders will not usually take effect until after the year of waiting has expired and a decree has been granted. Nevertheless, few marriages will survive the making of the order and the applicant will, in effect, have a divorce on demand.

Moreover, the bitterness of most divorce proceedings will simply be transferred to the issues of custody, financial provision and property adjustment. Great stress is laid in the report on the importance of couples seeking counselling and resolving their disputes by conciliation; but it is doubtful whether both parties will voluntarily seek conciliation. It is not proposed that the law should compel them so to do.

I am worried about the cost of these proposals. At present the vast majority of divorces are granted on affidavit evidence with neither party attending court. However, under the new proposals, the court will have a duty in all cases to hold a preliminary assessment, to monitor progress on the arrangements being made and to make any orders or exercise any of its powers which can appropriately be exercised at that time. Will that not impose a heavy additional burden on already overworked county courts?

It is also proposed that the court will have power to extend the period of one year before announcement of the divorce decree, by ordering postponement, if arrangements for the children and financial provision have not been made. Again, that will place a heavy burden on the court. I should like to ask the noble and learned Lord on the Woolsack whether he will be kind enough to inform the House of the estimated cost of the Law Society's proposals which must, I presume, bear heavily on the Government's thinking in these stringent times?

The current ground for divorce is "irretrievable breakdown". That is proved by one or more of five facts; namely, adultery, behaviour, desertion, two years' separation with consent or five years' separation. It is rightly pointed out by the Law Commission that almost three-quarters of all divorces are based either on adultery or behaviour. The noble and learned Lord on the Woolsack gave a lucid exposition of this in his opening speech. Thus, in most cases, the divorce suit commences as fault based. However, legal aid from public funds is generally not granted to defend a divorce suit and that makes it extremely difficult in practice for the suit to be defended by a party, and heard by the court.

That inability by the parties to air their grievances leads to a sense of injustice. The Law Commission's answer to the problem is to remove issues of fault entirely. This is contrary to public opinion and, much more important, contrary to Holy Scripture, which clearly states in many places that marriage is a divine institution. Surely we should be guided by scripture in the formulation of any laws governing the marriage bond or its annulment. An alternative approach might be to enable the parties to have their allegations of fault heard by the new matrimonial procedures court, thus restoring a moral base to the proceedings. I commend this alternative approach to your Lordships.

6.51 p.m.

Lord Robertson of Oakridge

My Lords, it is with great diffidence that I take part in this debate, as I am not a lawyer or a specialist in the field of matrimony. I do so because I am interested in protecting the structure of the family. I welcome the opportunity for us to debate this report. I have studied it with great interest: it makes a good case for the changes it recommends. However, I am a little uneasy that we seem to be moving further away from biblical principles which, as I understand them, allow divorce when there has been serious misconduct.

I have received a number of letters on this subject. My mind is still open, but it is extremely rash to go against biblical principles. I appreciate that the report's proposals would reduce the mud slinging and bitterness between divorcing couples, and that must be good. My worry is that it might be too easy for a husband or wife to initiate divorce proceedings and to set them in motion by making a statement of breakdown, possibly in the aftermath of a row or in a fit of depression. Once the process has been set in motion it is difficult to stop.

The main burden of what I want to say tonight is that the report covers only one aspect of the problem of marriage in our society. Indeed it sets out to deal with the symptoms rather than the disease itself. This is not a criticism of the report: I am just stating a fact. Our main aim should be to increase the number of successful marriages and thereby decrease the number of divorces. I should like to offer your Lordships my thoughts on this subject under three headings: the need to enhance the status of marriage; the need to help people to prepare for marriage; and the need to sustain existing marriages.

As regards the status of marriage, it is plain that marriage is under constant attack. In our society we are often encouraged to get as much pleasure as possible out of life, regardless of the effects on others. Reflecting this attitude, the media tend to portray marriage as dull and frustrating. Adultery, on the other hand, is often presented as normal and exciting. We in Parliament, and especially the Government, can do much to influence attitudes towards marriage. However, it is not enough for us to pay lip service to it, if the laws we pass are against it.

For example, the ending of discrimination against married couples for tax relief on mortgages was to be welcomed but when we considered the embryo Bill last year we made a decision which I feel was to be deplored. It did not restrict fertility treatments such as IVF and AID to married couples. In effect, we agreed to allocate money and resources to the bringing into the world of children with possibly only one parent.

Next, the need for marriage preparation. Only a very small minority of couples are able to receive help in preparing for marriage. Many do not get the chance to consider thoroughly the issues involved in a marriage relationship, such as how to manage finances and to avoid getting into debt. They should also consider housing, the sexual relationship, the bringing up of children and, perhaps above all, the need to communicate with each other openly and honestly at all times. I believe that the churches could do more in this respect, and particularly if the hard-pressed clergy were to enlist the experienced laity to help them. I would ask the Government to see if more could be done in schools and whether there is scope for increasing the availability of pre-marital preparation courses.

Thirdly, the need to sustain marriages. In that respect the early years are of great importance. Over the last two years the charity Care for the Family, with which I am associated as a trustee of the parent organisation, Care, has run seminars under the title Marriage under Pressure. Those seminars have been attended by a cumulative total of 10,000 people, and they have disclosed a huge yearning among couples to improve their marriages and to prevent serious difficulties arising. I would ask the Government to review whether they are doing everything possible to encourage initiatives such as these seminars. Furthermore, if the recommendations of the report are carried out there will have to be an expansion of counselling and conciliation services. I should like to suggest that counselling is made available to married couples before trouble arises as well as after.

Marriage is a God-given institution which is an essential part of any well-ordered society, and it deserves our fullest support. Children have a right, second only to the right to life, to have two parents, committed by marriage to each other and to their children. Therefore, at the same time as we try to improve the procedure for divorce let us do all we can to enhance the status of marriage, to help to prepare people for it and to sustain those marriages which are in existence. The possible benefits are immense.

6.56 p.m.

Lord Coleraine

My Lords, I asked to speak just before the principal speakers who are winding up the debate this evening because I wanted to listen before I spoke. I have done so and I have heard some notable speeches. Only time will tell whether I have profited from what I have heard.

I have had some practice as an English divorce lawyer although I certainly would not begin to say that my practice matched those of the noble and learned Lord, Lord Simon, the noble Lord, Lord Mishcon, and the noble Lord, Lord Meston, who is shortly to speak. What was significant about my practice was that it ceased more than 20 years ago. Under the fault-based system, I used to take undefended divorces and act as standby lawyer in my firm for defended divorces. I believe that the work of the divorce lawyer is of prime importance to divorce and to marriage.

I ceased practising that kind of law when the new legislation came in. I said then that I would not touch it again, and I have not done so. It seemed to me then and it seems to me now that the concept of irretrievable breakdown is a complete fudge. I very much suspect that if it is carried forward into the future, the fudge will be replicated.

The history of divorce law over the past 25 years has been deplorable. I should like to feel that it is just a deplorable interlude, but I very much doubt it. I doubt whether Law Commission Report No. 192 will necessarily bring the interlude to an end. I think we are unrealistic if we expect too much from the Law Commission's report, given that it was the predecessors of the Law Commissioners who have reported now whose report 22 years ago was in part responsible for the present mess. I think it is questionable whether divorce law and its reform is a law reform which properly ought to be handed to the Law Commission to look at. I doubt whether it should be within its remit.

One of the problems is that when a Law Commission report is received—and I think I detect some indications that this applies now —people listen to it with their critical faculties to a large extent suspended. In my opinion, a more useful report would have resulted from an inquiry whose members included representatives of various shades of opinion and disciplines from the churches and other organisations involved in the marriage field. That would have given the possibility of dissent within the report which would have been useful. I give full credit to the manner in which the Law Commission in its report has indicated where dissent arises. But that is not as good as allowing those views to be expressed and to form part of the decision-making process itself. What we needed was a less monolithic report.

I should like to join other noble Lords who have agreed with this aspect of the report supporting the concept of divorce as a process over time. That is something that should be brought into the divorce law, because it should be possible for parties who are divorcing to remain together while the divorce is going on, both to aid the divorce process and to increase the possibility of reconciliation taking place.

In that respect, I was particularly struck by the words of the noble Lord, Lord Mishcon, who drew attention to the effect of the present system on people who cannot just part, cannot just move out. The husband cannot just leave the wife and the only way that this problem can be resolved is by ouster proceedings, which are a deplorable side aspect to the present state of the law.

The report identifies two basic objectives of a "good" divorce law. The commission sees its objectives as having been set out by its predecessors in their 1966 paper and still commanding widespread support. I agree with the Law Commission. The objectives are, first, the support of marriages which have a chance of survival; and, secondly, a decent burial with the minimum of embarrassment, humiliation and bitterness of those that are indubitably dead.

But I believe it is also a proper concern of the law, and a proper objective in a good divorce law, that there should be a good marriage law if only to make divorce less likely. I do not agree with the views expressed by the noble Lord, Lord McGregor, which I understand to be that by changing the divorce laws you cannot make parties stay together. I believe that that is against the tenor of the commission's report. The report is written on the basis that one of the effects of a good divorce law will be to make divorce less likely, and that is one of the respects in which I am striving in my speech to support the views of the commission.

In paragraph 3.4 of the report I read, For some of our respondents, as for our predecessors, it was important that divorce law should send the right messages, to the married and the marrying, about the seriousness and permanence of the commitment involved". I tie that comment up with my suggestion that a good divorce law deserves a good marriage law. Helen Oppenheimer is associated with that view, and she was a member of the then Archbishop of Canterbury's group which produced Putting Asunder, as is the national campaign for the family trust. This is a view which seems to be not stressed enough in the report.

It is on that basis that I view with very considerable alarm the report's proposal that marriages should be capable of being ended by one party, without the consent of the other, almost from the moment of marriage. The significance of that, which does not seem to have been grasped universally, is that the report is misnamed The Ground for Divorce. What the report should be called is "Divorce without Grounds".

The most reverend Primate who has left us, as he said he would, missed that point. He strained after the gnat of divorce by consent, but, so far as I can see, completely swallowed unilateral divorce. If this is carried through into legislation, it is carrying serial bigamy to the extreme. I should certainly have thought that anyone who was prepared to act under this kind of legislation might, in the interests of the family and the children of the family —and I put this not entirely frivolously—well be served by bigamy itself.

Lord Donaldson of Kingsbridge

My Lords, if I may interrupt, is the noble Lord saying that without the consent of both parties divorce should be impossible? That is what I understood him to say.

Lord Coleraine

No, my Lords. Under the present law a divorce without the consent of both parties is possible after, I think, five years.

Lord Donaldson of Kingsbridge

My Lords, under the new law.

Lord Coleraine

My Lords, we are not talking about new law. We are talking about the Law Commission's proposals, which I believe are that, at any time after the first year of marriage, any party can say that the marriage has broken down and in a year will be divorced. That is not satisfactory.

If that is what we are to have by way of divorce law—and I hope that we do not have it—it is the kind of law which reminds me of Groucho Marx, who said that any club which would have him as a member would not be worth joining. Any marriage based on this kind of law would not be worth taking on.

7.6 p.m.

Lord Meston

My Lords, as has been said, the Law Commission has produced an impressive and compelling report, even by its own very high standards, and I found it very hard to disagree with any of it, whether in its analysis of the past and of the present, or in its suggestions for the future. I certainly had my critical faculties positively bristling when I read it; but every argument that I mentally put up against any particular proposition in the report, I found knocked out in the next sentence or two. It is also good to see how the Law Commission has built on the Booth Committee's report of 1985.

The present law of divorce enacted in 1969 was a compromise between old fault-based divorce law and the desire to end irretrievably broken marriages. For a few lucrative if not happy years thereafter counsel were still employed to draft behaviour petitions. The trick was, and still is, to get as many opprobrious adjectives and adverbs into eight or so sub-paragraphs.

However, since 1969 there has been procedural tinkering, such that most divorcing people have their marriages now dissolved by a judge collectively pronouncing decrees at the start of the day's business, in a courtroom probably containing only himself and the clerk who has read out a list of names of those to be divorced. I do not believe that that can do anything to assuage the sense of injustice to which the most reverend Primate referred. If I may in his absence mention the point to which he referred in the commission's report, about fault sometimes being retained for ancillary cases involving children and finance, I do not understand the Law Commission to suggest any change to the existing practice in that respect.

Fault is now confined to a few cases involving children and finance because the law has come to recognise the reality. The unimpeachable parent was one of those mythical figures like the man on the Clapham omnibus; and certainly in the Family Division nowadays the unimpeachable parent has long since been abandoned as an ideal.

Likewise, in financial and property cases conduct is very rarely allowed to be raised, for the very good reason that it is almost impossible to convert misconduct into financial terms in a fair way. How do you quantify the effect of being hit over the head with a frying pan every Friday night for five years as opposed to being hit over the head twice a week for 10 years? It is not possible, and it is unrealistic for the courts to attempt to do so.

It is certainly correct, as the report says at paragraph 3.46, that it is impossible to characterise any particular divorce system as too easy or too difficult. I do not believe that by making divorce less painful you are necessarily making it easier. For some the existing system probably is too easy and too quick, and it is ironic, with respect to the noble Lord, Lord Robertson of Oakridge, that it is the fault-based divorce petitions under our existing system that go through the quickest and are the more difficult to stop.

For other people it is undoubtedly too hard and too difficult to get a divorce, especially if they are compelled to leave home and stay separate for five years before they can divorce and resolve their finances and property with some finality. Faced with that prospect the temptation is to cobble together a behaviour petition—and that temptation is almost overwhelming—that will undoubtedly contain allegations which are either trivial or exaggerated, or a mixture of both. That produces a system that, were A. P. Herbert alive today, he would undoubtedly parody as he parodied the old system in his book Holy Deadlock.

There is in paragraph 2.11 of the report an echo of the remarks of A. P. Herbert, whose Mr. Justice Wool said: The English law of divorce, by its insanity, encourages lying. Everyone who comes into this court is presumed to be lying until the contrary is shown. Out of deference to the noble and learned Lord I should complete the quotation of that learned, if fictitious, judge, who went on to say: In Scotland the law encourages the parties to tell the truth. That said, I do not feel qualified to follow the noble Lords, Lord Molloy and Lord Stoddart of Swindon, in praising the Scottish system so far as it concerns property and finance. I am not qualified to do so. I know how the English system works; and for every half-a-dozen people who say that it is unfair on husbands, I can think of half a dozen who will say that it is unfair on wives, but I certainly know that given a choice a husband who can petition, or be divorced, in England or in Scotland will head for Edinburgh.

The defended divorce is a time-consuming, expensive and damaging anachronism. An intransigent or insensitive husband—and it is not always a husband—unwilling to face the financial consequences of divorce and the reality that the marriage is in trouble, if not over, can defend a petition. Strictly speaking, he may be perfectly entitled to do so and he may succeed, particularly if the allegations of misbehaviour are weak, badly pleaded, or, conversely, exaggerated. I have a recent example of a case of that sort in which the minor children were recruited as innocent spies on one side and the adult children were recruited as witnesses on the other side. It was almost too distressing to contemplate.

The commission report at page 5 cites a number of reported cases in which the courts have been compelled to dismiss behaviour petitions. I have an uncomfortable personal recollection of one of them, and even now find it hard to think of the misery still being endured for all I know by the family forced to remain together in two camps under one small roof until the five-year period has elapsed. The children pass their father on the stairs not speaking to him, and he not speaking to them; and that is a situation that will go on year in year out until the divorce court can intervene.

The assets, which are hard earned and barely adequate to keep one household let alone two, should not be squandered in the almost invariably destructive and negative exercise of a defended divorce. Not only are they destructive, they occupy the time of the courts who should be dealing with more deserving cases.

I suggest that the Law Commission was right in preserving irretrievable breakdown as the sole ground for divorce, but doing away with vestiges of the old law. That said, I do not entirely follow the noble Lord, Lord Mishcon, into suggesting that there should be a possibility of shorter periods for the divorce process in exceptional cases. On that I find paragraph 5.6 of the Law Commission report persuasive. The noble Lord referred to cases of exceptional hardship, and I think by inference of exceptional depravity, which to my mind had echoes of the pre-1984 law where you had to show one or other of those two things to be enabled then to have leave to present a petition within three years of the marriage. For my part I would find that a retrograde step.

Lord Mishcon

My Lords, the noble Lord is very kind to give way. Would he agree that in one of the cases that I cited; namely, where another stable relationship outside the marriage has occurred and a child is about to be born, the court would have no discretion even though the children had been looked after and financial arrangements agreed? The court would have no discretion but to see the child born out of wedlock, whereas if they had the discretion, they could see that the child of the other relationship is born within wedlock because the parties could then marry.

Lord Meston

My Lords, I see the force of that argument. One also sees the converse argument that the desire to remarry can in itself become a blackmailing weapon, or an excuse for a blackmail. I put it in exaggerated terms. Perhaps those considerations are less pressing in view of the recently-enacted changes on the status of children born out of wedlock, and the potential for legitimising a child by a marriage after that child has been born. I certainly do not have hard views on that aspect of it. What I seek to avoid in that area is a return to fault-based examination of exceptional hardship or exceptional depravity, which I do not think would be helpful.

I also take the view that it is correct that a change in the law alone will not be enough to change the realities of human behaviour, or the pain of marriage breakdown. Divorce will remain prevalent and people will still want to fight yesterday's battles. Contrary to the view of some, most lawyers—certainly most responsible ones—will try hard to keep their clients out of court, and to save them the cost, the time, and the acrimony of contested proceedings as well as the uncertainty of what the court may decide.

The Law Commission seems realistically to recognise that if a couple could agree about everything they probably would not be divorcing in the first place. In some cases the comparative ease of divorce itself increases the desire for a cathartic day in court over something, whether it be the children or the house. Almost every matrimonial lawyer you meet has his, or her, story about three hours negotiating about the destination of the toast rack after everything else had been agreed.

If changes of substance and not just of form are to be brought about, they will only come with the best use being made of the period of a year recommended by the Law Commission. It is right that financial matters and matters involving the children should no longer be seen as ancillary to the divorce but as central to the process of rearranging the family in the best way for the future. The parties will need a structured timetable; matters should not be allowed to drift. People who do not want to reveal their assets should not be allowed to play for time. With respect to the noble Lord, Lord Molloy, as I understood it, that is the true function of Rule 77(4) of the Matrimonial Causes Rules.

Lord Molloy

My Lords, the aspect that I quoted arose because at the first hearing only the lawyers from one side appeared. The solicitor and barrister on the other side did not appear at all. The matter went on and on and the man had no idea about the law. In my judgment he was greatly let down by the offending lawyers. The solicitor and the barrister who failed to turn up ought to be brought before a disciplinary board of the legal profession. Does the noble Lord agree?

Lord Meston

My Lords, that is entirely another matter. I shall not go into the merits of the case, the facts of which I find difficult to comprehend.

Reference has been made to whether the period of a year is adequate. One has to face the fact that a year is a long time in the life of a child. Parties will need to be encouraged to reach agreements with which they can live, both in the short and the long term. One of the problems of the present system is that divorced people take too much unfinished business into subsequent marriages, imposing strain on those marriages and/or leading new spouses to feel that they must take sides. However, a new spouse can, in the best of worlds, be a helpful influence.

Like all noble Lords, I welcome the emphasis on conciliation. I wish to raise a few points of caution as did the noble Lord, Lord Mishcon. The first is that the procedures must enable the conciliator to be properly informed in order to have a clear view of the issues. Secondly, the imperative to agree must not overbear the weaker party—usually the wife—to reach a solution against her better interests. Thirdly—and this point was made forcibly by the noble Lord, Lord Mishcon—the facilities and funding must be available if conciliation is to achieve everything we wish.

I do not quite agree with the noble Lord's description of how conciliation works at present, although I suspect he was referring to Somerset House. I agree that the corridor there (which is barely adequate for the professionals who have to conduct other business) is not the best place for conciliation appointments for children. I have heard similar stories about the room in which the children have to wait. I have attended conciliation appointments at Somerset House and my understanding is that the system works well. The welfare officer is present at the outset rather than after a time. Given the constraints, the system can work extremely well. Conciliation is not a panacea. I do not apologise for mentioning that we must be sure not to lose the expertise of the Family Division judge and district judges.

I welcome the thought given to the need to balance the pressures which may affect the bargaining position of the parties in the period of a year. Quite often, parties complain that they are being blackmailed. It is right that a widow's pension rights should be considered before the marriage is dissolved. It is equally desirable that one party should not be allowed to use the other's desire to divorce and remarry to extract coo high a price in financial terms.

I also welcome the new proposals for more flexible financial and property adjustment powers. I do not wish to enter into technicalities at this stage. I should like to see an express power to make interim lump sums, for example, so that people can put down a deposit on a new house. That can break a log jam in rehousing, particularly when the property market is stagnant. I also hope that the proposed power to vary property adjustment may be useful; but it should be used sparingly, not storing up uncertainties and potential future litigation.

Finally, the Law Commission has produced a draft Bill. We understand that it may be some time before it comes before Parliament. It will quite properly require important subordinate legislation. In that case, I hope that consideration will be given to producing draft rules before the Bill is presented to Parliament.

I do not believe that we can put the clock back. I respect the views of those who want a fault-based system, but putting divorce off until the children have reached 16 can be a recipe for misery. If one considers something more civilised, choosing between a statement that one's marriage has broken down irretrievably or the old system which involved trips to Brighton hotels and inquiry agents lurking in the bushes, I know which I prefer.

We shall not arrest the trend of marriage breakdown by mere legislation. I prefer to consider the subject more optimistically. Marriage remains popular; two-thirds of marriages do not end in divorce. In part, divorce is the product of unrealistically high expectations of marriage. This is not confined to young people; but, as the noble Lord, Lord Molloy, stressed, it applies to more elderly couples who may forfeit pension rights and have to sell up the homes which they had intended for their retirement.

Like the noble Lords, Lord Mishcon, and Lord Stoddart of Swindon, I hope that as part of this process we should consider education before marriage which will enable couples, young and old, to examine the realities and responsibilities that they are taking on.

7.26 p.m.

The Lord Chancellor

My Lords, I am grateful to all noble Lords who have taken part in the debate. Although I do not usually go in for prophecy, I believed that the views to be expressed would be somewhat varied, and they have been. I assure noble Lords who have spoken that all they have said will be taken into account in considering what we should do on this important matter.

The noble Lord, Lord Donaldson of Kingsbridge, advises that we should go ahead quickly. Caution is important if we are to achieve the kind of consensus on the matter which is desirable. It may be necessary to have a fuller understanding of some aspects of the Law Commission's report before that consensus is fully achieved. With its consideration of these matters, the debate has greatly assisted us.

A number of important suggestions have been made for variation of the Law Commission's proposals. The noble Lord, Lord Mishcon, spoke of a matter to which the noble Lord, Lord Meston, referred. He wanted exemption from the 12-month period in a defined class of case to make it subject to judicial discretion, perhaps be limited in some way, or a similar provision. He instanced the case of a new stable relationship with, as a result, a child on the way. That should be considered. The Law Commission examined the proposal but one of the difficulties is that one does not want that to be a route for obtaining a quick divorce because it would put a premium on such behaviour. On the other hand, the suggestion is worthy of careful consideration.

My noble friend Lady Macleod of Borve would like the 12-month period extended to two years. The Law Commission considered that but decided that it was a difficult judgment. It came down, for the reasons it had expressed, in favour of one year. The most reverend Primate the Archbishop of York wanted greater powers to postpone divorce. He was worried that a power to make orders about children and finances during the 12-month period might undermine the purpose of the cooling off period. I also see the force of that. Another way of looking at it is this. If we are to face people with the consequences of the divorce—which is one of the purposes of the 12-month period—the more defined those consequences are, the more people will understand them.

One of the consequences of divorce which is often not taken into account until it is too late is the effect on the financial position of the parties. If that could be brought home to them in a concrete way it might just be enough to turn them back to one another again. I believe the noble Lord, Lord Molloy, referred to the fact that some people who have obtained a divorce have lived to regret it. If it is at all possible for couples to repent, one hopes that that happens sufficiently early to remedy the situation rather than after a divorce has been obtained.

My noble and learned friend Lord Simon of Glaisdale has great experience in these matters. He made a number of suggestions. He suggested that a rule could be passed to prevent divorce occurring when couples had children under 16. One has to remember that it is the breakdown of the relationship rather than the divorce itself which is harmful to the children. I merely express my own view on this matter, but I personally take the view that it is vitally important that any divorce law should put the children first. Divorce laws should aim to protect the children from harm of the kind that we know they can suffer during a divorce. The thought behind the suggestion of my noble and learned friend is one that commends itself to me, but, I regret that it does not appear at the moment that the provision would necessarily have the result that my noble and learned friend had in mind.

In commenting on various points made in the debate I should point out that that does not mean that I shall not consider them further. I shall obviously want to give a considerable degree of thought to all the proposals that have been made. A number of noble Lords mentioned the financial provisions involved in divorce. Some noble Lords gave particular praise to the Scottish system in this connection. Your Lordships will appreciate that it would not be particularly appropriate for me to comment on that. However, I remind the House that part of the programme for the review of family law that we have in mind will consider those provisions. Some of those provisions are considered in the Law Commission's report.

A number of noble Lords have mentioned the organisation and funding of conciliation and counselling procedures. Obviously those matters must play a part in any arrangement that is to be suitable for divorce proceedings. It is obvious that when we consider our position on this matter we shall keep those considerations in mind. My noble friend Lord Ashbourne asked me whether those provisions had been costed. I can tell my noble friend that that has not yet been done. I do not wish to do that until we obtain a much clearer idea of the proposals that we intend to put forward. At the moment the proposals are those of the Law Commission. They have been set out in great detail in the report and they are accompanied by a draft Bill, but they are still subject to detailed consideration before any further progress is made as regards legislation.

My noble friend Lord Coleraine doubted whether the Law Commission was the best organisation to conduct the review we have been discussing. I believe that over the years the Law Commission has developed considerable expertise in analysing issues where people hold different points of view. The report thoroughly analyses the responses to the consultation and indicates the areas of disagreement and the questions that have been raised. While there are various other ways in which the review could be conducted, the Law Commission's report indicates a structured and generally acceptable way of analysing these matters. Holding a debate on such matters is extremely helpful, and this debate has been so. If and when legislation is proposed further consideration will have to be given to these matters and ultimately Parliament will have to consider them with great care.

A number of points have been made which are not immediately directed to the report. The noble Lord, Lord McGregor of Durris, raised the question of the arrangements for, and the organisation of, a service for supporting the courts. One has to be careful in this area and not try to aim too high at one goal. We have been able to make considerable progress in connection with the arrangements for the implementation of the Children Act in obtaining co-operation across departments and across disciplines in respect of the training of magistrates and judges with other professionals. We have arranged for this training to be carried out in groups so that the different professionals can see the point of view of fellow professionals in other disciplines. We have also made provision for the setting up of committees to monitor these arrangements and to report to Ministers who are concerned with these matters.

We have to handle existing cases with the existing system but try to improve it at the same time. However, in the nature of things the resources that are available to us are necessarily limited. I hope that the way forward as stated in the Children Act will prove successful. I believe that way is to take steps that we can accomplish and for which the resources can be provided. We should assess the success of those steps. If they are reasonably successful, we can then move further forward. We are embarked upon that process and I hope it will be successful.

Those are the main matters to which I wish to direct the attention of your Lordships. I may be repeating myself unnecessarily but I wish to make it absolutely plain that the mere fact that I have commented on a proposal does not mean that I do not consider it worthy of further consideration. We certainly wish to consider these matters with great deliberation. The noble Lord, Lord Meston, referred to some detailed points. We are anxious to receive opinions on such detailed points. I intend to have public consultation on these matters and receive views on the reports that have been written.

As I sought to emphasise at the outset, these are not proposals for divorce by consent. The courts have a power —the Law Commission proposes that this power should continue—to refuse a decree altogether in the event of grave financial or other hardship. That is certainly inconsistent with the idea of divorce by consent. The courts retain that power, though consideration may be given to the precise terms in which that power should be expressed. The report contains some interesting comments on the way that power may impinge on, for example, difficulties in certain communities. However, the fact that that power of the courts is reserved makes it clear that we are not talking about divorce by consent.

As I understand the position, the Law Commission is aiming at a situation in which notification of breakdown would be given. That is the first stage. Then the year that has been referred to is devoted to ascertaining whether that breakdown is irretrievable. The purpose of the year is to try to retrieve the marriage, if possible, and to put it back on its proper course. I believe that my noble and learned friend Lord Simon of Glaisdale was possibly not giving full effect to the aspirations of the Law Commission in saying that it did not even pay lip service to the idea of a lifelong marriage. It set out as one of the objectives of a good divorce law the saving of the marriage. A marriage that is saved, presuming that it is saved for long enough, will be terminated only by the death of one of the parties.

Lord Mishcon

My Lords, the noble and learned Lord is most kind to give way. I know that on important matters of this nature he wishes to be correctly reported. If I am wrong he will reprimand me. He has just talked about the Law Commission, divorce by consent, and not permitting divorce. Does he not mean that the court would have the power to refuse divorce which is requested unilaterally?

The Lord Chancellor

My Lords, it covers that aspect also. I wanted to answer the point about divorce by consent. The Law Commission proposed that the court should have power to postpone the divorce or to refuse divorce if there would be grave financial or other hardship. The noble Lord may think that it would be very unusual for the court to exercise that power if both parties consented. It would be very hard for the court to see hardship which was not seen by one or other of the parties. I am simply pointing out that the principle behind the proposal recognises what the most reverend Primate recognised; namely, that the public have an interest in these matters and the ultimate power of the court is a recognition of that interest.

Lord Simon of Glaisdale

My Lords, I am sorry to interrupt my noble and learned friend. However, is he right in saying that the limited power of the court to withhold a divorce in cases of exceptional hardship is inconsistent with divorce by consent? If there is divorce by consent, presumably the parties who have consented are content with the arrangement. Is it not a very limited exception to the fact that the proposal allows divorce at the unilateral volition of one party?

The Lord Chancellor

My Lords, it certainly has that effect. It prevents it being said that the proposals have the effect of allowing divorce at the insistence of one party against the will of the other. That is the purpose. However, the most reverend Primate indicated—and the same point arose in the speech of my noble friend Lord Ashbourne—that the recognition that the court, on behalf of the public, has an interest in the marriage is deeper than the idea of a private contract. The interest of the court in the matter is inconsistent with the view that there is a private contract which the parties can cancel at their own will.

The other point in that connection is that the time applies whatever the attitude of the parties, subject to consideration of the proposal of the noble Lord, Lord Mishcon.

I accept that if both parties consent, the idea that the court would find grave hardship is a fanciful one, but it is the theory that I seek to adduce now.

On Question, Motion agreed to.