§ 3.39 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that this Bill be now read a second time.
I should like to begin this important debate by reaffirming my commitment and that of the Government to marriage. I personally believe that it is a divinely appointed institution and this Government will not do anything to undermine it.
The provisions of the Bill have been brought before your Lordships against a background of long and detailed debate and consultation, not only about the problems with the present divorce law and how the situation might be improved but also about the need to support marriage.
What has emerged very clearly from the recent debate is a very grave concern about marriage and the need for greater emphasis on and support for marriage. This debate has been as much about marriage as it has been about the finer details of a divorce system. This must be right because we cannot look at marriage and divorce in isolation from each other. The Government firmly believe that they have a role in supporting the services available to help not only those whose marriage is in difficulty but also those considering entering marriage. This is why the Government provide funding to marriage guidance and marriage research organisations.
The Government are, however, concerned that the best use is made of the resources available to support marriage. That is why we have also set up an inter-departmental working group on marriage. This 701 group seeks to identify the needs of couples in relation to preparing for marriage and for guidance and support during marriage; the range of services currently available in this area, the extent to which their existence is known and how this knowledge might be increased; and how existing resources might best be used to meet the needs of couples who are considering marriage or whose marriage is in difficulty.
Under the provisions in Part I of the Family Law Bill, the ground for divorce would remain the irretrievable breakdown of marriage. At present, it is possible to establish breakdown by producing evidence of adultery, behaviour, desertion or separation. None of these requires the conduct in question to have been the cause of the irretrievable breakdown of the marriage. The court's judgment proceeds on the basis that the marriage has broken down irretrievably. At present, therefore, the real reason for the breakdown of marriage may have little to do with the alleged fault which forms the basis of almost 75 per cent. of divorce petitions. The law makes no attempt to investigate what really made the marriage break down. This is not the fault of the judges, the courts or the lawyers. In an intimate relationship such as marriage, it is usually very difficult to obtain evidence on which a human tribunal would come to a fair judgment on that question.
It is a mistake to believe that the present law underlines in any way the idea of responsibility by the use of fault in the ground for divorce. In fact the reality is that the only relevance of fault is to obtain a quick divorce, and that seems to me to run quite contrary to the idea that the concept of fault fortifies the institution of marriage. How can it be said that a requirement to make allegations of fault provides the law with an underlying moral base when in fact to commit a wrong—such as adultery—actually means that you can be divorced in less than six months and so be free to marry again? And how can it be said to support marriage that such a person be free to remarry without having first sorted out all the arrangements consequent upon divorce and so fulfilled the obligations and responsibilities undertaken when the parties married and perhaps became parents? These are questions which I have asked myself many, many times. I have tried hard to see how fault can therefore be said to provide a moral basis for marriage. These are questions which I would suggest to your Lordships are worthy of consideration.
Not only do allegations not need to reflect the real cause of the breakdown but they are often exaggerated and usually uncorroborated. This leads to bitterness and resentment on the part of the accused spouse resulting in conflict which poisons the atmosphere and is very damaging to children. Such an atmosphere cannot help a couple consider whether divorce is the right course of action or indeed try to save their marriage. Even if the marriage has broken down irretrievably, how can such an atmosphere help the couple consider the consequences of divorce and make workable arrangements for the future for their children? I see no merit, either moral, intellectual or practical, in retention of the requirement to make allegations of fault in order to establish breakdown and do so quickly.
702 It is of course vitally important that marriages are not dissolved if they could be saved and therefore important that the mechanism used for testing breakdown is one which we are satisfied will do just that. The provisions in the Bill are that the breakdown would be established by the passage of an absolute period of time without that period being abridged in any circumstances. The provision would require a person wishing to initiate proceedings to attend a compulsory information session before the period of time starts to run which might lead to divorce. This will not only mark the seriousness of the step being taken but also ensure that essential information is conveyed to people contemplating divorce in the most effective way possible. Information provided will include information about the various services available to help people, including marriage guidance, mediation and legal services. I believe that this will be done most objectively and effectively if done by those who provide the services. It will also deal with alternative options to divorce and the consequences of divorce for the parties and their children. Regulations will provide for exceptions to personal attendance—for example, disability—when alternative arrangements will be made for the information to be conveyed. It is not intended to force spouses to attend together and so the victims of abuse will not be in any way at risk as a result of this provision.
The period of time would be commenced by the lodging of a neutral statement. By that I mean a statement which does not make allegations and does not, at that early stage, state that the marriage has already irretrievably broken down and that the maker of the statement wants a divorce. The spouse or spouses making the statement would be required to declare that he, she or they believe the marriage to have broken down and declare that they understand that the purpose of the period which will follow before an application to the court can be made for either a separation or a divorce order, will be for reflection on whether the marriage can be saved and consideration of the arrangements for the future, should divorce be proceeded with.
The general view of those who were consulted by the Law Commission and by the Government, following the issue of our consultation paper, was that a sufficient period of time should elapse in order to demonstrate quite clearly that the marriage had irretrievably broken down. The period should be sufficiently long to give parties a realistic timescale within which to reflect on whether the marriage could be saved but also a realistic time within which the practical questions about children, home and finances could be resolved. The length of time which most respondents favoured was 12 months. Those who work with children pointed out (and this is a thought which I would commend to your Lordships) that although 12 months may not seem long to us, 12 months is a very long time indeed in the childhood of a young child living with uncertainty. Those consultees who work with children considered that, if the divorce process period went on too long, this would be bad for children. A lengthy period would prolong the agony not only for the adults but also the children, which could be damaging. Hardship could be caused by the imposition of a period longer than 12 months. It probably has to be 703 accepted that there are limits to how much longer the period can be made without causing too much hardship—particularly to children. Do we really want to make things harder for children? Are things not hard enough for those children who are innocent victims of marriage breakdown?
For those who are the victims of violence, the remedies which will be available under Part III of the Bill will be adequate to protect them during the 12-month process.
A very important requirement in the Bill is the requirement that parties decide all arrangements relating to their children, finance and home before a separation or divorce order can be made. This is an important and significant change from the Law Commission's recommendation. In making this change the Government have been influenced by those who responded to their consultation paper who were of the view that parties who marry should discharge their obligations undertaken when they contracted their earlier marriage, and also their responsibilities which they undertook when they became parents, before they become free to remarry. The Bill provides for certain narrow exceptions to the requirement that all arrangements should be decided before divorce, in order to protect vulnerable parties, such as those who are sick, disabled or being prevented from making arrangements by vindictive and obstructive spouses, and also to protect the children of such parties.
I believe that the requirement that everyone should wait a minimum of a year before applying for an order (as opposed to the small numbers who now wait two years or even smaller numbers who wait five years), together with the requirement that all arrangements will have to be decided before divorce, will do far more to reinforce and underline the institution of marriage and its inherent obligations and responsibilities than the present system which allows quick divorce following allegations of fault.
I should emphasise that the current legislation which enables the conduct of each of the parties to be taken into account by the court, where that conduct is such that it would in the opinion of the court be inequitable to disregard it, when making financial provision orders, will stand as it now is in terms of this Bill.
The Bill provides that it will not be possible to commence a process which would lead to divorce within the first year of marriage with the result that it will not be possible for couples to apply for divorce until they have been married for two years. This will act as a brake on couples rushing into and out of marriage again too quickly.
I have also preserved the power for the court to bar a divorce altogether where one party can show that dissolution of the marriage would result in grave financial or other grave hardship. The court will continue to be able to take account of all the circumstances of the case including the conduct of the parties when considering such a bar. However this bar would be available in all cases and not just, as at present, in five-year separation cases and so has the important potential to protect more spouses.
704 Research since the last major reform of the ground for divorce has shown us the importance of the need to try to reduce conflict in separation and divorce cases in order to reduce at least some of the damage caused to children. We have also, through research, become much more conscious of the need to help parties try to communicate better during the separation and divorce process and encourage them to try to manage conflict so that they can make arrangements for the future which are workable and better for their children. It is clear that the children who do best after divorce are the children whose parents co-operate in the discharge of their parental responsibilities and who reach amicable arrangements for the future of their children. I am most disturbed by the fact that allegations of fault are used in more cases where there are children than where there are not, and that conflict is more prevalent in cases based on intolerable behaviour. In these important respects, namely, the reduction of conflict and improvement of communication, mediation has been shown to be most effective. The position at the moment is that although under the current Legal Aid Act the Legal Aid Board can pay for mediators' reports to be commissioned, it is not possible for the board to pay for the process of mediation itself, although it is possible for lawyers to be paid for.
I would like this to change. I believe that mediation has enormous potential in appropriate cases and Part II of the Bill therefore provides for the Legal Aid Act to be amended to allow parties who are eligible to apply for state funding for the use of mediation. I am not intending that mediation should become compulsory—compulsory mediation quite simply does not work, and is a contradiction in terms. State funded legal advice and assistance will be available in support of mediation when needed by eligible parties. Legal representation will be available for eligible parties when mediation is not suitable for the parties or appropriate for the circumstances of the case.
In presenting the provisions of Parts I and II of this Bill to the House, I do so against a background of long, detailed and most careful consultation and as a person, as I said at the outset, who has a strong belief in the institution of marriage. I personally believe that marriage should be for life. This is the ideal I believe most couples who marry strive for. It is this ideal which provides the most stable and secure background for the birth and development of children. I personally would not wish to see people divorced at all. I would prefer that spouses remained united until "God separates them by death". But I have to recognise that marriages do break down and that the civil legislator must take account of this fact and provide the best framework of law to cater for this. I believe that according to St. Mark's Gospel (Chapter 10, verses 4 and 5 when Jesus reminds the Pharisees that Moses allowed men to "put away" their wives because of their "hardness of heart", he was referring to a civil legislative system with which they were familiar. I believe also that our Lord's teaching contemplated a civil system in which it would be possible to do what He told His questioners should not he done.
705 I turn now to Part III of the Bill, which deals with domestic violence and the occupation of the family home. The provisions in this part reform the various remedies which exist in family law to deal with two separate but linked problems. These are: providing protection for one family member from violence or molestation from another family member; and regulating the occupation of the family home where a relationship has broken down, either temporarily or permanently. The Bill will provide a single consistent set of remedies through two types of orders, "non-molestation" orders and "occupation orders". Eligibility for the orders is based on the concept of "association" by way of certain family or domestic connections or through family proceedings. Eligibility for specific orders is further distinguished in the Bill, and depends on the existing property rights of the applicants, as well as their relationship to each other.
This part of the Bill was substantially before your Lordships' House last Session, in the form of the Family Homes and Domestic Violence Bill. It was discussed at great length then in a Special Public Bill Committee and completed all of its stages here before going on to be debated in another place. For that reason, and because time is limited, I propose to speak now only on the changes that have been made since the Bill was last before your Lordships. At a late stage and just before Prorogation the Bill attracted some controversy. This was based on a belief, I think misconceived, that cohabitants were being placed on an equal footing with married couples for the first time, and that this undermined the institution of marriage.
Although I do not think that the Bill would have had the effect feared, I accept that there is genuine concern to uphold the special nature of marriage. This is a concern I share, and for that reason I have made four changes to the Bill that was before this House in the last Session.
First, I have introduced a general clause on marriage. This instructs the courts to have regard, when making an occupation order for a cohabitant, to the fact that they have chosen not to give each other the commitment that a married couple have chosen to give. I hope that this will emphasise the important general message that marriage is special in a way that no other relationship is.
Secondly, the previous Bill made provision for the procedure for resolving property disputes contained in the Married Women's Property Act to be available to cohabitants. I have removed that provision. Although the extension was purely of procedure it was the subject of specific concern, and I think it is right to respond to those concerns.
Thirdly, concern was expressed about a cohabitant who had no right to occupy a property gaining long-term possession of it. For this reason I have now provided that in such circumstances an order, which may be for a maximum of six months (that was the old provision), may be extended only once. It was possible under the former provision to extend it again and again, indefinitely. This contrasts with the position for spouses 706 and ex-spouses. I believe this further distinguishes between marriage and cohabitation and still retains the essential of what is required.
Fourthly, it was possible under the old Bill for the court in certain circumstances to be under a duty to make an occupation order in favour of a cohabitant with no right to occupy the home. This duty came about by the operation of the "balance of harm" test, as it was called. In these cases I have recast the test in such a way that there is no duty on the court to make such an order, but simply a discretionary power to permit it to do so. The court can have regard in considering that matter to all the circumstances of the case.
I believe that the overall effect of these amendments is to emphasise the difference between marriage and cohabitation while at the same time providing protection where it is needed. Marriage is a lifetime commitment, publicly entered into. It gives the parties to the marriage rights and obligations to each other which can continue even after the marriage has ended. Cohabitation is not the same. Although individual cohabitants may intend their relationship to continue indefinitely, they do not have the same obligations to one another or the same rights as married partners. It is important that the law provides protection against domestic violence for those who need it. But I also believe that a distinction between marriage and cohabitation can and should be drawn. I believe that Part III of the Bill does that. I ask your Lordships for support for the changes that I have made in an attempt to reach consensus on this matter.
This is an important Bill which deals with areas fundamental to people's lives. I feel that it is right that Parliament should have an opportunity of considering this matter in a Bill promoted by the Government in government time. After prolonged thought, I have put forward what I consider are the best proposals. I am happy to see them improved, if Parliament can suggest improvements. I hope that we can all approach this matter in a spirit of united resolve to do the best that we can for families in England and Wales in the years to come. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 4.1 p.m.
§ Lord Irvine of Lairg
My Lords, this Bill is a marriage of two separate measures; but a marriage made in haste. The divorce provisions are driven by Treasury urgency to cut the legal aid budget. The alterations to the previous domestic violence measure are a sop to an unrepresentative minority of Conservative MPs. They should not have been bought off. The original measure was supported by an all-party agreement. It also enjoyed overwhelming support in both this House and the other place.
I shall deal first with divorce. A marriage breakdown is rarely the fault of one party alone. The decree should reflect the fact of breakdown. It should not be seen as a reward for marital virtue nor as a 707 punishment for marital sin. I agree with the right reverend Prelate the Bishop of Chelmsford, who, in the debate on the gracious Speech, said that:the family is essential to the health and wellbeing of our society"— [Official Report, 20/11/95; col. 152.]But the question that we face is what to do if a marriage breaks down. Neither the parents nor the children are assisted by imprisonment within a loveless union. That breeds misery only. It is the children who are the most vulnerable. They need to be sheltered from conflict. They need to grow up with a positive view of both their parents.
The noble Lord, Lord Ashbourne, expressed his concern about the growing number of children born outside marriage. I share that concern. But I do not believe that, by making it more difficult for people to divorce, the illegitimacy rate will come down. On the contrary, people who are unhappy within their marriage and wish to start again with a new partner will do just that, whether or not they are free to marry. If they are unable to marry, that will not stop them having children. Their children will have to grow up without the security of parents who are married and without enjoying the status of marriage. The children of family number two will pay a heavy price for preserving the shell of a moribund union.
So, we support the no fault principle. But, with respect for what has come from the noble and learned Lord, the 12-month embargo on obtaining a divorce is too restricted. If the parties are able to make sensible and prompt arrangements to protect the interests of the children, we see no merit in holding them to a marriage which is dead and from which both want to escape. We shall be tabling amendments to that effect.
Let me give an example from the recent experience of a solicitor who is a distinguished family law specialist. A man who was separated from his wife more than 10 years ago was diagnosed in February this year as dying from cancer. He and his wife had not divorced; neither of them had seen any need to do so. He was living with his new partner. She became pregnant. He wanted, so far as he could, to provide for her and their child after his death. His lawful wife was entirely supportive. She too was living with another. The lawful husband had substantial pension policies. Within a few months he was able to obtain a divorce from his wife with her full agreement and the co-operation of the courts. The divorce was in June this year. He died in September. His new wife now has the benefit of a widow's pension under his occupational scheme, to the great benefit not just of herself but of their child too. Happily, the child was born in the summer. I should be astonished if the noble and learned Lord could think other than that the courts should be given flexibility to grant divorces in less than a year in exceptional cases.
But also, we hold firmly to the view that, if fair arrangements have not been made, there should be no pressure, just because a year has elapsed, to make an unfair arrangement which will bind the children and the parties for years to come.
Central to the Bill is the process of mediation. We support mediation. But it is widely misunderstood. The mediator does not attempt reconciliation. I acknowledge 708 that very rarely there could be a reconciliation once the parties realise the full implications and consequences of what they are doing; but that is no different from the present law when a solicitor is consulted. After advice about the financial and other consequences of divorce, some may have second thoughts. They may want to try again to save their marriage and, if a marriage is savable, the mediator, in exactly the same way as a solicitor, will be bound to halt the process and refer the parties to a marriage guidance organisation. Mediation proper can only begin to work and continue to work if both parties recognise that the marriage is over and that sensible arrangements for the future have to be made.
But fair arrangements necessarily depend on skilled legal advice and representation. The Bill in terms says nothing about that, although the noble and learned Lord, in the debate on the gracious Speech, said:Legal advice and assistance will be available for eligible parties, where needed, in support of mediation" —[Official Report, 20/11/95; col. 137.]We take that to be on the Green Form scheme and that it will be what the White Paper called "early preliminary advice and assistance". But it is quite clear that what is not made available to legally assisted persons is legal representation.
Mediation is an anodyne word but the lot of a fearful and intimidated wife in the mediation process will not be a happy one, despite prior legal advice and the skills and courtesy of the mediator. She will have been told what her legal goals should be; but, unrepresented, in the real world it is unlikely that she will be able to present her case effectively. So I ask: are all lawyers to be excluded from mediation or only lawyers for legally aided parties?
I have another question. Will the noble and learned Lord confirm that it is the intention of the Bill to make fundamental changes to the present arrangements for legal aid representation in divorce cases? Will he confirm that the effect of Clause 24 is to place upon the Legal Aid Board in divorce cases the duty to refuse legal aid representation in favour of mediation? Clause 24 means that the Legal Aid Board must—not may—refuse legal aid representation in family proceedings on the grounds that:mediation is to be considered … as more appropriate".So that is the general provision. The Bill states that it will be subject to exceptions, but they are not defined in the Bill and we should like to be told what those exceptions are to be. Your Lordships are being asked to legislate for a two-tier system—proper legal advice and representation for those who can pay and the lonely prospect of the mediation room for the rest. Mediation, which is all that will be on offer from the Legal Aid Board after some early legal advice, is not truly voluntary.
I turn to a wholly distinct point. Legal representation in the courts must always be necessary where the extent of the family assets is in dispute. It is all too common for one or other of the parties to be less than honest about resources. The noble Baroness, Lady Blatch, in her reply in the debate on the gracious Speech, sought to reassure your Lordships that, if one party did not 709 disclose assets, mediation would cease and the parties would be referred to lawyers. But how will the mediator know? A concealing husband is hardly likely to tell the mediator that he has salted away a secret source of assets. Whenever a serious issue in regard to the true extent of the assets arises in mediation, there should be no question of the mediation continuing and no exclusion of legal aid representation for court proceedings.
There is another major subject on which we shall be tabling amendments in the name of my noble friend Lady Hollis. I hope the noble and learned Lord will feel able to accept them. Divorced wives should be entitled to their fair share of accruing—I emphasise "accruing"—pension rights. It is no good allowing them rights which depend on the former husband living to contractual retirement age. Divorced wives should have those rights at the time of divorce. I emphasise that there will be no public expenditure implication.
I turn to Part III, which deals with the family home and domestic violence. The domestic violence proposals of last Session were lost at the eleventh hour because of an uninformed campaign by a tabloid newspaper supported by a minority of Conservative Members in the other place. I say "uninformed" because they should have known—indeed, the noble and learned Lord confirmed—that the right to be protected against domestic abuse had been given, since 1976, not only to spouses but also to a man and a woman living together as though married. Therefore the argument that the Bill was bad for marriage because for the first time it would enable an unmarried cohabitant to remove a partner from the home, was plainly wrong. The unmarried partner has had that right for nearly 20 years. But the Bill dealt a modest blow for civilised behaviour and it is civilised behaviour which should underpin true family values. By protecting children, mothers and the elderly, the present Bill strengthens not only family values, but also family responsibility by providing emergency and temporary safeguards for victims of abuse.
Part III enables the law to extend protection against non-molestation to former spouses (who some think were excluded irrationally from the 1976 Act) to persons who used to live together as though married; to those living together in the same household for reasons other than that one is employed by the other; to a tenant lodger or boarder; and to close relatives such as parents, grandparents or children. The so-called "grasping mistress" will be given no greater protection than she enjoys today. But parents will become safe from harassment by their children and a lodger from assault by his landlord.
Those are protections only against molestation. A court order requiring the perpetrator of violence to leave the house can only be sought by a spouse, a former spouse, cohabitant or former cohabitant and then only if he or she lives or used to live in the house in question. The noble and learned Lord modified the Bill in deference to those whom he thinks must be appeased. The Bill is a weaker Bill as 710 a result. Now, before the court may make an exclusion order in favour of an adult who is not an owner of the property, the court is directed to consider physical ill-treatment or impairment of health. But noble Lords will appreciate that emotional and psychological assault, even though it does not cause impairment of health, can be just as damaging as kicks or punches. Why should one party be free to make late night hoax calls, to switch off the heating or indulge in any other antics which cause misery to the other party or the children without running the risk of being ordered to leave their home unless he comes to his senses? Those antics do nothing to promote family values. Family values deserve support, whether or not the partners are married.
Next, the Bill puts the court under a general duty to take into account, when considering occupation orders, that, where a couple cohabit without marriage, that signifies a lesser commitment. The noble and learned Lord defended that change. Perhaps it does signify a lesser commitment. But the whole point of an occupation order is to protect from harassment. Harassment is unacceptable, whether the victim is a wife or a live-in lover. If, in an extreme case, the partner of an unmarried cohabitant assaults the other or terrorises the children, it is wrong that the court should give less protection because they are unmarried. Is that what the provision invites the court to do? If not, it should be taken out because there is a risk that that is how it will be interpreted.
It is no answer to say that, by not marrying, a couple demonstrate less commitment. No one should be entitled to assault another member of a household, whether or not their relationship is cemented by marriage. Though non-molestation orders can be made in those cases, without the underpinning of exclusion orders the protection will be a second-class protection. We shall be tabling amendments to ensure that all forms of harassment, whether physical or otherwise, run the risk of the perpetrator being removed from the home.
The noble and learned Lord told your Lordships that exclusion orders in favour of non-owners are now—this is another sop to those who must be appeased—only to last for a maximum of six months, with the possibility of a further and final six months' renewal. In most cases, in practice, that will be adequate. But in this sensitive jurisdiction, where the facts of the case vary so infinitely, it is wholly unhelpful to tie the hands of the court more than is absolutely necessary. There may well be cases where there is acute difficulty in rehousing the abused party; where the couple may be elderly or where one party may even be terminally ill. In such cases, obviously, it may, in the real world, be impossible to obtain alternative accommodation within the timescale stipulated. The court's discretion should be preserved, otherwise, once one year has gone by, the party under the court's protection will be turned out on to the street. We shall be tabling amendments to give the courts flexibility.
711 All the amendments that we table will be informed by our support for the family, for children, for victims of violence and for fairness between those who suffer the tragedy of a failed marriage.
§ 4.19 p.m.
§ Earl Russell
My Lords, for us on these Benches this is a free vote Bill so anything I say will not commit these Benches, or even my noble friend Lord Meston, who is leading on the later stages of the Bill. That said, on free vote Bills we usually agree well enough. I hope not to break that tradition.
I shall begin by telling the noble and learned Lord a story from which I hope he may take a small amount of comfort. We have perhaps had no Prime Minister whose devotion to Christian moral principles was more intense and more plain than Mr. Gladstone. Rather more than 100 years ago Charles Bradlaugh was elected to another place as an avowed atheist and because, being an honest man, he hesitated to swear by Almighty God, found considerable difficulty in taking his seat. Mr. Gladstone, after serious consideration, decided that, being a duly elected Member, he must be allowed to take his seat. Lord Randolph Churchill commented that this proved that Gladstone was an atheist. The noble and learned Lord on the Woolsack, after reading what has been said in the press about this Bill, may perhaps have some inkling how Gladstone may have felt. He may perhaps even take some comfort from reflecting that when he is thus maligned he is in most excellent company. It may also be of some interest to the House to know that at the time Lord Randolph perpetrated this remark he was the leader of an unofficial grouping on the Conservative Back Benches colloquially known as the Fourth Party.
It will not surprise the noble and learned Lord if I begin by paying attention to Part III of the Bill, the former Family Homes and Domestic Violence Bill. It is important that in this Chamber and in the other domestic violence has always been a matter of all-party concern. That is vital to many of those working in the field. I have heard them speak with considerable warmth of the work done as Ministers by the noble Baroness, Lady Hooper, and the noble Baroness, Lady Cumberlege. It is important that that tradition should continue. It has obviously suffered from what happened last Session, but I am delighted to see the Government struggling to restore it, and so long as, and in so far as, they do, I shall help them with that. It causes me great pleasure.
I am also most grateful to the noble and learned Lord for what he said in the debate on the humble Address about our Jellicoe procedure. I have before me the proceedings of the committee which considered the Bill in the last Session. If anyone says that the Bill had a cursory examination, I hope as a penance that they will be sentenced to read every single word of it. It is most thorough and very interesting too.
I take the point that the noble Viscount the Lord Privy Seal made in reply to my noble friend Lady Seear when the Bill was abandoned in the last Session about the need to achieve consensus. Whether consensus has yet 712 been achieved or whether we have merely gone through one of the moves on the road towards it is a question we need to explore. The criticism of the Bill was essentially, as the noble and learned Lord has made plain, because of a dislike of cohabiting. Even if one were to regard that concern as justified, it was here misplaced. What we are dealing with in Part III of the Bill is the preservation of the Queen's peace; the right, as the noble Lord, Lord Irvine of Lairg, said, to he free from molestation, from physical threat and physical harm. It is the first duty of the state to preserve that for its subjects. That must come before other duties. The noble and learned Lord referred to preserving the special nature of marriage. I shall not argue with that but it worries me to see it done at the expense of the Queen's peace. I cannot improve on the words of the Royal College of Nursing. It says:The RCN believes that domestic violence is unacceptable, whoever is the victim".It is also not as widely understood as it should be—partly because not enough people have sat through social security Bills—that cohabiting is a recognised status in law. It is explained in the answer to Question 26 of the proceedings of the Select Committee in the last Session. It goes back to the supplementary benefits Acts immediately after the war and is confirmed in the 1976 Act dealing with this subject. It is a defined status which is referrable to evidence and tested by such things as the shared household and the shared finances. It is not an arbitrary whim of an idea and it does not protect any old mistress.
Cohabiting is now a socially recognised status. Twenty per cent. of live births are registered by two parents living at the same address but not married to each other. That means that in any normal party if you have 20 couples present and you start denouncing cohabiting you may be denouncing five out of the 20 couples present. I confirmed this morning on the highest authority that you can now, in making an entry in Who's Who, enter yourself along with a partner rather than a spouse if you so prefer.
In a social relationship which is common among those we meet daily good manners demand that we temper our criticisms. I am not sure that Clause 36 as it stands at present entirely meets that test. We shall need to discuss all the changes which have been made without prejudice to what we may ultimately do. I want to hear further the details of what the noble and learned Lord is recommending. Even Lord Chancellors are entitled to the rules of natural justice. I shall hear what he says before reaching any decisions. But I am not at present comfortable about the change in Clauses 31 and 33 from a duty to a discretion. It gives the court a chance, if it wishes, to put the balance of financial interest above the protection of physical safety. I am not convinced that that is right. The preservation of the peace comes first. It is a right to which even a condemned criminal on the way to execution used to be entitled and I do not think it should be taken away from cohabitees.
On the argument about the Married Women's Property Act, I shall want to hear further exactly what the noble and learned Lord has to say. But in cases where there is a shared budget and a shared mortgage, 713 where the woman has contributed to the building up of the household, I shall want to know why a one-year order might not in some circumstances be renewed for a further period. But those are matters to be considered later on.
Before I leave Part III of the Bill, the noble and learned Lord gave a welcome assurance on 9th March in Committee that the homelessness legislation we are expecting will preserve the status of women in refuges who are victims of domestic violence. Water has flowed under a lot of bridges since then. I hope the noble and learned Lord will forgive me for saying that I would be awfully glad if he could say that that is still the intention of the Government as a whole.
On the divorce part of the Bill, I hope that we shall not get too excited because we must not overrate the powers of this House to change a loving or unloving relationship between two people. It is not in this House's power to destroy marriage and it is not in this House's power to revive a marriage which is already dead in spirit. In considering the divorce part of the Bill my guiding light will be a remark made by the right reverend Prelate the Bishop of Chelmsford in the debate on the humble Address. He said that when a relationship is in danger it is not the legal bonds which need attention but the relationship that they are designed to protect. That is a remark with considerable implications.
I do mind very deeply the breakdown of a marriage. Every breakdown of a marriage is, I believe, a sort of little death, but whether marriages which have already broken down then go on to result in divorce is a question about which I feel a good deal less emotion. I believe that the proportion of broken down marriages which go to divorce is not a constant over the centuries. If what is happening is that more matrimonial breakdowns are ending in divorce, that is not a matter of profound concern to me.
What is of concern to me is the underlying breakdown. Thinking that one can prevent that by tightening the divorce laws is a bit like thinking that one can prevent death by postponing the funeral; it is altogether aimed in the wrong place. So for me the test of a good divorce law will not be whether it produces more or fewer divorces. It will be whether when a marriage has broken down it minimises conflict; provides orderly arrangements for protecting the interests of the children; settles money and property; and is generally an orderly procedure.
I also ask the House not to get too excited about the effect of divorce on children. I speak as the child of divorced parents. I know that it is difficult. But as far as I know I am not actually a nervous wreck—yet. I must insist on the qualification, I am afraid. It is always difficult for children if there is a bad relationship between their parents whether they are married or not. As far as I know, we do not have any comparative evidence on the difficulties suffered by children with unhappily married parents or divorced parents.
As far as I can judge from the limited sample of people to whom I have had to listen in these areas, what seems to me to cause trouble is the state of emotional 714 warfare between the parents, especially a state of emotional warfare in which the children are chosen as the battleground. That seems to me to cause damage whether the parents are divorced, separated or, in what is perhaps the very worst case I remember, continuing to live as man and wife until all the children are grown up. In that case the couple would have done much better to have been divorced 20 years earlier. The children would have been spared a very great deal.
If we really want strength in marriage—which I do, and badly—I do not believe that we can achieve it by changing the laws on divorce. I do not believe that we can achieve it by anything we do in this Bill. I believe that we would do much more if we tackled questions like the hours of work which prevent so many married couples from seeing anything of each other, child care, paternity leave and giving the couple a chance to know each other. Noble Lords know that I can list many more such measures, but I see the clock and I shall not.
Overall, I offer to this Bill a cautious sympathy, and the noble and learned Lord will hear both words equally. As regards the issue of fault, I agree with him entirely in every word that he said. I decided long ago that we never really know the inwardness of anyone else's marriage. Experience does nothing to make me change that conviction. As regards the one-year limitation, in general, yes, I agree. But I would like to see the possibility for exception to that. I found what the noble Lord, Lord Irvine of Lairg, had to say about that extremely moving and persuasive.
I am thinking also of cases of mental illness. I remember one friend of mine, since fully and happily recovered, who it was absolutely essential to free from the emotional and practical bonds of the marriage before a psychological recovery could begin. The noble and learned Lord will have guessed that I am thinking also of victims of domestic violence.
I was delighted to hear him say again that mediation will be voluntary. There is of course a question about how voluntary it is. Clause 12(4) looks as though it requires people to show cause why they do not want mediation. I certainly have an uncomfortable memory of certain notices—which some other noble Lords may remember—"There will be voluntary games for the following. Those failing to turn up will be severely dealt with". I should like to know who decides that mediation is or is not appropriate. I must also apologise to the noble and learned Lord in that for a moment I did not hear him clearly because I was noting his previous remark. But I believe that I heard him give an assurance on Clause 8 that nobody will be compelled to attend the preliminary information session with their previous partner. I am delighted to see him nod. That is an extremely welcome assurance.
I would also like to know whether people can leave mediation if they have gone into it but do not like what they are finding; and whether there is a procedure for varying a mediation order in a change of circumstances. I would welcome a categorical assurance that on matters of property mediators will not be using formulae. I believe that the noble and learned Lord knows my views about formulae and I shall not touch on them further.
715 I wish to make one point about custody. There is a very strong feeling among separated fathers that they are not getting a fair crack of the whip in custody and access. As regards access, I am sure that the noble and learned Lord knows that it is heartbreakingly difficult to know what is the right thing to do. One must hear the message and try. For exactly the reasons that women deserve equal rights in employment, men deserve equal rights in child custody. I hope that the mediator will hear that message.
Finally, I would like to hear that there is adequate finance available for the mediation process. I would like to know how much and from what source. If the noble and learned Lord will forgive me, I would welcome a categorical assurance that under no circumstances will mediators ever be on performance-related pay.
§ 4.37 p.m.
§ The Lord Bishop of Worcester
My Lords, I am glad that this Bill was put into the Queen's Speech. It is going to provoke a debate, which I believe is timely indeed and urgent. It was Richard Baxter, a luminary of my own diocese, who said that when marriage and the family fail, all else miscarries. I believe that we have the highest divorce rate in the European Union. In 1993, 76,000 children under the age of 16 witnessed their parents' divorce. Since then there has been a two-thirds rise in the number of children under five years of age who have witnessed the break-up of their parents' marriage.
We are letting down our children and thereby placing a time-bomb under our society. We have tolerated the breakdown of marriage and the family in the name of self-fulfilment and sexual liberty, and this in a country shaped in the Christian tradition, which values children so highly. Jesus made much of children. Any country that claims to be Christian should make much of them also. I speak not only as a bishop, but also as chairman of the Children's Society. I go visiting family projects. I was in Bolton, Rochdale and Oldham last week. I see the havoc that is being done to children by the breakdown of the family. My only concern is that the people whom I visited last week actually get near a mediation session. Some people in our country today are naturals for counselling and mediation; for others it is just not in their line.
Professor Halsey has described our contemporary age not as the age of the child, but the age of child neglect.
I realise that it is perilous for a churchman to venture into questions of divorce. He is always open. to the charge of selling the past if for one moment he admits that divorce may be necessary. Let me assure your Lordships that we as bishops stand foursquare behind marriage and the family. They are within the order of God's creation and the basis of a stable and wholesome national life. We uphold the highest possible standard for marriage, but we are also pastors. We carry with us as a symbol of our office a shepherd's crook. We know that human nature is frail. The world is not perfect, but into that world, grey and sometimes soiled, we must go. Those who are well have no need of a physician—only 716 those who are sick have such a need. When we legislate we cannot legislate only for the elect: we must legislate for those who are in need.
Truth flies with two wings. It is both a declaration of the ideal and a concern for those who have not achieved it which must occupy us. I believe that that has always been so in the Judaeo-Christian tradition. The greatest of the medieval Rabbis, Maimonides, taught that you must proclaim the law and espouse the cause of those who have broken it. You do not improve human marital relationships by making the law more punitive. At the present time in England we need laws which will build up marriage and the family. We need to build them up from within as relationships. We need to resource those two vital institutions and to heal rifts when they occur. It is no use taking the moral high ground as if one is speaking from an ivory tower.
I am pleased that the Bill is entitled the "Family Law Bill" because I believe that that is a positive title. It puts the family at the centre of attention. The Lord Chancellor has produced a Bill which has the potential to foster good marriage—and I have to say that that sometimes comes the second time around—and proper care for children. As a Bench, we want to see it go through to Committee stage. Perhaps what I am saying this afternoon will be general compared with what has been said by noble Lords opposite, but we shall want to see that the detail of the Bill fulfils the principle. I am also pleased that for the first time since 1857 this concern for good marriage and for children has been introduced by government. We are thereby showing concern for the common good.
I know of none who considers the present divorce laws to be satisfactory. The quickie divorce is prevalent to the tune of 75 per cent. of all divorces. It is based on the allegation of a fault which is neither approved nor rebutted and often involves collusion, contrivance and even deceit. That cannot be good. The sole ground for divorce is to be the irretrievable breakdown of the marriage. That does not mean that we shall no longer talk about faults or sin. It means that faults are not justiciable. Just as a couple went into their marriage partnership together, through the Bill they will have to think carefully about dissolving it.
The required information session could assist both parties to know what help is available. I understand—I should like to be assured on this point when the noble and learned Lord responds to the debate—that legal advice will be available in mediation. That is necessary if an informed decision is to be made. Mediation will give a couple an opportunity to reflect on the consequences of divorce for their children, home and property, thus underlining the responsibilities of marriage and parenthood. I believe that a year with a purpose could provide the time for a couple to come to a more balanced view.
It is not possible for any legislation to cover every hard case. I know of quite a lot of hard cases, but I shall not take up the time of the House by describing them this afternoon. Above all, the children would benefit greatly from the avoidance of the crossfire of marital warfare. That will stand them in good stead when they 717 themselves many. Bitterness, rancour and taking up sides damage children and put them at a disadvantage in terms of future relationships.
So far, so good and I am glad to support the Lord Chancellor in his good purposes, but I am disappointed that there is nothing on the face of the Bill about the resources which the White Paper said would be at his disposal for marriage preparation, marriage education and marriage counselling, and to support the existing voluntary agencies which will be called upon more if we introduce mediation. Can we be assured that they have the resources with which to respond? I understand that they have formed themselves into a college of mediators and that the training course that mediators will receive has university validation. That is good, but we would be in a situation where the last case would be worse than the first if the Bill were to become law and in the end we found that we could not resource it. I look for reassurance on that point.
There is also the question of the protection of women as well as children. Words such as "flexibility" and "the discretion of the court" are important. Unfortunately, I cannot go into Part III of the Bill in as much detail as has been covered so far in the debate. However, in the present state of affairs men are often the losers. They are often rendered homeless and, if they are workless also, that is a recipe for disaster. Can we be assured of the use of the judge's discretion in allowing children to stay in the family home—they may be taking GCSEs or be in the midst of exams of great importance. We need to know that there will also be an ouster clause to cover cases where abuse has occurred, and the use of the bar where undue hardship to either party would follow the granting of a divorce.
I believe that the Bill has the potential to end quickie divorces and to make the option of divorce harder. There is in our society a divorce mindedness which sometimes brings people to divorce in haste and repent at leisure. I am told by an inquiry that six years after divorce, 50 per cent. of men and 30 per cent. of women registered regret that they had taken that step. We need to halt the slide. We need to talk up marriage and to avoid sceptical remarks such as "Holy deadlock" and the sophistication which comes like a frost to blight our life.
Equally, we would be foolish to imagine that changes in marriage and the family have not taken place. Of course they have. Marriage and the family are under unprecedented pressures from the massive social changes of our time. Poverty, unemployment and mobility all put marriage and the family under pressure. Women are no longer prepared to be anything less than equal partners in marriage and the family—and rightly so. I want to argue that parenthood is as important as any career. So, marriage and the family need our support and I believe that, in principle, the Lord Chancellor's Bill will effect that.
§ 4.50 p.m.
§ Lord Craigmyle
My Lords, my noble and learned friend on the Woolsack has put me in something of a 718 quandary. I yield to no one in admiration of my noble and learned friend's many high qualities and, in respect of this matter, of his intellectual integrity. It was clear from the way in which he spoke to your Lordships that he has devoted intense study to this matter, far more than I and probably many of your Lordships. Indeed, I suspect that had I had before me all the material that he has considered I should not have been able to understand a great deal of it. During his time at the Bar he had experience of the law, including experience of divorce cases.
My noble and learned friend puts me in a quandary because I am not entirely persuaded by what he said. In view of his qualities, my first instinct is to say, "Of course, he is right. I have not thought about the matter sufficiently". And yet the worries remain. It may be as well if I express them briefly. I ask the noble and learned Lord's charity. If I am critical of the Bill my criticism springs from a spirit of inquiry and is not mere carping.
My main difficulty is the business of no fault. A great deal of propaganda has been sent to noble Lords on both sides and the no-fault provision seems to be—I risk making a pun—the fault line. Those who support the Bill believe that no fault is an excellent idea; those who do not support the Bill believe that it is a dreadful idea.
I do not know the answer but I wish to raise this aspect. Under the terms of the Bill, divorce remains a matter for the court. Although these days divorce proceedings seldom reach the court they are nonetheless decided by a judge. Upon what basis is a judge in future to decide a divorce matter? The petition—the statement, as we must now call it—tells him nothing but the opinion of the parties to a marriage or, much more often, of one party to the marriage that the marriage has broken down. No reasons and no explanations. We have been told that in the past reasons and explanations were often false and involved connivance. Now no reasons are to be given at all. Does that improve the situation? To my mind it does not.
If the judge is given no reasons, upon what can he reach a decision? There are no explanations of the causes of action. How can he judge the matter justly? Is he expected to judge the matter? The right reverend Prelate said that it may be that the fault will not be justiciable. I am beginning to wonder whether anything justiciable is left in the majority of undefended divorce cases. If there is nothing, why do we leave the matter to the judge? The judge becomes a mere rubber stamp. The divorce proceedings should go through the registrar of marriages. Let the registrar who did the hitching do the unhitching. The judge is no longer in a position to do anything except in relation to mediation or what is contained in Clause 10. My noble and learned friend seems to believe that Clause 10 will be effective. I wonder whether it will. I wonder how many people will use Clause 10, which seems to put a heavy burden on the so-called "other party"; that is, the one who has not made the statement. One may guess that in practice it will be seldom used. Apart from that, it appears that the judge cannot refuse to grant a divorce.
719 The statement of breakdown of marriage is not a petition to the court. It comes very near to being an instruction to the judge to set in process the machinery which will inevitably lead to divorce. Its grounds cannot be challenged and it does not have to be proved to be sound. It expresses merely the unexamined opinion of interested parties to what is always a complex matter. I am afraid that Clause 10 and, very likely, the mediation clauses will prove the merest fig leaf to cover the shame of divorce proceedings. I do not believe that judges will like being rubber stamps. I have not asked any, but I can guess the answer.
What are the rubber stamps for? In the phrase I used a moment ago, for the unexplained, unquestioned opinion of one party to the marriage. No reasons; no explanations. No fault; no justice. However ill-founded or trivial the case for divorce may be, a divorce there will be, pace Clause 10. The compulsory waiting time, mediation and all that, will not deter many prospective divorcees. A few may be turned back but I suspect not many. The danger is that, in the upshot, quite contrary to my noble and learned friend's intention, divorce under a no-fault system will be easier than ever and will continue to become more and more common.
Perhaps most of your Lordships have it in the back of the mind that the existence of divorce alters the concept of marriage itself. If a couple entering upon matrimony realise that marriage is for life and that fact is sunk deep into their thinking they will take it seriously. They will understand that marriage, in the wonderfully telling words of the Book of Common Prayer:is not… to be… taken in hand unadvisedly, lightly, or wantonly".But if, on the contrary, we in Parliament, by whose authority laws about marriage were made, not only make divorce available but strive to make it as simple, convenient, stigma-free and inexpensive as we possibly can, we shall make it seem a normal, everyday matter and, consequently, marriage a simple thing easily undone. The very marriage vows, solemn as they are, become just an old-fashioned form of words in an old-fashioned form of ceremony. Who is to take seriously all that guff about "better or worse" and "till death us do part" when it is known very well that on the merest whim of one or the other partner statement can be laid before the court saying that the marriage is falling to pieces. That will be the situation if divorce is only a formality. In those circumstances, marriage promises will be set aside cheerfully, not just by the parties, but by us here in Parliament, the very authority which insists on their being made in the first place.
Those may be general considerations which are not strictly pertinent to the Bill but when considering anything in the way of divorce reform such general considerations must underlie our discussions. We should look at the map to see where we are going and where we shall reach if we carry on in the current direction.
If, as I greatly fear, the removal of all trace of fault from divorce proceedings further weakens the bonds of matrimony in England and Wales and the number of divorces continues to increase, the time may not be far away when we shall be forced to react very strongly and 720 once more insist that divorce is made unattractive and so becomes less readily sought after and that couples take seriously their marriage vows and abide by them, however difficult that proves to be.
At the moment, I do not think that we need do more than stop and take a step or two backwards. We need not have a violent reaction such as that of which I have just spoken. I agree entirely with the right reverend Prelate that we must ensure that the bodies which support and help marriage and help people who are having marriage difficulties are adequately supported. The support they receive from the taxpayer is trivial compared with the enormous sums expended on supporting the divorce machine. And it will be trivial compared with the sum needed for the new industry of mediation in which not only my noble and learned friend but many other noble Lords seem to be placing much hope. I suspect that that will just become another branch of the social services or the counselling profession. I greatly fear also that we may find that there is a danger of the industry becoming manned by those who have their own agenda, which may not be the agenda of Parliament.
I am sorry to be critical of the Bill. I hope that by the end of the debate, I shall be better satisfied with it. I must apologise to my noble and learned friend if I am not able to be present for the conclusion of the debate. The reason is one for which he will have some sympathy. I am going to Scotland.
§ 5.3 p.m.
§ Lord Jakobovits
My Lords, I wish to pay tribute to the noble and learned Lord the Lord Chancellor for presenting the Bill and for the manner in which he introduced the debate. I wish also to express my delight at what I heard from the right reverend Prelate the Bishop of Worcester. Obviously we share a common heritage to a large extent and therefore there was much with which I found myself in agreement, as there was in the speech of the noble Lord, Lord Craigmyle, who expressed ideas very close to my heart.
The Bill contains some valuable provisions which merit support. More important, it helps to bring one of the most depressing problems besetting the country to national attention. It places it at or near the top of our parliamentary agenda.
I find the Bill quite satisfactory for what it says but less so for what it omits. The White Paper, Looking to the Future, proposed that present arrangements for marriage preparation would be reviewed and that every opportunity would be made available to explore reconciliation even after the divorce process had started. It promised also to support the institution of marriage. I find nothing in the Bill as currently drafted to reflect those objectives.
Above all, what I miss in the Bill is the sense of urgency and alarm which should be evoked by the disintegration of marriage on such a huge scale. With some 150,000 divorces per year, marriage is now a national disaster area, inflicting immeasurable harm at an incalculable cost economically as well as socially, not to mention morally.
721 Legal payments and welfare benefits alone cost the state some £3 billion annually. When one adds the far greater losses in productivity caused by people whose homes are breaking up, plus the huge cost of crime directly attributable to children growing up in what amounts to a no-man's land without a stable and loving home, £10 billion is the aggregate price for divorce. Marriage failure may now even, alas, blight the nation's most precious asset, the monarchy itself.
I recall some years ago a chief constable, after detailing the rise in the crime figures, saying, "We will have to learn to live with crime." I believe that that is dangerously defeatist counsel. We must learn not to live with crime. We must learn to abhor crime as utterly unacceptable. Similarly, this Bill, by its emphasis on easing divorce rather than on strengthening marriage, seems to accept the massive break-up of marriage as though it were inescapable with scarce concern for promoting the benefits and consolidation of regular home life.
If the country were faced with a physical epidemic affecting 600,000 victims a year—on average every divorce brings severe anguish to at least four people—a flood of emergency measures would be set in motion to stay such a devastating plague. We all remember when the AIDS epidemic first struck how energetically the Government mobilised all available resources to bring the dangers to the attention of the public and to create an awareness of the dreadful consequences. Leaflets entitled Don't Die of Ignorance, with detailed instructions on how to avoid the hideous infection, were dropped into the post boxes of every home in the land.
Surely, the first task must be to alert the population to the awesome peril facing all spouses—indeed, all young couples today—if they are not careful, and to the potential resultant threat to millions of children who will grow up in a barren no-man's-land,sanslove,sanstender care, sans everything, to echo Shakespeare's seven stages of man in "As You Like It".
The Chinese have a proverb: people stumble over molehills, not over mountains. Many marriages start to go sour over petty arguments. Small, early precautions could prevent many a great tragedy later. Some simple rules should be widely circulated on how to guard against marital shipwreck—for instance, stating that in a truly happy marriage giving is more important than taking, and that each partner should think first of making the other happy before seeking personal happiness. Much more gravely, sexual adventures before marriage are bound to turn the eventual marriage into an anti-climax as "stolen waters are sweet" and, therefore, illicit pleasures are always more exciting than legitimate joys. Such marriages are often ruined before they start by unfulfillable expectations.
It may be argued—I am sure it will be—that it is not the business of government or of Parliament to give moral advice or to urge people how to conduct themselves in their private lives. I reject that argument as false and irresponsible. It is the business of government to protect society from any looming peril, especially when it is liable to be of catastrophic proportions, as the breakdown of marriage now is.
722 Perhaps I may give your Lordships an analogy. The state does not allow drivers to take to the road without a licence which is given after competent instruction and a proper test. That is because an untrained driver is a menace to other road users. Before entering the often much more risky business of marriage, why should not young people be required to undergo pre-marital instruction to make sure that at least some of the pitfalls, as well as the skills, of home-building are thoroughly known beforehand? Failed marriages can produce more casualties than unlicensed drivers. They can destroy whole families and the entire fabric of society. If the state controls the exit from marriage, it is at least as urgent to regulate the entrance to marriage.
Even more damaging than hasty divorces are hasty marriages. A waiting period on registering a marriage before it can be solemnised or contracted can save more marriages than a waiting period before a divorce is granted. Shot-gun marriages all too often lead to the gun going off with tragic casualties.
Some teaching in the responsibilities of marriage should also be included as an essential subject in school instruction. It belongs to basic civics. In the end, it may well prove even more indispensable to success in life than purely professional or occupational training. A broken home costs more than a poorly prepared career.
In the light of the present-day crippling havoc, the state owes it to all citizens to promote and support educational and counselling facilities, helping towards healthier marriages. Huge sums are being spent on public relations campaigns, for example, to highlight the danger of the abuse of drugs, alcohol, drinking and driving and other hazards. The amounts saved on avoiding failed marriages would amply cover such publicity. The savings would also leave funds for essential research—such as on the causal relationship between broken homes and crime or between pre-marital training and the incidence of divorce.
Another relevant subject calling for urgent study is the effect of television on communications between husbands and wives, and between parents and children. The results may turn out to be startling. One only has to compare the amount spent on medical cancer research with the funds devoted to domestic cancer research to realise the glaring disproportion between the two.
I should like to make a final point on the Jewish ramifications of the Bill, particularly the hardship bar. A special difficulty arises out of a divorce. While dissolving the civil contract of the parties, it leaves the religious bond—equally recognised by the state as valid in parliamentary legislation—still intact, thus leading to a "limping marriage" liable to cause immense hardship. The noble and learned Lord the Lord Chancellor has been most helpful and has indicated that if I table an amendment to the hardship bar, designed to alleviate the hardship, the Government will look seriously at it in Committee. I repeat that I am most grateful to the noble and learned Lord for his understanding.
As heirs to the Judaeo-Christian heritage, most of us appreciate that the biblical story of the creation starts with marriage as the first human institution. In their togetherness, man and woman were told by their maker 723 to be fruitful and to multiply; to fill the earth and to conquer it; and to have dominion over nature. It is no good reaching the outer space of the heavens, ruling over the mysteries down here on earth through the conquest of nature and being dominant outside if the inner space of the home collapses and the hallowed bond between man and wife is allowed to snap. I hope that the Bill, with amendments, will help millions of homes to be built or rebuilt as secure havens of love, virtue and joy.
§ 5.20 p.m.
§ Lord Coleraine
My Lords, I am never surprised to find myself in agreement with words spoken by the noble Lord, Lord Jakobovits, and today is no exception. It is always a pleasure to have the opportunity to discuss a Bill introduced in this House by my noble and learned friend. This Bill is clearly a product of the age of the paramountcy of the interests of the child. That is a phrase of little meaning, flawed in concept and unjust in practice. I assume that it is primarily for the purpose of giving effect to this paramountcy that the major Christian religious organisations support the Bill.
However, there has to be some doubt as to whether the Bill will do everything that is claimed for it as regards children. Those who propose that it is better for parties to part than to stay together use emotive phrases such as "warring parties" and "abusive parties". However, not all limping marriages comprise uncivilised, struggling parties. There are limping marriages which can survive without that sort of friction, and they should be encouraged.
I spoke about this Bill during the debate on the gracious Speech and I wish to express again in more detail my support for many of the changes contained in the Bill which, taken individually, add up to humane, honourable and healing law reform. There are the proposals for mediation and the period of reflection which are intended to enable a disintegrating married couple to agree about their children and other matters before, and not after, finally divorcing. The proposals may also give couples the chance to experience before their divorce takes place the sadness and sense of failure which so many decent divorced couples have been shown to feel after it is all over and the sense of regret that their marriage was ever allowed to break down.
Some couples may come back together as a result of the period of reflection, but there has to be scepticism about that hope. It is unlikely that the period of reflection will be a cloistered six months. In the difficult cases where children are involved and the parents are embittered—just the cases where a period of reflection is most needed—it is unlikely that all the ancillary arrangements will have been agreed or ordered much before the end of the 12-month period, and then the divorce will be obtained and that will be that. I can also agree that in our enlightened times the state should no longer even pretend to stand in the way of divorce by the mutual consent of the parties.
The first of the five objectives of a better divorce law, as stated at paragraph 3.5 of the White Paper and elsewhere, is to support the institution of marriage. I ask 724 whether the Bill will achieve this objective; I believe that it will not. That is why I believe that the Bill as drafted is, unfortunately, a bad Bill. My noble and learned friend, however, says that the Bill will support the institution of marriage. In paragraph 3.8 of the White Paper he writes that the Government propose to set up an interdepartmental working group on marriage chaired by his department. He writes:The Government believes that there should be greater integration of policies which support marriage with those on divorce".I agree. I only think it a pity that the group was not set up earlier.
The clear availability of marriage reconciliation services and counselling at all periods during the divorce process, to function in conjunction with mediation, would have been a central part of a Bill which reflected an integrated policy on marriage and divorce. However, we do not have that in the Bill, nor is it intended. I suggest that the purposes of mediation need to be spelt out with some clarity in the Bill. I wonder whether the purposes might be headed with, as a first objective, the strengthening of the institution of marriage and the family and of individual marriages and families, including particularly existing marriages and families but not excluding those which may later be entered into or be created by the separating parties.
The provisions for mediation in the Bill and in the White Paper are, frankly, in my view, better intentioned than considered. One has only to look at published papers on mediation to realise the extent to which as a profession it is in its infancy and has still to work out exactly where it is going, and the extent to which the creation of a formal profession has hardly begun, including the creation of a college next year which is to set and regulate high standards for a new profession. All that does little to give confidence in the Bill.
At the moment only a small percentage of divorces are mediated. Those are mostly cases where the parties are what we might call "civilised". There are nowhere near enough mediators to cope with the intended expansion of mediation in divorce. Paragraph 7.39 of the White Paper tells us of the pilot project to monitor and test the new arrangements before full implementation of the White Paper's proposals. I wonder whether my noble and learned friend has decided, and can tell the House, when he anticipates that the provisions for no-fault divorce and the year for reflection which are central to the Bill will be brought into force. Will it be in one year, two years or three years?
I have one further suggestion to make and I make it in the context that my noble and learned friend has said that the Government are prepared to be persuaded by arguments submitted in Parliament. When I spoke on 20th November I sought to show that to make of marriage a licence to cohabit, terminable at one year's notice by either husband or wife, is likely so to destroy the significance of marriage in the eyes of the young unmarried as to make them ask—even more than now—why they should marry rather than cohabit.
It is commonplace to say that one cannot legislate for happy marriages. However, what one can do is to lay down indicative laws to buttress the institution of 725 marriage and to create a climate in which a happy marriage has a better chance to develop than otherwise. I suggest that this could and should be done within this Bill. We should be prepared to look carefully at the idea that a marriage which one party wishes to maintain should not be so easily dissolved on demand as one where the parties are in agreement. I have in mind as an example that, without the consent of both parties, it should be possible for the party who wishes to end the marriage only to obtain the equivalent of a decree nisi at the end of the year's period of reflection. There should then be a further period for reflection before the divorce takes effect and the parties are free to remarry. That is not punitive, nor is it intended to be.
The thought that for one party alone to break a marriage might call for something more than a year's wait would be at least a small signal to those thinking of marriage that the state still has some interest in supporting the institution. They would be reassured to think that neither they nor their partner could act altogether wantonly. That thought might help to create a good atmosphere in which to start the building of a loving relationship. Nowhere in the White Paper or in the briefing documents that I have seen is consideration given to the effect of this Bill on those contemplating marriage and hence on the institution itself. We need to take a wider view of divorce in relation to marriage than the White Paper does. Figures published in The Times yesterday bear this out. They show that fewer than 300,000 couples were married last year, compared with 426,000 in the record wedding year of 1972, and only about 180,000 of those marriages were first marriages for both parties.
§ 5.29 p.m.
§ Baroness Birk
My Lords, today I have a feeling of déjà vu. I think that I must be one of the few Peers left who spoke throughout the passage of the 1969 Divorce Reform Act. There are not many of us left, alas.
In its time, that legislation was considered just as controversial, if not more so, as the Bill we are discussing today. I see that the noble and learned Lord nods his head. The late Lady Summerskill labelled it the "Casanova's Charter". What a sound bite that would be today. Many noble and learned Lords were dead against it. Nevertheless, I believe that it worked well, within its limitations.
At that time it was envisaged that more people would follow the no-fault, two-year separation route. That has not been the case. Frequently the present law has been manipulated to achieve divorce using the concept of fault whatever the circumstances may be.
Therefore, there are obvious advantages to the reform of the current divorce system proposed by the noble and learned Lord the Lord Chancellor, conjoined as it is with his commitment to marriage. Removal of the fault-based facts for adultery, unreasonable behaviour and desertion avoids the bitterness and acrimony in what is for most people an already painful experience. However, although the object and motivation behind the Bill are to be praised, my anxiety is that its detailed provisions are based on a number of fallacies and so miss the mark.
726 The Bill is based on the belief that husbands and wives do not give adequate reflection and consideration prior to instituting divorce proceedings. Some of them, of course, do not. However, I understand from a number of experienced divorce practitioners that that is not generally the case. The majority of people agonise for a long period over whether there is any prospect for reconciliation before they come to the final decision that there is no hope for their marriage. There are many cases in which, even after consulting a solicitor, husbands and wives take further time to reflect before giving him the green light to trial proceedings.
Under the present law nearly 75 per cent. of divorces rely on adultery or unreasonable behaviour as proof of marital breakdown. Many petitions are based on fault-facts, not because that necessarily reflects the real reason for seeking a divorce but because reliance on one of the other facts requires a longer waiting time before the divorce can be obtained, namely either two years or five years depending on which path is taken.
The 1969 Act does not adequately protect the welfare of children. Many of us were aware of that at the time. The proposals of the noble and learned Lord the Lord Chancellor for a year of reflection to minimise conflict and problems associated with the children of divorce may prove to be too "one route" for many couples.
For some the period will be too long. Victims of domestic violence, mainly women, are often in need of urgent relief. Not all couples have children, or many have adult children who no longer need to be provided for.
For others the period may be too short. The Bill proposes that the divorce should not be made final until all the ancillary arrangements, whether they relate to children or finance, have been concluded, save in certain limited and expressly prescribed circumstances listed in Schedule 1. There would, in effect, be artificial pressure to conclude the ancillary aspects. The breathing space will not then be used as a time for reflection on whether divorce is the only course, but most concentration will be focused on what will happen after divorce and on reaching an agreement.
At present the noble and learned Lord the Lord Chancellor is unwilling to shorten the period or make it more adaptable. My view is that it must be made more flexible. We must recognise that we are dealing with adults, although many may not behave as such, and we should not underrate people in the way that is suggested in the Bill. I found a rather patronising tone in parts of the Bill. Perhaps the noble and learned Lord will join with me in trying to remove that.
I believe that there should be more discussion on how long the period should be and how it can be made more flexible.
As the White Paper stated, the primary purpose of the period for reflection is to demonstrate that the marriage has irretrievably broken down and not solely to make arrangements for living apart. The Government believe that a minimum absolute period is necessary to establish that breakdown with certainty. I wonder whether that is not counterproductive.
727 Looking abroad for a moment, France has divorce by mutual consent after six months and automatic divorce after six years separation. There is fault divorce at any time on grounds of adultery and unacceptable behaviour. In Sweden there is automatic divorce with no time stipulation if parties agree and there are no children under 16. Otherwise, a six-month deliberation period operates. In Finland divorce is also automatic assuming consent and no young children. There is a six-month period of reflection for those couples with children or two years' formal separation.
As it stands, the Family Law Bill sets out long and complicated procedures involving compulsory information sessions, mediators and solicitors. There is a good case for encouraging the use of mediation as part of the divorce process, but the proper add-on costs of legal advice should not be overlooked. If parties decide to mediate they may well need some legal advice on the legal issues which arise during the course of mediation. Therefore, it is difficult to see how the new measures will be both cost neutral and socially acceptable. I hope that the noble and learned Lord the Lord Chancellor can say a word about that when he winds up the debate.
More consideration also needs to be given to tighter and more practical rules in the Family Division. I hope that we shall be able to deal with that issue in Committee.
If the noble and learned Lord the Lord Chancellor really wants to discourage divorce, as I am sure he does, the problem must be addressed at a much earlier stage. Many noble Lords will have seen the "Panorama" programme a few weeks ago which highlighted a scheme at a medical practice in Reading where a marriage guidance counsellor has been employed. Doctors work closely with the community and are often in a better position to detect the early stages of marital breakdown. This scheme ought to be promoted and funded and more widespread if there is to be any real chance of helping people resolve their differences before the marriage deteriorates to the point of irretrievable breakdown. The imposition of a 12-month period of reflection and consideration is too little and too late. That is what we must bear in mind and consider before the Bill leaves this House.
§ 5.38 p.m.
§ Lord Habgood
My Lords, this counts as my third maiden speech in your Lordships' House. Therefore, perhaps I may begin by saying that no irony is intended in making a third maiden speech on the subject of divorce. I need to declare an interest as one of the two patrons of National Family Mediation. The other patron is also a Member of this House.
I have had a long interest in this legislation, and it is, of course, a matter of great concern to all the Churches. As your Lordships are well aware, the Church of England has been going through agonies on the whole subject of divorce and its own internal discipline in so far as it relates to marriage and remarriage. However, it is also totally clear that if there is to be legislation on divorce, it should be good, clear and fair, protective of children and supportive of marriage.
728 For those reasons I thought that it might be useful to take us back to the beginning of the whole concept: namely, a report prepared by the Church of England in 1966 entitled Putting Asunder. In a quite revolutionary way from a Church body, the report puts forward the notion that breakdown should be the sole ground for divorce. It is an interesting report to re-read. It is tightly argued. It is not about being more humane, avoiding trauma or making divorce easier or harder, but about the nature of marriage. Perhaps I may quote a few sentences from it.
The report states,We were persuaded that a divorce law founded on the doctrine of breakdown would not only accord better with social realities than the present law does, but would have the merit of showing up divorce for what in essence it is—not a reward for marital virtue on the one side and a penalty for marital delinquency on the other; not a victory for one spouse and a reverse for the other; but a defeat for both, a failure of the marital 'two-in-oneship' in which both members, however unequal their responsibility, are involved together. So we arrived at our primary and fundamental recommendation: that the doctrine of the breakdown of marriage should be comprehensively substituted for the doctrine of the matrimonial offence as the basis of all divorce".The report further argues that the fault principle—I stress this because outside your Lordships' House there are still many who want us to return to a fault principle—implies a superficial view of marriage and its breakdown. The report took the example of adultery. It states:There are all sorts of ways in which the situation created (say) by adultery might be dealt with by the two persons concerned. So in reality it is only if they fail to deal with it in any of those other ways that there is a case for divorce; and that means that it is not the matrimonial offence in itself that should be the reason for dissolving the marriage, but only the ultimate failure of the relationship between the two to bear the stress [that adultery] put upon it".In other words, what had hitherto been counted as offences and faults are symptoms rather than the fundamental factor that is wrong. What is fundamentally wrong is the breakdown of the marriage. Therefore the report argues that breakdown is the only proper ground because that essentially is what divorce is about.
It further argues about the importance of not bringing in so-called "grounds" such as adultery as additional reasons for granting divorce. Again its argument is interesting. The report states:Superficiality is probably inherent in any law that defines and lists a number of co-ordinate 'grounds' for divorce. That is one reason why it will not do to reduce breakdown of marriage to such a 'ground' and add it to the existing list. If the new principle were introduced into the law in that form, courts would inevitably be tempted to accept and act on a superficial likeness between the circumstances of the parties and the verbally formulated 'ground' instead of trying the issue of breakdown".Under the 1969 Act, "grounds" were substituted by "facts". As we well know, lawyers were unwilling to assess breakdown. They felt that they could not do so on the basis of normal legal procedures. That is a very good argument for not wanting any flexibility in the law now. It would put lawyers into precisely the same position as regards seeking to make judgments about an issue on which it is extremely difficult to make judgments—namely, the quality of the relationship between a couple.
729 However, in effect the 1969 legislation rendered the principle of breakdown ineffective by the addition of new quasi grounds in what is still popularly regarded as a fault-based procedure although it is not. That is precisely what those who produced the 1966 report warned against. It has also led to what I now regard as the nadir of marriage and divorce: namely, the present system of quickie divorce by post which reduces the concept of marriage and divorce virtually to something quite contemptible.
I therefore greatly welcome this opportunity to start again on a basis of clear principle. People may continue to ask, "What about fault?" Of course there is fault in marriage; of course there is fault every time a marriage breaks down; of course fault may be a reason for divorce. Fault will probably need to be taken into account in the settlements arrived at during the year of reflection. But that does not make fault the legal basis for divorce.
The Bill provides that marriages can be legally dissolved only when, in effect, they are dead already. Who can tell that? Only the two people concerned. However, it is not simply their decision. Marriage is not just an extra commitment; it is a public status. That needs to be emphasised, and I am sorry that it is not emphasised in Clause 36 of the Bill.
The break-up of a marriage cannot simply be on the decision of the couple involved. It must be a legal decision because marriage represents a legal status. That is why it is so important, as previous speakers said, that the right of refusal must be retained. I imagine that most refusals will be based on a factor which can be assessed by the law—namely, whether fair conditions have been decided for the settlement of children and property.
If the opportunities are properly seized, the Bill gives us an enormous opportunity to clarify the principle underlying marriage and divorce, and to strengthen marriage. It is not just a year of waiting but of working. That is why the provision must be a year for everyone.
I welcome the emphasis on mediation. I have already spoken of my interest in that. However, I should like to see a clear statement in the early stages of the process that there are three different routes down which people can go: mediation is important; conciliation might be another route, and litigation a third. Those three should be presented as options. There should also be opportunity to switch between them. There is no need for rivalry between lawyers, mediators and others, despite some of the chunterings from the legal profession. Half the present mediators are lawyers. We are talking not necessarily about different people but different roles.
Mediation involves a different process from that of the lawyer taking sides and making out a case. The mediator is precisely not there to make a case, but to enable the couple themselves to explore what the issues are which have to be settled between them. However, as one much involved in national family mediation, I have to say that although it is becoming increasingly professional and is full of highly dedicated people, at the moment it is in a fragile state because it has virtually 730 no resources. I do not believe that it can wait for resources to come in through the legal aid system. What needs to happen now is some core funding for the support services so that they can prepare themselves for the greatly increased workload that they will have.
Thus I welcome this legislation, on the assumption and the condition that there is real commitment by the Government to ensuring that proper support services are put in place. We must not go down the route that was followed in 1969 when a good principle was accepted but was then undermined and unsupported.
§ 5.50 p.m.
§ Baroness Young
My Lords, I should like to begin by apologising to my noble and learned friend the Lord Chancellor as I was unable to be here for the last part of his opening remarks. I apologise also to the noble Lord, Lord Irvine of Lairg, the noble Earl, Lord Russell, and the right reverend Prelate the Bishop of Worcester. Unfortunately, I had an unbreakable commitment but I shall read very carefully what they said in Hansard when it is published tomorrow.
I wish to begin by thanking my noble and learned friend for the opportunity that he gave me earlier in the autumn to talk to him at length about the provisions of the Bill. It is a piece of legislation that I believe to be the most important in the Queen's Speech because it will have more lasting effects for good or ill than any other piece. If we do not get it right, the tragedy will be all the greater and the more difficult to put right at any subsequent occasion.
As I think my noble and learned friend knows, I am very unhappy about the Bill. I draw a distinction between Parts I and II which have been the subject of all the debates that I have heard, and Part III which has already been debated in your Lordships' House and which has been generally agreed.
I speak only for myself and I speak in many respects with a heavy heart because I greatly respect my noble and learned friend and the work that I know he personally has put into this piece of legislation. The fact is that I wish we did not have Parts I and II at all. As Ruth Deech said in her paper on Divorce Dissent, every time there has been a Bill to reform divorce law, the number of divorces has actually gone up. In 1936 there were approximately 6,000 a year. Following the Matrimonial Causes Act in 1937, the number went up to over 10,000. The divorce rate climbed steadily through the 1940s, with the advent of legal aid, and then we came to the Divorce Reform Act 1969, with 70,000 divorces at about the time of its passage, rising very rapidly to 111,000 divorces in 1971.
I listened with care to what the noble Baroness, Lady Birk, said about that piece of legislation. It is interesting that in its preamble its purpose was: to promote the stability of marriage, reconciliation, maximum fairness, protection of children and the economically weaker spouse. Of all those great ideals, possibly only the last was achieved by the legislation because we find that by 1977 when there was a further reform of divorce procedure, the numbers of divorces had risen to 170,000. There are some 191,000 today. In 731 view of that evidence, it is difficult to believe that yet another piece of reform of the divorce law is not going to increase the numbers of divorces. I think that it is no use blinking at these facts which are there for us to see.
There are two questions. One is: "Does it matter?" The second is:"Do we really think it will happen?" I believe that a halt has to be called to the apparently inexorable rise of the divorce rate. The fact that over the past 10 years some 3.5 million adults and 1.5 million children have been involved in divorce should make us all pause for thought. Modern research— unlike that on which the Law Commission's earlier proposals were based, particularly in the 1969 Act— has shown that it is divorce itself which has such devastating effects on children. Of all their troubles, quarrelling parents who stay together are better for the children than divorce itself. Many children never recover from the trauma of divorce.
No one can read that remarkable book, Families Without Fatherhood, based on the research of two members of the Labour Party, with a very interesting foreword by Professor Halsey from Oxford, without being aware of the mass of statistics which indicate that children of divorced couples are less healthy, do less well at school, are more likely to be unemployed, are more likely to take to crime and, finally, to repeat the pattern of instability which they have inherited. More recent work in the Exeter study has made the same important point that divorce does lasting damage. My noble friend Lady Elles would have spoken on this point, had she been able to be here today.
The second general point that I would make about the Bill is that it is the work of the Law Commission. The Law Commission is concerned only with legal procedures, and I will turn to the detail of the Bill in a moment. Yet those are but a part of the whole situation of divorce. The enormous cost to society of divorce— vastly more than the legal aid bill— is a drop in the bucket, even with the money that is given to the mediation service. I have seen figures on the social security budget varying from £ 4 billion to £ 9 billion annually. I should be grateful if my noble and learned friend the Lord Chancellor could tell us what is the correct figure. Whatever it is, it is enormous. The money which is given is frequently paid by married couples who are already bringing up their own children and who are then obliged to support the children of divorced couples in ever more expensive circumstances.
Whatever consenting adults may or may not do in private (which is their affair), when children are involved, apart from anything else the direct cost of divorce is nearly always borne by society and society has, in my view, both a right and a duty to take an interest. I was very interested in the point made by the noble Lord, Lord Jakobovits, on that matter and very much agree with him. Yet the Bill is completely silent on the point and we are concerned only with legal procedures and a number of other well-meaning ideas. Much of what seems to me to be so essential for society is left out.
I find disturbing some of the philosophy of the Law Commission. The point was well made by my noble friend Lord Coleraine, speaking in an earlier debate on 732 the gracious Speech. He quoted Brenda Hoggett, now Mrs. Justice Hale, who I believe was the architect of the Law Commission's report on which the Bill is based. She said in a lecture:Logically, we have already reached a point at which, rather than discussing which remedies should now be extended to the unmarried, we should be considering whether the legal institution of marriage continues to serve any useful purposes".The Law Commission's report also states:the increases in the numbers of divorces does not, as is sometimes alleged, indicate a fundamental weakening of the fabric of society".All that I can say is that members of the Law Commission are clearly living in a completely different world from the one in which I find myself living.
Whatever the Law Commission says, marriage is the basis of society as we have always known it. Its breakdown over the past 30 years— in barely a generation, since the early 1960s— has had an absolutely disastrous effect. It is disastrous for adults, and particularly disastrous for millions of children. In my opinion it is gradually undermining society at all levels. Its costs in human and money terms continue to grow. I ask myself where we shall be 20 years from now. I decided to speak in this debate because, as I see my young grandchildren growing up, I ask what their fate will be if we continue down the terrible path on which we have set ourselves, with no clear idea where we are going or what we face at the end of the day.
I now turn to the detail of the Bill. I ask myself whether it will do anything to buttress marriage. The Bill has been hailed as the ending of the quickie divorce, and I welcome that. I am glad that newly married couples will not be able to divorce in under two years, and that other couples will in all cases have to wait a year. The reality of that, as I understand the figures, is that for 77 per cent. of couples who probably get divorced in six months, the wait of one year would add a further six months to that period. However, I agree with the principle. I should like to see that waiting period extended, and I shall table an amendment accordingly. I support it because I believe it acts as what has been described as a cooling off period. I was interested to read the statistics from Relate. Research shows that 51 per cent. of divorced men and 29 per cent. of divorced women would have preferred to stay married. I profoundly hope that the longer waiting period may help them. As the Bill stands, however, the wait is only one year. That means that a man or woman can be divorced against his or her will after a year without any reason being given. Therefore, although the wait deals with the quickie divorce, it considerably shortens the time taken in divorces with agreement after two years or without agreement after five years. That issue needs to be addressed.
I turn now to mediation, about which there has been much confusion. People think that it is conciliation. It is not; it is quite different. Couples must accept at the outset that the marriage is over before mediation starts. It is a method by which divorce settlements are facilitated. It cannot of course be compulsory. I have talked to those involved in mediation, and I see full well that it can work where couples are willing for it to do so. If there is no acrimony, mediation will no doubt 733 work well. There are those who are far more knowledgeable about this work than I who think, however, that it often puts women at a disadvantage. The danger is, "mediation" sounds so soothing. It is a kind of aspirin to the conscience of adults, who must know full well the damage that they are doing to children, to make them all feel a lot better. It may help some children, but what really disturbs children is the divorce itself. That is a paramount fact that we should hold onto.
I come now to what I realise will be regarded as very controversial remarks. I feel that I must make them because I believe them profoundly. It is the no fault provisions that I find to be the least acceptable part of this Bill. I simply do not understand what the noble Lord, Lord Habgood, intended in his remarks on no fault, that is, whether he thought there was not a fault or there was. Therefore let me say what I think.
Providing "no fault" undermines marriage vows. What, after all, is the point of making a vow when there is no fault if you break it? I have always believed that marriage is a sacrament. I realise that that is a rather quaint idea nowadays. It is certainly a contract, whether in church or at a registry office. But why should the concept of no fault apply to this, the most important of contracts, when it does not apply anywhere else?
The removal of fault undermines individual responsibility. By removing it, the state is actively discouraging any concept of lifelong commitment in marriage, to standards of behaviour, to self-sacrifice, to duty, to any thought for members of the family. It declares that neither party has any responsibility for the breakdown of marriage. Furthermore, it undermines the legal basis of marriage by making the contract meaningless; and it weakens the distinction between marriage and cohabitation. Under existing law, the need to establish a cause before divorce proceedings take place has been a consistent policy. Now, marriage can be ended just on the say-so of one or other, or both, partners. It flies in the face of experience.
Last year, when I was involved in the Pensions Bill, I received very many tragic letters from women aged about 55 whose husbands had gone off with someone aged about 28. As they cynically wrote, "I've been traded in for a new model". Those women had been married for some 25 to 30 years, so it cannot have been all that difficult for them. They had brought up the children and helped their husbands in their careers; and then were dumped. They will not believe that there is not a fault. By simply stating that there is no fault, we shall not remove it. What we shall do is bring the law once again into disrepute, because it will be out of line with what people know to be true. Stating that something is not true does not alter the fact that in many cases it is.
As someone once very wisely said, why look at the crystal ball when you can read the book? No fault divorce was introduced in California in 1970. It was not widely demanded by the public but appeared to offer— as we are being told today— an easier and less contentious way to end a marriage. Those are exactly the arguments that are used in support of this Bill. There 734 is now clear evidence from America, Australia and New Zealand, where no fault divorce applies, that it leads to an increase in divorce. I shall table amendments at a later stage to meet those objections.
I began by saying that this is a very important Bill. It is one that will have enormous consequences. It is very important for us to get it as right as we can. I recognise that there are very different and profoundly held views in all parts of the House. I shall table amendments which I hope will have the effect of trying to buttress marriage. That is what we ought to be talking about, not just picking up the pieces, which is what this Bill does.
On the one-year time limit, on no fault and on mediation, much could be said. There is much that could be said to bolster mediation by conciliation. I hope very much therefore that we shall be able to improve this Bill before it goes to another place.
§ 6.8 p.m.
§ The Lord Bishop of Oxford
My Lords, to state the obvious quickly and get it out of the way, I believe marriage is for life and I find the present high level of divorce dismaying. I respect the passion with which the noble Baroness, Lady Young, made that point. At the same time I recognise that if people are determined to divorce, the state must legislate for that. The question before us is simply this. When the point of irretrievable breakdown has been reached, what is the most humane and effective means of legally recognising that and settling the contentious practical issues?
I believe I speak for the majority of bishops of the Church of England in warmly welcoming Parts I and II of the Family Law Bill, to which I propose to confine my remarks, with one important condition and with attention to many of the important points of detail that have been made in this debate. The advantages of the new procedures for divorce are many. They have already been highlighted by a number of other noble Lords and I shall not repeat them. I wish simply to focus on two criticisms of the Bill that have been made, both within and outside the House.
The first criticism is that every reform of the divorce law since World War II has resulted in a large rise in the number of divorces and that this Bill will have a similar effect. In short, it will further weaken the institution of marriage as a lifelong commitment. It is a point that has been well made by Ruth Deech and was referred to this afternoon by the noble Baroness, Lady Young. I am particularly sorry to have to disagree with the noble Baroness on this point.
It is indeed true that the number of divorces has risen steeply in recent years; but it is not inevitable that that trend will continue. Many noble Lords will have read the latest figures for the number of divorces, and in fact they have gone down by 7,000 a year, or 4 per cent. The initial rise in the rate of divorce when the law was changed had at least something to do with the great backlog that had developed of marriages that had indeed severely broken down and for which, sadly, divorce was the least bad course of action.
735 As for the general rise in the divorce rate, that is due to a whole range of social pressures, of which the availability of divorce, in my opinion, is not the most significant. One significant pressure, to which I have referred in this House in the past, is the fact that we simply live so much longer. The average length of a marriage today is longer than it was 150 years ago, when so many women died as a result of childbearing. That means that,for better for worse, for richer for poorer, in sickness and in health",may mean trying to stay together for 60 or more years. Together with other significant factors, such as the new role of women in society, it poses major new challenges. The availability of divorce is only one— and not the most significant— of the many severe pressures on marriage in our time.
Sadly, marriages fail, but we do not strengthen the institution of marriage by an unsatisfactory divorce law, which the present law is widely recognised to be. Let us concentrate on the present proposals for their own sake, recognising that marriages break down and that when they do we need the least damaging and most effective procedure possible. Strengthening the institution of marriage is a separate issue, to which I shall refer in a few moments.
The second criticism of the present Bill is that the abolition of fault as evidence of breakdown means that marriage as a legal concept no longer has any meaning. Again, that has been referred to by your Lordships. In effect, so the critics say, it is reduced to a private contract which can be dissolved at will. In my view, that criticism is mistaken. Under the new proposals, the court still plays the crucial role and the procedures set out will he enshrined in laws with which the people will have to comply. Only the court may make an order to dissolve a marriage. Furthermore, according to Clause 10(2), the court can also make an order preventing a divorce, if dissolution would result in hardship to one of the partners or if:it would be wrong, in all the circumstances … for the marriage to be dissolved".It may seem an obvious point, but it is one which still needs to be made in the light of the criticism. The involvement of the court in the process is a recognition that marriage is not simply a private contract. Marriage is a public commitment in which society has a stake— a stake expressed through the law and the courts. The details of the process, the requirement to attend an information session and the year which must be set aside for reflection and consideration, for example, signify clearly that it is not just a private arrangement. Marriage will remain what it was: a commitment for life, made in public with legal consequences.
In supporting the Bill, neither I nor my fellow bishops in any way imply that fault is not involved in the breakdown of a marriage. There is fault, as the noble Lord, Lord Habgood, stressed. But anyone who knows anything about relationships knows how difficult it is to attribute blame fairly. In some marriage breakdowns it may seem glaringly obvious who is at fault, but in a good number of cases the real story is painful, private and confused. A court with an adversarial process is not 736 the best context in which to adjudicate. Far better is what is proposed in the present Bill, where the two partners simply have to face the question: has or has not their marriage irretrievably broken down?
I suggest, therefore, that the two main criticisms of the Bill do not stand up to serious analysis. If we are to have a divorce Bill, let it be one that is humane and effective— which I believe, in principle, this Bill to be, whatever further details need to be attended to.
It is also the purpose of the Bill to give an opportunity to save marriages that are savable. It is stated in Clause 7(1)(a) that the very first purpose of the year's period of reflection and consideration is:to reflect on whether the marriage can be saved".In addition, the Lord Chancellor may make a rule requiring the legal representative of a party to certify:whether he has discussed with that party— the possibility of a reconciliation; and …whether he has given that party names and addresses of persons qualified to help— to effect a reconciliation; …or by counselling".That is in Clause 11(2).
The noble and learned Lord the Lord Chancellor, both this afternoon and outside this House in many speeches over the past year, has stressed his personal commitment to marriage and his wish to strengthen it. In particular, I note what he said at the launch of Marriage Care about the role of the Inter-Departmental Working Group on Marriage, one of whose tasks is to identify:how existing resources might best be used to meet the needs of couples who are considering marriage or whose marriage is in difficulty".I particularly respect the great passion with which the noble Lord, Lord Jakobovits, brought to our attention this afternoon how pressing and widespread is the problem.
Existing resources are small compared with the amount spent as a result of marriage breakdown. In 1992, that sum was certainly £ 3.4 billion. That contrasts with the mere £ 3 million spent on supporting the work of marriage organisations. I very much hope, if the Inter-Departmental Working Group on Marriage ascertains that present resources, however targeted, are inadequate, as I believe them to be, that it will say so clearly and that the Lord Chancellor will support an increase in those resources.
There are ways in which marriage can be supported and there are well trained people able to work in this field but, as always, resources are needed. Commitment to marriage implies commitment to finding the resources to support it. Support of this Bill, which offers a procedure for divorce, which minimises the damage— a support which I wholeheartedly give— needs to go along with support for the organisations which support marriage, for that too is part of the express purpose of the Bill.
§ 6.19 p.m.
§ Baroness Faithfull
My Lords, I rise to support the Bill; at the same time I agree with the noble and learned Lord and many other noble Lords who have spoken of their profound belief in stable, happy and lasting marriage. However, it has to be admitted that there are 737 marriages which break down. It is absolutely essential that we better educate our children about marriage. As many noble Lords have said, we should put more money and more resources into preventing marriage breakdown and helping people whose marriages are at risk.
I wish to speak about children. It may seem presumptuous of me to speak on divorce. I am unmarried with no children. But my professional life has been spent working alongside vulnerable families and, in particular, those who have embarked on divorce, both before and then during and after. I have also served as a servant of the court. With such experience I believe that the Bill should ensure that children are the main consideration. The noble Earl, Lord Russell, said that as a child he had experienced divorce in his family. I too was brought up by one parent, my father being killed in 1916. We may think that we are normal, but we do not know. We might have been better; perhaps I should say humbly that I, rather than the noble Earl, might have been better.
The Children Act 1989 states that when a court determines any question with respect to the upbringing of children, the administration of a child's property or the application of any money accruing from it, the child's welfare shall be the court's paramount consideration. I make three points. It is wise that the Bill drops the fault clause. Only in extreme cases can anyone outside the marriage judge where the fault lies. Often it can be incompatibility of both the husband and wife. And for the fault clause to be proved requires the adversarial system of wife versus husband or vice versa.
Research by both the Great Ormond Street Hospital and the Rowntree Trust shows that children's happiness, wellbeing and behaviour reflect the state of mind of the parents. Inevitably, during the course of the divorce in the courts, the parents are overwrought and the parent caring for the child cannot hide from the child his or her state of mind following an acrimonious court hearing. The state of mind of the parent or parents is bound to be reflected in the child's feelings and behaviour, not only at the time of the court case, but thereafter— and long thereafter.
Furthermore, the adversarial system in court does not engender a peaceful relationship in the future which is necessary if children are to be in touch with both parents. Therefore, I support the work of the family mediation service. The noble Lord, Lord Habgood, said that one other member of this House is a patron of the service. I confess it is I. Furthermore, I am president of the Oxford mediation service whose chairman is a judge. At the annual meeting I attended this year, several judges were present to support the work. As stated by many noble Lords, the mediation service makes possible for parents to talk through quietly and without acrimony the future of the children and the financial situation.
Many noble Lords have said that the mediation service may be harmful to the wife where the question of property arises. I understand, however, that legal advice will be available. And, of course, the case finally goes before a judge. Those who run the mediation 738 services in Oxford are trained. We have a trained probation officer who has available to him legal, advice and some of the mediators are themselves legal people.
Many years ago— more years than I care to remember— I was asked to chair a lawyers' meeting at Bristol University. The lawyers wanted to start a mediation service. I asked why. They said that much of their time and work was taken up by mediation which required long hours which they did not always have available, and that someone outside the court was needed to spend time with a couple if the marriage breakdown was to be as smooth as possible and without unhappiness.
I should perhaps say that both parents, when attending mediation, are made aware of the different laws that will affect them and their children when the divorce is finalised. It is sad that the legal profession is so divided on this subject. Many lawyers support the mediation service, but many do not. That saddens me because, as has been said, many lawyers take an active part in the mediation service.
I wish to raise one or two points with the noble and learned Lord the Lord Chancellor. First, I believe that children have a right to be heard in all cases of divorce. Children have come to me and asked, "Why am I not spoken to? Why am I not asked? Why can I not say what the trouble is?" I feel that children are left out of consultation not only during the time of the divorce but also following the divorce. We all make mistakes. Sometimes custody is given to a parent and the arrangement breaks down. The child has no one in whom to confide and explain deep anxieties.
My second question concerns fathers. According to research by the university of Newcastle, many men are devoted to their children and want to see them but, owing to various circumstances, have been unable to formulate or continue a relationship with their children or ensure their happiness. Times have changed. Men can now cook. They can look after children, and many do. At one time in Oxford three unemployed men came to me and asked to run a nursery. I made sure that they were trained and that there was a health visitor on hand. But I have never seen three happier men. They were quite upset when they obtained jobs and had to give up the nursery. Attitudes have changed. Children need fathers and mothers. The fact that they may be separated or divorced need not break the relationship with parents. It gives happiness both to the children and to the parents.
I pass on to the Family Homes and Domestic Violence Bill. It would be presumptuous of me to comment because the noble and learned Lord, Lord Brightman, is to speak. He was marvellous as chairman piloting the discussions on the Bill in this House. I wish, however, to be somewhat emotive. Anybody who has had to remove a child from his or her home because of allegations of cruelty or sexual abuse will know that it is a heart-rending experience. It is damaging to the child. The child has already suffered cruelty of some kind and must suffer again by being removed from the family home. The chairman of my committee in Oxford is sitting in 739 front of me. We arranged for an empty flat to be available into which we could move mothers and children. Even then, of course the child is moved from his home. Therefore, I support the Family Homes and Domestic Violence Bill. I know that it may be difficult for the owner of the house, but surely children come first.
§ 6.30 p.m.
§ Lord Brightman
My Lords, I should like to speak briefly on Part III of the Bill, which replaces the Family Homes and Domestic Violence Bill. The domestic violence Bill, as I shall call it for short, received all-party support in this House in the last Session, but was derailed in the other place as a consequence of ill-informed newspaper comment. In particular, it was asserted that the Bill had been whisked through this House— that was the verb used— without proper consideration and without adequate opportunity to table amendments.
That was a travesty of the facts. The committee set up in your Lordships' House to consider the Bill, which I had the honour to chair, received written evidence from 48 different sources, and heard oral evidence at six meetings. A total of 82 amendments were tabled at the Committee, Report and Third Reading stages. Seventy of those amendments were accepted. In conformity with the Special Public Bill Committee procedure, every Member of your Lordships' House had the right at every stage of the domestic violence Bill to table amendments and to speak on amendments. I can therefore say, without fear of contradiction, that the domestic violence Bill could not have received more profound consideration in this House than it has already received.
There are, however, four changes in the domestic violence Bill which are made by Part III of the present Bill. It is on these four changes that I should like to concentrate for a few moments. Change No. 1, as I shall call it, is this. The former domestic violence Bill gave the High Court, a county court and a magistrates' court power to make what is called an occupation order. An occupation order, put briefly, is a temporary order regulating the occupation of a home by, for the most part, spouses and ex-spouses, and unmarried couples who are living together as if they were man and wife. Under the domestic violence Bill an occupation order could be made from time to time, without any specified maximum period. Under the new Bill, in the case of unmarried couples who do not otherwise have property rights, an occupation order cannot be made for more than a maximum period of one year. Only spouses and ex-spouses can have the benefit of an occupation order which lasts longer than that.
That is the first change, and the question is whether it is an acceptable change. I express no final view at this stage, because I should like to listen to the arguments if any of your Lordships see fit to seek to restore the position under the domestic violence Bill. But, as at present advised, I find the change an acceptable one.
I turn to change No. 2. The scenario on this occasion is that a spouse or ex-spouse, or an unmarried partner or ex-partner, seeks an occupation order in respect of 740 the family home. Under the former domestic violence Bill, the court would be bound to make an occupation order in favour of the applicant if the hardship to the applicant or a child was likely to exceed the hardship to the respondent or a child. That provision remains the same under the new Bill in the case of spouses. But in the case of unmarried couples, the new Bill gives the court a complete discretion. I myself have no objection to a judge having power, for a limited period of a year, to do what appears to him to be fair and just in all the circumstances as between unmarried couples and any child involved.
I turn to change No. 3. The scenario here is that there is a property dispute between the parties. Under an Act of 1882, a short and easy summary procedure was established for dealing with such a dispute as between a husband and wife. The domestic violence Bill proposed to extend that summary procedure to unmarried couples. This clause is not contained in the new Bill. Unmarried couples will have to use the ordinary court procedure to help resolve their property squabbles. This is a matter of court procedure and not of substantive law, and I have no strong objection to the change.
Change No. 4 is significant. Clause 36 of the new Bill, with no counterpart in the domestic violence Bill, provides that, in deciding whether to make an occupation order in favour of a cohabitant or ex-cohabitant, and whether to impose obligations regarding repairs and maintenance of the home, the payment of outgoings and the like, the court,is to have regard to the fact that the parties have not given each other the commitment involved in marriage".This is an important change, and, if an amendment is tabled to remove it, I should like to hear what is said before I make up my mind. But at the end of the day, I feel sure that a judge will always seek to promulgate an order that is fair and just, and suited to all the circumstances of the case without adopting too legalistic an approach. So it may well be that I shall find the addition of this clause acceptable.
To sum the matter up, I am sorry that my noble and learned friend the Lord Chancellor has found it necessary to make changes to the domestic violence Bill. As the former chairman of the Special Public Bill Committee, I have tried to deal as fairly as I can with those changes. I can only express the hope that Part III of the new Bill, with or without the four intended changes, can find its way on to the statute book as early as possible and without any additional changes. I am certain that it will be warmly welcomed by all who are concerned with the problems that Part III of the Bill seeks to resolve.
§ 6.40 p.m.
§ Baroness Macleod of Borve
My Lords, I am grateful to the noble and learned Lord, Lord Brightman, for what he has been telling us about Part III of the Bill, which is a part of which I had absolutely no knowledge and now certainly have more than I did at the beginning of his speech. In my view this Bill is one of the most important that we shall discuss in this Session of Parliament because it deals with most of the people in this country, past, present and future.
741 It was 12 years and 10 days ago, in 1983, that we had the Second Reading of the Matrimonial and Family Proceedings Bill under the guidance of my noble and learned friend Lord Hailsham as Lord Chancellor. I seem to remember that the General Synod was in session that week and it was able to give us its views, as it is doing today, and we welcome that so much.
Unfortunately, since then the situation as regards divorce has deteriorated and many more families are increasingly making themselves, their children, relatives and friends deeply unhappy through divorce. I and all who are worried by the present trends are enormously grateful to my noble and learned friend the Lord Chancellor for the hard work, imagination, care and concern that he has given to this particularly difficult Bill. I say "difficult" because it is not possible to find the right answers and give the right guidance for 173,000 divorces— that was the figure for 1993 in Great Britain.
All noble Lords who are taking part in the debate this afternoon will have received as many recommendations and reports as I have, and have doubtless spent many hours weighing up the evidence and advice. I have been very much impressed by the ideas put forward by Relate. As I believe that I am a committee member, I want to acknowledge due guidance and pay deference to it for its very hard work in this particularly difficult field. It has wide knowledge and experience.
As with other organisations, it does not agree with the present grounds for divorce. As we know, the acrimony and bitterness endured by children when divorce is not agreed to is made much worse if one partner is continually blaming the other. That does more than anything else to make the children unhappy and leads to unhappy adults. My noble friend Lady Faithfull was perfectly right when she said that we know that children will grow up with the example set by their parents, whether they are divorced or not.
This Bill will make it more difficult to obtain a divorce and will give couples not only more knowledge and advice before they marry, but they will have a source of help on which they can draw if difficulties arise. I believe that care must be taken to make sure that at all stages the talks are confidential. There is one question I want to ask my noble and learned friend and it is this: at what court will the separation orders be granted? When I dealt with them as chairman of my matrimonial court many years ago, it was in the magistrates' matrimonial court. The court was always cleared and no publicity was ever allowed. I feel very strongly that the two people involved need it to be known that no publicity will follow their appearance in court.
Although the Bill, which I warmly welcome, deals with the partners to a marriage, the children and future generations must be adequately protected. In my view they should, as my noble friend Lady Faithfull has said, be advised through counselling about the state of their parents' unhappiness.
742 There is an organisation called Families Need Fathers which I also try to help. We have talks on this subject. The fathers are deeply unhappy that the courts have not given them as much authority over the children as they had before, despite the fact that frequently the judges involved want the fathers to have more authority over the children.
Marriage is one of our national institutions and part of our way of life. We hold it dear and precious. As has been said, breakdown of a marriage is defeat for both parties. I shall end, because time is precious tonight, by updating the quote of the right reverend Prelate the Bishop of Oxford, which was marry,for better, for worse; for richer, for poorer",by adding,but never for lunch".
§ 6.48 p.m.
§ Lord Stallard
My Lords, I too welcome the introduction of this Bill by the noble and learned Lord the Lord Chancellor. I say at the beginning that I accept quite readily and happily his Christian-based background and his references and biblical quotations to prove it. I say in passing I can count 42 quotations from the Bible upholding marriage in most respects, so we could go on for the rest of the evening exchanging quotations, which would prove that we are all right— and so we are.
I also accept that there are a number of contradictions in the Bill and some of them have been mentioned by other speakers. I shall keep mine as short as possible. In a debate of this kind it is inevitable that we shall all be speaking to each other at some stage. The Bill makes the most significant changes to divorce law in 26 years. There were some significant changes 26 years ago and this Bill makes even more. With the highest divorce rate in Europe, we have to look carefully indeed at all the possible implications of the proposals contained in this Bill.
I agree with those people who recognise that the current law of quickie divorces is in need of reformation. However, I believe that the proposals contained in the Bill are flawed. This is not the first time that divorce and its causes have been examined since the end of the last war. On each occasion one social factor or another, or a combination of social factors, has been blamed for the increase in divorce. Bad housing, lack of housing, youthful marriages, women's increased awareness and activity in social and political matters and the availability of legal aid have all been mentioned. The list gets longer, but all are excuses to justify the need to change the law yet again.
Lawyers and some politicians have always concluded that reforming the law will change the outlook of those people whom it is intended will be affected by the reforms. I think that that view is firmly reflected in this Bill also. We hear lawyers justifying it and saying that it will change people's outlook, but they said that last time and the time before. I do not think that it happens like that. It is always denied that new laws which make 743 it easier to obtain a divorce will cause more people to end their marriages. But, as we have already heard, this Bill would make it easier to get a divorce.
The facts belie such views. Indeed, things changed even before the 60s. We have had 130 years of divorce reform and after each set of reforms, the number of divorces has increased. That is a fact based on sound research. It has been the case for many years. In the 60s, there were only 45,000 divorces per year. However, after the 1969 reforms, the number of divorces rose over three years to more than 100,000 per year in England and Wales alone. I am always conscious of the fact— I am sure that we all are— that behind every divorce lies a human tragedy— and that is a terrible number of tragedies. The most recent figures reveal that in 1993 there were 165,000 divorces in England and Wales and that 176,000 children experienced their parents' divorce. I repeat that the figure is 176,000, not 76,000 as was said earlier by, I believe, the right reverend Prelate the Bishop of Oxford.
Reference has also been made to a decrease in the number of divorces. However, those who justify their remarks in that way do not mention that there has been a fall in the number of marriages also. We do not have the figure, but those of us with some street-sense know that even now marriage is becoming something that is unpopular, not necessary, difficult and expensive. That is why we do not hear much about marriage any more. We hear a lot about "my partner" or "my relationship", but nobody ever refers to their wife or husband any more. There are many fewer marriages today and, given that there are fewer marriages, I am not surprised by the fact that there are fewer divorces as a consequence. However, that was not the impression that I gained from the right reverend Prelate.
If current divorce rates continue, one in four children in England and Wales will see their parents divorce before they are 16 years old. A key aim of the Bill is allegedly to minimise harm to children by making the process less acrimonious. I agree with everything that the noble Baroness, Lady Faithfull, with all her experience, said about children. However, recent research undertaken by the Centre for Family Research and by the Exeter Family Study, which has been mentioned by the noble Baroness, Lady Young, and others, reveals that greater damage is caused to children's mental, physical and educational wellbeing by parental separation than by the death of a parent. Research shows that children suffer more from the permanent separation of divorce than from bereavement. I accept the validity of that research.
Therefore, the priority should be to prevent parents divorcing, not to make divorce easier. Children want their parents to stay together, not to part— even amicably. Therefore, we are entitled to ask whether the thrust of the Bill is in the right direction. I do not think that it is. Previous experience teaches us that reforms such as those proposed in the Bill exacerbate the situation. I have mentioned the figures. Every year there are 190,000 petitions for divorce. In 1968, 10 per cent. of marriages ended in divorce, whereas now, after all the reforms, 40 per cent. of marriages end in divorce. And things will get worse. Ruth Deech has been quoted 744 and I make no apology for quoting the words of this expert in family and divorce law. She has stated that the Government should abandon plans which make divorce easier. If they go ahead, she says,They will not save marriages but will precipitate a further rise in divorce".That view is not to be taken flippantly when it comes from somebody so experienced in the subject.
I agree with all those people whose work involves trying to save marriages and to discuss such difficulties and who say that the Government should amend the Bill to include providing education on marriage for children at school. Children should learn at school about the sanctity of marriage and how to prevent breakups. There should be widespread publicly funded marriage preparation for all couples contemplating marriage. The noble Lord, Lord Jakobovits, mentioned something along those lines. Support and funding for services and agencies which provide ongoing marriage support and counselling should be made available. Greater emphasis should be given to the effects of divorce on children. Parents should be made far more aware of that than they are at the moment. More information should be given to them about the effects of parental separation on children. As has been said, the problems caused by separation are far more severe than those caused by conflict in marriage. Research shows that, in many cases, a bad marriage is better for the children than divorce. A bad marriage does not do them as much damage as separation or the permanency of divorce.
How many times do we have to hear reformers telling us to come into line with the times? Every time we have a controversial Bill we are told to come into line with the times. They say, "Join the real world; face up to reality and forget the past because it has gone". I heard such words almost daily during the passage of the 1993 Education Act. We were always being told to move into line with the current state of affairs as opposed to what we thought matters should be. We have heard that again tonight. We have been told that we must accept that this is what people are doing and that, "They are all at it". We have been told simply to accept it and to try to legislate for it.
That has been the basis of most of the movement for reform. However, it does not do us any good. Indeed, it makes things worse and then we have to return for another reform of the law. Those of us who resist that automatic reflex action, which emerges in every debate, are always dubbed reactionaries, has-beens and old fogies who are past our sell-by date—
§ Lord Stallard
My Lords, yes, or dinosaurs. We have heard all that. I have the feeling that that attitude is with us again tonight. I have felt that all those of us who do not agree with the provisions have been dubbed all those things.
However, when it comes to divorce, all the statistics, research and experience prove those of us who have tried to maintain some stability to have 745 been more right than wrong. I should like to quote Ruth Deech again. She has put the case well in her pamphlet, which is entitled Divorce Dissent, when she writes:Over and again in this century reformers have told us that the law has to be amended to bring it into line with reality, because behind the facade of statute, consensual decrees are being obtained without proper investigation. The black letter law is then brought into line with practice; the divorce rate rises and very soon we find that practice is again out of step with the law. Somewhere a stop has to be called".I totally agree with her and with all the other people who believe that there are times when leaders should lead. Legislators should lead and not follow public opinion. They should listen to the public but they should lead. The same applies to Church leaders. I was happy to listen to the noble Lord, Lord Jakobovits, giving what he thought would be a lead. I was happy to hear a religious leader who was prepared to lead and to say something positive about the need to lead.
The effects of divorce proceedings on children are not always shown in surveys but, certainly, they are shown in surveys relating to this Bill. They should make us halt and consider where we have gone wrong and, if necessary, call a stop to the process of automatically accepting what is and give a lead to what should be.
The costs of divorce were mentioned briefly by the noble Baroness, Lady Young. The figure amounts to several billion pounds per year and includes legal aid, welfare payments, extra housing, court costs, judges, lawyers, accountants, conciliators, counsellors, sickness, lost time and God knows how many other things. That adds up to billions of pounds which, had the money been spent in the right way, might have seen the saving of many marriages. It is not too late yet.
One should add to that the bitterness, acrimony, hardship and even the suicides of which we have heard resulting from the introduction of the Child Support Agency. The effect of such legislation is vividly outlined by the leaflet circulated by the victims of the CSA to many Members of this House.
During the last few minutes left to me I wish to make a suggestion along the lines that I have mentioned. The Bill is designed to make greater use of the mediation process in an attempt to save some marriages. But mediation does not mean that at all. Mediation is not reconciliation; it is a totally different process. Indeed, if we understood our Latin lessons we know that it is a completely different word. Mediation and reconciliation are totally different. We do not want mediation, which focuses on the future and not on the past. It accepts that the marriage is broken and that we should sort out who gets the house, who gets access to the children and how much it will cost. The mediators, who are paid by the session, will make them last as long as they can. Already we are being lobbied by some powerful people who want to get into the mediation which will be set up as a result of the Bill. Many mediators will be paid to mediate but only after the damage has been done.
I say that we should stop and look again at that. We should try to help couples to resolve disputes and, indeed, not to get into them. All the pressure will be 746 in the direction of divorce and not in the direction of forgiveness or reconciliation. The process outlined in the Bill is back to front. It is important to understand that, for the sake of the children and so forth, we should be concentrating on reconciliation. I hope that the Bill will be amended to include reconciliation. It emphasises mediation. At page 218, the Government's proposals in Looking to the Future emphasise mediation by stating:Such a process requires each party to accept that the marriage is over before proceeding [to mediation]".The Government have outlined and laid down that intention. I say that we should turn the issue around and make reconciliation a definite aspect by stating that there should be a six-month period geared solely to reconciliation. During that period there should be a moratorium on mediation and litigation. Only after that six-month period, when all attempts at reconciliation have failed, should mediation and litigation be considered possible. Much more should be done to promote that view. It is widely acknowledged that some divorce petitions, possibly many, are a cry for help which may not reflect a seriously thought-out decision to end the marriage. A considerable number of spouses do not go through with divorce. Every year there are between 20,000 and 30,000 more petitions than there are divorces. Clearly, people turn back. The legislation does not make it clear that what is needed is not mediation but reconciliation. That should not be left to chance and therefore I hope that we can amend the Bill along those lines. Perhaps the Government will consider doing so.
I recognise that my suggestions may not be fashionable and may not even be politically correct but I do not care. I believe that they are necessary and sensible. I do not even consider that this is a party issue and I do not approach it on a party line. I take the view that the matter is more serious and cannot be knocked about like a party political item at an election. The matter should be taken seriously by the whole House. I hope that more priority resources will be made available to all the organisations which are working hard along the lines that I have outlined on reconciliation to save marriages, to prevent divorces and to prevent the increase in divorces that will result if the Bill is passed.
§ 7.7 p.m.
§ Lord Simon of Glaisdale
My Lords, when I spoke on his measure in the debate last week I ventured to suggest that, if the Bill were passed into law, marriage would, in effect, be an arrangement between the parties to live together until one gave a year's notice of its termination, whereupon it would determine, irrespective of the wishes or interest of the other party or of the children. No one who followed me in that debate— and many did, including the Minister— controverted that view. Nor has any noble Lord who has preceded me today. Therefore, my first question must be: is that really the kind of marriage that your Lordships wish to see constituted in this country? I humbly suggest that that is a matter that the Bench of Bishops should face specifically. 747 So far as I can see, there has been no demand, no call, for this measure. I suppose an economist might say, "It's not demand led; it's department pushed".
Another strange aspect arises. As a Cross-Bencher I naturally take an interest in comparative government. I have been asking myself what are a Conservative Government doing bringing in a measure such as this? If I am right in saying that it would be terminated irrespective of the wishes of the other spouse or the children it must be obvious at the outset that there will be a substantial risk of injustice, especially to married women, and a disadvantage to children.
Before I try to spell that out more clearly, perhaps I may deal with an observation made by my noble friend Lord Habgood, who sought to justify the concept of irretrievable breakdown as a proper basis for divorce by relying on the document Putting Asunder. I thought that he was on rather dangerous ground because that implicated quite clearly the Church with the disaster of the 1969 Act. I say "disaster" because the very point of departure of the White Paper has been the mischief of the 1969 Act. The figures have been quoted repeatedly for the dramatic rise in the number of divorces and the children affected consequent on that Act.
The right reverend Prelate the Bishop of Oxford was inclined to suggest that the increase that follows every liberalisation facilitating divorce represents an initial surge, the taking-up of a backlog. But that was certainly not so. After the 1969 Act came into force, it is true that there was a 44 per cent. increase in the number of divorces. But it did not stop there. The numbers went on rising constantly from that point until, according to the latest figures, there are 2.5 times as many divorces as there were in 1970 and, therefore, 2.5 times as many children who have been affected—168,000 according to the 1992 figures, which are the latest that we have. However, one must add that figure to the number of children under 16 who were affected by divorce in previous years and who were still under 16 in 1992.
The fate that was visited on those children was admirably described by my noble and learned friend the Lord Chancellor in the passage which I quoted in our recent debate. It was spelt out, if I may say so, most movingly by the noble Baroness, Lady Young, in her extremely important speech today.
My noble and learned friend the Lord Chancellor will remember, because he dealt with it with such dialectic and parliamentary skill, the Child Support Act. That was launched by a White Paper entitled Children Come First. Do they come first under this Bill? Do they not rather come last? Are they not deferred to the wishes of their two parents to be rid of each other but, furthermore, are they not deferred to the wish of one parent to be rid of his marriage and possibly because he wishes to contract another one?
Obviously, the damage to the children will be less if the parties can part without acrimony. For that reason, as well as because we put them forward in the context of the family court, the proposals for mediation and conciliation are to be welcomed. While damage limitation is to be welcomed, is it not really preferable to try to avoid causing the damage?
748 I have dealt with the children and I turn now to the married woman. Your Lordships may remember the story of the traveller who asked an elderly inhabitant, "Which is the way to Littlecombe?" The answer to that was, "If I were going to Littlecombe, I wouldn't start from here". That is the real fault of the White Paper and indeed, the Law Commission Report. It starts from the wrong point. The right point would surely have been to ask what it is about traditional marriage as a norm that makes it congenial to western society.
There are a number of reasons why marriage— that is, a lifelong monogamous marriage for joint life— should be found to be congenial. I wish merely to isolate one of those reasons because it seems to me to be fundamental and its disregard is redolent of injustice.
Society needs two things for its continuance: one is production and the other is reproduction. Reproduction is needed to generate the successors. Production is needed, economic activity is needed, to sustain them. The main burden of reproduction falls on a wife. It is she who bears the child for nine months; who alone can suckle a child, although others can give a bottle; and by doing that, she incapacitates herself for her own economic effort. Moreover, she releases the husband for his economic effort. He can advance himself economically. In other words, one sees a co-operative division of labour. While there is a co-operative division of labour, in equity, the fruits of the labour should be shared between the parties.
But in the case of marriage, there is an additional factor; that is, that the early years are generally more difficult than the later years. The early years are straitened; there is more work to be done, and fewer means to be enjoyed. The later years are years of ease. They are much easier. Therefore, to allow a wife to be cast off at the end of the difficult period so that the easier time may be shared with another woman who has found better favour in the man's eyes must be the very depth of injustice.
There is one specific aspect of that that was mentioned by the noble Baroness; that is, the pension. Increasingly the emoluments of labour are deferred to be paid in the form of pension after retirement and to a widow after the death of the man who has earned it. What could be more unjust than to allow that pension to be carted off to another person in another marriage?
Some emphasis has been placed on the spate of propaganda that we have had on the safeguard of grave financial and other hardship which allows a court to refuse the divorce. Why should a wife who has substantially performed her matrimonial role have to suffer any hardship at all? Why should she suffer grave hardship? I am told that, in fact, only once since 1970 has the court invoked that provision. I tried to get the figures from the Lord Chancellor's Department, but they are evidently not available. However, that is what I have been told by practitioners.
Perhaps I may deal briefly with mediation and the end to the quickie divorce. There has never yet been this century a divorce Bill where the pill has not been sugared. A very good example is A. P. Herbert's Matrimonial Causes Act 1937. There were two baits on 749 the hook: one was that there should be no divorce in the first three years of marriage; and the second was a sop to the clergy that they were under no duty to marry any divorced person whose spouse was still alive. Perhaps your Lordships would like to consider what has happened to those two sops. The three-year ban has been whittled away and is now only one year. As for the clergy immunity, that has gone entirely. The hook having been taken, the canister of bait could be safely thrown away. That was 1937.
As for mediation, naturally we who pressed for a family court— of which that was a centre— welcome it. But it is not enough. We concede that the family court should also in its welfare wing have a reconciliation role and, indeed, a social welfare role. Those are missing from the Bill. We failed to get anywhere with the Government on our plea for a family court, despite the support of the Finer Committee on One-Parent Families and of the Law Society (prompted by the Family Law Division) and, most importantly, in your Lordships' House that of the noble Lord, Lord Mishcon, and the noble Baroness, Lady Faithfull. Nevertheless, the courts did what they could.
My predecessor as President in the High Court appointed a group of welfare officers. Their mediation is primarily to do with children. On the whole it has been useful, although comprehensive mediation is likely to be more useful. I do not have the figures with me, but my recollection is that the welfare officers alone engaged in 192,000 mediations in the last recorded year. My noble and learned friend on the Woolsack will probably have the figure and be able to verify it.
When I succeeded Lord Merriman, I went to the marriage guidance group of the National Marriage Guidance Council and the Roman Catholic and Jewish counterparts. They gladly came in and contributed reconciliation and marriage guidance, in addition to mediation. The other feature was a number of local groups. I only have direct contact with one—the one in Teesside— which engages in general married guidance, including reconciliation as well as mediation and conciliation. The noble Baroness, Lady Faithfull, mentioned her Oxford group last week. Moreover, my noble friend Lord Habgood has done a great deal in that connection. Reconciliation is most important.
Finally, I turn to the quickie divorce which has been at the forefront of the propaganda. The noble Lord, Lord Stallard, held up a pamphlet which was on top of the enormous and expensive parcel that was sent to us last week. It is headed, "An end to the quickie divorce". Who would think from that that the quickie divorce was solely the creation of the Lord Chancellor's Department which now claims that its disappearance justifies this further step towards the sort of marriage that I ventured to describe at the outset of my address to your Lordships?
Perhaps I may deal briefly with Part III of the Bill. I understand the wariness of Members in the other place at finding marriage approximated, as so much is in that place, to parties living together in a regular union. On the other hand, as the noble Lord, Lord Irvine, pointed out, there is a considerable history here, principally in 750 the 1977 Act. There is also, very potently to my mind, the considerations that were urged by my noble and learned friend Lord Brightman, who spoke earlier in the debate.
As the Government withdrew the Bill last Session and have now presented it to your Lordships' House, it is my view that any noble Lord or Member of the other place is fully entitled to table an amendment to any provision. The Opposition parties have indicated that they wish to challenge the changes and we shall certainly have to listen to them. However, I believe that it would be a great pity to do anything which endangers the advantages of the Jellicoe procedure. Therefore, I humbly venture to suggest that we should proceed very warily when we come to deal with Part III.
Last week I urged, as the noble Lord, Lord Stallard, has just done, that there should be some positive measures in the Bill to affirm marriage. I suggested two fiscal ones. Within the scope of the Bill, by far the most important is to deal with the married woman's ownership of the matrimonial home and its chattels. It seems extraordinary that a married woman who stands by her marriage from the point of view of finance and property is in a considerably worse position than one who divorces. How can that possibly be justified? How, I ask, can bringing forward this Bill to facilitate divorce in priority to a measure dealing with married women's rights be justified? It is not as if the Law Commission had not taken up that matter; it did in the early 1970s, but that has all been left aside.
The final question which I would venture to lay before your Lordships is: how should we act on Second Reading? Before I pose that question, I hope that I may ask my noble and learned friend to deal, when he replies, with the Whipping procedures that will be used on this Bill. I hope he will be able to say that there will be no Government Whips at all and that there will be a free vote for every Member of Parliament in either House. Having said that, the Salisbury convention does not apply to this Second Reading. Nevertheless I shall myself, when the voices are collected, be voting in favour of this Bill because I believe that the mediation procedure, so far as it goes, is worth having. I am anxious to get rid of the quickie divorce and I am anxious to get rid of the provisions of the 1969 Act which are repealed in the schedule. There is also Part III, which I believe it would be wrong to jettison after the consideration it received last Session. Therefore, with distinct misgiving as regards much of this Bill, I venture to support its Second Reading.
§ 7.31 p.m.
§ The Duke of Norfolk
My Lords, I start by apologising to the House for not having been present for the start of this debate. I was privileged to attend Vespers at Westminster Cathedral. That service was attended by Her Majesty the Queen, the most reverend Primate the Archbishop of Canterbury, the Moderator of the Free Churches and many others. It was a moving, humble and spiritual occasion.
I greatly welcome the efforts of the noble and learned Lord the Lord Chancellor to reform the present divorce legislation by bringing this Bill before the House. He 751 aims to save the saveable marriages and to cut down the number of divorces in this country. All noble Lords will have heard it said that Britain has the highest divorce rate in Europe, although I believe the divorce rate is higher in America, and it is certainly higher in some American states. It is predicted that 40 per cent. of new marriages will end in divorce. There are many studies, both in this country and in the USA, which tell of the sad effects of divorce on children. Clearly there is a contemporary outcry for reform.
Perhaps every recent attempt at reform has resulted in more divorces but the present position is hopeless and is crying out for wise and sensible reforms. I should add that many of the figures which we have all been quoting relate to marriages. There is also the situation where couples have cohabited for a period and then that relationship breaks up: they are not included in the figures. Family life in this country is in a terrible way. I firmly believe that marriage is absolutely essential to the well-being of society. It is a contract or covenant by which a man and a women freely consent to live with each other. As we all know, the words of the marriage service are:for better, for worse, for richer, for poorer, in sickness and in health, till death us do part".Marriage signifies a partnership of a man's and a woman's whole life as spouses and in the procreation of children. That is clearly spelt out. Between the baptised of all Christian faiths the marriage covenant has been raised by Christ to a sacrament. Marriage is woefully in need of strengthening by an effective family policy and the likelihood of divorce needs to be lessened by making adequate resources available to increase education for marriage and to bring about a change in people's attitudes and expectations regarding marital relationships and the bringing up of children before marriage ever takes place. That must include helping young people to acquire the necessary social skills of communication, to deal sensibly and maturely with conflicts and to develop an understanding of what commitment means in terms of changing and adapting within the marital relationship as the couple grow up.
Provision needs to be made for the generous funding of marriage counselling services and other organisations supportive of marriage and family life so that access to such services is available when difficulties begin to arise in a couple's life. This must take place long before the word "divorce" is considered. Families, including single parent families, need support through the tax and benefit systems and they must have access to adequate housing, employment and child care facilities.
As has been said before, the current cost of divorce is£3.4 billion but the Government spend only£3 million in subsidising marriage help organisations such as Marriage Care, One Plus One, Relate and the Jewish Marriage Council. There are others. I recommend that the Treasury should increase the amount of money which is given to those organisations. That would represent a great economy and it would prevent divorces. I have heard people say that they cannot spend more money, hut I am suggesting that the Treasury 752 should spend less money. I hope the Treasury understands that. I am glad to note that that point is appreciated by those on the Benches opposite.
Divorce legislation was first introduced in 1857. Before then, one had to obtain a special Act of Parliament, as did one of my ancestors. However, that is another story. The legal understanding of marriage has radically changed since 1857. From being understood and defined in law as indissoluble, marriage has become, both in law and in the common understanding of many, a temporary union. A covenant for life has been replaced in effect by a legal commitment to stay with one's husband or wife until one or the other decides to go.
Under the 1969 and 1973 divorce Acts the sole ground for divorce has been irretrievable breakdown. It was intended that most divorcing couples would seek to rely on either a two-year separation, with both parties consenting to a divorce, or a five-year separation if only one party was willing to divorce. However, in recent years 75 per cent. of divorces have been achieved in six months through what is called the special procedure system under the fault grounds of adultery, desertion and unreasonable behaviour. Those fault grounds have been open to collusion, dishonesty and contrivance to obtain what has been nicknamed "quickie" divorces which amount tode facto,unilateral divorce on demand. I welcome the proposal to abolish those quickie divorces and substitute a minimum period of at least a year. Perhaps it should be longer. We also need state-funded help for reconciliation. If that fails and there is to be a divorce, there is need for mediation and advice upon the arrangements that have to be made for the future.
Research shows that many people were not fully convinced that their marriage was really over when they started legal proceedings. The current system harnessed them to a conveyor belt which somehow they could not jump off. In one study, 50 per cent. of divorced men and 29 per cent. of divorced women stated, after six years, that they wished that they had not divorced and had remained married.
I congratulate the noble and learned Lord the Lord Chancellor on having grasped this nettle—it is a horrible nettle to grasp—and on having removed divorce from the Home Office and taken it under his own wing. He has called this not the Divorce Bill, because that is not its aim, but the Family Law Bill. He is trying to strengthen family life. I give him my full support in what he is trying to do.
§ 7.40 p.m.
§ The Lord Bishop of Birmingham
My Lords, I begin with a proposition which may sound surprising but which I believe to be true. There can be no such thing as a good divorce law. That is because the problem it seeks to address is itself inherently disordered. The breakdown of a human relationship, though in particular circumstances it may he unavoidable and even understandable, can never he an intrinsically good thing. What the law tries to do in providing for divorce is to mitigate the effects of something which in itself is not good and not satisfactory. For that reason one can never 753 have an entirely good or satisfactory divorce law, only a law which is more or less unsatisfactory. That fact has to be faced. We are trying to make the best of what is and will always remain a had job—a consequence of human fragility and sin.
Another fact to be faced is that the availability of divorce, despite what some of your Lordships seem to have been saying, does not directly cause the breakdown of marriage. It is a response to it. The causes for the breakdown of marriage as an institution in our society lie much deeper. Of course, the law may encourage people to give up on marriage more quickly than they might otherwise (which is a reasonable charge against the present state of the law) or, by making divorce difficult to obtain, it may disguise the extent of matrimonial breakdown. There is a correlation between the rise in divorces in the late 1940s and the availability of legal aid. Before that the poor could not divorce. Nevertheless, the law on divorce remains in essence a response to the fact of breakdown, not a cause of it. The law on divorce is therefore an attempt to provide an orderly framework for dealing with the consequences.
If, as a society, we want to support marriage as a public good, there are, as we have heard from many of your Lordships, other more effective means to hand, like giving effective and adequate support to the agencies which may help people to prepare for marriage and stay married. Enough has already been said by Members of the House on that subject.
A few moments ago I mentioned the facts of human fragility and sin. Nevertheless, I believe that the proposals before the House are right in maintaining the principle of the irretrievable breakdown of marriage as the sole ground for granting divorce. As we have heard, that principle was fatally compromised in the 1969 Act by the covert retention of the principle of fault through the possibility of alleging the facts of adultery and so on as grounds for the granting of immediate divorce. That is what has largely led to the present deplorable availability of so-called quickie divorces, some of which we are told could have been avoided had there been more time for reflection.
So the Bill is to be welcomed for removing that avenue to rapid divorce and for combining the principle of irretrievable breakdown with a requirement for a time for reflection and consultation before irreversible action is taken to dissolve a marriage.
To say that irretrievable breakdown should be the sole ground for divorce is not to deny personal responsibility for the breakdown of a relationship. It is not to deny the place of human fault and sin in the process of matrimonial breakdown. It is to say that a human court of justice is too blunt an instrument for apportioning blame in so complex an area of human behaviour, especially if the processes one has invite one to say that it is all the fault of one side or the other. Anyway, what is the point of apportioning blame?
People are easily tempted to think that there should be some correlation between guilt for the breakdown of a marriage and the arrangements to be made for dealing with the consequences, as if arrangements for alimony 754 or for access to and care for children were a kind of punishment for the so-called guilty party. One has only to state the argument to see its falsity.
That having been said, there is a point at which distributive justice properly comes into play; that is, in attending to the continuing obligations which have arisen out of a marriage, the obligations of the parties towards one another and towards their dependants. That is where the courts properly come in. Those claims and obligations are a matter for the courts and are rightly to be settled before the granting of a divorce.
In conclusion, so far as concerns the law of divorce, I hope that your Lordships will welcome the Bill as a substantial improvement on the law as it is now in force.
§ 7.46 p.m.
§ Lord Gisborough
My Lords, clearly the current law on divorce is not working well. As we have heard, England has the highest divorce rate in Europe, costing, I am told, some£9 million a day. Can it really be that much?
Too many—some 40 per cent.—of marriages come unstuck, and many of them will have degenerated into domestic violence. This is a widespread evil for, quite apart from the misery, it often leads to increased alcohol abuse, drug dependency, chronic pain and depression, and also to the increased likelihood of miscarriages and low weight babies, all of which are potential costs to various departments of the health service.
At present people going through divorce often privately admit joint responsibility, but they face many hurdles. They lack information about the full consequences. They face delays in obtaining help from agencies. There is no easily discernible route for the couple to take to try to avoid a breakdown of their marriage, which they may have entered into in the first place with an inadequate idea of what it would entail.
The adversarial legal system encourages an abandonment of mutual responsibility. Separate solicitors inevitably stoke up conflict. Fast track divorce encourages the exaggeration of blame to achieve a quicker result. It is little wonder that people say that going through a divorce is the most dreadful experience of their lives. The Bill extends the help and the remedies available from the courts, and that must be a good thing.
The introduction of mediation may well save a number of marriages when the full consequences of divorce are brought home to the participants before the pitch has been destroyed and irreparable bitterness created by acrimonious resort to lawyers. It will also help to resolve the problems in respect of children with the least damage to them.
Perhaps a greater awareness of the availability of counselling and mediation could help people solve their difficulties before their situation deteriorates irrevocably. However, I believe that it is necessary that statutory privilege should be conferred on any statement made during mediation so that it could not be used later in a legal case. Otherwise participants may well be advised by their lawyers to be economical with the truth during mediation, thus reducing the chances of success. I wonder why that has not been included in the Bill.
755 The year's delay will allow the couple to have time to reflect on the counselling or to negotiate the separation. It may sometimes seem unfair that fault should be set aside, but there will be few cases where fault lies entirely on one side.
Research indicates that 25 per cent. of couples living apart at the start of counselling were together six months later; and 75 per cent. who completed the course were often together after six months. Forty-seven per cent. of the survey said that they should have come to counselling earlier. As we have already heard, 51 per cent. of divorced men and 29 per cent. of women regret their divorces, and perhaps mediation could have kept them together. Second marriages are not the panacea for them, for while 40 per cent. of first marriages break down, second attempts are 50 per cent. more likely to fail. Some may realise their impending regret during the year of reflection.
One issue that should be included in the Bill is the question of maintenance, capital, and, above all, the pensions of divorced persons. I believe that that has been mentioned. The wife must have a right to part of the pension built up over the years. There have been many cases of great injustice where the wife has, in effect, contributed through her care of the household but has been left with no share of the pension after her divorce.
The Bill deals with the sad but far too common cases of divorce. The Government should also try to help avoid the necessity in the first place. The Government could offer a range of services to help prepare young people for the responsibilities of marriage, family life and the discipline that it entails, thus discouraging some marriages that might be bound for disaster from the start. Children are often loath to take advice from their parents who, since the days of Adam, have been thought old and out of touch, but a third party is sometimes better heeded.
Greater funds for counselling would be needed. That must be set off against the£3.4 billion cost of divorces each year, a staggering£9 million a day, and that does not take into account the misery or crime related cost. Marriage support organisations at present cost only£3 million so any increased funding and success could pay a 10:1 dividend. Relate estimates that in 1990 it saved the taxpayer £42 million in saved marriages—a very good investment, over 10 times the cost of the service.
I welcome the Bill and believe that it may well save a number of marriages, and the consequent distress, misery and long-term damage to the children that would result from divorce.
§ 7.52 p.m.
§ Lord Marsh
My Lords, the clear factor that emerges from the debate is the depth of the differences between some of us. They are fundamental differences which will emerge in Committee and which will be explored. I suspect that the Committee stage will be hard fought in many areas.
756 Divorce is a difficult issue. That is not surprising because marriage is one of the most peculiar contracts it is possible to envisage. When one thinks of the numbers of dear friends with whom one would not contemplate spending a fortnight's holiday, the prospect of linking oneself up for life and sharing the same bed for 365 days a year is an extraordinary and difficult concept.
The Bill is one of those measures where it is possible to agree over a wide field regarding the analysis and key issues and yet draw very different conclusions. I agree with the noble Lord, Lord Gisborough, and many others, in their analyses of the unpleasantness of divorce. I am quite clear that I shall spend little time in the same Lobby with them during the Committee stage. There are many differences between us, in particular regarding our views on how far governments can or should seek to change major shifts in social attitudes by legislation. In the minds of most people, politicians do not emerge as the obvious role models for the young and starry eyed about to embark on the adventure of marriage.
However, there are major areas of agreement. I am completely with the noble and learned Lord the Lord Chancellor when he says that the best possible environment for children is a loving and secure family. There is no question of that. I go further. Couples in such a relationship, with or without children, enjoy something of a value that is impossible to exaggerate. I have no doubt that for most people divorce is a horrendous experience and, whether the damage—it is always real—is financial, emotional or, as in most cases, a mixture of both, for the children it can be very distressing. At its worst, for one of the parties it can, and frequently does, involve a sense of total loss and desolation paradoxically even greater than bereavement when at least the happy memories remain valid.
In short, for most people divorce is a uniquely ugly business. So why has it become fashionable? Why, at any party, do you find that of most of the people there one or other partner has been married before? I simply do not accept that 40 per cent. of all married couples of all religions and none and of all classes of society from the highest to the lowest, rich and poor, are simply wrong headed and in need of guidance. It requires a truly magnificent arrogance to believe that that enormous, unique cross-section of our fellow citizens—some of them friends, relatives or colleagues—are too ignorant to understand what they are doing or too stupid to be concerned about the consequences. I simply do not believe that.
The charitable explanation for those who take that view and whose sincerity I do not doubt is that having experienced a happy, secure family life where they have what they describe as the "ups and downs of married life"—it is rather like telling the schizophrenic that he should pull himself together and have a cold bath—they do not understand the emotional violence of a marriage where one of the partners is trapped in a relationship that he or she has come to hate. It is a point of total agreement in the House that those who suffer most are frequently the children.
757 Most people in this country live in very small homes with rooms 14 feet or 15 feet square, with two or three bedrooms. You can carry on an argument from any part of the house or apartment. There is no privacy. You cannot escape from the disruption. Equally important, most children do not board at school. They spend 365 days a year inside that very small house or flat with the two people upon whom they depend most in the world, to whom they have loyalties above anyone else, listening to those people snipe and snarl at each other. Whenever there is a temporary lull and one or both parents are in a good mood, the children constantly hope that perhaps this is the time that the parents will get together. That is what the children want. They want to remain inside a happy family; that is their constant hope. They hope that perhaps it will come right. Eventually, as they get older, they realise that it never will.
I know several adults who still look back with great anger at that period of their lives. One is an exceptionally proficient swimmer. She is the much loved only child of affluent parents who gave her everything they could. The parents are dead. One was a Member of this House. I knew them both very well and respected them. But no one should ever have introduced them to each other. They had a great deal to contribute to someone but neither had anything to contribute to the other. The daughter had everything. She went to a good school and had amazingly good holidays. Unfortunately, the two parents loathed being married to each other, so she spent much of her childhood in the apartment swimming pool. It was the only place in a block of luxury flats, not far from this House, where she could have peace and get away from the conflict. Thirty years later she has never forgiven either of her parents for those years of misery. She regards as the high point of their relationship the time when they gave her the wherewithal to get out at the age of 18 and live in a flat on her own. That is the reality for many children who live in that kind of environment.
TheDaily Mailpoll on the problem was interesting; it highlighted the paradox. It asked those interviewed whether they believed that divorce was harmful to children. Ninety-four per cent. said yes. Only 2 per cent. said that it was seldom harmful. I am not surprised by that; it is how most people accept the reality. However, when the poll asked whether the parents should stay together for the sake of the children, 69 per cent. said that it was better for the children that they should part and only 18 per cent. said that they should stay together.
It is all well and good to be superior about modern trends. On an issue such as this, it is the will of people in a democracy that is changing. The whole institution of marriage is changing. By all means, provide, as the Bill does for those who need it, assistance towards the least bad agreement between the parties for the future of the children and the division of the assets. But divorce will continue to be a major fact of modern life. Modern marriage is different from the past because the participants are different. Expectations are much higher. Women are at least as well educated as their husbands and in many cases just as capable of earning a living. In most cases they regard the traditional "honour and obey" 758 relationship or even—clichés always represent a strong feeling—the "barefoot and pregnant over a hot stove" description of their place in married life as at best a sick joke. It is increasingly a partnership of equals, which implies far more potential conflict than in the days when husbands could behave as they wished and women did as they were told. The conflicts are greater now because both sides feel able to express their demands of the relationship and frequently neither side is able to, or is prepared to, give way.
With great respect to my noble and learned friend Lord Simon, marriage today is not simply for the procreation of children. That is the role of brood mares, not human beings. Its purpose is to provide a secure and happy environment for couples who may or may not have children. When it succeeds, it is at worst tolerable and convenient; at its best it is sublime. When it fails, it is ugly, destructive and best ended in as civilised a way as possible.
There will be many arguments in Committee. Like the noble Lord, Lord Irvine of Lairg, I believe that some of the changes made to the original Bill are appalling in their implications. But the principle behind that Bill can and, I hope, will be of major benefit to all those who suffer in this unhappy situation whichever side they are on. That is why allocating fault is a pointless exercise.
§ 8.5 p.m.
§ Baroness David
My Lords, that was an extremely interesting speech and I agree with much of it. However, I think a little of it was perhaps rather patronising towards women. I should like to study it further.
I give a welcome to the Bill and thank the noble and learned Lord for his clear exposition of it. I was at first critical of the fact that two Bills had been rolled into one, I suppose partly because I was both angry and sad that the Family Homes and Domestic Violence Bill, a good Bill on which so much careful and thorough work had been done in this House, was allowed to fall in the overspill period for no good reason at all; in fact for very had reasons. However, I came to see that there could be some justification for the two Bills to be run together. Some of the criticisms of the divorce part of the Bill, Parts I and II, such as that the period of 12 months' waiting between the making of the statement of breakdown of marriage and the actual divorce would be very long where one partner was abusing or being violent to the other, could be dealt with by using the non-molestation or occupation orders provided in Part III.
I should like to ask for a little more information about the first interview which is to take place before the statement of marital breakdown is made. There is nothing in the Bill to specify that the initial interview should introduce the parties to,the benefits of marriage guidance and counselling",as there was in the White Paper. I. with many others, would feel happier with that in the Bill. May I ask who is to organise that first interview and conduct it? Where will it take place? Will it be a session for one couple alone or for more? Will the use of a video be permitted?
759 All this I dare say may be in the regulations that the noble and learned Lord the Lord Chancellor may make, but I hope he can tell us something when he winds up.
I believe that some of the criticisms of the Bill are quite unjustified and ill informed. I do not see how the proposals will deprive the innocent of justice, as the noble Lord, Lord Ashbourne, said last week. It does not make divorce easier. The present system allowsde factodivorce on demand. The quick divorce can be obtained in three to six months. That method, which is very liable to abuse, is to go. The obligation to have arrangements made for the children, the home and the finances before the divorce can be finalised should make the position for children much less traumatic and ensure that both the father and mother will continue to share the parental responsibility and pleasure. Bitterness and hostility, if not eradicated—and probably that is humanly impossible—should surely be substantially reduced.
I have for a long time encouraged the use of mediation to prevent court appearances, but I have not hitherto had very encouraging responses from the noble and learned Lord. I am very glad that here it has his support. Equally, I am glad that there is to be no compulsion to use it because I think that would be wrong. Could we be told if there will be enough trained mediators in all parts of the country to cope with the likely demand when the Bill becomes law? I agree with the noble Lord, Lord Habgood, about the support that is needed to fund mediators at the moment. We hope that there will then be enough.
There can be no complacency about the present situation: 150,000 children are affected every year by divorce, and 75 per cent. of divorces are on the basis of fault and over an average of six months. The number of divorces reached a record 165,000 in England and Wales in 1993, the highest rate in Europe. In that year 176,000 children under 16 experienced their parents' divorce; and two-thirds more children under the age of five were affected than in 1977.
The fact that recent laws on divorce have not proved successful and have led to an increase in the number of divorces does not mean that a new approach is bound to cause further erosion of the institution of marriage and even more divorces, as the noble Baroness, Lady Young, said. I support what the right reverend Prelate the Bishop of Oxford said in that respect. This Bill is quite different from previous Bills. Of course the proof of the pudding will be in the eating, but a Bill which has the support of the bishops, the Children's Legal Centre and the Mothers' Union starts off with quite a lot going for it.
I want to turn now to Part III of the Bill, in which I have a particular interest as a member of the Special Public Bill Committee earlier this year. So far as I can see as a layman, and the Lord Chancellor has confirmed it, the provisions of this part of the Bill are almost identical to those in the earlier Bill, although the arrangement of the clauses and the wording may differ. But there are three clauses in the Family Law Bill where there are differences, and one clause, Clause 26, which was in the Family Homes and Domestic Violence Bill has been left out. The differences here have been 760 explained very clearly by the Lord Chancellor and by the noble and learned Lord, Lord Brightman, so I shall not bore the House by repeating them, although I have in fact got them in my speech. But I think that the powers have been made discretionary.
The noble and learned Lord the Lord Chancellor kindly wrote to me explaining these changes in a letter I had yesterday, so to speak, excusing the changes. He said that the powers have been made discretionary in Clause 31 in cases involving non-entitled cohabitants; and he said that,the court's ability to deal flexibly with these situations is enhanced".That, I suppose, is one way of looking at it. But taken with the other changes, the right to extend the occupation order only once in the case of cohabitants and the omission of Clause 26 make one think that cohabitants are being discriminated against in this Bill in a way that they were not before. One cannot help wondering whether this was part of a deal to make the Bill more acceptable to its critics in the Commons. It is a weaker and less fair Bill, I consider, as my noble friend Lord Irvine said in his introductory speech.
It seems unreasonable in these days, when many couples live in a stable relationship with their children, not to recognise that this is a fact of modern life, and that in fairness to them and particularly to their children they should be treated in the same way as married couples. In 1993, one in three children were born outside marriage; it was one in four in the late 1980s. We must keep in mind the principle of the Children Act that the welfare of the child is paramount. If we want marriage to work—and I certainly am very much in favour of it, as are so many of those who have spoken here today—we have to do much more to make it an attractive proposition and make it work better. There should be much more preparation for marriage. I do not think a punitive attitude to those who fail helps at all.
I have one or two more questions to ask in relation to children. I want to refer to Clause 38, where a child under 16 with the leave of the court can apply for an occupation or non-molestation order. If the child does get permission, would it not be right for the court to give a guardianad litemto that child? Some assistance will surely be needed. I hope that I can have a response to that.
I am afraid that I have one further question, and it is one that the noble Baroness, Lady Faithfull, asked. It concerns the place of children in the course of mediation. The children could well want to communicate with the mediator, and they should be able to see him or her if they so choose. Once the case gets to court, under the Children Act the court will have to find out what they want, and it would seem both right and sensible that that should happen earlier. Can the noble and learned Lord please comment on that?
I believe the warm welcome that the Family Homes and Domestic Violence Bill had was because of the more satisfactory way of dealing with occupation and molestation as far as children were concerned. So I hope we can continue in that way. I end as I began, with a welcome for this important and necessary Bill, and wish it a speedy passage through both Houses.
§ 8.15 p.m.
§ Viscount Brentford
My Lords, I support many of the points made by the noble Baroness, Lady David. It is a pleasure to follow her. Many conflicting views have been expressed in this debate as to whether this Bill strengthens or weakens marriage. My view is that it strengthens marriage, and I support its general thrust. I want to see marriage strengthened; but I also want to see divorce and cohabitation weakened. I was glad to see from a Written Answer earlier this week that the number of divorces last year was down by 7,000. Whether that is because fewer people are getting married and more are cohabiting, I do not know, but it is at least one part of the equation that is moving in the right direction.
I have in mind three reasons why it is important to encourage marriage: first, because of the promises of faithfulness to each other that are made at a marriage ceremony; secondly, because of the public recognition of the new relationship that is given by marriage and which is not there in cohabitation; and thirdly, because I believe that there is a much greater commitment in marriage than there is in cohabitation.
I am not sure that in decrying cohabitation I shall necessarily receive the support of the right reverend Prelate. I understand that this morning only four Bishops voted against the motion taking note of the Church of England reportSomething to Celebrate.As I understand it, that means that those who wanted to take note of it supported the fact that cohabitation should no longer be considered sin and that there should be affirmation of and support for many of the aspects of cohabitation as opposed to marriage.
I do not go along that path. I believe that if divorce is too hard, cohabitation will be encouraged; but if divorce is too easy, then marriage is cheapened. I hope that this Bill produces the right balance. Only time will tell. I do not have the gift of prophecy and cannot tell the House whether or not it will have the right effect. However, I believe that we should try it, and I support it.
I agree with the abolition of fault as a demonstration of irretrievable breakdown. It has more or less become redundant and has little impact on the arrangements that are now made in divorces, both affecting provision for the children and for the division of property. To retain fault does not get us anywhere. I strongly support the remarks of the right reverend Prelate the Bishop of Birmingham in his admirable address. They fitted in excellently with my own thoughts.
Certainly the Bill should reduce conflict, and that is valuable. However, I emphasise the fact that it is not just conflict between the parents that causes suffering for the children, but also the fact of divorce. The more we can do to reduce divorce itself, the better it will be for the children. That point needs emphasising time and time again.
Turning to the question of mediation, I strongly support the year of reflection that this Bill introduces. But I should like the Bill, as a number of noble Lords said, to go much further on the question of promoting reconciliation. The White Paper refers at paragraph 2.37 to the need to, 762introduce parties to the benefits of marriage guidance and counselling",and provide information about the various aspects of separation and divorce. I was greatly encouraged by a phrase that my noble and learned friend used in his introduction; namely, we should see whether marriage can be saved. I should like to see more about saving existing marriages and reconciliation of the parties introduced into the Bill by way of amendment. Obviously, the best way to do that would be for my noble and learned friend himself to introduce such an amendment to strengthen that aspect of mediation. There is a need to reflect on whether or not the marriage has broken down, as well as providing information.
I noted the figures given by the right reverend Prelate the Bishop of Chelmsford in his speech on 20th November (Official Report;col. 153). I found it very stimulating when he spoke of the experiences in Canada and other parts of the Commonwealth where mediation has been brought in. He said that:In Canada 19 per cent. of those seeking divorce decided in the end on a reconciliation".That is very encouraging. I hope that it will be the same in this country. It appeared that if, after mediation, the marriage did in fact break down, second marriages lasted much longer. Several noble Lords mentioned the reflections of divorcees after several years of separation. That also points to the strength of mediation.
I hope that in the course of mediation help can be given in improving communication between the married partners. One of the causes of breakdown of marriage is a failure to communicate. We need continually to be reminded of that. We need to improve communication between spouses and with children. Also, access to independent legal advice must be available to the parties before, during and after mediation.
My last point on mediation is that the attitudes, quality and training of mediators are crucial to the success of the mediation process. I have seen it written that there is great fear that most of the mediators will be divorcees who are keen to encourage others to join them in the same state. It is cardinally important that mediators are people equipped to support marriage where marriage remains possible. Where it is not possible and there is irretrievable breakdown of the marriage, divorce must follow.
I should like to ask my noble and learned friend a question about Clause 10. Can he elaborate on the circumstances which will be taken into account by a court in considering whether an order should be made preventing divorce? As I understand subsection (2), paragraphs (a) and (b) must both be met to the satisfaction of the court. One is clear about grave financial hardship, although there may be other forms of hardship which can be taken into account. But paragraph (b) states that,all the circumstances (including the conduct of the parties)",need to be taken into account. I wonder whether my noble and learned friend can elaborate on what he has in mind in regard to that point.
763 Finally, I should like to make one or two comments about support for marriage, comments which have already been made by many other noble Lords. Following the debate on the gracious Speech on 20th November, I asked my noble friend Lady Blatch whether she could tell me when the public information campaign would materialise. An HMSO document, entitledLooking to the Future,produced earlier this year, had promised a widespread public information campaign to encourage those in marriage difficulty to seek appropriate help in good time. I am not aware that that public information campaign has yet been implemented. Perhaps my noble and learned friend can tell me when that will take place. That is typical of what I believe will be truly positive. It will give government support to marriage and help for married couples in difficulty. As has been said, equipping young people for marriage ahead and helping existing married couples is a financially profitable venture for the Government to launch into.
I support the Bill and hope that some amendments along those lines can be included.
§ 8.25 p.m.
§ Lord Moran
My Lords, we are facing a deeply disquieting state of affairs: the prospect, I believe, of social disintegration. It is a little like the picture of a house perched on a cliff, with the sea eating away at the cliff so that eventually the house will be washed away. The independent, non-political and well-respected Joseph Rowntree Foundation says:The divorce rate has shown a sixfold increase since 1961. If current trends in England and Wales continue, four out of ten new marriages will end in divorce".Moreover, it points out:Annual marriage rates per thousand population have reached their lowest levels since records began".It is a fact that, whenever we have legislated on divorce, there has been an immediate upsurge in the numbers seeking divorce. I do not agree with the right reverend Prelate the Bishop of Oxford who said that this time that would not happen. I believe that it will happen, as it did in 1969.
The Government's own publication Social Trends says:The United Kingdom had the highest divorce rate in the EC in 1992, at almost twice the average".With all respect to my noble friend Lord Marsh, to whose speech I listened with great attention, I believe that the effect is disastrous. The social fabric of our country is unravelling. I believe that the traditional family is crucial to the social stability of our country. I wholly agree with the impressive and deeply felt speeches made by my noble friend Lord Jakobovits, the noble Baroness, Lady Young, the noble Lord, Lord Stallard and my noble and learned friend Lord Simon of Glaisdale.
The effect of our high divorce rate is great unhappiness for those involved. It has an enormously damaging and traumatic effect on children, resulting in increased crime, drugs, homelessness, truancy and reading difficulties. There is an increase in housing 764 pressure, now affecting so many towns and villages, and huge costs, which have been computed by the Library of the other place at £3.4 billion a year.
It seems to me that any government ought to be doing their utmost, difficult though it is, to reverse those trends and protect our social fabric by buttressing the institution of marriage and doing everything possible to strengthen the family and family values. Are this Government doing that? I believe that they are not. Again, I quote the Joseph Rowntree Foundation:Despite political rhetoric emphasising the importance of family life, there has been a policy drift away from recognising the costs and demands of parenthood…The relatively favourable direct taxation treatment of working parents with children that existed 30 years ago has been eroded under successive governments…There is an urgent need for policy-making within government to be co-ordinated with the aim of strengthening family life…Policies on taxation, benefits, employment and housing provide a practical test of whether political rhetoric has been matched by 'family friendly' action. Much of the evidence is negative".Unlike the governments of continental Europe, there appears in this country to be no government policy to promote the family by practical action. All that is deeply worrying. Far from supporting the family, the Government have instead brought forward this Bill, the essence of which is to allow no-fault divorce on demand. The principal of St. Anne's College, Mrs. Ruth Deech, who has often been quoted in this debate, said:Under the proposed new law marriage will be terminable with less formality than, for example, the ending of a lease or the hiring of a car".I am greatly surprised that the Conservative Party should be doing this, just when there has been a small but welcome 4 per cent. drop in the number of divorces in 1994 as compared with 1993. From my position of political independence, this would seem to me to run counter to Conservative principles. As a former Minister, Mr. John Patten, said in another place, there is no popular demand for this legislation.
The noble and learned Lord the Lord Chancellor has been listening to this debate with exemplary patience. I was glad to hear what he said in opening the debate regarding his belief that marriage should be for life. But since that is his belief, I am surprised and sad that he should be promoting this Bill.
The noble Lord, Lord Irvine of Lairg, expressed his support for the family. But he too, as I understand it, was in favour of the substance of the Bill with its elimination of fault, and, indeed, he argued for a reduction of the one-year period of reflection. As Mr. Tony Blair has spoken up firmly for the family, I hope that the Opposition's support for the main drift of this Bill is not to be interpreted as a relapse into the attitudes of old Labour or very old Labour.
In recent days I have been puzzled by what appeared to be the uncertain note of the trumpet from some of our Churches. I was therefore glad to hear of the robust line in favour of marriage and the family taken by the Archbishop of Canterbury in the General Synod this morning, when a report was being considered which recommended that cohabiting should no longer he regarded as living in sin. The report said:Sin is a word which often seems unhelpful".765 But I was sorry to hear from the right reverend Prelate the Bishop of Oxford that a majority of bishops in the Church of England supported the proposals in the Bill. As he was saying that, I recalled that the Church of England was indeed founded on divorce and the accommodation of practical difficulties.
As I listened to the right reverend Prelate, I felt that many noble Lords would be struck by the considerable gulf between the line that he took and the line taken by my noble friend Lord Jakobovits and the noble Baroness, Lady Young. Too many voices in the Church of England have argued that the splendid words,For better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part",are no longer of any importance.
The Bill originates from the Law Commission. I share the anxiety of the noble Baroness, Lady Young, regarding its approach. Both it and the courts bear a good deal of responsibility for what has gone so wrong. I am thinking of cases likeWatchel v. Watchelin 1973 where, as I understand it, it was decided that it was wrong to allow considerations of guilt to affect the financial arrangements on divorce. Perhaps my noble friend Lord Habgood was mistaken in thinking that fault can now be taken into account in arranging financial details of a divorce.
The sort of liberal thinking that influenced the Law Commission often results in a burning sense of injustice when, for instance, what I would still call an innocent party finds that the other party, who may have broken up the marriage, has been given custody of the children and the matrimonial home. I am not worried about couples divorcing who do not have dependent children, but I am deeply concerned about the effects of the Bill on children. The right reverend Prelate the Bishop of Worcester spoke eloquently of the devastating effect of divorce on children. Research, as the noble Baroness, Lady Young, said, shows that it is divorce itself, not just the acrimony surrounding it, that unsettles children. The Bill proceeds on a contrary assumption.
I personally believe that in all ordinary circumstances it should be unthinkable for parents of children under 16 to contemplate divorce. They brought their children into the world and the children should come first, before what the parents conceive as their personal happiness. The present law is highly unsatisfactory. One only needs to look at the results. It badly needs reform, but this Bill may make matters worse, primarily by sending out a message that no one is to blame for anything and that the civil marriage contract can be regarded as a temporary arrangement with a minimum commitment which can be terminated for no given reason by either party after 12 months. I hope that it can be substantially amended at subsequent stages. We might at least extend the one-year period.
As has been pointed out by previous speakers, there is nothing in the Bill about reconciliation. Surely we must seek to save any marriages which can be saved. As has been pointed out, a good number of people come to regret their decision to divorce. I support those who argue that efforts to reconcile partners in a marriage 766 should come first, perhaps for a period of six months, and only after that should they proceed to mediation, which is meant to deal only with the practical consequences. I am in favour of the retention of the existing five-year separation period where one party does not want a divorce. But public information sessions, to be attended by divorcing couples with others in the same position, sound to me somewhat bizarre. It seems more appropriate to present-day China than to this country. It would be helpful to know in more detail what is intended.
I do think it is wrong that there should be a limitation on legal advice for those without money. I was impressed by the arguments of the noble Lord, Lord Irvine of Lairg, in the debate on the humble Address, when he said:It is quite a chilling thought that the meanest criminal has the right to the full services of a lawyer but the discarded wife or abandoned husband will not, unless they can pay for such services themselves".—[Official Report, 20/11/95; col. 145.]That sounds to me to be quite wrong. Government funding should also in my view go only to counselling organisations which are committed to promoting and supporting the institution of marriage. Too many of today's counsellors adopt the position of liberal neutrality known, I gather, as "situational ethics".
Many of our great institutions today are, I sadly fear, hanging by a thread. It must be our aim to shore up the social fabric of our country to promote stability and to have that in the forefront of our minds as we consider this Bill.
§ 8.39 p.m.
§ Lord Elton
My Lords, perhaps I may preface what I intend to say by emphasising that I accept the enormous importance of marriage to British society, to the individuals involved in it and to the children resulting from it. That is something written on my heart. Marriage should be for life, and I believe that that is the ambition of most people who embark on it. It was certainly mine.
It is distasteful in a debate like this to refer to one's own experience, but I owe it to the importance of the subject. When that ambition fails it is a totally shattering experience, doubtless for both parties, even when the procedure is a no-fault procedure, which is nothing new and has existed for a quarter of a century.
Because of that experience, I warmly support the wish of the noble Lord, Lord Jakobovits, for education. Other noble Lords have referred to it as well; and, indeed, I chaired an inquiry which published the Elton Report, as it is now called, on discipline in schools. The report pointed to the necessity of educating children for parenthood, because we already have children who are the children of unmarried teenage mothers who themselves were unmarried teenage mothers. The succession of stability and the understanding of what a happy family is about has been broken and cannot be preserved by means of legislation. It can be remedied only by some other intervention, which must be educational.
767 That education ideally would be, and for centuries has been, given by the clergy and the rabbis. But the churches are now emptier and I dare say the synagogues are too. Therefore, it is necessary to involve the state, the education system and the social services to restore this broken chain. It is necessary to emphasise to people entering marriage the enormous solemnity and importance of the enterprise they are embarking on. I wonder whether we might not look at some statement to be made or signed at the moment of applying for a marriage licence that some explanation of this had been received by both parties from a reputable source. I am not aware that that is the case at the moment.
My experience is that couples do not examine divorce procedures before they embark on marriage—which I regard as a rather bizarre idea. I agree with the noble Earl, Lord Russell, that you cannot mend a marriage by any law, least of all by reforming the divorce law. Even if you remove the possibility of divorce altogether you will still have the shore littered with wrecked marriages. You cannot shore up the house on the cliff by statute when the sea begins to eat away at it.
I hope that my noble and learned friend will expand on mediation, which in the Bill before your Lordships is the last stage before divorce, for the sake not only of my noble friend Lord Brentford and the noble Lord, Lord Stallard, but also my noble friend Lady Young on the linkage between the provisions in Clause 7(1)(a), which make the first object of mediation conciliation, and the provision in Clause 11(1) and (2) for the rules that he will make for it. I hope that it will be made clear to all of us how it is intended to make conciliation further towards the front of the Bill. It is already there in the statement that has to be made by the legal adviser to the court, but I hope that it will be more specific.
Couples, and above all parents, should never be driven into divorce unless it is utterly beyond them to maintain marriage, and then only with the greatest reluctance. But I would ask any noble Lords who did not hear the noble Lord, Lord Marsh, describe the conditions for the children within a failed marriage to read that before they take any step in the Lobby against what is proposed. The noble Lord was far more immediate and moving than I can possibly be on the subject of the necessity of divorce in some cases.
Nevertheless, divorce has to be a last resort and hence my reservation about accepting a unilateral statement of breakdown on the same terms as an agreed one. I have some sympathy with my noble friend Lord Coleraine and his idea of a decree nisi at the end of the 12 months' mediation period in such a case, or possibly looking at a longer period such as the five-year period that we used to have. But that is all for Committee. For that reason, too, conciliation, where it is possible, is essential.
Let me return to what appears to be, rather bizarrely in my view, the most provocative issue—the availability of fault-free divorce. First, it is a complete misnomer. There is no such thing as a fault-free divorce. Divorce itself is a great fault, as I readily recognise. It is a failure; indeed, it is a disaster. It can result from a number of different ingredients, but what is the point of spelling them out? What is the point, in fact, of 768 subdividing the grand calamity into adultery, brutality or whatever as an optional alternative, giving a much quicker exit from marriage? What falls from that subdivision? Not, I assure your Lordships, a greater respect for marriage vows in spite of what has happened, but in a tragic 75 per cent. of couples it results in their being thrown into adversarial procedures. Noble Lords who seek to preserve marriage—the abode of love and mutual respect—and then propose that those who cannot sustain that condition should go down a road that leads to fear or hate, or both, seem to me to be in a totally illogical position. Once you have got to the point of no return, there is no profit to anyone in putting people through that kind of mangle and creating antagonism where it is unnecessary.
Noble Lords opposed to my noble and learned friend's proposals put children at the front of their concern. So do I. I say to the noble Lord, Lord Stallard, that of course divorce is more damaging than acrimonious marriage if this adversarial road is the road out of it, as it is now in 75 per cent. of all cases. My only experience of divorce was of the no-fault route. That was hugely painful certainly, but it was done by both parties putting the children first. I have not examined them before this debate—perhaps they have sheltered me from some of the truths that they suffered—but I have to tell the noble Lord, Lord Moran, who referred to educational deprivation, that the child who was 13 at the point of separation got a 2:1 at Cambridge and the child who was eight and a half at the time of separation got a first-class honours degree in London, which sounds to me as if not all was entirely lost. The others were less academic. I shall not parade their results because their ambitions were different.
From the security of a second marriage with children in accord with both their parents, I can thank God as though I had walked unscathed—not unscathed but recovered—from an aeroplane crash. But I still think that that institution is central to the welfare of our society. The central concern remains for all of us that marriage should be strengthened; yes, and urgently, for the reasons that have been repeated again and again. However, it should be done not by legislation but by education, which means resources; by fiscal status, which means resources; by housing provision, which means resources; by counselling, which means resources; and only as a last resort by mediation, which itself means resources.
The noble and learned Lord, Lord Simon of Glaisdale—I am relieved that he is not in his place as I regard him as the most terrible adversary in any debate that one can choose—said that prevention is better than damage limitation. It is. That is the way to do it, and not by resisting this Bill, which I warmly welcome.
§ 8.50 p.m.
§ Lord Meston
My Lords, may I first apologise for not being here for the opening speeches. Secondly, I should declare an interest as a barrister practising mainly in the family law field and, indeed, as junior counsel to the Queen's Proctor for whom I dare to hope some work will remain after this Bill is enacted.
769 I begin by welcoming Part III of the Bill, the modified version of the Family Homes and Domestic Violence Bill. One welcomes it rather as one might greet a friend who has had rather a difficult summer Recess and has suffered a slight loss of weight as a result. It was a strange feeling, for those of us who served and, dare I say, worked hard on the Special Public Bill Committee on the earlier Bill, to find it suddenly transformed by certain newspapers into the "Live-in Lovers Bill". Frankly, it was very irritating to read uninformed comment on that Bill by people who had not troubled to read it let alone to read the underlying Law Commission Report. Informed opinion continues to welcome the Bill as a valuable improvement and rationalisation of the law relating to domestic violence. The so-called "Ouster Order", which can exclude a husband or a co-habitee from his home, will undoubtedly continue to be regarded as a drastic order of last resort.
Turning to Part I of the Bill and the grounds for divorce, it is surely right to put behind us the unsatisfactory compromise of the 1969 Act, which in turn did away with some of the absurdities of the old law and practice. Although I do not consider that the existing bases for divorce necessarily indicate or aggravate conflict in separated or separating couples, it certainly was not expected in 1969 that so many people would use allegations of adultery or behaviour as the speedier way to end their marriage. As several noble Lords have observed, it has in fact resulted in doubtful and untested allegations of adultery and parties and their lawyers scraping the barrel to find allegations of misbehaviour.
I recently saw a divorce petition which struck me as a precursor of no-fault divorce. In it the wife included the allegation that the husband had bought her a brand new washing machine. When further questioned as to why that was actually a complaint, it turned out that her grievance was that he had not allowed her to come along and help him choose it.
The reality is that 99 per cent. of these cases are undefended and that surely indicates that a fault-based divorce law is doing nothing to uphold the institution of marriage. However, those who do want to retain or indeed to re-emphasise fault, must be prepared to have disputes about faults litigated at public expense. The noble Lord, Lord Moran, suggested that the courts were at fault particularly since the decision in 1973 of the Court of Appeal, which suggested fault should only he relied on in financial cases in exceptional circumstances. That was on the pragmatic basis that if a fault is relied on in financial matters it will involve lengthy inquiries, as I say, often at public expense, resulting very often in the judge concluding, perfectly properly, that it was six of one and half-a-dozen of another.
Equally, to compel people to live apart for five years sometimes also creates great unhappiness, particularly if they have to co-exist under the same roof. That can cause an enormous strain preventing any prospect of reconciliation because those parties fear that to get back together again while the period of five years is running will prejudice their position and will of course prolong the agony. Happily, I have been involved in few 770 contested divorces. They are always the most miserable affairs. The most miserable I ever had to participate in was only recently when it surprisingly involved a dispute over whether the parties have been apart for five years. That couple came to court for the divorce hearing on their 41st wedding anniversary, the wife desperate to escape from the marriage and the husband desperate to save it. I shall not reveal the result, but needless to say, both went away disappointed. I could not help reflecting that had the law been different it would have been possible for someone to have stepped in to save what certainly at some stage was a retrievable situation.
The Bill will not make divorce easier; indeed, I suggest that it will make it more difficult in many cases. In any event, I suggest that it is a misapprehension that people treat divorce lightly because it is perceived to be easy. In one of the debates on A.P. Herbert's Bill back in the 1930s, I remember reading the then Bishop of Durham observing that in some ways people take greater care of their marriages if they are aware of the risk of divorce. The vast majority of people who contemplate divorce do not do so other than with a very heavy heart and knowing, or soon realising, that they will expose themselves to a great deal of pain and agony. I do not believe that the mechanisms of this Bill will alter that basic fact, which the information session must clearly convey.
Perhaps I may touch on something which I do not believe has been mentioned during the course of the debate; that is the separation order as an alternative to divorce. At first sight it seems to provide the same alternative to divorce as judicial separation does now for those who want a formal arrangement allowing them to live apart and have matters regulated by the court. However, it is noticeable that, unlike judicial separation at present, a separation order will require proof that the marriage has broken down irretrievably. I wonder if that is necessary or helpful to those marriages which can be saved.
Turning to the process envisaged by this Bill, it begins with a statement of marital breakdown. The court will not of course determine the matter solely on the basis of that statement, which I believe was a view taken by the noble Lord, Lord Craigmyle. Such a statement may well be less daunting than a divorce petition, but it may well be seen by the other party as a hostile act and a notice to quit the marriage. I suggest that it might be less confrontational if the initial statement, particularly when it is a unilateral statement, were to be required to include a request to undergo counselling. Likewise, the period for reflection can be suspended under Clause 7 by a joint notice requiring time to attempt reconciliation. I wonder whether it can be possible to allow for a limited suspension also by means of a unilateral notice from the recipient of the initial statement.
Another matter which may need to be considered in Committee is flexibility in the period of the year envisaged by the Bill. It may well be appropriate in certain cases to have the capacity to extend that period, but also in some cases where there are particular housing difficulties, to have the ability to abbreviate the period. That is a point made by the Women's Aid Federation.
771 Finally on procedural matters, I should like to see a more positive obligation in the rules to be made under Clause 11(2). At present, they echo the rather lame obligation upon lawyers in the 1969 Act to certify whether they have discussed reconciliation and certain other matters with their clients. If that is the only obligation, what will happen is what so often happened: the lawyer will simply certify that he has not discussed the question of reconciliation.
Mediation is a welcome introduction. Many couples need help to work their way through the painful process. Mediation has grown in both quality and respectability and has made both branches of the legal profession respond in a number of ways, both in terms of the services and advice that they offer, and in their approach to contentious cases. Without dwelling on the merits of the modern family lawyer, I simply wish to emphasise that most family lawyers are all too well aware of the financial and emotional damage that is caused by litigation and that they work under an ethos which properly encourages the settlement of cases. That ethos will continue under what the noble Lord, Lord Habgood, accurately described as the "year of work". I do not suggest that mediation is simply a fifth wheel on the wagon. It will be a valuable part of the machinery, but it is certainly not a panacea.
At present, lawyers tend only to see the result of unsuccessful or defective mediations, but it is increasingly realised that it is a valuable process. However, mediators must be properly trained, particularly if they are to embark on a resolution of financial and property matters. Skilled mediation costs money and involves a clear understanding of the legal framework. Difficult cases will not become easier by being subjected to mediation. There must be rigorous procedures for the disclosure of assets and resources. With respect to the noble Lord, Lord Gisborough, there is certainly a limit to the amount of privilege which can be applied to what is disclosed because it is not to be thought that simply because a mediation process is under way, some spouses will not continue to try to hide their assets. There must also be safeguards to protect the weaker party who may feel compelled to settle on unfavourable terms simply because it seems that settlement is expected of them. Part of the training of mediators is to be on the lookout for the potential exploitation of an unfair bargaining position.
Mediation must depend on a consistent application of the principles of family law relating to finance and property. It is not easy on the face of the Bill to discern the relationship of mediation, litigation and access to independent legal advice. I hope that that will emerge in Committee. An important feature of the mediated negotiation will be the negotiated agreement, defined in Schedule 1(6). In my submission, it is important that the requirement for a negotiated agreement sets minimum standards of fairness and consistency.
Finally and briefly, perhaps I may support the comments of the noble Lord, Lord Jakobovits, in relation to Clause 10. Secular divorce is not enough to dissolve a marriage in the view of some religious groups which require a religious divorce before remarriage can be permitted. Both Jewish and Moslem women have to 772 rely on their estranged husbands to initiate that divorce process; otherwise as the noble Lord said, the marriage limps on. I would certainly support amendments to Clause 10 because without them all those women will be deprived of the freedom to negotiate ancillary matters without the unfair leverage of the husband's control of the religious divorce. They will be deprived of the ability to remarry according to the tenets of their faith. In simple fairness, the balance needs to be corrected.
Reading the history of the 1857 Matrimonial Causes Act, which I notice was opposed by the ancestor of my noble friend Lord Russell, it is interesting to note that one of the catalysts for that change in the law was the disparity in the ability to get a divorce in England and in Scotland. I cannot help wondering whether that disparity may reappear by virtue of the changes suggested by this Bill. With that thought, I welcome the initiative that has been taken by the Government.
§ 9.5 p.m.
§ Lord Ashbourne
My Lords, the basic concept of marriage and the family comes from the Book of Genesis in the Old Testament. Chapter 2 of the Book of Malachi states:hate divorce', says the Lord, the God of Israel".I was glad to hear the noble and learned Lord on the Woolsack remind the House that marriage is divinely appointed. That reminded me that at one solemn moment in the Church of England marriage service the vicar says to the couple and to the congregation:Those whom God hath joined together let no man put asunder".The Bill before us will abolish the need to prove any facts. Fault and separation petitions will be abolished. Rebecca Bailey-Hams, Professor of Law at Bristol University, observes:The reality of the proposal is divorce by unilateral demand, a process initiated by one party's belief in the marriage's breakdown, the legal effect of which is simply delayed for one year or more if ancillary matters cannot be resolved in time".The noble Baroness, Lady David, said that she did not agree with me that the Bill will make divorce easier. However, I hold that view sincerely, for this reason: I believe that young people will enter marriage very lightly if the Bill becomes law because they will say to themselves, "I will marry this person and, if it doesn't work out, after a year I can get a divorce without a reason"—I prefer the term "no reason divorce" to "no fault divorce"—"and I'll then try again with someone else and, if that doesn't work, I can do it again".
I feel that, for that reason, the Bill will greatly increase the divorce rate and not minimise it. Abolishing fault will abolish responsibility. The law will no longer declare that adultery, unreasonable behaviour and desertion are morally wrong. The conduct of an adulterer will no longer be considered by the law as morally reprehensible. Abolishing fault will remove justice from divorce. By removing all obstacles to divorce, more and more couples will be tempted into seeking divorce as the only way of solving marital difficulties.
773 Where it has been introduced in other countries, no-fault divorce has increased the divorce rate. A 1989 study on the effects of the introduction of no-fault divorce in 16 states of the United States, including the two most populous, concluded that:On average, the no-fault laws increased divorces by some 20-25 per cent.".In other words, the adoption of no-fault divorce has led to tens of thousands of divorces that would not have occurred under traditional law.
The Bill constitutes unilateral divorce on demand and it will be divorce without reason. My noble and learned friend on the Woolsack denies this charge. He points to the hardship bar in Clause 10, which will now apply to all divorce petitions. But just how credible is this safeguard? In the debates on divorce reform in 1969 it was divorce petitions based on five years' separation which caused controversy. It was said that an innocent spouse could be divorced against his or her will. For that reason the hardship bar was introduced to prevent a divorce where there would be,grave financial or other hardship",and where,in all the circumstances [it would] be wrong to dissolve the marriage".However, how have the courts operated the law? They have practically ignored the hardship bar. According to Ruth Deech, the Principal of St. Anne's College, Oxford, who helped to formulate the Divorce Reform Act 1969, a bar in the case of grave hardship has been invoked only once in 25 years. In the case of financial hardship, the bar has been very rarely invoked, according to Dr. Stephen Cretney, Fellow of All Souls, Oxford. In Clause 10 the present Bill incorporates very similar wording to that in Section 5 of the Matrimonial Causes Act 1973. Given the almost complete ineffectiveness of the present hardship bar, this scarcely inspires confidence.
Other concerns include the way in which the courts have operated under the present law. The expectation of Parliament in 1969 was that allegations of fault would entail an investigation by the court into the truth of the allegations. Case law and various regulations have severely reduced this, and the special procedure brought in in the 1970s is now followed in more than 99 per cent. of uncontested divorces. Under this procedure, divorce takes place on paper without the need for a court appearance. The cost of litigation ensures that only a tiny number of divorces are contested. The present system certainly includes a level of abuse. False allegations can be so easily made simply because they are not investigated. The Government's answer is to abolish fault entirely, but this will, I fear, lead to gross injustice.
The whole emphasis of the Bill is to oil the wheels of divorce. Only mediation and information sessions are on offer and, while these may save money, they are unlikely to save marriages. In brief, the philosophy of the Bill is that if one party believes that the marriage has broken down there should be a divorce. The Bill, therefore, provides no protection for the innocent party 774 and this, surely, cannot be right. It is with regret, therefore, that I have to say to the House that I cannot support the Bill in its present form.
§ 9.12 p.m.
§ Lord Northbourne
My Lords, your Lordships have been most patient. We are approaching the straight and I shall try not to detain the House for longer than I need. This is an important Bill which deals with a very difficult subject. I greatly respect the noble and learned Lord the Lord Chancellor for having the courage to take it on board. I agree entirely with the objectives set out in the White Paper. I agree in particular with the concept of a fixed minimum period for reflection. I agree with the objective in the White Paper that reconciliation and mediation should be offered to anyone who wants it, whether or not he or she can afford it.
The question that we must ask ourselves is whether the Bill as drafted will achieve those objectives. It is with that point that I have difficulty. I really think that it will not and that we must do quite a lot of work on it if it is to achieve those objectives.
It seems to the public and, indeed, to the media, to make divorce easier and less painful. Therefore, at this point and as currently drafted, the Bill is sending out the wrong messages about the importance of marriage and divorce. It seems to imply that, somehow, the Bill provides a way in which divorce can be achieved without hurting the children, which we all know is not true. I know that that is not what the Bill is meant to say but everybody to whom I have spoken about it—from a cab driver to a merchant banker who I saw this morning—has the impression that the Bill is making divorce easier, and they do not like it.
As many noble Lords have said, the real problem in our society which needs to be addressed is not divorce but marriage. Of course, in a perfect world a new divorce Bill should be considered alongside a total consideration of the nature and role of marriage in our society today. But, sadly, as I understand it, marriage comes under the Home Office and divorce under the Lord Chancellor's Department. It is rather incredible that the beginning of marriage comes under one department of state and its end comes under another, although I cannot say whether that is the reason why those two issues were not considered together.
But what we say about divorce sends messages to people about what we believe about marriage. The noble Lord, Lord Marsh, said that its role and status in our society today is changing and that it is more in the nature of an equal partnership. I am sure that that is undoubtedly true. But it does not alter the fact that we need to consider very carefully what is and should be the role of marriage and that we should make it credible.
When we look at marriage, we surely should be thinking of the kind of commitment that people need to make to one another to provide a secure and stable environment for the upbringing of children; the kind of support that will be needed to do the job properly; and the kind of preparation which they will need before they start to do that. We should consider what kind of 775 commitment people wish to make to one another as regards supporting one another in old age, in sickness, in infirmity and when things go wrong.
The noble Baroness, Lady David, who unfortunately is not in her place, spoke about marriage and cohabitation. I do not believe that that should be addressed as a moral issue but rather as a practical issue. The difficulty about cohabitation is that it does not necessarily imply any commitment, and certainly where children are concerned there are very strong reasons for supposing, both in the interests of the children and society, that commitment is important.
The noble Lord, Lord Elton, referred to a marriage contract and to giving information to young people before they enter into marriage. It is distressing to say that that is not done because the Registrar General refuses to do it. One Plus One, one of the organisations supporting marriage, has pamphlets which it has asked and pressed to have handed out and that has been refused on several occasions.
In my view, the objectives set out in the White Paper are unimpeachable but the Bill is rather disappointing compared with the White Paper. It seems to me that there are three improvements that we should make to the Bill to bring it more into line with what the White Paper is envisaging. First, we must attempt to change the image of the Bill, as I said, because I think that it is creating the wrong public image. Secondly, we must state on the face of the Bill the primacy of the needs of the children of the marriage, because they are the powerless partners in the marriage. They must be given the protection of society. Thirdly, reconciliation must be given parity of esteem with mediation in order to encourage the survival of as many marriages as possible.
How can we say to the world that this Bill does not simply make divorce easier? One way in which to do that is to increase the period of reflection from one year to 18 months or two years in the case of a family with a child under the age of 16. In cases in which an 18-month or two-year waiting period is deemed to be contrary to the best interests of the child or children, the court could have the right to reduce the period to one year, but not less. Such a provision would have the added advantage of emphasising the extra responsibilities which the adult partners take on when they bring a child into the world and into the partnership.
I should like to look a little more closely at the position of children. Reading this Bill, it seems to me that it could have been drafted before the Children Act, because children are treated as the chattels of their parents. As I see it, until a child is born, the marriage consists of a partnership between two adults. Then, when the child is born, it becomes a partnership of three. The child has its own rights and needs. Because the child is the powerless partner—the vulnerable partner—society has obligations to him or her.
I am the first to acknowledge that unselfish and loving parents, even if they cannot get on with one another, are certainly the best people to decide about 776 their children's future, after listening to the children themselves. But what about those children whose parents are so wrapped up in their own anxieties, selfishness or resentment that they are blinded to their children's real needs? What about those parents who actually resent or actively dislike their children, very often because they suspect them of being illegitimate or for some such reason? Study after study has shown the devastating effects of family dysfunction on children. There needs to be some form of appeal, some form of guardian ad litem—indeed some protection for children—when parents, under mediation, decide outcomes for their children which are less than the best.
I return now to the question of differentiation. One of the most important defects of the Bill is that it does not clearly distinguish between families with children and those without children. It does not make clear the added responsibilities that people take on when they bring children into the world. I believe that the primacy of the needs of children should be stated as the first clause in the Bill, as it is in the Children Act. I shall introduce an amendment to that effect with the noble Baroness, Lady Faithful, who had the same idea without collusion. I shall also introduce other amendments to establish the importance of children as the vulnerable and powerless partners.
In some ways the greatest disappointment of the Bill is that it steps back from the position taken by the White Paper in not giving any commitment to the prevention of dysfunctional families or to the preservation of marriages. It seems to me that priority needs to be given to help parents avoid the tragedy of family dysfunction and subsequent divorce. Surely conciliation should have equal status with mediation in the Bill. Indeed, it should be the first step in the process for all to attempt reconciliation.
Some organisations have suggested that the first six months of the reflection period should be devoted to attempting reconciliation and only if it fails should parties turn to mediation. The noble Lord, Lord Jakohovits, suggested a three-tier structure with conciliation, mediation and litigation all having equal status. It seems to me that there is a great deal of gravamen in that suggestion.
Of course, the trouble may lie—and I suspect that it is the reason why such considerations have been left out of the Bill—with the Treasury. If that is indeed so, I despair. I do not know where they get the people who are employed at the Treasury—perhaps from Winchester. Those concerned ought to be able to see that to spend £100 now is better than having to spend £1,000 or £10,000 later.
Finally, if the Government are genuinely committed to the objectives in the White Paper, I suggest that there are a number of other things that they will have to do alongside the divorce Bill. I just want to get this on the record. We need more preparation and education in schools about relationships, parenting and the needs of children. We need more preparation for marriage and for parenthood, together with an acceptance of the need to seek help before things go seriously wrong. At a meeting last night, Dr. Dominian said: 777Good preparation for marriage is the only known factor which reduces divorce".We need the availability of counselling and support services for parents, whether or not they can afford them. We need family friendly employment practices and, as some noble Lords have already said, we need taxation policies which send a clear message that society supports and encourages stable, married relationships as generally providing the most satisfactory environment for the upbringing of children. Without some of those commitments, the objectives of the White Paper will not be secured.
§ 9.25 p.m.
§ Baroness Hamwee
My Lords, I must begin by declaring a number of interests. I am a solicitor and a partner in a firm of solicitors although I do not myself practise family law. I am a member of the council of management of Refuge which provides services for the victims of domestic violence and I am a member of the governing council of the Family Policy Studies Centre.
As well as declaring interests perhaps I should declare my stance. It seems to me that families come in all shapes and sizes and therefore so, too, do family values, or perhaps one might call them family responsibilities. The term "family values" now, I believe, carries too many overtones especially for those—and I am one—who rather resent the implication that someone who is not a spouse and is not a parent and whose morality is not based on Christianity, but is nevertheless, I think, soundly based, is somehow less of a person. I should make it clear that I am not at all accusing the noble and learned Lord of that attitude. I hope that by saying that I have not immediately undermined the point of saying that I do not point the finger. Indeed I congratulate the noble and learned Lord not just on the content of the Bill but also on his approach to it, and particularly on the consultative approach which has taken place over a long period.
The noble Baroness, Lady Young, said that the number of divorces is increasing. However, that is not the case as regards the latest figures, as we have recognised. She asked whether that increase mattered. I agree that that is the question we must ask, although I come to a different conclusion from the noble Baroness because I share with others the view that what matters is the breakdown of the relationship. If the relationship cannot be retrieved, it is better to find the least painful way of recognising that. Divorce is indeed a catastrophe in terms of what lies behind it. The greatest catastrophe may be to force a tie which is not a genuine one, leading perhaps to potentially explosive effects for both partners and, as has so rightly been said, for children. I join with the right reverend Prelate the Bishop of Oxford in agreeing that one cannot support marriage by making divorce more difficult.
I appreciate that my remarks may be regarded as being anti-marriage, or at least uncaring as regards marriage. That is not the case although I find it a little ironic that those who are criticised for failing to respect marriage are those who support the concept of the noble and learned 778 Lord the Lord Chancellor of reflection and consideration. I find those words user friendly and I welcome them in legislation. I agree that the Bill does not make divorce more available. Perhaps it is better to say that than to say that it makes divorce either more or less easy because, like the noble Lords, Lord Marsh and Lord Elton, in particular, I am certain that divorce is almost never easy. Like the noble Baroness, Lady Faithfull, I feel it is a little impertinent to intervene as an unmarried person but I suspect that few people, whether married or not, can really understand other people's marriages. Nor indeed is it easy for anyone else to opine that one particular pattern is the best modus operandi for the children in particular circumstances. I agree that it is important to listen to the child.
I hope that I am not one of those solicitors that the noble Lord, Lord Habgood, described as chuntering solicitors. If I am chuntering at all, my chuntering is that the very requirement to identify fault, as we have at present, is what increases acrimony. I support the non-adversarial approach of mediation although I do not regard that as entirely a replacement for legal advice; that is, advice as to what the law is and how it applies to individuals; advice and investigation as to the assets that may be available, and which are perhaps not being disclosed; and the very important part of a lawyer's job which is to instil in his client a sense of reality based on the current situation and what is possible.
Unhappily, too many separating and divorcing partners have unrealistic expectations. Sadly, the advice may reveal the pensions predicament which has been mentioned. I, too, know of a couple who are not married solely because of their concern for the wife who is separated from the husband and because of the need to support her. I believe that that can only be addressed by making specific provisions as regards pensions, not by preventing second marriage.
In supporting what the right reverend Prelate the Bishop of Oxford, called the humane and effective approach, I am aware, too, of the fragility of the mediation services. By that I mean their financial fragility. The Financial Memorandum to the Bill says that the provisions are designed to be cost neutral and there will be no increase in government expenditure. Anxieties have rightly been expressed both for the long term and the short term. If these proposals are to succeed, it is important that the mediation services are put on a secure financial footing. That will require resources, because a great many more trained mediators are required, as my noble friend Lord Meston said. That must be regarded as an investment.
As noble Lords have said, resources for counselling are also an investment. I support much of what has been said on that score. Resources are also needed for training in what are called, in the jargon, interpersonal skills. I do not see that as meaning formal lessons in marriage as a new form of domestic science, as it was called in the days when I was taught how to make scrambled eggs on toast, but assistance in communication skills. The importance of skills in communication for so many areas of life cannot be over-emphasised. 779 In referring to training for whatever life may hold in store, including marriage, I note the calls for the Government to have a role in education for marriage. Those seem to have come largely from those who in other discussions might quite rightly point to the role of parents rather than the Government in that training.
The right reverend Prelate the Bishop of Worcester talked about resources for preparation for marriage and for counselling, and said that parenthood is as important as any career. My noble friend Lord Russell said that matters such as childcare and paternity leave will make a difference to marriage. The noble Lord, Lord Elton, referred to housing and other resource-intensive matters. Those are what may make a difference to a successful marriage rather than the ease or otherwise of divorce. Parenting is an important career. The sooner more men truly accept that (although I agree with the noble Baroness, Lady Faithful!, that many do) the better for women, men and children. However, I take the point made by the noble Lord, Lord Marsh, that women's changing role may lead to increasing conflict.
My noble friend Lord Russell referred to Who's Who, which I understand will print details of one's partner who is not one's spouse. It took me several letters to persuade the publishers of Debrett that if they were to mention my father they should also mention my mother.
With regard to the information session that will now be required, I welcome the assurance given by the noble and learned Lord at the start of the debate that a victim of domestic violence need not attend at the same time as her spouse. However, I still have reservations about the potentially public nature of the information session and the possibility of what are essentially private matters, if not being aired in public not being confidential. I do not suggest that it will be a teach-in in the sense of those attending having to contribute. I welcome the fact that there will be pilot arrangements for the information sessions.
I wonder whether the sessions may be counter-productive in some cases. One knows that in other difficult situations, such as alcohol addiction, the first step—attending the first session and identifying oneself—is the most difficult. If the first step in these proceedings is to identify oneself, we may be making life harder, not easier, for those affected.
My noble friend Lord Russell has dealt with Part III of the Bill. I shall not repeat what he said other than to say that I share his concern and that of other noble Lords that the provisions of the domestic violence legislation are not diluted. The noble Lord, Lord Irvine of Lairg, said that no one should be entitled to assault another member of the household. I very much agree with that. Domestic violence is a crime; there is no getting away from that.
My noble friend asked for further assurances about the special position of victims of domestic violence in the new homelessness legislation. I remind him publicly that an assurance was given not only by the noble and learned Lord the Lord Chancellor but also by the Minister of State for the Environment in a debate on refugees in, I think, July.
780 The noble and learned Lord, Lord Simon of Glaisdale, referred to the challengers to the changes in the proposed legislation. With very genuine respect to him, I believe that it is for the changes to he justified. Therefore thorough consideration at Committee stage will be required. So I shall support amendments to restore the original provisions so that the matter can be thoroughly argued.
I cannot resist closing without reading a letter from The Times—I assure noble Lords that it is short—from Canon Donald Nicholson. He wrote:In the belief that the great Dr Johnson had an appropriate comment to make on any topic in any century, I would like to offer Lord Mackay this relevant observation:`I believe marriages would in general be as happy, and often more so, if they were all made by the Lord Chancellor, upon a due consideration of characters and circumstances, without the parties having any choice in the matter;
§ 9.37 p.m.
§ Lord Archer of Sandwell
My Lords, I am sure that we would all endorse that belief were it not for the fear that we would overburden an already somewhat burdened Lord Chancellor.
It cannot be often, even in your Lordships' House, that so wide a range of expertise and experience has been encompassed in one debate. Those who participate in the Committee stage will be faced with a formidable task in assimilating it all, especially as many of us also have the benefit of a substantial amount of briefing from sources representing those who regularly work in this area and for which I am very grateful.
I wait with eager anticipation to hear how the noble and learned Lord the Lord Chancellor will address the task of winding up so rich a debate. I hope that your Lordships will forgive me if I abdicate any attempt to do so. To refer to even the most informative contributions at this hour would not endear me to your Lordships. I venture therefore only a brief reflection on four themes which have emerged from the debate.
First, we need to consider the limitations on what we can hope to achieve in the Bill; indeed, what any legislation about divorce can or cannot achieve, bearing in mind contemporary public attitudes to cohabitation outside the marriage bond, referred to by my noble friend Lord Irvine. There have been periods in our history when public opinion would have constituted a serious sanction against cohabitation not supported by marriage vows. In the high Middle Ages, cohabitation would frequently give rise to all the obligations of marriage.
I recollect once seeing, in a manorial roll, the judgment of a manorial court that two people be ordered to separate on pain of being considered married. In the 18th century, a couple cohabiting outside marriage risked the community pronouncing its view by way of a procedure known as "rough music" when all the neighbours gathered outside in a somewhat noisy demonstration. Indeed, in the community in which I was reared, the suspicion that a cohabiting couple were not married was whispered behind dosed doors and, if 781 whispered often enough, they would not have been welcome at any public event. Alas, for more than one reason, my childhood was many years ago.
With the right reverend Prelate the Bishop of Birmingham, I believe that attitudes have changed and that that is a cause and not a consequence of changes in the divorce law. But with those changes have gone many of the sanctions which could be imposed by telling the parties to a marriage that they could not enter into a marriage with someone else. There are three things which we in the community cannot do. First, as the noble Earl, Lord Russell, and the noble Lords, Lord Marsh and Lord Elton, so movingly demonstrated, we cannot make two people live together in harmony if they cannot or will not. No law, no judge, no court can do that. If two people no longer generate love between them, if the atmosphere is cold and unhappy, still more if there are perpetual rows, we cannot compel people to make their home warm and happy.
Secondly, we cannot make them go on living together. If either or both are determined to separate, we cannot force them to stay together. Thirdly, in our generation we cannot prevent one or both living with someone else. We can say to them, if we so decide, "If you live with your new partner you will be cohabiting out of wedlock." But today that may not deter them from cohabiting. We may then need to decide whether the new relationship is better brought within the marriage bond.
Of course, it does not preclude our doing what we can to engender public respect for marriage as an institution. I venture only to observe that that is not always best achieved by causing some people to cohabit without being able to marry. I share the anxiety of the noble Viscount, Lord Brentford. If divorce is too hard, then cohabitation outside marriage may be encouraged.
We have to set all this into context. So the second theme which I believe has arisen today is best expressed in the form of a question. If we cannot impose harmony on a domestic situation, is there anything we can do to encourage a stable, permanent and happy relationship? I believe, with some of your Lordships, that there are steps we can take to ensure that the occasional bad patch is not fatal. First, we can encourage people to reflect seriously before they enter into partnerships, either inside or outside marriage. That is not always practical. When relationships begin, parties are not always at their calmest and most reflective. But we can at least make available proper, considered sex education in schools, pointing out—as the noble Lord, Lord Jakobovits, and my noble friend Lord Stallard suggested—the virtues and contribution which marriage can make. We can warn people of the dangers of embarking on such adventures lightheartedly. As the noble Lord, Lord Northbourne, pointed out, we can ask registrars to distribute to those about to marry some of the valuable literature which is available. So we can do our best to ensure that relationships do not begin unless both parties are persuaded that they have a serious prospect of continuing.
782 Secondly, we can encourage parties whose marriage is experiencing difficulties to take advantage of marriage guidance and counselling. As the noble Lord, Lord Marsh, said, not all of them will benefit, but many will and there might be marriages saved. It is right at this stage that we should repeat the distinction emphasised by my noble friend Lord Irvine between conciliation and marriage guidance on the one hand and mediation at the later stage on the other. For the moment I am talking about conciliation and marriage guidance.
I share the curiosity of my noble friend Lady David as to whether the parties are to be told at an early stage what is available and how they can embrace it. The organisations that provide those services cannot budget unless they have guaranteed resources. As some noble Lords pointed out, producing those resources may be a very good investment. The current cost of divorce, including the court costs, the cost of the children in care and social security benefits—as the right reverend Prelate the Bishop of Oxford pointed out—are estimated to be something like £3.4 billion a year, whereas we spend less than £3 million each year in supporting marriages. Therefore I echo the plea of the noble Duke, the Duke of Norfolk: if we could achieve a 25 per cent. reduction in the former figure by increasing 25 per cent. investment in the latter figure, on any showing that would be good business.
Thirdly, there are the fiscal measures mentioned by the noble Lord, Lord Elton. One thing we could do is assist people to maintain a roof over their heads. Many marriages begin to go wrong when the family is evicted from its home. Then there are the matters mentioned by the noble Earl, Lord Russell. We can arrange hours of work so that the parties can see one another from time to time. There is a great deal we can do.
The third theme addressed today was reflected in the question posed so clearly by the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Elton. How do we deal with the situation where, despite all the measures that we can take, a marriage has reached crisis point and the parties are contemplating divorce? I, too, endorse the way this was expressed by the right reverend Prelate the Bishop of Oxford. He stated it succinctly, and I hope that he does not claim copyright because I think I may repeat it elsewhere: we do not strengthen the institution of marriage by an unsatisfactory divorce law.
I welcome the end of the recriminatory procedure. We should be grateful to the noble Lord, Lord Habgood, for reminding us of the succinct arguments in Putting Asunder, which many of us read a very long time ago. To offer positive encouragement to one party and embark on a recital of the other party's misconduct makes no contribution either to a possible reconciliation or to a future relationship from which the children might benefit. At best, as my noble friend Lady Birk pointed out, as did the noble Lord, Lord Elton, the allegations are not contested and there follows the "quickie" divorce, which I hope we all condemn. At worst, the parties' attitude to one another is soured for life, with all the unhappy consequences for the future of the children. As the noble Lord, Lord Meston, reminded us, we may divert into legal expenses public money which 783 might have been better used. Encouraging one party to concentrate on what the other partner did wrong without reflecting on his or her own mistakes makes no contribution to a possible reconciliation, nor even perhaps to a more successful second relationship in the future.
That is very different from the question posed by the noble and learned Lord, Lord Simon. What will be the procedure for enabling the other party to express a view as to whether the marriage should be terminated? It seems to follow from Clause 10 that such a procedure will be provided, but I share the curiosity of the noble and learned Lord. I hope that the noble and learned Lord the Lord Chancellor can to some extent assuage our curiosity when he replies.
As to the requirement for a period of reflection, I agree with the noble Baroness, Lady Hamwee: the Bill is likely to make divorce less likely and not more likely and it may well save marriages. The right reverend Prelate the Bishop of Worcester and the noble Duke, the Duke of Norfolk, reminded us that those who have experience in conciliation report that all too frequently those who go ahead with a divorce come years later to regret it. They wish that they had stayed married.
But I have heard doubts expressed as to whether the provision may be too inflexible. There may be situations in which the advantages are outweighed by some of the hardships. My noble friend Lord Irvine gave a very telling example of that, as did the noble Earl, Lord Russell. Another example which I have heard quoted is one where the wife is pregnant and anxious to marry the father of the child. There might be very real arguments there based on the welfare of the child for saying that she should be free to do so before the child is born. So I echo the plea of my noble friend Lady Birk for a degree of flexibility.
Of course there will be arguments about the thin ends of wedges. I recollect the procedures in the Matrimonial Causes Act 1937, which was referred to by the noble and learned Lord, Lord Simon, where no party was permitted to initiate divorce proceedings within three years of the marriage. Whatever the subsequent legislative history to which the noble and learned Lord referred, he will remember—as I remember—the days when I was a young barrister and I appeared before him on exactly that kind of application, because it was found necessary to mitigate exceptional cases. The courts were given a discretion in proper cases to dispense with the provision. It did not mean the virtual end of the rule. The courts gave leave only in exceptional cases. I hope that the committee will hear evidence on that before we reach any dogmatic conclusions.
Most particularly, I welcome the proposals in Clause 12 for making available, and making the parties aware of, provision for mediation. I assume, as my noble friend Lord Irvine pointed out, that here mediation means mediation and not conciliation, although conciliation was referred to in the White Paper and no doubt the two will he in the mind of the noble and learned Lord. Mediation arises when conciliation has failed. If, then, the parties can be persuaded to resolve their differences without bitterness—and, it is to be hoped, without some 784 of the unedifying proceedings that we used to hear in the divorce jurisdictions—we would all have taken a step forward.
I have only three reservations, none of which diminishes my support for the proposal. In fact, I should like to make it more effective. First, mediation is not likely to be effective unless it is carried out by trained and skilled mediators who are aware, among other things, of modern research into communication, as the noble Viscount, Lord Brentford, pointed out. Mediators cannot be trained by listening to a half-hour lecture on a Friday evening. If the proposal is to be successful—I could be completely wrong, and that would not be wholly unprecedented—I imagine that there will be something like a tenfold increase in the number of people seeking mediation. I do not believe that at present those mediators are sitting in their rooms waiting for clients to come in. So, I echo what was said by the noble Lord, Lord Coleraine, and my noble friend Lady David: there will need to be a substantial recruitment and training programme.
Secondly, I share the anxiety of my noble friend Lord Irvine as to the implications of Clause 24. Training as a mediator and training as a lawyer are not often combined in the same person. As the noble Lord, Lord Habgood, said, in some cases they are; but there are very many who do not share both skills. Certainly there are not enough of those who do.
I am told—I believe that the noble Baroness, Lady Hamwee, said it—that couples who avail themselves of mediation usually require separate legal advice about matters such as the title to the matrimonial home, pensions and certain kinds of provision for the children. Incidentally, while I am on the subject of pensions, like my noble friend Lord Irvine and the noble Lord, Lord Gisborough, I hope that provision can be made for splitting pensions. It will not impose any additional burden on the Treasury and will make it much easier to effect justice between the parties.
Thirdly, if the process is to be activated by a statement under Clause 5, I shall be grateful if the noble and learned Lord can tell us a little about the form of that statement. He said that it would be a statement that the party believes that the marriage has broken down. If it is merely a formula, it does not appear to add much to the proceedings. If it is more than a formula, there may be a temptation to embark on a long and unhappy history of the marriage by the back-door. I hope therefore that we shall be told a little more about that.
I share the curiosity of the noble Baroness, Lady Hamwee, as to the form of the meetings which are to take place. Are they to be group meetings? If not, will they be on a one-to-one basis? Practitioners tell me that there is a danger that some wives will be reluctant to avail themselves of the provisions if they think that they are likely to suffer embarrassment.
Fourthly and lastly, perhaps I may be permitted a word on Part III of the Bill. The Family Homes and Domestic Violence Bill was based on a careful and well-researched report by the Law Commission. In March and April of this year the Special Standing Committee of which your Lordships have heard, 785 chaired with great skill and care by the noble and learned Lord, Lord Brightman, and including my noble friend Lady David and the noble Lord, Lord Meston, sat through a number of sessions when we received evidence from people whose expertise and experience were placed at our disposal. We reached a consensus after careful discussion and your Lordships endorsed the Bill.
Subsequently, the Bill was changed at the instance of a number of Members of another place. I do not know whether they had read the Law Commission's report or the evidence available to the committee, or whether they had read a report of its deliberations. Of course they are entitled to differ from those who offered us the benefit of their expertise, and I am sure that they acted with what they thought were good motives. But if their purpose was to encourage people who cohabit to do so within the marriage bond, what they did was counter-productive. A property-owning husband will now have an incentive not to enter into a marriage.
We are grateful for the careful analysis which the noble and learned Lord, Lord Brightman, gave us. For myself, I am prepared to listen, when we go into Committee, as to how far it may be necessary to re-establish the original Bill and what may be the fate of the Bill if we fail.
In an imperfect world there are no perfect solutions. Every proposal will carry a price tag. We must do the best we can with the benefit of such information and experience as are available, and perhaps later be prepared to admit that we might have done better. None of us represents the ultimate in wisdom, and it is an area in which sometimes the most helpful quality we can contribute is a little humility.
§ 9.58 p.m.
§ The Lord Chancellor
My Lords, I echo at the start the words that have just fallen from the lips of the noble and learned Lord, Lord Archer of Sandwell, in closing. Humility is not a bad attitude in which to approach the difficulties that we face in this Bill. Those who assert with confidence what the future holds must be sure that they can lay proper claim to the mantle of the prophet. Mrs. Ruth Deech, who was referred to a number of times during the debate, cautions against that kind of prophecy in her recent article in The Spectator.
I am not sure what is the right way to sum up the debate. There are some general issues that I should like to emphasise. I cannot promise to answer every question posed, but I shall try to answer in correspondence those that I do not have time to answer tonight.
First, like almost everyone who has spoken, I should like to see far fewer divorces. Even more, I should like to see far fewer breakdowns in marriage that cannot be saved or retrieved. But though I share that view, I am not certain that there is any absolutely certain formula by which to reach that end. I doubt whether any of your Lordships who expressed particular anxiety about the 786 Bill produced such a formula. But I shall have to read carefully all that was said. Rhetoric of itself will not necessarily produce the result that the repetition seeks.
My noble friend Lady Young suggested that we were seeking to obliterate fault. I do not think one will find in the Bill any suggestion that there is no such thing as fault, but what one does find is an omission from the facts showing irretrievable breakdown of any reference to adultery or unreasonable behaviour. I posed a question at the beginning of the debate to which so far I have not heard an answer. How does the fact that a very quick divorce can be awarded in respect of a person who has grievously broken his marriage vows by committing adultery and can then re-marry very quickly indeed support the institution of marriage? Almost everyone who spoke on this line agreed that the quickie divorce should be abolished. That, by itself, is justification sufficient for a Bill dealing with this subject.
I shall be most interested to see the amendments that my noble friend indicates she proposes to bring forward at the Committee stage. As I indicated at the outset of the debate, and again a moment or two ago, I certainly believe that the issues here are ones which will require to be carefully considered in Committee. All the amendments that may be suggested will be, certainly on my part, very carefully looked at, including the amendment which the noble Lord, Lord Jakobovits, said he wished to propose in relation to the particular problem that he referred to at the end of his remarks.
A good deal has been said about the rise of divorce after every change in the divorce law. Anyone who looks at the figures will have to ask the question, "If the divorce changes had not taken place, would the graph be very different?" That is the question. No one denies that there were rises in the divorce rate after changes in the law, but there were also rises before changes in the law. What does that prove, I ask rhetorically?
Part I of the Bill deals with the ground of divorce and the procedure associated with that. It is proposed after the Children Act. The provisions of the Children Act apply, for example, to questions about residence or contact. All the provisions there will be effective. I do not see any point in trying to repeat them in this Bill. There are procedures in the courts. Perhaps I may make an aside on the family court. I think that as a result of the jurisdictional changes in the Children Act we have a family court with three levels of jurisdiction. The family court has procedures for dealing with the views of children. I would certainly like to think that, where it is appropriate, the views of children should be taken into account in mediation. That will certainly be perfectly possible.
Some questions have been asked about the information session. The objects of the information session are to give information so as to be sure that anyone contemplating the divorce process has all the information that we can furnish in an objective way about conciliation, counselling, lawyers, mediation and anything else that may be helpful. That is the purpose of the information session. How best to give it is a matter on which I shall be glad to obtain advice. 787 I propose to try to experiment with pilot studies with a number of different ways. My personal view at the moment is that the most objective way for this to be arranged is for those who provide the services to describe them, because, however unbiased one is, it is very difficult adequately to describe what other people are providing because they are much better at doing that themselves.
That service can be provided in a number of ways. A video may be a possible way of doing it. We have used that method very successfully recently as regards jurors. The amount of information which they get is not so complicated at that stage as this kind of video would be. As I say, I am certainly open to suggestions about how that should be done. The purpose is to give as reliable, full and helpful information as can be given about all the services available at that stage.
The noble and learned Lord, Lord Archer of Sandwell, asked me about the document and what is stated. I believe that one needs something to start the year off. I believe that it should be as simple as possible. Therefore, so far as I am concerned, one needs to say—and this seems to be the reality if one is thinking of divorce—that one's marriage has broken down. The next stage, after a year, is that in the light of all the circumstances, one believes that one's marriage has broken down in such a way that it cannot be retrieved or healed. That appears to me to be a reasonable basis for proceeding.
I do not believe that this Bill makes divorce easier. A number of noble Lords have supported this view. I do not entirely understand what that phrase means and therefore it may be more difficult to respond to remarks that I did not fully hear about it. It is quite clear that the period required for some 75 per cent. of divorces will be longer than it is at the present time. I strongly suggest to your Lordships that there is a very uncertain sound about fault sent out by the present system in which reliance on that enables one to get a quick divorce. I shall be very interested to see the amendments of those who are proposing to abolish the quick divorce and the basis on which that proceeds.
As regards the provisions dealing with mediation, they are a modification of the Legal Aid Act to enable the Legal Aid Board to fund mediation. I have sought to do that on a basis of principle, which of course is slotted into the existing Legal Aid Act. So legal advice and representation will be available on the terms presently set out in these Acts except in so far as they are modified by this Bill. What we have sought to do in this Bill is to give a fair wind to mediation as a way of dealing with the disputes that arise between parties at the stage at which this matter arises.
It is absolutely plain and crucial that mediation and conciliation, and all the other things that have been referred to, are quite different. Mediation is distinct because it is intended to address problems that will arise between the parties on the dissolution of the marriage. If the mediation does not come to a conclusion these issues will be justiciable by the court. That is quite a 788 different thing from counselling or conciliation. They are personal matters where one goes along and makes what use one can of them.
§ Lord Simon of Glaisdale
My Lords, I thank the noble and learned Lord for allowing me to intervene. The argument was that conciliation should be available during the so-called "cooling-off period" before any question of mediation arises. That was the argument from many parts of your Lordships' House.
§ The Lord Chancellor
My Lords, I appreciate that that argument was made and I am seeking to address it. I am making the point that mediation is a way of addressing issues which, if it fails, will become justiciable before the court. Conciliation, reconciliation, counselling and all the rest are quite different. They involve personal relationships and direct advice or help provided by the counsellor, conciliator or whoever to the person seeking that help.
If there is any lesson to be learned about divorce from present history it is that conciliation, reconciliation and advice that come only when someone is actively contemplating divorce has come extremely late and the chance that it will be successful is then very much less than if that help was given earlier. I do not want in this Bill to give any countenance to the idea that conciliation should be thought of only once one has lodged the formal initiation of a divorce process—
§ Lord Northbourne
My Lords, I am grateful to the noble and learned Lord for giving way. Does he accept that some of us were not saying that conciliation should be restricted to taking place after the statement has been made; that on the contrary, we were urging the Government to make available the resources and facilities so that conciliation can be made available both then and earlier?
§ The Lord Chancellor
My Lords, that is precisely what I was about to say. As I indicated in my opening remarks, the Government have set up a working party chaired by the Lord Chancellor's Department to examine exactly what is available at the moment, starting with the period with which most of your Lordships wanted to start; namely, before the parties enter into marriage. Much of that work has been done by the Churches and by various other communities. However, it can be carried out in the education system also. I have the details with me, but time is running on and I should prefer to deal with matters of principle now. The education system involves such responsibilities, but I am looking at the total resources available in relation to the period when a couple are contemplating entering marriage as well as during a marriage at times of crisis.
Those involved in marriage guidance work, with whom I have had detailed consultations, have indicated to me that there are particular times in a marriage when a relationship which was previously good is likely to become fragile. We want to address that. That is certainly what I am addressing fully in the working party that was set up as soon as I could make arrangements for it once the White Paper had been published. It may be that some reference to that in the 789 Bill would help but, as far as I am concerned, the work is going ahead as fast as I can make it go while the Bill is before your Lordships. I do not think that it requires statutory authority. It is good sense and I wish to press ahead with it as fast as I can. I believe that that is the way to address the general problems to which so many of your Lordships have referred.
The Bill makes it quite clear that if, during mediation, a prospect of agreement or reconciliation emerges, the mediation should stop and the prospect of reconciliation should be pursued.
I should like to deal with one other related matter. More than one of your Lordships and more than one of the right reverend Prelates mentioned the fact that after a time quite a high proportion of those who divorce—the proportion is higher for men than for women—regret it greatly and wish that it had never happened. Sadly, life does not proceed like that and once a divorce has happened, it is beyond recall. That is why forgiveness is so important. However, if the question of the future is addressed during mediation and the parties know what the future holds for them in as much detail as possible, although they will not be able to see everything, that will inform their view and may well turn some of them back from divorce and towards reconciliation. A real look at the future may well bring them to believe that what has happened is not so terribly bad that they should not have another go at recovery.
Therefore, the two aspects are interlinked. There is no stage at which it is right to have, say, six months of conciliation, and if that fails one is into mediation and then into divorce. I hope that the possibility of reconciliation will be kept alive right until the time the divorce is granted. That is a fundamental principle that lies behind the proposals that I have made in the Bill. I believe that it is a sound practical principle and I shall be most interested to hear in Committee the practical proposals for dealing with the matter put forward by your Lordships who disagree with the proposals made in the Bill.
There is time only to say a word or two about Part III of the Bill. The previous Bill was dropped because controversy arose at a time when the timetable did not permit controversy to be accommodated in the ordinary parliamentary procedures. Therefore, I had to see what could be done. In the light of the reflections that were made to me, I made these changes in the Bill. Not for the first time, I am deeply grateful to my noble and learned friend Lord Brightman for his summary of the position, which is entirely fair. I believe that we need to examine the detail of the various changes in Committee. I shall be happy to do that because I believe that they do not have the effect referred to by the noble Lord, Lord Irvine of Lairg, especially in one particular which I do not need to mention now.
I hope that your Lordships will consider that it is right for your Lordships to give a Second Reading to this Bill. I detected no feeling to the contrary. Obviously, the Bill is subject to amendment. All noble Lords who have spoken agree that it addresses a most important problem. For my part, I shall be extremely happy to look at every amendment suggesting improvements. Perhaps I may 790 suggest that an orderly way of dealing with the matter will be to discuss the amendments in Committee and then, when we have had a chance fully to consider them, to leave the ultimate voting to the Report stage. I am entirely in your Lordships' hands about that but I believe that it would make for an orderly consideration of the issues, all of which are extremely important but extremely difficult.
During the last minute of the time available to me, perhaps I may answer the point made by my noble and learned friend Lord Simon of Glaisdale. As a matter of principle, I and the Government consider that there should be a free vote on issues of conscience arising from provisions in this Bill relating to divorce law reform. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.