§ 3.25 p.m.
§ Report received.
§ The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 1:
§ Before Clause 1, insert the following new clause—
THE GENERAL PRINCIPLES UNDERLYING PARTS I AND II
(". The court and any person, in exercising functions under or in consequence of Parts I and II, shall have regard to the following general principles—
- (a) that the institution of marriage is to be supported;
- (b) that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps to save it;
- (c) that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end—
- (i) with minimum distress to the parties and to the children affected; and
- (ii) without costs being unreasonably incurred in connection with the procedures to be followed in bringing it to an end.").
§ The noble and learned Lord said: My Lords, Amendment No. 1 follows our consideration in Committee of an amendment tabled by the noble Lord, Lord Stallard, to insert a clause setting out the general objectives of the Act. During that debate it was clear that a number of your Lordships supported the inclusion of such a provision. I indicated in general terms that I was anxious to consider the matter and therefore I am happy to bring forward this amendment, which I hope reflects the mood of the House on this important issue.
§ It is important that the amendment is included at the beginning of the Bill as it sets the framework for all those who will be concerned to operate it, whether it be persons exercising functions under Parts I and II or 'whether it be the court making decisions under these provisions.
§ I am extremely grateful to the noble Lord, Lord Stallard, and those who supported him for making the suggestion. This is an important amendment to the Bill and an improvement. It serves as a useful assertion of the framework within which the Bill should operate. I therefore have pleasure in begging to move Amendment No. 1.
Lord Simon of Glaisdale moved, as an amendment to Amendment No. 1, Amendment No. 2:
Line 3, leave out ("Parts I and II") and insert ("any provision of this Act").
§ The noble and learned Lord said: My Lords, your Lordships will be grateful to the noble Lord, Lord Stallard, for his part in paving the way to my noble and learned friend's amendment and to my noble and learned friend in going so far to meet our wishes.
§ In moving Amendment No. 2, I shall speak to Amendments Nos. 3 and 4 which are grouped with it. However, Amendment No. 5 raises different issues and I propose to move it separately.
§ The advantage of the statement of principles on the lines tabled by my noble and learned friend is that it gives a guideline to the interpretations of any matter in a measure which might be obscure or ambiguous. Secondly, it is a general guide to the way in which a statute should be interpreted when it comes before the courts.
§ It is an alternative to dealing with the matter by Long Title which is the method I would generally prefer if only because otherwise the Long Title serves no useful purpose at all. However, in this case, I agree that it is more convenient to proceed in the way in which the noble Lord, Lord Stallard, dealt with it in Committee and the way it is dealt with by my noble and learned friend's Amendment No. I. That has the support of several precedents mentioned in Committee and approved by the Renton Committee on legislation.
§ There have been a number of criticisms of some decisions made under the 1969 Divorce Reform Act and its consolidation in 1973. I do not believe that some of those decisions would have been criticised if a statement of principles such as that we have before us and susceptible of improvement had preceded the 1969 Act. As it was, judges had to do their best to carry into effect what they conceived to be the general objective of the 1969 Act. What they saw was a desire, a mechanism, to make divorce ever more facile, if necessary at the expense of justice. That being so, a number of decisions of the court inevitably took that direction, at the expense of justice. In using that term, I shall go no further than the White Paper which led to the Bill now before the House. The whole of chapter 2 deals with shortcomings in the existing law, which is in effect the 1969 Act. Indeed, one paragraph uses the word "injustice".
§ As regards my noble and learned friend's amendment, we are grateful to him for it as far as it goes. But there are one or two curious omissions which are bound to raise questions. First is the provision referred to in my Amendment No. 2 which draws attention to the important matter of the institution of marriage in relation to Parts I and II. That makes it significant that there is no reference to Part III. The relevant principle proclaimed in my noble and learned friend's amendment is that the institution of marriage is to be supported. Is that of no significance in relation to Part III which deals with domestic violence? I venture to ask why that is omitted.
Amendment No. 4 is purely a verbal alteration but I think it important. The words I seek to omit are,
a marriage which has irretrievably broken down".
§ It is a matter which will be taken up later in a number of amendments to be moved by the noble Baroness, Lady Young. It is unnecessarily provocative to refer 1147 in the statement of principles to that formula to which there is grave objection. What I suggest is a more neutral term; namely, "is being dissolved". I cannot see that my noble friend's amendment loses anything by that change and, as I said, the phrase is much less provocative. I beg to move.
§ 3.30 p.m.
§ Lord Stallard
My Lords, I believe that it is appropriate at this stage to express my gratitude to the noble and learned Lord the Lord Chancellor for the remarks he made in moving the amendment and his acceptance of the general sense of the amendment I moved in Committee. I believe that he encompassed most of the points I made. Of course, I am still very much concerned about reconciliation, but that will be dealt with at a later stage of the Bill. I believe that the noble and learned Lord's proposed amendment covers the points I made. I am quite happy to express my gratitude for his positive response to that amendment and for writing a provision into the Bill. I obviously reserve my position as regards future remarks on later amendments which may be relevant.
§ Lord Robertson of Oakridge
Lords, I welcome the amendment in general but I have one reservation: it concerns the reference to children in paragraph (c). As drafted it could be taken to imply that the children's needs and problems can be disposed of at the time when the marriage is brought to an end. Unfortunately, that will seldom be possible as the effects of divorce on a child often continue well into the future.
I mention four areas where problems may affect children after divorce. First, there may be arguments about access. Secondly, there are situations in which parents compete for children's good will by offering expensive presents and treats. Thirdly, there are instances where parents' main priorities are to rebuild their social life and find another partner. The children come off second best and may experience a sense of rejection which has lasting effects upon them. Lastly, when mother's new partner moves into the house in place of father, children are at a higher risk of abuse. In his book Homes and Battered Children, published in 1994 by the Family Education Trust, Mr. R. Whelan calculated that the risk of abuse was 33 times higher than if children had remained with their own married parents.
Those problems cannot be solved readily by legislation but we cannot afford to ignore them. However, if the reference to children in the amendment were to include such a phrase as, "with regard to the present and future needs of the children", all those concerned would be encouraged to look ahead beyond the actual divorce settlement. I believe that that would be helpful. Perhaps I may suggest to your Lordships that, between now and Third Reading, consideration might be given to amending this section of the Bill on the lines that I have proposed.
§ Lord Renton
My Lords, I, too, am warmly in favour of the amendment moved by my noble and learned friend 1148 the Lord Chancellor. Perhaps I may briefly elaborate on the reasons given by the noble and learned Lord, Lord Simon of Glaisdale, and say that statements of principle are always helpful, especially in the early stages of an Act of Parliament. I say that because they clarify the intention of Parliament with regard to the other provisions of the Bill and enable the detailed provisions of the legislation to be more easily interpreted by the courts and understood by the users of statutes.
As to the amendments tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale, I must say that Amendment No. 5 is one that I believe my noble and learned friend the Lord Chancellor should welcome. He himself set the precedent for that in the Children Act. At the beginning of that Act—
§ Lord Elton
My Lords, I hope that my noble friend will forgive me for interrupting him, but my noble and learned friend the Lord Chancellor specifically excluded Amendment No. 5 from this group so that we may discuss it later.
§ Baroness Gardner of Parkes
My Lords, I should tell my noble friend that it is to be dealt with separately.
§ Lord Simon of Glaisdale
My Lords, I should just like to say that I welcome the support of the noble Lord, Lord Renton, whenever it may come.
§ Lord Renton
My Lords, in that case, circumstances compel me to defer my further support for that amendment.
I am very doubtful about the other amendments tabled in the name of the noble and learned Lord, the most important of which is Amendment No. 2. That would make the new clause moved by my noble and learned friend apply to the whole of the Bill. The proposed new clause applies to Part I and II only and I am sure that that is correct. Speaking broadly, those parts deal with divorce whereas Part III of the Bill deals with quite separate matters; namely, "Family Homes and Domestic Violence". Of course, not all of the provisions in Part III relate to divorce, although, as regards domestic violence, they overlap a little.
I should like briefly to refer to Amendment No. 3, which seems to me to be just a drafting amendment and not one which I feel my noble and learned friend the Lord Chancellor should accept. Amendment No. 4 goes a little beyond drafting, but I prefer the wording chosen by my noble and learned friend the Lord Chancellor rather than the alternative proposed by the noble and learned Lord, Lord Simon of Glaisdale.
§ 3.45 p.m.
§ Earl Russell
My Lords, I, too, welcome Amendment No. 1 for reasons very similar to those just given by the noble Lord, Lord Renton, who is too modest to say that the amendment accepts some of the principles of drafting for which he argued in the Renton Report. 1149 Those principles need defending and I am glad to see them being adopted. I would, perhaps, have wished that the noble and learned Lord had said in his amendment that the institution of marriage is to be supported whenever possible, as politics is, after all, the art of the possible. Nevertheless, I take that to be implicit in the spirit of the amendment.
However, I am not so happy with the amendments tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale. In particular, I am not happy with Amendment No. 2. I believe that the institution of marriage is to be supported. I also believe that human life is to be preserved. I do not believe that it in any way qualifies my support for marriage if I put my support for the preservation of human life first. I also believe that the Queen's peace is to be kept. I do not believe that it in any way qualifies my support for the institution of marriage if I put the preservation of the Queen's peace first. Therefore, in cases where the preservation of marriage might lead to threat to the life or to severe physical injury of one of the parties, I think that it would be unduly doctrinaire to say that the preservation of the institution of marriage should come first in such circumstances. That is why I believe that the principle—as, I think, the noble and learned Lord has realised in the drafting of the amendment—is not germane to Part III of the Bill. The noble and learned Lord is entirely right to apply it to Parts I and H, but not to Part III.
I am not entirely certain of the effect of Amendment No. 3 which refers to the marriage being "in crisis". I once, rather rashly, used the word "crisis" in the title of an academic work. Shortly afterwards, one of my senior colleagues at a conference fixed me with a beady eye and told me that it was an overworked word. I concluded on reflection that my colleague was correct: either it means nothing or it is, I believe, a good deal more restrictive than many of us would like it to be.
Amendment No. 4 would remove the notion of irretrievable breakdown, which is somewhere near the very heart of the Bill. I would not go all the way with the Denham doctrine as recently re-enunciated in The Times about wrecking amendments, but I will say that, if the amendment were to be carried, it would remove something which, as I said, is very close to the heart of the Bill and of which I believe a clear majority of the House approves. Therefore, if it were carried, I, for one, would regret it.
§ Baroness Young
My Lords, as someone whom my noble and learned friend will recognise as being not entirely happy about the legislation now before us, I should like to thank him for bringing forward the amendment, which is based on an original amendment moved by the noble Lord, Lord Stallard. The fact that my noble and learned friend has re-drafted the amendment and brought it back in this form is most helpful. It is valuable to have the statement of principles at the beginning which, as I said when we discussed the matter in Committee, gives us a reference point for the other aspects of the Bill as they come before us.
1150 Moreover, I believe it is important that both the debate that we had in Committee and today's subsequent debate will be on the record. I now understand that that will be taken into account when lawyers are considering legislation because it sets out the intention of Parliament. I believe that our discussions are both important and helpful.
I greatly appreciate the points made by the noble and learned Lord, Lord Simon of Glaisdale. I stand as second to none in my great respect for his views on such matters. However, in life when one actually gets something which is of value I suppose that one should be generous enough to say "Thank you" for it; and, indeed, I do so today. I accept what my noble and learned friend has done.
§ Lord Coleraine
My Lords, I join with other noble Lords in thanking my noble and learned friend for bringing forward his amendment today. However, like the noble and learned Lord, Lord Simon of Glaisdale, I have a certain number of reservations about it. It will come as no surprise that my noble and learned friend sees as a primary object of the Bill the minimising of costs to parties and to taxpayers. He said as much in Committee, reminding us of what was in the White Paper.
Keeping costs down is a worthy and desirable aim in all litigation, and nowhere more desirable—it may be thought—than in family matters where children are involved. However, in my view it would be wrong in principle to single out this Bill for special direction about costs, not least because it was substantially as a result of penny-pinching and the introduction 20 years ago of cheap and cheerless postal divorces under the special procedures that we are now where we are, with a divorce system which is in disrepute.
I wonder whether the word "costs" in my noble and learned friend's amendment includes the fees paid to mediators. The point may or may not be clear, but it is easy to envisage the Legal Aid Board feeling obliged, under the penny-pinching principle, to refuse legal aid for ancillary proceedings because of the availability of mediation. What seems to me so curious is that the costs principle is included in this amendment, but the principle that divorcing couples should be made aware of the consequences of their divorce, which was mentioned in the amendment of the noble Lord, Lord Stallard, has been left out. It seems to me that that principle in the amendment of the noble Lord, Lord Stallard, which referred to couples being made aware of the consequences of their divorce is a principle of the first importance.
As to supporting the institution of marriage, the expression is ambiguous. Are we to understand the reference to support of marriage as the option to be preferred over cohabitation? Or, are we to understand the phrase to embrace the concept that marriage can be best supported by non-acrimonious divorces which enable the parties to enter into better marriages later on? I suggest that the principle would be better expressed more openly as "support for marriage as the lifelong voluntary union of man and woman as husband and wife". That would inevitably and unambiguously give 1151 primacy of esteem to the present marriage in every case, whether it be a first or a subsequent marriage. This, I suggest, is as it ought to be.
To move on from the institution of marriage to the question of irretrievable breakdown raised by the noble and learned Lord, Lord Simon of Glaisdale, and mentioned by many other noble Lords, I would just say as a drafting point that the reference in paragraph (c) of the amendment to a marriage having irretrievably broken down overlooks the fact that irretrievable breakdown in the Bill is a figment of legislative imagination. Irretrievable breakdown takes place, according to the wording of Clause 4, not earlier than the end of the period for reflection and consideration, by which time it is clearly too late to do much about distressed parties and children.
I say "Amen" to the principle that distress should not be caused to children but I believe that there is a nettle here and I propose to grasp it. I believe that the way the principle is expressed here, taken in the context of the whole amendment, is conceptually flawed. We know that as a general rule the distress of children is less in intact families than in families destroyed by separation and divorce. We know that the distress of children after divorce may increase over the years as contact with the non-resident parent is weakened, if not lost, and the resident parent enters into a new relationship or marriage. If one thing was made abundantly clear during the Committee stage of this Bill, it was that the White Paper was misleading in dwelling on the idea that generally children in conflict-ridden, intact families would be better off in divorced families. That is an unfounded hypothesis, but much of the thinking behind the Bill relies on it as received wisdom.
It is often the case that from and after the divorce decree there will be a temporary reduction in stress and friction. I can envisage a situation where a district judge, obeying my noble and learned friend's direction, would take steps or give advice deliberately to bring a marriage to an end in order to relieve short-term distress. He would, of course, say that he was in no position to accept the argument or evidence that the long-term distress of the child would be the greater if the marriage were dissolved prematurely. Or, a mediator may feel compelled to make the same sort of decision.
It is unfortunate that my noble and learned friend's amendment is in a form which too strongly influences the discretion of all those involved in the dissolution process. The amendment of the noble Lord, Lord Stallard, at Committee stage seems to me to have been better judged in that respect. My noble and learned friend's amendment follows the form used in the Children Act. I do not consider the Children Act formula suitable for this amendment. Section 1 of that Act placed the single issue of the welfare of a child in a unique paramount position in unspecific terms. The principles in Amendment No. 1 today are much more specific. They are not even sui generis each other; one may conflict with another; and other principles with equal if not greater claim to inclusion are not recognised. It seems to me that my noble and learned friend's 1152 amendment, as drafted, is likely to lead to confusion and unfairness. I hope that he will not press it today but will think further about it.
§ Lord Elton
My Lords, perhaps I might have a four penn'orth run. The noble Lord, Lord Robertson of Oakridge—
§ Lord Stoddart of Swindon
My Lords, if the spokesman on the Front Bench is to conclude, it is probably the turn of our side of the House to speak, is it not? Someone from the noble Lord's side spoke last.
§ Lord Elton
My Lords, as the noble Lord is accustomed to being on his feet, I shall leave him there.
§ Lord Stoddart of Swindon
My Lords, I only wish to speak briefly. I wish to support the amendment put down by the noble and learned Lord the Lord Chancellor in response to that of my noble friend Lord Stallard tabled at Committee stage. I support the noble and learned Lord's amendment because it makes absolutely clear that,the institution of marriage is to be supported".That is an important sentence. It will establish that all of us here—if we pass the amendment—support the institution of marriage. That means that we want it to be continued and strengthened in so far as that is possible.
The measure also, in my view, strengthens the position in relation to children. In my view, in the original Bill the position of children was forgotten. They were the forgotten part of marriage and the forgotten part of divorce. This amendment is important. It establishes the principles upon which we shall continue our discussions. I can only hope that the message that will go out from this House—we talked about messages at Committee stage—will be that we support marriage per se. I hope, in the light of this amendment, that as we go through the Bill the sentiments expressed in it will not be negated by the refusal of the noble and learned Lord the Lord Chancellor and others to accept what some of us consider extremely good and reasonable amendments which will improve the Bill no end, and strengthen the message we are sending out in Amendment No. 1.
§ Lord Elton
My Lords, the noble Lord, Lord Robertson, raised an issue—that was also raised by my noble friend Lord Coleraine—relating to children. The noble Lord, Lord Robertson, rightly said that the damage which is done to children by divorce is cumulative, but that arrangements can be made before the divorce to minimise that. It is relevant to this amendment and to later amendments to recall that Clause 2(1)(c) contains a requirement that an order may not be made unless,the requirements of section 8 about the parties' arrangements for the future are satisfied".Section 8(3)—or rather Clause 8(3), as it now is—contains a requirement that,The requirements of section 41 of the 1973 Act … must have been satisfied".1153 These place a duty on the court to consider whether there are children of the family and, if there are, the arrangements to be made for them. Nothing can happen until those arrangements have been made and the court has been satisfied. The court will remain bound by the requirements of Section 1 of the Children Act 1989, referred to by my noble friend Lord Coleraine, that when a court determines any question with respect to the upbringing of a child, or the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration. It seems to me that that paramountcy is already in the Bill and that many of your Lordships' concerns can be laid to rest.
§ Lord Archer of Sandwell
My Lords, I certainly would not presume to conclude any matter in your Lordships' House. Least of all would it ever be my wish to exclude the noble Lord, Lord Elton. I hope that he will forgive me if I do not follow him in the matters to which he has just adverted. I believe that the principle of Amendment No. 5 is something that your Lordships may wish to debate in rather more detail at a later stage. But what he said is something that I for one will then wish to address.
It is not every Bill that benefits from a general objects clause. I should like to see such a device used sparingly. But there are Bills that benefit in that way. As the noble and learned Lord, Lord Simon, reminded us, there are precedents for them. I believe that my noble friend Lord Irvine said at Committee stage that such a Bill had been introduced by the noble and learned Lord the Lord Chancellor himself, which became the Legal Aid Act 1988. I believe that this is such a Bill.
I am fortified in finding myself in respectful agreement with the noble and learned Lord, Lord Simon, and the noble Lord, Lord Renton. In addition to the guidance that those who have to implement these measures will find in this clause, there are two advantages that I regard as a bonus. First, it may help to dispel misunderstandings that have been disseminated about this Bill, sometimes somewhat irresponsibly, I suspect. It is common ground in your Lordships' House that we are anxious to support the family as an institution and to support marriage as an essential factor in that. We may differ as to whether particular policies are best calculated to bring that about. For example, I believe that the number of homeless people who can be seen on London's streets bear witness to some policies of the present Government which are less than supportive of the family, but we can agree that the support of marriage is an important objective of this Bill.
The second advantage was referred to in Committee by my noble friend Lord Stallard. I believe that we should emphasise in the statute the need for reconciliation procedures for those who are considering embarking on the divorce process. Here we have authority for the proposition that that is at least one of the objectives of the Bill, though I hope there will be more specific amendments that we may be able to debate at a later stage.
Referring to the amendments of the noble and learned Lord, Lord Simon, I hope he will forgive me for saying that, most unusually, I have the misfortune to differ 1154 from him. The reasons for that have already been ventilated by the noble Earl, Lord Russell, and other noble Lords. I will not presume to repeat them.
I should like to say one word about the comments of the noble Earl, Lord Coleraine.
§ Lord Hailsham of Saint Marylebone
My Lords, I believe the noble Lord is referring to my noble friend Lord Coleraine, not the noble Earl, Lord Coleraine.
§ Lord Archer of Sandwell
My Lords, far be it from me to question the authority of the noble and learned Lord on the procedures of your Lordships' House. Slips of the tongue fall from all of us sometimes but perhaps are not so readily picked up.
I welcome the noble Lord's reference to the purpose of minimising the cost of divorce proceedings. It does not mean that that should be the overall consideration. I believe that there are better uses for the money in upholding marriages before they reach the stage of divorce than in spending a great deal of money at the divorce stage. I am sure that the noble Lord will go some way to agree with that.
I am personally grateful to the noble and learned Lord the Lord Chancellor for showing that he listens to our debates and that, having listened, he reflects. As I understand it, that is the purpose of our procedures. I hope that some of his colleagues in government will seek to emulate him from time to time. It is even possible that when they do they will find that they enjoy it.
§ The Lord Chancellor
My Lords, I am grateful for the general welcome that my amendment has been given. I should like to address one or two of the issues that have been raised in connection with the amendments of my noble and learned friend Lord Simon of Glaisdale, and refer also to the remarks of the noble Lord, Lord Robertson, and my noble friend Lord Coleraine. I believe that we will come to the children aspect when Amendment No. 5 is moved by my noble and learned friend Lord Simon of Glaisdale.
Parliament, with great deliberation and care, put in place the Children Act 1989 to deal with disputes, and the like, connected with children, as well as intervention by local authorities, and so on, in families to help with the care of children. That was a very strong and clear statute which was put into effect after two years of careful preparation. I speak subject to the correction of those who day in, day out, work in these courts. From what I know of the matter—I have sought to take a close personal interest in it—my impression is that the Act has worked extremely well in providing a framework for deciding matters connected with the welfare and upbringing of children. Your Lordships will have in mind that it is under that framework that any disputes or matters connected with the welfare of children will ultimately be decided. I do not wish to damage that framework that has been carefully put in place by making changes which will apply only in respect of parties in a divorce situation. Of course, many of these considerations apply whether the parties are in a divorce 1155 situation or in a later or earlier situation. I will return to that in more detail when my noble and learned friend moves Amendment No. 5.
Amendment No. 2 is intended to spread the clause to the whole of the Bill. This is deliberate on my part. I am strongly of the view that Part III of the Bill deals with a somewhat different subject matter. For example, the importance of marriage is emphasised in that part. We have put into that part, which has been the subject of some consideration and doubt in some quarters, Clause 36. This clause ensures that courts will consider the situation as between married and unmarried people when they make use of powers under that particular part of the Bill.
If one looks at the provision in my clause with regard to saving marriages, I think it would be quite difficult to apply that appropriately in the case, for example, of violence between spouses in the matrimonial home. In that case, although the objective of saving the marriage is important, the immediate objective so far as concerns Part III of the Bill is to provide protection for the parties from that violence. I believe that these might be seen to be in conflict.
Amendments Nos. 3 and 4 are primarily drafting amendments. On Amendment No. 3 I prefer the phrase "may have broken down" to "is in crisis" because it fits in with the logic of the Bill that people only come to the court if their marriage has reached a stage that can reasonably be described as having broken down. There is then the progression—trying to save the marriage; seeing whether the marriage can be saved; and, if it cannot, the breakdown is irretrievable. That seems to me a logical, clear and intellectually satisfactory framework.
Amendment No. 4 inserts "is being dissolved". I have been provided with the draft on the basis of bringing the marriage to an end, it having irretrievably broken down. I think that that is a satisfactory draft.
I accept that after the breakdown of a marriage there are problems of the kind mentioned by the noble Lord, Lord Robertson, and others. However, paragraph (c)(i) makes the point that everything possible should be done to minimise the distress occasioned. Obviously, if one starts by some procedure which does not minimise but tends to exacerbate the distress, one is apt to do even more damage by reason of the resulting situation when one takes account of the factors to which the noble Lord referred. Therefore, this is a worthy objective. I believe that to some extent it is an attainable objective and should go in.
My noble friend Lord Coleraine mentioned cost. I respectfully suggest that the point made by the noble and learned Lord, Lord Archer of Sandwell, is good. It is often wasteful of money, particularly when costs are incurred unreasonably in connection with proceedings on the irretrievable breakdown of a marriage. I am sure that a number of your Lordships will have heard how difficult it is in the courts for judges sometimes to restrain the willingness of parties to litigate on matters which are almost beyond doubt, occasionally very much 1156 at their own expense. Often people seem to get into hot and costly disputes when ultimate payment is being made out of the resources available for the family.
My amendment proposes a worthy objective in itself. I hope that your Lordships will approve it as it stands and will not support Amendment No. 2 which we are presently discussing.
§ 4.15 p.m.
§ Lord Simon of Glaisdale
My Lords, I am most grateful to all noble Lords who have contributed to the debate and to my noble and learned friend for giving advance notice of his thinking on Amendment No. 5. I have already expressed my thanks to the noble Lord, Lord Renton.
Some points have not been answered; I shall come to those in a moment. First, perhaps I may say that I agree entirely with the noble and learned Lord, Lord Archer, that anything in the way of minimising the cost and traumata of divorce is to be welcomed. It was no aim of any part of my amendment to deal with that part of the amendment of my noble and learned friend.
The main point which has not been referred to is the significance of the omission of any reference to Part III. Anyone reading the Act with this preliminary is bound to ask why those admirable principles are only applicable to Parts I and II.
Is not the institution of marriage intimately bound up with considerations as to domestic violence? Is an act of domestic violence, however necessary the intervention of the law, necessarily the end of a marriage? If the answer is no and there is a chance of repentance and reconciliation, then the omission of a reference to Part III can only be deplored.
The noble Lord, Lord Renton, says that the reference to marriage is irrelevant to Part III because it does not deal with divorce as do Parts I and II. But is the institution of marriage wholly bound up with the procedures for divorce? No doubt a lax divorce law, an unjust divorce law, can gravely damage the institution of marriage, as we have seen and has been admitted by the authors of the 1969 Act in the current White Paper.
I pass from that to the question of irretrievable breakdown. If we write in "irretrievable breakdown" at this stage we are anticipating the result of important amendments to be moved shortly by the noble Baroness, Lady Young, and others. Moreover, I do not for a moment admit that a marriage can be said to have irretrievably broken down when there is a young child. Important responsibilities still remain outstanding. Still less can I endorse a phrase that the noble Earl, Lord Russell, used in Committee—of the parties being locked in a loveless marriage. There can be very few marriages where there is a young child which can properly be described as loveless. I should have thought that there were practically none. Therefore it seems to me preferable at this stage to use the neutral terminology that I have suggested.
1157 However, your Lordships undoubtedly would not wish to come to a decision at this time. Before Third Reading, I should like to consider what has been said. In the meantime I beg leave to withdraw the amendment.
Amendment to Amendment No. 1, by leave, withdrawn.
§ 4.20 p.m.