§ 4.36 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
§ Lord Stallard moved Amendment No. 1:
Before Clause 1, insert the following new clause—
§ GENERAL OBJECTIVES
(" . The general objectives of this Act are as follows—
§ The noble Lord said: I have read and re-read the report of the debate at Second Reading of this Bill and have had discussions with people involved at the sharp end of the effects of divorce on couples and their children and other family relations. We always seem to forget that in any divorce situation there are usually two sets of grandparents. They are always left out of the discussions, but they are very much involved and concerned when a break-up occurs. That is why I have mentioned other family relations. I am certainly very concerned about some of the proposals in the Bill as it stands and that is why I am moving this amendment.
§ When I read the White Paper last year I admit to being cautiously optimistic about the objectives outlined in it and that is repeated verbatim in my amendment: certainly paragraphs (a), (b) (c) and (c) are verbatim. However, the Bill came as a disappointrnent. In my view it does not reflect the objectives set out in the White Paper of the noble and learned Lord the Lord Chancellor and cannot provide those conditions without suitable amendment to the Bill.
In his opening remarks at Second Reading the noble and learned Lord the Lord Chancellor quoted from the Scriptures. I said then, and I say again, that I totally respect and admire his Christian background and quotations. I am a little perturbed that, probably because of time, he could mention only St. Mark, Chapter 10, Verses 4–5 to justify the position. I would have been happier if he had continued quoting from Chapter 10 and included Verses 6 to 9. They read:
But from the beginning of the creation God made them male and female. For this cause shall a man leave his father and mother, and cleave to his wife; And they twain shall he one flesh: so then they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder".
When approached by the disciples in the house He said to them:
Whosoever shall put away his wife, and marry another, committeth adultery against her. And if a woman shall put away her husband, and be married to another, she committeth adultery".
I believe that that is a fairly reasonable expansion of those particular verses in the Scriptures as regards the marriage state.
§ I could mention many other such references. Indeed, I counted 42 in all, all of which underline the Christian approach to marriage. I have checked with a number of friends of other religions, and many other religions have the same appreciation of the importance of the basis of marriage as does the Christian religion. From where I stand that seems a fairly good reason for taking a careful look at some of the proposals in the Bill and their possible effects.
We already know that since the introduction of divorce legislation in the last century the legal understanding of marriage has radically changed.
Whenever there is a change in divorce legislation the institution of marriage always seems to suffer in some respect or another. From being understood and defined in law as indissoluble, marriage has become a temporary union in both law and common understanding. I read an article in the Daily Mail recently by William Oddie—it is not my usual paper but I am reading everything to do with divorce and I happened to stumble on that article—in which he stated that if the proposals in the Bill become law as they stand,
marriage, once a solemn contract intended to last for life, will become an essentially temporary arrangement which either partner can end at his or her whim with a mere 12 months' notice".
That has worried and perplexed many people who are trying to understand the Bill. If William Oddie and many other people are right, we need to reconsider the provisions and to give guidance to those who are perplexed and worried by them.
§ On the question of quickie divorces, the noble and learned Lord the Lord Chancellor claimed that three-quarters of divorcing couples cite intolerable behaviour or adultery in order to get a so-called quickie divorce. However, we understand that statistics from the Office of Population, Censuses and Surveys show that only 32 per cent. of divorces—not the 75 per cent. claimed—are gained within 4 months. That makes a huge difference to our understanding of the whole issue. It means that proposals to introduce a formal wait of one year are largely irrelevant because the majority of people already wait that long, and sometimes much longer. I have met many people who have waited much longer than a year and many more who have waited longer than is necessary for a quickie divorce.
The Institute of Economic Affairs has published an excellent booklet which I recommend that noble Lords read between now and remaining stages. Last year a well-informed series of essays by experts who have thoroughly researched the subject was published. Some of those writers are the most knowledgable experts in their field—not just in this country, but internationally. The booklet is entitled Just a Piece of Paper? In his introduction the editor states:
As divorce becomes more easily available so more people will resort to it as an escape from difficult situations: divorce becomes the first option rather than the last. With divorce available effectively on demand and without the consent of the other partner, the incentive to invest resources—both personal and financial—in a relationship is diminished. Marriage becomes temporary and provisional rather than binding and permanent. It may be used by one or both parties as a base from which to make forays into … pools of possible alternative partners, searching for something younger/richer/sexier or just nicer".
Again, we have informed opinion speaking out against the possible effects of some of the proposals contained in the Bill. It has been my contention, and that of many other people, that the Bill makes divorce easier. That is what is worrying us.
§ Cohabitation will become even more popular and enticing than it is at the moment. Those of us who live in the inner cities know that the incidence of marriage is reducing. There has been a huge reduction in the number of marriages. I could give the Committee statistics for the next half an hour to show the effect of 280 the reduction in the number of marriages and of the increase in the number of people who are cohabiting in "relationships", "partnerships" and God knows what else rather than in marriages. Cohabitation has increased every time the divorce laws have changed. I give one statistic. In 1991▵92, 30 per cent. of single women between the ages of 25 and 34 were cohabiting. That statistic should not give us any pleasure whatsoever when we consider the effects of cohabitation on society as a whole. The fact is that cohabitation now presents a serious challenge to marriage. Indeed, I believe that a serious working party is being set up to discuss the demographic changes that could come about as a result of the increase in cohabitation and the decrease in the number of marriages.
In my view, in its present form the Bill does little to support the institution of marriage. That is why I have made one of my objectives in the amendment,
to support the institution of marriage".
I believe that the Bill should support the institution of marriage more strongly and firmly than it does.
§ In pushing mediation as an option before any attempt has been made to reconcile couples or to bring them together before divorce proceedings are initiated, the Bill fails to take the necessary steps to ensure that all practical measures are being taken to prevent the irretrievable breakdown of a marriage. That is another objective. The Bill will fail again if it does not provide a period of reconciliation before mediation. As I tried to say on Second Reading, there is a huge difference between mediation and reconciliation. That difference is stark in both the White Paper and the Bill. Mediation is for the future. It assumes that the marriage has ended and that the couple are splitting up. It will deal with questions such as, "Who gets the video? Who gets the house? What about access to the children?" That is mediation as envisaged in the Bill.
§ I believe that a period of reconciliation before that is much more important. Many couples might decide to separate on the basis of a row or a series of rows but could be spoken to and guided, provided that the right sort of guidance is available. That is where the money should be spent. We are spending billions of pounds—we are certainly spending millions—on teaching children in sex education classes how to fit condoms and how to deal with various problems, but how much are we spending on teaching children how to communicate with each other, how to handle parenting and marriage and how to discuss all the problems that they will definitely experience? Children need to be taught such things and there are various organisations that could teach them. The Churches could do so. There are many people who could help to reconcile couples who are having difficulties with their marriage. All that we need are the resources. I am saying that we could spend a little money and save a lot if we were to spend some money in that way rather than on the social security benefits that are often needed when a marriage ends.
§ The objectives that I have outlined cannot be met unless there is a period of some months in which to concentrate on reconciliation. It is only when 281 reconciliation has failed completely that mediation and counselling should take place. I have no doubt that a period of reconciliation will help to minimise bitterness and hostility between the parties. Reconciliation is therefore important even if it achieves no more than that. Even where there is ultimately a decision to divorce, if it is an amicable decision and there is no hatred or animosity that will help to minimise the trauma and difficulties for the children affected by it. Therefore, reconciliation is extremely important. Indeed, in my book, spending time on reconciliation should be a top priority.
§ More attention should be paid to the studies that are being carried out into the effects of divorce on children who are left behind in a one-parent family knowing that their other parent has disappeared. There have been studies—mainly the Oxford study—which have proved that sometimes, not always, it is more difficult for a child to grow up in a one-parent family than in a rocky, unhappy marriage. It is more traumatic when one parent disappears for good. We should pay a little more attention to such research and include some of it in our deliberations on the Bill.
§ The Bill should be judged, in our discussion on amendments, according to whether it meets those general objectives. I should like the general objectives set out at the beginning of the Bill. We can then judge the Bill to see where and when it falls short of those general objectives. If it does not meet them, I know that the noble and learned Lord the Lord Chancellor will consider suitable amendments for submission on Report. Those who will be expected to implement the Bill, and those directly involved in marriage problems and breakdowns, but who will seldom be aware of our discussions or aware of the various clauses, should know the aims and the priorities which I have outlined in the amendment.
§ I do not profess to be a lawyer, or to have any special legal knowledge, but neither do millions of other people who will be affected by the Bill. None of them is a lawyer. It is up to us as legislators to ensure that the law will be clear to them and clearly understood by those who will be mediating, counselling and so on. I hope that the amendment will be accepted eventually, and that some guidance will be given right at the beginning of the Bill. There are precedents for such guidance. Some guidance was given in the Children Act 1989 and in the Education Act 1993. I hope that the noble and learned Lord will give the amendment his most serious consideration and reply to it on Report. I beg to move.
§ Baroness Young
I support the amendment which was so ably moved by the noble Lord, Lord Stallard. It is based of course, as he said, on the principles which were set out in the White Paper. We would all agree that they are unimpeachable objectives and ones that we would all like to see carried out.
Nearly every Member of this place who spoke on Second Reading wanted to see marriage buttressed. To set out the proposed statement at the start of the Bill will, as the noble Lord said, enable us to look at all the subsequent amendments in relation to those general principles to see how far we are standing by them. That 282 is something at which we shall look. So I hope that when my noble and learned friend comes to consider all these matters, as he said on Second Reading he would do, he will feel that this is an amendment that he can accept.
There are four unimpeachable objectives set out in the amendment. It is good to say that we want to minimise bitterness in divorce, but one of the objectives at which we shall have to look is to recognise that it is better still to save the marriage in the first place, because the damage done to children in the course of a divorce is much longer lasting than the damage done by quarrelling parents. All the modern research shows that to be so. It is an important point onto which we should hold. We shall be coming to later amendments which deal with those points so I shall not elaborate on them now.
I have been asked by the right reverend Prelate the Bishop of Chester to say that he supports not just this amendment but many of the following amendments. He hopes very much that my noble and learned friend will look at them carefully as we debate the various amendments to the Bill.
§ Lord Irvine of Lairg
I could be persuaded to favour this general objectives clause in this Rill, although from a different standpoint from that of my noble friend Lord Stallard; broadly speaking, so that it can be improved upon and particularly in the area of encouraging reconciliation. In my view, in its present form the Bill passes the standards, the objectives set by the amendment.
I know that parliamentary draftsmen sometimes say that they dislike broad purpose clauses, but it is sometimes wise to have them, as Parliament has recognised. The noble and learned Lord on the Woolsack will himself recall that he thought it right to include a broad purpose clause as Section I of his Legal Aid Act 1988.
The great merit of my noble friend's general objectives clause is that it will dispel misunderstanding about the objectives which the particular provisions of the Bill aim to further. My noble friend's first objective is to support the institution of marriage. That of course has my full support and would have the full support of the Committee, but this is a Bill about whose purposes there is great misunderstanding, especially on the part of those who are trying to extend from a year to 18 months or more the mandatory period for reflection and consideration.
The first point is that the Bill does not, in practice, make divorce easier. On the contrary, in its present form, providing as it does a mandatory year for reflection and consideration, it strengthens the institution of marriage much more than does the present law. I yield to no one in support for the institution of marriage. Marriage should not lightly be undertaken nor lightly set aside, but when judging legislation brought before us, the first base is to take a hard and realistic look at what it will replace.
Today it is the fact that about 75 per cent. of divorces are quickie divorces, granted within a few months of the divorce petition. The mandatory period of a year for 283 reflection and consideration imposed by the Bill therefore means in practice that in 75 per cent. of cases divorce will be substantially delayed. I urge the opponents of that change—those who would reinstate fault-based divorce and exclude divorce on any other ground, or those who would lengthen substantially the one-year period for reflection and consideration to 18 months or even more—to take on board how the current divorce laws work in practice.
The truth is that divorce today is attended by no greater formality than renewing a driving licence. It is all done through the post. Typically, the petition will be based on adultery or unreasonable behaviour. The petitions are never, except perhaps in a handful of cases throughout the country, defended at any trial of the allegations. What happens is that the petition is sent through the post to the local county court. Then a copy is sent through the post to the other party by the court itself. The other party is invited to indicate whether there is to be a consent or a defence. In the overwhelming majority of cases, there is consent.
There are two basic reasons why that is almost always so. When matters have reached that stage, the parties appreciate that their marriage is dead. They recognise the futility of prolonging the agony. Life cannot he breathed into a dead union. In practice, the Legal Aid Board will not grant legal aid to defend a divorce petition, as the noble and learned Lord will confirm. That would be to apply public funds in a futile exercise.
Once the consents come in, the district judge of the County Court will list two dozen or so cases for 10.30 in the morning for the pronouncement of divorce decrees. He will intone that a decree nisi of divorce is pronounced in all the cases in front of him that morning, en bloc, in a single sentence. He will not even terminate each marriage separately. That is how our courts at present behave in relation to the institution of marriage when setting marriages aside.
Six months after pronouncement of the decree nisi that decree will be made absolute and the marriage will be terminated. The interests of the children are not addressed until this short six-week period. In theory the court must be satisfied that the arrangements for the children are satisfactory or, a lesser test, are the best that can be devised in the circumstances.
Perhaps I may take a moment to describe to the Committee how this investigation is judicially conducted. One morning, at about ten o'clock, approximately two dozen cases will be listed for the district judge to consider the parties' arrangements for their children. So 48 people will turn up legally unrepresented. They will sit altogether waiting their turn to be called in to see the district judge who will sit in his private room. The nearest analogy is waiting one's turn in the family doctor's surgery. On average, it takes about five minutes for each couple. In essence, the judge is told what the parties have themselves agreed and that, in practice, is what the judge accepts. I am not criticising the judges; far from it. What I am speaking about is real life. A mandatory year for reflection and consideration 284 during which mediation takes place is surely so much more seemly than the conveyor-belt process which I have described.
The Bill is supportive of the institution of marriage. There will be no more quickie divorces but a year for reflection and consideration during which the mediation process will follow its course. There is a central point about mediation which the mediators concerned understand fully; that mediation is not about reconciliation. The mediator is not a reconciliator. He is a mediator of proposed solutions for the parties to try to agree; parties who have agreed that they must part.
That, we can assure the mediators, we recognise, but it brings me to the second of my noble friend's objectives which is to ensure that all practical steps with a view to preventing the irretrievable breakdown of marriage are taken. That very proper objective, in the name of saving marriages wherever possible, can be fulfilled only if the Bill recognises in the clearest terms the public interest in promoting reconciliation. It does not. On the contrary, by Clause 7(5) and (6) it penalises attempts at reconciliation by suspending the mandatory period of a year while reconciliation is being attempted. It operates as a serious disincentive against attempting reconciliation. For that reason I have brought forward Amendment No. 40 which is designed to encourage reconciliation. I do not, of course, attempt to speak to that amendment now.
My noble friend Lord Stallard, in his notable speech on Second Reading, drew attention to the sparse reference to reconciliation in the Bill and to the failure of the Bill to encourage reconciliation positively. His second objective will be better fulfilled if there is some statutory underpinning for reconciliation. It must be accepted that people cannot be compelled to attempt reconciliation.
Let us look at my noble friend's third objective which is to ensure that the parties understand the practical consequences of divorce before taking any irreversible decision. I believe that that objective is met by the Bill through its provisions for mediation. The mediation process will bring home to the parties what divorce will mean for them. They will be free, with this knowledge, to pull back from the brink. Disincentives to trying to become reconciled should be removed but no law on earth can compel them to live together. Although it may not in practice be necessary, there may be a case for making my noble friend's third objective a statutory duty on mediators. He may wish to consider that.
I turn to my noble friend's fourth objective which is to minimise the bitterness and hostility between the parties and to reduce the trauma for the children. I wholly endorse that objective but I firmly believe that to extend the one-year period to 18 months or more would exacerbate, not minimise, the bitterness and hostility between the parties and the trauma for the children. That is the test by which the one-year period is to be judged. This morning's press is replete with stories that the noble and learned Lord is ready to yield and extend the period. I hope that however these leaks have been inspired—all the articles say Government sources—they are leaks in which there is no foundation.
285 We gave the noble and learned Lord's Domestic Violence Bill bipartisan support. We lament that in this Bill the noble and learned Lord has watered down the domestic violence provisions in order to meet spurious objections from a section of his own party; a section as uninformed as it is unrepresentative. His earlier domestic violence provisions, which he thought were right, as did I, were agreed between the parties and for our part we will not depart from that agreement. On the contrary, we will try to return some steel to his soul so that he will feel able to continue to agree with himself.
I turn to the one-year period. I am confident that the overwhelming majority of my colleagues are satisfied that the period of one year is right. The broad bipartisanship which I would hope could accompany the passage of a Bill of this kind—although I recognise that it is a matter for individual conscience—would be severely prejudiced were the noble and learned Lord to yield to the attempt to extend the period of one year. We could not accept that. I therefore urge the noble and learned Lord to reflect on the attitudinising that accompanies the demand that the year be extended to 18 months or beyond. The affection of rectitude to no sensible purpose is always to be abhorred.
What is the practical point of extending the year to 18 months? A year is quite enough for reflection and consideration; it is quite enough for mediation. One cannot compel people to live in a loveless union; one cannot breathe life into what is dead. The Government's proposals at paragraph 4.13 were right. They state that a longer period than a year would increase distress and that:it would act as an encouragement to walk out of the marriage, form a new relationship, and take on new family responsibilities before fulfilling the obligations and responsibilities towards the previous marriage and children. A longer period would also result in greater distress to the children, and increase their insecurity about arrangements for their future".I agree with every word of that.
The children of relationship number one surely want to know where they are; they do not want delay to no purpose. No law on earth will prevent people making new relationships and having children within them. Those children will be innocent as will the children of relationship number one. The children of relationship number two also have their legitimacy to be considered.
As a matter of principle, I believe that my noble friend's objectives are well judged. They dispel misunderstanding. They are sound standards against which to judge the particular provisions of the Bill. As matters of principle, they have our support.
We are legislating about the lives of people and innocent children. It is rationality that should inform our debates, not attempts to claim a spurious, moral high ground—an imaginary world not inhabited by those for whom we must legislate. Above all, we must legislate in the spirit of realism and not moral romanticism.
§ The Lord Bishop of Oxford
On this Bench we firmly support the proposed objectives set out in the amendment. The noble Lord, Lord Stallard, has 286 expressed the worry that the Bill will make divorce easier. That is an understandable fear. However, the Bill as it stands does provide a whole year for reflection, consideration and reconsideration. That is a good period of time in which to consider such very serious matters.
Further, the Bill will provide the opportunity for mediation. With its less hostile and adversarial approach, mediation is conducive to getting the couple to see whether there is anything savable about their marriage. There are also one or two further amendments that have been tabled, with which we shall deal later, which suggest that we could make free marriage counselling available so that, if there is any possibility of saving a marriage, every opportunity will be provided to the couple to do so. We firmly support the objectives set out in the amendment and very much hope that the noble and learned Lord the Lord Chancellor will be able to accept it.
§ 5.15 p.m.
§ Lord Stoddart of Swindon
I support the amendment tabled by my noble friend Lord Stallard. Its objectives, as my noble friend said, are ones that we can all understand and would wish to see. However, I disagree with my noble friend on the Front Bench that the Bill is conducive to the institution, and the continuation of the institution, of marriage. Indeed, I believe that it is anything but that.
The first question that we must ask about the Bill is: where has the demand for it come from? Has there been great public demand? Have we read articles in the press demanding easier divorce? Have we heard, even from the Church, that the existing divorce law needs amending? I must say that I have not heard much of that demand. Yet we have this Bill, and one wonders why.
I have to repeat that I believe the Bill is not about saving marriages. I believe that it will send the wrong message to the nation, to people and to married couples; namely, that under the legislation it will be much easier to get divorced. Why do I say that? Well, first, we have the provisions for notice to be given that a marriage is to end by one of the parties, not both of the parties. People will then be told that once such a notice is given, "Although we would like you to attend a mediation session, after one year the divorce will be operative." If that does not tell people that divorce will be much easier and that marriage does not count for much, then I do not know what does.
Further, the removal of fault will send a different sort of message to that sent previously. It will mean that all the faults that we have understood which might cause divorce and create difficulty in marriage are no longer faults. We will be telling people that adultery is no longer a fault; in other words, to cheat on your marriage—for that is what it means—is no longer a fault. Is that really the message that we want to send out to the nation from this House and from Parliament? Frankly, I do not believe that it is.
287 I am surprised that the noble and learned Lord the Lord Chancellor, with his background, has come forward with this sort of legislation. We all know that the noble and learned Lord is a good man; indeed, a very good man.
§ Lord Stoddart of Swindon
Unfortunately, I feel that the noble and learned Lord is a good man who has fallen among an assorted bunch of anarchists and liberals.
§ Lord Stoddart of Swindon
Those people appear to have convinced the noble and learned Lord that the proposals in the Bill are conducive to strengthening marriage and the family. As I said, I do not believe that that is true.
The Government have been saying over a long period of time that they support the family and marriage, yet all their actions belie that claim. For example, the taxation system—on the pretext of achieving equalisation between the sexes—has progressively worked against marriage. Everyone in the House knows that that is true. The freezing until the last Budget of the married man's allowance and reducing its value from 25 per cent. to 15 per cent., the refusal to allow the transfer of the personal tax allowances between spouses and from one working spouse to a non-working spouse—thus failing to assist those wives who wish to do so to remain at home and look after their children—has actually been destructive of the family.
My noble friend said that that argument is nonsense. Of course, it is not nonsense. A burden has been put on the family that almost forces both spouses to go out to work. It is a system designed to encourage women to go to work rather than remain at home and look after their own children. Indeed, as we all know, the social security system itself favours the single parent in many ways, even to the extent that it is financially more favourable for fathers and mothers to live apart. No one can deny that that is happening under the present system. The impression has been given to women that they do not need a stable relationship with the father of their children as the state will provide. That has all been done under this particular Government who say that they want to retain marriage as a strong institution. Of course the impression has been given to fathers that they need not worry too much because the state will pick up the tabs.
The social consequences of the single parent family—poverty, crime, deprivation, lack of education and unemployment—are all evils which affect the children of single parent families along with the fiscal and social policies of the Government which have all exacerbated the problems. Now we come to the position of easier divorce. In spite of all that has happened up to now we send out the message that divorce will be made easier.
The Bill does away with fault, as I have already mentioned. I hope that the right reverend Prelates will listen to this. If one does away with fault, one actually encourages the faults one is doing away with. I am not 288 at all sure that that is the sort of thing that the Church of England in particular should be supporting at the present time. Indeed, I am surprised that the Church supports this Bill. It is a long time since I have been to a wedding service in a church but I rather think that that service will have to be rewritten. It will no longer be enough to say to the couple who are marrying that they must love and cherish one another in sickness and in health until "death do us part". That certainly does not apply under this Bill. The priest in charge will have to say, "You will cherish one another until one or other of you makes an application for a divorce under Section 1 of the Family Law Act 1996".
I also believe we shall have to rewrite the 10 commandments. I believe that one of the 10 commandments states,Thou shalt not commit adultery".However, under this Bill adultery will no longer apply. Yet the right reverend Prelates and the Church of England are supporting a Bill which is doing away with one of the 10 commandments. I find that most amazing. I sincerely hope that as this Bill proceeds through its Committee and other stages they will re-examine their attitude towards some of the amendments.
I am sure that my noble friend will support this amendment. I believe this amendment will be accepted and I am glad about that because it will establish some principles which we need to establish. However, unlike my noble friend on the Front Bench, I shall certainly support amendments which give a much longer time for reflection and reconciliation. Mediation simply is not good enough. That merely tells people how they can get divorced with as little trouble as possible. That is what mediation in this Bill means. I want more time—
§ Lord Stoddart of Swindon
As we are in Committee I have no doubt that the noble Lord will make his own points in his own way and if I wish I can then interrupt him. We are always of course pleased to hear what he has to say. As I said, I shall certainly support some of the subsequent amendments which I believe will improve this bad Bill.
§ Lord Ashbourne
The purpose of this amendment is to buttress the institution of marriage. The preface to the White Paper Looking to the Future—Mediation and the ground for divorce issued in 1995 in connection with this Bill suggests that buttressing marriage is one of the central planks of government policy. This Bill, as drafted, will in no way achieve that aim. This amendment sets out in a helpful and positive way objectives for Part I of the Bill including supporting marriage and preventing marital breakdown. As the noble Lord, Lord Stallard, said in his introduction, both 289 the Children Act 1989 and the Education Act 1993 also include general objectives. I commend this amendment to the Committee.
§ The Earl of Onslow
I was reading the Book of Common Prayer. That book asks what is the object of marriage. It states,First, It was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord …Secondly, It was ordained for a remedy against sin, and to avoid fornication; that such persons as have not the gift of continency might marry, and keep themselves undefiled …Thirdly, It was ordained for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity".I have read that passage out for the right reverend Prelates because none of them now knows the Book of Common Prayer as they use the modern stuff, but he that as it may.
It seems to me that the Book of Common Prayer sets out exactly what marriage is for. It is time that someone supported my noble and learned friend on the Front Bench. As I understand it, this Bill will take the fault out of divorce but make divorce harder.
Both my parents were divorced and I know that they had to go through a charade. I know that their divorce was relatively bitter. I know many friends for whom the present system does nothing other than make an unpleasant breakdown of marriage infinitely worse. We are not trying to condone divorce in this Bill and we are not trying to undermine marriage. What my noble friend is trying to do is to make sure that when divorce occurs—which she has made more difficult—it will be less painful. That seems to me an ultimately civilised way for people to behave. For the noble Lord who has just spoken to say that the Bill abolishes the crime of adultery—I nearly said something quite rude—bears no relationship to reality whatever. We must have a civilised divorce procedure which makes the maximum appeal to reconciliation and mending. However, the noble Lord opposite was correct when he talked about the lunacy of the tax and benefits situation, but that is another story. I shall support my noble friend.
§ Lord Rawlinson of Ewell
It is because the noble Lord, Lord Irvine of Lairg, ranged so broadly over the Bill when speaking to this amendment that I shall attitudinise now. I think that was the expression he used. I do that because of the general review that seems to be taking place about the Bill as it is at present. I believe it was Lord Palmerston who said that when a government do not have much of a programme they go in for a little law reform. We must acknowledge the courage of the present Administration to have decided to tackle such a controversial subject. Obviously they are not in the least concerned by exaggerated media reports about divisions among their supporters. They are brave to tackle this matter at this particular time in what may be the final Session of this Parliament. My noble and learned friend has shown great courage and, with great respect, I pay tribute to him for that. However, he must appreciate how controversial this matter is. It is a controversial matter to those of us who would normally support him in other things.
290 It is said that this Bill originated with the Law Commission which produced a document entitled, Family Law The Ground for Divorce.To me, that is not a recommendation. Law Commissioners are technocrats. They have no role in making or recommending decisions on ethical and moral judgments. They are an unrepresentative quango and exist to make technical improvements in branches of the law and to put into law what Parliament has decided in principle. That they are unqualified can be demonstrated by the fact that one of them, now a member of the High Court Bench, made that extraordinary statement about marriage.
It is not for people such as Law Commissioners to decide how marriage should be ended. The law of marriage affects status as well as contract. It affects position as well as rights. It is ignorant of some commentators to regard it as a matter which applies purely between individuals. A noble Lord opposite spoke about hardship in particular cases. One has to look beyond that when dealing with the law of marriage. It affects the principles which govern not only relationships between individuals but also the whole basis of society and thus the interests of the state.
There is an ancient aphorism which everyone in this House will know: hard cases make bad law. That is where the elimination of fault becomes so important. The ending of marriage alters status. The tearing up of a contract freely entered into at the suit of one party is only acceptable if that person has suffered due to the fault of another. Above all, the law has to ensure that any party who has not flagrantly broken a contract receives justice.
I only make these comments now because of the wide range which was introduced into the debate on this amendment by the noble Lord on the Front Bench opposite who, with a certain degree of hauteur, seemed to regard those of us who do not agree with him as attitudinising. Every attempt to change the law in this field has been marked by total error in prognostication. Everyone has got it wrong, the Divorce Act 1969 with its quickie divorces worst of all. However, many of us believe that the flagrant fault principle, although at times it involves an element of charade and of deceit, has the merit of ensuring in principle that the offender cannot get what he or she desires against the wishes of the other party to the contract. Nor do I understand how one party can state that a marriage has irretrievably broken down unless that party can establish a flagrant breach by the other.
It is therefore with some regret that I believe that this piece of legislation in its present form does not do what my noble and learned friend on the Woolsack hopes, intends and believes that it will do. It is governed by no principle. One must have that principle of fault. That is what distresses me about the legislation as presently drafted. Therefore I believe that it is baleful in its effect.
Accordingly, I hope that the principles set out in the amendment will be introduced into the Bill. They set forth clearly and straightforwardly what the Bill is 291 intended to achieve. Then it is up to us with the amendments which follow to change the Bill to make it achieve what the amendment hopes it will achieve.
§ The Lord Bishop of St. Edmundsbury and Ipswich
This Bench has suffered some attack, in a lighthearted way, in the course of the debate. Perhaps I may say that the Book of Common Prayer is well known to us all. Indeed, I was married by it 40 years ago, as was my wife, to whom I am still married. It expresses the theology of Christian marriage extremely well. I should add that the alternative service, which is in far greater demand now although both are available, copes with the second reason for matrimony better, speaking of it not simply as a remedy for sin but speaking of sexual relationships as a means of expressing love. However, that point is on one side.
Nobody in the Church would wish to see marriage or family life in any sense undermined. It is one of our steady criticisms that the amount of support which is given to marriage and the amount of work that goes into preparation for marriage is far less on the side of the state than it is on the side of the Church. Over the years we have put immense resources into preparation for marriage and supporting marriages when they are entered into.
I do not believe that the Bill is about that. It is not a Bill which attacks marriage. It tries to make sense of situations in which marriage breakdown has taken place. I do not think that anyone believes, and certainly no one on this Bench believes, that the present law is adequate to make sense of that.
Perhaps I may concentrate for a moment on the issue of no fault. Of course there is fault in the breakdown of marriage, but is the fault only on the part of one partner? That appears to be what is indicated in the present law. Clearly, none of us believes that that is true. Marriages always break down by the fault of both. The fault may be, and often is, adultery. It may be adultery on both parts or on the part of one partner, but that adultery may itself have been caused by earlier failure to listen or to communicate.
§ Baroness Gardner of Parkes
I thank the right reverend Prelate for giving way. I believe that it is time to remind the Committee that this is not Second Reading. We are speaking to Amendment No. I on the Marshalled List. I understood that the debate went far wider than is usually the case at Committee stage in view of what the noble Lord said from the Front Bench opposite, and therefore I sat quietly while we had a Second Reading speech on the grounds that it was in response to what was said. However, now we have another Second Reading speech.
The purpose of our presence in the Chamber today is to consider the amendments on the Marshalled List. We are not discussing the no fault issue at this time. There will be plenty of opportunity to do so later when the appropriate amendments are dealt with. I thought that 292 perhaps the right reverend Prelate was not familiar with our procedures and that it might be helpful to mention that.
§ The Lord Bishop of St. Edmundsbury and Ipswich
I thank the noble Baroness for that intervention. I understand the intention behind it. I simply sought to answer the point raised on the Benches opposite on the matter of no fault. Perhaps I may say simply that fault clearly exists on both sides, but to define one particular fault as the reason for the breakdown of a marriage without giving an opportunity for mediation to take place, as under the present law, is not in my view a way of supporting marriage.
§ The Earl of Perth
I want to apologise for not being present at the moving of the amendment. Having said that, I recall that at Second Reading when the noble and learned Lord the Lord Chancellor introduced the Bill, he said, first, that he believed that marriage was divinely appointed; and secondly, that the Government would do nothing to undermine it. I support him wholly on the first of his beliefs. How could I do otherwise when I have had the great good fortune of having been married for more than 60 years—and long may it continue!
However, on the second point that the Government want to do nothing which will undermine marriage, it is my fear—and many of those who have spoken have expressed the same fear—that that is exactly what will happen. I am deeply grateful to the noble Baroness, Lady Young, for having drawn attention at Second Reading to the fact that the 1969 Act was introduced with the intention of making divorce more difficult, except in certain circumstances where it would he less painful. What has been the outcome? We well know that numbers have increased from 50,000 at that time to 160,000 at present. In other words, while the intention was good, the result was disastrous.
It is my fear and belief that unless we consider all the amendments with this new clause guiding us, the same will happen again. Therefore, I wholly agree with the proposed new clause. It gives us the opportunity to stress reconciliation rather than mediation.
I recognise how difficult it is not to make a Second Reading speech; I seek to avoid that. I support the objectives of the amendment and I believe that they are valuable because they will enable us to refer to them again and again in the changes we seek. That is not to make divorce easier, but somehow to make it less painful. I fear that as the Bill stands it does not achieve these things.
§ Lord Simon of Glaisdale
I hope noble Lords will excuse my addressing them in an eye shade. I believe that I am not covered in the technical sense as understood by parliamentary practice.
I did not intend to intervene on this debate. I do so to recall the real purpose and value of this kind of amendment; and in response to the two main points made by the noble Lord, Lord Irvine of Lairg. In a perfect legislative world every provision of a statute would be immediately plain and could not be disputed. It would be in no way obscure or ambiguous. But we do not live in a perfect legislative world. In fact, although I 293 dislike it, it is an extremely well drafted Bill. However, there are bound to be cases where the meaning might be challenged from two opposing points of view. When that occurs, it is valuable for the courts to have an indication of the leaning that Parliament intends them to have in deciding between the two disputed assertions as to meaning. That can either be done in the Long Title—I personally prefer that—or, as the noble Lord, Lord Stallard, proposes, by a clause of this kind, which has abundant precedent. So much for the value and purpose of the amendment.
The noble Lord, Lord Irvine, made two points. First, he manifested his clear dislike of the present law. That was taken up by the right reverend Prelate. Those of us who dislike the present Bill have no liking for the present law. Most of those who oppose the Bill opposed the 1969 Act. Many of those who now support this Bill were supporters of the 1969 Act. It is that which is objected to, and rightly so. Moreover, the quickie divorce on which the noble Lord, Lord Irvine, spent some time, and on which he spoke cogently, was purely and solely the invention of the government department which is now issuing a Green Paper denouncing it and denouncing the 1969 Act. The quickie divorce does not depend for its abolition on the passing of this Bill. The measure can be got rid of in exactly the way that it was brought into existence; namely, by regulation and direction of the Lord Chancellor's Department.
Secondly, the noble Lord put down a strong marker, apparently in view of reports in this morning's press, about the lengthening of the period of one year to possibly 18 months. He was thereby anticipating an important debate which is still to come and on which there is much to be said. At this stage I say only this. If the present period of a year is what is required for mediation, then if we are to have reconciliation procedures—as most of us want, and as the noble Lord, Lord Irvine, wants—then presumably some extra time is needed to aaccommodate those reconciliation procedures. That being so, in view of those two matters and of the proper purpose of the amendment, I venture to support it.
§ 5.45 p.m.
§ Lord Meston
I restate the support from these Benches for the Bill. I agree completely with the remarks of the noble Lord, Lord Irvine of Lairg, and the noble Earl, Lord Onslow. It is by reference to the amendment helpful to have a statement of objectives at the beginning of any legislation, and this Bill is no exception. I comment only that the amendment does not address the objectives of Part III of the Bill. That is the important part dealing with the rationalisation of the law relating to domestic violence.
As a practitioner in the field, I can only endorse the clear description of the existing procedures for divorce given by the noble Lord, Lord Irvine. Present divorce procedure is a paperwork exercise. It can be a very quick exercise. and, frankly, sometimes an undignified exercise. The only point at which I question what he said is that I am not entirely sure that nowadays any attendance at the court for consideration of the 294 arrangements for the children is necessary. My observation is that under the existing regime the vast majority of divorcing couples, for all the relative ease of the formal process, find divorce and its consequences painful; and the vast majority of them do not undertake divorce lightly—more so if there are children to be considered. My observation is that where there are children they try harder.
Quick divorce does not seem to be possible under this Bill—let there be no mistake about it. I suggest that it is arguable, and indeed doubtful, whether an easier divorce process, if there is to be one, would encourage cohabitation outside marriage. Leaving that question aside, what is certain, I suggest, is that making divorce more difficult will not encourage marriage.
I regard the Bill as supportive of marriage, as the Law Commission intended. I question the description of the Law Commission as mere technocrats, Its report in this area was thoughtful, thorough, and began in this way:There is widespread concern about the current prevalence of divorce in this country and the consequences that this can have both for the couple concerned and for their children. There is also concern that the present divorce process may be making these worse".The Law Commission went on to say:The present law is confusing and unjust. It now fulfils neither of its original objectives. These were, first, the support of marriages which have a chance of survival, and secondly, the decent burial with the minimum of embarrassment, humiliation and bitterness of those that are indubitably dead".I regard the Bill as fulfilling the objectives set by the Law Commission and we continue to support it.
§ Lord Elton
The noble Lord, Lord Meston, has demonstrated that the exclusion of Part III of the Bill from the list of the objectives in the amendment renders it defective. I rise to ask the Committee from the heart to stop behaving as though the law alone will determine the divorce rate. If Members of the Committee think that by passing legislation of any kind they will improve matters significantly, they delude themselves. There is far more to be done in our society to rescue it from what is happening than mere legislation. So can we not make that a principal argument?
§ The Lord Chancellor
I wish to take the opportunity not to make a Second Reading speech—which I shall try to avoid—but to answer two questions put to me about matters that were in the public domain this morning.
My position as regards the Bill is that I have brought it forward because I regarded it as important to do so in the discharge of the responsibilities of the office which I presently hold. The reason I brought it forward is that it has been brought to my attention by many of those who work in the field that the present law of divorce has a very detrimental effect on the children affected by it. I regard it as vitally important in the discharge of my responsibilities that I should put before Parliament the best law that I can suggest as a Bill, in order that those matters may be addressed. The ultimate responsibility for what goes on the statute book will, of course, be that of Parliament as a whole.
295 My second point is this. My attitude to the discussions in Parliament is that the Government's policy was reached after careful consideration, after the Law Commission report. I would not wish to describe the law commissioners as technocrats. I regard those who are selected for that important office as having wide experience which is valuable to Parliament. It has been the subject of many compliments by distinguished Members of your Lordships' House over the years since I have been here. The Law Commission report came after consultations and after the Law Commission put out a working paper in 1988. The Law Commission report was in 1990.
As my noble and learned friend Lord Rawlinson said, I appreciated fully that this is a controversial matter. Frankly, it was controversial for myself. I found it extremely difficult to know what to do. The noble Lord, Lord Stoddart of Swindon, kindly referred to my background and paid other compliments which are too generous. I found it extremely difficult to know what to do, but I thought the right action was to issue a Green Paper and consult generally on the basis of what the Law Commission had proposed, with a good deal of flexibility in the Green Paper about, for example, the period for reflection. It was not immediately self-evident to me what the period should be and the Law Commission itself pointed out that different people had different views on it. So the Green Paper reflected that kind of consideration.
We consulted widely and all noble Lords had an opportunity to respond. Members of the Committee individually will know to what extent they responded. In the light of the consultation, the Government, reviewing all the responses that had come in, concluded the policy which is in the White Paper. That policy attempts to achieve the general objectives which are set out in the amendment of the noble Lord, Lord Stallard.
So far as I am concerned, the position is that the Government's policy as regards the period remains at one year. I have indicated that I shall listen carefully to all that is said in Parliament, not only on this subject but on every other aspect of the matter which I regard as of essential importance to the social fabric of our society.
The other point I wish to make is in a way subsidiary. I should like to attain the greatest possible consensus on these matters consistent with the principles that I have enunciated. For that reason I will give the closest attention to everything that comes from Members of the Committee.
As regards the proposals in the amendment, in my view the statements, so far as they go, are unexceptionable. The noble Lord, Lord Irvine of Lairg, suggested to me earlier that I might agree with myself—as if that was a good thing to do. On this matter, the objectives were set out in the Government's White Paper and therefore I agree with them wholeheartedly. It is possible to improve matters and in other respects I am content to disagree with 296 myself where I have seen that an earlier view of mine was not substantially correct and can be improved upon. That is the purpose of these debates at Committee stage.
I do not wish to go into all the matters raised by Members of the Committee. So far as they reflect on the earlier parts of the Bill, I entirely agree with the objectives. By reference to them, I shall be happy to test all the subsequent amendments.
As the noble Lord, Lord Meston, pointed out in his observations, the amendment does not include a reference to Part III of the Bill. For obvious reasons, the White Paper did not deal with that and therefore change is required. I noticed that the noble Lord, Lord Stallard, departing from the earlier form of his amendment, dropped the final objective which was in the White Paper. It concerned minimising costs to parties and to the taxpayer. I regard that also as an important objective because unnecessary costs spent on the divorce will mean resources being unavailable for the support of the family unit affected or of subsequent relationships. Those are important additions which might be made.
The noble Lord, Lord Irvine of Lairg, mentioned that there is sometimes difficulty about the incorporation of such a clause because of its effect. I have taken preliminary advice about it but the Committee would wish it to be considered more fully in relation to the final formulation. Apart from anything else, Part III has to be taken into account.
So far as they go, the general objectives as stated are entirely correct in my view and I endorse them. I have no difficulty whatever in incorporating them in the Bill, assuming that I am advised that it is wise to do so in the full context of the Bill. Whether or not that is advisable, I am greatly obliged to the noble Lord, Lord Stallard, and others who put their names to the amendment for putting forward the objectives. I am content that all the later amendments to the Bill should be judged by those objectives.
It would be quite wrong for me to go into the detail of points raised in what have been described as "Second Reading speeches". We shall come to all that in due course. I simply indicate my view about matters at the moment. If the noble Lord, Lord Stallard, is prepared to withdraw the amendment, I have no doubt that we can return to whether or not it should be altered or formally incorporated into the Bill at a later stage.
§ Lord Stallard
I am grateful to the noble and learned Lord for his response. I fully appreciate that he cannot be expected to deal with everything on the hoof and, if he has second thoughts on anything, I look forward to his further agreement on Report.
He referred to paragraph (e) of the original amendment which I believed would be covered by other amendments and dealt with in far more detail than we could apply to it now. I therefore left that matter for future amendment. I hope that we shall then be able to discuss it constructively. In the meantime, I thank the noble and learned Lord very much for his reply. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6 p.m.
§ Clause 1 [Divorce and separation]:
§ Lord Simon of Glaisdale moved Amendment No. 2:
Page 1, leave out lines 11 and 12.
§ The noble and learned Lord said: Before moving this amendment perhaps I may make two observations. First, how convenient it was that a preliminary Marshalled List was prepared for us yesterday by the Public Bill Office. Secondly, I should like to indicate the main classes of amendment that I have presumed to table. The first are purely probing, as indeed all are in a sense, in that I wanted to raise some novel points and hear the views of the Committee in relation to them. On none do I intend to ask the Committee to divide. Some are more strictly probing, and seek to discover exactly what is in the mind of my noble and learned friend.
§ The second group of amendments is designed to mitigate the injustice and hardship inherent in a measure that provides for unilateral repudiation of the other spouse, particularly hardship and injustice in relation to married women.
§ The third group is particularly directed to the words "have consideration of the welfare of children" considered at the stage of divorce, not postponed until after the parties have declared that their marriage is irrevocably over.
§ The fourth class is designed to take some positive action to affirm a marriage, partly by the contract, but partly by improving our regime of matrimonial property, so that it reflects more truly the sharing that is promised at the marriage and is inherent to the marriage, whereas at present our law of property goes against that.
§ This amendment is purely probing. It seeks to delete the reference to separation orders. I was not quite clear, although no doubt I should have been, exactly what is in the mind of the Government. I can think of two circumstances where a separation order is very much needed. The first is within a year of the marriage. It is supported in parliamentary divorce, in the ecclesiastical courts, and in lay courts since 1857, that occasionally there is treatment so evil from the outset of the marriage that the parties cannot be expected to live together. Perhaps the most striking is the communication of a venereal disease, of which there are several reports. That seems to me to be a case where the parties are precluded, as I read the Bill, from seeking a divorce order. I ask my noble arid learned friend whether he can assure us that there would be no obstacle to seeking, and indeed securing, a separation order in those circumstances.
§ The second instance that comes to mind is where a number of people still have a conscientious objection to divorce. They stand by the promises they made at marriage, particularly those made at the altar. Those people are willing to be separated if the conduct of the other spouse renders the continued cohabitation virtually impossible. They are willing to be separated but not finally to have the marriage dissolved because it is subsisting in their eyes and, so long as it does subsist, 298 there is always the chance of reconciliation, contrition, and resumption of cohabitation. There may be other circumstances. If so, I should be grateful if my noble and learned friend could help us, particularly on the two circumstances to which I referred.
§ This amendment is grouped with Amendment No. 15 in the name of the noble Lord, Lord Meston. I do not know whether he wishes to move it separately. It is also grouped with my Amendment No. 16. I think it would be for the convenience of the Committee if I moved that separately. In the meantime, I beg to move Amendment No. 2.
§ Lord Meston
I am content to speak to my Amendment No. 15, grouped with this amendment. I find myself a little bemused by the amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale. But the matter does not end there, because the noble and learned Lord raises an interesting point about the types of order proposed under this Bill.
As the law stands, there is a clear and well understood distinction between a decree of divorce and a decree of judicial separation. As it is, for judicial separation the irretrievable breakdown of a marriage does not have to be alleged or established. It is a remedy quite often sought by those whose marriage has broken down, whether irretrievably or not, but who prefer not to be divorced for religious or other reasons. A judicial separation provides a status and consequences which are well established in law, including consequences for inheritance after death and on the obligation to cohabit.
At first sight, Clause I of the Bill reproduces the existing law with simple changes of title for the type of order. But it is regrettable that there is not a definition of the status created by the two new orders as there was in Clause 1 of the Bill as annexed to the Law Commission report. In that report the Bill started with Clause 1, which stated that the court might make an order known as an order of divorce dissolving the marriage, or an order known as a separation order removing, for so long as it is in force, from the parties to the marriage any obligation to cohabit, and having the effect relating to inheritance which the Bill went on to describe. For some reason that is not reproduced in this Bill. When in due course we come to Amendment No. 5, I shall seek to restore the different bases for the two types of order.
Amendment No. 15 seeks to amend Clause 2(3) of the Bill as it is presently drafted. Under Clause 2(3):If the court is considering an application for a divorce order and an application for a separation order in respect of the same marriage it shall proceed as if it were considering only the application for a divorce orderunless certain conditions apply. In other words, the court's hands are tied by mandatory obligation provided in the Bill as drafted. Amendment No.15 seeks to question that provision and would give the court more discretion to consider which application is the more appropriate to grant in all the circumstances of the case.
I question the thinking behind Clause 2(3). Indeed, I question it in the context of the philosophy underlying the Bill. It seems wrong in principle to remove from the court any discretion to consider whether a separation 299 order is more appropriate than a divorce order. Surely the court should consider both, on their merits and on the basis of any evidence or argument which is then put before the court. It is hard to see how Clause 2(3) in its present form assists the Government's objectives.
With respect, I invite the noble and learned Lord the Lord Chancellor to indicate to the Committee the thinking behind Clause 2(3).
§ Lord Irvine of Lairg
I normally find the noble and learned Lord, Lord Simon of Glaisdale, both learned and clear. Therefore I acknowledge that it is my own fault that I did not clearly understand from him why, in his proposed amendment, Amendment No. 2, the availability of a judicial separation order should be removed from the battery of powers that are available to the court.
§ Lord Simon of Glaisdale
It was the only way that I could think of in order to probe what lay behind the matter. There probably may be some other ways, but I could not think of them.
§ The Lord Chancellor
That was my understanding of what the noble and learned Lord, Lord Simon of Glaisdale, wanted: just that I should explain. I do not think he was suggesting that this was a substantive proposal. The Law Commission considered whether or not a judicial separation order should be continued at all in the new situation that was envisaged. After considering the matter, it came to the conclusion that it was right for it to be retained. In the consultation that I undertook, nobody suggested any other course. So that is as it is in the Bill.
The conditions for grant would be the same as for an order of divorce, except that that kind of order, as my noble and learned friend Lord Simon of Glaisdale indicated, can be obtained in the first year of marriage. There is no bar in that respect. Drastic circumstances such as he envisaged could occur there. The purpose of the provision is to leave that possibility open.
Secondly, apart from that altogether and, as my noble and learned friend said, for religious or conscientious objections some people would not. wish to have a divorce. I wish to keep open every possibility of accommodating every form of religious belief that exists in relation to this matter. Therefore, I think it is right that the judicial separation order should be allowed to continue. So religious or conscientious objections to divorce comprise another reason.
The third possibility is that, notwithstanding that the relationship had broken down irretrievably, and was seen as such at the time, living apart in the conditions that had been arranged might demonstrate to the parties that they were better off than they were before. Having a separation order would preclude their entering into any other marriage relationship—they might have other relationships but not marriage. Therefore, it was thought possible that people in that situation might well be able to be reconciled after a while. That is another reason.
There is also a possibility in relation to pension rights. Obviously, some of these matters are subject to consideration. However, that was another reason why 300 some people did not want to divorce. They wanted to keep open the possibility of access to a pension under the arrangements for marriage.
In answer to the question of the noble Lord, Lord Meston, the view on which this provision proceeds is that the parties should be able to choose which remedy they wanted, the conditions being the same for obtaining the order, apart from the first year bar. It would be up to the parties to decide what they wanted to do. That is the thinking behind the way in which that matter was put.
I should have mentioned before that I was particularly grateful to my noble and learned friend Lord Simon of Glaisdale, who in these matters is an eminent critic, when he said that this Bill, although he dislikes it in policy, is well drafted. I was very anxious that it should be so and that it would be as clear as possible to all those who might be affected by it. That may be quite a large number of citizens, who, as the noble Lord, Lord Stallard, said, would not all be lawyers, fortunately.
§ 6.15 p.m.
§ Lord Meston
Before the noble and learned Lord sits down, perhaps I may refer to his comment about the drafting being clear. I wonder whether it would be clearer if the first clause in the Law Commission's proposed Bill which spelt out the status confirmed by the two types of order was somehow restored in an early part of this Bill. I wonder why it was left out.
§ The Lord Chancellor
I understand that for the purposes of simplicity it was easier simply to describe the separation order as an order providing for the separation of the parties to a marriage without a separate clause to that effect. Of course, the consequences of such an order remain.
§ Lord Simon of Glaisdale
I am most grateful to my noble and learned friend for his explanation. As for the Bill being well drafted—I think that it is an exceptionally well drafted Bill—there is a lesson to be drawn. This Bill has been matured over a period of four or five years. It shows the advantage of the draftsman not being hurried, as most of them are. That is one of the causes for so much of our legislation being ill drafted.
My noble and learned friend confirmed that I was right in both my surmises as to why the separation order subsists. I say only—it was emphasised by the amendment of the noble Lord, Lord Meston—that there is a bias throughout the Bill, particularly in Clause 2(3), in favour of divorce as against separation. It is to adopt a phrase that was used to the Royal Commission on Marriage and Divorce: it is a divorce minded Bill.
My noble and learned friend said, and it is a comfort to know, that the circumstance in which the separation order may be valuable is where there is a conscientious objection to divorce and particularly one that is founded ultimately on a hope of reconciliation. That being so, it is a great pity—to put it mildly—that, notwithstanding the conscientious objection of one spouse, nevertheless the separation order can be converted into a divorce order at the instance of the other spouse.
301 As Members of the Committee know well, the difference between separation and divorce is simply this. A separation order gives a party leave in law to live separate and apart. A divorce order does something more; it couples that with a licence to remarry. Once there is remarriage, there is virtually no hope of a reconciliation. Therefore, the party who conscientiously preferred a separation order in the hope of reconciliation nevertheless finds it dashed from their lips because the law says that there can be an immediate conversion.
Having explored the matter, and again thanking my noble and learned friend, the noble Lord, Lord Meston, and the noble Lord, Lord Irvine—in spite of his slight animadversion on my obscurities—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause I agreed to.
§ Clause 2 [Circumstances in which orders are made]:
§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)
I should point out to the Committee that if Amendment No. 3 is agreed to, I shall not be able to call Amendments Nos. 4 and 5 owing to pre-emption.
§ Baroness Young moved Amendment No. 3:
Page 2, leave out line I.
§ The noble Baroness said: As Amendment No. 3 is the first of a number of amendments I have tabled, I begin by saying to my noble and learned friend the Lord Chancellor that I am heartened by what he said at Second Reading and repeated today in reply to the first amendment; that is, that he wishes to look carefully at the amendments and consider them. I can assure him that it is not my intention to divide the Chamber at Committee stage on any of the amendments tabled in my name.
§ I am conscious—before someone else picks up the point—that a number of my amendments cover the same point. That is deliberate. A number of serious issues arise and the idea is that we provide a variety of ways from which an answer may he found. I mean them to stand as they are without necessarily saying that one is preferable to another.
§ Perhaps I may take up something said by the noble Lord, Lord Irvine, in his charming Second Reading speech on the first amendment. I am not sure that I was being referred to—it is quite a compliment to be picked out in that way—but in case I was, I took down his exact remarks in regard to people who stand on "spurious, moral high ground". I do not see myself in those terms. I am not a clever lawyer like him and I cannot make that sort of speech. However, I am perfectly entitled to my point of view about the Bill and entitled to argue my case, which I am prepared to do. Perhaps I may say to him right at the start of these proceedings that we shall all get on a lot better if we respect one another's point of view rather than make remarks that are singularly unhelpful.
§ I shall not continue in this vein. I have had my say and I now turn to the amendment before us. I am slightly surprised that it was not grouped because, in a sense, it 302 is a paving amendment. Its purpose is perfectly clear; it permits divorce only on the grounds of fault or behaviour that is destructive to the continuance of the marriage. In a way, the amendment is required for amendments that follow on from it.
§ As I indicated, I do not wish to press the amendment. Amendment No. 4 is the major amendment dealing with the whole issue of fault. I prefer to raise the issue on that amendment rather than on Amendment No. 3 which, though free-standing, should have been grouped.
§ I am always pleased to hear the noble and learned Lord, Lord Simon of Glaisdale. I am glad that he attaches his name to the amendment. In case he or anyone else wishes to say something a,. this stage, I beg to move.
§ 6.30 p.m.
§ Lord Simon of Glaisdale
I am obliged to the noble Baroness. I would not wish her to refrain from withdrawing the amendment at the end of the debate because, as I indicated, all my amendments are exploratory. However, it is extremely valuable to debate at the outset the concept of irretrievable breakdown; it is at the heart of the measure.
It is because of that concept that one finds an inbuilt injustice. The only way of testing irretrievable breakdown is by finding facts to support it. That was where the committee of the Bishop of Exeter, in Putting Asunder, made its fundamental error. It thought that irretrievable breakdown was a triable issue and recommended that it should be the only basis for divorce. Fault should not be considered at all but every marriage should be tried separately to see whether it had in truth broken down. It was rapidly pointed out not only that irretrievable breakdown is an unjusticiable issue but that it is practically impossible to investigate every marriage to see whether it has in tact irretrievably broken down. That was pointed out both by the Law Commission and by the Lord Chancellor's department.
In the result, the Bishop of Exeter agreed to the composite measure of 1969, so justly denounced in the White Paper, in chapter 2, and by the noble Lord, Lord Irvine of Lairg, in what I am afraid we will continue to call his Second Reading speech today. That was a perfectly just denunciation. Nevertheless, we had the odd circumstance that the Bishop of Exeter was actually a teller in your Lordships' Chamber in favour of the 1969 Bill at Second Reading notwithstanding that it contradicted fundamentally what his committee recommended. Another right reverend Prelate, who is happily still with us, was on the other side and voted against the Bill. Is it any wonder that the Church of England appears now to be speaking in disparate voices on this measure which takes us further down the same road.
A second point I should like to make is that irretrievable breakdown, as a ground for divorce, is a recent intellectual fashion; really an intellectual fad. One gets these sudden gusts of intellectual opinion sweeping through society. The most notable in my time was undoubtedly the movement for pacifism at the end of the 1920s and at the beginning of the 1930s, starting 303 with the anti-war novels and plays and ending up with the politically momentous Peace Pledge Union. The intelligentsia who had put forward that view, speaking of passive resistance as the proper method of standing up against evil, rapidly changed their opinion in the face of fascism, and instead of passive resistance and non-violence one had the idea of co-operation against fascism. But that is a good example of how a temporary fashion runs through society and carries all before it.
Perhaps even closer to this Bill and the 1969 Act was the movement of bimetallism at the end of the last century. It was a tremendous fashion, so much so that an American presidential election was carried on it, with William Brown momentously referring to mankind being crucified on a cross of gold. It all sounds so remote and so ridiculous; but at that time it carried all before it. No one thinks of it now.
Irretrievable breakdown is very much the same. Nothing had been heard of it by the time the Royal Commission sat in the early 1950s. The Royal Commission was appointed because the noble Baroness, Lady White, had introduced a Bill providing for divorce after seven years' separation. Nothing was heard of irretrievable breakdown as such in the evidence given to the Royal Commission by Archbishop Fisher, which seems now to be largely forgotten, although his objections to the seven years' separation for divorce would certainly apply much more strongly to the ground of irretrievable breakdown.
As I said, it is a recent fashion and one hopes that it will disappear with this Bill. And not only that—it is not a justiciable issue at all. The White Paper admits that. The 1969 Act set out what were called five facts. Each one was a conclusive proof of irretrievable breakdown and all five were exclusively proof. In other words, the irretrievable breakdown was, as is now accepted, the merest humbug. So, too, in this Bill. The irretrievable breakdown cannot be proved as such. It can only be shown—and in this Bill it is to be shown—by one party to the marriage saying that the marriage has irretrievably broken down. That amounts in fact to unilateral repudiation of the other spouse. The sooner we grasp that and face it, the more honest we shall be with this Bill.
The irretrievable breakdown proved by unilateral repudiation is bound to be liable to cause injustice and is likely to cause the most severe injustice to married women. I want to quote a passage from a book written by David Morris, who was the most experienced litigation solicitor in London at the time and was particularly strong on divorce. The foreword of the book was written by my noble and learned friend Lord Hailsham. In the foreword my noble and learned friend picked out two passages especially. David Morris had written:It all sounds so wonderful"—the improvement in the wife's legal position—until you face the position of the middle-aged woman with young children abandoned by her husband for a younger woman after ten or fifteen years of marriage. Then by a paradox many of those 304 improvements, to which in all fairness women were clearly entitled, seem to have contributed to a weakening of women's position in marriage as a whole".In moving this amendment the noble Baroness has given us an opportunity to face that situation, a matter of elemental justice.
The other passage cited by my noble and learned friend is as follows:I agree that there are often faults on both sides, but I believe that in many cases if all the facts were known most people would say that far more of the fault was on one side than the other".My noble and learned friend added:That, too, has been my experience".Perhaps I may add that that, too, has been my own experience as a matrimonial judge.
The final thing I would say concerns the pretence of abandoning fault because it exacerbates the relationship. Nevertheless, fault creeps back at a later stage, as it is bound to. The divorce itself is demoralised, fault is not investigated, the ipse dixit of one spouse is sufficient to set it in motion. Once the motion starts, once the mediation sets in, the parties are enjoined—enjoined in the White Paper itself—to face their faults on how far they have been responsible. Indeed, the Bill itself and Section 25 of the 1973 Act expressly enjoin the court to have regard to the conduct of the parties. So although one demoralises divorce, one does not get rid of fault. One may expel it from the front door with a hay fork but one will find that it slips in through the back door and is in the parlour.
§ Lord Elton
I do not follow the noble and learned Lord on the question of irretrievable breakdown per se, but I hope that my noble and learned friend the Lord Chancellor can say something about irretrievable breakdown as evidenced by a unilateral declaration—something which I find rather difficult. That may be to anticipate Amendment No. 18A in the name of my noble friend Lord Ashbourne, in which case my noble friend may wish to postpone it; but it seems an integral part of this debate. Irretrievable breakdown resting on the claim of one party and the silence of the other is fraught with dangers of injustice.
§ Lord Coleraine
I would like to associate myself with the scorn which the noble and learned Lord, Lord Simon of Glaisdale, has cast on the use of the words, "irretrievable breakdown" both in this Bill and in the 1969 legislation. I am probably making the same type of point as my noble friend Lord Elton. The 1969 Act says that the sole ground for divorce is irretrievable breakdown. It goes on to say that there are only five ways in which one can prove that. The 1969 Act was creating as best it could a system of divorce based on the grounds that—I am looking at the line which the amendment of my noble friend Lady Young seeks to omit from the Bill—the marriage has broken down irretrievably".Clause 2(1) states,the court shall make the order applied for if (but only if)— the marriage has broken down irretrievably".(a) Of course, the question of irretrievable breakdown is not justiciable. If we look ahead to Clause 4(1) we see, 305A marriage is to be taken to have broken down irretrievably if (but only if)—and then there is a long list of matters which have to be satisfied. The line in the Bill which my noble friend seeks to omit could be made both more neutral in terms which might appeal to my noble and learned friend the Lord Chancellor and more explanatory of what is the actual situation, if that line read, "The marriage is taken to have broken down irretrievably". That would describe the full situation.
§ Baroness Elles
I support the comments made by the noble and learned Lord, Lord Simon of Glaisdale. I find the removal of fault in this Bill extremely worrying. I am somewhat surprised that, as far as I can see, the Government's White Paper Looking to the future, makes no reference at all to any of the research done in those countries where no-fault divorce has been introduced.
Considerable research has been done in the United States since the introduction of no-fault divorce in California in 1970 and, I understand, in at least 38 states, now. Of course, as research shows, it is always very difficult to apply direct cause to some effect, but there is no doubt that, from the evidence which has been obtained, the idea of no-fault divorce has increased the number of divorces between 20 per cent. and 25 per cent. over the past 15 to 20 years. Therefore, I am surprised that, with the fairness and intellectual rigour of my noble and learned friend the Lord Chancellor, no reference has been made to that, as far as I can see, when presenting the case for no-fault divorce. That should certainly be looked at.
The other point which the noble and learned Lord, Lord Simon of Glaisdale, strongly emphasised was that of justice. Many of us will have friends of all conditions, backgrounds and homes, where one of the partners has deserted the home—and even our Bishops might agree that they were behaving badly—and where the other party might have been innocent. They would find great unfairness in the allocation of the matrimonial property and the financial arrangements. I very much hope that my noble and learned friend the Lord Chancellor will be able to calm my concerns where there is some disagreement as to the allocation of the matrimonial property, which, after all, was a matter which was very largely resolved in this House very many years ago by the noble and learned Lord, Lord Denning, in his so-called "palm tree" judgments, which brought some justice to women who had contributed to the home without possibly making any financial contribution. That should not be totally overridden by this Bill. With the unilateral demand for divorce, the power goes to the person who wants the divorce, who wants to marry again because he or she has gone off with someone else, and there is no protection for the apparently innocent party in those cases. I hope that my noble and learned friend will give us some support and alleviation as regards the concern on these matters.
§ 6.45 p.m.
§ Lord Irvine of Lairg
Perhaps I may reassure the noble Baroness, Lady Young, in whose name this amendment stands, that I thoroughly enjoyed her 306 contribution at Second Reading as much as I vigorously disagreed with it. I entirely accept that she is entitled to her view and I enjoyed her expression of it. Equally, I dare say, she will accept that I am entitled to my views about her views.
I well appreciate that this is a paving amendment designed to remove irretrievable breakdown as a ground for divorce. It is better to postpone our detailed discussion on that matter until the suggestion of fault provisions is directly before us. I should make it clear, however, that in my view irretrievable breakdown should be the ground for divorce. It is made so by Clause 2(1)(a).
As regards the contribution of the noble Lord, Lord Coleraine, the noble and learned Lord will no doubt wish to confirm whether he agrees with that interpretation. I understand Clause 2(1)(a) to require that the court be positively satisfied that the marriage has broken down irretrievably. But then Clause 4(1) operates, as it were, as a bar to that satisfaction. The court is not to be satisfied because the marriage is not to be taken as having broken down irretrievably unless these various precautions, as it were, have been fulfilled. That is as I understand it.
I submit that irretrievable breakdown should be the ground for divorce. So far from irretrievable breakdown not being justiciable, I submit that it is fault which is not sensibly justiciable in this area. Perhaps I may recall the wise—
§ Lord Simon of Glaisdale
Was not fault justiciable in this area from the time of the Norman Conquest until 1857 in the ecclesiastical courts and after that in the lay courts until 1969 and beyond?
§ Lord Irvine of Lairg
I am not bowled over by ancestor worship. I was seeking to call attention to the wise words at Second Reading of the right reverend Prelate, the Bishop of Birmingham, when he said,To say that irretrievable breakdown should be the sole ground for divorce is not to deny personal responsibility for the breakdown of a relationship".I entirely agree. He continued,It is not to deny the place of human fault and sin in the process of matrimonial breakdown".I entirely agree. He went on,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?"—[Official Report, 30/11/95; col. 753.]That is to run ahead into the argument as to whether there should be fault-based divorce, but I entirely agree.
I was entirely in agreement with what the right reverend Prelate the Bishop of St. Edmundsbury and Ipswich was saying in his brief speech to similar effect when it was subject to an intervention from the noble Baroness, Lady Gardner of Parkes, who is not in her place at present, inviting him to abbreviate it to which, sadly, he responded. The noble Baroness asserted that the right reverend Prelate was making a Second Reading speech, as it has been asserted that I made a Second Reading speech on Amendment No 1, a position 307 adopted by the noble Baroness, Lady Young, and taken up by the noble and learned Lord, Lord Simon of Glaisdale. I do not begin to accept that.
What was before us on Amendment No. I was a general objectives clause. The noble and learned Lord has recognised that there are special legislative problems associated with general objectives clauses although I believe him to have expressed a strong measure of sympathy, subject to supplementing it, for this one. The point is that when a general objectives clause is before your Lordships for consideration, the major question which has to be addressed is whether that general objectives clause chimes with the particular provisions of the Bill that follow the general objectives clause, if it is accepted. How you do justice to an argument that a Bill should embrace at its commencement a general objectives clause without addressing whether it is in accordance with all the particular provisions of the Bill escapes me, but no doubt at a later stage in this debate the noble and learned Lord and the noble Baroness will explain. Meanwhile, I leave the substance of this interesting argument until a debate on the fault or no fault amendments.
§ Lord Meston
Confining myself to this amendment, I cannot agree with the proposition that the irretrievable breakdown of a marriage is not a justiciable matter. I have known divorces which have been successfully defended and, indeed, undefended divorces which have been refused by a court on the basis of a decision by the judge that the breakdown of the marriage had not been shown to be irretrievable, because for example, there was a reasonable prospect of reconciliation. Therefore, I suggest that your Lordships should not be put off by the proposition that a court cannot decide that a marriage has broken down irretrievably.
§ The Lord Chancellor
I think that there is a great deal of merit in taking this amendment with the later amendments, as my noble friend Lady Young suggested. However, we have now been treated by my noble and learned friend Lord Simon of Glaisdale to a somewhat more detailed defence of the amendment than was given by my noble friend herself. Therefore, I think that I owe it to my noble and learned friend and to other noble Lords who have spoken to say just a word or two about this matter.
The purpose of the clause is to base the ground of divorce on the irretrievable breakdown of the marriage. As the reference to the prayer book from my noble friend Lord Onslow made clear, the obligations of marriage do not stop with the obligation not to commit adultery—I believe that there is a good deal more to the marriage relationship than that—nor do those obligations stop at the obligation not to be guilty of unreasonable conduct. I believe that the obligations of marriage, as set out in the Book of Common Prayer and in the scriptures on which I believe that that book is soundly based, are much more far reaching and intimate. I believe, as I. have said before in another context but perhaps not to your Lordships, that a good marriage relationship is the most satisfying of all human relationships. It cannot be reduced to a list of contractual 308 conditions. It is much more than that. It is a relationship unique in itself, divinely given (in my view) and extremely valuable in our society.
When that relationship breaks down, something requires to happen. Following extensive consultation, I have sought in this Bill to make irretrievable breakdown justiciable by precisely defining its contents. The process is initiated by one or both parties stating that the marriage has broken down. There is then a year (as a minimum) for the purpose of trying to see whether the relationship can be retrieved and whether the marriage can proceed—
§ The Lord Chancellor
Obviously, we shall have to look at it in a little more detail later, but at the moment that is the purpose. The year should be for consideration and reflection. Machinery is provided for carrying that out.
One of the purposes plainly recognised in the Bill is the need to consider arrangements for the future after the divorce. The noble Lord, Lord Stoddart of Swindon, referred earlier to what the future holds. I believe that that is one of the most important things to be faced in connection with a contemplated divorce. The question of what the future will be like must be considered. As long as final positions have not been adopted, taking a look into the future and at what the situation will be as the family splits up, with the father possibly leaving home and not able to see the children very often—what so often happens, sadly, is that he gradually sees the children less, which is very bad for the children—is a vital part of that year of contemplation. That is why I have required in the Bill that those arrangements be finalised (generally speaking and subject to some exceptions) before the divorce is granted. That will ensure that before a divorce is granted the parties have to face up to the whole range of responsibilities that they have undertaken in their marriage. That is the purpose of the provisions.
In my view, it is not an intellectual fad but a proper analysis of what really happens when there is an irretrievable breakdown of a relationship—a complicated, intimate, valuable, and divinely appointed relationship. That is what is in question. I believe the provisions to be a sound basis for a reasonably civilised divorce law. I trust that that answers the question raised by my noble friend Lord Coleraine. In effect, I have defined in Clause 4 the conditions under which "irretrievable breakdown" will be satisfied.
Perhaps I may turn to the questions asked by my noble friend Lady Elles. First, analyses of what happens after a particular change in the law has been made are extremely difficult to put on a proper basis. As everybody has recognised, it is not only the law that causes divorces. Much more complicated issues than that are involved. We would really need to know what the rate of divorce would have been if the law had not been changed—and, in the nature of things, we cannot know that. So, in my view, there is only a limited value to be obtained from such analyses. One has to proceed on the basis of principle and take a rational approach to the problems. That was the approach set out in the 309 White Paper which I have sought to follow. I have not been able to find anything in the research to damage the conclusion which the White Paper reached.
On the second point about justice and the division of property, nothing in the Bill in any way damages the present rules in regard to the allocation of property. In particular, the rule is preserved that where it is inequitable to disregard it, the conduct of the parties will be taken into account in the allocation of the parties' property and so on.
Some people have talked about no-fault divorce. The noble Lord, Lord Habgood, wrote about that recently, pointing out that there is no suggestion that there is no fault. The suggestion is that it is not a sound basis upon which to found a divorce law. Of course people are at fault. There are few marriages which survive for long in which there has not been fault on one side or the other, and usually on both. A degree of tolerance and understanding is required. Mutual agreement is required. Parties require to he able to agree upon a course of conduct where there are choices. That is the nature of a successful marriage. Conduct has to be taken into account in a broad and just way. I believe that that is what the present law provides on this aspect, and the Bill in no way changes that.
§ 7 p.m.
§ Lord Stoddart of Swindon
Before the noble Baroness replies, I am sorry if I interrupted the noble and learned Lord from a sedentary position, but I reacted to what he said about a period for reflection and consideration. The problem is that we are in a situation where one party—not both parties—has said that the marriage has broken down irretrievably. So there will be only one party who will reflect. The other party who has been told, although he or she may not agree with it, that the marriage has broken down irretrievably, whether he or she likes it or not, may feel that after that he or she does not want to reflect because the other party has made it clear that the marriage has broken down. That is one-sided. That is why I reacted as I did.
§ The Lord Chancellor
I understood that the noble Lord reacted in that way. I did not take it in any way other than an informative reaction, which I was able to answer, as I thought, at the time. The reality is that one cannot force the parties. If someone is determined that his or her marriage has broken down and is not prepared to co-operate with anyone to do anything about it, there is nothing that the law can do. One has to face that sad fact. I am trying to put forward every possible persuasion on people to get together in the period set down. The period is provided for in Clause 7. The initiation is by one party, but the irretrievable breakdown is demonstrated only once the period for reflection and consideration has taken place.
310 As I said, realistically one knows that one cannot force people. Everything is being done in the Bill to give them a structure under which, if at all possible, they will come together.
§ Lord Elton
If the object is to put pressure on the silent party to become a party to the agreement, as it were, why is it that a statement that a marriage has broken down irretrievably made by one person is treated in the same way as one made by two? Is there not an opportunity there to exert some pressure?
§ The Lord Chancellor
The point is that it is the year passing that is required. That is an absolute and objective fact. Unless the relationship has been brought together, healed or restored in that time, the Bill proposes that there should then be a basis for saying that the marriage has broken down irretrievably. That is not the whole story. There is a hardship bar in Clause 10, to which amendments have been tabled, which is important. As a practical matter, if the parties have been unable to be reconciled and so get on with their marriage after a year, in my view the practical inference is that the marriage has broken down irretrievably. That is what I take from the results of the consultation. If the parties are agreed about it all, so much the better, but, sadly, when a relationship breaks down one of the great difficulties is to achieve any kind of agreement.
§ Lord Hamilton of Dalzell
Perhaps my noble and learned friend will elucidate further on the matter of justice. The noble and learned Lord, Lord Simon of Glaisdale, said that if one took fault out through the front door, in it would come through the back. What seems to me to be in prospect if a statement is made by one of the parties that the maker of the statement, or each of them, believes that the marriage has broken down is that it will enable someone to walk out of the marriage, possibly at considerable financial gain to himself or herself.
I thought I detected a hint from my noble and learned friend that that would be sorted out at some later stage. I wonder whether my noble and learned friend could elaborate.
§ The Lord Chancellor
Under the Bill, one party to a marriage may make a statement—a neutral statement—that in his or her opinion the marriage has broken down. It is intended that that statement should not contain allegations, and so on, against the other party to the marriage, because that is not likely to be conducive to healing the relationship. There then follows a period of a year, provided by Clause 7, for reflection and consideration. The hope is that during that year the parties will address their problems. Mediation is intended to help them to address those problems by communication one with the other rather than through representatives.
Experience shows that it is a lack of communication between the parties that often leads in the first instance to the breakdown of the marriage. A skilled mediator may be able to restore that kind of 311 communication. Talk about the future, I hope—at least in some circumstances—may lead also to reflection upon whether or not the parties should go forward.
Assuming that the year has now begun, the process I then envisage in the Bill is that there should be discussion between the parties, helped by a mediator, of what the future arrangements should be—all the arrangements relating to the children, property, and any other mailer that may be affected by the possible dissolution of the marriage. The year is intended for that purpose. It may take longer. The Bill requires that, except in special circumstances provided for in Schedule 1, the arrangements should be completed before a divorce is granted. There will be no question of anyone walking out in the way that my noble friend suggested unless and until the arrangements and terms upon which that is to happen have been settled between the parties.
There are of course possibilities of disagreement in that connection, but that is the scheme. Therefore justice is secured, so far as it can be, in relation to the allocation of property and the other matters that have to be dealt with. That is where justice in the whole arrangement has to come into play.
§ Lord Carr of Hadley
Perhaps I may ask my noble and learned friend one final point before he sits down. In the statement that he has just made, he seems to see the procedure moving from the statement, which may be a unilateral one, straight into mediation. I should have thought that there was need for a period of conciliation. I realise that that is provided for, but in the statement that my noble and learned friend has just made I do not see how that fits in.
§ The Lord Chancellor
One of the problems of divorce is that people reach that stage usually before seeking help of any kind. It is often late for any kind of conciliation, but mediation is required if a divorce is contemplated and if the future after divorce is to be studied. That is a most important aspect of the proposals.
I have provided that in relation to mediation, if there is apparently any prospect whatever that the parties will get together again the mediator will refer them to conciliation and, it is to be hoped, to reconciliation. The noble Lord, Lord Irvine of Lairg, made a point about my clauses. My intention in the clauses relating to conciliation is that, if there is any prospect of that, it will not affect the running of the time because if people believe that the year should run while there is still time to be reconciled that might damage the prospect of reconciliation. That is my intention but there may be some misunderstanding about it.
I believe that as a practical matter the most likely source of conciliation and, it is to be hoped, reconciliation is when the parties get together to look at the various problems that they face. I believe, too, that mediation in its very nature brings them to address what has separated them and what are the 312 problems between them that must be addressed. Therefore, this is intended as a practical method of addressing these matters.
There is a great variety of circumstances and it is difficult to legislate for them all. This is intended as a framework to encourage and, it is hoped, to bring about reconciliation where that is possible.
§ Lord Coleraine
I understood my noble and learned friend to say that there is no difference between the financial provision arrangements under the 1973 Act and those in the Bill. However, there is one very important difference which will have a profound effect on these matters. It is that under the 1973 Act financial provision arrangements can be made at the time of the decree nisi but cannot be brought into effect until the decree absolute. Under my noble and learned friend's proposals all these matters can be taken up and brought to finality at an early stage within the year of reflection and consideration.
The effect of that could he that a wife and child are taken away from the husband immediately the wife applies for financial provision. Within a few months the husband might find himself paying for the support of the wife and the child but without his home and even having to transfer the home to his wife. Under present practice that could not have happened until a much later stage of the proceedings. It throws a bad light on the effect of the Bill in promoting reconciliation.
§ The Lord Chancellor
We are moving away from the amendment but this is a matter for considerable consideration. In answer to my noble friend Lady Elles, I was referring to the basis on which property arrangements should take place. The Bill makes no change whatever to that. It makes different arrangements as to when exactly the various provisions can come into effect, but I believe that one of the important issues is realistically to face what the future will bring. If the parties are in a position completely to know what that is, so much the better for realising exactly what the future is after divorce. I believe that at least in some cases a look at the future as well as facing up to the responsibilities of marriage are extremely important features of the proposals.
§ The Earl of Onslow
Perhaps I may make only one point about the one-person application in respect of the irretrievable breakdown of marriage. If one partner in a marriage is totally and utterly determined that the marriage has broken down it is extremely unfortunate but there is nothing that the other partner can do about it. It is nasty and unpleasant but all divorce is nasty and unpleasant. I do not know one of my friends whose divorce has not been at least 70 per cent. on one side and 30 per cent. on the other. Normally it is 50:50, and that point needs making. That is why I support my noble and learned friend so strongly.
§ Baroness Young
We have strayed very far from the original amendment, which I said was a paving amendment. A number of points have been made and 313 I shall read most carefully what my noble and learned friend said. I do not intend to respond to all of them but it appears that he attaches immense importance to mediation. Where all those remarkable people will come from I do not know. At any rate, we are banking on all kinds of people managing to undertake the task. I had understood that mediation was about splitting the assets of the marriage and not about reconciliation and so forth. That is another debate which we shall come to later in the Committee stage. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Trumpington
I beg to move that the House do now resume. In moving the Motion I suggest that the Committee stage begins again at 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.