Family Law Bill [H.L.]

HL Deb 11 January 1996 vol 568 cc325-54

House again in Committee on Clause 2.

Baroness Young moved Amendment No. 4:

Page 2, line I, at end insert ("by reason of the behaviour of one or both of the parties which is destructive of their marriage and rendering them irreconcilable").

The noble Baroness said: in moving this amendment, I shall also speak to Amendments Nos. 18, 21, 23 and 24.

This amendment is concerned with the whole issue of fault. It is a matter of great concern and interest to the whole Committee. Amendment No. 4 is a very good example of the kind of amendment that we should measure against Amendment No. 1 to see how far it measures up to the kind of things that we all agree are desirable.

As I said at Second Reading, I am very concerned about the abolition of Fault, not because I am on some moral high ground jag but because I believe that the abolition of fault undermines marriage vows, civil contract and individual responsibility. The noble Lord, Lord Stoddart, made that point very well in his remarks on Amendment No. 1. Many lawyers with whom I have discussed this issue maintain that it undermines even the legal basis of marriage.

I find it quite extraordinary that if, for example, I hire a car and I break the contract, I am at fault. If, however, I break my marriage vows, I am not. I find that as a principle in life quite extraordinary. Indeed, I have listened with increasing astonishment to the arguments made in Committee. I strongly suspect that if we did not live in such a cynical society, the whole lot would be regarded as a very bad joke. I am quite frankly astonished at what has been proposed. Removing fault unquestionably lowers the value of marriage by removing nearly all the obstacles to divorce.

In preparation for this Committee stage, I reread the remarks at Second Reading of my noble and learned friend the Lord Chancellor on this subject. Like any examination candidate, I felt that I must attempt an answer. My noble and learned friend said: My noble friend Lady Young suggested that we were seeking to obliterate fault. I do not think one will find in the Bill any suggestion that there is no such thing as fault, but what one does find is an omission from the facts showing irretrievable breakdown of any reference to adultery or unreasonable behaviour. I posed a question at the beginning of the debate to which so far I have not heard an answer. How does the fact that a very quick divorce can be awarded in respect of a person who has grievously broken his marriage vows by committing adultery and can then re-marry very quickly indeed support the institution of marriage?"—[Official Report, 30/11/95; col. 786.]

I have the temerity to say that there is a great weakness in that argument. Of course I do not agree with quickie divorce. But that could be dealt with by having a year's delay. One does not have to abolish fault. I simply do not understand why the two matters are inextricably linked together. The argument has appeared all the way through this legislation. It comes out in the Law Commission's report.

The second argument put forward on Amendment No. 1 was by the right reverend Prelate, the Bishop of St. Edmundsbury and Ipswich. If I understood him correctly, his argument was that we are all at fault. I agree; we are all miserable sinners. am certain that I am one. I do not know about anyone else, but I am happy to call myself a sinner and indeed I am very conscious of it. But the fact of the matter is that if I drive my car at more than 70 miles an hour down the motorway and hit someone else, I am a miserable sinner and so, in terms, is the man whom I have hit; but I am at fault. It seems to me a most extraordinary argument that because we are, as it were, all at fault all the time, then one cannot he at fault in marriage. I do not understand that idea.

I have listened to many clever people with their clever arguments. When I started my political career on Oxford City Council, we frequently had great debates with the university. One met extremely clever people and I realised that their great advantage was that they could put a very bad case very well. One listened to their argument for quite a time and suddenly realised that it was complete rubbish. I feel that that is exactly what is happening in this case. I wish that it were a joke but it is not. It is an extremely serious matter. A combination of lawyers, through the Law Commission, and the Church, through the Bishops, have decided that there is no fault involved when two individuals who have undertaken what must be the most important thing that they ever do—get married and either make their vows in church or make a civil contract—determine to break those contracts. That seems to me to be unbelievable and would have been unbelievable to past generations. It is only in our present generation that such an extraordinary concept should arise at all.

I see my noble friend Lord Onslow in the Chamber. He said that in his experience the blame for failure of a marriage was 50:50—he corrects me to say that he said "70:30". We all have anecdotal evidence about divorces. I can tell him of probably my greatest schoolfriend, whose husband told her, when she was still in hospital having her second baby, that he did not love her any more and he went off with someone else. I do think that he was at fault. Absolutely nothing that the lawyers, the Church or anybody else can say to me will convince me that he was not at fault. I do not say that my friend was perfect, but in my opinion she was a very nice person and a very good wife. There are many such cases. To pretend that something is as it is not is very damaging. The noble Lord, Lord Stoddart, was right about what he said on the first amendment. We do need to take this matter very seriously.

The reason for this particular legislation is exactly the same reason that was given for the legislation in 1969. Therein lies the danger. In that case we were told that the legislation would abolish the quickie divorce. I approve of that. I think it is a very good thing. However, as the noble and learned Lord, Lord Simon of Glaisdale, said, quickie divorces were in fact arrived at by a series of statutory instruments from the Lord Chancellor's Department—not under the present noble and learned Lord but under a former Lord Chancellor. Now, we are changing our minds about that.

We are being told that this Bill ought to make the law more understandable and more respected. But will it do so? What is the message—the real message, when we are not in the Chamber or arguing legal points—that is going out to young people? The real message is that at the end of one year a man or a woman may divorce his or her spouse without giving any reason at all and against the spouse's will. That is the real message that is going out. None of the convoluted arguments saying that everyone is at fault and there should be mediation to think further about the relationship will carry because the central message will be that this is an easier way to obtain a divorce. As Melanie Phillips put it very cleverly, it is "no pain, no blame and no shame". That sums up the matter.

The inference that has come up about no fault is that the law makes no difference. I should be the last person to say that divorce law can make a vast difference to the numbers of divorces. But, if we sit in this Chamber and say solemnly that law has no influence on behaviour, what on earth are we all doing most of the time in passing legislation? Why are we doing that if we do not believe that it affects behaviour?

I suggest that one reason for that—one among many, because there is no one reason for the rise in the divorce rate—is that divorce has become progressively easier. There is no stigma attached to it. Now, one does not even call it divorce; people "split up"—that is the "in" phrase—so far as I can see for no particular reason at all in many instances. It is now part of the culture of life; but, as I said, there is to be no pain, no blame and no shame. To think that that is what we believe marks an advance! I simply do not understand it. I shall judge whether we can obtain real amendment to this piece of legislation by what happens on the series of amendments that I have tabled. The amendments are probably not technically correct or absolutely right but they are attempts to bring back some moral purpose to stand behind this legislation.

There was the 1969 Act, when we were told—I have been told since on many occasions also—that the whole concept of fault went at that time. That is not quite true. The present law gives irretrievable breakdown as the sole ground for divorce but, as we have been told, it must be proved by one of five facts: adultery; unreasonable behaviour; desertion; two years' separation with joint consent; or five years' separation where one does not consent. The broad motive behind that legislation in 1969 was to make the law more understandable and more acceptable. But, as the noble and learned Lord, Lord Simon, said, every prediction that was made about it has proved false. In fact, the net effect has been to increase the numbers of divorces. The next time the Law Commission reports—that is the basis of this discussion, the Law Commission Bill—it may have the same kind of arguments; namely, a law to make legislation more understandable and respected and to sort out some of the problems. We shall probably be given the same pious hopes and I believe that we shall simply see an increase in the numbers of divorces. That is what makes me so unhappy about this Bill.

I should like to take up the point of my noble friend Lady Elles about the American situation. A number of American states have had no fault divorce for some considerable time. Interestingly enough, only last week there was a report in the Wall Street Journal that one of the American states which had no fault divorce was considering repealing the legislation and returning to a fault-based system. Of course, the number of divorces increases. I know the difficulties concerning statistics and in comparing exactly like with like and measuring one thing with another. The fact of the matter is that wherever there has been no fault divorce, the numbers of divorces have risen. I should not like to stand by all the figures that I have seen quoted in newspapers but the numbers of divorces will go up because of how the average person—not the clever person—sees the matter. I ask noble Lords to picture in their minds the young person who has left school at 15 to get his or her first job. They see that there is no fault divorce and ask themselves why they should worry about the whole thing—indeed, probably why get married in the first place; and, let alone having got married, why worry about divorce. That is the message. The Americans discovered that it increased the number of divorces. We should take up the point made so well by my noble friend and look at foreign experience. After all, they must have something to tell us.

Whatever one does or does not do in legislation, one cannot legislate to abolish acrimony. I am blessed with a happy marriage and a happy family life. I say to myself every day how blessed I am. I have seen friends who, tragically, had extremely unhappy marriages. They suffer and feel bitter and acrimonious. The idea that suddenly, because they appear before a mediator—presumably they have to volunteer—the acrimony will somehow disappear seems to fly in the face of human experience.

It is easy for me to say that one should not feel acrimony. I have never had cause, so I do not know. However, friends of mine have suffered. I have received many tragic letters from people who have suffered; I have a file full concerning the Bill. At Second Reading, when talking about the Pensions Bill, I referred to the tragic letters I had received from older women, dumped for younger wives. Their husbands are at fault and the wives feel bitter. We cannot get rid of that acrimony. Increasingly, tragically, we find cases of younger men being pushed out of their homes by their wives after being married for around 10 years for no other reason than that they are bored. It is a disgrace. The man is quite justified in saying that the woman is at fault; she is at fault and should recognise it.

When one is married one has a responsibility to make it work. It is hard work. To go into marriage thinking it is a permanent honeymoon is ridiculous. It is hard work every day and one must learn to put up with all sorts of things that one may not like and have a sense of humour about it. Therefore, to think that we can abolish acrimony by this Bill will not do.

I turn specifically to my amendments. They are quite clear. Amendment No. 4 is an opportunity to debate the whole issue of fault. It makes the point that one may divorce by reason of the behaviour of one or both parties which is destructive to the marriage, making them irreconcilable. That may not be the absolute answer. I do not say that it is. Amendment No. 18 makes the same kind of point in rather different language. Amendments Nos. 21,, 23 and 24 come back to the concept that there is some fault.

I do not suggest, and would not dream of suggesting, to the Committee that the amendments are perfectly drafted. However, I ask every Member of the Committee to consider carefully what the message is that we are sending out to young people by this Bill. My grandchildren are fastened in my mind's eye. If we could project ourselves 20 years on, what will the Law Commission be saying then? We will have abolished fault; everybody will be able to divorce themselves after one year and probably, a little further down the line, it will be a case of, "Why bother with marriage at all?"

I do not say that as a complete joke. I am extremely worried at the way the argument is progressing down a slippery slope, the end of which nobody knows. Within a generation we have one in three marriages ending in divorce. There are 1.5 million desperately unhappy children as a result of divorce. Anybody who believes that smoothing the way will make it easier for children should talk to people in the education world.

Over Christmas I was talking to a primary schoolteacher who said that she could pick out the children in her class from broken homes. One can: they suffer and go. on suffering. Only recently we had an American postgraduate to lunch in our home, aged around 28. He was in a terrible state. He said, "My parents have just divorced and I cannot get over it." The idea that the pain does not go on and on for children and that it can somehow be smoothed out by some simple system is quite wrong.

I am searching for the right way to proceed and make no apologies for that. I am searching for a way to make people face up to their responsibilities. That is what we should be doing, not pretending that ht is all easy, not saying, as I have heard it said several times in Committee, "Well, they decided to bust up and that is it." It is not. They ought to have tried. Perhaps they did. They should try harder. That is what the Bill should be about.

I explained to my noble and learned friend that it is not my intention to press any of these amendments this evening. I open up this issue because I regard it as one of the big issues of the Bill. It is one by which I shall judge whether we really believe in buttressing marriage; in making people face their responsibilities and in recognising, when they have done something wrong, that they are at fault and that we should say so. I hope therefore that, if these amendments are not correctly drafted or do not fit, something will come back which will meet my case. It is a serious issue. I hope the Committee will consider it carefully. I beg to move.

8.30 p.m.

Lord Ashbourne

I support my noble friend Lady Young, who so movingly moved the amendment. The purpose is to ensure that the marriage contract cannot be broken unilaterally by one party against the wishes of the other without cause. It also introduces adultery, which is the only scriptural ground for divorce.

There should be a good reason for one party to obtain a divorce without the consent of the other. In a word, the amendment changes the Bill into what I would call a, "No fault, no divorce Bill". By that I mean that if there is no fault, there is no divorce. Everyone who married in a Church of England church will readily understand that. They took solemn vows that their marriage would be, for better for worse, for richer for poorer, in sickness and in health…until death us do part". I am aware that many people do not have the advantage of being married in a Church of England church. Nevertheless, they will clearly understand my meaning.

While I am on my feet perhaps I can raise one point with my noble and learned friend the Lord Chancellor. Many people have referred to quickie divorces as representing 75 per cent. of divorces in the recent past. I am assured by the Office of Population and Censuses and Surveys that 32 per cent. of all divorces in 1993 were achieved in under six months and that, of those, only 15 per cent. obtained divorces in under six months where children under the age of 16 were involved. That is an important point. It is a comparison between the quickie divorce and the one year proposed by the Bill. If my noble and learned friend can clarify that point, I shall be greatly in his debt.

The Lord Bishop of Oxford

I am particularly sorry to find myself in disagreement with the noble Baroness, Lady Young. I say most sincerely that I respect the deep conviction and passion with which she speaks and share with her the sense of the sanctity of marriage.

I go further than that. She is right to emphasise the fact that when a marriage breaks down it is certainly possible, in a fair number of instances, to say—so far as we can say in this life—that one partner is more to blame than another. I agree with the noble Baroness. We can say that one person seems to be more at fault. But the point is that an indication of that fault, however grievous, is not necessarily an indication of an irretrievable breakdown of the marriage. We all know of people, friends of ours, where there has been an illicit relationship in the marriage but the marriage has nevertheless recovered and gone on. The fact that adultery has taken place has not been of itself an indication that the marriage has irretrievably broken down.

The noble Baroness gave a shocking example of a man who left his wife just when she had given birth to her second child. That is a grievous fault. But even in that extreme instance it is not necessarily certain evidence that the marriage has irretrievably broken down. Even in those dire circumstances that marriage could recover.

So the question at issue before the Committee is quite simply: what is the best evidence that the marriage has irretrievably broken down? The present divorce law has its basis in irretrievable breakdown and what is brought forward in the way of mental cruelty or physical cruelty is evidence that it has broken down. The question is: what is the best evidence that the marriage has irretrievably broken down?

It is the conviction of the majority of the Bishops on this Bench that better evidence than is provided by the present divorce law is a year's serious consideration and reflection, with the opportunity of marriage counselling for those willing to avail themselves of it, the opportunity of mediation, and the possibility, as the noble and learned Lord the Lord Chancellor so well put it, of real communication taking place between the two partners, perhaps for the first time for months and years. It is our equally sincere conviction that, if we are looking for evidence of an irretrievable breakdown, better than the evidence put forward by the Bill is a year's serious consideration and reflection with every opportunity being given to mend the marriage and to make arrangements which are the least acrimonious possible.

The noble Baroness stressed that some people are at fault. The word "fault" brings to mind the idea of punishment. If we break the law, we are punished. But one of the problems with the present divorce law is that a person can commit adultery and commit a fault against the marriage contract and be rewarded for it in their own eyes by being able to engage in another marriage. In this area there is not a simple happy relationship between fault and punishment. Sometimes it works in a perverse way: the person who is most at fault, the person who is most at blame, might get what he or she wants.

It is our sincere conviction that the proposals of the noble and learned Lord the Lord Chancellor provide better evidence that the marriage has been tested to the limit and that it has irretrievably broken down. Although Melanie Phillips puts forward the evocative phrase, "No pain, no blame, no shame", if we examine the marriages of our friends, the marriages that we know have broken down, I can envisage few marriages which break down where there is no pain, no blame or no shame. As has been said once or twice before in the Chamber, when marriages break down there is always pain and there is probably a great sense of failure. So, striking and rhetorical though that phrase is, I do not think we should be beguiled by it into trying to think that breakdown, under whatever circumstances, is less than painful.

The noble Baroness rightly raised the question of what message will be going out from this place if the Bill is finally approved by Parliament as a whole. That is a very serious question. We do not want to send out the wrong message. But if we include within the Bill the basic objectives debated at the beginning of the day on the amendment of the noble Lord, Lord Stallard, it will be clear that it is a Bill designed to strengthen marriage so far as it can be strengthened by the law. I shall not speak about these matters now, but if we support one or two other amendments on marriage counselling and proper mediation I believe that we can not only have a divorce law which is effective and humane but we shall have done what we can to strengthen the institution of marriage.

8.45 p.m.

Lord Elton

As my noble friend is not rising to deal with that point, I should like to deal with one narrower, but I think germane, issue with her. She gave an extreme example of a divorce in which one party would seem to be not only innocent but grievously injured. What paths would her amendments leave open to that person, or someone in a similar position, who did not wish to put the other partner—their spouse—in the dock as the guilty party? As the right reverend Prelate said, the concept of fault is automatically followed by the concept of punishment. Since we have been quoting from the Scriptures fairly freely this evening, I would remind my noble friend that "Vengeance is mine, sayeth the Lord. I will repay". What of the "innocent" party who, for purely charitable reasons, does not wish to embark on the kind of battle or the kind of accusation which her amendments appear to leave as the only course open?

Lord Moran

I wish to take up briefly the point made by the right reverend Prelate about the message going out to the country from our debates and from our consideration of the Bill. That is very relevant to this series of amendments.

The matter is bound to be seen in simple terms and the fact is that the Bill will be seen as bringing in no-fault divorce on demand. That will inevitably appear to everyone as very much simpler. No one will be to blame. No one will be guilty of anything. One partner will be able to say that he or she wants the marriage dissolved, and that is it. The noble Baroness, Lady Young, put, with great passion and conviction, the case against the abolition of fault. I found what she said thoroughly persuasive.

I am concerned, too, about the position of what one is still just allowed to call the innocent party. There will not be any innocent parties if the Bill goes through because no one will be to blame. But we all know that there are many cases in which one partner or other behaves badly or goes off with someone else and the other party who has done nothing to deserve it is abandoned.

At the moment—it will be even more the case if the Bill goes through—decisions on the custody of the children and the division of the assets of the partnership may be made in such a way that the innocent party feels a sense of gross injustice. For example, if a woman goes off with another man, leaving her husband, and if she is then allotted the home, or half of it, and custody of the children, he will feel that that is grossly unjust because she has been at fault and he has not. I realise that there are many cases in which no one party is to blame, but there are many others known to us all in which quite obviously one partner is principally to blame. It seems to me that that should affect decisions about the custody of the children and the matrimonial home.

Therefore, I would hike to support very strongly what the noble Baroness has said. It seems to me that this matter is one of the central pillars of the Bill. I find the proposition wholly inconsistent with the objectives contained in the first amendment moved by the noble Lord, Lord Stallard, which, as I understood it, were welcomed by the noble and learned Lord the Lord Chancellor. I cannot see that, if those are the objectives which, I believe, we all agree on, reducing the process of divorce simply to having it on demand is consistent with them.

Baroness Elles

I support very strongly what my noble friend Lady Young has said about the disturbance caused by the kind of message that goes out from this House. It is extremely valuable that we are able to have this broad discussion on this series of amendments so that we might at some stage of the Bill find a point at which we can meet. So far I have. not come across any point which has been raised by my noble friend Lady Young and, if I may call them, her supporters and our Front Bench and those who support the Bill, which has been met.

My noble friend Lord Elton asked what would happen if someone did not want to attack his or her partner for fault, but wanted to have a divorce. At the moment they can have it after two years' separation and consent and there is no problem about that at all. What concerns me specifically is the amendment of my noble friend Lady Young as regards Clause 4(I)(a) where all that one needs is a statement by one or both of the parties that the maker of the statement believes that the marriage has broken down. How does one prove what the word "believes" means in that particular case? How does that show that this House supports the institution of marriage unless one is thinking of consecutive or serial polygamy? It is no support for marriage to think that someone can go along and make a statement saying, "I believe that the marriage has irretrievably broken down. We now have one year in which possibly to mediate or not, because it is voluntary. We have one year in which to discuss the problems such as the children, financial support, property and so on". They are all lumped together in a rather indigestible mess. In that situation one expects the poor woman or man who is left at home to agree within the year.

I wonder if anyone in this House really knows how people live in their homes. Can one believe that for one year they are going to sit at the kitchen table with a cup of tea wondering how they are going to reflect and consider their future at the end of one year of marriage? It is totally unrealistic. I simply do not see how people living in the real world can go through this appalling performance, with the person who has just left or who possibly is still living in the house or the flat, saying, "By the way, last week I signed a statement to say that I thought that our marriage had broken down". The other spouse is left sitting there reflecting and considering what the hell they are going to do in order to get out of it because they want to carry on with the marriage and the home. They want to keep the children at home and lead a decent marital life.

I do not know what the right solution is to this problem. But I am absolutely convinced that the clauses in this Bill that we have discussed so far are totally unrealistic. They do not support the institution of marriage in the way that I regard marriage and, as, I believe, many of my noble friends do. If we do not accept the amendment of my noble friend Lady Young I very much hope that my noble and learned friend the Lord Chancellor will consider discussing with us suitable amendments, which will support the kinds of ideas that a vast number of people in this House believe in.

Lord Stoddart of Swindon

I spoke earlier, and other people have certainly agreed, about sending wrong messages from this House, from Parliament and indeed from the Church. We have to he very careful about the messages we send out. Let us think of the message that we are sending out to people who are about to be married. They want to consider it very seriously. They recognise it as a big step. At the moment, of course, because of the pain and the blame, they realise that to get out of the marriage may be rather difficult. What we are now saying to them is, "Go ahead; get married. Do not give it another thought because after a year, if you do not like it, you can do exactly what you like. It does not matter about the other partner or the person whom you promised to love, honour and obey. After a year you will simply be able to go to court and give notice that in your view the marriage has irretrievably broken down".

Is that really the message that we want to send out? Quite frankly, I would not have thought so because I believe that the married family is the building block and the rock of our society. Members of the Committee may think that strange coming from this side of the Chamber. I hope that many of my other colleagues believe that, but some of their speeches do not seem to indicate it. I believe that very much indeed and that is why I am concerned that we do the right thing in this Bill and that we do not send the wrong messages to people, particularly the young.

The right reverend Prelate the Bishop of Oxford mentioned pain, blame and shame again. He said that we see it in our present marriages. Yes, we do, and often people are deterred from going off, perhaps on a whim, and deciding to get divorced because they have society to answer to. That very often saves a marriage and we ought to be concerned with saving marriages. If we make people think not once, but twice and many more times about going in for divorce and for actions which might lead to divorce, I believe that we shall be doing people generally and the nation a great deal of good.

As the noble Lord, Lord Moran, asked, what about the person who does not want to get divorced? Marriage is not some sort of hire purchase agreement; it is a contract of love and respect between people. Therefore, there are two people to be considered and not just one. In anything that we do we cannot just allow the person who believes that the marriage has irretrievably broken down to have the first word, the last word and every word about it. We have to take these matters into consideration and that is why I believe that the amendments tabled by the noble Baroness, Lady Young, are essential to this Bill. I sincerely hope that in due course we can come to some accommodation to see that the concerns which she and other people have are addressed.

9 p.m.

Baroness Platt of Writtle

In the media this Bill is referred to as the "No Fault Divorce Bill". To me, that seems a total contradiction in terms. In both party's minds there will be a catalogue of faults by the other partner. Very often—but not always—a divorce is a result of faults on both sides. As has been said this evening, sometimes more blame rests with one side than the other. It seems to me that what is being talked about in this Bill is the non-allocation of blame on either side. That may help mediation in the making of proper arrangements for the future of those involved. What worries me is the message going out from this Committee to those entering marriage who can now feel, "It won't be my fault if it fails". Therefore, I support the amendment which continues to recognise the concept of fault on one or both sides.

Like my noble friend Lady Young, I am concerned about the stability of marriage, the welfare pf a partner who above all desires the continuation of the marriage and seeks reconciliation, and the continuing welfare of the children which, to my mind, depends on the involvement of both parents. I hope that my noble and learned friend will be able to accept either this amendment or one like it, as my noble friend suggests, and perhaps stick to the present five-year period apart where we are talking of a unilateral situation. I therefore support my noble friend strongly.

The Earl of Onslow

Brighton, Reno, the Life Guards and Edith Summerskill. When the 1969 Bill came about, there was not going to be any attribution of blame until the intervention of the late Edith Summerskill who, as noble Lords will remember, was a seriously formidable lady. Her only rival in modern times is the noble and blessed Baroness, Lady Seear. I mean that as a compliment. Edith Summerskill said that if we did not allow the addition of adultery as a ground for divorce, that Bill would be a Lothario's charter. So an element of blame crept into the present divorce law which we all agree is unsatisfactory.

Brighton used to be the place to which people went to sit in rather uncomfortable hotel suites with a rather squalid woman so that somebody could come in with a camera and take a photograph. That was regarded as adultery. It was collusion, but it was called a divorce by consent until Parliament perfectly rightly realised that it was a very silly way to behave.

In Reno, whether you liked it or not, after three weeks' residence you could get a divorce. That is how my mother-in-law got a divorce from my father-in-law. That was divorce by consent. They had grown apart. The marriage just went wrong.

I do not know that we shall get anywhere by allowing "fault" in the law. We shall not make any more marriages stick together. Like my noble friend Lady Young, I am extremely happily married. How 'er indoors has put up with me for all these long years, I do not have the faintest idea but, bless her cotton socks, she has. In a way, therefore, it is easy for me to take this view.

Perhaps I may further suggest my Life Guards story to your Lordships. It is very similar to a story told by my noble friend Lady Young. The son of a friend of mine was a serving officer. He came back from manoeuvres to find a note on the table saying, "I'm leaving and I've taken my child with me". The child was aged nine months and they had been married for 15 months. There is no doubt at all that the lady concerned—the use of the word "lady" may be a mistake—was not a very nice lady, but we cannot legislate for the variety of fault. Mary Kenny put this point in a very good article in which she said that this Bill will allow a 50 year-old man to run off with a dolly bird; or a lady who suddenly decides to do a women's studies course at York to run off with a waitress. That is because no concept of fault is involved.

However, the vast majority of marriages do not break up in that way. I read of a case recently in the newspapers. A lady—again, perhaps that is not necessarily the right word—left her husband and ran off with somebody else simply because she was driven mad by him blowing his nose on linen handkerchiefs. She could not stand the snot in the laundry basket in the morning and was finally pushed into committing adultery. That is what happens with human beings.

My noble and learned friend on the Front Bench is trying to say that, human nature being what it is, marriage split-ups and divorce are inevitable and that what we must try to do is to make divorce harder—I genuinely think that he is doing that—and then, if divorce has to happen, to make it not easier but less painful. That seems to me to be a thoroughly civilised approach.

The Norman Church was prayed in aid by the noble and learned Lord, Lord Simon of Glaisdale. It had ecclesiastical laws on divorce which were eventually found to be bad. The Roman Church has some very odd laws on divorce and the Papacy has been up to some serious chicanery on the subject. We then had divorce by Parliament. I believe that there were 100 or so in about 100 years. Then we had the divorce legislation of 1869 which proved to be very unfair to women, so A.P. Herbert introduced a divorce law which produced the Brighton syndrome. We then had the 1969 divorce law which produced the Edith Summerskill syndrome.

This is a horrid subject. Marriage break-up is horrid, but I genuinely believe that my noble and learned friend is trying to make the law more humane and more civilised. He is not saying that marriage is a bad thing. To pretend that my noble and learned friend the Lord Chancellor with his high moral background will send out the message that marriage is a silly thing is beyond comprehension. What I think my noble and learned friend is trying to do, and I fully support him in this, is to make divorce harder but to make it less painful when it happens. That seems to be the hallmark of a civilised society.

Baroness Faithfull

I must pay tribute to the noble Baroness for her brilliant speech, but I have to say that I do not agree with it. I support my noble and learned friend the Lord Chancellor. I do not believe that divorce is helped by having a fault clause.

First, no one can say what goes on between two people in their homes—in their bedroom, in their drawing room and in their social life. No one can know what is the fault. The fault is often attributed to the wrong person. I had a strange experience when a man looking terribly unhappy came into the office. I said, "What's up'?" He said, "I had a terrible fight over breakfast with my wife. I don't know whose fault it was, but somehow it seemed to blow up". The telephone went and he went even whiter. He said, "I must go home. My child has been knocked over by a car, and is very ill". He rushed home. He returned to the office in the afternoon. I said, "Well, what happened?" He had arrived home to find the child cycling happily around the streets. He asked what had happened. The wife said, "You were so beastly to me today that I thought that I would give you a fright". He could not bear it, and that night he slept away from home. Things went from bad to worse. None of us can ever say where the fault lies, ad it would be presumptuous of us to do so.

Secondly, the cruelty caused to children by an adversarial divorce is appalling. A child came to my office one day with tears streaming down his face. I said, "Robert, what is the matter?" He said, "They say my dad is a cad. I love my dad, and he is not a cad". What had happened? The husband had left the wife, temporarily as it turned out. It could be said that it was his fault, but who is to know whether it was his fault.

I look at the future. I take the point made by my noble friend Lord Onslow. First, we cannot judge whose fault it is; and, secondly, we have to look at the present and the future. If there is an adversarial system where the wife has her solicitor and the husband has his solicitor in court, and neither will give way, nothing will give way until they battle and fight it out. There is then acrimony and aggro between them. 'There will be no hope of ever helping that couple to come together. That is sad.

Divorce is wrong for children. Equally, many children suffer if they are in a home where there is battling going on all the time. What one has to do if the divorce is going through, and I have had to do it on many occasions, is to make it as easy as possible for the children. If parents go for mediation and can talk about the matter in a non-adversarial way, and a non-battling way, and not in a "I am going to win and you can jolly well go down" way, then it will be possible for the child to have a relationship with both the mother and the father in the future.

If we have the adversarial court system, children pick it up. With the access arrangements after the divorce, one or either, or both parents, lets the children go to the other parent with a great deal of animosity and anger. Also, human nature being what it is, one parent puts the child against the other parent. If a divorce goes through in a seemly, dignified, and, as my noble friend Lord Onslow said, a civilised way, there is more hope of the children having a good relationship with both mother and father in the years ahead.

I understand the point made by my noble friend Lady Young, that we may be sending out the wrong message. Are we sending out the wrong message? The divorce will take place anyway. We should surely see to it that the children do not suffer arid that there is no animosity. If one is talking about the Church, and I belong to the Church of England, there is such a thing as forgiveness.

Lord Phillimore

Perhaps I may add a few observations as a practising barrister, practising in the field of family law like the noble Lord, Lord Meston. In the context of the Bill it is important to remember, first, that it is a divorce reform Bill and, secondly, the reality of the law and practice at present. As has already been observed, 75 per cent. of divorces are based on behaviour.

The statistic of 32 per cent. was referred to but perhaps that does not reflect the practice that the decree absolute is often delayed until after completion of the financial relief proceedings. Be that as it may, the vast majority of divorces are on the basis of behaviour and adultery. Only a handful of defended divorces take place and very few of those are successfully defended. It is a sterile exercise. As was said by my noble friend Lady Faithfull, it is a traumatic experience for the children.

The present existence of fault in the law does not make it more difficult in practice to obtain a divorce. It exists on paper but in practice it serves little effect to restrain a divorce. As the noble Lord, Lord Irvine of Lairg, said at the beginning of the debate, given a fair wind an undefended divorce can take place within three to four months. The fact that it does not is because the decree absolute is often delayed, as I said earlier.

Therefore, the fault serves only to Increase bitterness and acrimony. I understand that the purpose of the Bill is to reduce that and to make the position easier in particular for the benefit of the children and therefore of society as a whole. In addition, the purpose of the Bill is to give time for reflection. That may save some divorces but it is putting the matter upside down to suggest that a divorce reform Bill could possibly improve the chances of marriages being saved, other than in some cases.

Another consequence of a defended divorce under the present law is the increased expense to the considerable detriment of the family and children. I suggest that the message of the Bill is to give an opportunity for reflection, a greater ease of resolution of all the difficulties which couples face on divorce, which may lead to some marriages being saved, and, above all, less trauma for the children.

9.15 p.m.

Lord Irvine of Lairg

When I listened to the noble Baroness, Lady Young, on her strictures on the clever, I was reminded of the late distinguished Iain Macleod, who is remembered by Members in all parts of the Chamber and Parliament. The most severe criticism that could be made of him was that he was too clever by half. As I understood the noble Baroness, that was directed at the noble and learned Lord in putting forward a Bill to which she can find no good answers but she doubts is right. I accept that there is in this area no perfect system. One must look to do the best that one can in an imperfect world. It would be nice if everyone took correct decisions and prevented bad things happening, but that is not the way of the world.

I found a central difficulty in following the noble Baroness when she maintained that divorce should be exclusively fault-based. I found the contribution of the right reverend Prelate the Bishop of Oxford compelling. Does that mean that there is to be a right to divorce for fault, for adultery, for unreasonable behaviour, regardless of whether there has been irretrievable breakdown? Does that mean that if fault is established there is a right to a divorce without any need for a year's reflection and consideration without any need for mediation? The noble Lord, Lord Ashbourne, said, "No fault, no divorce". I ask, to what sensible purpose if the marriage has truly broken down?

I can express myself on this important issue very briefly. When a marriage breaks down, the courts should recognise that fact and deal with the consequences in a way which minimises acrimony in the interests of the parties and of any children. It can make no sense at all to compel parties to remain married if the marriage is dead because, first, that cannot be done in a free society. The disgruntled partner will simply up and leave, start a new relationship and have more children who are innocent and just as entitled to be brought up by married parents as are the children of the first marriage.

Even if people who are determined to part could be compelled to remain together—in fact, it is not possible—it would harm the children because they would be brought up in a loveless home and be denied the advantage of any happy parent. I daresay that I could agree with the right reverend Prelate the Bishop of Oxford who said that there are some cases where, no doubt, it could be demonstrated that fault is all one way, but I should have thought that that would be a very rare case. I believe fault to be a very clumsy instrument with which to dissect a failed marriage. It must be in the rarest case that the breakdown is the exclusive responsibility of one party.

Let us take, for example, adultery. The wife refuses sexual intercourse and the husband goes elsewhere. I am not sanctioning adultery. But can it be said that the husband is exclusively to blame? Further, let us take violence. The husband hits the wife. I do not sanction violence, but the husband does so because the wife who is more articulate taunts and humiliates him. No one is exclusively to blame.

I was much impressed by the points made by the noble Baroness, Lady Faithfull. A fault-based system leads to protracted litigation. It is the adversarial system which, apart from being expensive in terms of public funds and in court time, will also increase acrimony to the detriment of the children. The children may feel compelled to take one side or the other. I could not agree more with the noble Baroness, Lady Faithfull, that to eliminate a fault-based system of divorce would lead to a much better prospect of the children at the end of the day having a good relationship with both parents.

If divorce is made more difficult, the consequences will be that the rate of illegitimacy will rise. In my view—and, I believe, in the view of the overwhelming majority of my colleagues—the Bill, on the whole, subject to some improvements that can be made to it by way of amendment, gets the balance right.

Lord Meston

I agree with everything just said by the noble Lord, Lord Irvine. Members of the Committee should think long and hard before introducing fault into the Bill. Perhaps those who should think most about it are those who were inclined to support the first amendment moved today by the noble Lord, Lord Stallard, which sought to introduce into the Bill a provision, to minimise the bitterness and hostility between the parties and reduce the trauma for the children". There is no doubt that, in practice, allegations of fault at the time of divorce can and do raise the temperature between the estranged couple and inevitably make the prospects of reconciliation, and of their future co-operation, that much more difficult and unlikely. It seems to me that the Bill has the great merit of removing that particular source of heat, replacing it with sources of light—harsh light under which the parties are required to face the realities of what they are doing and what they may face in the future.

I understand and respect the arguments put forward by the noble Baroness, Lady Young, although I do not agree with them. Under the existing law, three of the five factual bases upon which a divorce can be granted are dependent upon allegations of fault. The existing law teaches us what those who support the noble Baroness must consider; namely, that there are problems of proof. For example, how in practice does one prove fault?

I am a nuts and bolts lawyer like the noble Lord, Lord Phillimore. We see divorce cases day in, day out and the vast majority of those are undefended divorces, as indeed will be divorces under the present Bill before the Committee. They will depend upon documentary proof. Under the existing system that involves a petition supported later by an affidavit by the petitioner confirming the allegations made. As the Law Commission accurately stated, the system still allows, even encourages the parties to lie, or at least to exaggerate in order to get what they want. The bogus adultery cases of the past may have all but disappeared but their modern equivalents are the flimsy behaviour petition, or the pretence that the parties have been living apart for a full two years.

In considering whether it is desirable to continue to have fault-based grounds for divorce, the Committee must consider whether., and if so how, the defects of the existing system can be improved. I suggest it is highly unlikely that better ways of establishing fault to the true satisfaction of a court can be devolved except at great expense. As the noble Lords, Lord Phillimore and Lord Irvine of Lairg, said, if the law is to continue to allow allegations of fault to be made, in fairness the law has to allow allegations of fault to be disputed and to be defended in court at the expense of the parties or at the expense of the taxpayer, and, as the noble Lord, Lord Phillimore, and the noble Baroness, Lady Faithfull, said, to the detriment of the parties' funds and to the detriment of their children.

One other matter perhaps needs to be emphasised and it arises out of a point made by the noble Lord, Lord Moran. In removing fault as a basis of divorce one is not removing the possibility of introducing allegations of misconduct as relevant consideration when the finances come to be considered. As the noble and learned Lord the Lord Chancellor stated at an earlier stage in our debate this afternoon, the Bill does not disturb the existing guidelines in the Matrimonial Causes Act for consideration of financial matters. One of those guidelines involves consideration by the court of conduct by one of the parties if it is inequitable to disregard it. In practice of course it is only in fairly extreme cases that conduct is considered relevant in financial matters. It is difficult for the court to quantify misconduct. For that perfectly sensible and pragmatic reason, in the vast majority of cases the court does not attempt to do so. I repeat that the Committee should think hard about the practical consequences of introducing fault into the Bill as it is presently framed.

Lord Simon of Glaisdale

At the risk of egotism I am impelled to intervene to give my testimony as a matrimonial judge for 11 years that it is simply untrue to say that in every case, or even in a significant number of cases, it is six of one or half a dozen of the other. There were a number of cases where one felt that, but it was a great minority of cases. That is not only my own testimony; it was the testimony of David Morris in the book from which if cited earlier, borne out by my noble and learned friend Lord Hailsham.

It would be adding cruelty to injustice if when a woman is cast away and unilaterally repudiated one was to say that it must be partly her own fault. That would be a monstrous cruelty.

The noble Lord, Lord Meston, has just asked how one proves fault. The answer is that it has been proved for 1,100 years in the matrimonial courts. It is still proved in the Church courts, which still take cognisance of the misdemeanours and faults of the clergy. No doubt in the forum internum the sin is lust, but in the courts what is investigated is incontinence. There was a case of that only last year. The Church does not say that the ministry has irretrievably broken down, still less does it allow for the parochial church council to file a notice in the diocesan office saying that in its view the ministry has irretrievably broken down. As it has always done, the court investigates fault. That is the role of the law generally in social control and social influence. If one deprives the law of that, one demoralises the law.

Listening to the optimistic speeches of the noble Baroness, Lady Faithfull, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Irvine of Lairg, as to the result of this Bill, those of us who lived through the 1969 Bill must have had memories startlingly evoked. There was the same crass optimism, the same foolish hope, that all would be better. It was called a "kiss and make-up" Bill. Yet the first effect was that divorces increased by 44 per cent., and the number of children affected therefore also increased by 44 per cent. However, that was not temporary. The number of divorces continued to increase, until today there are two and a half times as many divorces and two and a half times as many children are affected as before 1969.

I cannot hear what the noble Lord says, but of course I shall give way to him.

Lord Elton

I shall wait for the noble and learned Lord to put the instrument to his ear. I wondered whether he would show how the effect he describes was propter hoc and not post hoc.

Lord Simon of Glaisdale

All I can do is look at the figures and ask what happened in 1970 to cause a 44 per cent. increase. If there had been a gradual upturn the intervention of the noble Lord, Lord Elton, would be justified. However, there was a sudden jump, and the increase was maintained. The only sensible course is to ask what happened that was likely to cause the 44 per cent. increase. It is unlikely to have been only a fortuitous result of the passing of the 1969 Act.

The Earl of Onslow

Will my noble and learned friend give way briefly? Does he suggest that if we went back to the 1935 divorce legislation, the numbers of divorces would fall to what they were in 1969? And would human happiness be consequently increased in any way whatsoever?

Lord Simon of Glaisdale

As I feared, I did not hear what the noble Earl said. However, as I respect what he says in general, I shall certainly read his comment tomorrow. If it calls for a letter, I shall write to him.

We would be very foolish if we were again to repeat the optimism that was expressed in 1969. Is this a kiss and make up Bill? Is this a kiss and break up Bill? That seems to be the best that can be hoped for: that the break up will be less acrimonious.

The noble Lord, Lord Meston, did not explain why allegations of fault at the stage of mediation, and investigation of property rights, financial rights, and sometimes custody, were in any way less damaging to the children than allegations of fault at the time of the divorce. Of course they are equally damaging if they are going to be damaging.

I do not want to trespass on my next amendment, but parents can quarrel in front of their children, and quarrel damagingly. On the other hand, they can be solicitous, for all their differences, as regards the effect upon the children.

There is abundant evidence that it is the break up of the marriage, the separation, which causes the damage. In a moving speech at Second Reading, the noble Baroness, Lady Young, referred to that research. It is no use our saying, "We shall make things easier for the children". We may make it easier in certain cases, but every time there is a surge in divorce more children will be at risk.

Baroness Seear

With all respect to the noble and learned Lord, Lord Simon of Glaisdale, we cannot let him get away with the argument that the increase in divorce is necessarily the result of previous divorce legislation. After all, until relatively recently women had no means of earning a living if their marriage broke up. I wonder how much the increase in divorce is a result of the fact that women now have a degree of economic independence. I wonder also how many marriages broke before but they did not break to the outside world because the woman had no option as to what to do if she left the home.

Some noble Lords may remember Herbert Baker; I believe that he was a judge of the Family Division. He said that it was not just enough to know who threw the rice pudding; one had to know how the rice pudding was cooked.

Finally, we must be careful regarding the use of the language that we use. Some words have implications which can lead to quite wrong conclusions. We talk about the contract of marriage. Of course there are legal elements to that contract. But one thing that you cannot contract to do is to supply an acceptable amount of love. Therefore, to use the word "contract" in connection with a relationship of which the whole heart and centre is love seems to me a most misleading use of language.

Baroness Park of Monmouth

I wish to make two separate points. Although I greatly respect the conviction of the noble Baroness, Lady Young, and all who support her, I was the chairman of the Legal Aid Advisory Committee for six years. At that time people were beginning to look again at the whole problem of divorce. An idea gradually emerged and it seems to me that we cannot just write if off as an interesting technical idea. It was that there had to be a period of thought, with mediation not just conciliation. Many people do not want to be conciliated but they need to be required to accept the opportunity to sit and think about the consequences that would follow from divorce. We ought not to disregard the immense variety of support for that from scientific research and from the experience of conciliation groups and practitioners. It would be wrong to ignore that.

My other relevant experience is that, as head of an Oxford college, sadly I had to see the effects of divorce on undergraduates. I therefore understand clearly how terrible it is. However, I still feel that the Bill is making a positive effort to enable people to look at the facts, consider what the consequences will be and take time. The difference between arguing privately in the mediation process and sorting it out and being adversarial in court is great. In the court you are in public, you are committing yourself and taking stands that become set in stone.

When we worry about the message that we send to the country, we should be worrying about what the Bill will do. It seems to me that there is everything to be said for trying to give people a chance to stop and think clearly. The noble Lord, Lord Irvine of Lairg, used the comparison about creating light rather than heat. Therefore, on those two counts, I strongly support the Bill.

Earl Russell

The noble and learned Lord, Lord Simon, and I have many times appeared on the same side of an argument with great pleasure, and, I hope, with great profit. I am sorry that on this occasion we appear on opposite sides but I am sure that the noble and learned Lord will understand that there is a certain built-in paradox in the notion of a pair of individualists. However, that is what we are and we have always recognised it.

My noble friend Lady Seear saved me a little time by making the first point I had wished to make. It is vital. We do not want to preserve marriage by turning it into a prison. The economic independence of women is a fact and we must all welcome it. But we must recognise that it has consequences.

The noble Baroness, Lady Young, said in her speech a long time ago now that she did not understand why we were sitting here at all, if the law did not influence behaviour. Of course the law influences behaviour, but it influences rational behaviour a great deal more than irrational behaviour. Love—thank God!—is irrational behaviour. It would not be nearly so tough under pressure if it were not. As the story of Romeo and Juliet and hundreds of others illustrate, love is an area in which people are rather counter-suggestible. It is more difficult to influence them through the law than it is in some other fields.

I am sorry that the noble Lord, Lord Habgood, who spoke so well on the subject at Second Reading, is unable to he here. He argued first the difficulty of identifying the fault. Clearly, normally there is fault. The fault may be in having made the marriage in the first place or it may be in something that we shall never discover. No one knows everything that passes between a married couple in private. Very often the worst and cruellest faults in marriage can lie in inaction rather than action.

Perhaps I may be forgiven a reminiscence. I have not forgotten an incident when I had been married a couple of months. We had been out to dinner, and my wife got food poisoning and spent most of the rest of the evening being violently sick. It somehow turned me over inside to find how pathetically grateful she was that I was not repelled by that experience. Had I been repelled, I think that that would have been a fault capable of contributing to the first stages of a rot that dissolves a marriage. However, I do not think that any court in the land could ever have pinned that down to me. I should have made a perfectly rational, reasonable sounding defence and I do not know whether anybody would have penetrated it. But I think I should have known at bottom that I was wrong.

It is suggested that somebody who has been abandoned is insulted by being told: "It must have been partly your fault." Nobody is proposing to tell anybody that it must have been anybody's fault. In the end, my first position is that, although I believe there is fault there, we cannot know where the fault lies.

My second point is that the fault, if we can find it, may not be anything that is a matrimonial offence at all. I take one actual incident. A person was driving up to a traffic light on an uphill slope and did not see until much too late that it was red, so he ran into the back of the car in front and did a good deal of damage. Being a quick thinker and unscrupulous, he leapt out of the car, ran up to the driver of the car in front and said, "You mustn't let your car slip downhill at a traffic light." The wife of the man in front said, "How often must I tell you not to do that, dear?" That, in my book, was a fault. It was a withdrawal of trust such as might put a rot inside a marriage. But it would not be regarded, in any classification I can imagine, as a matrimonial offence.

The noble Baroness, Lady Young, dwelt on the tragedy of the older woman dumped for a dolly bird. It is a tragedy. I think none of us would maintain otherwise. What I do not understand is how that woman is one wit better off for the preservation of a legal shell of a marriage in which her husband will not live again. I do not understand what she gets out of it.

The noble Lord, Lord Ashbourne, was also much concerned at the notion that a marriage could break up because of the withdrawal of the commitment of one partner. I should like to ask realistically as distinct from legally: has it ever been otherwise? In the 17th century, when a husband got tired of his wife, he used to say that he had gone to New England. I am not at all convinced that all of those men had gone to New England. Indeed, some of them were later proved not to have gone to New England. I cannot see what useful purpose is served by legally preserving the fiction that there is a marriage when there is no relationship between the parties.

Also, if we are to have fault, I do not understand why this group of amendments confines itself to adultery. Why not cruelty? That is a very much more obvious fault and often a great deal easier to prove? And that is important.

I first learnt about fault-based divorce when I was a child of divorcing parents at the age of 11. As the noble Baroness, Lady Faithfull, said, it was an intensely painful experience. But what was painful was the matrimonial breakdown, not the divorce. The divorce, when it ultimately came, represented a considerable diminution of the pain which had been experienced while the conflict was in progress.

What was beyond my comprehension at the age of 11 was the notion of punishment inherent in fault. In a divorce based on desertion, it was essential for the deserted party to pretend that he (or she) wanted the other party to return. If one party did not want the other to come back, there could be no divorce. So if both parties wanted a divorce, they could not have one. If both parties wanted to be apart, they lad, in law, to be together. I could not get my childish mind around that. My adult mind cannot do any better.

I must apologise to my noble friend Lord Meston in that I was even more horrified when I discovered the existence of the office of—as it was then—King's proctor, to which he is now counsel, and found out that it was necessary to go around investigating to see whether one could prove collusion. It was necessary to see whether one could prove that both parties wanted the divorce because, if they both wanted it, they could not have it. It was not a punishment to give the parties a divorce but a punishment to withhold the divorce.

At the beginning, I said that marriage is not a form of imprisonment. I say it again.

The Lord Chancellor

It seems some little time since my noble friend moved her amendment. We have had a fairly wide-ranging debate and it is not for me to go over all the ground that has been covered.

I should like to put some matters to my noble friend about how she anticipates that the system that she proposes will work. I understand from Amendment No. 4 that the process is to be initiated by whoever is initiating the process, the wife or the husband, already committing themselves to the view that the behaviour of one or both parties is destructive of their marriage and that they are irreconcilable. That seems to be taken a little further with Amendment No. 18 to Clause 4.

There is then Amendment No. 23 which inserts into Clause 4 a new subsection (1A). The requirements there proposed are that: (a) the other party ('the respondent') has committed adultery and the petitioner finds it intolerable to live with the respondent"— that has to be proved at the end of some period—and, (b) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent: or (c) the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the statement. That last paragraph (c) is not based on conduct of any kind except a separation. So that is not a proposal for a fault-based divorce. A mixed proposal is being put forward.

My noble friend said that she agreed with the abolition of the "quickie divorce". I do not feel that "quickie divorce" is a precise term of art. What I mean by "quickie divorce" is a divorce which proceeds more quickly than it would if it were based other than on fault. I am not clear what my noble friend is proposing in that connection. If the system proposed in the three amendments is to operate, the result will be that one can obtain a divorce more quickly by reference to fault than one can without it. That is the essential of the quickie divorce.

I shall answer the questions raised by my noble friend Lord Ashbourne in a moment. The essential point that makes it more difficult to say that fault in some way supports marriage is if one has a divorce that operates more quickly where there is fault and gives the benefit of the right to remarry to the so-called guilty party more quickly than would happen in the event of there being no fault. I do not understand—no doubt somebody will explain to me—how that helps in showing that fault is something blameworthy.

Next I want to turn to what fault is. My noble and learned friend Lord Simon of Glaisdale spoke of 1,100 years of justiciability of fault in the ecclesiastical and civil courts. But conduct has enlarged somewhat over that 1,100 years; it did not stand still. My experience, which is now becoming somewhat outdated but nevertheless is very much in my mind, is that it was much easier to make allegations of unreasonable conduct in recent times than it was to make allegations of cruelty in times past. Those who practise in the present day in this area of the law recognise, as I have seen recognised in articles, that the present fault law, including as it does unreasonable conduct, is a way of permitting the obtaining of divorce by consent in less than two years.

Some people will say, and I have read articles stating it, that hypocrisy of that kind must be accommodated. I may be wrong, but I do not believe that hypocrisy in legislation and the way it operates is a good message for young people. The law should be straightforward in this area and as clear and consistent as possible.

Much has been said about the increase in the number of divorces over the years since 1969. If one looks, one will find that the increase in the number of fault-based divorces has been at least as great as other based divorces. There is no evidence in the figures—I am subject to correction by anyone who is able to bring it forward—that relying on fault is in some way a restraining factor on the incidence of-divorce.

I shall now face the challenge put before me by the noble Lord, Lord Moran, to test the amendment by reference to the opening amendment moved by the noble Lord, Lord Stallard. Before I do so, perhaps I can give the figures in relation to quickie divorces. The figures for 1993, which I have had analysed, show that around one-third (52,000) take under six months and around 78,000 take between six months and one year. Three-quarters take less than one year. I understand that the median period is six months.

I come to testing the amendments by reference to the first amendment and agree that that is a good way of looking at it. Paragraph (a) states: to support the institution of marriage". The amendments do not have any specific claim to do that. It was made plain, and I entirely support that point of view, that marriage involves a continuing commitment by two parties, the one to the other, based on mutual love and respect. In its very nature it cannot continue to operate as a true marriage except for so long as that commitment continues. The matrimonial vow, as I understand it—I shall be corrected by those who know more about this than I—is essentially to continue that commitment for so long as both live. It is a breach of that commitment by either to discontinue the commitment. But the commitment to marriage essentially must be a joint commitment of two parties. You cannot have a continuing marriage in which one party only retains the commitment. The marriage is then dead. However sad that is, it is a fact. One has to take that point into account. I do not believe for a minute that it supports the institution of marriage to seek to keep in place a marriage which is no longer a marriage.

Paragraph (b) states: to ensure that all practicable steps with a view to preventing the irretrievable breakdown of marriage are taken. One of my fundamental points about the kind of approach that is involved in the amendments of my noble friend Lady Young is that the allegation about the irretrievable breakdown of a marriage or the irreconcilable nature of the conduct of the parties is made at the beginning of the process and therefore the opportunity for steps to be taken at that stage to prevent irretrievable breakdown of the marriage has gone. You have already come to the conclusion, as an essential step for the starting of the procedure, that the marriage has already broken down.

One of the most important aspects of this Bill, and one which I believe is very much a matter of consequence, is the opportunity, even at the late stage when someone is contemplating divorce, of a period, a genuine period—I think a year—of consideration and reflection. You cannot have such a genuine period if the parties are already committed to a situation in which it is said, "This marriage has already irretrievably broken down". I cannot see—I have thought about this once or twice, as the Committee can imagine—how a fault-based divorce system can accommodate that in any realistic sense. If you are already committed to the view that your marriage has broken down there is no point in waiting a year to see whether it has or of having any procedure in place to help you find out.

Paragraph (c) states: to ensure that the parties understand the practical consequences of divorce before taking any irreversible decision". Exactly the same point applies to that. Fault-based divorce requires that you come to a decision before you start that there has been a fault which is destructive of the marriage. So it is a little late to be told about the consequences after that. I agree that by the time someone is thinking about divorce it is already very late. That is what is behind my idea that we must try to give help earlier if we can. But I do not want to despair or to lose hope, even at that stage, where the court is formally involved. You cannot force people to come for help earlier. But if they have to come to court for some kind of order then at least you have an opportunity, which is an important opportunity and should be taken, for reflection to heal the relationship.

Paragraph (d), which is perhaps the most important paragraph of all, states: to minimise the bitterness and hostility between the parties and reduce the trauma for the children". My noble friend Lady Faithfull, with all her experience of these matters, spoke movingly about the effect of divorce on children. Surely—as I explained earlier, this is my motivating reason for bringing this Bill before Parliament—the unnecessary trauma for children in the present system is clear and we should do everything that we possibly can to eliminate it.

I have never suggested, although it has been frequently said that I have—it always makes me wonder if people have to misrepresent one's position in order to knock it down because they are short of arguments for knocking down one's true position—that it is possible to take the pain, shame or blame out of divorce. I do not believe that it is. But what I do believe is that it is possible to avoid introducing unnecessary pain, hostility and trauma into the sad fact of a marriage breakdown. I believe that a system in which one makes allegations, particularly of conduct against the other, is exactly of that character and introduces unnecessary trauma into the situation.

It is for those reasons that I have not found it possible to go down that road. I know and well understand my noble friend Lady Young and her attitude to these matters. I respect her point of view. Indeed, our agreement as regards the first amendment shows that we share the same aims. I should like to know how this system that she proposes will meet the set of requirements that I have suggested.

Baroness Young

We have had a very long debate on this subject. One thing is quite clear. There are very deeply divided but sincerely held opinions about this matter on which we are possibly unlikely to agree. I indicated at the beginning that I was not going to press these amendments. I shall, of course, read very carefully what my noble and learned friend the Lord Chancellor said because he went into great detail. I would like to take the opportunity to study it.

I admire my noble and learned friend's sincerity on this matter. I am quite certain that he believes sincerely that this Bill will in fact make matters better otherwise he would not have brought it before us at all. He said that he cannot understand why I believe that continuing fault will in any way help in divorces. The point is that it is not that I believe that fault in divorce is going to help anything at all, but that the abolition of fault as a principle is going to have a disastrous effect on all sorts of people long before they get married because they will start off from the wrong place. It is that which I believe is so dangerous in society, but nobody has answered that point.

I am sorry to disagree: with the right reverend Prelate the Bishop of Oxford. I disagree profoundly with what, I am sorry to say, is the attitude of the Church. He said that if you have fault you have to have punishment. I was quite interested to hear him say that because normally in this House we do not allow punishment at all. I thought that we believed that that was rather a bad thing in most cases, but I suppose it has now been put up because it is thought that I am not really politically correct. Well, I am not politically correct and I do not pretend to be that, but I do not believe that to be a very good argument. I am not talking about punishment and I have not used that word. I would not want it implied that that is my intention.

I am out to face reality because I believe that is just what this Bill does not do. I have listened very carefully to all the arguments. Indeed, we have a number of lawyers speaking in this debate, but the professional advice is itself contradictory. My noble and learned friend Lord Simon of Glaisdale speaks with his years of experience as a judge and says that it is. possible to deal with the question of fault in divorce, but others seem to think that it is not possible. Lay people in this situation must make up their own minds on the basis of the evidence that they have. I support very much what the noble and learned Lord, Lord Simon of Glaisdale, said on this matter.

I am very sorry to disagree with my noble friend Lady Faithfull, but I do disagree profoundly with what she said—not because I am not deeply concerned about the children of divorces. I am concerned because I have seen too many desperately unhappy children as a result of divorces. However, the question that my noble friend must consider is whether or not there will be more divorces as a result of this Bill and therefore more unhappy children. Of course, I am in support of doing everything that I can to try to help those children—nobody would want otherwise—but the greatest help of all would be to create a framework in which there will be fewer divorces. The real danger is that in this legislation we are creating a world in which there will be more divorces, not fewer.

I realise that there are many faults in the amendments. I do not pretend that they are perfect or that they are the last word. I am quite prepared to take them back and to think again. Amendment No. 4 would permit divorce only on the ground of fault or of behaviour which was destructive of the continuance of the marriage. Amendments Nos. 21 and 23 seek to adapt the present law and to permit divorce where both parties seek it. But where only one party seeks the divorce, the provisions would require one of three possible reasons to be proved: adultery, behaviour or five years' separation. That is a slight variation on what we have now. That amendment needs to be considered with the later amendment to Clause 7 which increases to 18 months the minimum time for all divorces.

If I may say so in support of the amendments, it may well be that both parties to a marriage are at fault or in some way believe themselves to be: incompatible. However, the fact is that in a substantial proportion of cases, the fault lies in the behaviour of one or other of the parties. Indeed, the White Paper acknowledged that at Section 4(4) which stated that the retention of fault received significant support in the consultation process on the Green Paper. So, even those who are experts are clearly divided on this issue.

We have not had an answer to this, but the fact is that the Bill removes all protection for the innocent spouse. As I see it, a husband or wife can simply say that the marriage has irretrievably broken down whether or not the other party wants a divorce. That is where we are. Again, that seems an extraordinarily bad signal to send to young people.

It is late now and I do not intend to go over all the detailed points that have been made. I thank very much all those noble Lords from all parts of the House who have supported me in this series of amendments on fault. It is only right to say that this is not a matter which those of us who feel strongly will allow to drop. I do not intend to press the amendment this evening because if I may say so, using the words of the Bill, perhaps we all need time to "reflect" on what is the right thing to do. I shall certainly reflect on the criticisms that have been made of these amendments and shall consider coming back with different amendments on Report if my noble and learned friend cannot produce amendments that he would find acceptable.

It would be quite wrong at this stage to allow in this legislation on the abolition of fault the pretence that it will make no difference. As we gradually sap and undermine individual responsibility, we do not help young people entering marriage. We do not help marriages which both parties are struggling to make work or where one partner is struggling to make the marriage work in great difficulties. We would simply be encouraging everybody to give up far too easily. I do not think that that is a signal that we should send out at this stage and that is why I stand by the whole question of fault. As I have said, I do not intend to press the amendment, so I beg leave to withdraw it.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Meston moved Amendment No. 5:

Page 2, line 1, at end insert ("or, in the case of an application for a separation order, the marriage has broken down").

The noble Lord said: I spoke, in part at least, to the amendment at an earlier stage in connection with Amendment No. 2. The purpose of the amendment is to examine why the Bill seeks to assimilate the ground for a divorce order and the ground for a separation order. As I mentioned at an earlier stage, under the existing law it is not necessary to allege or to establish that a marriage has broken down irretrievably if the party concerned seeks only a judicial separation.

The Law Commission suggested that the two forms of relief should now be integrated. That is the one part of the Law Commission report which I find somewhat unconvincing. A separation order is a concept distinct from a divorce order, and it is questionable whether it is necessary or desirable to integrate them as the Bill seeks to do. A large number of people prefer, for personal reasons, to have a separation order. They find it easier, less painful, and sufficient for their requirements. It is therefore unnecessary for them to have to prove now, under the Bill, that the marriage has broken down irretrievably. It should be sufficient to prove that the marriage has broken down. After due formality, they should be enabled to regulate their affairs, or to invite the court to regulate their affairs, as the law presently allows. I beg to move.

The Lord Chancellor

I wish to indicate in answer to the noble Lord, Lord Meston, that in this area the Bill is founded, as he recognised, on the Law Commission's proposal. The possibility of having a distinct basis for separation exists in logic. If all he wants to have is that the marriage has broken down, we would need to know more about the conditions under which that would be thought to be established.

One of the reasons for doing what we have done is to make the basis upon which the orders are made as simple, as clear, and as capable of going out to people as a message as is possible. At the moment at least, I feel that what we have in the Bill is the best solution to that problem. The question that the Law Commission considered more fully is whether we need a separation order at all. For reasons that we have gone into already, I believe that it is desirable to have a separate separation order. It is not necessary to specify further what it does than what is said in the Bill.

If the noble Lord considers that some better function would be served by a separation order distinct from the divorce order in its ground, then I should be glad to know what that would be. It would have the consequence that one could not readily transfer from the separation order to the divorce order without in some way doing some more work to bring one into the ground for the divorce order, I assume.

When talking about a separation order earlier, I may have spoken about the possibility of obtaining one in one year after the marriage. If I said that, it was not what I intended. I intended to say that it was possible to apply for an order within one year. It was not subject to the bar, as is an application for a divorce order. Under this Bill, one cannot obtain the order in less than a year because it takes a year to obtain it. I meant to say that the application can be made. If I did not say that I am sorry, and I take this opportunity to correct the point.

The essential point is that we desire to have one. We desire to make it possible to move from a separation order to a divorce order if the circumstances seem to the parties to make that desirable. If we are to distinguish between the two on grounds we need to know the ground that the noble Lord wishes to suggest for the separation order.

Lord Meston

I am grateful for the response of the noble and learned Lord. The ground that I am proposing is that set out in the amendment; namely, in the case of an application for a separation order, that the marriage has broken down as distinct from the need to prove that the marriage has broken down irretrievably.

I must accept that it is a finely balanced argument. As the Bill recognises, it is desirable that there should be a distinct separation order and I am glad that the Law Commission recommended that, having considered the matter carefully. As I have indicated, it is the position under the existing law that a separation order should not he so difficult to obtain. For that reason I question, and have questioned in the amendment, why it now becomes necessary to prove the irretrievable breakdown of the marriage. It is not a matter on which I wish to detain the Committee at this late hour but I may wish to return to it at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 6:

Page 2, line 1, at end insert—

("( ) in the case of a divorce order, there is no child of the family under the age of sixteen;").

The noble and learned Lord said: If Members of the Committee wish it, I am prepared to move this amendment, which is linked with five others. Amendment No. 4 took almost two hours to debate. Amendment No. 6 raises a very important question relating to the welfare of the children of a potentially broken marriage. It makes three proposals alternatively which were not before the Royal Commission on marriage and divorce and, so far as I know, have not been discussed in public since then.

It is now twenty minutes past ten and the Committee has been sitting since three o'clock. Your Lordships are an elderly and unsalaried Chamber which now habitually sits longer hours than the other place whose Members are younger and salaried. If the Committee thinks it fit to embark on the important and controversial questions which arise from this amendment I am reluctantly in the Committee's hands. In my respectful submission, it would be utterly improper.

When we debated the report on the sittings of the House we were assured that we would not be kept late at night. At the moment the House is entirely unrepresentative. As regards this amendment, it is most important that the widest spectrum of views is assembled and I respectfully invite the noble Baroness, Lady Trumpington, or perhaps my noble and learned friend, to say that enough is more than enough.

Baroness Trumpington

I certainly appreciate the feelings of the noble and learned Lord, Lord Simon of Glaisdale. However, it is not in my gift to make such arrangements on the Floor of the House. I have sent a little carrier pigeon off to the usual channels and I suggest that in the meantime the noble and learned Lord speaks to his amendment. We must carry on in some way until word comes back. I am sorry but the noble and learned Lord must carry on for the moment.

Lord Stoddart of Swindon

I should very much like to follow what the noble and learned Lord said. It is most important that we should listen to what he said. We have been promised that this Chamber would not sit into unearthly hours. Quite frankly, we are now nearing 10.30 at night, and I have to inform Members of the Committee—if they do not already know—that another place rose at 7.30 p.m. this evening.

As the noble and learned Lord, Lord Simon, said, it is a bit much that the other place, which has elected and paid Members, should go home at 7.30 p.m. because they believe that to go on further on a Thursday night is uncivilised, and that we should be expected to stay here after 10.25 p.m. to consider a Bill, bearing in mind that it is a very important and sensitive piece of legislation and also that we have not very much business in this Session and could find an extra day if necessary.

I see that the Government Chief Whip has now arrived in the Chamber. It may well be that it would be better for me to sit down now to see whether we can make progress.

Baroness Trumpington

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.