§ 3.6 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
803 [The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 2 [Circumstances in which orders are made]:
§ Lord Simon of Glaisdale moved 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: This Bill in effect reconstitutes marriage as an arrangement for the parties to live together until one of them, without cause to be assigned or shown, gives unilateral notice of one year's duration that the arrangement shall come to an end. Most of the amendments so far have concerned that aspect of marriage and, if I may say so with respect from the Cross-Benches, your Lordships heard a most moving and cogent speech from the noble Baroness, Lady Young, on that aspect. The amendments have also concentrated on the inherent likelihood that a divorce by unilateral repudiation without cause will promote injustice, especially to married women. Throughout those debates, though, there has been a sub-text—the welfare of the children—and this amendment now brings it to the fore.
§ When we considered the Child Support Act for the first time it was launched by a White Paper entitled Children come First. In this Bill they come last. Their welfare is postponed to the wish of their parents to be rid of each other; indeed, to the wish of one parent only to be rid of his family commitments undertaken at the time of marriage.
§ Amendment No. 6 proposes to take the children right out of the danger area and that there shall be no divorce where there are children of the family under the age of 16. That is grouped with an amendment in the name of the noble Baroness. Lady Elles, which proposes the age of 18 and raises the question of the age up to which the law should concern itself with the welfare of children. In a letter to my noble and learned friend the Lord Chancellor adverting him to the fact that I was going to ask about the various ages, I believe that he took it that I wanted a reply before the debate and let me have one. I am extremely grateful to him. I believe that it would be advantageous if he were to repeat to the Committee what he wrote to me.
§ Amendment No. 6, removing children right out of the ambit of danger and the potentiality of harm to them, which is now shown very clearly both in the anecdotal evidence and in the official statistics, is, I concede, a radical proposal. But then a desperate situation requires a radical measure. This was not considered by the Royal Commission on Marriage and Divorce nor by the Law Commission in its paper, Divorce: the Field of Choice, although it chose a rather narrow field. These matters were not then considered and certainly no one at that time envisaged that we should be faced with the sort of divorce reform to which I referred; namely, the unilateral repudiation of the other spouse after the lapse of one year, nor did anybody at that time envisage that there would be upwards of 200,000 children under the age of 16 years in any one year whose background had been disrupted by the divorce of their parents. So I concede that it is a radical proposal, but one that is called for in the circumstances.804
§ Amendments Nos. 7 and 8 do not go so far. They merely indicate that the welfare of the children should he considered at the stage of divorce and not merely at the stage of mopping up the consequences of divorce. As I said, Amendment No. 12 in the name of the noble Baroness, Lady Elles, is parallel to Amendment No. 6, but pitches the age at 18. There is another amendment today, which has been grouped with Amendments Nos. 6, 7 and 8, and that is Amendment No. 35A. I shall not speak to that because it seems to me that it can be much more conveniently discussed with the important series of amendments starting with Amendment No. 35 tabled by the noble Baronesses, Lady Faithfull and Lady David.
§ It was vaguely questioned at the last Committee meeting whether marriage could be properly described as a contract. It was rightly said that marriage is much more than a contract. But saying that it is much more than a contract does not mean that it is anything less than a contract. The noble Earl, Lord Onslow, quoted on that occasion from the Book of Common Prayer 1662, which proclaims as the first, and primary, object of marriage the procreation of children and their nurture. The 1928 version is differently phrased, but to the same effect. I imagine that sociologists would readily agree that a primary purpose of marriage in society is the procreation of children and their nurture to become responsible citizens on their own. The noble Lord, Lord McGregor of Durris, has put his name to these amendments. I am very glad because he is the leading figure in this field of sociology and the Committee will be wanting to hear his views now that he has come back to this country. I hope that he is present. I am afraid that I cannot see that far.
§ Lord Simon of Glaisdale
The continuation of society being the purpose of marriage, one asks this question. The contract of marriage being a special one and one to be construed fairly, whatever an individual's faith, in the terms of the citation of the noble Earl, Lord Onslow, it is a type of contract and arrangement which obviously envisages from the outset the introduction of a third party; namely, a child. As soon as a child is born, the family alters its character. When we talk of the irretrievable breakdown of marriage, I believe that we have always tended to look to the spouses only, but if we look to the wider family, including the child, is it possible to say that the marriage has broken down irretrievably as long as the parents can fulfil their duties towards the child and their responsibility to the being they have brought into the world?
On the last occasion one noble Lord spoke of the parties being locked in a loveless marriage, again only looking at the spouses, but when there is a child can it really be described as a loveless marriage? I believe that practically every family shows love for the child and the child reciprocates. It is very rare that a family with children can properly be described as loveless.
The damage to children can arise in three different ways which are very difficult to separate statistically. First, there is the acrimony between the parents which 805 leads to the divorce. Some weight has been put on that. The noble Earl, Lord Russell, honoured us by giving us his personal experience—that the separation and divorce were a relief from the tension of the preceding acrimony. However, responsible parents will guard their children from the tensions of their own differences, if they exist. As the possibility of remarriage approaches, the acrimony is apt to increase. On the other hand, the acrimony is decreased if the parties have considered beforehand that the children come first and have given thought in advance to their responsibilities to them. The parents may perhaps decide to make the best of what seems to be a bad mistake. They may make that choice in the interests of their children.
We have had the anecdotal evidence to which I have referred and which cannot possibly be isolated, but there is anecdotal evidence on the other side. I remember a colleague of mine saying to me, "My brothers, sisters and I suffered greatly because our parents were on very had terms with each other, but we knew that, where our own interests were concerned, they would come together immovably". Certainly, he grew up into a very well adjusted man.
In any case, however, anecdotal evidence must always be measured against the statistical evidence, which is overwhelmingly that the children of broken homes suffer grievously. My noble and learned friend the Lord Chancellor summed up the assessment of such research in the following terms:Research work has shown that there is a significant excess in the signs of emotional disruption among children of broken families, not just in the short term but, apparently, on into adolescence and even adulthood. The research points to increased delinquency, increased ill health and a greater likelihood of divorce in spouses who themselves were the children of broken homes".—[Official Report, 31/1/91; col. 800]That summary of research has been brought up to date. In particular there has been some important research by Exeter University which tends to show that it is not the preceding tension that does the real damage, but the separation and the divorce. No doubt included in that—I think that they are difficult to measure—are the strains that I have suggested which inevitably arise on remarriage after divorce, as was vividly illustrated when we considered the Child Support Act.
The Bill's provisions on mediation are welcome. They could well mitigate the harm that is done to many children. Mediation was at the very centre of our proposals for a family court, on which, unfortunately, we were rebuffed by the Government. However, surely it is better not to engage in damage limitation—valuable though it is—but in obviating the cause of the damage.
I do not propose to take any of the amendments to a Division because this is a subject that has not been sufficiently discussed and is one on which I should welcome the views of your Lordships, as I am sure would everybody. The question that we are now facing is whether we believe that children should come first and whether we believe that their welfare should be considered before there is a divorce. This gives us the opportunity to show forth our commitment not only with our lips but in our legislative lives. I beg to move.
§ Baroness Trumpington
Did the noble and learned Lord include Amendment No. 146 in the list of amendments which, as I understand it, were grouped together?
§ Lord Simon of Glaisdale
I am very much obliged to the noble Baroness. I did not speak to Amendment No. 146 advisedly because it is really only a drafting amendment. It need not be considered separately. The important amendments are those numbered 6, 7, 8 and 10, to which I have referred.
§ Lord McGregor of Durris
I support the noble and learned Lord's amendments in the hope that they may stimulate the Government and the Committee to reconsider this aspect of the Bill. I wish to add to what the noble and learned Lord said only that it is notorious that very large numbers of immature children have experienced their parents' divorce—almost 3 million between 1971 and 1990, and some 153,000 in 1990 alone. The current trend in divorce suggests that one in four of all children will share that experience in future.
The Children Act 1989 requires the child's welfare to be treated as the paramount consideration in family matters. I find it odd that we retain statutory powers to regulate the circumstances in which childless adult spouses may obtain a licence to marry again, but impose no special requirements in respect of immature children under the age of 16 in relation to remarriages. The case for providing that the court should have discretion to withhold a decree unless it is specified that the divorce is in the interests of the children is irresistible. Only the court is in a position to make an assessment of what the interests of the children in the future are likely to be in such circumstances.
On the first day in Committee, a good deal was said about the messages that this place should he sending to the general public by means of the Bill. Might not we send the message that in a period when most parents control their own fertility, the birth of their children should be regarded as being intended, and therefore carries a peremptory obligation to care for them until their maturity? That obligation should not be lifted in divorce unless the court believes that the interests of the children will be best served by the divorce. I support the amendments tabled by the noble and learned Lord, because they point in that direction.
§ 3.30 p.m.
§ Baroness Elles
I support the amendments tabled by the noble and learned Lord, Lord Simon of Glaisdale, supported by the noble Lord, Lord McGregor of Durris. I have tabled an amendment but I do not intend to put it to a Division today. I agree that it is a matter that needs to be debated in this place, especially in view of the diverse statements made during Second Reading. Many noble Lords thought that the Bill would be in the interests of the children; that if they are living in a family of conflict, divorce should be quicker and children should not have to live in a home where there is conflict. There are many views on that topic which I hope will be put forward today.
807 Having been married for 50 years, and having children and grandchildren, I, too, of course have many anecdotal stories that I could tell about relationships of children and grandchildren whom I have known through the years, and also from doing voluntary social work. I therefore declare that whatever might be my private views on family and moral values, they are not my primary objectives during today's debate. My primary objective is to contribute towards ensuring that the happiness of children and their future prospects are not marred by some of the elements which appear in the Bill, where no protection has been given to the children of marriages which are about to break down.
The size of the problem is well known to the Committee. The noble and learned Lord has already touched on that point. Apparently every day 630 children are affected by divorce proceedings. There were 176,000 in 1993. There are well over 2.5 million children on income benefit, as revealed in an Answer to a Question tabled recently by the noble Earl, Lord Russell. Although not all of them, of course, are living in one-parent families, the vast majority will be.
The social effects are also well known to the Committee. They have been discussed many times in this place. Crime, vandalism, drugs and child sex abuse are frequently shown to be connected with broken homes. The reason I tabled my amendment to raise the age to 18—the noble and learned Lord proposes the age of 16—is to deal with the question of the young homeless. So many of the young homeless are between the ages of 16 and 17. When we have asked, "Why don't you go back home?", how many times have we heard them say, "I have no home to go back to. My mother does not want me, because her boyfriend does not want me in the house"? Money is not the answer to the problem. More than money is needed to deal with that problem.
The results of a national survey of young people between the ages of 14 and 25, which have recently been released by the Home Office, show that one of the most important keys to whether they started to offend and carried on offending was their relationship with their parents. The report stated:Those young people living with both natural parents were less likely to offend than those living with one parent or in a step family".I cannot quote the paper because it is not yet available in the Printed Paper Office. The survey was published in various newspapers on Friday. But that would seem to be obvious common sense, based on the practical experience of so many Members of the Committee who are involved with voluntary organisations. Unfortunately again there is no reflection of that in the Bill.
A glance at some statistics supports those observations: four-fifths of children in care come from broken homes, and only one quarter of persistent young offenders live in two-parent families. Those two-parent families include of course step-parents and mothers living with a boyfriend and so forth. They arc not two-parent families with the natural biological parents. In tribute to so many one-parent families who bring up their children and manage in some extraordinary way to overcome the problems, I must say that what we are 808 saying today is not meant to cause offence to those who make tremendous efforts and produce wonderful young people. That does them much credit.
It is surprising that in the White Paper entitled Looking to the Future there was little to show that there was any new approach towards safeguarding children's interests. They have been almost ignored. Yet there is overwhelming evidence from the various studies and research that children living in families of high conflict arc still better off than those who have been forced to live in one-parent families.
Research has been done by the National Child Development Study, the Centre for Family Research at Cambridge University, Supporting Families by David Utting and a whole host of others. I hope that, if I quote some research studies, my noble and learned friend the Lord Chancellor will not make quite the derogatory remark he made to me the other day when I referred to the no-fault research being carried out in the USA. He implied that there was not enough evidence from which to draw conclusions. Perhaps I may support what I said the other day by informing the Committee that Connecticut, which has had no-fault divorce for 20 years, is now reintroducing fault because it has seen what has happened to the number of divorces resulting from no-fault divorce.
In the White Paper Looking to the Future there was reference to the research done by Exeter University, supported by the Joseph Rowntree Foundation. Paragraph 5.16 states:It is confirmed that marital conflict is harmful to children. These findings are significant".Of course they are significant. They are also common sense. What is even more significant is that there is no reference to all the other findings in the report which show conclusively that it is infinitely more harmful to children to be brought up separately and to go through not merely the trauma of the divorce but the post-divorce period where they suffer all the other problems, to some of which the noble and learned Lord, Lord Simon of Glaisdale, referred.
I regret that the White Paper did not tackle more honestly some of the problems caused to children who are no longer living at home—even a home in conflict. As the report states:The outcomes for children in high conflict families more closely resemble those for children in intact families"—that is, families with both biological parents—than those in reordered families. The assumption is that parental conflict will cease following divorce, but that is not true. In some families divorce instigates conflict which will continue into the post-divorce period".I am sure that many of us are aware of such situations.
Detailed examples are given in the report, which is strongly recommended reading. Those examples show low self-esteem, deep unhappiness, health problems, especially psychosomatic problems, low educational attainment, school changes, home changes and fewer possibilities for employment and career prospects and future family relationships. It continues:Poverty obviously played a role in the situation where the mother retained the children, resulting frequently in economic and social change, and of course going further towards poverty".809 In many cases where the mother introduces a boyfriend, or partner, or eventually a stepfather, the young people no longer feel that they have a home to go to. One of the most important adverse factors, as was emphasised in the report, is the loss of a parent and its consequences. Even if the parent who left the home clearly might have appeared to be the guilty party or was violent, the children of the marriage always resented and regretted the departure of that parent. As was reported by Dr. Richards of the Cambridge Centre for Family Research, when children were asked what they would like:They would almost always say they only want one thing; that their parents should stay together".If this Bill is to support the institution of marriage it should be making provision for safeguarding the interests of children within marriage—the victims of their parents' conduct—but there is no evidence of that so far in the Bill. If it is true that among the objectives of my noble and learned friend the Lord Chancellor is to cut down or restrain rises in the cost of legal aid for divorces, he can do no better than to recognise that the retention of family structure would produce considerable benefits to the Exchequer. The cost in welfare alone as a result of divorces approaches £3.2 billion a year. Even at that low level of argument on costs, surely it would be of infinite benefit to the country if such expenditure were not going to help divorced parents in their separate lives.
There is nothing on the face of the Bill which enforces, or seeks to enforce, legal obligations as between husband and wife in relation to their children. I do not mean moral obligations but the obligation to provide together a common and stable home background. I wonder whether the noble and learned Lord the Lord Chancellor can give any comfort as regards what he intends to do about helplines and reconciliation before the stage of statement is reached, because there is no evidence on the face of the Bill. Regrettably, the Bill appears to many of us not as a family Bill but as a further step to increase poverty, poor education, homelessness and, through a lack of stable parental relationships, the number of children in care and young offenders
§ Earl Russell
It will give the noble and learned Lord, Lord Simon of Glaisdale, no surprise to hear that I cannot support this group of amendments. I gave my reasons for that in the debate on Amendment No. 4, moved by the noble Baroness, Lady Young, on 11th January. The Committee as a whole may he relieved to hear that I am not going to repeat them. I shall confine myself to remarks that have been made today.
The noble and learned Lord took up some of the remarks that I made on 11th January and argued, if I understood him correctly—I will check the Official Report again—that none of the points would have been necessary if people were responsible. But the noble and learned Lord's argument did too much. If people were responsible the vast majority of the legal system would be unnecessary. I am afraid we know all too well that it is not.
810 It seems to me that the opponents of the Bill are on a fork and they must tell us on which prong of it they wish to rest if the argument is to be developed further. We need to know whether they want to prevent divorce or separation. If they want to prevent divorce they must explain why it is better if the couple are living apart but cannot regularise the position by divorce than if the law recognises the situation as it is. If they want to prevent separation they must undertake the challenge of explaining how they are going to make the couple live happily ever after. That, of course, is a very stiff challenge indeed.
That is relevant to the point that the noble and learned Lord made about statistics. The problem with all divorce statistics is the difficulty of getting a control group. I do not believe that anyone disputes that it is better for children to have two happily married parents than it is to have any of the reasonable and likely alternatives. If there is any child for whom that is not so I suspect that that child is a masochist and therefore not likely to give grounds for general legal rules. What we really want to know is the comparative effects on children of having divorced parents, parents who are separated but not divorced, or parents who live together but are unhappy.
The noble Baroness, Lady Elles, mentioned the existence of research hearing on that topic. I have heard of the existence of such research but I have not yet had the opportunity to see it or managed to track down its place. If the noble Baroness could give me a reference I should be happy to read it before we come to the next stage of the Bill. When I look at that research I shall want to check the definition of the sample. It seems to me that if one looks at couples whose relationship has placed a strain on the children a good many are couples who would never admit to being in any way unhappily married. In fact, some of them believe that they arc blissfully happily married. They just happen to have a competitive relationship and the competition happens through the children. On occasion they may enjoy that very much but children do not always enjoy it nearly as much. In that way it is very hard indeed to obtain a control group for any proper scientific academic study. I will study that question with care when I look at the research to which the noble Baroness referred.
I am extremely glad that the noble Baroness raised the issue of child poverty. The statistics that she quoted about the proportion of children on income support are worrying. It is about one-quarter of all children in the British Isles. But that is made up of four groups; the divorced, the separated, the widows and the never-married single parents. Those groups get to that position by many different routes but they all have a common problem. It might be better to think of tackling the problem directly by a solution that deals with all of those groups rather than by trying to block the entry of one group to the sample, leaving all the others unhelped.
I hasten to reassure the noble and learned Lord the Lord Chancellor that I am not about to make a social security speech. His noble clansman of Ardbrecknish knows my views on that subject perhaps rather better than he would like. I will mention only the words, "childcare disregard, nursery education, flexible 811 working hours and the problem of childcare in general", including the opportunity for men, if they wish, to take part in it on equal terms. Those are the areas in which solutions should be sought and that is the way in which I should tackle that problem. I will not develop that point now because I have done it often enough.
§ 3.45 p.m.
The Lord Bishop of Liverpool
I too wish to give great weight to the interests of children. I would not support Amendments Nos. 6 or 7. Amendment No. 8 may be helpful but I wish to hear the explanation of the noble Baroness, Lady Faithfull, as regards her amendments relating to children.
In no way do I wish to argue against the damage that is done to children by divorce but one cannot by law protect children from the place of acrimony. The researchers produce their evidence and they do not always agree. I come down on the side that the greater damage is done when parents have divorced. However. without question a great deal of damage is done when children live within a home that is full of bickering and bitterness. We cannot say simply that that is not the case. Alas, parents do not always protect their children from acrimony. Parents cannot fool their children too much of the time.
At several points in the Bill we must recognise the limits of what law can do in changing peoples' behaviour. Many members of the Committee will have heard the interview given at the weekend by Cardinal Hume. It followed an article that he wrote in The Tablet magazine. I pick up the matter at the moment at which he was talking about the rise in cohabitation. He says:I do not ignore the rise in cohabitation which is a widespread social trend but the answer is to make marriage more attractive by doing all we can to ensure more marriages flourish".That is the part that I hope we shall help to strengthen within the Bill—the support for good counselling and good preparation for marriage.
Were we to accept the amendment, which would make divorce impossible for parents with children under the age of 16, what would be the effects? Just as Cardinal Hume was saying about the judgment that must be reached as regards the length of time over which divorce may be agreed, we must make some sort of judgment as to how much notice people will take of it. Not everybody will wait to be married. The noble Baroness, Lady Elles, spoke of the mother living with her boyfriend. It is very likely that that is not a case of a woman who has gone through the divorce courts. Is it not the lesser of evils that when there has been that breakdown, the couples should work through divorce with insistence upon a proper concern for the children?
The cardinal has been widely quoted as expressing concern about the length of time and the view that perhaps 18 months is a better time than 12 months. It should be clear to the Committee that in the article he continues to support the Bill but hopes that it may be strengthened in some respects. He says—and it is very clear—that a prudential judgment must be reached as to what is the best length of time over which the decision as regards divorce should be made. There cannot be a clear theological message.
812 I was very sorry that I was not able to be here for Second Reading. I read what the noble and learned Lord the Lord Chancellor said about those working with children who were consulted on the matter. Members of the Committee will be aware of the support for the Bill of many agencies supporting marriage and children and their welfare. The noble and learned Lord said that those who work with children point out—it is a thought I would commend to the Committee—that although 12 months may not seem long to us, it is a very long time indeed for a young child living with uncertainty. A lengthy period would prolong the agony not only for the adults but for the children. Children are not always fooled. When they know that a relationship has lost the love and trust between people, damage will be done as assuredly as it is done through divorce. Given the effect that the law can have on behaviour, I doubt whether we should be wise to go further than insist that the interests of children are firmly taken into account.
§ Lord Moran
On Second Reading I suggested that in all ordinary circumstances it should be unthinkable that parents with children under the age of 16 should be divorced and put their own gratification before the welfare of their children. Therefore, I have great sympathy with the arguments of my noble and learned friend Lord Simon of Glaisdale and the noble Baroness, Lady Elles.
All the evidence we have seen shows the misery and the lasting ill effects on children whose parents divorce. There are also serious social consequences. I believe that today the requiem mass is to take place for the headmaster who was so tragically killed by a gang of youths. Gangs of that sort, which are an increasing menace on our streets, are all too often made up of children of broken homes.
It is too drastic to prohibit divorce altogether for parents with dependent children. There must be an escape hatch for extreme cases; for example, a woman who finds herself married to a husband who is a drunken bully or something of that sort. But surely we should do all we can to discourage the divorce of parents with young children who simply want to make a change and go off with someone else. Therefore, I suggest that the Government might take account of what has been said and see whether a way cannot be found to make divorce much more difficult for couples with children under 16 than for childless couples, perhaps by giving the courts more discretion, as suggested by the noble Lord, Lord McGregor of Durris.
§ Lord Irvine of Lairg
I start from the basic position that it can make no sense at all to compel parties to remain married if the marriage is dead. The law cannot compel people to remain together. The disgruntled partner will simply leave, start a new relationship and have more children who are innocent and who are 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 live together—and I do not believe that that is possible—I rather think that compelling them to live together against their will would cause greater harm 813 to the children since the children would be brought up in a loveless home and be denied the advantage of even one happy parent.
Therefore, I start from the basic position that you cannot compel people to live together. The law can deny divorce but it cannot make people live together. Once that is recognised, what is the point of denying divorce? I repeat, as I have said on previous occasions, that overall the Bill, in the balance of its provisions, is right as regards those difficult choices.
I suggest that the amendments rest on the fundamental fallacy that the law, by denying divorce, can prevent broken homes. I can and do believe that children should come first at the same time as I oppose the amendments.
I find it difficult to see how divorce could ever be described as positively in the interests of children. Of course not. What would be in their interests is marriages not breaking down, but they do. To deny divorce does not prevent breakdown. Therefore, I see no point in denying divorce and denying the regularisation of new relationships after marriages have broken down irretrievably. I recognise that the amendments are well meaning but I believe that they are not well judged and, therefore, we oppose them.
§ Baroness Seear
Surely if we deny people the right to divorce, they will merely separate and live somewhere else. In that case, they will have none of the benefits—and they are real benefits—of the mediation and conciliation built into the Bill. Despite the good intentions behind the amendments, we shall be creating a worse rather than a better condition for the children. Separation which is unrecognised and unaided in any way must surely be a worse solution than a properly conducted divorce.
§ Baroness Faithfull
I agree absolutely with the noble and learned Lord, Lord Simon of Glaisdale, and his supporters that divorce is a disaster under any circumstances for any child. Having said that, I must say, not from statistics but from dealing personally with children whose parents are divorced, that to force a child to stay with parents who are warring with one another provides a very bad role model for that child in his daily life. I can only say that teachers find a difference in schoolchildren who come from homes where the parents are at odds with one another. Therefore, I cannot accept the recommendation made by the noble and learned Lord, Lord Simon of Glaisdale. While divorce is disastrous, I believe that to have the role model of warring parents at home affects the children to a serious degree. I do not support the amendment.
§ 4 p.m.
§ Baroness David
I have a great interest in both the welfare and the interests of the children, as I hope is obvious from the amendments which the noble Baroness, Lady Faithfull, and I have tabled. I prefer the approach that we have taken to the one taken by the noble and learned Lord, Lord Simon of Glaisdale. Therefore, I hope that the Committee will consider sympathetically the amendments that we have tabled 814 and will appreciate that they are a better way of tackling the matter than the way suggested by the noble and learned Lord.
I support the noble Baroness, Lady Elles, who said that there was nothing about children in the Bill. That is something about which I spoke on Second Reading, as, indeed, did the noble Baroness, Lady Faith full. Therefore, I hope that we can write something into the Bill which deals with children.
§ Lord Milverton
I cannot support the amendment moved by the noble and learned Lord, Lord Simon of Glaisdale. As some Members of the Committee have already said, I do not see how it would really help. I can think of only two ways to describe what it would do: it would aggravate and rub up the wrong way parents who, for whatever reason, were finding it impossible to live peacefully together and give decent love to their children. In so doing, it would also rub up the children the wrong way.
As my noble friend Lady Faithfull said, the situation also affects the children. I speak with knowledge of what my wife, who has experience of teaching children from homes which are not as one would wish, tells me. People may think that if the children have one loving parent when the marriage has broken up, that is far better. I do not believe that all stepparents are hopeless. Many love and care for their stepchildren as much as, or indeed perhaps more than, one of the previous parents did.
It is going too far to say that one cannot allow a man and a woman to divorce if the child is under 16 years of age. As has already been said, it is asking for trouble. Surely the couple will just separate and then the children will receive far less help and benefit. I agree with the noble Earl, Lord Russell, and the right reverend Prelate the Bishop of Liverpool. The Bill could be the basis not for destroying marriage but for helping it.
I put down my name to speak on Second Reading but, as I was right at the end of the speakers' list, I decided that enough had been said. However, what I am saying now is roughly what I would have said then. We are not helping the situation if we make this stipulation.
§ Lord Mishcon
I believe that noble Lords will agree that the principle behind the amendment is an honourable one. However, the practice, if I may refer the Committee to it, would be disastrous. I ask Members of the Committee to imagine for a moment sitting inside the judge's room if such an amendment were carried. He would have in front of him a child under the age of 16, and possibly more than one. What question could he possibly direct to the child or children if the amendment were accepted other than, "Do you want mummy and daddy to be divorced, or don't you?" What answer is the child expected to give other than, "No, sir, I prefer that they didn't"? I see that the noble and learned Lord wishes to intervene. I give way.
§ Lord Simon of Glaisdale
I am much obliged. I should point out to the noble Lord that there is an amendment which says that the statement "must also state" the ages and "relevant circumstances" of the 815 children. Therefore, if there is a child under the age of 16, the divorce proceedings will not start and there is no question of the child being in the judge's room.
§ Lord Mishcon
If that he so, I confess to the Committee that I have wrongly read the amendment. I thought that it would mean that no divorce order could be obtained where the court was not satisfied that it was in the interests of the children. Therefore, if an argument were to take place where the petitioner says that it is in the interests of the children, it is a matter that the judge would have to hear. I do not understand how in other circumstances the amendment would have any practical value.
§ Lord Simon of Glaisdale
I thank the noble Lord for giving way. His judgment in such matters carries great weight, but I believe that he has concentrated on Amendments Nos. 7 and 8, whereas I moved Amendment No. 6.
§ Lord Mishcon
The Committee will he saved from a speech of mine on Amendments Nos. 7 and 8. However, I regard the matters as being so correlated that possibly I shall not be deemed to be irrelevant if I continue shortly with my remarks.
If the matter is to be brought judicially to the attention of a judge in order that he may decide whether it is in the interests of the child or children that a divorce order he made, the possible interview that I have brought to the attention of the Committee would be one that would take place and is one that would be absolutely fatal in its results. I repeat: the question would have to be put, "Do you want your parents to be divorced?" The answer would probably be, "No, sir". The judge would then ask, "Why don't you want your parents to he divorced?", and the child would say, "Because I want them to stay together". How could a judge then say that it is in the interests of the children that a divorce should take place? Worse still, if the answer is the one that the child is expected to give, what respect in after life would that child have for the judge who decided that presumably it was in the interests of the children that the divorce should go forward?
§ Baroness Young
I believe that the whole Committee should be grateful to the noble and learned Lord, Lord Simon of Glaisdale, for tabling the amendments and for drawing our attention to the important fact that the Bill leaves out the whole issue of the effects on children. We should also be most grateful to my noble friend Lady Elles who indicated that much of the Bill seems to be based on a completely false premise—namely, that what is bad for children is conflict—when all the recent evidence and research show that what is really bad for children is divorce.
Several Members of the Committee have quoted from various documents. I received a most interesting letter this morning from which I should like to quote one paragraph. The writer says:I have recently retired as a Comprehensive School Headmaster and I am a family man. I have seen so much distress and disturbance amongst children of divorced parents—I need no convincing that the distress in families which have held together in spite of major problems and conflict is not to be compared with the short and 816 long-term effects of divorce. Furthermore it is very evident that divorce in one generation is perpetuated in the next and the more so as it is made easier".I believe that that simply confirms what has already been said. In our consideration of the following amendments about children, it is most important that we should remember those facts.
I know that my noble friend Lady Faithfull and the noble Baroness, Lady David, have tabled a number of amendments. I can tell both of them that I support them in principle. I believe that those amendments would he helpful. I hope that my noble and learned friend the Lord Chancellor will also look favourably upon them. It is most important that he should do so.
My anxiety about this Bill is that it will make divorce easier, and the easier we make divorce the greater the army of unhappy and miserable children we shall have. I see that the noble Earl, Lord Russell, is not in the Chamber at the moment. He wondered about the evidence. He should read the Exeter study to which reference is made, rather passingly, in the White Paper where it is indicated that it is considered to be valuable. I quoted at Second Reading from the important study Families without Fatherhood. That document should be compulsory reading for everyone. It indicates that the statistics and the evidence are absolutely clear that children from broken homes where there has been a divorce do less well at school, suffer from more ill health, are more likely to be unemployed and take to crime, and are more likely to repeat the pattern of instability.
Of course we must do what we can in this Bill to try to mitigate the trouble, as the noble and learned Lord, Lord Simon, said earlier, but the idea that somehow, under this Bill, we will save many children from an unhappy life is a mistake. I was disturbed to hear the noble Lord, Lord Irvine, say so categorically that there is nothing one can do about a dead marriage. I am not an expert on this but I do not think that marriages can be divided into those that are blissfully happy and those that are dead. There are many grey areas. There are quite good marriages just as there are good enough parents. Those parents and those marriages are perfectly good enough.
No doubt the noble Lord has come across, as I have, people who have divorced and who have regretted it later. Indeed, there is considerable evidence to show that that applies to many couples. To say categorically that were these amendments to be passed we should be propping up dead marriages, or trying to make dead marriages work, is not necessarily true. I accept there will be some marriages that are over, but they are not all over. Surely we should be looking at those that are not completely over—in the interests of children, if not in the interests of anyone else. I know that the noble and learned Lord, Lord Simon, and the noble Baroness, Lady Elles, do not intend to press these amendments, but I hope that the noble and learned Lord the Lord Chancellor will consider carefully the points that have been made to make quite sure that this legislation does not do even more damage to children who are already damaged so much by divorce.
§ 4.15 p.m.
§ Lord Stoddart of Swindon
I very much agree with the noble Baroness, Lady Young, who has congratulated the noble and learned Lord, Lord Simon of Glaisdale, on bringing forward these amendments. They are important amendments, even if they are not to be voted upon, because they concentrate the mind of this Committee on the children, who will be worst affected by divorce.
It seems to me that we often forget the objective of marriage. The objective of marriage is for two people to come together and, by a civil or ecclesiastical process, make promises to each other that they will remain together, and indeed remain together to look after and bring up any issue of the marriage. If there is no issue of the marriage, it really does not matter whether the people are married or not; it is the issue of the marriage which counts, and it is the interests of the children of a marriage that count above all.
It seems to me that in the sort of society in which we live we are overlooking the prime duty of society to look after the interests of children. Society at the moment is, if I can describe it thus, rather looser than it was in my younger days. Indeed the media—television, the newspapers and what have you—seem to say to people, "Just gratify your ideas; never mind about the consequences, just gratify your desires, whatever they may be, sexual or what have you. Never mind about the consequences". But, of course, it is not for the state to say that that is all right when there are children involved. It is for the state to ask, "Is this where we want to go? Is this what we want to condone; or, indeed, is it something which we, for the sake of children, would like to alter?" That is the mistake of this Bill because what it does is to condone what is happening in society instead of trying to send a message to society saying, "Look here, we believe that society is on the wrong track and it is hurting the future generations upon which the society in which we live, the country which we love and the institutions which we have obeyed, depend". That is why I am so opposed to this Bill because, unlike the noble and learned Lord the Lord Chancellor, I believe it will make divorce a lot easier and therefore more children will be hurt by it.
I pose a question and perhaps a challenge to the noble and learned Lord the Lord Chancellor. Does he believe that this Bill will result in fewer divorces or more divorces? We need an answer to that question because we shall want to hold the noble and learned Lord to that answer in the future. My noble friend Lord Irvine of Lairg says that one cannot compel people to remain married if the marriage is dead. I agree with that, but when is a marriage dead? We do not know when a marriage is dead. Under this Bill it will be dead when one of the parties says it is dead. They may have been married only a, year before they can say that the marriage is dead. Our objective ought to be to say to people, "Think once; think twice; think many times", but that is not the message in this Bill. Although we shall not vote on this provision, I hope that the discussion that we have had on the noble and learned Lord's amendments will make people pay a lot more attention to children and a lot less attention to the immediate desires of people who might decide, for not 818 very serious reasons, that they have had enough of a marriage which could, with a little trying, carry on for a much longer period of time.
§ Lord Elton
This is bound to he a most painful debate because we are discussing what is the least damaging outcome of what is in itself a disaster. Therefore, I find myself in some despondency in joining in and trying to understand how it is that people whose values I share, as I believe, come to completely opposite conclusions on this issue to those of myself and my noble and learned friend. It is probably not too much of an over-simplification to say that those who support these amendments, which are admirable in their intention, are working to a world as it should be. I think the Bill is working to the world as, regrettably, it is. It brings us back to the question pertinently put by the noble Earl, Lord Russell. He was not in the Chamber to respond to the fly cast over his empty place a moment ago by my noble friend Lady Young and to return to the issue. However, the question is this: are we trying to prevent separation or divorce, and what will be the effect of these amendments in desolate homes where a marriage has broken up?
The law cannot keep the couple physically together. They will in extremis go their separate ways and the children will fall between them without the care of the courts if these amendments, or anything like them, are carried at the next stage. It seems to me that we have to recognise that we are dealing with something unpleasant, regrettable, but actual. We have to minimise its destructive effects as much as possible. The amendments rightly put the interests of the child at the top of the agenda, but I do not think that they succeed in keeping the child there. They leave the child exposed, to be the victim of an unsupervised separation rather than a legally supervised divorce.
§ Lord Boyd-Carpenter
I have listened carefully to the debate and it is obvious that the arguments are evenly balanced. However, I ask my noble and learned friend the Lord Chancellor to deal specifically with Amendment No. 8 which seems to adopt a more balanced approach than the other amendments. Admittedly it imposes on the court a very difficult task. I do not underrate that. On the other hand, it does what a great many Members of the Committee have said should be done; namely, it mentions specifically the interests of the children. All who have spoken in the debate have been concerned, one way or the other, with the interests of children and with the sad effects that a divorce can have on the children of the family. Therefore, when my noble and learned friend replies I shall be most grateful if he deals fully with the arguments for and against Amendment No. 8, which seems to set out the interests of the children without going as far as Amendment No. 6. That amendment seems to me to go too far.
§ Viscount Cross
I venture to say a few words on the amendment moved by the noble and learned Lord, Lord Simon of Glaisdale, because it concerns children. I am sure that all Members of the Committee will agree that children need both parents—the mother and the father. 819 The child support legislation talks about the "caring parent" which usually means in practice a mother with young children. I suggest that it is a totally misleading term because it implies, in another sense, that the father does not care. In most cases fathers care very much indeed.
I recall a case some years ago where, after the divorce had taken place, the parents agreed to share the holidays 50–50. The children, who were girls, were quite young at the time. The result was that the children had two happy homes in different parts of the country and they had two sets of friends. They had a very happy childhood. The arrangement worked extremely well, and the children were not spoilt by either parent. Of course no two cases are ever the same and divorce is always regrettable. I mention that particular instance to the Committee simply because it shows that divorce need not always be harmful to the children.
§ Lord Stallard
I shall not take up too much of the Committee's time because I do not want to start another Second Reading debate. The noble Lord, Lord Boyd-Carpenter, rightly says that we should concentrate on Amendment No. 8 if we are thinking of dividing the Committee. We have all read the results of the Exeter study which goes into the extent and reasons for damage to children affected by divorce. We all understand the position. As I said, we are not all lawyers, but nor are the people who are affected by these proposals. Most are not lawyers; most wish to God they had never met a lawyer. However, that is beside the point.
My noble friend Lord Irvine of Lairg has been quoted by my noble friend Lord Stoddart as speaking of a marriage being dead and saying that it is better for a child to live in a home where there is one happy parent. It is not the experience of most people who, as the noble Lord, Lord Elton, put it, live in the real world, that the one parent who is left is a happy parent. On the contrary, often that happy parent is out looking for somebody else much of the time and the children are left to contend with the guilt that they feel because they think that they have broken up the marriage. It is not necessarily true that the parent who is left is a happy parent and brings up the children in a happy background. Oh that it was! It is not like that and we have to take account of that fact.
The phrases "in this day and age" and "we have to keep up with the times" always grate on me whenever I hear them. The noble Lord, Lord Elton, spoke to that effect. Those phrases are used in connection with much legislation, and particularly legislation dealing with divorce. We are told that we have to come into line with things as they are. What an awful mess we would be in if we believed that and managed our affairs on that basis. In fact, what a mess we are in, as the noble Lord, Lord Donaldson, rightly says. We fall for that argument too often on many social issues. We are told we must move with the times. God help us, what times these are! There are some of the worst excesses we have ever known. We are all supposed to jump into line and forget our beliefs, whatever they might be, Christian, Moslem, or whatever. There is a basic belief that a marriage contract is made forever and that you break it only after a long period of reconciliation. That is what is missing 820 from the Bill. The Bill goes straight from somebody saying, "I'm fed up with you. I'm packing it in, the marriage is over. You have 12 months notice and that's the end of it" to mediation to decide who gets what. There is nothing to say that the parties should assess the situation and not act too hastily.
For my sins, I have been married for 52 years. I would not say that it is an idyllic marriage. It is the same as everybody else's marriage. It has its up and downs, its rows and arguments. Of course it does. But there is a permanent state of reconciliation. That has to be so if a couple are determined to make a go of it and there is any feeling between the parties concerned, as there should be if they have had sufficient education before embarking on marriage.
Couples have to be taught what marriage means before they enter it. That is done by most Churches, or used to be. I understand that because they have come up to date and in line with the times some of that is now disappearing and that it no longer suits all Churches to act in that way.
§ The Lord Bishop of Oxford
I am sorry to intervene, but I feel I must correct the noble Lord. I can assure him that preparation for marriage for couples getting married in the Church of England is taken more seriously than it has ever been. It now takes a number of evenings. It is not simply a matter of a little chat with the couple or going through the service. It is taken very seriously. Often professional marriage support agencies are brought in to help.
§ Lord Stallard
I am grateful to the right reverend Prelate and I am delighted to hear it. That is how it should be. That is what we want to extend. We ought to extend our support to all those organisations which concentrate on that aspect. Even in schools we ought to be looking at preparation for what is a serious contract.
As it stands the Bill does not take care of that aspect. We are left with the amendments, which try to reduce the conflict. It is not only conflict which makes children suffer; the legal process makes them suffer even more. I hope that the noble and learned Lord the Lord Chancellor will take note of what has been said, which has all been in the same vein, before he finally wraps up the Bill.
§ 4.30 p.m.
§ The Lord Chancellor
It is certainly my business to listen carefully to all that has been said. As the noble Lord, Lord Stallard, said, there is a theme, mentioned more than once, upon which all who have spoken are agreed. I should like to begin by responding to my noble friend Lady Elles. I certainly did not mean to treat her remarks on the last occasion other than with the utmost respect. I meant to show why it is not easy to say, from the experience of other jurisdictions, what causes a rise or fall in the divorce rate. That is what I sought to say. In no way was I seeking to minimise or undervalue what the noble Baroness said.
That brings me to the suggestion that the welfare of children is not at the forefront of what is proposed in the Bill and in the White Paper which preceded it. 821 Speaking for myself, I consider that the welfare of children affected by marital breakdown is the centre of what we are about. I believe that we have a responsibility to ensure, as the noble Lord, Lord Stallard, said a moment ago, that the divorce process does not make the situation worse for the children. That is exactly what the Bill is intended to achieve: that the divorce process does not make it worse than it needs to be for the children and, of course, also for the parents.
I am the first to acknowledge, indeed to assert, that breakdown between parents is a disaster for their children. I believe that, in the ordinary course of events, children grow up to love and to be united to both parents as a unity because they have been accustomed to treat the parents as a unit. I think that good parents do their best to give that impression to their children at every opportunity. When the parents start to come apart, the child is almost torn apart because there is an affection in the child for each of the parents.
It is that thought which is behind my view that we should do everything that we possibly can to persuade the parents to stay together. That is the philosophy which underlies the Bill. However, if, having had every opportunity to consider that, the parents decide that they wish their marriage to be dissolved, a regime should be in place which minimises the danger and damage to the relationship with each parent. I think that it is clear that breakdown damages children. But it is also clear that to be able to maintain a relationship after the breakdown with both parents is the best outcome for the children in that sad situation.
The noble Lord, Lord Stallard, shakes his head rather deliberately. I do not know whether he means to contradict that proposition. I think that it is absolutely plain that of the children who, sadly, are afflicted by divorce, the ones who do best in later times, who develop best, are those who are able to maintain a good relationship with both their parents.
I believe it is clear that the Bill seeks to give parents every opportunity, before the final decision to divorce is taken, to consider those matters. One of the matters to be considered in terms of the Bill is the arrangements made for the children. Where there is difference about that, all the machinery of the Children Act applies. I believe that in practice the Children Act has been found in private and public law provisions to be of very great value.
We have to keep another matter in mind. When parents come into conflict there is a tendency, sadly, in some situations for them to seek to treat the children as pawns or as symbols of victory on one side or another. We must do everything we possibly can to prevent that.
I should like to follow what my noble friend Lord Boyd-Carpenter said. The centre of this debate is on what can be done in relation to the interests of children in connection with the divorce order. I think that it would be going too far to try to prevent divorce in every case where there is a child of the family under 16 or under 18.
This may be the right time to mention the letter referred to by my noble and learned friend Lord Simon of Glaisdale in introducing his amendment. He asked 822 me a little time ago whether I could give the different relevant ages of children in relation to certain proceedings. I shall summarise the letter as it is rather long. The Children Act 1989 private law proceedings allow residence orders to children up to the age of 16 but it also provides for orders to continue beyond that age where the circumstances arc exceptional. In care proceedings, no care or supervision order may be made in respect of a child who has reached the age of 17, or 16 if he or she is married. Wardship may be awarded up to 18. A child is defined in the Child Support Act as a person under the age of 16, or under the age of 19 when receiving full-time non-advanced education who has not been married. Under the Children Act, financial provisions for children apply where the child is aged under 18 but Schedule 1(3) allows a periodical payments order to be extended for a child over 18 who is or will be undergoing education, or where there are special circumstances. I believe that those are the main headings. I shall not weary the Committee with others. A number of different ages ranging from 16 to 18 arc relevant to the matter. In any event, I submit to the Committee that to attempt to prevent divorce where there are children under the age of 16 or 18 is going much too far.
On Amendment No. 8, for many the fact that the order of divorce is being made at all would be regarded as contrary to the interests of the children if one embraces the philosophy that I mentioned earlier, in the sense that it would be better for the children if there were no marital breakdown and the parties stayed together. On the other hand, later amendments are directed also to the hardship bar which may well mean that at that stage a discretion should exist in the court to postpone the order of divorce. Indeed, Section 41 of the Act—it is already taken into account in connection with the arrangements for children—would allow the order to be postponed in some circumstances. Therefore, there are ways in which the interests of the children, in so far as they can be attained by a postponement of the order of divorce, may be taken into account. We can perhaps consider that in more detail later.
The noble Lord, Lord Stoddart, suggested that the Bill has the effect of increasing the scope for divorce. In my submission to the Committee, the whole purpose of the Bill is to do what reasonably can be done to give the parties an opportunity to consider carefully before they go forward to an ultimate divorce. Perhaps I may emphasise one aspect. The noble Lord, Lord Stallard, said that mediation is about what will happen. One important consideration in deciding whether to divorce is what will happen. Sometimes, parties go ahead and divorce without realising what the practical effects will be. They know what the present situation is and the aspects of it for which they do not care. But it is very difficult to know what the future will be like.
The noble Lord, Lord Stoddart of Swindon, sometimes echoes the views of Families Need Fathers on this aspect. One of the most devastating consequences of divorce for some fathers is that they have the greatest difficulty maintaining suitable contact with their children. A firm realisation of that at an earlier stage in the development of the relationship with 823 the mother of their children might have a very salutary effect in preventing them going forward. It is therefore important that the mediation provisions are in the Bill, and that the Bill envisages mediation as a way of examining the future in order that parties may consider whether they want such a future or whether they would prefer to seek to repair the relationship and proceed with their marriage.
We should do everything we can within the framework of the law to encourage parties to stay with a living marriage and to have that marriage continue alive. There are obviously different standards and measures of that. But in reality it is the parties who must ultimately conclude the matter in the light of all the circumstances.
The interests of the children are at the heart of the Bill. This is one of the most important matters to be resolved before a divorce goes forward. I agree that it would be unwise to stipulate that no divorce should take place where there are children under 16 or 18. I share entirely the anxiety about children expressed by my noble and learned friend Lord Simon of Glaisdale in moving the amendment, by my noble friend Lady Elles and by all others who spoke on these matters. If I could achieve that all who are married stay happily together married, I should be absolutely delighted. I believe that marriage is the most rewarding of all human institutions and the best possible background and atmosphere in which children should be brought up. I do not seek to encourage divorce when I say that we have, however, to face the fact that marriages break down. We have to make the best arrangements we can when that happens and do everything we can within that framework to preserve, as far as possible, opportunities for the parties to keep their marriages going.
I hope that in the light of this discussion my noble and learned friend will feel able to withdraw his amendment, realising that many of the sentiments that underlie his moving of it are embraced in all parts of the House and that we are all anxious to secure the best practicable arrangements for achieving those results.
§ Lord Stoddart of Swindon
Before the noble and learned Lord, Lord Simon, replies, I wonder whether the noble and learned Lord the Lord Chancellor could reply to my question. Does he believe that this Bill will increase or reduce the incidence of divorce?
§ 4.45 p.m.
§ The Lord Chancellor
It is always tempting to don the mantle of the prophet. One commentator on matters of divorce law cautioned very strongly against doing so. It would be unwise for me to disregard that caution. Many factors can affect the rate of divorce. The precise terms of divorce law are only one such factor. However, what I do claim, for the Bill is that it provides the best framework that I have been able to come up with so far to encourage people whose marriages get into difficulty to try to heal their relationship rather than divorce. Therefore the tendency of the Bill is to reduce rather than increase the number of divorces. It will not be the only factor in the future, assuming that it passes into law in something like its present form, that will influence the number of divorces at any given time.
§ The Earl of Perth
I was particularly interested in the noble and learned Lord's description of mediation. It seemed that he was saying that if we have mediation, as part of it we may have reconciliation, and that is what we want. But so many of us feel that reconciliation is the more important factor. It is not clear from the Bill as I read it that reconciliation is the purpose rather than mediation, which is to make things easy for the divorce. I hope that we can try to get round this dilemma and be quite clear that, before there is mediation, there should be a separate section dealing with reconciliation.
§ The Lord Chancellor
Perhaps I have not properly explained the situation. The point about mediation that I was trying to make is this. It concentrates on what the relationships will have to be if the parties go forward to a divorce. They need to discuss that. It involves past conduct because that raises questions in relation to the distribution of property. It is quite wrong and unwise to suggest that reconciliation and mediation should be separated.
I have heard it suggested that I do not know the difference; I believe I do understand the difference. My point is that it is unwise to put them into separate, watertight compartments. My experience, such as it is, is that when people look to the future and see what the form for the future will be, it may well persuade them that they are better off with what they have. Therefore, instead of going forward to destroy their relationship completely, they may go back to try to repair it. If parties have reached the second part of the divorce stage—namely, after getting information, they want to go ahead—the situation has gone a fair distance. I want to make sure that there is no stage before the very end at which reconciliation is finished. It is important to keep it alive for as long as possible. One factor that may assist is consideration of just what the future will be. Apart from anything else, the most obvious consideration is that two households will not be able to live as cheaply as one. The dawning of that realisation on some people might just have a salutary effect on whether or not they want to go forward.
§ Lord Coleraine
I am sorry to detain the Committee at so late a stage in a long debate, especially after my noble and learned friend on the Front Bench has spoken. However, there are points still to be discussed and I wanted to hear his remarks before doing so. We have not yet delved into, and got to the bottom of, the question of parental conflict and whether it is the conflict or the divorce that so damages the children.
The right revered Prelate the Bishop of Liverpool, who is no longer in his place, referring to remarks made a fortnight ago, made the point that the period for reflection and consideration—presently 12 months—is a long time in the life of a child. It is a long time during which that child may be subjected to conflict. He contrasted the 12-month period with a possibly longer period of 18 months, but in doing so, he begged the question. He assumed that at the end of the 12-month or 18-month period the conflict would cease. But it does not cease. It goes on. The real question is how long it would take to resolve the problems for the future which affect the children. It is not sufficient to say that 12 months is a long time in the life of a child.
825 The White Paper has a great deal to say about parental conflict. It says at paragraph 2.11:While children are inevitably affected when their parents separate, research shows that it is conflict between the parents which has been linked to greater social and behavioural problems among children rather than separation and divorce itself".At paragraph 2.22:Research has shown that children suffer and are damaged as a result of conflict between their parents, whether the parents are living together or apart".The word "conflict" is there emphasised.
At paragraph 3.10:As noted in Chapter 2, while these children are inevitably affected when their parents separate, it is conflict between the parents which has been linked to greater social and behavioural problems among children rather than the separation and divorce itself".At paragraph 4.37:As mentioned earlier, research has demonstrated that children are greatly harmed by conflict between their parents, especially if they are drawn into that conflict as go-betweens or intermediaries, as happens all too often in present divorce cases".What exactly is the recent research which has so clearly established that proposition? That is an important question, on which many other questions depend and which I hope my noble and learned friend will be able to answer, though not necessarily today. The kind of points that depend on the answer to that question are questions such as the length of the period of reflection and reconciliation and whether there should be some right for a limited period of one spouse not to be divorced against his or her will.
For my part, I am happy to concede that I am not in a position to give any definitive judgment on the value of the Exeter Family Study, to which reference was made earlier in the debate. However, I remind the Committee that, unlike the White Paper, it makes no categoric statement as to whether parental conflict or divorce is worse for children. The study merely states that children whose parents have been through divorce are worse off than children whose families remain intact. The study states that the data suggests that parental separation itself has a major association with difficulties for children. But the study goes a little further. It suggests that the belief that it is better to resolve a high conflict situation by ending the parental relationship than by allowing it to continue may, in fact, be a misunderstanding of the situation.
It appears to me that the authors of the report make their points with scrupulous integrity and, given the appalling consequences of divorce for the children involved in that divorce, with the loss of parents, it must be up to those who believe that in high conflict families divorce is in the best interests of the children as well as of the parents to produce some evidence. That has not yet been done. It is taken for granted in the White Paper, even if stated to be demonstrated by recent research.
The general question is whether families should stay together for the sake of the children or whether they should separate for the sake of the children. Both points can and have been argued. Overwhelming logic suggests 826 that it is for those who argue the second case to put their cards on the table and show exactly why they feel that way.
§ The Lord Chancellor
Perhaps I may just supplement what I have already said. First, in connection with these amendments, I am suggesting that the process—assuming that there is a divorce—should minimise the following conflict. At this juncture I am not concerned with whether or not divorce is or is not better than constant squabbling. That must be a matter of degree, on which it would not be for me to make a judgment. It must be for the parties to judge ultimately whether or not their relationship can survive the conflict.
The point that I am trying to make is a separate one; namely, that it is quite clear from every study that if a child retains a good relationship with both parents the child will be the better for it. Therefore, the thesis on which I am operating is that we should do nothing to damage the relationship of the child with either parent by introducing any unnecessary conflict between the child and parents in the divorce process.
Let me answer the question put by the right reverend Prelate the Bishop of Liverpool. He pointed out that it is not conflict that is at issue when judging the length of the period. What is at issue then is the question of uncertainty: how long should that uncertainty he which is involved in the period of consideration and reflection? It has been suggested that a year is a long period of uncertainty in the life of a child. I agree that that is a difficult question and we are not absolutely sure of it at present.
§ Lord Simon of Glaisdale
I am most grateful to those Members of the Committee who have taken part in the debate. Naturally, I am particularly grateful to the noble Lord, Lord McGregor of Durris, for bringing us his experience as an academic sociologist, well used to handling statistics, and his knowledge of the need for a control group. After all, not only was he a member of two important committees and not only does he have an academic background but he was one of the three people who carried through the very important statistical survey on separated partners.
I am grateful also to my noble and learned friend the Lord Chancellor for giving the figures in relation to age of responsibility for the laws concerned with the welfare of children. He did not deal with all the details. He gave sufficient to enable us to make up our minds but, with his consent, I shall place his letter to me in the Library.
Considering the argument on age, it seems preferable to plump for 18, as suggested by the noble Baroness, Lady Elles. I took the age of 16 largely because that is the age that appears in most of the statistics and because it is the age of consent to marriage and the age of leaving school. But in these days of further and higher education, one wants to look further, as indeed the law does in some circumstances, as my noble and learned friend suggested.
My noble and learned friend was noticeably cautious in reply to the crucial question put by the noble Lord, Lord Stoddart of Swindon; namely, whether this 827 measure will lead to more divorce, about the same number, or less. If there are more divorces, more children will he placed at risk.
Although he was cautious, on the whole my noble and learned friend's argument was optimistic; that is, that it is best for children to have a happy relationship with both parents after divorce. The Committee was perhaps reminded of the highly optimistic speeches that were made in 1969. Lord Stow Hill declared himself enthusiastic for the Bill, whereas we now have it denounced by its very author—the Lord Chancellor's Department. Not only is there that background, but also is it reasonable to be optimistic when we have seen the fall-out from the Child Support Act?
The only other point I wish to deal with was adverted to by my noble and learned friend, but put with characteristic clarity by the noble Lord, Lord Irvine of Lairg. He asked how the law can help if a marriage is dead. The central argument in this debate is that, if there is a child, it is impossible to say that the marriage is dead; it is living in the child; it is living in the responsibility of the parents to the child.
I said that this was an exploratory amendment and I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 7 and 8 not moved.]
§ 5 p.m.
§ Lord Simon of Glaisdale moved Amendment No. 9:
Page 2, line I, at end insert—
("( ) there is subsisting no relevant agreement in affirmation of marriage under section (Affirmation of marriage);").
§ The noble and learned Lord said: Amendment No. 9 is different. It gives the parties to a marriage the right to enter into a binding agreement that the marriage,
shall be indissoluble except by death",
indissoluble except by death so long as there is any child of the family".
The crucial amendment in this group is Amendment No. 96 which states:
The parties to a marriage may at any time before, at or after their marriage agree in writing that their marriage shall be indissoluble except by death".
That is a general agreement in affirmation of marriage. The second alternative is that:
The parties to a marriage may at any time before, at or after their marriage agree in writing that their marriage shall be indissoluble except by death so long as there is any child of the family under the age of 16 years".
As a result of the last debate, we should perhaps raise the age to 18. The rest of the new clause is mainly consequential. It, provides that:
A general agreement in affirmation of marriage may be discharged by an agreement in writing to that effect by the parties to the marriage".
In other words, the provision treats marriage like any other contract. What is strange about the Bill is that it does not treat the agreement to marry like any other contract which can be discharged by consent; it treats it as the type of contract that can be discharged by
unilateral repudiation by one of the parties. I have read most of the subsection. But it continues that the agreement may not be discharged even by consent where there is a child under the age of 16, or 18—that turns on the arguments canvassed in relation to the last amendment.
§ It should not be necessary to provide that the parties can enter into that sort of contract. On the face of it, whether at a registry office or in some religious ceremony, the parties have already promised. However, the law regards such promises, made even in such solemn circumstances, as being able to be cast off not only by consent but also by the wish of only one of the parties, however much to the detriment of the other, however oblivious to the welfare of the children. It is only because we have got into that situation in the law and are getting into it further with this Bill that the Committee may wish to consider this amendment. I beg to move.
§ Baroness Trumpington
Perhaps I may be a bore once again and ask the noble and learned Lord whether he is also speaking to Amendments Nos. 17, 34 and 96, which are grouped with Amendment No. 9.
§ Lord Simon of Glaisdale
Once again, I am grateful to the noble Baroness. Those amendments are all ancillary. I shall not speak to them specifically and shall not move them in due course if I withdraw Amendment No. 9. Does that satisfy the noble Baroness? Evidently it does; so my day is made.
§ The Lord Chancellor
My noble and learned friend explained the effect of these amendments, the principal one of which is Amendment No. 96. In the past, in the majority of marriages both parties entered the marriage with the view that they wished it to continue for as long as their joint lives. The circumstances which give rise to divorce are supervening circumstances which are not envisaged by the parties at the time they enter into the marriage.
As I said earlier, preparation for marriage is an important matter and we should consider the nature of available help in that area. Subject to that, creating a second tier, a new arrangement under which there is one type of marriage which is more easily dissoluble than another, would not be very satisfactory.
Since divorce has been available under our law, the possibility has existed that the marriage will come to an end in law before the death of either party. To try to make some new arrangement for one type of marriage where that could happen and another where it can happen only by agreement would not be a desirable development. I believe that what we want to concentrate on is the institution of marriage which we have and we hope that it will he as effective as possible in providing a satisfying life-long relationship between the parties. I would not myself be in favour of supporting this group of amendments.
The Lord Bishop of Liverpool
I rise briefly to support what the noble and learned Lord the Lord Chancellor has said. In considering divorce, there have been times when Christians have been tempted to 829 suggest that civil marriages are somehow less than religious marriages. It is a profoundly unhelpful notion that there are two layers of marriage. It would damagingly and seriously weaken what we mean by marriage, which is when two persons willingly in public make their vows to each other. There is one marriage and it is a true marriage.
§ Lord Irvine of Lairg
I respectfully agree with the noble and learned Lord and with the right reverend Prelate the Bishop of Liverpool. It is the marriage ceremony itself which affirms the marriage. To accept these amendments would be to devalue the solemnity of marriage, whether celebrated in church or in a registry office. I agree that there should not be two tiers of marriage and I associate myself with the noble and learned Lord's desire to strengthen the one institution of marriage that we have. I therefore oppose these amendments.
§ Lord Stallard
I wish to support the noble and learned Lord's amendments. I agree with what the right reverend Prelate said. We accept civil marriage. There is an arrangement and agreement. The point which the noble and learned Lord, Lord Simon of Glaisdale, makes that influences me is that the Bill sets up a new structure where one party to the marriage can say, "It's over and all we have to do now is wait 12 months". That is what makes the arrangement different from what the original marriage agreement was.
One is undermining the marriage agreement by saying that that is the agreement but that it is all right if one of the parties says to the other one, "I'm fed up with this. Let's wait 12 months and get out of it". We have set up this new agreement and many people will take advantage of it. That is why we are concerned that the Bill diminishes the sanctity of marriage. That is why the amendment needs a little more consideration than it has been given.
§ Lord Simon of Glaisdale
I am again grateful to those who have contributed to the debate. The normal principle of English law and, I think, of Scottish law too—in fact of most civilised systems of law—is that the parties can enter freely into such agreements as they choose provided the agreement is not contrary to public policy. What I envisaged in this amendment is that the parties can affirm the promises now regarded so lightly by the law that they made at the marriage ceremony. They can affirm those promises. In particular they can affirm the indissolubility of marriage so long as there are young children to whom they thereby recognise they owe an obligation. Is that against public policy? Is it not rather in accord with public policy? If so, why are we so reluctant, why are we so avid for divorce that we refuse the couple that freedom to contract?
I undertook at the beginning of the Committee stage not to press any of these amendments. Having said that, and, I am afraid, being dissatisfied with three of the speeches that have been made, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.830
§ 5.15 p.m.
§ Lord Archer of Sandwell moved Amendment No. 10:
Page 2, line 2, leave out ("attending information sessions") and insert ("obtaining information").
§ The noble and learned Lord said: With this amendment, if I may spare the noble Baroness, Lady Trumpington, an unnecessary intervention, your Lordships may find it convenient to discuss Amendments Nos. 63, 65, 67, 70, 76, 77 and, although I think it is not included on the written list of amendments, 75, in the name of my noble friend Lady David.
§ Amendment No. 10 is as one born out of due time because really it is a paving amendment for a group of amendments to Clause 8. I hope your Lordships will not think the less of it for that reason. Clause 8 seeks to provide that before making the statement which effectively initiates these proceedings the party making it must have attended an information session. If the other party wishes to make or contest an application, that party must attend an information session. Clause 8(4) defines the expression "information session"— I paraphrase—as a meeting for the purpose of providing information about matters which may arise under the Bill.
§ We have no quarrel with the purpose of providing information to the parties about the provisions of the Bill. I presume to say "we". The noble Earl, Lord Russell, who was kind enough to add his name to my amendment, has explained to me that he has an unavoidable commitment and consequently has to be absent and my noble friend Lady Birk has for family reasons to be absent too. But I think I can presume to say that we have no quarrel with providing information on the provisions of the Bill and, I suppose, the consequences of making or opposing an application. That seems to be a valuable idea which might be extended to other areas of law. As the noble and learned Lord the Lord Chancellor said in an earlier debate, it may be that a clear understanding of what is involved may serve to dissuade the parties from proceeding with the divorce. Although I think the noble and learned Lord said it in the context of mediation, it may apply very much too to the giving of information.
§ What troubles us is that the Bill appears to envisage a meeting as the only method of providing that information. That raises a number of questions in our minds. First—this is perhaps the most glaring one—are both parties to attend the same meeting? I think we have the answer to that because on Second Reading the noble and learned Lord the Lord Chancellor was kind enough to confirm, in answer to a question from the noble Earl, Lord Russell, that no one will be compelled to attend a meeting with the other partner to the marriage. That is what we would expect. It does not seem appropriate that they should attend the same meeting, particularly when it may have been a marriage where violence was involved. But even where the husband is not present some women may be so reluctant to attend a meeting where friends, neighbours or other people they know can see them coming and going that they actually may decide not to avail themselves of the provisions of the Bill. It would be helpful if the Committee could be told 831 whether it is envisaged that meetings will he on a one-to-one basis or whether a number of potential divorcees shall attend at the same time.
§ We would also be grateful for some indication of the kind of venue that is envisaged. National Family Mediation has wide experience of matters relating to mediation and, presumably, to the giving of information. It emphasises the importance for this purpose of accessible, comfortable and relaxed premises. Clearly, if someone who is already under stress is on the verge of a nervous breakdown because they could not get through the door or make themselves heard, or who had to pass through a group of friends and neighbours, that is not going to assist the purpose of the provision.
§ Will there be guaranteed privacy? Parties wishing to discuss their position as opposed to sitting silently and listening to a more or less formal lecture—and I assume that is not what the noble and learned Lord has in mind—must be entitled to privacy and confidentiality. From time to time I have occasion to visit venues where tribunals are heard. I have sometimes been in attendance when the tribunal was deliberating in private and discovered that we could hear every word of the conversation taking place in the next room. I assume that anyone sitting in the next room could hear every word of the conversation. So clearly some attention has to be paid to the venue.
§ All this may be particularly true of women from minority ethnic groups where there are frequently cultural inhibitions about public discussion of private issues. The Women's Aid Federation, to whom I am indebted for a great deal of advice on this, is concerned that these problems may bear disproportionately on wives since in any event more women than men seek divorce.
§ I hope that the noble and learned Lord can tell us whether the information session is seen as a substitute for legal advice and representation. The normal way for a person to obtain information of this kind is to seek it from a solicitor. There may be circumstances where those considering the grant of legal aid may be satisfied that the applicant has access to all the information and advice which may be relevant, but normally, I assume, a party will want to discuss the various orders which may be made in the circumstances of that specific family in relation to maintenance, property and provision for the children. Unless a confidential discussion can take place with a knowledgeable individual who is there to look after the interests of the party concerned and who is on that party's side, no meeting can be a substitute for a session of that kind with a solicitor. When he replies perhaps the noble and learned Lord can assist us as to the relationship between the information session and the proposals for mediation. I assume that part of the information to be given at the information session will be about the availability of mediation and how to approach a mediator. Presumably, it will not be the same people who do both. Any assistance which the noble and learned Lord can give us on that matter will be welcomed.
§ There are various ways of getting information and Relate has made some helpful suggestions about that. One way is to provide information packs or videos. 832 There is a whole spectrum through to sessions with trained counsellors. Our problem of course is that the provisions relating to all these matters are to be in regulations. Clearly, the noble and learned Lord cannot anticipate in detail the regulations which he is proposing to make, but in considering Clause 8 I hope that he will feel able to share with us his thinking on how this proposal will operate.
§ The noble and learned Lord spoke of a number of pilot schemes. I am not clear whether the operation of the Bill is to be postponed until those schemes have operated and the results are known. Obviously that, too, is going to be part of our judgment about the workings of Clause 8. I hope that this debate itself may prove to be an information session because that was our purpose in setting down these amendments. Any further information which the noble and learned Lord can offer as to his intentions may help to alleviate some of the anxieties which have been expressed and enable us to decide whether they are well founded. I beg to move.
§ Baroness David
I should like to speak to Amendment No. 75, which has been allowed to be grouped with these amendments as it was on the previous Committee day, llth January. This amendment is in my name and that of the noble Baroness, Lady Faithfull, and the right reverend Prelate the Bishop of Oxford. It is a probing amendment, the intention of which is to obtain further information about the plans by the Lord Chancellor's Department for pilot schemes to establish the best means of conducting the information sessions provided for in the Bill. We would like to find out how the operation and evaluation of pilot schemes will fit in with the drawing up of regulations and the implementation of this part of the Bill.
We support the provision of information for those considering divorce, which the Bill introduces, but we want the Government's assurance that this information will be given in such a way that those receiving it will be helped to envisage and fully understand the divorce process before they are caught up in it.
Already National Family Mediation's local services are approached by a large number of individuals seeking impartial and child and family-focused information that they have come to associate with mediation and which is available nowhere else. In 1994, 16,000 people approached the then 62 services around the country. These people are already confused, often shocked, by the beginning of a breakdown in their relationship and nearly always undecided about their course of action. Many who first approach a Family Mediation service in preference to a solicitor say that they are fearful that going to a solicitor will begin a legal process over which they will have no control.
It is important that the Government make clear that they intend that information given under the provisions of the Bill will be in a form that continues to be perceived as helpful to those receiving it, so that they will feel safe, comfortable, unstigmatised and treated with dignity; and that the information will be imparted in ways which ensure that they understand it.
833 The venue for information sessions is important, as my noble and learned friend Lord Archer said, and it should not be in a lawyer's office or in a room at the court, unless these are specifically redesigned for the purpose.
For example, National Family Mediation offers a pleasant, professional, informal provision. The venues are furnished with comfortable chairs, with literature displayed about the needs of both children and adults in divorce. There are receptionists experienced in dealing with people caught up in the emotional upheaval of marital breakdown.
National Family Mediation hopes that it will be able to run some of these schemes in order that its professional but non-legal, child and family-focused approach to the provision of information, may be evaluated, along with others. National Family Mediation would wish to encourage the Government to pilot different combinations of a variety of forms of provision of information and my noble and learned friend Lord Archer mentioned some of them. NFM has a number of proposals for these information sessions and I hope that the noble and learned Lord's department will discuss with it the various ways of providing this service.
I should like to say how grateful I am to the noble and learned Lord for the letter he wrote to me after Second Reading in which he said, about the information sessions:As I said in closing the debate, I do not yet have a definite idea of how the sessions should be arranged, and would welcome any advice or comment on the subject".I believe that both my noble and learned friend and I have made some comments, which I hope very much will be helpful.
§ The Duke of Norfolk
I say very briefly to the noble Lord, Lord Stoddart, that I believe that this Bill will have a very great effect on marriage. I believe it is the turn of the tide and that we are going to see far less divorce and more family life as a result of it. I greatly support the noble and learned Lord the Lord Chancellor in all his efforts to bring this legislation before your Lordships' House and in particular his White Paper.
I turn now to the enormous group of amendments which basically deal with counselling and advice. I want to refer to the totality of the advice that is given to married couples. Unfortunately, at the moment couples tend to get married but the Churches then have less and less effect on their lives. In some ways, we are living in a country that is becoming more and more pagan. Oh that the Churches had more effect after the marriage ceremony! I am speaking not merely about the Church of England, but also about the Popish Church to which I belong. People get married in my Church but do not see enough of their priest or talk about their marriage difficulties with him.
At the moment, marriage counselling is successful in 25 per cent. of marriages. That is an enormous figure. I should like marriage counselling to start with advice being given by the social welfare people and, of course, by the Churches to try to assist the very young before 834 they become engaged. That should continue after the engagement, during the marriage and once there are children. Marriage counselling and help should continue throughout a marriage.
I have heard it said that there are very few people available who can carry out marriage counselling. My eldest daughter is a marriage counsellor. She has passed her marriage counselling exams and interviews. She is an example of one category of person who is most suitable for marriage counselling work. She has four children. They are now on their way, having been to university, or about to go. She has what in America would be called an "empty nest". That is a wonderful phrase. It means that she has the spare capacity with which to help people. Someone who has had a family of four and who has an empty nest not only knows a lot about bringing up families but has the spare capacity to help.
Another group of people who would make very good marriage counsellors are widows or widowers. They know a lot about marriage and they too have the spare capacity. Another group are, of course, the divorced because they often see the sadness of their break-ups.
We should increase the assistance that is given to married couples from the very start to the very end of their marriage. We should do so through marriage counsellors and the Churches. It is essential that state money is provided. At Second Reading we talked about £3.5 billion being the cost of divorce in one year with only £3 million being given to marriage counselling. I should like to see an enormous sum of money made available to marriage counselling under the supervision of the noble and learned Lord the Lord Chancellor in order to stop the awful increase in the number of divorces and to protect married life and the family life of our young children.
§ 5.30 p.m.
§ The Lord Bishop of Oxford
Some important questions have been raised by the noble and learned Lord, Lord Archer, and the noble Baroness, Lady David. We on this Bench shall listen with interest to what the noble and learned Lord the Lord Chancellor says.
I should like to stress two points from the Bishops' point of view. First, we place great store on the information sessions. They are a crucial feature of the Bill. It is at such sessions that people will be offered information about, and told of, the availability of, marriage counselling and mediation services. Therefore, the context in which the information is purveyed and the people who purvey it are desperately important. It is vital that those who attend the sessions are ready to hear such information.
The noble Duke, the Duke of Norfolk, was looking ahead—to the great value of the Committee—when he referred to a later group of amendments about marriage counselling. It is at the information sessions that the availability of marriage counselling will be made known. If the noble and learned Lord the Lord Chancellor is willing to accept what I say I hope that it will be free marriage counselling. We place great stress 835 on the information sessions. It would be appalling if they became a perfunctory formality. They need to he taken with the utmost seriousness.
§ Baroness Hamwee
I agree very much with what the right reverend Prelate said, including his points about the need for marriage counselling and the necessary funds. The point was also mentioned by the noble Duke. I have to say, however, that I do not altogether agree with the noble Duke on one matter. I think it is important that counsellors are trained so that they bring their professional expertise, and not their personal experience, to bear as their major contribution to the counselling sessions.
In supporting the group of amendments on information sessions, perhaps I may say that it seemed to me on Second Reading that the word "session" was too prescriptive, despite the way in which the noble and learned Lord the Lord Chancellor explained what those sessions might comprise. The noble and learned Lord said that he hoped to arrange pilot sessions. I use the word "session" although I do not think it a good word to use because it suggests something large and communal such as a group. I do not think that that is helpful. I hope that that is not what is intended, at any rate not for all of those who require information.
The word "session" suggests that, even though it may not be open to the general public, the fact that the session is taking place may be public information. That in itself may lead to considerable difficulties for those who may be attending. Indeed, it may act as a disincentive to those who should attend and who are considering what steps they should take next. I refer, for example, to the fact that their attendance at a session may become general knowledge within their own community and to the effect that that may have on the children. Your Lordships have already discussed the effect on children at great length. I am deliberately using an extreme example, but if public figures were involved, tabloid newspapers could "doorstep" the sessions.
It is because of the difficulties surrounding the word "session", without questioning the underlying proposal that information should he made available, that I hope that the noble and learned Lord will reconsider the terminology used to describe the information sessions.
§ Lord Stoddart of Swindon
Perhaps I may advise the noble Duke, the Duke of Norfolk, that although we differ on the effect of the Bill, I hope that he is right and I am wrong and that there will be fewer divorces as a result of it. On this occasion nothing would please me more than to see the noble Duke proved right and myself proved wrong but, unfortunately, I do not think that that will happen.
I agree with the noble Duke that marriage counselling is most important. It always has been important; it still is; and I hope that it will remain important in the future provided that it is directed at saving the marriage. I fear that much marriage counselling does not go that far. I am sure that the noble Duke's daughter would agree with me completely that marriage counselling is about saving marriages, not the reverse.
836 I hope that the noble and learned Lord the Lord Chancellor will not accept the amendment. I sincerely hope that the least that will be required is that the person who is asking for a divorce—and, indeed, the person who is at the wrong end of it—will attend at a face-to-face session with somebody who can give him or her some information.
As the amendment stands, a person embarking upon an important and far-reaching step could rely upon hearsay information. He or she might receive it over the telephone, or someone else might telephone and pass on the information second hand. Under those circumstances, unless the person were to attend the session face to face, he might receive quite the wrong information through third parties. I do not often disagree with my noble and learned friend Lord Archer of Sandwell, for whose abilities I have a great respect, but I fear that in this case I have to disagree with him, because I believe that the amendment he has moved is not merely wrong in principle; it is badly drafted.
§ The Lord Chancellor
It is a great pleasure for me to find the noble Lord, Lord Stoddart of Swindon, wishing to support a measure in the Bill as against amendments proposed from his Front Bench. That is just an indication of the fact that there is much more common ground between us than a superficial observer of these debates might think. I believe that we are all anxious to do what we can, in practical terms, to support the institution of marriage.
The provision with which the substance of the amendments is concerned is vitally important. In the ordinary course of events, people whose marriages get into difficulties are in the general structure of our society, and whether they know of the existence of services that might help them may be a matter upon which it will be difficult to ascertain their position.
When someone thinks of approaching a court for the purpose of initiating a divorce process, there at least is a contact that will have to be made. I wish to build upon that essential fact to try to ensure that people do not just obtain the information but that they obtain it in such a way that they understand it. In my conversations with district judges, and in conversations between my officials and district judges, it is apparent that often people who are already quite far into a divorce process do not know of the existence of mediation and counselling services. It is important that before people begin—that is where the information session is placed—they should have as good information as we can give them and that also—this is the motivation behind the reference to the word "session"—there is some attempt to ensure that they have taken that information on board. There is a limit to what anyone can do about that matter, but that is why I have suggested an information session.
The first point is to try to obtain some method by which people do not merely have pieces of paper presented to them, but that some effort is made on behalf of the state to ensure that they have assimilated the information as it affects them.
Secondly, I am anxious about the bias of the information. The noble Lord, Lord Stoddart of Swindon, suggested that some marriage counsellors are not so 837 much about marriage counselling as about preparing the way for divorce. I think that is a summary of what he said. My understanding is that marriage counselling has a high success rate. I believe, as my noble friend the Duke of Norfolk said, that some 25 per cent. or so of those who are separated at the time of going to counselling reconciled some six months later, and of those who are still together at the time of going to marital counselling, the majority stay together. That is an important fact. In a sense they have attended earlier in the deterioration of their relationship than the first group, and it would not be surprising that the rate of success is greater. I believe that the earlier the service is available, the better. That is why, like my noble friend the Duke of Norfolk, I attach a good deal of importance to the preparation for marriage, which is referred to later.
The next thing I feel about the sessions is that there should be no bias between the different types of service that may be available. The noble and learned Lord, Lord Archer of Sandwell, referred to legal advice. Legal advice is one of the services about which I would wish information to be available. I also wish information about mediation and marriage counselling to be made available.
One cannot be certain that if one goes to a mediator one will receive a completely objective view about what the lawyer can do. If one goes to a lawyer it is just possible that one might not have as full an appreciation as otherwise of what a mediator could do for one without the help of a lawyer. Therefore I thought that if possible I would like the people who offer the services to be able to present them in the information session. I used the word "session" in the sense that more than one interest would be presenting information.
I want unbiased information on the whole range of services available to be given effectively to anyone who is thinking of starting a divorce process. Those are my requirements. What is the best way of achieving them? I think the best way is to try to find out in trials what could be done. Some people may be willing to attend an open session with a number of people. Others would not. It is a question of what is the best method. That is what I want to pilot. My present view is that the Bill. with its new provisions, should not come into force until the pilots are concluded. Obviously I am open to persuasion as the Bill proceeds, but the information session is so fundamental to the whole idea that it is wise to have it in place, with the proper regulations, before the grounds of divorce set out in the Bill become effective law.
I am anxious to secure a phrase in the Bill which emphasises the importance of those provisions of information; the need that they should be effective; and one which still gives me reasonable flexibility to try as many different models as possible. It is fair to say that a regulation-making power is always looked upon carefully by Members of this place. I am anxious not to open it too widely. On the other hand, I believe that what I have said are the essential qualifications—whatever words the Committee might think appropriate—should be considered.
838 I am loath to depart from "information session", for the reasons I have just given. It may he that we could devise alternatives if the Lord Chancellor were satisfied that in given circumstances they were as effective as face-to-face sessions. Obviously there are some people who might be unable to attend a face-to-face session. Regulations would have to deal with the special circumstances of the housebound and people of that sort who might he in a difficulty. It is the essential quality, the essential nature, of what is in issue that I wish to set before your Lordships. I also attach a good deal of importance to confidentiality. In many cases, the last thing that a person wishing to repair his or her marriage will wish to disclose is that it is in difficulty. Therefore, for some, confidentiality of the information might be important.
I have the impression that a video presentation may be a useful way of presenting the matter to many people, having regard to the extent to which such visual means of communication are used today. That is what I want to try, and I wish to give people the chance to ask questions but not about their own particular circumstances. The last thing on earth that I want the information sessions to do is to pry into the circumstances of the individual who attends, except in so far as he or she wishes to ask about the nature of the services. That kind of discussion will take place at the taking up of the appropriate services. The information sessions are intended to be preliminary. That is what I have in mind, and the wording that I have used is designed to encapsulate that. If Members of the Committee can improve on it while still giving the essential quality to the efforts that I have indicated, I shall be happy to consider it.
§ Lord Archer of Sandwell
I am most grateful to the right reverend Prelate the Bishop of Oxford for saying what was in my mind even if I had not expressed it—that those of us who have tabled the amendments regard the information sessions as of great importance to the whole scheme of the Bill. As the right reverend Prelate said, one of the points that might emerge from the information sessions is the availability of marriage guidance and conciliation so that divorce may not proceed. I am grateful to the noble Duke, the Duke of Norfolk, for having pointed out the importance of that aspect among the various kinds of information we are discussing.
Clearly, I misled my noble friend Lord Stoddart. When he and I disagree it is always important that we look carefully at where we are disagreeing. I suspect that in many cases it is that I did not express myself very well and I misled him. Believing as I do in the importance of the information sessions, it was no part of my intention to propose that they should be dealt with in a cavalier way and that the information should he given in a perfunctory manner. Quite the reverse. I had hoped that the Committee would wish to be satisfied that the information sessions would be in a form which would not deter any of the parties from wishing to attend, would not intimidate them before they arrived and would ensure confidentiality, if that was in their minds. That was the purpose of our initiating this debate.
839 I suspect that the noble Baroness, Lady Hamwee, put her finger on the point when she said that the word "session" could be misleading in this context. Perhaps if anything has emerged from the debate about the actual form of the Bill it is that we could all direct our minds more carefully to the use of that word. It conjures up the kind of public procedure that will ensure that some people will not avail themselves of it.
Another matter emerged largely from the comments made by my noble friend Lady David, and I am grateful to her for her amendment. We wished to know the kind of information that would be placed before the parties at these sessions. The noble and learned Lord the Lord Chancellor has been extremely helpful in sharing his thinking with us. Clearly, all the various kinds of information of which people may wish to avail themselves will be made known to them, including the possibility of seeking legal advice where that is appropriate. I am grateful that the noble and learned Lord shares our view on that.
As for the pilot schemes, I am heartened to learn that many flowers will be encouraged to bloom. Perhaps afterwards we can assess the results. My question as to whether at the moment the noble and learned Lord was thinking of implementing the Bill before the pilot schemes have taken place has been answered. I am relieved to hear that at the moment that is not his thinking. It may be helpful if the noble and learned Lord can tell us the kind of time schedule that he has in mind as regards the schemes. Perhaps he is unable to tell us off the cuff now—
§ The Lord Chancellor
I am grateful to the noble and learned Lord for giving way. I believe that something in the order of two years is reasonable for testing out the information-giving methods which we wish to use. It will take some time to set up the pilot schemes and, as I said in my letter to the noble Baroness, Lady David, we shall wish to take account of all the views. We have already received some views, but there are so many issues in the Bill that I am sure there will be more detailed views about the form that the information-giving technique should take. I should like to set up the pilot schemes in the light of that advice and information and test them out. We would wish to give the pilot schemes a reasonable chance to work before we try to assess which we should adopt. Therefore, two years seems to me to be a reasonable estimate at the moment. As Members of the Committee know, estimates are apt to vary, but I would not wish to hurry the implementation of the Bill to the prejudice of effective information-giving arrangements. They are at the heart of the Bill as I see it. They are an aspect of the Bill which is not so obviously helpful on first reading. I believe that underlying this is an important consideration and I would be inclined to take time over the matter.
§ Lord Archer of Sandwell
I am most grateful to the noble and learned Lord for again sharing his thinking with us. Getting the balance right is difficult. I fully understand that it may take a little time to put the pilot schemes in place, then to pursue them and then to evaluate them. As a lawyer—and I am sure that the 840 noble and learned Lord will understand my thinking—I am always reluctant to legislate by having a statute in limbo for too long a period of time. However, achieving the right balance may be a matter to which we all need to give our minds.
No doubt in due course my noble friend Lady David will decide whether to move her amendment. Having ascertained from the noble and learned Lord the substance of his thinking, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Hamwee moved Amendment No. 11:
Page 2, leave out lines 4 and 5.
§ The noble Baroness said: Amendment No. 11 is grouped with Amendments Nos. 85, 87, 88, 92 to 95 and 190 to 196. It is a preliminary to the debate on Clause 9. I have tabled it in order that the Committee might spend a little time considering a matter on which the Government disagreed with the Law Commission. It is whether a divorce should be granted before all the arrangements relating to children, finances and property have been made, where the balance should lie between the finalisation of those arrangements and divorce and whether it is appropriate to provide that in most cases those arrangements should be completed with exceptions to the position. In the debate on Second Reading, the Lord Chancellor commented that it was an important and "significant" change from the Law Commission's recommendation. Perhaps I may apologise to the Committee but my speech will consist largely of selected quotations from the Law Commission's report because it seems to me that that is the most helpful basis on which to proceed.
§ At paragraph 5.56, the Law Commission reported that a number of respondents had argued that divorce should not be granted until the arrangements had actually been made but that the major objection to requiring that in every case was that it played into the hands of an unreasonable, spiteful or malicious spouse who could delay the resolution of issues for a very long time and thus deny the protection of divorce to, usually, the weaker spouse and to the children and create a formidable bargaining chip for the more powerful party.
The Law Commission said:
A new system must obviously try to balance the injustice which would be caused by allowing an unreasonable, irresponsible or vindictive spouse to delay matters indefinitely against, on the other side, the injustice of allowing a spouse to escape the marriage without making a serious attempt to consider how to discharge responsibilities towards the children and the other spouse".
The court should have a discretion to postpone the granting of a divorce or separation but only where this is desirable to safeguard the interests of those who would be prejudiced if the divorce were to go ahead before proper arrangements were made and that it would rarely be in the interests of anybody to prolong the uncertainty".
One must agree with that.
At paragraph 5.60, the Law Commission said that it,
recognised that ability to apply for postponement could be a powerful weapon in the hands of an obstructive or vindictive party".
It recommended that where one party applied for postponement on the basis that proper financial arrangements had not been made, the court should direct its mind specifically to whether there were any circumstances making it appropriate for the arrangements to be made before the divorce and separation took place and referred to the conduct of the parties and any prejudice that either party or the children would suffer in the event of delay. The report stated:
One party should not be allowed to take advantage of his or her deliberate failure to make or contribute to the making of financial arrangements to the prejudice of the other party or children".
That is the nub of it—whether one party, by his or her own action, can use his or her own deliberate failure.
§ The Government have chosen the other course; namely, to provide for arrangements to be required with the specific exceptions set out in Schedule 1. I well understand the view that it must be best to have everything agreed before the divorce takes place. I hope that in the new arrangements that are being made the mediation process will very frequently achieve that, especially because the new procedures should ensure that financial and other arrangements, particularly regarding the children, should not be used as a bargaining chip. It was not only the view of the Law Commission that the balance should be the other way round. It was also the view of the Solicitors Family Law Association which represents some 3,500 family law practitioners. I appreciate that many amendments in this group have a completely different thrust from my amendment. Nevertheless it may be helpful to spend a little time on the question of that balance as well as on the question of whether the bar should be made more difficult. I beg to move.
§ 6 p.m.
§ The Lord Chancellor
This is an important group of amendments because it raises a question which is fundamental to the structure of the Bill as regards arrangements for the future being reached before a divorce is granted. I believe that to take that out and follow the Law Commission's recommendation would remove from the Bill one of its major aims and significantly weaken its impact. The Committee can be assured that with the Law Commission's views before the Government, this was a carefully considered decision.
The reason I feel strongly that what the Government have put in the Bill is right is that, first, I think it correct that before parties are granted a divorce they should be required to face up to the responsibilities that they have undertaken in marriage. Those responsibilities are of a fundamental nature, particularly, of course, the responsibility for the care and support of the children. There is also the issue of how their own mutual arrangements are to be conducted after divorce. The first purpose is to make the parties face up to the responsibilities they have already undertaken and to face them in a clear and unequivocal manner.
The second point, which I sought to make in answer to the intervention of the noble Earl, Lord Perth, is that it is important that parties look to the future as 842 realistically as they can and compare what the future is likely to hold with what they have at present. For example, if it sinks into a father that he may see his child, whom he loves very dearly, only very rarely and in rather difficult circumstances, he may feel that it is better to try to restore the existing relationship than to go forward into the wilderness.
The third point I wish to make is that an examination of statistics shows that second marriages of people who have been divorced are likely to be more fragile than the first. There may be many reasons for that; at least one is that the responsibilities of the first marriage continue to intrude upon the second. Both as Lord Chancellor and before, I have seen circumstances in which both parties to the second marriage make strong references in relation to discharge of responsibilities of the first marriage. It is extremely important that before an order of divorce is pronounced, the parties should face up to their responsibilities in order to ensure that before they go forward to any other relationship they know as precisely as it is possible to know what is the position. Of course, circumstances in relation to maintenance and so on may have to change.
I understand well that the practitioners of the law in this area may go along with the Law Commission for reasons set out in the Law Commission's report, as the noble Baroness, Lady Hamwee, reminded us. Naturally that weighs with me. However, I consider that, ultimately, the court has power and is very astute in knowing how to handle people who are being deliberately and unnecessarily obstructive.
On the other hand, I believe that it is really fundamental to the existing marriage that, before it is dissolved, the parties should face up to their responsibilities. Of course, that is a change from the existing law so far as concerns property. I also believe that it is a change which will have the effect of supporting the institution of marriage by requiring people to face up to their responsibilities.
We hear from time to time about making divorce easier. Whatever can be said about that, the proposal would not make it easier; indeed, it would make it more realistic and comprehensive. Therefore, I wish to resist amendments to remove it. Obviously we need to look at the provisions of the exceptions, and there are later amendments which will deal with that aspect. However, I have endeavoured to detail the exemptions in order to try to address realistic problems in the area. I believe that the principle is one which is fundamental to the Bill. I hope that Members of the Committee will support me in that point of view.
§ Lord Meston
Grouped with this amendment are several amendments which arc tabled in my name, including Amendments Nos. 95, 195, 196 and also Amendment No. 85. As Members of the Committee have been told, Clause 2 states that the "requirements" of Clause 9 must be satisfied and Clause 9 itself stipulates that,requirements as to the parties' arrangements for the future",must have been put in place. I give way to the noble and learned Lord.
§ Lord Simon of Glaisdale
I am sorry to interrupt the noble Lord, but I am not quite clear as to the amendment to which he is speaking. I realise that it is my fault but, nevertheless, I should like clarification.
§ Lord Meston
I am sorry if I did not make it clear. I am adhering to the groupings list, which, as I read it, has grouped Amendment Nos. 85, 95, 195 and 196, among others, with the current amendment. I hope that I am right in that respect.
§ Baroness Trumpington
I believe the noble Lord has left out certain amendments. Is he aware of that fact?
§ Lord Meston
Yes. I hasten to say that I did use the words "among others" to cover that fact. I am confining myself to the amendments which concern me directly.
The principle which the noble and learned Lord just stated is one with which I would not argue. In particular, the noble and learned Lord struck a chord with me in suggesting that the present system has a fault in allowing the parties to carry into their second marriage too much unfinished business from the recently dissolved first marriage.
The first point that I would like to make is merely a drafting matter. Clause 9(4) states baldly:Schedule 1 supplements the provisions of this section".Thereafter, Clause 9(5) refers one to the three existing exemptions which are set out in the first schedule. As a matter of drafting, I wonder whether it might be easier to read if subsections (4) and (5) were merged and, better still, if the exemptions presently in the schedule were set out more clearly in the main body of the clause. However, that is a peripheral point.
I turn now to my main point, which relates to Amendments Nos. 95, 195 and 196. In the schedule as presently drafted, there are three specific exemptions from the requirement that financial arrangements should have been finalised before a divorce or separation order can be made. They deal with situations where the other spouse is absent or is so awkward or so afflicted that it is impossible to make arrangements. The amendments which I wish to introduce into the schedule would provide a fourth and fifth exemption.
In Amendment No. 195, I seek to insert a fourth exemption which would provide that the circumstances,are that the children of the family, or any of them, are the subject of care proceedings and it is in their interests for a divorce order to be made notwithstanding that the parties are unable to make arrangements for them".That is designed to deal with the situation where the children mentioned in the original statement will become the subject of care proceedings during the following year, so that the parents are unable to make arrangements for them. It may be very much in the interests of those children for there to be a divorce before the care proceedings are resolved as it may facilitate their return to one or other of the parents.
Amendment No. 196 suggests another exemption in the following terms. The court must he satisfied that,the requirements of Section 41 … have been satisfied; [that] 844 "both parties have considered and reflected on their financial arrangement and concluded that it is in their interests or that of a child of the family not to determine their financial affairs finally until some future date; and,
that it is reasonable for the parties", to have reached that conclusion. That is designed for parties whose financial affairs cannot he fully or finally determined until after divorce at some possibly uncertain date.
There are those who have good reason to wait because important imponderables have not been clarified. For example, the outcome of a financial settlement can, quite often, depend on an expected inheritance, the attitude of a pension fund or even—dare I say it in these days?—the crystallisation of substantial Lloyd's losses. It is my suggestion that that sort of provision should enable parties to proceed to a divorce if they can satisfy the court that there is a good reason to wait.
Amendment No. 85 is designed with a different purpose in mind. As the Bill stands, the requirements in Clause 9(2) involve the possibility that "one of the parties" may declare to the court that he or she has "no significant assets" and that,the party making the declaration does not intend to make an application for financial provision and believes that the other party does not intend to; and [that] there are therefore no financial arrangements to be made".The amendment seeks to question whether it is appropriate to proceed on the unilateral declaration of one party. I suggest that the declaration should be something that is made by each of the parties to the marriage.
As drafted, the provision that a divorce may be granted on the declaration of one party that there are "no significant assets", that he does not intend to make an application for financial provision and that he believes that the other party does not, is a potential gift to the unscrupulous. At the very least, the court should have a duty to investigate the bare assertion by one party that there are no significant assets and that he believes that the other party does not intend to make a claim. Otherwise, the unscrupulous husband could simply tell the court that he thinks that there are no assets of any significance and that he does not believe that his wife (whom he may have bamboozled in some way) intends to make a claim. He can then proceed to obtain a divorce. Surely the declaration in Clause 9 is of such importance in these sorts of cases that it should be a declaration of each of the parties to that effect.
I am conscious of the fact that the noble and learned Lord the Lord Chancellor has his own amendment, Amendment No. 87, which includes a provision that,no objection has been notified to the court by the other party.I suggest with respect that even that is rather too weak to prevent misuse of Clause 9 by the unscrupulous.
§ Baroness Young
The grouping contains at least three amendments to which my name is attached. It may be helpful to address them now. However, if my noble and learned friend would rather reply to the amendment of the noble Lord, Lord Meston, first, I am happy to speak later. I understand he is happy for me to continue. 845 I believe that Amendment No. 92 should not be included in this group of amendments. I would prefer to speak to it separately. It may he helpful, however, if I speak to Amendments Nos. 93 and 190.
Although the amendments are grouped together, my amendments have quite the opposite effect of those proposed by the noble Lord, Lord Meston, which widen the provisions whereby a divorce can he granted against the wishes of one of the parties. As this seems to me in principle undesirable, my amendments operate in exactly the opposite direction. I may have misunderstood the noble Lord's proposals but as far as I can see he is not only extending the scope of Schedule I but adding another provision under that schedule which makes a further exemption regarding children who are—I believe he said this—subject to care proceedings. That simply widens the number of exemptions in which the Bill gives power to the court to make a divorce order at the request of one party even if no financial agreement has been reached at the end of the one-year waiting period.
I am unhappy about Schedule 1. The purpose of Amendment No. 93 is to prevent the court making a divorce order under this provision in the case of hardship as defined in Clause 10. A further amendment in my name, Amendment No. 115, seeks to insert a new subsection which substantially widens the definition of hardship. Cardinal Hume contributed a remarkable article to The Tablet last week. The cardinal made a point about hardship and stated that safeguards to prevent it should be strengthened. I have amendments down to that part of the Bill. However, in the part of the Bill we are now discussing I feel it important to recognise that the Bill contains powers for the courts to impose a divorce against the wishes of one party to the marriage. I recognise, of course, that there can be vexatious and difficult people. Sometimes people who are being divorced against their will and who have the misfortune still to be in love with their partner do become unreasonable and do not want the divorce to happen. It seems to me that their needs might at least be considered. We need to think of that kind of case.
As I understand the Bill—I am not a lawyer and I may not be correct—there are no effective powers for the court to bar a divorce. I believe that we shall discuss the hardship question later. I shall be interested to hear what my noble and learned friend has to say. It seems to me there are various dangers. It will be possible for one party to be divorced against the wishes of the other where the discussion on financial matters can effectively be guillotined. That could lead to hasty and unfair arrangements and could allow arrangements to be made in the absence of one spouse. There are further difficulties under Schedule 2 which, on my reading of it, is in parts loosely worded. For example, paragraph 23B(1)(b) states:Where the court is not satisfied that there are special circumstances making it appropriate for the order to take effect at an earlier date".The term "special circumstances" seems rather loose. I do not know what it means; perhaps we shall have that explained to us as the Bill proceeds. As I indicated, 846 these are not amendments which I wish to press today but they open up a whole area where we need more clarification and debate as regards what we are proposing under the Bill for a divorce where one party to it is unwilling.
§ Lord Meston
I hesitate to interrupt but the noble Baroness is perhaps wrong on one, or possibly two, points. However, we are not as far apart as she may have suggested. The exemption I seek to introduce in Amendment No. 196 would only operate if both parties decided that there was a good reason to proceed to a divorce without having finalised their financial arrangements. In other words, it is an agreement of both parties which does not, and indeed could not, depend upon a unilateral action. Amendment No. 85 is designed to remove the possibility of one party proceeding by a unilateral declaration that there are no significant assets and persuading the court to provide a divorce on that basis. It requires that both parties are agreed that that is the situation, so that there is no abuse of the provision unilaterally.
§ The Lord Chancellor
I shall deal with the amendments of the noble Lord, Lord Meston, first. I accept the view that it is necessary for the view of the other party to be taken into account in connection with the suggestion that there are no assets and the like. The noble Lord does not care for my amendment. I am perfectly content to review that in the light of his amendment because I think we are agreed. As regards the amendments which introduce new exemptions, I have more difficulty.
As regards the new fourth exemption, I believe that the court, when considering whether the requirements of Section 41 of the 1973 Act have been met, will consider if the child is in care, and, if so, will not bar a divorce simply for that reason, assuming that no order or no further order is needed under the Children Act. Therefore I do not think that another exemption is required because that is a situation with which the court could deal.
The new fifth exemption deals with the possibility of change. I believe I picked up the examples of expected inheritance and possibly the opposite of an expected inheritance—the quantification of a particular type of loss. I should have thought that it would not necessarily he wise to postpone the arrangements completely on that basis. It should be possible to deal with the arrangements. If an expected inheritance is to be taken into account, who knows how long that might affect the situation? I find it difficult to accept that we should regard that as a reason for not making arrangements so far as they can he made. There may be aspects of the arrangements which cannot be fully finalised, but that is taken care of. I do not believe that it is satisfactory to say that that should be an exemption from making the arrangements as a precondition of obtaining a divorce.
As regards the amendments of my noble friend Lady Young, I am concerned that the arrangements should be as tight as possible. I believe that the arrangements contained in the schedule are as tight as is reasonable. Amendment No. 92 seems to go in the opposite direction, and I would find it difficult to accept it.
847 My noble friend explained Amendment No. 93 as a matter which will arise in connection with the hardship bar. I entirely agree with her that the hardship bar is a very important aspect of the proposals. Obviously the precise terms in which it is expressed require consideration. My noble friend referred to Cardinal Hume's article in The Tablet, which was also published in an edited version in The Times on Saturday. I found it extremely helpful. It focuses on the hardship bar as a matter which requires further consideration. I believe that that is right, particularly in relation to children, but there are also other aspects which are brought forward in later amendments.
I believe that the arrangements requiring people to face up to their responsibilities are as tight as they reasonably can be. I believe that they are correct in principle. I believe that my noble friend agrees that there should be a requirement for those responsibilities to be faced before a divorce is granted. So far I have not been persuaded that we need to enlarge the exemptions, which are dictated only by the practicalities of the situation.
§ 6.30 p.m.
§ Baroness Young
Before my noble and learned friend sits down, perhaps I may ask him a question for clarification. My concern about this particular group of amendments and this part of the Bill is how far the court can go against the wishes of the spouse who does not wish to have a divorce. If I understand correctly what my noble and learned friend said, he feels that he cannot go further than what he has already said. However, there could be circumstances in which it could be unjust for someone to face a divorce before they are convinced about the financial and other circumstances being settled necessarily within the year.
§ The Lord Chancellor
It is a misunderstanding of the provisions of the Bill to suggest that the settlement of the financial matters could in any way reduce the period for consideration and reflection. Under the terms of the Bill, the year is a minimum. The need to settle financial matters may well extend that period. That is why I say that a year is the minimum. The need to settle financial matters and other matters, including most importantly of all the arrangements for the children, is a requirement which may well mean that the divorce is postponed for longer than a year, depending on how the arrangements are made. Therefore, the mere fact that a settlement has taken place, if it takes place, in the sense of agreeing what the future should hold, within a year does not mean that the divorce will be granted within a year.
I am not sure whether I have answered my noble friend's question, but I hope that I have.
§ Baroness Young
I am grateful to my noble and learned friend the Lord Chancellor. I shall certainly read carefully in Hansard what he said because this is an important point. He now says that the divorce cannot he granted in certain circumstances until after a year or until agreed arrangements are made in respect of finance and the children.
We shall return to this matter when we consider the hardship bar, which is relevant to the amendment. In the meantime, I shall not move my amendment.
§ Baroness Hamwee
I realise that with this somewhat awkward grouping of amendments in the absence of my noble friend Lord Russell I should perhaps have referred to his amendment—Amendment No. 1 93—which seeks further to extend one of the exemptions. However, perhaps that is a matter to which we can return at another stage, although the noble and learned Lord may wish to comment briefly.
In Amendment No. 193 my noble friend seeks to add to the second exemption the words:where there is continuing violence, to the applicant, other party or child of the family".The noble and learned Lord the Lord Chancellor may say that the reference to injury in paragraph 2(c)(i) extends to violence. It may be helpful if he cares to comment on that point now.
§ The Lord Chancellor
Briefly, the circumstances between the parties for interim arrangements and so on are matters that will have to be dealt with under, for example, the provisions in Part III relating to domestic violence and the family home. I do not believe that it is wise to allow the facing up to responsibility to be damaged further by considerations of that kind.
§ Baroness Hamwee
I am grateful to the noble and learned Lord. It may be helpful to review this matter together with the hardship bar and the comments that may be made in that context, even though they are different issues, as the noble Baroness, Lady Young, suggested, although the noble Baroness and I have rather different perspectives on the matter. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 12 not moved.]
§ Lord Meston moved Amendment No. 13:
Page 2, line 8, at end insert ("or before the second anniversary of the marriage").
§ The noble Lord said: Perhaps I may speak briefly to Amendment No. 13 and also to Amendment No. 53, which proposes the omission of Clause 7(4). I hasten to say that I am sorry that Amendment No. 53 may have been misunderstood. What I am about to say should not in any way inhibit the noble Baroness, Lady Young, and the noble Lord, Lord Jakobovits, who support Amendment No. 53, from taking an entirely different point of view. They have their own reasons for seeking the omission of Clause 7(4).
§ What I propose is purely a drafting simplification. Clause 2(3)(c) refers to Clause 7(4), which re-enacts the provision that proceedings for a divorce may not he commenced within a year of the marriage. I do not propose to debate whether that provision has any value. It is the existing law and it is preserved by this Bill. In the context of this Bill there might be something to be said for an earlier intervention if a marriage, sadly, is in difficulties in its first year. However, if the bar is to remain I suggest that it may he clearer to state it in Clause 2(3), as proposed in Amendment No. 13, by simply referring to,
the second anniversary of the marriage".
§ I emphasise that it is a drafting matter. I hope that it is an endeavour to add clarification to the Bill. I beg to move.
§ Lord Simon of Glaisdale
I believe that Amendments Nos. 14 and 16 are grouped with this amendment. Is that not right?
§ Lord Simon of Glaisdale
I shall deal, first, with Amendment No. 16 because it takes up the point with which the noble Lord has dealt. Amendment No. 16 arises out of some confusion which I am sure was my fault. It arose on an earlier amendment, I believe Amendment No. 2. My noble and learned friend dealt with the timings and resumed the point later. I wanted to be quite sure that I understood. It is for that reason that my amendment proposes to leave out,until after that anniversary".Perhaps I may put this situation to my noble and learned friend: there is some very great fault within the first few months of the marriage. At an earlier stage I gave as an example the communication of a venereal disease by, say, the husband to the wife. The wife is clearly entitled to withdraw from cohabitation. As I understood my noble and learned friend's second answer, let us say that she withdraws within a month and at the end of the month she is entitled to move for a separation order. The first question, therefore, is: what about her maintenance during the currency of consideration of her application for a separation order? That cannot take effect—my noble and learned friend will correct me if I am wrong—until after a year. In other words, that is 13 months after the marriage in the situation that I postulated. How is the wife to be maintained during that time? When the ecclesiastical courts had jurisdiction in those circumstances they awarded alimony pending suit. That was subsequently taken over by the civil courts. Is that provision still available? If so, will my noble and learned friend remind me of it?
At the end of that 13 months, or perhaps at the end of 12 months, the wife can move for a divorce order. Is there another year after she moves for a divorce order? If so, does the period come to an end 24 months or 25 months after the marriage? Again, I ask about her maintenance during that period. That is the point on which I wish to have my mind clear.
Amendment No. 14 leaves out subsection (3) of Clause 2 which states: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 order".In the example that I outlined as regards the later amendment, the wife is applying for both orders—first, for a separation order, and then a divorce order. However, it might be the husband, at the end of the 12 month period after the marriage, who applies for a divorce order. If that happens, the court is enjoined to give priority to his application for a divorce order. 850 I draw attention to that because it is, again, an aspect of the predilection of this Bill towards divorce rather than separation. We saw it earlier as regards an amendment by the noble Lord, Lord Meston. We shall see it later in the Motion that Clause 18 shall not stand part to be moved by the noble and learned Lord, Lord Archer, and myself. Why is there this predilection for divorce rather than separation?
I do not know whether I should formally move those two amendments. The noble Baroness stays silent.
§ 6.45 p.m.
§ Baroness Trumpington
No, never silent. The noble and learned Lord is speaking to the first amendment which has been moved. The other amendments can be spoken to but not moved until it is their turn. That is my understanding.
§ The Lord Chancellor
My understanding is that Amendments Nos. 13 and 53 are drafting amendments intended to simplify the provisions of the Bill. However, they would allow a statement of marital breakdown made in the first year of the marriage to be effective for the purpose of eventually applying for a divorce order after the second anniversary of the marriage. I believe that to be the effect of the amendments. If I have understood them correctly, that is not the policy on which the Bill is drafted.
Under the current provisions of the Bill, a statement made in the first year is effective only for a separation order which can then be converted into a divorce order after the second anniversary of the marriage. While the actual period of time of obtaining a divorce in both those circumstances is the same, the reason behind the policy was to maintain the one year ban under the current system on petitioning for divorce. In other words, couples would not be able to initiate proceedings with a view to divorce in the first year of their marriage.
Amendment No. 14 is in the nature of a probing amendment, but it is perhaps worth while my indicating how I see it. Its effect would be to leave the court to decide with which application it should proceed in cases where it had applications before it for both divorce and separation orders in respect of the same marriage.
In order to keep the parties' options open for as long as possible, and in order not to commit parties to applying for a dissolution of the marriage at the outset of the period of reflection and consideration, it is intended that only at the end of the period will either party, or both parties jointly, need to choose for which remedy they need to apply.
It is also intended that, with the exception of the hardship bar, the same conditions as apply to divorce should apply to separation orders. Marriage breakdown has the same serious consequences for the parties and their children whether the parties decide to apply to the court for divorce or separation orders; so the process which leads to a court order being made in relation to 851 the marriage, and therefore to important orders relating to children, should be as demanding as that for a divorce.
Not many parties use judicial separation under the present system. However, it is right that a separation order should be available as an alternative to divorce, particularly for those who have, as I said on the last occasion when this point was raised, a religious or conscientious objection to divorce. The reality is, however, that generally judicial separation cases involve irretrievable breakdown; and in practice, when dealing with children and financial matters, the courts treat judicial separation as if it represented a final breakdown.
Adopting the same ground for judicial separation as for divorce would not act as a deterrent to reconciliation. Reconciliation can still occur during the 12-month period for reflection and consideration, just as it does under the present system, and indeed at any time after a separation order is made.
Where, however, at the end of the period one party applies for a divorce and the other spouse applies for a separation order, the court should make a divorce order, provided that the marriage has broken down irretrievably and other requirements relating to attendance at information sessions and decisions about future arrangements have been met, unless an order preventing divorce has been made and subject to the statement not having been made in the first year of marriage. So the important difference is the availability of the hardship bar and the order preventing divorce from being made.
Once a marriage has irretrievably broken down and parties have decided on arrangements for a life apart, there is no benefit for either party or their children in keeping the empty shell of a marriage in existence, unless of course the dissolution of that marriage would result in grave financial or other hardship for the spouse who wants a separation rather than a divorce.
Amendment No. 16 would have the effect of leaving the court to decide whether it should proceed with an application before it in respect of divorce or separation. As I said, in order to keep the parties' options open, we have provided for this.
Financial provisions during the period between the making of a statement and obtaining a separation order can include interim and final periodical payment orders, so that in the case that my noble and learned friend postulated there is the possibility of the court making an order for interim periodical payments during the currency of the litigation. That could be made into a final order for periodical payments—
§ Lord Simon of Glaisdale
I am very much obliged to my noble and learned friend for giving way. Might not the provision in this part necessitate the investigation of hardship? Let us suppose that the wife says, "I am withdrawing because I have had a venereal disease communicated to me", and the husband says, "That's not true. My wife is withdrawing purely because she has decided she does not like the marriage".
§ The Lord Chancellor
The basis on which an interim periodical payment should be made would be a 852 consideration of the whole circumstances and whether or not in the circumstances the court thought it right that such an order should be made—
§ The Lord Chancellor
I am always a little cautious in case I have not fully understood my noble and learned friend's question. I have never suggested that there is any limitation on the particular facts that would be required in order to justify an order for interim periodical payment.
Regarding the rest of his question, as I understand it, if the application was made within the first year, a month after the marriage, the divorce order could not be made until 24 months after the marriage. But during the whole of that time the court would have the power to make interim orders to deal with the justice of the situation.
I heard my noble and learned friend refer to, as it were, a predisposition in favour of divorce over separation. The explanation is that that has to be the structure, subject to the hardship bar. 'The question of hardship might arise in circumstances other than in an application for an order based on the bar, and I am not conscious of ever having said anything to the contrary. But it is quite clear that interim orders would require to be justified on the same basis substantially as exists at present.
§ Lord Meston
Amendment No. 13 was purely a drafting amendment, intended to simplify the provisions of the Bill to the ordinary reader. The noble and learned Lord the Lord Chancellor suggested that it may have gone too far in producing an effect, which certainly I did not intend, of facilitating a statement with a view to a divorce being made within the first year of the marriage. It is a matter that I wish to examine a little more closely and perhaps return to at a later stage. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 14 and 15 not moved.]
§ Clause 2 agreed to.
§ Baroness Trumpington
I beg to move that the House be now resumed. I suggest that the Committee stage begin again at two minutes before 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.