Family Law Bill [H.L.]

HL Deb 22 January 1996 vol 568 cc861-98

House again in Committee.

Clause 3 [Conversion of separation order into divorce order]:

[Amendments Nos. 16 and 17 not moved.]

Clause 3 agreed to.

Clause 4 [Marital breakdown]:

The Deputy Chairman of Committees (Lord Strabolgi)

Before I call Amendment No. 18, I must inform the Committee that if Amendment No. 18 is agreed to, I cannot then call Amendments Nos. 18A to 20.

[Amendment No. 18 not moved.]

8 p.m.

Baroness Young moved Amendment No. 18A:

Page 2, line 31, leave out ("one (or both)") and insert ("both").

The noble Baroness said: I am moving Amendment No. 18A on behalf of my noble friend Lord Ashbourne who, unfortunately, is unable to be here today. The purpose of the amendment is to consider cases where divorce is permitted only where both parties consent to it. I raise this point because one of the issues that has been exercising the minds of many of us is that under the terms of the Bill, unlike the 1969 Act where divorce is available without the consent of one spouse after five years, divorce will become available against the wishes of a spouse at the end of a year, which is a very short time.

It seems to me that in our discussions there has been broad agreement that where both parties agree to a divorce, particularly where no children are involved, it is a relatively straightforward matter. However, when it comes to a divorce in which children are involved, bearing in mind the great concern expressed by noble Lords of all parties in earlier debates, the amendment is helpful. It is not an amendment I wish to press, but I have received much correspondence expressing great concern about divorce being available after a year against the wishes of one party.

It was said at Second Reading that we have the highest divorce rate in the European Union. I have no doubt that the statistic is correct although I have not had an opportunity to check. Of course, divorce could be more difficult to obtain in other European Union countries which is why their divorce rates are not as high as ours. I do not know whether that is the case.

I know of a case in Switzerland which, I recognise, is not in the European Union. One party could not divorce without the consent of the other. It was very many years before the divorce finally came through on the death of one of the parties. There is clearly a great variation in legislation. If we are worried about the increase in divorce and the easiness of divorce, the matter should be considered.

It may help the Committee if I speak also to Amendments Nos. 19, 29, 165 and 166 which deal with a completely separate point. Amendment No. 19 replaces the concept of marriage breakdown with the concept of a state of failure. That is more than a semantic point. I recognise that the concept of the irretrievable breakdown of marriage has existed in law for a very long time. But it is a completely fatalistic philosophy. I thought that Christians believed no human situation to be irretrievable; perhaps I am wrong.

In real life, couples can be reconciled even after periods of difficulty in their marriage relationship. The language of marriage breakdown also removes responsibility from the couple itself. The marriage, rather than individuals, is held to be at fault. I recognise that it is dangerous to use the word "fault", but that is how it is interpreted. As we know, every year there are some 20,000 to 30,000 more petitions for divorce than there are divorces. That at least suggests that many people come to the edge, then consider the whole thing and withdraw at the last moment.

Under the Bill, one or both parties to the marriage must make a statement of marriage breakdown. Under Clause 4, that act alone is sufficient to prove irretrievable breakdown of marriage. The only proviso is, of course, the waiting period of one year under Clause 7. The White Paper states: At least some divorce petitions, possibly many, represent a 'cry for help', which may not reflect a seriously thought out decision to end the marriage". That is something with which I am sure we would all agree.

I have tabled Amendment No. 19 and the consequential Amendments Nos. 29, 165 and 166 because I think that the fatalistic language of the Bill could be improved by indicating that in difficult situations we should encourage people, wherever possible, to consider reconciliation and not to see everything as immediately at an end. I beg to move.

Lord Elton

Will my noble friend say whether Amendment No. 21 fell with Amendment No. 18 or whether it remains in the group? If so, is she addressing that amendment also?

Baroness Young

I am speaking to Amendments Nos. 18A, 19, 20 and 21.

Lord Simon of Glaisdale

I did not catch what the noble Baroness said. Is she speaking also to Amendment No. 29?

Baroness Young

I have spoken to Amendments Nos. 19, 29, 165 and 166. My noble friend Lord Elton asked whether I was speaking also to Amendment No. 21. The answer is yes.

Baroness Elles

I support my noble friend Lady Young, especially on Amendment No. 18A which she introduced on behalf of our noble friend Lord Ashbourne. There is enormous concern about the way the Bill is drafted. Perhaps my noble and learned friend the Lord Chancellor will explain and elaborate on the issue. At the moment it is a unilateral demand for divorce. Where just one person makes a statement of irretrievable breakdown of the marriage, or believes that the marriage has failed, the other party has no say in the matter. As I understand it, under the Bill—perhaps my noble and learned friend will elaborate—there is no obligation on the other party to go through the process of mediation. Only under a later clause—perhaps Clause 10—could the non-agreeing party claim a hardship of one kind or another and try to stop the divorce.

As my noble and learned friend, as a great connoisseur of human nature will know, and as most Members of the. Committee will know, there are cases where people have a quarrel and think they are going to divorce. Time then somehow heals the situation and people change their minds. In the way the Bill is conceived, if someone says, "The marriage has broken down. I have made a statement," the other party will have great difficulty in ever trying to restore the situation. Where both agree, that is one situation which is being proposed. But it does not cure the defect in the case of one party who wants a divorce against another party who does not. That does not solve the issue; it creates a new situation where both parties want a divorce. That happens and it is understandable. It would he a reasonable amendment in that particular case but other amendments would be required to deal with the other situation. Where both partners for various reasons want a divorce, and where there are no children and no problems about the division of assets, the Bill is in a reasonable state. However, it does not solve the case in which one partner wants to stay married.

There is no amendment covering the situation in which the person making a statement must have undertaken some form of reconciliation with both parties present. I do not know whether my noble and learned friend can answer my concern about the form of obligation on the person who makes the statement to notify the other party that the statement has been made. I do not know whether my noble and learned friend will be issuing regulations on the way in which the procedure is carried out. There is nothing in the Bill to enable one to say that, if X goes to a court or to a registry office and makes a statement, the other party will know even if he or she is abroad, or ill or looking after children or a member of the family somewhere else. That is a minor point but it is of considerable concern to people in that situation. I should be glad if, in answering my noble friend Lady Young, my noble and learned friend could address those points.

Baroness Faithfull

The noble Lord, Lord Northbourne, is in India and was unable to table his amendments. He asked me to table amendments for him in my name. I am speaking to Amendment No. 25. The noble Lord, Lord Northbourne, wanted both partners to sign the statement. My noble and learned friend the Lord Chancellor kindly saw me and explained why that was not possible. Perhaps I may raise the matter now because it refers to a point made by the noble Baroness.

Lord Coleraine

We have a mixed bag of amendments and I am speaking to Amendment No. 20 standing in my name, which provides that the statement being made will be a statement that the maker believes that the marriage may have broken down and not that the marriage has broken down. That is in line with Amendment No. 19, to which my noble friend Lady Young has spoken.

What I wish to know from my noble and learned friend is the same as was requested by my noble friend Lady Elles. What will happen to the statement when it gets to court? Will it be seen by the other side, the spouse who is to be divorced, assuming that the statement is made by only one spouse? Whether or not it is seen by the other side, the other side will know that the spouse who has made the statement has stated that the marriage has broken down and the spouse making the statement knows that he is making a statement that the marriage has broken down. In my view, it would be less confrontational and more liable to keep the peace between the parties if the statement were not made in the form in the Bill but in the form of my amendment.

8.15 p.m.

Lord Simon of Glaisdale

Perhaps I may make two points. First, we are suffering from over-generous grouping. In respect of an earlier amendment tabled by the noble Lord, Lord Meston, to which I listened platonically, I found it extraordinarily difficult to follow all the various points. They seemed to be disparate amendments that were grouped together. That was again the case in respect of the amendment moved by the noble Baroness, Lady Young.

Secondly, I wish to comment on the noble Baroness's Amendment No. 29. For the reasons that I explained earlier, I do not like the word "irretrievable". The noble Baroness indicated that her amendments were exploratory. I agree that the point is more than a semantic one in this sensitive area. I wish to suggest for her consideration and that of my noble and learned friend that the better word is "crisis". It can be stated that the marriage has come to a crisis. It has not necessarily failed nor necessarily broken down and certainly it may not be irretrievable. The hope of my noble and learned friend's arguments today is that the marriage may be retrieved in the course of mediation, conciliation and reconciliation at an early or late stage. Under those circumstances, it would be a better message, indeed a better test, to say that the marriage has come to a crisis.

Irretrievable breakdown is a recent intellectual phrase. Practically nothing was heard of it until the Royal Commission on marriage and divorce reported in the mid-1950s. Then only one of the 20 members, Sheriff Walker, suggested that irretrievable breakdown was preferable to the views of both majorities which were divided, I believe, 10 and nine. Once he had suggested irretrievable breakdown it was taken up enthusiastically by the extreme divorce reformers, who had little love for family and marriage. The whole issue of the modern law review was devoted to advocating Sheriff Walker's view. That was where the phrase came from.

The then Lord Bishop of Exeter, in Putting Asunder, took up the phrase and, following Sheriff Walker's recommendation, provided that it should not be mixed up with allegations of fault. Everybody told him immediately that it was quite impossible to investigate irretrievable breakdown judicially without having regard to evidence supporting it. He then rapidly agreed with the Law Commission the mixed test that was in the 1969 Act.

Even though it contradicted what his committee had recommended in Putting Asunder, he nevertheless was one of the Tellers in your Lordships' House in favour of the 1969 Bill. Another right reverend Prelate voted against the Bill and a leading matrimonial lawyer, Lord Hodson, and a leading proponent of women's rights—in particular married women's interests—Lady Summerskill, were the Tellers against the Bill. That was the line-up. With the prelacy divided and the Lord Bishop of Exeter telling in favour of a Bill which contradicted his committee, no wonder we are in a state of confusion at the moment.

The Lord Bishop of Liverpool

We are talking about a bunch of quite different amendments. I wish to pick out one or two pieces of language used by the noble Lord, Lord Coleraine, as regards Amendment No. 20. It strikes me that if somebody says, "My marriage may have broken down", that is the right moment at which to go to a marriage guidance counsellor. That is not the right moment to he talking about divorce. I would hope that if that is what somebody feels is true about his marriage, he would always be encouraged or advised to go to a counsellor. The same applies to a marriage in crisis. The noble Baroness, Lady Young, spoke of Christians believing that there can be redemption. Thank God. I know story after story of marriages in crisis but the faults have been faced. The people involved have gone for help and have strengthened and rebuilt their marriage.

But alas, the law must deal with the occasions when the marriage has broken down. I pick out the word "failure" in Amendments Nos. 19 and 29. Yes, of course, there is an immense sense of failure in the people I know who have been through the pain of divorce. They feel a failure of the central commitment of marriage which is to build, cherish and sustain a trusting and loving partnership. That failure or fault is at the heart of what is meant by a broken marriage.

But how would it help us to use that failure? My experience of those going into a second marriage is that they often have an over-pronounced sense of failure and an acute nervousness as regards not being able to build where they have failed before. I feel that it would be breaking the bruised reed if we rub in that failure.

The word "fault" has almost inevitably come back into matters. I want to say very little about that. Those great faults of unfaithfulness and cruelty are very serious matters but they do not of themselves break a marriage. As I said, thank God there are wonderful stories of people being forgiven and healed and of marriages being rebuilt. But it is the arriving at a decision that a marriage has irretrievably broken down which brings the marriage to an end. There are many difficulties and I have total sympathy with the wish to protect the partner who does not wish the marriage to come to an end. Marriage is a union of consenting partners. If one partner firmly and irrevocably withdraws that consent, the marriage will not go forward from that place. There can be bitter motives on both sides. There can be bitter motives in the one who leaves; there can be bitter punitive motives in the one who has, with the law as it is, refused to give someone their freedom, as they say, until five years have passed.

Does waiting for that period of five years really help? We all know that fault and faults are part of the story. The question about law is whether law can correctly unearth and apportion fault. Surely the experience of us all is that the law has proved an exceedingly clumsy instrument which has frequently apportioned fault unequally and unjustly.

Lord Simon of Glaisdale

Does the right reverend Prelate agree that the Church courts apportioned fault without any real difficulty for some 1,500 years?

The Lord Bishop of Liverpool

It may not have found any difficulty but I guess that, in particular, many of the women concerned found a good deal of difficulty in what the Church courts would have found in those years.

Before we leave the word "fault" it is worth saying that it was the 1969 fault-based law which opened the floodgates with which we are concerned today. When I have known a couple closely through the pain of divorce, I have realised that there has been fault on both sides. Even if I knew people many times better than any court could, it would be very difficult to apportion the blame fairly. It seems to me that there is a Christian view of fault and that is that I should be more concerned with my own part in the fault than in trying to establish my partner's part.

The question which we must ask, which I believe the noble and learned Lord the Lord Chancellor has asked very carefully, is whether there is a better chance of fault being examined properly, including one's own fault, in the adversarial context of a law court or in the more relaxed atmosphere that we hope will exist for mediation.

One of the most tragic figures about divorce is the number of divorces of second marriages. The point has been made already today that people sometimes rush on from the breakdown of a first marriage without seeing their part in it. One of the great reasons for divorce over time in this way is that people will he given the opportunity to reflect on their part in the breakdown of a marriage before they are free to go forward to another marriage.

I believe that irretrievable breakdown is not a fatalism. Couples know they have failed but I do not believe that we need to exaggerate that profound sense of failure which so many people feel.

Lord Stoddart of Swindon

I should like to say a few words on Amendment No. 18A moved by the noble Baroness, Lady Young. I come back to the messages that we are sending out. I am sorry to be repetitive about that but I believe that that is really the crux of the matter.

What are we saying? Two people solemnly enter either a Church or a civil contract to establish a relationship not on a day-to-day basis but on a supposedly permanent basis. It is not one person who agrees to do that; it is two people. There are two people involved in making a contract of marriage—and we do call it a contract of marriage, whether it is made in heaven or in the registry office. It is a contract. But here, against all the laws of contract, we are saying that the contract can be unilaterally abrogated. We are saying that a contract made by two people can be set aside by one of the people who is party to that contract; and, even worse, that can be done without giving any reason.

There is no need to give a reason for the breakdown between the two who made the contract because, as we have just heard from the right reverend Prelate, fault has gone. The Government want to do away with fault. Therefore, all one party has to do to break the contract which was entered into solemnly is to say that it has irretrievably broken down. There is nothing in the Bill to say that there must be justification for that. Unless there are certain other conditions involving children or hardship and so on, the other party will have to put up with that. That is not a very equal contract.

As I said, that sends out the wrong message to people who are about to marry because at the back of their minds when they are marrying now they say, "Well, if we want to put it asunder, there are certain things which must be done and we may be blamed by society". They may feel that there will be a bit of a stigma if the contract is ended unilaterally. Indeed, one of them may feel sorry for the other partner and may feel that he or she is "wronging" that person. It is not so much a case of it being a social stigma: there are social reasons why people do not embark upon such action.

However, what we are now telling people when they are about to get married is that they do not really have to think very much about it because, after two years, one of them can simply go to court and say that the marriage has irretrievably broken down. That means that they will, perhaps, not think too seriously about their marriage vows. That is the last thing we want. We want them to think more seriously about such vows. But the Bill sends them the message that they do not have to think too seriously because, if they are not getting on after a couple a years, one party can say, "I've had enough of this; the marriage is irretrievably broken down. No matter what my partner thinks and no matter what my fellow contractee has said, I can end this unilaterally". I believe that we are sending the wrong message. I believe it most sincerely, despite the remarks of the right reverend Prelate. We must reflect on the matter. That is why I believe we should give serious consideration to this group of amendments.

8.30 p.m.

Lord Elton

I believe that my noble and learned friend can help to resolve a couple of anxieties which are felt by a wider group of people than perhaps have attached their names to amendments. The first anxiety relates to Amendment No. 29 and the debate about words. I accept that it is not a debate about semantics.

The right reverend Prelate said that it was not a question of crisis. That is when you start trying to save a marriage and not when you start initiating a divorce. However, the noble and learned Lord, Lord Simon of Glaisdale, described a sequence which many of us thought we had detected in the Bill; namely, a process which starts with making a statement followed by compulsory mediation during which conciliation is offered and mediation can be put on one side and concluding in reconciliation or, if that fails, in divorce. So crisis would be the right word for the beginning of the process but the wrong word for the beginning of something which presumably could only end in divorce.

Perhaps my noble and learned friend can say more about the relationship between mediation and conciliation. I know that it belongs in Clause 5, but it is relevant to this group of amendments. The key amendment is Amendment No. 18A which lays down that there can only be divorce between consenting partners. That amendment is itself amended, as it were, by Amendments Nos. 21 and 23 which suggest an alternative route where there is no consent and which returns to the issue of fault.

I do not wish to return to the issue of fault. However, many of us are disturbed by the way in which it is possible to describe the Bill as providing a contract of marriage which can be abrogated unilaterally after a short time. There are cases where one of the parties does not actually despair of the marriage and where in fact hope is justified, as my noble friend said when speaking to one of her earlier amendments.

It would be helpful if my noble and learned friend could explain the position of the other party. Indeed, any party, whether consenting or not, needs to know that such a statement has been made. As my noble friend Lady Elles, I believe, pointed out, it would seem quite possible under the Bill for a statement to be made without the knowledge of the other party. But where the other party actually wishes to continue to try to salvage the marriage then, a fortiori, we would like to know what the arrangements would be.

Lord Coleraine

I agree with the noble and learned Lord, Lord Simon of Glaisdale, about the size of the groupings of amendments. I suspect that the intention is benevolent; namely, that we should have large, general debates in which all the issues involved on any particular broad group of subjects can be discussed. However, my own feeling is that the discussions tend to get sidetracked and are not conclusive. All we are doing is building up trouble for the Report stage. Indeed, we shall end up with very long Report stage debates on matters not properly discussed at this point.

Baroness Trumpington

I understand—and I hope that the noble Lord, Lord Graham of Edmonton, will agree—that groupings are set down by arrangement between the usual channels. If anyone objects to anything, he or she is perfectly at liberty to degroup an amendment. Equally, that does not stop someone moving the amendment when we come to the relevant point. I hope that I am correct in my assumption.

Lord Graham of Edmonton

I can only speak on behalf of the official Opposition. We are invited to agree to the groupings proposed. Indeed, my noble friend Lord Irvine wishes to raise a particular matter in a short while. The problem is that unless everyone whose amendments are put into a group is consulted—Members of the Committee can see by the size of the groups how difficult, if not impossible, it was in this case—then he or she is entitled to make the kind of comments that have just been made.

Lord Coleraine

I am most grateful but I should like to continue. It is correct to say that one can change the grouping and degroup. However, there were special difficulties today in that when one telephoned the Whips' Office one got a continual ringing sound because the telephone was not working. Moreover, the groupings list was available only shortly before the Committee sat. I find that amendments which were in one group 10 days ago now turn up in another. Indeed, one paving amendment has been detached and put into an altogether different group. Although such large debates are clearly designed to achieve a good effect, I doubt very much whether they do so in the long term.

The right reverend Prelate referred to Amendment No. 20. I am certainly aware that if one puts in the statement the fact that the marriage may have broken down it runs the risk of starting proceedings prematurely and that in such a case it is possibly better if the divorce does not start at that point. However, the amendment we are discussing is largely an amendment of benevolent semantics. Whatever happens the party considering making the statement will make such a statement as and when he or she has decided that the marriage has broken down and a divorce is required. I do not believe that that should necessarily prevent the statement containing the words "may have broken down" as opposed to "has broken down".

Lord Meston

I cannot help but suspect that one of the concerns raised by the amendments is an anxiety about how far one party can go down the path to a divorce without the other party knowing about it, let alone consenting to it. I believe that some confusion has crept into our discussions.

I have assumed that all the various documents which must be put before the court—in particular, the initial statement—will have to he served promptly upon the other party. I suspect that that is not perhaps as clear as it might be on the face of the Bill. However, I presume that that would be covered by the rules to be implemented under Clause 11 whereby the Lord Chancellor, may make rules … requiring the parties to be given, in such manner as may be specified, copes of such statements and other documents as may be specified". I have to say that earlier today I was especially concerned about the provision for a declaration under Clause 9 by one of the parties that the family has "no significant assets", and so on.

However, I return to the point of the amendments. Whatever the legal mechanism which happens to be in operation at the time, the reality is that the parties to a marriage will probably have different views as to whether or not the marriage is at an end, at least at the beginning of the process.

This Bill has been criticised as allowing for unilateral repudiation of marriage. However, I invite the Committee to consider what is the present state of the law. As the law stands, divorce in reality quite often represents a unilateral repudiation of the marriage by one party which is only reluctantly and eventually accepted by the other party. The other party—the reluctant party—may not have the resolve or the funds to fight a divorce and cannot therefore stop the process, and indeed by trying to stop the process merely emphasises to the court the fact that the marriage has in reality hopelessly broken down.

The defect, as it seems to me, of the existing system, as the noble Baroness, Lady Elles, put it, is that there is no time given for the marriage to heal, if it is possible to heal the marriage. It seems to me that the virtue of this Bill is that it provides a mandatory period of a year to enable such healing to take place if it is at all possible. However, I suggest that consideration might be given to an indication at this stage as to how the rules under Clause 11 for service of documents on the other side arc to take shape in reality.

Lord Irvine of Lairg

I desire to say a word or two in support of what the noble Lord, Lord Coleraine, said about the groupings. I have to say for myself that I find the groupings far too heavy, each incorporating a series of unrelated issues. Therefore they are monstrously muddled. I hope that we can do much better in the later stages of this Committee. I do not know how many draft versions of the groupings—I think it was about three—I looked at in the half hour between 2 p.m. and 2.30. The noble Baroness, Lady Trumpington, says that this has to be agreed between the usual channels. That should indeed be the case, but the previous Committee day was on llth January; we are now at 22nd January and these draft groupings were only being circulated about half an hour before the Committee sat. In my submission, that does not begin to be good enough.

I agree with the noble Lord, Lord Coleraine, that what overladen groupings of this kind entail is an invitation to a series of Second Reading debates and speeches on a broad range of issues. There is a loss of focus on specific amendments and therefore denial of an effective Committee stage. I hope that we can do much better at later stages in this Committee and that there will be longer notice through the usual channels.

8.45 p.m.

The Lord Chancellor

I find the particular groupings that have been attempted quite difficult. On the other hand some form of grouping is required. If we can all do better, I shall be very happy. I shall try to deal with the grouping that we have, which starts with Amendment No. 18A. The principle behind this amendment is based on consent and it alters the period, or allows the period to operate, by virtue of consent. I think that this is a point that arises under the present law. It is worth remembering what the present law is. I believe that this particular part of the present law continues to be reflected in Amendment No. 23 of my noble friend Lady Young.

The point is that the various aspects of the ground for divorce under the present law affect the time it takes to obtain a divorce. The noble Lord, Lord Stoddart, says we must consider the messages that our law sends out. The message the present law sends out, and the message Amendment No. 18A, with Amendment No. 23, would send out is that if parties are agreed that they may get rid of their marriage, that can happen comparatively quickly. If one of the parties is at fault, that may also lead to an early divorce. However, if no fault is alleged against either party, neither of them can remarry for a period of five years. That does not appear to me to send out a signal of disapproval of fault, because the person at fault is apparently free to remarry much earlier than the person who is not at fault.

I come to the second point. My noble friend Lady Young says that the proposals I have are in a sense fatalistic and that it is important to consider the situation of the spouse who does not want the divorce to go ahead. I do not agree that the structure that the Government are proposing is fatalistic in that sense. What the Government are proposing is, first, the information session if the marriage is in crisis. One might hope that people would seek help before it reached that stage. However, if they are at the stage of thinking about a process in court, they have the information session which is intended to help them to deal with the situation as it then exists.

At that stage the position is that they need not do anything more if they can get help and can resolve the crisis. One has to measure these crises:, they are all in a sense crises. The next stage is where one of the parties considers that the marriage has broken down. This is, of course, the matter that is focused primarily by the later amendments in this group, Amendments Nos. 29, 165 and 166. My noble and learned friend Lord Simon of Glaisdale has criticised the phrase "irretrievable breakdown" as having originated from a Scottish sheriff. However, I believe it has the merit—there may be other phrases available—of referring to stages of crisis. The crisis of breakdown is the one that triggers the process, and then a period has to elapse before one reaches the next stage of irretrievable breakdown.

The trouble with "failure", I believe, is that it is difficult to establish in degrees. I believe that "breakdown" is a word that one can accommodate in degrees whereas "failure" appears to me to be complete. If one starts off considering that a marriage has failed, it is difficult to see how one can, as it were, progress to some more definite conclusion about it. I would respectfully suggest to the Committee that to start off suggesting that a marriage has failed is more fatalistic than the way we have sought to go about it.

In Amendment No. 18A my noble friend Lady Young has put a requirement at the centre of Clause 4 that both parties should take the view that the divorce should go ahead. I regard consent as a somewhat dangerous basis on which alone to allow divorce to go ahead because, as has already been said, the relationship is one that depends on the active support of both parties.

I have already dealt with the point about failure in Amendment No. 19 and later amendments.

Amendment No. 20 in the name of my noble friend Lord Coleraine makes the first declaration more provisional. I would regard it as undesirable to make it easier than we have made it to make the first statement. In other words, one ought not to seek to initiate a divorce process unless one is of the view that the marriage is in the state of crisis which involves breakdown. If it is less than that I would hope that the help that is mentioned, and about which information will be available at the information session, will help people to take other steps than to go forward to the divorce process.

Amendment No. 21 is an introduction to Amendment No. 23. I shall return to that amendment, but in the meantime there is my amendment, Amendment No. 22. That is no more than a drafting amendment to make clear what is intended in Clause 6. I propose to amend the Bill by removing Clause 6 and replacing it with Amendment No. 22 as an improvement.

As Clause 6 currently stands, if a statement were made jointly but only one party wanted to make an application for a divorce order the other party could effectively prevent the divorce by refusing to make the appropriate declaration. The declaration should only be made by the party or parties who make the application, with no reference back to who made the original statement. The effect of Amendment No. 22 is to make that clear.

Amendment No. 23 requires allegations to he made. Those are set out in paragraphs (a), (b) and (c). My noble and learned friend Lord Simon of Glaisdale referred to the judgments in the ecclesiastical courts over the years. I believe that the grounds that were before the ecclesiastical courts were a good deal less ample than the grounds contained in paragraphs (a), (b) and (c), particularly in relation to paragraph (b). I believe that the ground for divorce set out in that paragraph—namely, that, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent —enables divorce to be obtained on that basis with comparative ease.

In any event, that amendment, with its paragraphs (a), (b) and (c), points sharply to the message that if there is grievous fault such as adultery one may be allowed to remarry very quickly, but if one has not been responsible for any fault in a marriage except living apart one may have to wait for at least five years. That is a problem with a law which is based on fault.

Before I leave that amendment I should like to say that the suggestion that the Government are trying to make out that there is no such thing as fault is not a justified criticism of the Bill. The Government are trying to secure a framework for divorce law which makes it as easy as possible to keep marriages going and to restore those where there is any hope of restoration. However, in my submission it is not realistic to think that in the situation with which we are faced it is possible to improve on that situation. The best that we can do is to provide a framework in which those marriages are restored if at all possible.

Amendment No. 24 is consequential. Amendment No. 25 would require the applicant for the divorce in its final form to be the same person who made the original statement. One of the purposes of this structure is to leave it as open as possible for the marriage to be restored. I believe that it is therefore important that where the process is initiated it should be possible for either party to take steps under the process equally.

I was asked about the way in which the provisions that we are dealing with at this stage would operate. The intention is that any document put before a court shall he properly served on those who arc interested. That is normally a matter dealt with under rules of court or regulation. The powers contained in Clause 11 are ample to secure that. I give the Committee every assurance that where it is possible to serve such a statement it will be served. It is only in the case of somebody who has completely disappeared or something of that kind when no service would be required. That applies to all the documentation, including the type of document that the noble Lord, Lord Meston, mentioned.

I wish to make a second point in this connection in answer to what was said by my noble friend Lady Elles on this aspect. The arrangements between the parties are intended to reflect what has happened between them. One of the provisions dealing with these matters is that where conduct is of such a nature that it would be inequitable to disregard it, it is to be taken into account in connection with dispositions of property. Therefore, the nature of the conduct as between the parties will have to be faced where it is important in connection with the arrangements that are made between them and the way in which they face up to the responsibilities which this Bill requires them to face. Therefore, the nature of their conduct is not left out of account. It is accepted that it requires two to make a continuing marriage. If one has demonstrated by as long as a year's refusal to take the marriage forward then it is clear that the marriage has irretrievably broken down. The consequences of that are to be reflected in the arrangements that are made between the parties in so far as it is appropriate and equitable for that to be required.

9 p.m.

Lord Stoddart of Swindon

The noble and learned Lord puts forward a serious and interesting proposal. Is he saying that, despite what has been said, there will remain fault in marriage, and that that will be punished by depriving the person who is at fault of a given amount, say, of money or property in any marriage settlement? That seems to be something new. I had not quite understood that.

The Lord Chancellor

It is not something new. It may be new to express it in quite the way that the noble Lord does. However, what I am directing attention to is that the conduct of the parties, where it would be inequitable to ignore it, is taken into account in the financial arrangements between them.

Lord Stoddart of Swindon

So they will be punished for it.

The Lord Chancellor

I do not use that language. But it is right that where the conduct is of such a character that it would be inequitable to ignore it, it is taken into account if the court has to adjust property rights between the parties.

Lord Stallard

We do not take that into account in the irretrievable break-up of the marriage. It is a no fault situation when it applies to the marriage, but it is a fault when it comes to the settlement.

The Lord Chancellor

These things are not entirely separate. One of the proposals in the Bill—we debated it earlier and I wish to emphasise it—is that before a divorce is granted under these proposals the parties will have to face up to the responsibilities flowing from their marriage. The way in which that is done includes the provision to which I have referred; namely, that if the conduct of a party is of such a character that it would he inequitable to disregard it in these arrangements, then the court will take it into account. In the proposals the Government have put before Parliament that factor is available for consideration.

My noble friend Lord Elton raised the question also in connection with the abrogation unilaterally after a short time. How short? In my submission to the Committee, a year is quite a substantial time in the context of this situation. The important factor is that it is a year with a purpose; namely, of consideration and reflection. The Bill seeks to put into the law, so far as the law can, a purpose for that period. It is not just an aimless delay; it is not done for no purpose, but to enable the parties to consider carefully in the light of all the help they can gain, and as regards the whole view of the future, what the future holds for them. The logical consequence of that is that if there is hope for the marriage to be saved, that is what will happen.

I believe that I have dealt with all the matters that arise under these grouped amendments. In due course I shall move my Amendment No. 22 and indicate then that I do not propose that Clause 6 stand part of the Bill. At Report stage your Lordships will have the Bill as the Government consider it should be on this aspect.

Lord Stoddart of Swindon

Before the noble and learned Lord sits down, I am sorry to delay the Committee but I have to have this clear. Earlier on the noble and learned Lord said that under the present arrangements the party to the marriage who is at fault is able to remarry sooner than the party not at fault. Is that correct? Did I understand that correctly?

The Lord Chancellor

Not quite. If you have a situation such as is contemplated in these amendments. a party who is at fault in a marriage will obtain a quick divorce—in less than five years—and therefore will be able to remarry more quickly than a party to a marriage who is not said to be at fault who has to wait at least five years for that. That is the point I seek to make. It is a very important point. It is a very profound message; and it is a message which in my view the law should not send. In my view, far from frowning, as it were, on these breaches it rather suggests that the breaches will be rewarded in a great number of cases by a rather rapid licence to remarry.

Lord Coleraine

Before my noble and learned friend leaves that point, is that not the situation under the present law as envisaged in 1969: that the issue was going to be fault based, and if you committed adultery you could be divorced but, otherwise, if the parties were not agreed upon a divorce, you had to wait for five years, separated during that period? Surely the positions are analogous one to another.

The Lord Chancellor

That is right. That is what I think is so wrong with the message that the present law sends out. Far from penalising that kind of fault, far from saying that the law disapproves of it, the message appears to be that the law commends it by the rapidity with which it will be blessed by a licence to remarry. I am sure that that is not what many of us would like to see, but that is the logic of the present position. It is one of the reasons that I feel that it is extremely difficult to have a sensible law which makes a distinction between a divorce based on fault and a divorce that is not based on fault unless the same timescale applies. In that case, having the fault base makes no real difference.

Lord Simon of Glaisdale

In answer to the noble Lord, Lord Stoddart, my noble and learned friend said that under the existing law a party who is at fault can obtain a quickie divorce—he did not use these words but I think that it is what he was referring to—and therefore can marry sooner than a party who has to wait five years who he assumes is not at fault. But the party who has to wait for five years may or may not be at fault himself. Indeed, he is more likely to be at fault than not at fault in actual situations.

My noble and learned friend dwelt much, as did the White Paper, on the imperfections of the present law. But in my respectful submission it is wrong to credit the critics of this Bill either with responsibility or with any affection for the 1969 Act. On the contrary, those who are critical of this Bill stand in place of, and are successors of, those who were critical in 1969. Many of the supporters of this Bill are the successors of those who supported the 1969 Act.

The Lord Chancellor

My noble and learned friend just pointed out that the five-year separation does not imply that a person is or is not at fault—which in a sense makes the point about the present law: it may or may not involve fault. My point is that if fault is alleged against a person, under the existing law the divorce can be much quicker than if no fault is alleged.

Regarding support for the 1969 Act, I am not concerned to say who is responsible for that. I am simply concerned to answer questions about messages. One takes the law as it is and says that this is the message it sends out. I do not want to say that opponents of the present Bill have any responsibility for that. All I am saying is that these are inevitable consequences of a particular position. That is what we have to examine.

Baroness Young

First, I thank my noble and learned friend the Lord Chancellor for his very detailed reply to these amendments. I shall read it with very great care. There are two issues to which we shall unquestionably return and in relation to which one cannot be entirely happy.

I am sorry to raise the question of fault once again. But as I understood my noble friend, he argued consistently that it is the fault provisions under the 1969 Act that have led to quick divorces. To take the divorce rate for the United Kingdom, I understand that it is only in England and Wales that this uniquely quick situation exists whereby divorces can take place, as some 30 per cent. do, in under six months.

In Northern Ireland, the corresponding figure for divorces that take place on the basis of two to five years is some 73.4 per cent. I understand that in Northern Ireland the statute law is identical to that which applies in England and Wales; the main difference is that there is no special procedure, introduced here in 1973, which I understand allows divorce by post, whereas in Northern Ireland a court appearance is required.

For reasons that I do not fully understand (I am not an expert in this field) we not only had the provisions of the 1969 Act but, in order to speed them all up a little, we made the process easier.

Presumably, the statutory instrument under which the special procedure operates could simply he repealed. Then we could have fault without the process happening so quickly. I do not quite understand why it should apply in one part of the United Kingdom and not in another. But there it is. There is still a lot of question in relation to fault.

Baroness Seear

I am sorry to interrupt the noble Baroness. Is it not possible that there is a difference in Northern Ireland because there is a much higher proportion of Roman Catholics?

Baroness Young

I cannot possibly say whether it is a result of the composition of the population. In Scotland, for reasons I do not fully understand, a much higher proportion of divorces take place after two to five years. There may be all sorts of reasons for that; I do not know what they are. But we might examine the situation within the United Kingdom. Whether, under the statutory instrument, the special procedure that was designed to speed the process up and save money (perhaps that is a good thing; it could be said that quicker divorce is cheaper for the Government) really contributes to the good of society and to an ultimate saving of public money is another question. This argument could continue.

I am bound to say that I was very disappointed in the remarks of the right reverend Prelate the Bishop of Liverpool. He says that, on the one hand, he believes in redemption but, on the other, one has to accept that a marriage has broken down. He is adopting a completely fatalistic approach on that point.

On the whole question of the wording, there is a good philosophical discussion as to whether "breakdown" is susceptible to the degrees of description that my noble and learned friend the Lord Chancellor gave to it and whether "failure" is. It is not a matter with which I intend to trouble the Committee at length at this stage of the evening. But the issue here is the message that we are sending out on these matters. "Irretrievable breakdown" has a very fatalistic sound to it: it suggests that that is the end.

I feel that this has been a valuable debate. It opened up a number of questions about which we have some concern. We are concerned particularly in Amendment No. 18A that there can be unilateral divorce, one party against the other, after a year. I believe that that should concern us all. It is a very serious point.

Amendments Nos. 99, 109 and 106 refer to provisions for a court to make an order barring divorce for two years where one spouse objects to the divorce. In practice that would prevent divorce for possibly four years. It is a way of extending the time—not punishing anyone—and giving people the opportunity to consider further whether they have a chance of getting back together again.

The question of conduct came up at the end of the discussion and my Amendment No. 108 refers to that. There will be a number of issues which need to be raised over the hardship clause, to which I shall certainly return at a later stage in the Committee's proceedings. I do not intend to raise them at this time. I shall read very carefully what my noble and learned friend has said on these matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 to 21 not moved.]

9.15 p.m.

Baroness Young moved Amendment No. 21A:

Page 2, line 34, at end insert—

("( ) the period for reconciliation fixed by section (Period for reconciliation) has ended; and").

The noble Baroness said: In moving this amendment and speaking to those grouped with it I come to a completely separate issue which concerns reconciliation. Amendments Nos. 21A, 21B, 21C, 32A, 33A, 35B, 38A, 38B and 39A incorporate a one-year period for reconciliation before a year for mediation.

There has been a great deal of discussion at both Second Reading and Committee on the importance of reconciliation. I accept that these amendments may not be properly drafted, but I hope very much that my noble and learned friend the Lord Chancellor will look very seriously at incorporating into this whole process a period of reconciliation. He said today in Committee that he hopes that during the period of mediation couples will come together. There has been much debate about what mediation can do, and no doubt we shall discuss the matter further. But, as I understand the Bill, there will be a statement of the intention to divorce and then mediation will begin to operate, but not until the couple have reached that stage. Therefore, it is concerned much more with dividing up the assets. One hopes that there will be a more amicable settlement. One cannot imagine that it can be made compulsory. I do not believe that anyone would necessarily go if he or she did not want to do so. Be all that as it may, I do not argue against mediation. I submit that we want something more than mediation. We want reconciliation.

I believe that that is perfectly possible. The noble Lord, Lord Irvine, at the last Committee stage made that very point about the importance of reconciliation. I believe that many people quite wrongly may see divorce as a solution to their marital difficulties. In fact, divorce can be a cry for help. Indeed, the White Paper, as I said before, admits that some, possibly many, divorce petitions represent a cry for help which may not reflect a seriously thought-out decision to end the marriage. It seems to me that if we are left with a no-fault provision in the law, the provision for reconciliation becomes even more important. It becomes important to the Chancellor of the Exchequer because the cost of family breakdown is at least some £3 billion every year.

I understand that the Bill envisages one year for mediation during which a couple, having faced up to the realities of what life will be like after divorce, may have second thoughts. I hope that they will do so. Certainly I am not against that. It will be easy, under mediation in the Bill, for the couple to talk immediately about splitting their assets; then, where no financial agreement is reached at the end of one year, under Clause 9 a spouse can apply to the court to end the discussion and make a divorce order.

That matter was referred to in an earlier debate and I shall read again what my noble and learned friend said on that point. The Bill appears to remove a number of obstacles to divorce and does little to encourage people to think again. Mediation and reconciliation will be difficult to carry out at the same time because they do not serve quite the same purpose.

I hope that in this series of amendments we can consider including these measures in the process, perhaps when the marriage is in crisis or when concern is expressed, as my noble and learned friend Lord Simon said. That is when one wants reconciliation—before one ever reaches the stage of statements or mediation.

I do not know what the answer is, but there is a great deal of feeling in the Committee that we ought to write into the Bill some provisions on reconciliation. That was a point made by Cardinal Hume in his article; he was concerned about this. I believe everybody is concerned to improve these arrangements. If we are to strengthen marriage and help those in difficulty, this is what we need.

I shall he the first to admit that none of the amendments may be quite appropriate. The ideal would be for my noble and learned friend the Lord Chancellor to come back at Report stage with an amendment of his own that meets our worries. However, at this time of the night I do not intend to take up the time of the Committee by repeating the arguments in relation to the buttressing of marriage. We dealt with those on the first amendment and said, when we agreed generally on the importance of that amendment, that other amendments should be judged against it.

The first point of the first amendment was to buttress marriage. A provision incorporating reconciliation would do that. That is something that is not only wanted in your Lordships' Chamber but, judging from the correspondence that I received and the people to whom I have spoken, it is one of the issues about which a great many people feel very strongly. I beg to move.

Baroness Faithfull

I agree with my noble friend Lady Young that we must concentrate on reconciliation. However, does she not agree that there are some powerful organisations already in this country which deal with reconciliation? For instance, Relate receives core funding from the Home Office and covers the whole country. We have a Roman Catholic marriage guidance council, a Jewish marriage guidance council and many other councils doing reconciliation work.

As my noble and learned friend will be aware, in Scotland the reconciliation and mediation services share the same office. A person goes to the reconciliation department before going to mediation. Perhaps taking into account what my noble friend Lady Young said, we can build on what we already have.

Lord Hylton

The noble Baroness, Lady Young, raised important points in the amendments and more will arise when we come to Clause 7.

I feel strongly that reconciliation is important. But if that is what we want on a national scale, far more resources will be required than are presently available. The noble Baroness, Lady Faithfull, mentioned some of the organisations. In theory they provide a national service, but what percentage of the separating or divorcing couples do they actually reach? It seems to me that far more trained marriage counsellors will be required and far more money to pay for them. That is one of the points which Cardinal Hume was attempting to make in his article.

Lord Irvine of Lairg

The noble Baroness, Lady Young, moved the amendment most modestly because she acknowledged that she may not have got the balance right, while at the same time correctly drawing the attention of the Committee to the need to get a correct balance between mediation and attempts at reconciliation.

I do not desire to anticipate—it would not be right to do so—the argument and discussion there will be on Amendments Nos. 40 and 55 which stand in my name and that of my noble and learned friend Lord Archer of Sandwell. At that stage I shall attempt some suggestions as to what the correct relationship should be. If the noble Baroness will forgive me for saying so, in relation to her amendments, I do not think that a mandatory year for reconciliation is the right way through. On the other hand, we have to bear in mind that mediation is not as such about reconciliation. That is what the mediators are always telling us. The mediator is not a reconciliator. He is a mediator of solutions for parties who have reached the stage of having agreed that they must part and he is the mediator of solutions for them to try to agree, if they are able.

However, in considering the important relationship between mediation and attempts at reconciliation, we shall have to consider whether mediators should be put by Parliament under some kind of duty to encourage the parties to consider attempting reconciliation. That would not be a duty to be put on the mediator to engage in a process of trying to persuade the parties to become reconciled. It would merely be a duty to say to them, "Do consider attempting reconciliation. It is an option that is still there although you have embarked on mediation". If the answer was no, the mediator would have to accept that answer without demur and get on with his job, which is mediating. If the answer was, "Yes, we would like to think about reconciliation", the mediator should refer the parties for counselling if that is acceptable to them both.

With respect to the noble Baroness, Lady Young, what I think lies at the root of her concern in this area is to avoid legislating in such a way that mediation acquires a momentum of its own so that once embarked upon it excludes attempts at reconciliation. However, I do not think that a mandatory period for reconciliation, whether of a year or any other period, is the right way forward because one cannot compel people to attempt reconciliation. They have to want to attempt it. If in the view of both the marriage has broken down and neither wants to attempt reconciliation, that is the state of affairs in the hard world in which one simply must engage and then the mandatory period of a year for reconciliation would be a period of delay and would be, in my view, to no sensible purpose.

9.30 p.m.

The Earl of Perth

This amendment is of tremendous importance in our discussions on the Bill. It seems to me that in fact there is a certain amount of loose thinking reflected in the Bill as it stands. Perhaps I may go back a little. A couple decide that they want to get married for one of many reasons. We have heard from the right reverend Prelate that if they are to be married in the Church of England there is time for very serious instruction. I am all for that. I am equally clear that it happens in the Roman Catholic Church and in others. The parties are told what marriage is all about. They come to a judgment—I am forgetting about the civil registration—and get married. They have been told all about it. They live together for a period of time, then things begin to go wrong. If one is not careful, they go wrong rather quickly.

Under this Bill, as I read it, there is no real provision made for knowing anything about that or, if one does, of being able to help. There is no specific mention or allotment for counselling and reconciliation. I shall read what the noble and learned Lord, The Lord Chancellor said. He said that in the course of mediation the parties may get counselling. I am all for that, but counselling has to be recognised in the Bill and is on its own. The Government must face up to the fact that it is not enough to have all these bodies that the noble Baroness, Lady Faithfull, mentioned, to do voluntary work, although I am all for them.

I do not believe that that provision is in the Bill. I want the Government to put aside money for counselling, reconciliation, call it what one will, before one gets to the stage of mediation. This is one of the very critical issues about this Bill, because that provision is not clear. The noble Lord, Lord Irvine of Lairg, referred to the length of time. That is a very difficult subject. If one believes that this is a very important matter for everyone concerned, then a year or two years—I put my name to a two-year period—is not too long because it affects not only the whole life of the couple but, more importantly perhaps, it concerns the children and their well being.

Even if the marriage is a failure or has broken down—whatever the word is that everyone uses, because it is very difficult to distinguish between them—I return to the one matter: one must try to make the marriage work. Having taken vows or even having been in a register office, one really has to try, so the period of time is very important. I repeat: as I now read the Bill there is no real provision for counselling, reconciliation, call it what one will. For that reason, I wholly support the various amendments tabled by the noble Baroness, Lady Young, on this matter.

Lord Meston

The groupings suggest that my Amendments Nos. 54, 56, 58 and 60 should be debated now, but having heard the noble Lord, Lord Irvine of Lairg, as regards his Amendment No. 40, I believe that it would be more appropriate for what I want to say about Clause 7 to be debated with his Amendment No. 40. In so doing, I simply indicate that perhaps the point of Amendment No. 54 is really to draw attention to the fact that the only specific provision in the Bill for attempted reconciliation and for such an attempt to stop the clock, depends on a notice being lodged with the court. I question whether it is appropriate to require the parties—or one of them—to lodge a notice with the court at the time of an attempted reconciliation if they wish to stop the clock running. However, I shall return to that point.

The Lord Bishop of Oxford

The groupings are a little confusing, but I hope that it is in order for me to say something briefly about the two amendments which stand in my name and which are part of this grouping as it stands. I refer to Amendments Nos. 123 and 125. I hope that they are uncontroversial because they are designed to add precision to this debate and in particular to the relationships between reconciliation, marriage counselling and mediation.

Clause 11(2) states: The Lord Chancellor may make rules requiring a person who is or has been the legal representative of a party to a marriage". to inform that person of various points; the first being: (a) whether he has discussed with that party— (i) the possibility of a reconciliation". We firmly support the retention of the reference to "reconciliation" at that point.

However, we have worries about sub-paragraphs (ii) and (iii) which appear at the top of page 7. I refer particularly to the reference to "counselling facilities". We believe that that should be a clear reference to "marriage counselling facilities". Many amendments relate to marriage counselling. Some are designed to make clear what is meant by "marriage counselling" and who might be approved by the Lord Chancellor as a proper body to carry out marriage counselling. Therefore, we think it important to have a reference to "marriage counselling" at this point in the Bill rather than simply to "counselling" generally.

We should also like the order of the provisions to be reversed so that, the availability to the parties of any counselling facilities", would come before, the opportunities for the parties to take part in mediation". Clause 11(2)(c) states: whether he has given that party names and addresses of persons qualified to help". We should like to reduce the following three references to two, simply because where it states, names and addresses of persons qualified to help— (i) to effect a reconciliation", which is to be distinguished from the provisions which relate to the names and addresses of persons qualified to help … (iii) by counselling", we think that that is muddling. We should like there to be one clear reference to, "people who are qualified-to give marriage counselling". Marriage counsellors are concerned with reconciliation. They are the properly approved bodies and we feel that it is muddling at that point to have three references rather than two. I very much hope that the noble and learned Lord the Lord Chancellor will be sympathetic to those attempts to make the Bill more precise on that point.

The Lord Bishop of Liverpool

Before the noble and learned Lord replies, perhaps I may say how strongly we support what the noble Baroness, Lady Young, said. I refer particularly to Amendment No. 32A which relates to the statement to be made by a party.

Clause 5(2) states, it must also state that that party— (a) is aware of the purpose of the period for reflection and consideration". The noble Baroness suggests that we should leave out the words "reflection and consideration" and insert instead "reconciliation and mediation". The noble Baroness was modest about the wording but I am sure that the Government will want to take the amendment away and think about it. I believe that the phrase "reconciliation and mediation" is better than the phrase "reflection and consideration" which appears in the Bill because "reflection and consideration" is very broad whereas in the context of the Bill both "reconciliation" and "mediation" have particular meanings. I believe that there is firm support for that on all sides of the Committee.

Of course, there would be some cost implications if marriage counselling and counselling with a view to reconciliation were to appear on the face of the Bill, but the noble Baroness was right to remind us of the huge cost of divorce and of the fact that putting some money into prevention would save a great deal.

Lord Irvine of Laing

I am grateful to the noble Lord, Lord Meston, for indicating that he will postpone discussion of his Amendment No. 54 until I am called upon to move Amendments Nos. 40 and 55. It is just one out of the many bizarre features of the groupings with which we are faced that his Amendment No. 54, which covers the same subject matter as my Amendments Nos. 40 and 55, should have been grouped with the amendments we are currently considering and not with Amendments Nos. 40 and 55. I am grateful to him for leaving discussion of his Amendment No. 54 until later.

Lord Simon of Glaisdale

There has been a good deal of confusion about the terminology of the matters with which we have been concerned. That has not been the fault of the principal speakers in Committee, who have been completely clear, not least the noble Lord, Lord Irvine of Lairg, in his speech on this amendment.

I am inclined to think that it would be better if the terms we use here were statutorily defined because some are overlapping. Conciliation is an overlapping concept. Counselling to some extent is an overlapping concept. What I believe all Members of the Committee wish to see is an opportunity for reconciliation—a process of mediation. I agree that our discussion would be better if postponed.

Although reconciliation must be entirely voluntary, I differ from some Members of the Committee in not holding the same view about mediation. Reconciliation is the first concept. We all desire to see that in the sense of helping the parties to restore their relationship, one to another, and therefore also to their children.

As for mediation, I understand that to be an alternative, or preparatory, to adjudication, rather than, as the noble Baroness put it on an earlier occasion, the parties engaging adversarially in conflict before the judge. The mediator can help them resolve their differences. It is the unresolved differences which would go to the judge.

The third concept is counselling. Although it is an overlapping concept, we should bear in mind that counselling may be needed independently to reconcile the parties to the predicament in which they find themselves with the crisis in their marriage and possibly its termination. Parties can suffer severely, and traumatically, when they come to consider the fall-out of a divorce, or indeed of a separation; the effect on the children; and the financial effect. Counselling can help particularly at that stage. That is a late stage.

The noble Baroness, Lady Faithfull, mentioned that in Scotland the reconciliation agent shares an office with the mediator. That is very important. When we were envisaging the family court, we had in mind that it would be in two parts, a welfare division and a judicial division, rather like the Conseil d'Etat in France. The welfare division would have agents to help in reconciliation, in mediation and in counselling, all sharing the same outer office. The difference would be that counselling and reconciliation, I entirely agree, must be voluntary.

I happen to think that mediation need not be, indeed should not be, because it is an alternative to adjudication. However, I wish to follow the advice of the noble Lord, Lord Irvine, and postpone my arguments on that to a more appropriate occasion. I believe that we need to have the terms defined, otherwise not ourselves but many outside will continue to confuse mediation with reconciliation, conciliation and, indeed, counselling.

9.45 p.m.

The Lord Chancellor

Perhaps I may say to the noble Earl, Lord Perth, that, although in the Bill as originally proposed the matter of marriage support services was not directly addressed, I explained that, with the agreement of colleagues, I had set up an inter-departmental working party to look at it. One of the results has been that I have proposed Amendment No. 162, which is intended to enable the Lord Chancellor, with the approval of the Treasury, to make grants in connection with the provision of what we have called marriage support services, research into the causes of marital breakdown and research into ways of preventing that. That is intended to apply outside the ordinary matter of divorce.

I agree with the noble Earl, Lord Perth, that the sooner help can be asked for the better. However, that depends on the parties asking for it. It would not be right for anyone to go around asking people whether their marriages were in crisis. People need to come for help and we are investigating the spread of that help, the extent to which it is known about and what can be done to make it better known.

As regards the principle of the amendment moved by my noble friend Lady Young, I am entirely in support of the view that everything we can do to assist reconciliation should be done. One of the problems that I have is that I believe it is difficult and unwise to separate out the period into lengths of time for reconciliation and for other things. I have attempted not to include mediation in the Bill on that basis either, but to talk about a period for reflection and consideration.

It is suggested that those words can be improved upon, but it is important that there is one period. I believe that an effective aid to reconciliation is the kind of consideration that arises out of mediation when people are facing the future. Perhaps I may make that point good. The situation is made clear in Amendment No. 46, standing in the name of my noble friend Lady Young and the noble Earl, Lord Perth. It states:

1. "(a) first a period of 6 months to reflect on whether the marriage can be saved; and if it cannot,
2. (b) a subsequent period of 12 months to consider what arrangements should be made for the future".

My point about that, is that in a sense, it suggests that at an earlier stage the conclusion has been reached that the marriage cannot be saved. I am contemplating a later stage at which that point would be reached, rather than concluding that it cannot be saved, I wish to leave that point open for as long as possible. That is the problem about separating out the two aspects.

It is extremely important that both should be in contemplation for the whole period, because sometimes at the very last minute, when the reality of the future is seen, reconciliation might take place. Therefore, I am very much in favour of emphasising reconciliation as an important part of that period but I think that it is unwise to separate out the period as though there were a period for reconciliation and then, if that does not work, a period for mediation.

My view is that mediation requires to be by consent. It may be that my noble and learned friend will wish to return to that later. But at least the sort of mediation that I have in mind is not backed by compulsion. If there is an element of compulsion, then it is the court that I have in mind for that.

Lord Elton

Before my noble and learned friend leaves the point of mediation versus conciliation, perhaps he will tell us whether there will be, either in orders or in some corner of the Bill which has escaped me, any obligation on the mediator to put before the parties encouragement to enter into conciliation?

The Lord Chancellor

Of course, the purpose of the information session right at the beginning, before any process is embarked upon at all, is to give full information about reconciliation and the aids to reconciliation in the form of counselling.

The right reverend Prelate said that he would like that to be emphatically marriage counselling. We shall hear more about that later. Obviously marriage guidance counselling is included but there may be other types of counselling, more specific counselling which may be relevant. For example, a bereavement may require counselling. Many Members of the Committee may know of a situation where a tragic bereavement of a child has caused a great difficulty in the marriage. In such a case, it is not specifically marriage guidance but guidance as to how the parties can cope with the bereavement which may assist the marriage to carry on. But that is a minor point.

But such provision arises in the information session. There are later amendments, not in this group—and that is saying something because it is quite a large group—which deal with the question of whether a code of practice should be enacted.

I am not in the business of trying to regulate the professions. I believe that on the whole, professions should be self-regulated except, of course, where matters affecting other interests are concerned. It is right that the mediation profession should develop its own methods and standards. But the principal provisions in relation to mediation in the Bill are concerned with its funding by the Legal Aid Board. Subject to what may be said later, I believe that it is possible to have indications in a code as regards what we should expect of mediation before the Legal Aid Board could fund a particular type of mediation service. It would require to attain certain standards. That would be consistent with the view that the professions should not be regulated in detail by the Government.

Baroness Seear

The noble and learned Lord has said that he is very much in favour of conciliation, but of course it does not come cheap. Will the money be available to help people have access to such conciliation? That point is not very clear in the Bill.

The Lord Chancellor

So far as concerns money, I have pointed to a clause which I am seeking to insert in the Bill by way of amendment which would allow me to make grants in support of the provision of marriage support services. The precise amount of such grants will obviously be determined from time to time by reference to the effectiveness of the services. As has been said, if marriages can be saved, that is likely to he effective although it may not be immediately apparent. However, that is a matter to be considered. Obviously, the precise level of funding that will be required is a matter which will need to be considered from year to year in the light of the special situation.

In Amendment No. 162, I am asking Members of the Committee to insert in the Bill a clause which would authorise the Lord Chancellor to fund such services by grant, with the approval of the Treasury. As my noble friend mentioned, it was once a matter for the Home Office but it is now the responsibility of the Lord Chancellor. Whether that is an improvement is a matter for debate. I see that my noble friend wishes to intervene. I give way.

Lord Elton

I was waiting to interrupt but, as the opportunity has now arisen, perhaps I may ask my noble and learned friend a question. When he is considering the issue before the next stage, will my noble and learned friend recall the number of occasions upon which he and other people have said that, during mediation, people will discover what the future may hold and may wish to draw back from it? Surely that is the point at which conciliation ought to come into effect. I believe that the mediator ought to have a duty to point that out at the earliest stage. He can see the fracture in the ice floe first and, therefore, would be able to encourage the parties to remove it.

The Lord Chancellor

That is what I was seeking to say. If it is right to have a code—and that is something which we will have to discuss later—then that is a provision which could he included. I do not believe that that is the kind of thing that one would put on the face of the legislation.

As I was saying, the Home Office did fund marriage guidance through Relate and the other organisations which have been mentioned. That responsibility was transferred to the Lord Chancellor's Department at about the time that the White Paper was issued but no statutory power to that effect was granted. That remains the case unless and until something along the lines of Amendment No. 162 becomes part of the law.

What I have said deals, I believe, with Amendments. Nos. 21A to 21C, 32A, 33A, 35B, 37A, 38A, 38B, 39 and 39A. Amendment No. 46 is the one I particularly referred to, but the principle runs through the earlier amendments. Amendment No. 54 has been postponed until later; Amendment No. 55A is again to the same effect.

There is an amendment in the grouping tabled under the name of the noble Earl, Lord Russell, which speaks of domestic violence. I am not sure that any special mention needs to be made in that respect. Then there are several consequential amendments. I shall move Amendment No. 59 later. It proposes to insert the phrase "received by the court" instead of the word "made", thus making it clear that the document is to be lodged.

The noble Baroness, Lady Hamwee, also has an amendment which she is not following up. That brings me to the amendments of the right reverend Prelate the Bishop of Oxford, to which he referred. The precise order in which these matters are put forward is a matter of some importance. I am interested in the way in which the right reverend Prelate has supported these amendments. In passing I have already asked whether it is right to restrict this matter to marriage counselling in the strict sense, because I can see that other types of counselling might, in some rather special circumstances, be relevant. Therefore I wish to ensure that all those who may be qualified to help effect a reconciliation could be covered under this clause. Marriage support services or something of that kind may be possible.

I am happy to consider the matter further and perhaps the right reverend Prelate will bear in mind the special types of counselling that I mentioned and consider whether he thinks that some further changes are required in that area. I should be happy to discuss that kind of matter without taking up the time of the Committee, because I think we are probably fairly well agreed as regards what it might cover. I might therefore be able to come forward with a better amendment at Report stage than if I were left to my own devices.

I have already spoken briefly to Amendment No. 128. I believe that the information session is extremely important in this connection. If the information has been given effectively, I would hope that the parties would not forget it as they discussed the matters that arose between them, and that the scope for reconciliation would continue.

10 p.m.

Baroness Young

Once again I thank my noble and learned friend for his detailed reply. I am bound to say that at first I found it disappointing because I felt that he had not really taken on board what has been a major concern on all sides of the Chamber as regards the importance of reconciliation. If I have understood him correctly, he is against the separation of periods of mediation and reconciliation and feels—so far as I can understand it—that there ought not to be time limits on either. However, if that is his view, it adds materially to the strength of the argument for extending the period of a year; otherwise everything will have to be dealt with within a short period of time. After all, we are now at 22nd January. If that is when the clock starts, it will stop on 22nd January 1997. That is a short period in anyone's life for all these things to be considered. We need to think about that.

I hope that, when we reach the next stage of the Bill, my noble and learned friend will have filled out his thoughts to a much greater extent on a number of these issues, because, if I may say so, we are being asked to take on trust an enormous number of matters. I regret to say that experience of parliamentary life has taught me one thing; namely, that if one does not see the small print at the time one lives to regret that considerably afterwards. Nothing could be truer as regards this particular Bill.

My noble and learned friend has already said that he will conduct some pilot schemes on the information session. That is extremely important. We do not really know anything about who will conduct these sessions or what will emerge out of them. We do not really know anything much about the whole process of mediation except that one cannot make people go to mediation if they do not want it. We are being invited to take all these matters on trust. We need to see more detail. I am, of course, entirely in favour of the subsequent amendment, Amendment No. 162, of my noble and learned friend, which concerns research into marriage breakdown and grants to organisations to support marriage.

The right reverend Prelate the Bishop of Oxford will be pleased to know that I support his amendments, which I believe are valuable. Again, we need to know who is to do the counselling and what they will say when they give the counselling. I have supported what appeared to be sensible actions but which in the end did not square with what anybody expected. Therefore, it will be interesting to have more detail on that aspect.

The question of the code of practice on mediation seems to have arisen this evening for the first time. I have no objections in principle to such a code of practice, but it would be nice to know what it will contain.

I have two serious points to make. There is a need for reconciliation. I am flattered that anyone should think that I am being modest about the amendments. I am not a lawyer. I said to my noble and learned friend at the start of the proceedings that I would put down a number of amendments covering the same point because I hoped that one of them might be acceptable to him, or that if none of them were he would come forward with an amendment of his own. That would have been ideal.

I shall not argue about whether there should be a separate period for reconciliation and whether it should come first or later. We want to know how it will work. I am still very unclear about how mediation suddenly becomes reconciliation, which seems to be the view in the Bill. We shall need a great deal more information before the next stage of the Bill.

One point which emerges from this discussion is that if there is not to be a separate period for reconciliation, which is what I should like to see, that adds weight to the argument for extending the period of a year. I believe that most people are agreed that it ought to be extended. My noble friend Lord Perth made that point clearly, as others did earlier.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 21B and 21C not moved.]

The Lord Chancellor moved Amendment No. 22:

Page 2, line 37, leave out ("the appropriate declaration") and insert—

("a declaration by the party making the application that—

1. (i) having reflected on the breakdown, and
2. (ii) having considered the requirements of this Part as to the parties' arrangements for the future,

the applicant believes that the marriage cannot be saved.").

The noble and learned Lord said: I spoke to Amendment No. 22 with Amendment No. 18A. It makes clear what I wish this provision to state. The amendment is coupled with the fact that I have given notice that I do not wish Clause 6 to stand part of the Bill because I have altered Clause 4 to take account of that provision. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 23 to 25 not moved.]

Lord Archer of Sandwell moved Amendment No. 26:

Page 2, line 44, leave out from ("statement") to end of line 7 on page 3.

The noble and learned Lord said: I say at the outset that this is a probing amendment, moved in a spirit of genuine curiosity, although the Committee may observe that a probe can sometimes be an instrument of excision.

Our curiosity centres on the relationship between the statement and the application for an order of divorce. Clause 4(3)(a) provides that a statement may not be the basis for an application for divorce if the parties have jointly given notice withdrawing it. That is understandable. If each party has agreed not to rely on that statement then neither party should be permitted to say, "I didn't really give up my right to rely on the statement, I had my fingers crossed". That does not disturb us.

The subsection then goes on to say in paragraph (b) that even if the parties have given no such joint notice, the statement may not be the basis of an application if more than six months have passed since the earliest time when an application could have been made. I observe, first, that there have been those who say that that appears to admit of some ambiguity. Does it mean that the statement cannot be made the basis for an application more than 18 months after it was first made—that is, when it could have been made had there not been some impediment? Alternatively, does it mean that it cannot be made the basis for an application more than six months after all the requirements of Clause 2 have been satisfied? For my part, the natural, literal meaning seems to be the latter. I assume that what the provision means is that a party wishing to proceed to divorce will have been able to do so and there will have been nothing to compel them to wait for the further six months.

I understood what the noble and learned Lord the Lord Chancellor said in an earlier debate as to the need, where possible, to finalise the situation. Reflection cannot go on for ever, and uncertainty is not in the interests of anyone, least of all the children. But let us suppose that both parties need just a little more time for reflection, either in order to reflect on the arrangements for the future or to consider whether they want a divorce at all. They would have breathing down their necks the constraint that if they deferred their application a day beyond the statutory limit, they would need to file a further statement and to wait a further period of 12 months. It is not difficult to imagine circumstances which might cause them to wish for a little more time in order for some relevant situation to crystallise.

In an earlier debate, the noble Lord, Lord Meston, gave some examples. The arrangements may depend upon whether a child of the marriage obtains a particular employment requiring the family to stay in a specific area or obtains admission to a specific school or university.

The provision imposes what may he a severe sanction. If the purpose is to encourage finality, if it is clear that no reconciliation is possible and the purpose is, for example, to protect the children from further uncertainty, then it may achieve precisely the opposite effect. The very child whose needs are in question could be visited with another year of uncertainty. As was observed in an earlier debate, when you are a child 12 months can seem a very long time.

It would be helpful if the noble and learned Lord the Lord Chancellor could tell us the reasoning behind the provision. Members of the Committee may then be able to judge whether the purpose is so important that it is worth the undoubted disadvantages of so rigid a provision. I beg to move.

Lord Meston

It may be almost churlish to suggest that, rather than over-grouping, there has been a little under-grouping. I believe that I can usefully say what I need to say about Amendment No. 27, which concerns the same provisions in Clause 4 as the noble and learned Lord, Lord Archer, has just addressed.

Clause 4(3) provides that: An application may not be made under section 2 … if … a period of more than six months has passed since the earliest time when an application for a divorce order could have been made by reference to the statement". It is hard to understand the justification for this blanket prohibition. As the noble and learned Lord suggested, it may not be easy to define in some cases exactly what is the earliest time that an application for a divorce order could have been made. If the parties have not yet managed to reach agreement but are still trying to do so, or the applicant is relying on the other spouse's obstructive behaviour as a reason why financial arrangements have not been made, does the 12 months run from the date of the application, or only when agreement is reached, or when the applicant decides to give up trying to reach agreement? The issue of when exactly a written agreement was reached is likely to be a very fruitful source of litigation.

While it is obviously undesirable that an application should be made years after it could have been—particularly if there has been a reconciliation or attempted reconciliation—it is hard to see why a couple who have not reconciled and have sorted everything out, but who fail through some inadvertence or apathy to go on to issue the application for a divorce, should go through the hollow charade of a further 12 months' reflection and consideration. Therefore Amendment No. 27 would provide that the period should he 12 months from the date when the period of reflection ended, with the court having a discretion to make an order after that date if it is satisfied, on a joint statement by the parties, that, there has been no reconciliation … [that] each accept … the arrangement, which they made at the time … or those arrangements are the subject of a subsisting court order", and that they should continue to regulate their future under those provisions. It is also necessary that there should have been no relevant child born and there has been no other significant change of circumstances that would make it inappropriate for the divorce to be ordered by reference to the original statement. This is a matter for further thought and clarification, as the noble and learned Lord, Lord Archer of Sandwell, suggested.

10.15 p.m.

The Lord Chancellor

As to the meaning of this clause, the earliest time an application for a divorce order can be made is provided for by Clause 7(1); namely, when the "period for reflection" has passed. Clause 7(1) defines that phrase precisely. It states: Where a statement has been made, a period for the parties … to reflect … to consider … must pass before an application for a divorce order or for a separation order may be made by reference to that statement". That is the phrase that is intended to be picked up in Clause 4(3)(b): the earliest time when an application for a divorce order could have been made by reference tc the statement". That is the intention of the clause. Now to turn to the reality—

Lord Archer of Sandwell

I am most grateful to the nohle and learned Lord for giving way. It seems that my construction was wrong. I had assumed that the earliest date when an application could be made was when all the requirements of Clause 2 had been satisfied. Presumably, even if some of the requirements have not been satisfied, the six-month period runs.

The Lord Chancellor

Yes, that is the intention. It is reasonably plain, with all respect to the noble and learned Lord; the phrase is exactly the same one. But in a sense it makes more difficult the justification of the period on that basis.

The justification for "a period" is that it is important that proceedings are not allowed to drag on interminably, causing uncertainty for spouses and their children. The notice that says the marriage has broken down is intended to be an important one, and to be under consideration. It would not be right to allow that to drag on interminably. Nor would it be right that one party could hold, as it were, a Sword of Damocles over the other for an indefinite period just to enable one of the parties to rush for a quick divorce in the future, having laid the ground work, as it were, way back in the past and left the matter open to rush forward on the basis of such a statement as this without a time limit.

On the other hand, precisely what the time limit should be is a matter that requires consideration. That is the idea behind Amendment No. 27, tabled by the noble Lord, Lord Meston, and also the amendment in this grouping by my noble friend Lady Young, Amendment No. 27A which reads: leave out ("six") and insert ("eighteen")". It may well be that the period that we put forward, a total of 18 months, is too short. Certainly, so far as I am concerned, I believe that there could be some intermediate position. Amendment No. 27A goes for 18 months and we suggested six months. Amendment No. 27 from the noble Lord, Lord Meston, goes for 12 months. That seems to me to be an intermediate, and therefore possibly attractive, period on which to settle.

The principle of requiring some period is, I feel, reasonable. I also put in the Bill the power to extend the period in the light of experience. It has been suggested that that should be done by instrument in a slightly different form from the one that I proposed and I do not object to that suggestion. But, in the light of the considerations which I have received since the Bill was published, I believe that a period in the order of 12 months is appropriate here. If noble Lords allow me, I shall certainly consider bringing forward a government amendment to give effect to that at Report stage.

Lord Archer of Sandwell

The noble and learned Lord cannot say fairer than that. Perhaps I may say one word about the construction of this provision. I understand that it follows the wording of Clause 7(1). I should have thought that at least a possible construction of the words: the earliest time when an application … could have been made", means the earliest time when all the necessary conditions have been fulfilled. Indeed, that was how I did construe the words. It may be that I was more than usually confused when I read the passage but it is a confusion shared with other members of the legal profession. It may be that the noble and learned Lord would like to reconsider this point before a great deal of time and money has been spent on litigating about it.

The Lord Chancellor

Most certainly. The noble and learned Lord said that he had read the passage in that way and I certainly wish to keep the proceedings as free from litigation as I can. As the noble and learned Lord knows well, it is not possible to be categorical about that but I shall certainly do my best.

Lord Archer of Sandwell

I am most grateful for that response. As to the merits of what we seek to achieve, I accept that there has to be some limit on the period before the application is made. One could not allow a statement to drag on for years and find years later someone waking up and saying, "I think I shall make an application for a divorce order." If the noble and learned Lord were minded to accept the suggestion of the noble Lord, Lord Meston, certainly I should not seek to dissuade him. This is clearly a matter on which we might all reflect further. I am most grateful for what the noble and learned Lord said. I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Baroness Young moved Amendment No. 27A:

Page 3, line 1, leave out ("six") and insert ("eighteen").

The noble Baroness said: In moving this amendment, I just want to ask a question for clarification. I recognise that my noble and learned friend suggested that in consideration of Amendments Nos. 26 and 27 he could possibly extend the time from 6 months to 12 months. I hope that I am correct about that. I beg to move.

The Lord Chancellor

Yes, indeed.

Baroness Young

In fact, my amendment, which suggests 18 months, would have the effect of extending to 30 months the maximum time to obtain a divorce based on one statement. I hope that I have the arithmetic right and that by suggesting 12 months instead of six, the period would be reduced to 24 months. So we are talking about a period of two years. I hope that I have understood that correctly.

The Lord Chancellor

Indeed.

Baroness Young

I thank my noble and learned friend. It is quite late at night. In following all those figures, I wanted to make sure, as they refer to more than one clause, that we had got them straight. I am pleased that the period of time has been extended. To that extent I welcome the indication. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Archer of Sandwell moved Amendment No. 28:

Page 3, line 7, at end insert—

("( ) Any statement made under this section shall specify whether the maker or makers of the statement wish to apply for a divorce order or a separation order.").

The noble and learned Lord said: Amendment No. 28 raises a simple point but one which occasions some anxiety to practitioners. Indeed, it caused the Law Society to express some concern. As the Bill is drafted, the statement does not need to specify whether the maker envisages a divorce or a separation. That is a matter to which your Lordships adverted in an earlier debate. Indeed, the noble Lord, Lord Meston, pointed out that the Bill does not seem to make clear the precise effect of a separation order. In the days when I practised under the old divorce jurisdiction—admittedly long ago—it used to be said that the effect of a separation order was that the parties could live apart without either being guilty of desertion. However, the concept of desertion is passing into history. As the noble and learned Lord, Lord Simon, indicated, the precise effect of a separation order may be the subject of a debate on Clause 18.

Amendment No. 28 is directed to a rather different question. The statement really initiates the proceedings as in the past a petition did or, in other contexts, a writ may. Presumably an important part of its function is to give notice to the other partner that the proceedings are about to begin and that that is what the maker of the statement intends to say to the court. In response to the noble Baroness, Lady Elles, in an earlier debate, the noble and learned Lord the Lord Chancellor explained that there were to be provisions for ensuring that it reached the other partner and that that was indeed part of its function.

An important piece of information necessary to enable the other party to act appropriately is the remedy that is being sought. Without knowing what remedy the other partner has in mind, it is not easy to see how a party can decide whether to oppose the application, how to reflect on arrangements for the future, or how to react at all. The amendment does not permanently foreclose the options.

Clearly, the Bill envisages that a separation order may be converted into a divorce order. It may even be appropriate, though the Bill does not actually mention it, to permit of some flexibility by amending the statement if the court considers it just and convenient to permit it. That may well be what is in the mind of the noble and learned Lord in relation to the regulations. Surely any document initiating legal proceedings ought to make clear what relief is at present in contemplation. That is the purpose behind the amendment. I beg to move.

The Lord Chancellor

The intention behind the Bill was to leave open the options to the parties for as long as possible. We are attempting to produce a situation in which every possible option remains open to the parties in the hope that, instead of going ahead to any order, they may be able to repair their marriage. For that reason we do not require them to specify in the original document what it is that ultimately they may want. As I said, the fervent hope is that they may not want anything at all and that the follow-up will not occur.

In moving the amendment, the noble and learned Lord indicated that, if the amendment is accepted, there may need to be scope for allowing an amendment to the original statement. If the philosophy behind the amendment is accepted, that would not be required: the matter would be left open. If that was so, the parties would know that either a divorce order or a separation order would be competent in the end, if matters went that far, but that they may not. So far as concerns the consequences in relation to the parties, they would have to decide that certainly by the time they came to apply for a final order. But this matter might well be raised in discussions between them in the period in question. That is the reasoning on which we have not required that they should specify which of the two ultimate orders they might seek.

10.30 p.m.

Lord Archer of Sandwell

I am grateful for that guidance from the noble and learned Lord. I cannot say that I am wholly persuaded. One can envisage a situation where, if the party filing the statement says,"I am asking for a judicial separation", the other party may say, "I agree that there has been irretrievable breakdown. I won't put any unnecessary obstacles in the way"; whereas if there were a possibility that there might be an application for divorce, that partner might take a very different view.

The Lord Chancellor

It occurred to me as the noble and learned Lord was speaking that we might be able to have a middle course in which it was open to the parties to specify. At the moment it is not intended that they should specify at all. It may be that it would be right to leave it open to them to specify without requiring them to do so. That option might be worth considering.

Baroness Elles

I am very interested in what the noble and learned Lord, Lord Archer of Sandwell, said and in what my noble and learned friend has now said. Surely it would be quite useful to have some kind of middle way—for instance, in the case of those who are Catholic who do not have divorce but would want a separation—so that there is the possibility of one or the other being inserted in the Bill in order to open up one or two of these matters which could cause a difficulty for the acceptance of such a statement.

The Lord Chancellor

For my part, I am rather attracted to that as a possibility. Certainly, if a person were forced to say in advance, it might be that it would be difficult for them. On the other hand, if a difficulty of this kind is envisaged, one of the parties might be quite willing to try to assuage that difficulty by indicating from the outset he or she was interested only in a separation. That is certainly a possible middle way which the noble and learned Lord might contemplate.

I do not have very strong views about this. The general philosophy I have tried to follow is to keep every possible option open for as long as possible in the hope that ultimately none of them would be taken up.

Lord Archer of Sandwell

I am grateful for both of those interventions. I can see the merits in the middle way and it might be something on which we could all reflect. I do not think this is the occasion to be dogmatic in any of these matters. If there really is a prospect that by keeping open the options the party filing the statement may ultimately decide not to take up any of them, that must clearly be a bonus. In that state of the argument, and for the purpose of further reflection, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4, as amended, agreed to.

Clause 5 [Statement of marital breakdown]:

[Amendment No. 29 not moved.]

Lord Meston moved Amendment No. 30:

Page 3, line 11, leave out ("If') and insert ("Whether").

The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 31, 32 and 33. It is also grouped with Amendment No. 34 in the name of the noble and learned Lord, Lord Simon of Glaisdale, and with three further amendments of mine, Amendments Nos. 36, 37 and 38, although I hasten to say that I recognise that the last three are almost certainly otiose if Clause 6 is not to stand part of the Bill. In any event, the point is the same as the one I seek to make in Amendments Nos. 30, 31, 32 and 33.

I should also mention that there is a mistake in Amendment No. 30. The word I seek to insert is "Where" rather than "Whether". I do not know where the mistake crept in. I suspect that it was my fault, for which I must apologise.

I should also indicate very simply that these are simply drafting amendments and an attempt to dispense with subsection(3) of Clause 5 by combining the two subsections together. As it stands, there is a provision in Clause 5(2) for the way in which the statement made by one party is to be constituted. In subsection (3) there is a provision dealing with a statement made by both parties. I wonder why that is necessary. I suggest that it would be simpler to combine the provisions into one subsection as my amendments seek to achieve. The result would be that the first line of Clause 5(2) would read: Where a statement is made by one or both parties it must state that that party or each of them", and so on. I hope in that way to do away with the necessity for Clause 5(3) altogether. I beg to move.

Lord Simon of Glaisdale

I believe that Amendment No. 34 is grouped with this amendment. In speaking to it I venture first to protest as strongly as I can that on a Bill of this kind the Committee should be kept sitting well past half-past ten. This is probably the most important Bill of the Session, if not the most important of this Parliament. When we debated the Rippon Report on the sittings of the House, we were promised that we would not be kept very late at night. It is really a parliamentary indecency to be discussing a Bill of this sort at this hour. There is nobody on the Back Benches of the official Opposition and as far as I can see there is nobody on the Back Benches of the Liberal Democrats. Although there is a sprinkling of noble Lords on the Conservative Benches, the House is by no means representative. We have only one right reverend Prelate still present.

Amendment No. 34 is in two parts. It says: A statement must also state— (a) the ages and relevant circumstances of any child of the family". Paragraph (b) is no longer relevant. It refers to an earlier amendment which I moved and did not press to a Division. It seems to me that a statement should contain information about the children. I should have thought that that would be needed by anybody attempting reconciliation, certainly by a mediator, and by the court if the matter has to go to adjudication. After I have heard my noble and learned friend and Amendment No. 34 is called I shall consider whether to move the amendment formally.

The Lord Chancellor

There are some government amendments in this group. As we received it, the drafting amendment appeared to have a different effect from that which the noble Lord intended. It might therefore be a waste of time for me to say what we thought about it as we understood it.

Turning to paragraph (a) of the amendment in the name of my noble and learned friend Lord Simon, I would expect the rules to contain a requirement in relation to the relevant children and possibly more detail about their circumstances than would be appropriate on the face of the Bill. I hope that my noble and learned friend will accept my assurance that the regulations about the form of statement will include such information, with possibly more detail about the relevant circumstances than is normal on the face of a Bill.

This group contains the Motion relating to my intention to oppose Clause 6. I have already spoken to that in relation to Amendment No. 22.

I speak now to Amendments Nos. 160 and 161 which seek to clarify the drafting. The word "or" at the end of Clause 17(3)(a) should not be there, while the provision to the effect that marital proceedings are both divorce proceedings and separation proceedings at a time when no application for an order has been made was not included, although it appeared in the earlier printing. There was an error on the final print, which is why I need to correct it now.

I believe that I have covered all the amendments that have been spoken to in this group. I shall move my amendments when we reach them in due course.

Lord Meston

I am glad not to have been told what the noble and learned Lord the Lord Chancellor thought of my amendment in its mistaken form on the Marshalled List. It was designed only to achieve a form of drafting conciseness which I suggest is lacking on the face of the Bill, but now is not the time to develop that point.

The amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale, enabled the noble and learned Lord the Lord Chancellor to make the point that, as under the existing procedure, a statement of arrangements for the child or children will be lodged with the court. Under the existing procedure, that is still an important document but it is a separate document from the originating process. With that, I beg leave to withdraw Amendment No. 30.

Lord Simon of Glaisdale

Before the amendment is withdrawn, perhaps I may say that I am very well content with the assurance given by my noble and learned friend, who has said that he will make a rule covering the substance of my proposed amendment. That seems entirely appropriate and I express my thanks to him.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 to 34 not moved.]

Clause 5 agreed to.

Baroness Trumpington

I beg to move that the House do now resume.

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

House resumed.

House adjourned at a quarter before eleven o'clock.