§ 3.8 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
§ Lord Simon of Glaisdale
Before the noble Baroness moves her amendment, perhaps I may raise a question on the grouping which, if it is right, shuts out, irrevocably at least one important amendment. The groupings list groups six amendments with Amendment No. 35 in the name of the noble Baroness, which has just been called. The list then goes on to say in the usual italics:"35A-39A and CL 6 S/P already debated".909 On checking Hansard, I find that my recollection is correct. What happened late last night was that the noble Lord, Lord Meston, moved Amendment No. 30 with which several other amendments, including Amendment No. 34, were grouped. Amendment No. 34 was in my name, and I spoke to it. My noble and learned friend the Lord Chancellor then replied to the noble Lord, Lord Meston, and to myself. The noble Lord, Lord Meston, then withdrew Amendment No. 30. The following amendments up to Amendment No. 34, which was in my name, were not moved so that we never reached Clause 6.
The Chair put the Question, that Clause 5 stand part to which the Committee assented. The noble Baroness, Lady Trumpington, then, belatedly because it was a quarter to 11, moved that the House resume. So we never got beyond Clause 5. Amendment No. 35 in the name of the noble Baroness, Lady Faithfull, has been called, correctly, but Amendment No. 35A, which is in my name, has not been debated and has not been reached.
The noble Baroness, Lady Trumpington, is always a great expert on the groupings. I hope that she will be able to clear up my recollection.
§ Baroness Trumpington
Amendment No. 35A, which I believe is the one to which the noble and learned Lord is speaking, was included in the grouping with Amendment No. 6. However, as we have not reached Amendment No. 35A, even though it was grouped with Amendment No. 6, the noble and learned Lord is fully able to speak—very briefly of course—to it.
Baroness Faithfull moved Amendment No. 35:
After Clause 5, insert the following new clause—
MARITAL BREAKDOWN: REGARD TO BE HAD TO VIEWS OF CHILD
(". Parties who—
shall have regard so far as practicable to the views (if he wishes to express them) of any child for whom they have parental responsibility, taking account of the child's age and maturity.").
§ The noble Baroness said: The noble Baroness, Lady David, has her name to many amendments, but with great regret she is unable to be here this afternoon. Her son has flown over from America for one day, and this is the day. So, with the Committee's permission, I shall speak for myself and for the noble Baroness.
§ The Committee will know from the groupings list that the amendments relating to children specifically are Amendments Nos. 35, 52, 81, 90, 91, 118, 124 and 132. I shall speak briefly to all of them. As a preamble, I have to say that these eight amendments tabled by the noble Baroness, Lady David, and myself relate to children of divorced parents.
§ I know that all Members of the Committee will agree that divorce is a sad and damaging event in the life of any child. Children are on the no-win side. Parents 910 sometimes do not realise the damage which is being done to children. If the parents stay together and yet have an uncompromising attitude of anger and distress towards each other, that is bad for children, as was stated by the noble Lord, Lord Irvine of Lairg, and the right revered Prelate the Bishop of Liverpool. If the children leave their parents, or the parents separate and the child stays with one of them, that is something which distresses children beyond words. It is something that remains with them for the rest of their lives.
§ I have often had to deal with children of divorced parents. They say to me, "Why were we never asked what we wanted?" Children are not asked what they want. I do not contend that children should demand and get what they want; but I believe that the courts and the parents should understand what it is that their children need and want. On many occasions what a court decides is just what the child does not want. The courts should know that. So Amendment No. 35 seeks to ensure, first, that parents talk to their children, possibly jointly, about what is happening. If that is not possible, or the parents say that they just could not do that, as things stand the mediation service cannot do that for the child unless the parents give permission.
§ In the amendment I am saying that a requirement should be laid down, either on the face of the Bill in a schedule or in guidance, that the children's views should be known. I am asking for no more than that. I hope that we shall be able to persuade parents themselves to talk to their children without acrimony or animosity so that the children know that they have at least been heard, even if the outcome is not what they want.
Amendment No. 81 is in the name of myself and the noble Baroness, Lady David. It is a new clause which provides that:
(1) The Lord Chancellor may make regulations to provide for a special children's officer to be attached to the family court care centres.
(2) The regulations shall make provision for the special children's officer to make appropriate arrangements on behalf of children whose parents—
§ This amendment is attached to the previous one because the noble Baroness, Lady David, recommends that there should be someone to find out what the children want if the parents have been unable to help them. Children have often written to the judge to tell him that what has happened is not what they want. This amendment, together with Amendment No. 35, is a plea to the Committee to ensure that somewhere in the Bill the children's views and feelings are taken into account when an order is made. I beg to move.
§ Baroness Elles
I support the helpful amendments which have been introduced by my noble friend Lady Faithfull and by the noble Baroness, Lady David, who we regret is not here today. When we were debating the position of children in the Bill yesterday, she had the kindness to agree, after I had spoken, that the position 911 of children was not dealt with fully in the Bill. Therefore I support all the amendments proposed by my noble friend.
§ Baroness Macleod of Borve
I apologise to the Committee for not having taken part in the debate previously. I am trying to recover from 'flu but it is overwhelming me again. However, I feel most strongly about the two amendments under discussion. I have experience of dealing with marriages that have gone wrong and of dealing with small children in a court of law and I believe that the amendments are vitally important. I do not know what I should have done without a special children's mediator or helper. I found that with the best will in the world parents believe that they are communicating with their children. However, it often happens that they have not communicated and that children have held back. The only person that the children will talk to is a children's officer. With those few comments, I warmly support the two amendments.
§ Lord Simon of Glaisdale
It has been a criticism of the Bill that it pays insufficient attention to the welfare of children; that it is wrong to speak of a marriage having irretrievably broken down if there is a young child for whom the parents still have responsibilities; and that it is wrong to talk of the spouses being locked in a loveless marriage if there is a young child who can receive and reciprocate love. Throughout discussions on the Bill and the White Paper, and going back to 1969, attention has been focused on the parents and their wishes rather than on the child's. The Child Support Act was launched with a White Paper which stated that children come first. Quite obviously, they do not under this Bill. Therefore, it is of great importance that the noble Baroness, Lady Faithfull, has drawn attention to the fact that the courts should be cognisant and constantly vigilant as to the welfare of the child. The question is, how should that be done?
The noble Baroness wants the parents to speak to the child in question. In some circumstances that may be suitable but more often than not it is unsuitable because the parents try to influence the child in favour of their own interests, and ultimately, and generally disastrously, in favour of a new spouse who is put forward as a surrogate parent.
In my time, which is some time ago, the courts were most reluctant to see children embroiled in a divorce at all because it did far more harm than good. I shall be corrected by the noble Lord, Lord Meston, if the practice has changed but I do not believe that it has. My practice was that if the parents were agreed as to the arrangements for the child—the court had to be satisfied under Section 41 of the 1973 Act—and if the court was satisfied that the parents had agreed, it almost always considered that that was better than any solution which was imposed by the court contrary to the parents' wishes. Therefore, there was no reason to bring in a child in those circumstances and there were several reasons for not doing so.
On the other hand, I agree with the noble Baroness, Lady Faithfull, that it is necessary that the child's interests should be considered. Welfare officers, 912 experienced probation officers, are attached to the court. They were recruited into a welfare office by my predecessor Lord Merriman. They act as mediators, and nowadays a great deal of voluntary mediation is offered. In Amendment No. 35A, I have suggested as an alternative that any child should be represented by the Official Solicitor who can report to the court. He is quite impartial and detached and very much used to representing the interests of children. It is one of his every-day jobs. Generally, an assistant official solicitor is exclusively occupied with that task. I believe that that course is preferable to the suggestion that a children's officer should be attached to every court, as suggested in one of the amendments. I cannot help believing that the Official Solicitor is the right person and can provide the right guidance to the mediator or, if it comes to it, to the adjudicating court. I shall be anxious to hear the views of my noble and learned friend on that matter because he has constant contact with the Official Solicitor.
§ Baroness Lockwood
I too support the amendments. Like other noble Lords, I believe that the interests of the child are absolutely vital and therefore should be given more prominence under the Bill. The first of the two amendments brings the views of the child to the attention of the court at an early stage in the proceedings. Under the Children Act 1989 the interests and the views of the child are ascertained at a later date in the proceedings. Surely it is better that the child's views are known at an earlier stage when one hopes that there will be moves towards a reconciliation or, if not, when conciliation is taking place.
I also support the second amendment, which provides for representation of the child if necessary by an officer. That is important because I too believe that there will be occasions when the child's views can best be represented by an independent person on behalf of the child, irrespective of the views of the parents.
A further important point is that the amendments meet the requirements of the European Convention on the Exercise of Children's Rights, which we have ratified. It requires that the views of children should be ascertained when important matters affecting the future of the children within the family are being decided.
§ 3.30 p.m.
§ The Earl of Onslow
We are in danger of getting into a slight muddle. If two people are hell bent on divorce it does not matter whether little Tommy, aged seven, says, "I do not want my parents to get divorced". It seems to me that the road down which we ought to go is to say that the interests rather than the views of children should be taken care of. It would be totally wrong to say, "We cannot have Mr. and Mrs. Bloggins getting divorced because their little Tommy doesn't want them to". That seems to me to be very nearly where the amendment is leading.
What I think would be sensible and reasonable, however, would be to try to move mediation a hit further down the line of reconciliation or to take it into account, and then it might be possible for the conciliator to use the child's views in its own interests—because it must 913 be in its own interests that its parents stay reasonably happily married—to help bring some form of conciliation into it. But it is honestly no good taking into account the views of a child whose parents are hell bent on bashing each other over the head with a milk bottle. That was brought out last week by the noble Earl, Lord Russell, when I believe he said—I shall certainly be happy to stand corrected if my memory is at fault—that when his parents were divorced he experienced almost a sense of relief because the fighting had stopped. I hope I have not stated the noble Earl's feelings wrongly in that. Am I right?
§ Earl Russell
It is a paraphrase, if I may say so. I agree with most of what the noble Earl said, but perhaps it applies rather more to yesterday's amendment of the noble and learned Lord, Lord Simon of Glaisdale, than it does to today's the amendment of the noble Baroness. I support the amendment of the noble Baroness.
§ Lord Murray of Epping Forest
I find myself rather more optimistic than the noble Earl, Lord Onslow. It is surely not impossible that if there is a clear and definite obligation laid by the Act on the need to take account not only of the interests but of the views of a child, and that is explicated and spelt out, it may be just possible that it could make the warring parents address themselves to this enormously important aspect of their marriage and pay just a little more attention to it. If, by putting this on the face of the Bill, we produced in only a handful of cases a balancing factor which perhaps tipped the couple away from divorce, then I believe that that in itself would totally justify the amendment, which I would very much support.
It is important, as the noble Baroness emphasised, for the court and the mediators not only to take into account the interests of a child but also its views. The child should be told what is happening and given support where necessary and also advice. The noble and learned Lord, Lord Simon, said that it is a matter of argument as to who can best provide the advice. I tend to think that specialised officers would be better than the Official Solicitor, but that is a matter for discussion.
We should recognise that this is not a divorce Bill. It is not just a matter of the divorce of the parents. This is a family law Bill. I would emphasise that the children themselves are at least as important as the warring parents and should have their proper place in the context of this Bill.
§ Lord Elton
Your Lordships have not so far looked at Amendment No. 118 which falls within this group. It requires a child protection agency to provide help and advice to children of divorced parents, who find themselves disadvantaged by the terms laid down by the court. I do not suppose that we are meant to crawl over that too closely and ask at what stage a child may find itself disadvantaged, but I think it would be proper to ask why we are treating children as all being the same. How is the agency to give advice to a child of, say, three or of three months and how will that differ between a child of 13 or 17? These are practical and important 914 questions which need to be resolved. I take it, therefore, that this is only a probing amendment because clearly it would not serve as it now stands.
Coming back to the original Amendment No. 35, if the amendment really laid on the parents a duty—which clearly in moral law they already have—to consider the interests of the child there would be no harm in it at all and it would be very much a matter of apple pie and mother love as being something which one could not criticise. However, it does require the parents to have regard to the views of a child if it wishes to express them; and again, of course, the child may be of any age, even an infant. I hope that your Lordships will remember what the noble and learned Lord, Lord Simon of Glaisdale, said and the light thrown on this by my noble friend Lord Onslow. Many of us who support this Bill do so precisely because it gives a narrow avenue in which it is possible to some limited extent to protect children from the devastating effects of being mixed up in a divorce.
In that system the very hardest thing a loving parent has to do is to tell the child what is happening and get the child's view on it without involving the child in the battle, because inevitably a divorce represents a period of enormous strain and very often of powerful conflict. If we actually make an enactment which requires the child to be drawn into that conflict without any reference in it to any necessity to protect that child from the emotional damage which can result, without thinking through the role of any third party, I believe your Lordships would be acting irresponsibly. I hope that we can look at this with great care and certainly not rush ahead today.
§ Baroness Hamwee
I also support the noble Baroness's amendment. In doing so perhaps I might repeat some of the concern expressed by the noble Lord, Lord Elton, but perhaps in slightly different words. As I understand the noble Baroness, she is suggesting that it is not possible to have regard to the views of a child without supporting that child through the process and making certain that the real views are expressed, which may not necessarily come out in the first words that are used. It is more than simply asking one question and listening to one answer.
My concern is, taking up what the noble Lord, Lord Elton, said, the approach involving a welfare officer and whoever else it may be. This is so important and the balance is quite difficult to achieve, I suspect, between ascertaining the views of the child and avoiding the child feeling responsible for the outcome because of its expression of views. I am certain that the noble Baroness has that kind of concern very much in mind.
I am not sure whether the noble Baroness has spoken to the amendment relating to the Information Act, which comes later in this group, Amendment No. 91. I tend to the view that it is better not to put on the face of the Bill the precise mechanism that is required, if only for the reason that methods of providing information are changing very fast. There may be some children in the year 2000 who will only be able to deal with 915 information if it comes in the form of a CD-ROM. In the space of 10 years things may have moved on a little further.
§ Lord Stoddart of Swindon
I should like fairly briefly to support this group of amendments because I think that so far we have not sufficiently taken into account the interests, and certainly not the views, of children. I think we have to bear in mind that once a child or children have arrived the marriage then does not simply belong to the husband and wife; it belongs to the family. Therefore, there is certainly an argument for taking the views of the children into account where possible and, indeed, for taking into account formally the interests of the children. I believe that the amendments direct our attention to that important aim.
I have to tell the noble Earl, Lord Onslow, that there is great deal of evidence to show that children would prefer a marriage to remain intact, even though that marriage may well have some conflict within it. I see that the noble Earl wishes to respond. I give way.
§ The Earl of Onslow
I am much obliged. I completely agree with that view. My parents were divorced. The one thing that I did not want them to do was to divorce. I am sure that that is what children think, but it may not always be in their interests. I am advocating the argument that it is their interests rather than their views which should be taken primarily into account.
§ Lord Stoddart of Swindon
Yes. I perfectly understand that argument. But, where possible, I believe that the views of children should be heard.
All too often, when parents decide to divorce, they do not even think about the views of the children; indeed, many of them believe that their children have no view at all. The proposed amendments would at least ensure that parents addressed the problems which their divorce might bring about, especially as regards their children.
§ Lord Annan
I very much hope that the amendment moved by the noble Baroness will be sympathetically considered. The noble Earl is right to say that the children's interests should come first. However, I believe that the noble Baroness made very clear in her speech that their views should be taken into account, but that the settlement might not be in accordance with those views.
I tend rather to agree with my noble and learned kinsman Lord Simon who suggested that the Official Solicitor was, perhaps, the right channel for communicating or obtaining such views. However, I very much hope that a sympathetic official from the Official Solicitor's office would be involved, as I have always imagined that the Official Solicitor somewhat resembled Dickens' Mr. Jaggers.
§ Lord Elton
Does the noble Lord envisage that avuncular figure addressing a child of two and, if so, how?
§ Lord Annan
The noble Lord is entitled to mock the amendment in that way. If the child is two years of age 916 it would possibly have no view on the matter. But surely we accept that our officials do bring common sense into their judgments.
§ Lord Elton
I am in no way mocking the amendment. I regard this as something painfully close to experience. We have a great duty to do our best with it. I was trying to suggess—although, perhaps I did not spend long enough on it with just one sentence—that there should be some question of a guardian ad litem, or some other source, to interpose between an infant and the law.
§ Baroness Seear
If it is to be a guardian ad !item or the probation officer attached to the court—and it is very likely to be the latter—that underlines the importance of giving the right training to such officials. Indeed, it is important for those probation officers to receive the right kind of training, and not the kind of training with which we have been presented in recent Home Office programmes.
§ Baroness Faithfull
Perhaps I may make a few comments before my noble and learned friend responds. The intention behind the amendment is to ensure that there is a good relationship as regards the child, the mother and the father, whatever the circumstances may be. Mediators in the mediation service do not see the child by law, but they do bring to the notice of both parents the fact that each of them should try to have a relationship with the child and that they should be able to talk to the child in a way that is not acrimonious. That should help the child or children to understand that the fault is not theirs and enable them to build up a relationship with both parents.
§ 3.45 p.m.
§ The Lord Chancellor
It is clear that the amendments to which my noble friend has spoken and which the noble Baroness, Lady David, with her great experience in the area, supports—although, sadly, she is not able to be with us today—draw our attention to an extremely important aspect of the matter. The need for considering the children's interests and also for having regard in appropriate circumstances to their views is quite fundamental.
By way of introduction, perhaps I should point out that we do have in place the Children Act 1989 which contains very clear legislation dealing with matters which relate to contact with and the residence of children. Indeed, there are provisions for guardians ad litem and for the Official Solicitor to be involved in some cases, and so on. Therefore, assuming that it reaches the statute book, the legislation will not stand by itself.
I believe that I am entitled to say the Children Act has proved to be extremely good as a basic structure for the law in this area. I believe that those who practise in the area universally agree with that view. Of course, there are questions about some other aspects of that Act which will be dealt with later in this legislation regarding regulation in respect of schools, and so on. However, the part of the Children Act that deals with the matters now under discussion has, I believe, proved to be very satisfactory.
917 One of the most satisfactory aspects of the Act is that it has generated a great deal of interdisciplinary co-operation on matters affecting children; for example, psychiatrists, child psychiatrists, doctors and the like have been able to come together with lawyers in trying to promote the interests of the children. Of course there are difficulties involved, one of which is the unnecessary delay which sometimes occurs in such matters when a number of experts are involved. However, we are attempting to tackle that situation. I want to emphasise that the Children Act stands very much at the forefront of matters concerned with children.
I take the sense of the proposed amendments to be that the children affected by divorce should very much be kept in mind. I have said before that one of the principal reasons that I sought to bring the Bill before this Chamber is just so that the effect of divorce on children should be as minimal as is possible, thus enabling both parents to maintain a relationship with their children after they divorce. I believe that that is a most important consideration in the future development of the children after the sad event and trauma of divorce.
Of course, there are other questions to be considered. One of the most difficult is the issue of one parent or the other seeking to indoctrinate the children with views that are adverse to the other parent. Those Members of the Committee who have experience in dealing with such matters have, I believe, found it to be one of the most difficult situations to tackle. Once a child has been indoctrinated, let us say—and this is just an illustration, because it could obviously happen the other way around—by the mother against the father, it becomes very difficult to maintain satisfactory contact between the child and the father. Very often the child gets into a state when the contact starts, and the father has little opportunity to influence the child to try to change the situation.
Similarly, the court would have great difficulty in such a case because the mother may say, "It is terribly bad for the child; it is upsetting the child terribly. We can't handle this". Therefore, the contact would have to stop. However, the court may say, "You must allow it", and, ultimately the wife may say, "It is just doing the child a great deal of harm". Of course, the only real and ultimate enforcement is some kind of contempt proceedings, and the benefit of that to the child would be absolutely negative. Indeed, I have been in such a position as a judge. One feels powerless. Therefore, it is most important that we do what we can to prevent such a situation developing.
My submission to Members of the Committee is that the most likely avenue for help in that connection is the discussion that the mediator will set up. I believe that my noble friend really took up that point towards the end of her address.
There are two possibilities. First, there is the possibility where the mediator deems it right, in the circumstances of the particular family, that the children should be involved in the discussion if that is appropriate. If it is not appropriate, my noble friend 918 Lady Faithfull has experience of the panel system in Scotland which is used for dealing with children who are suggested to be in need of compulsory measures of care. That is a kind of a round table discussion in which the panel members and the parents and child—and sometimes the child's headmaster or teacher, or some other official from the social work department—take part.
If the family situation was such that a reasonable discussion would be possible in that form, that would be a good way of ascertaining the views of the children and helping to protect their interests. If that was not possible, it may be that a separate meeting between the mediator, or an assistant to the mediator, and the children would be required. Then, informed by that meeting, the mediator may be able to advance matters.
As my noble and learned friend Lord Simon of Glaisdale said, I have responsibility for the Official Solicitor's Department. I am second to none in borrowing the expertise and care of the Official Solicitor, but I am most anxious that the expertise of the Official Solicitor is not used in cases where he does not have anything particular to contribute. The Children Act 1989 makes quite elaborate provisions to allow for guardians ad litem, and so on, depending on the circumstances of the case, if there needs to he legal discussion about what should happen to the children.
I do not find it easy to accept the detail of these amendments for a number of reasons which perhaps I should spend a little time to point out.
As to Amendment No. 35, there is the problem of parental responsibility. Parental responsibility does not always coincide with children who are children of the family, and it is really the children who are affected by the divorce that must be taken into account. For example, step-children are often involved in the family and would be affected by a breakdown of that family, even though there is no parental responsibility. I have already mentioned the difficulty of getting children to take sides, and so on.
As to Amendment No. 81, this matter is being developed in relation to the situation under the Children Act. The officer involved here would have a multiplicity of roles in providing information and advice, liaising with children's attendance or otherwise at court and advising on whether separate representation is required. These are rather different functions and it would be difficult for them to be performed by one person. Court staff are well used to dealing with queries from families, for example with respect to arrangements available for children to attend court. All care and family hearing centres have dedicated family sections whose staff have specific expertise in this area. Although of course they do not have advisory functions, they can give information.
The court service is currently considering a recommendation of the Children Act Advisory Committee—which is monitoring the way in which the Children Act is functioning in practise—that a liaison officer should be appointed to each court dealing with 919 family matters so that primary responsibility for administrative issue concerning children is vested in one person. My noble friend and your Lordships know that the court may ask a welfare officer to prepare a welfare report. That welfare officer is a member of the probation service, but the welfare service has developed a considerable expertise and I believe and hope that that will continue.
The Bill contains provisions in relation to Section 41 of the Act which give power to the court, if it thinks that an order is required and that further delay is required, to postpone the granting of the divorce until these matters are satisfactorily dealt with.
I do not think my noble friend spoke particularly to the later amendments—if we get to them, a fairly detailed consideration will be required—but, on the principle of the matter, I would suggest that the best way of handling this is that it be a specific part of the remit of the mediators that these matters should be taken into account, with the court having the responsibility of being satisfied with the arrangements for the children of the marriage—which is already provided for in the Bill—and with the powers that flow from that, to which I have referred.
§ Baroness Faithfull
I am grateful to the noble and learned Lord. All the amendments on the list and in the Bill have been spoken to, and replied to by the noble and learned Lord. There is one outstanding amendment to which I would draw your Lordships' notice, and ask for the views of the noble and learned Lord. When the divorce proceedings are over the issue of access becomes a burning question, as does the issue of children growing up and changing their views. Has the noble and learned Lord considered in this Bill that there should be somebody a child can turn to?
I speak with very deep feeling because for two years I had to be in every Sunday evening when a father refused to return his children to their mother after an access visit. I had to go and fetch the children, quite rightly, because it was the court's order that they should be brought back.
It is very difficult because many parents—it might be the mother, it might be the father—make excuses that the child cannot go, that the child is ill, that the child has a football match to take part in, and access visits are not adhered to by the parents. Therefore, the child ought to have somebody that he can go to, to say, "I want to see my other parent but the parent that I live with does not let me." This is something that has not been covered and needs to be covered.
If a mother has custody of a child—particularly a boyar the boy gets older he has a feeling and a need to see his father much more, so the order could be varied. This is Amendment No. 118 to which I draw your Lordships' attention.
I have not spoken to all the amendments, but the subjects have been covered and answered—except for this one—by the noble and learned Lord, and therefore 1 beg leave to withdraw Amendment No. 35.
§ Amendment, by leave, withdrawn.
Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 35A:
After Clause 5, insert the following new clause—
§ REPRESENTATION OF MINOR BY OFFICIAL SOLICITOR
(" . In any proceedings under this Part any child of the family under the age of sixteen years shall be represented by the Official Solicitor, who shall submit a written report to any mediator or court considering the child, and who may (and shall if so requested by a mediator or a court) make oral representation.").
§ The noble and learned Lord said: I spoke about the substance of this amendment on Amendment No. 35, so I can deal with it very shortly. I strongly agree with what my noble and learned friend the Lord Chancellor said about the danger and prevalence of indoctrination. One was told all too often that everything possible had been done but the child had an invincible repugnance to seeing his mother or his father, as the case might be. That immediately set alarm bells ringing. For that reason it is better that the child should be kept as far as possible out of the situation which, as hypothesised, has reached the stage where one parent has filed a statement saying that he or she believes that the marriage has irretrievably broken down.
§ There will be some cases where the views of the child may profitably be entertained, but very few. Therefore, I tend to agree with the noble Earl, Lord Onslow, that it is far more important that the interests of the child rather than the view of the child should be represented. In the amendment I have suggested that that should be by the Official Solicitor, who is the normal mediator (and I use that term untechnically) between a child and a court.
§ I do not propose to move the amendment unless any Member of the Committee would like to speak to it.
§ [Amendment No. 35A not moved.]
§ [Amendment No. 35B not moved.]
§ 4 p.m.
§ Clause 6 [Declaration to accompany application]:
§ [Amendments Nos. 36 to 38 not moved.]
§ On Question, Whether Clause 6 shall stand part of the Bill?
§ The Lord Chancellor
As I explained in relation to an earlier amendment, I have replaced the effect of Clause 6 in an earlier amendment. I believe that that improves matters. Therefore, I beg to move that Clause 6 do not stand part of the Bill.
Clause 6 negatived.
Clause 7 [Period for reflection and consideration]: [Amendments Nos. 38A to 39A not moved.]
Lord Irvine of Lairg moved Amendment No. 40:
Page 4, line 14, at end insert ("during which the parties may attempt reconciliation for a period of three months, or periods in total aggregating three months, without prejudice to any of their rights under this Act and should be encouraged to consider attempting reconciliation by the mediator in any mediation which may take place under section 12 of this Act").
§ The noble Lord said: I rise to speak to Amendments Nos. 40 and 55, both of which stand in my name and the name of my noble and learned friend Lord Archer of Sandwell.
§ A disappointing feature of the Bill is that it does not clearly establish the relationships between mediation within the year for reflection and consideration, the concept of the year itself and attempts at reconciliation, either within that year or beyond that year. It is because we value the institution of marriage so highly that we wish the Bill to recognise in the clearest terms the public interest in promoting reconciliation and, as a result, the public interest in upholding the institution of marriage. My noble friend Lord Stallard called attention specifically to that feature of the Bill in his speech at Second Reading, which is reported at col. 746 of Hansard for 30th November 1995. I believe this to be of central importance to the Bill and shall therefore spend a little time on it.
§ The first step is to look at what the Bill expressly provides. Under Clause 7 the year for reflection and consideration must pass before an application for a divorce order may be made by reference to a statement under Clause 4 that the marriage has broken down irretrievably. Under Clause 7(3) the period for reflection and consideration is one year, beginning with the day on which the statement is received by the court.
I invite the Committee to give close attention to subsections (5) and (6) of Clause 7. Subsection (5) provides that:
Subsection (6) applies if a notice requiring time to attempt reconciliation is given to the court by the parties (acting jointly) at any time during the period for reflection and consideration".
Subsection (6) states:
Any time falling—
Finally, subsection (7) provides that:
Where a continuous period of more than 18 months is to be disregarded under subsection (6), any application by either of the parties for a divorce order or for a separation order must be by reference to a new statement made at any time after the end of the 18 months".
§ When I first read those provisions I thought that they operated as a disincentive to stepping back from the brink and attempting reconciliation. We are concerned with parties who start out in the belief that their marriage has broken down, who serve a statement to that effect and who want to be released but cannot be released until a year has elapsed. Yet there may be nagging doubts. At any stage in the mediation process the cold realities of the consequences of divorce may be brought home to the parties. They should be told by the mediator that attempting reconciliation remains an option but that option is not precluded by participation in mediation. Also, there should be no disincentives put in the way of attempting reconciliation during the year for reflection and conciliation.922
§ My first thought was that that provision penalised an attempt at reconciliation when the attempt at reconciliation ends in failure because its effect is that the year for reflection and consideration ceases to run while reconciliation is being attempted. It was that thinking that lay behind the detail of Amendment No. 40. I thought that Clause 7(2), combined with Clause 7(5) and (6), amounted to a warning: beware if you attempt a reconciliation which fails because you will then delay your divorce by the length of the period of your attempt which has sadly failed. I now think that I was probably wrong and that is not the intention of the Bill. However, I still desire to say that the Bill is seriously lacking in clarity and should be strengthened.
§ The basic problem seems to be that it defines what is to happen if the parties give notice to the court that they require time to attempt reconciliation but does not provide what is to happen where parties attempt reconciliation during the year for reflection and consideration but give no notice to the court under Clause 7(5). That, I think, is a great deficiency.
§ Clause 7(5) deals with attempts at reconciliation which the parties notify to the court. It does not deal with attempts at reconciliation which take place during the year for reflection and consideration but which are not notified to the court. The parties could be forgiven for thinking, standing the appearance of the Bill, that that is not an option available to them.
§ I allowed myself to be misled into thinking—I hope that I was misled—that the only attempts at reconciliation which the Bill recognised were those of which the court was given notice by the parties. However, I hope and now think that I am wrong about that. As I now see it—the noble and learned Lord will correct me if I am wrong about the intention of the Bill—Clause 7(5) and (6) are intended to be beneficial. They provide that while the year for reflection and consideration is running—let us say, for example, that it has run for three months—the parties can give notice to the court of attempted reconciliation and as much as 18 months may elapse without extinguishing that part of the year which has already run. If at the end of the period of attempted reconciliation, which may be up to a maximum of 18 months, the attempt proves to have failed, the parties then have credit for the part of the year before their attempt. The year starts to run again and at the end of the year application for a divorce order can be made. If it is not immediately made, the parties then have a further period of six months within which they may apply for a divorce order under Clause 4(3)(b).
§ The Lord Chancellor
It may help to shorten the matter if I confirm that the intention of the Bill—I certainly would wish to consider whether it can he clarified—is to give parties the option of stopping the clock running so that the period of attempted reconciliation is additional to the year. If the parties go for, say, a year trying to reconcile, then that is not counted within the period.
My noble friend Lady Young talked yesterday about all that had to be done within the period, and spoke for a lengthening of the period. If the parties are able to try to effect a reconciliation, the period spent on that stops 923 the clock. There is no question of that, as it were, being counted against them in the running of the period. The noble Lord is right in saying that that is the intention, and not what he originally thought that the intention was.
§ 4.15 p.m.
§ Lord Irvine of Lairg
I am relieved to know that my second thoughts on this subject were correct in the view of the noble and learned Lord. An attempt may be made at conciliation up to a maximum of 18 months without that stopping the one year clock running; and that clock will resume running after the expiry of the failed period of reconciliation of 18 months or less. That I understand.
That allows me to come straight to the deficiency in the Bill as I see it. What is the position, not expressly dealt with in the Bill, if the parties attempt a reconciliation without giving any such notice? I think, but I am not sure, that the intention must be that the year for reflection and consideration continues to run concurrently with the attempt at reconciliation. If it fails, the period of their attempt counts towards the year and, as the parties are determined on divorce, application may be made within six months of expiry of the year under Clause 4(3)(b). In other words, if you invoke Clause 7(5)(6) and (7), in the language of the noble and learned Lord, you stop the clock running. But if you attempt a reconciliation without invoking those provisions, and without giving any notice to the court, as I understand it you do not stop the clock running.
I have to say that I see nothing wrong with that provided that I am right in my supposition that that is what the Bill intends and means although it does not address attempts at reconciliation not notified to the court. It appears to me that there is no inconsistency between the year for reflection and consideration being treated as continuing without suspension during a period of attempted reconciliation. I would say that by definition actually attempting reconciliation is the highest order of reflection and consideration of whether a marriage can be saved. The best way to reflect and consider is to try out the marriage again in a spirit of attempting reconciliation.
I am anxious to know whether the second part of my interpretation of the provisions—arrived at, I have to say, with a certain amount of difficulty—be correct. The noble and learned Lord has said that I am right about the intention of Clause 7(5),(6) and (7). I am relieved at that. However, I am concerned to know whether I am right in the second part of my understanding of what the Bill must intend. In my view, it is critical that the Bill expressly addresses attempts made at reconciliation not notified to the court during the period of a year for reflection and consideration.
Therefore I suggest to the Committee that the provisions must be looked at closely to ensure that they lay down a clear and unambiguous scheme for encouraging attempts at reconciliation.
It would be inappropriate to press Amendment No. 40 because, as the noble and learned Lord confirmed, I have now understood properly the intent of the 924 provisions which are on the face of the Bill. However, I believe that clarity requires that at the end of Clause 7(2)—I invite the noble and learned Lord to give thought to this—after the words,That period is to be known as the period for reflection and consideration",there should be added,and may include any period within that period during which the parties attempt reconciliation".That makes it plain that the parties can attempt reconciliation within the year for reflection and consideration without having to follow a court-based procedure of giving a notice to the court.
I also suggest that the clause should make it express that attempts at reconciliation, not the subject of any notice to the court and therefore outside Clause 7(5) and (6), may take place during the year for reflection and consideration without prejudice to any of the parties' rights under the Act; and, separately—and, with respect, I suggest to the noble and learned Lord, importantly—there should be an additional subsection which provides that the parties should be encouraged by the mediator to consider attempting reconciliation.
As I observed in Committee yesterday, I well appreciate that mediation is not about reconciliation. The mediator is not a reconciliator. He is a mediator of solutions for the parties to try to agree once the one issue upon which they have agreed is that their marriage has broken down. I see no reason why the Committee should not put the mediators under a statutory duty to encourage the parties to consider attempting reconciliation. That does not mean, and it would be unwelcome to the mediators if it did mean, that the mediators are obliged to engage in a process of counselling, to try to persuade the parties to he reconciled. I entirely accept that that is not what mediation is about. However, what I am suggesting is that the mediators should be told that in the course of mediation they must say something to this effect: "Do consider attempting reconciliation. Although you have entered this mediation process, you should not think that that forecloses the option. That option remains". If the parties were to express an interest in pursuing the option, then the function of the mediator will be to refer them to counselling, with that in view.
Those are the proposals which I now think it right to put before the Committee for consideration: to ensure that the relationship between mediation and reconciliation is clearly established alongside a duty in the mediators to inform parties who come before them in the mediation process that mediation is not a process which has a momentum of its own and precludes the option of reconciliation. On the contrary, that option remains and should be followed by the parties, if they so desire. I beg to move.
§ The Earl of Onslow
I have listened carefully to the noble Lord, Lord Irvine. It seems to me that if peradventure there should be a change of government in the near future and if he should be sitting on the Woolsack, if he cannot now understand and makes heavy weather of the Bill, either he will be a rotten Labour Lord Chancellor or the Bill is not drafted clearly.
925 With the greatest respect to him, I believe that the latter is more likely than the former. If that is the case, surely we should make the wording absolutely clear. If he has found it difficult to understand, I am sure that other people will find it just as difficult.
A further point struck me. It is that the clock ticks and there is a period of mediation and reconciliation. As the Committee knows, the route down which we ought to go is mediation and conciliation, if possible. However, if mediation fails, people must wait longer for a divorce, which will be a disincentive for the conciliation process to work. I suggest that the Bill is one of the most socially important which Members of the Committee will have before them. If we are to get the Bill right then we must achieve the careful balance between making a clean break, with the minimum upset, and making the maximum effort at mediation. We must get that balance right, and therefore it must be absolutely clear on the face of the Bill exactly what we mean. We ourselves must be equally clear. If the noble Lord, Lord Irvine, is to be anything other than a rotten Labour Lord Chancellor, I am sure that we ought to get the wording slightly clearer than he finds it.
§ Lord Marsh
It is important to draw a clear line between reconciliation and mediation. When the majority of couples reach the stage of the seriousness that we are considering, with the desire firmly reached by at least one party and frequently by both parties, there. is a great danger. If all goes well, the mediator has the ability to turn the discussions into a civilised arrangement, a civilised break-up, certainly to the benefit of the children. There is a danger, however, that at that stage the mediator may begin to recommend conciliation to people who, as the noble Lord said earlier, may well have had many weekends away together in the hope that things would all come right. They may have had a holiday together in that hope; they may have spent endless hours discussing the matter. At a point where they are trying to get together and make the best of the separation in everyone's interests, they may suddenly be told by the person seeking to achieve that: "Why don't you try reconciliation?" If I understood the noble Lord correctly—and that may not be the case—if that were to happen, it would devalue the role of the mediator which is practical and important.
§ Lord Coleraine
The noble Lord, Lord Irvine, referred to Clause 7 which I find comparatively straightforward and clear cut. It may be a fault on my part and I wish to test my understanding by asking the noble Lord to explain the exact significance of the words,without prejudice to any of their rights under this Act".He proposes, under Amendment No. 40, to add those words to Clause 7. It seems to me that, during the period for reflection and consideration, whether they attempt to reconcile for periods of more or less than three months, there is nothing in the Bill to suggest that it would be 926 prejudicial to any of their rights under the Act. That is where my difficulty lies. If the noble Lord could explain that, it would be helpful to me.
§ Baroness Hamwee
With other Members of the Committee, my noble friend Lord Meston has proposed amendments within this group. They are Amendments Nos. 54, 56, 58 and 60, which arise from the anxiety expressed in large part by the noble Lord, Lord Irvine, as to the precise meaning of Clause 7.
In Amendment No. 54, in relation to the need to give notice in order to stop the clock, my noble friend has provided an insertion that:no period during which the parties resumed living with each other shall count as part of the period of reflection and consideration".I know that his anxiety is to deal with the underlying point rather than to press the detail of the amendment.
I turn to Amendment No. 56 which proposes to replace the expression "is to be disregarded" with the words "shall not count" as to that period. Presumably the noble and learned Lord the Lord Chancellor will confirm this, but my noble friend is worried about what is meant by the suggestion that the time between the two notices should not count. The wording could mean that the time between the two notices is not to affect or interrupt the 12-month period. My noble friend had difficulty in interpreting that phrase and I share his problems with exactly what is meant by "is to be disregarded". I understand that the words "shall not count" have been borrowed by my noble friend from Section 2(5) of the Matrimonial Causes Act 1973.
Finally, Amendments Nos. 58 and 60 have been proposed in order to question the period of 18 months. Perhaps the noble and learned Lord could say why that is thought to be the appropriate period. If 12 months is a sufficient period in which to establish that the marriage has irretrievably broken down, why is it not equally sufficient to require the parties to re-start the process if they want a divorce?
I should first have apologised to the Committee that my noble friend is unable to be present until a little later today.
§ Viscount Brentford
I believe that Clause 7 strikes a fair balance between the conflicting interests of mediation and reconciliation. I do not favour Amendment No. 40 in itself and perhaps the noble Lord, Lord Irvine, will not press it. However, I am quite attracted to the strength of reminding the mediator of the possibility of reconciliation. I accept that he is not there to carry out reconciliation.
I was most impressed by what my noble and learned friend the Lord Chancellor said yesterday. He said that at any time mediation might throw up a desire for reconciliation when the future was looked at by the couple in conflict. It is important that the mediator hears that point in mind. I do not believe that he has a statutory duty in that respect. It may well be that an amendment can be written in to remind him that he should have that duty at any time if reconciliation seems to be on the cards.
927 The formality of serving notice appears to me to be important if the clock is to stop for that period. During the year of mediation undoubtedly there will be times when the couple will want to have a go at reconciliation. They may take a week or two and will not bother with formal notice, but the mediator will bear in mind the legal niceties in discussion with them. On the whole, I believe that Clause 7;strikes the right balance and I commend it as drafted, except for possibly writing in at some stage the legal requirement for the mediator to bear reconciliation in mind, although he is not himself the reconciliator.
§ 4.30 p.m.
§ Lord Irvine of Lairg
Perhaps I should say the following in response to the noble Lord, Lord Coleraine. I would be the first to be relieved if I were worrying about nothing, but I do not think I am. I worry about the undoubted fact that on its face the Bill does not address the situation where during the year for reflection and consideration an attempt at reconciliation is made without any notice being given to the court.
I suggested on my feet that a way of dealing with it might be to add to Clause 7(2) the words, "and may include any period within that period during which the parties attempt reconciliation". My reason for doing so was to make clear that in such a circumstance the clock governing the year for reflection and consideration would continue to run. If it did not run and an attempt at reconciliation without notice to the court—I venture to suggest that that will happen much more than where' notice is given—did not count towards the mandatory year before a party could apply for a divorce, it would delay the availability of divorce and operate as a disincentive to an attempted reconciliation. That would be contrary to all of our intentions. I hope with that explanation the noble Lord, Lord Coleraine, will understand why I am concerned about this matter. It may be that my concern is about to he relieved by the noble and learned Lord, who did not intervene in my observations to say that I was right on this particular point. Perhaps I am worrying about nothing and that attempts at reconciliation not notified to the court do not prevent the year from running, and if they fail after the expiry of the year an application for a divorce may be made, just as it can be if an attempt at reconciliation has not been made.
§ The Lord Chancellor
The intention of Clause 7 is that the parties should reflect on whether or not the marriage can be saved. That is the keynote of the clause. The purpose of that is to enable them to consider in every possible way, including attempts at reconciliation, what can be done. As to the second part of the point raised by the noble Lord, Lord Irvine, the intention is that whatever consideration is given to these matters does not stop the clock running, except in the situation where subsections (5) and (6) apply. Put another way, if the parties agree to make a real attempt at reconciliation they can stop the clock running. If everything works the whole business is finished and they go on living together happily as a married couple would like to do. On the other hand, if they have been working at it for three 928 months or so and the attempt fails, instead of the period expiring a year after the notice it will expire 15 months after the notice, because the three-month attempt at reconciliation will not be counted in the year. Surely we are all in favour of doing what we can to encourage reconciliation. Therefore, this gives additional time in which an attempt at reconciliation can be made, but it is a joint effort on the part of two people.
The current law has a somewhat different effect on attempts at reconciliation. Under the present law, if the reconciliation is for an aggregate period of six months or more after the discovery of the adultery complained of, or the final act of behaviour alleged takes place, there is prejudice to the parties in going ahead with a divorce based on that adultery or conduct. We want to do everything possible to facilitate and encourage reconciliation.
Earlier in these debates the Bill was described by an expert on these matters as being clearly drafted. I believe that this is reasonably clear. The noble Lord, Lord Meston, believes that the words "is to be disregarded" may be better replaced by the words "shall not count" or "does not count". I shall certainly take the advice of Parliamentary counsel on that point. When one knows what one wants and reads something it sounds plain, but sometimes when one tries to find out the meaning by reading the words it is not so plain. Therefore, I am at a slight disadvantage in judging the clarity of these provisions. However, I believe that they are reasonably plain on a full reading.
It is important to give consideration to the matter of encouraging the mediator. I believe that the best thing we can do is to see whether or not we can build on a later amendment about codes of practice for mediators. One of the problems to be borne in mind in this connection is that which is brought to me by those who practise in this area, particularly lawyers. The client arrives in the lawyer's office. The first thing the lawyer says, having learned a little bit about the problem, is that the client must think about reconciliation. Having been told what a terrible life the client has had, how awful the whole thing is and how he or she wants to get rid of it as quickly as possible, if the lawyer's first response is that reconciliation must be attempted the client will probably say, "I will have to go to another lawyer because you are not on my side". I am sure that others with experience of these matters will know about that. If the mediator begins by trying to press people to become reconciled a question may be raised as to just where he or she stands on the matter.
On the other hand, a wise mediator—I hope that they will all be wise—will know when there seems to be a crack or a hope. It is that kind of position that I have in mind. It is easier to be anecdotal about these matters and I have heard it said that where a person who has run away from his wife and set up with someone else goes to a lawyer and gets a description of what things will be like after a divorce, particularly financially, he starts to wonder whether he wants to go ahead with the divorce; if he is on his own, the chances are good, but if the other party of the illicit arrangement is there, perhaps the chances are not so good.
929 Those are just aspects of human nature. That is the sort of opportunity that a skilled mediator would seize to say, "Yes, it is true; it will be bad. Why not think about what you have already? Wouldn't it be better to try again? Your wife is willing to have you back, to forgive you for what has happened and to start again. Wouldn't that be right?" These are quite delicate matters. I believe that they are best covered in a code of conduct that brings them to the attention of mediators but, ultimately, leaves them as matters for professional judgment.
Amendment No. 54 was mentioned by the noble Baroness, Lady Hamwee. It is supported by my noble friend Lady Young and the noble Lord, Lord Jakobovits. The principle behind it is very much the same as the principle behind subsections (5) and (6); namely, that if the couple can get together again, the clock should stop. There are problems about what "living together" means in this context. As we know, the law has developed to allow people to be separate even when they live under the same roof. So some clarification may be required in that connection. But the principle behind the amendment is the same principle behind what I sought to provide. If the parties are attempting to make a go of it together, then that should be intimated to the court and the clock should be stopped until that attempt has been thoroughly tried out.
Amendment No. 55 is a consequence of Amendment No. 40. Amendment No. 56 suggests that "is to be disregarded" should be replaced by "shall not count": As I said, I shall take advice about that.
I have tried to be practical about the period suggested in Amendments Nos. 58 and 60. We do not want at all to discourage reconciliation, but we do not want to use an original statement for too long. The original statement that initiates the procedure should not be allowed to function for too long. That is why I believe that we should give a reasonable time to encourage reconciliation but not allow the original statement to continue to be effective as a start to this matter for too long. I thought that 18 months was about right. To make the period as short as 12 months very much constrains the possible attempt at reconciliation. I shall certainly take advice on the drafting and look again at that matter.
With regard to encouraging mediators to keep reconciliation in mind, I feel that the best place to deal with that will be during consideration of the amendments about a code of conduct for mediators or something of that kind, to which we shall come later. I believe that the principles behind what we are discussing at this stage are reasonably clear and agreed among those who have spoken.
§ 4.45 p.m.
§ Baroness Elles
Before the noble and learned Lord sits down, I wonder whether he will take into account a question which I adumbrated yesterday, concerning notification of the statement to the other party. At the moment the year starts from the day that the statement is made before the court. Clearly, there could be quite considerable delay in the notice reaching the other party.
930 That would mean that it might be considerably less than 12 months if that party happened to be away, disabled or in an accident. My noble and learned friend will know the kinds of situation which could arise. I wonder whether some discretion could be taken into account in allowing the time to run over the year, if there is a certain reason for doing so.
§ The Lord Chancellor
Certainly I should wish to bear that in mind when considering the regulations to make. Obviously, it is desirable that such a notice should be served as soon as possible, but there could be circumstances in which that is not possible for a number of reasons. Certainly, I should want to take those into account. I shall certainly have in mind for the regulations the point made by my noble friend and, if clarification is required, for the Bill itself. I shall need to consider that point.
§ The Earl of Onslow
I am sorry to have to ask the noble and learned Lord again to address his mind to this point. If there is a situation in which the clock is stopped and the reconciliation does not work, then by extending the period, I suggest, it has been made more likely, in an obtuse way, that the divorce cannot be achieved as early as would possibly be in everyone's interest. A failed reconciliation is probably more likely to end in greater bitterness than even a non-reconciliation scenario.
The noble and learned Lord referred to 15 months with three months out and an extension of three months at the end. If, in that three months, the reconciliation fails and one's old friends Mr. and Mrs. Bloggins are at each other's throats even more than they were before, it seems rather silly to extend the period by another three months. Am I perhaps being difficult?
§ The Lord Chancellor
No, certainly not. No Member of the Committee is being difficult. It is a matter of balance. There are all kinds of circumstances. Trying to legislate for human nature with great precision is difficult. The point is that both parties have to agree to stop the clock. That is the crux of the matter. There can be attempts at reconciliation, as the noble Lord, Lord Irvine of Lairg, supposed to be meant—I certainly do mean that—without the parties agreeing to stop the clock. But if the parties agree to stop the clock, I feel that there is a reasonable prospect of the reconciliation proceeding. I want to avoid the notion that by going into a genuine period of reconciliation, where both parties are agreed to have a good go at it, the party who has served the notice will feel that he has to start all over again. What we need to encourage is that people should try to get together and stop that period running.
The other side of the matter is that the purpose of the period is to demonstrate that the marriage has irretrievably broken down. It seems to me to be perfectly satisfactory that a period during which the parties agree that they are making an attempt at reconciliation which has reasonable prospects should not count to proof of that. If the attempt breaks down, I accept that there may be additional bitterness. It is one of the risks. I hope that the risk is well worth running in most cases. But if the attempt breaks down, there is a further cooling-off 931 period. In fact, it may he all the more important to have a further cooling-off period, if there has been a certain rush of blood to the head as the reconciliation attempt broke down. The importance of a further cooling-off period may be even greater because cooling off is, perhaps, the best remedy that we can devise for sudden rancour.
§ Lord Stallard
Before the noble and learned Lord sits down, may I thank him for his long statement and explanation. However, there is a little doubt left in my mind. This matter has been argued from both sides and all round. It has been like going around in a circle. I am particularly pleased that we are beginning to reach some decision about the difference between mediation and reconciliation. We are not quite there yet but we are getting there.
I should like to direct the Committee's attention to the parliamentary brief from the Law Society, which is quite specific about the role of the mediator. A mediator does not provide marriage guidance counselling; a mediator will not offer legal advice; a mediator does not comment on whether an agreed solution is fair to both parties and properly protects their interests; and a mediator does not advise the parties independently. That is not exactly in line with what the noble and learned Lord said; but that is from the Law Society. I am not a member of the Law Society, but it seems sensible to me.
I am a little disturbed that we have indicated a definite "must" for mediation. If one party says the marriage is over, then they must go to mediation. However, we have not been so definite in regard to reconciliation, apart from in Amendment No. 35B where the noble Baroness, Lady Young, tabled something more definite. In that amendment a period is laid down for reconciliation in the same way as a period is laid down in the Bill for mediation.
The noble and learned Lord seems to be saying, "If the parties agree"; "If this"; "If that". There are too many "ifs" in relation to reconciliation. I should like that to be strengthened and for the Bill to be specific about the need for reconciliation before we go into the role of the mediator as laid down in the Law Society brief.
§ The Lord Chancellor
The noble Lord is speaking to an amendment that was discussed yesterday. Perhaps I have been too long in my explanations. That is the last thing I want to be; I want to make progress and I am trying to answer the questions posed.
In relation to the noble Lord's point, no period for mediation is stated in the Bill; the period is for "reflection and consideration". As I read out, the first branch is to reflect on whether the marriage can be saved. The period is for reflection and consideration and its first purpose is for reflection on whether the marriage can be saved.
I do not specify a period for mediation because it is possible that there will not be any mediation. If neither party wants it, as I said yesterday, we cannot enforce it. The Bill is drafted to permit a period of mediation, but it is not drafted as a period for mediation in the way that the noble Lord said. Most Members of the Committee 932 distinguish between mediation on the one hand and reconciliation on the other, and marriage guidance is more appropriate to the second than to the first.
§ Lord Irvine of Lairg
I understand the noble and learned Lord to have given me a clear assurance that where there is an attempt at reconciliation not the subject of a notice to the court it will take place concurrently with the year for reflection and consideration. Therefore, if the attempt fails, an application for divorce may be made and the attempt will not operate as any kind of disincentive against attempting reconciliation.
Speaking for myself and being a firm believer in the proposition that Bills should be written in plain English and be readily comprehensible by those whose lives they affect, I invite the noble and learned Lord to consider this. Would it make for a clearer and more comprehensible Bill for all those affected if it were made plain that attempts at reconciliation not notified to the court can be attempted by the parties without prejudice to any of their rights under the Act? The noble and learned Lord may express that notion in whatever way he thinks right.
I note that the noble and learned Lord is of the view that a duty on the mediator to inform the parties that the option of reconciliation remains available is more appropriate to a code of practice than on the face of the Bill. But I invite him also to consider whether that is correct. To impose such a duty on the mediator would signal clearly the value Parliament attaches to encouraging reconciliation. To include it on the face of the Bill would accord with many of the sentiments expressed from a number of quarters in your Lordships' Chamber in regard to attempting reconciliation. However, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Young moved Amendment No. 41:
Page 4, line 15, leave out subsection (3) and insert—
("(3) Where an application for a divorce order under section 2 has been made by both parties to a marriage, the period for reflection and consideration is two years, beginning with the day on which the statement is received by the court.
(3A) Where an application for a divorce order under section 2 has been made by one of the parties to a marriage, the period for reflection and consideration is five years beginning with the day on which the statement is received by the court.").
§ The noble Baroness said: In moving Amendment No. 41, I shall speak also to Amendments Nos. 43 and 44. This is a completely different issue from the one we have just debated, but it is one about which great concern has been expressed at all stages of our discussions and from all parts of the Chamber. It relates to the period of one year for, as my noble and learned friend explained, "reflection and consideration". It is at the end of that year that a divorce can be granted and it may be granted against the wishes of one unwilling spouse. It is a short period of time. Furthermore, no reason needs to be given except the irretrievable breakdown of the marriage.
§ Many of us feel that that is exactly what sends the wrong message to everybody about the Bill. My amendment is designed to extend that period. It will be 933 readily apparent on Amendment No. 41 that the period for reflection and consideration is extended to two years where both parties consent to divorce or five years where only one party seeks a divorce. That is what happens in the present law and I do not fully understand why we cannot stay with that even if we include the other provisions in the Bill.
§ Amendment No. 43 extends the one year to two years and Amendment No. 44, to which the noble Earl, Lord Perth, attaches his name, extends it to 18 months. I am conscious that these are three variations on the same point. I tabled them purposely because I want to use the Committee stage as a time for considering how the Bill may best be amended. I hope that my noble and learned friend will be able to do something to extend the time period, which many people—far more expert than I am—consider to be too short, particularly in the case of the unwilling spouse.
§ I am sure that others taking part will have been deluged, as I have, with correspondence. That situation is particularly tragic for older women who, I regret to say, are frequently "traded in" for a new and younger model, which is no longer regarded as a fault—I do not agree with that but that is what we are told.
§ Many people will argue (and I have heard it argued in Committee) that once everybody has made up their minds to go ahead, it is terrible to keep people waiting for longer than one year. But curiously, when one looks at the statistics, it is clear that in Scotland, where over 50 per cent. of divorces take between two and five, years—and in Northern Ireland over 70 per cent. take that time—there has been no public outcry. It seems to work perfectly satisfactorily. I do not understand therefore why it is thought that there may be a public outcry in England and Wales.
§ The reason why the statistics in Northern Ireland are so different is that the special procedure does not apply. As we know, the special procedure was introduced in 1973 as a statutory instrument and was not a decision by Parliament in quite the same sense. I believe that this is a matter which is very much at the heart of this Bill and which a great many people believe is quite wrong; namely, that at the end of a year it should be possible for one spouse to divorce the other against the wishes of the partner and in such a short period of time. Although I am quite happy to agree that none of these amendments may be correctly drafted or precisely meets what my noble and learned friend believes to be right, I hope that he will accept them in principle and will be able to come forward at Report stage with an amendment of his own. That would immensely strengthen the Bill and help those of us who are deeply unhappy about the provision.
§ I did not intervene in the last debate because I had already spoken on the subject of reconciliation, which is so important. The faith that one is going to pin on the mediator! He is this all-wise man or woman who will divide up the assets, deal with the acrimony and who will know the very moment at which to say to the couples, "You should seek reconciliation". Some of them are going to be splendid people, but life is not going to produce perfect mediators from one end of the 934 country to the other. Life is not like that. If we are basing this legislation on that assumption, we are deluding ourselves as to what is going to happen. When we come to debate mediation, I shall raise more points on it.
§ The danger in this Bill is that we are giving many arguments to people who are divorcing and who know the damage it is causing, particularly to their children, quite apart from anything else, in order to make them feel a little more comfortable about divorcing by having all these different processes to go through. Of course, it is desirable if, in these unhappy circumstances, one can do all these things without acrimony. But in my experience of life people on the point of divorce feel acrimony towards one another most of the time and we cannot legislate to abolish that whatever else we may or may not be doing. But what we can do somehow, in the course of balancing the provisions within the Bill, is to help particularly the spouse who is being divorced against his or her wishes. I beg to move.
§ 5 p.m.
§ Lord Irvine of Lairg
I take the view that in their proposals,Looking to the future, the Government get the balance on this subject right. Paragraph 4.12 states,A period of twelve months will provide sufficient time to establish that the breakdown of the marriage is irretrievable, and for couples who make acceptable arrangements for living apart".Then in paragraph 4.13 the proposals address the very point which the noble Baroness, Lady Young, addresses through these amendments. It says,A shorter period will do neither of these, and a divorce could be granted without any adequate reflection and consideration. A longer period would offer no incentive for couples to deal with the past. Not only would it increase distress but it would act as an encouragement to walk out of the marriage, form a new relationship, and take on new family responsibilities before fulfilling the obligations and responsibilities towards the previous marriage and children. A longer period would also result in greater distress to the children, and increase their insecurity about arrangements for their future".That I believed at the time, and still believe, represents sound judgment. What must be explored in the debate on this amendment is the purpose of the longer periods proposed because it is incumbent on the mover of the amendment to put his or her cards clearly on the table. I have to ask this: are these amendments put forward on the basis that divorce should be made more difficult to get and that people should be kept out of a divorce for longer as a matter of principle or, on the contrary, are they put forward on the basis that if both parties want divorce then they really need two years and one is not sufficient for reflection and consideration but if only one person wants a divorce, against the wishes of the other, then he or she actually requires five years for reflection and consideration?
The contrast between the periods proposed—two years for both parties, but five years for a single party seeking to divorce against the wishes of the other—suggests to me that the intention lying behind these amendments may be somewhat penal in nature and not that these longer periods are truly required for the statutory purpose, which is a sufficient period for 935 reflection and consideration. Because I cannot discern a sufficient purpose for these proposed longer periods, I oppose the amendments.
§ Baroness Faithfull
Perhaps I may make just one comment. The period of one year has started long before the couple go to court. They have spent a long time coming to the conclusion that they will go to court. Perhaps they have spent a long time going to one of the organisations which deals with reconciliation. So in effect divorce has been considered for one, two or three years before they go to court. With regret, I disagree with my noble friend Lady Young. I believe that the period of one year is the end because there have been many times before when the matters have been considered. To have the period very much longer will be very damaging to the children.
§ Baroness Elles
On this occasion I regret that I do not agree with my noble friend Lady Faithfull. She has been talking about the situation where there has been acrimony in the family for some time and a decision has been made that they want to break up. I quite understand that there are such situations; but there are others as well and that is the difficulty of this Bill. One is dealing with human nature because, as in Anna Karenina, happy families are happy for all the same reasons, but unhappiness is different in every family. That has to be taken into account. Perhaps I may give another example. People may have been happily married until they are 40, 50 or 55 years of age. My noble friend Lady Young' touched on the subject of a man who goes off and has an affair. It could equally well be a woman, but in this case, as I happen to be a woman, I shall give an example of a man. That may happen within 24 hours and it may not be something that has gone on for three or four years. The affair might have taken place within a month or a week, or whatever. The man goes off with another woman. The shorter the time in which he can obtain a divorce and marry the other woman, the more power that other woman has on the man. Now that one no longer accepts that adultery is a fault and is not a ground for divorce, any woman—and she may be 40 or 45 years of age and not married—may say, "I am going to hang on to this chap because in a year he will get a divorce". The wife left at home does not have to consent. The man merely has to go to court and put in a statement saying that the marriage has broken down and that is it.
The more we realise that there are such situations, the better. I do not say that it is the only situation, but it is something which must be taken into account when discussing these issues. One has a situation where a person has been married for 20 or 30 years, has given up a career to look after the family, and has been happily married, as far as they knew, until perhaps last week or last month. So often one hears grandchildren discussing such matters and saying, "He is going through the male menopause"—I apologise for using that phrase. But so often one hears that as a comment from the grandchildren and the young on the father who has gone off with someone else. We must recognise that that is a genuine situation.
936 Therefore, I wonder about the wisdom of having a specified term of one year in all circumstances. I know that what I am saying is not in accordance with the way in which the Bill is now drafted, but I very much hope that my noble and learned friend the Lord Chancellor will take the situations that I have described into account because they are now much more prevalent than used to be the case. Very often in the past a man who had had an affair would return to his family. That was often because of the stigma of divorce and because of a recognition of the value of the family. Regrettably, however, that is no longer what happens in today's climate. We have to recognise what happens when a woman is left at home, having sacrificed her career and with very little income. We shall come to the issue of pensions later. The current provisions will leave such a woman without the ability to make any decision about her future. That is why I very much support my noble friend Lady Young. I am not sure that 18 months is the correct period because I do not think that it is possible to specify any definite period which can meet each individual situation. That is the problem that I face with this Bill.
§ Lord Marsh
I know that noble Lords, like, I am sure, many other people, rightly have a high opinion of the knowledge and wisdom that is resident in this Chamber, but I think that we could overdo that in relation to the rest of the human race. I am sure that there are occasions when someone who has been happily married for 20 or 30 years meets an attractive young lady across a bar one night and breaks up the marriage in 24 hours, but that is no more common among the generality of the population than it would be in this House. Indeed, to suggest that either House of Parliament should take totally unto itself the possession of ultimate wisdom in relation to human relationships does not carry a great deal of weight. Those things happen, but they are not the normality. Most ordinary, half-intelligent people (on a par with many of us, including myself) recognise very rapidly at the lowest level the sheer horrendous nature of the economic consequences of such a break-up. Most of those people are moved by their children crying and getting upset, as most of us would be moved in such circumstances.
I agree with the noble Baroness, Lady Faith full. I find it extraordinary that it is suggested that after the collapse of a formerly loving relationship a year is too short a period in which to have thought about it, weighed up the consequences and realised what the break-up means for everybody concerned. If that is so, frankly I can see no reason why the parties should suddenly begin to understand all that simply because they are in the second year of that period.
Of course the situation of the abandoned spouse is tragic. It is not always the woman who is abandoned; it sometimes happens to the man. And of course, specifying one year, two years or five years is irrelevant because that spouse does not want a divorce.
I agree with the noble Lord, Lord Irvine of Lairg, who said that it is possible that the intention behind the amendment is simply to make divorce less likely, regardless of the circumstances. I do not think that that 937 is merely "possible"; I think that it is the sole purpose of the amendment. The amendment is not logical otherwise. It is perfectly understandable that those who believe that divorce is wrong and should not happen want to stop it. I have no quarrel with that. However, there is another point of view—that to prolong something as intimate as a marriage and something which is so important as a foundation for a group of children past the point when it is clear that it is a vulgar and unpleasant charade, does no good to anyone. That is a difficult judgment to make, but I believe that the Lord Chancellor has got it right.
§ Lord Acton
I harken to the wisdom of the noble Baroness, Lady Faithful!, and agree with what the noble Lord, Lord Marsh, has just said. I believe that the noble and learned Lord the Lord Chancellor has got it right and that one year is the correct period.
§ 5.15 p.m.
§ Baroness Platt of Writtle
I should like to express my sympathy with the position of an abandoned spouse—often, as has been said, an older woman, but it could be a man—who does not agree that the marriage has irretrievably broken down. After all, that party has as many rights in the marriage as the man or woman who has run away, but that point seems to have been forgotten. Like my noble friend Lady Young, I cannot see why it is proposed that the law should be changed. Therefore, I particularly support subsection (3A) of her. amendment and hope that my noble and learned friend the Lord Chancellor will reconsider the matter, bearing in mind that only one party to the marriage may think that it has irretrievably broken down.
§ The Lord Bishop of Oxford
I listened with great attention to the noble Baronesses, Lady Young and Lady Elles, because I know that they expressed the concerns of the many people outside this Committee who regard the amendment as crucial. However, I must ask myself what purpose would be achieved by extending the period. Would that somehow improve the chances of saving that particular marriage? Is the marriage more likely to be saved over a two-year period for reflection and consideration than over a one-year period? Sadly, I am not convinced that the extra year would reasonably strengthen the chances of saving a marriage. If the period was increased, would it act as a significant deterrent to those whose marriages are breaking up? Again, sadly, I believe that those who arc set on breaking up their marriage will live apart or will live totally separate lives, and that increasing the period will not act as any significant disincentive to a separation. In a way, I wish that it would.
If, by increasing the period, we could significantly reduce the number of divorces, there might be a lot to he said for it, but I do not honestly think that that would act as any kind of disincentive or sanction. I shall not mention the disadvantages of increasing the period because the noble Lord. Lord Irvine of Lairg, has already spelt them out and I have nothing to add to what he said.
938. As I have said, I have listened to this debate with great attention and shall continue to listen to see whether any significant purpose may be achieved by increasing the period. However, at the moment, I have to say—albeit reluctantly—that I can see no significant advantage in that.
§ Lord Stallard
I rise to support the noble Baroness, Lady Young, in this amendment. She is right that this is the time and the place in which to air all the views on this matter so that the noble and learned Lord the Lord Chancellor can take them away and discuss all the points that have been raised.
I agree with the noble Baroness, Lady Young—the noble Baroness, Lady Elles, was also right—that we are not attempting to reduce the period; we are simply seeking to leave it as it is. As the right reverend Prelate said, there is no clamour for this change from people outside this Committee. Like the noble Baroness, Lady Young, I have received correspondence on this and there is certainly no clamour from people outside for making divorce easier. I accept that there is no clamour for making it harder, but there is a tendency in this Bill, and sometimes in some of the speeches that we have heard, to undermine the basis of marriage and to undermine marriage as a sacrament and way of life while promoting divorce as a better alternative as soon as any trouble arises. That is what is upsetting many people outside and that is what vexes me. That point of view must be considered seriously.
We should not simply say that the provisions should state one year because that is what we think, because thousands of people out there do not agree with that and their views must be considered. They have to be represented by someone and I am happy to help to represent those people who do not want divorce to be made easier at the expense of everything about marriage in which they have always believed. This Committee should at least consider seriously whether the provisions are best left as they are with periods of two and five years, or whether divorce should be available at the whim of only one of the parties who might say that the period should be 12 months. Is not that an incentive to increase the number of divorces?
I am still not convinced. My problem is that I believe basically that rather than assist the situation the Bill makes divorce easier. I am trying to overcome that, but I am having great difficulty in coming to terms with the fact that the Bill makes divorce too easy and is an incentive for people not to try to make the marriage work when there are difficulties but to take the easy way out. I know that the noble and learned Lord the Lord Chancellor will listen to all the points made in the debate. I hope that he will come back with something that tries to meet the fears and worries of those who agree with the amendment.
§ Lord Elton
I find this the most difficult area of the whole Bill. I am much attracted by what the noble Lord, Lord Marsh, said, although I would not have put it so forcefully. I see the persuasion of the remarks of the right reverend Prelate, but it cannot necessarily be right to treat marriages in which there are two parties who 939 wish the marriage to end, and marriages where there is only one party who wishes it to end in the same way. I hope that my noble and learned friend will be able to point out the differences in what is in the Bill. If they are to be treated differently, then the question is: what is the purpose of treating them differently? Is it a penalty or is it a means of exploiting a different situation?
The noble Lord, Lord Marsh, suggested that the proposal was purely punitive, and, I think rightly, felt that many people support the amendment because they feel that the whole venture of divorce should be stopped at any price. I cannot number myself among them. However, a period of reflection may have a greater chance of producing positive fruit where one of the parties starts out thinking that there may be a chance of saving the marriage than it would when both parties are determined that the marriage should end. I hope that my noble and learned friend will address himself to that point, because that is the little place where, so far as concerns me, the door is ajar for the amendment which otherwise I would not be able to support.
§ Lord Monson
Before the noble Lord sits down, does he agree that Amendment No. 42 and the consequential amendments in the name of his noble friend Lord Coleraine address the problem that he poses, and in my view do so in a rather satisfactory way?
§ Lord Elton
I was slavishly following the grouping by not mentioning that that had occurred to me. My noble friend may yet put his toe into the waters of this debate.
§ Baroness Lockwood
I understand the motives behind the amendments, and I sympathise with those motives to a great extent. If one party is opposed to the divorce then obviously the situation is difficult. In those circumstances, as the noble Baroness, Lady Platt, said, in the majority of cases it is likely to be the woman who is the party offended against. In such cases, particularly with older women, real financial problems arise, because older women tend not to be as financially independent as younger women.
There are some serious problems to be tackled, but I am not convinced that the proposed amendments are the answers to the problems. The first amendment, for example, envisages a period of five years when one party is opposed to the divorce. Perhaps I may remind the noble Baroness that she said that we must take account of the fact that there is often a great deal of bitterness in divorce. If there is to be five years of bitterness, what kind of life would there be for either of the parties? What kind of life would the family have? Like the right reverend Prelate, I feel that extending the time period laid down in the Bill is not the solution.
The noble and learned Lord the Lord Chancellor advised us yesterday that one year is the minimum period, and that it can he extended where mediation or reconciliation is taking place. The matter does not necessarily have to be settled within a year. I would ask the noble and learned Lord the Lord Chancellor to elaborate on the effect Clause 10 would have in those circumstances. Clause 10 relates to orders preventing divorce in cases of hardship. As I read the clause, a 940 divorce could he prevented if adequate arrangements had not been made. That would give the spouse being divorced against his or her will an opportunity to ensure that his or her financial well being was taken care of.
There is another amendment to which we shall come later which relates to the division of pensions in a divorce. Financial considerations will be terribly important in a divorce. So while I sympathise with the motives behind the amendments, I am opposed to them because I do not believe that they would prevent a divorce but that they would create greater unhappiness for longer.
§ The Earl of Perth
My name, together with that of the noble Baroness, Lady Young, is down to Amendment No. 44, which is grouped with Amendment No. 41. I have listened to the debate with great interest. My amendment mentions 18 months. If I had seen two years mentioned I might have put my name to that amendment as well.
The real issue emerged in the speech of the noble Lord, Lord Irvine, when he asked whether I supported the amendment because it had some sort of penal effect. The amendment would make divorce more difficult. I do not think of the amendment as a penal one, and I suspect that goes for the noble Baroness, Lady Young, as well. The amendment does two things, and that is important. First, it makes a couple contemplating marriage think about it more seriously. We have all seen the disastrous effects of divorce over the past years. I believe that the previous divorce Bill made divorce too easy. I hope the proposal will have the effect of making the couple contemplating marriage—this is the key—take it more seriously.
Secondly—here I find the remarks of the right reverend Prelate most disturbing—I believe that where there is a longer period the breakdown may be less likely, although I am aware that it must be a matter of opinion. With the longer period the couple will say that they have to try to make a go of it because they have another year, 18 months, or whatever it may be, to go. The longer period may have two consequences. First, it may make those contemplating marriage take it more seriously. Secondly, if the marriage goes wrong, a reconciliation is more likely.
§ 5.30 p.m.
§ Lord Mishcon
I have three concerns that I wish to share with the Committee and they arise out of much of what has been discussed. My first concern is that under the Bill the procedure differs in a material respect, procedurally, from what happens now. Under the Bill, divorce proceedings commence with a bare statement upon which no advice is required. At present, when a person is contemplating a divorce he or she goes to a solicitor who, if he honours the ethics of his profession as I hope the majority of my colleagues do, makes it his first task to ask, "Why do you want a divorce? What are your grounds? Do you realise what you are up against?". When one is advising a woman in particular one asks, "Do you realise the loneliness of it all, quite apart from the financial aspects? Do you realise what is happening to the children if you go ahead with this?". I can tell the 941 Committee that in a number of cases throughout a very lengthy life I have had the joy of seeing my client going out having changed his or her mind. That is not a possibility under the present procedure.
My second point is relevant to the amendment that we are discussing. The advice that would normally be given under this altered procedure is this. If the length of time is two years in respect of a "consent divorce" or five years where one of the parties does not consent the advice that anyone would give—and one does not have to be a lawyer to do it—is, "If you have the slightest doubt about filing that statement for heaven's sake put it in because there will be a long delay of two years or five years if you do not. Don't think too hastily but nevertheless buck up with your ideas and put that statement in". I do not believe that that is what we want.
I turn to an issue that worries all Members of the Committee; those who have spoken for the amendment and those who have spoken against it. It is the plight of the party to the marriage who wants it to go on. We have a procedure under the Bill and I wonder with Members of the Committee whether we can improve upon it. It is the procedure under Clause 10. I know that I shall be forgiven if I jump from one clause to another. Clause 10 provides:If an application for a divorce order has been made by one of the parties to a marriage, the court may, on the application of the other party, order that the marriage is not to be dissolved".Subsection (2) provides that:Such an order...may be made only if the court is satisfied"—and I look at paragraph (b)—that it would be wrong, in all the circumstances (including the conduct of the parties), for the marriage to be dissolved. Will the noble and learned Lord in his ingenuity—and most of us credit him with that in addition to other qualities—reflect upon the procedure under Clause 10 when dealing with the problem that we are now meeting? Taking the partner concerned to be the wife, can he see whether at an early stage under some informal procedure she can say, "Please, court, I do not want this divorce. He has been carried away by this little floozie"—the Committee will forgive me using that word—"and she is young, she is pretty, and it is all a nonsense. He is a silly idiot. He is trying to pretend that he is 30 again but he's really 50 and he had better realise it."? Is there a way in which, informally, somehow or another, the matter can go before an intelligent registrar, judge, or whoever, at an early stage so that the party who does not want the divorce can be heard? The wise registrar, whoever he may be, will then have the ability to talk to the husband and say to him, "I have listened. Is it sensible? Do you really want to go ahead? You know that if I believe there is a hardship under Clause 10 I have the power not to give you a divorce order. Can't both of you go to see a marriage counsellor?".
What worries me about the Bill—and there is so much that I agree with—is that it looks like a cold, set procedure. I know all about mediation and that people rightly say that mediation is not conciliation. I am really fearful that under the procedure we have at the moment 942 little people will be thrown into a pit when, if we thought out our family procedure relying on Clause 10 and making it more simple and humble, we could rescue them from the pit.
§ Lord Carr of Hadley
I am a strong supporter of the principle of the Bill but I have one nasty niggle in my mind about it. It relates to the issue that has been touched on by the noble Lord, Lord Mishcon. Perhaps I may say to my noble friend Lord Wolfson that if I stood up firmly and did not sit down to let him speak first it was because on this point I wish to make what will be my only contribution to the debate.
If, like the noble Lord, Lord Stallard, I believed that the Bill made divorce easier I should oppose it. I do not believe that, first and foremost because it gets rid of that wretched thing the quickie divorce. In my view, one of the reasons why the quickie divorce was used so much was that the period of the other alternatives was so long. One of my reasons for supporting the Bill is that it gets rid of the quickie divorce.
I turn to the second reason and I speak not as a lawyer and, luckily, with no experience of dealing with divorce in my family, either close or distant. It seems to me that for the first time in our history we are seeking to put on the statute book a process which must be gone through before divorce can be obtained; which is designed to question whether the divorce is necessary by conciliation; and, if that fails, at least to ensure that before the point of divorce is reached the parties have made arrangements as to how to provide for themselves and, above all, for their young children. That seems to be a strong, positive case for the Bill.
My noble friend Lord Elton said that the provisions of Amendment No. 41 go to the heart of the matter. I want a period that is long enough to ensure that the processes of conciliation and mediation can be pursued to their utmost useful extent. Therefore, the period must be long enough. It is also my experience of life generally that too long a period takes away the urgency rather than adding to the urgency with which one goes about these matters. One cannot work out mathematically or logically any reasonable period. I cannot justify 12 months rather than six or 18 months. However, I have a feeling in my bones that 12 months is about the right period. It is long enough to do everything you have to do but it is not too long to make one say, "I am not going to be bothered with it" or "It is going to take so long that I have not the will or the energy to pursue it".
It is a matter of subjective judgment but I believe that 12 months is about the right time, provided we arc sure that the machinery and the resources for conciliation and mediation are in place before the Act comes into operation. I was heartened by what my noble and learned friend said yesterday, that he was not in any hurry to bring the Bill into action so as to make sure that all the proper framework is there first. That being so, I believe that 12 months is right and I have to say with sorrow to my noble friend Lady Young—I think this is the first time over many issues that I have found 943 myself not agreeing with her—that I cannot agree with her on this point. I really believe that 12 months is the right time, with the provisos that I have made.
I do not want to sit down without drawing attention to the fact that my noble friend's amendment raises another issue. When dealing with a divorce on which both parties are going forward, the situation is different from a divorce where only one party wishes it and the other does not. I believe that situation requires a different period or, if not that, some different procedure. The noble Lord, Lord Mishcon, made his suggestion and, as a non-lawyer, I cannot really give an opinion about it, but I do want to add my urging to those of others to my noble and learned friend, that somewhere in this Bill we must take up the problem of the divorce when one party is asking for it and the other partner is not. I do not think the two cases can be or should be treated exactly the same.
§ Baroness Seear
I should like very strongly to support what the noble Lord, Lord Mishcon, has said. I am a very strong supporter of this Bill, apart from one reservation about the situation where one party, who is usually an older woman and who has probably been married to the man for a great many years, wishes to resist a divorce. That is a different situation from the others and it requires very careful consideration.
In Clause 10 there is surely the possibility of dealing more satisfactorily with this situation. If the divorce is stopped, in Clause 10, to meet the wishes of the partner who does not wish to divorce and if, after a period, it, still is not working, it is very likely—not certain but likely—that the unwilling partner will come to the conclusion that there is no future in it. However, a longer time will have been given for them to work at it and the case will have been given a really fair trial. One knows that this happens. Very often, as has been said, men will fancy a younger woman for a period of time maybe. Then that passes and the man will come back to the woman to whom he has been married for a long time.
If you can use Clause 10, as the noble Lord, Lord Mishcon, has said, to give greater protection to the older woman in those circumstances who is resisting divorce, at least it will give her the chance of a fairer deal and it might lead to a decision not to divorce in the end, when the excitement of his second youth has passed and he returns to the woman he has been used to for all those years.
§ 5.45 p.m.
I too share the view that one year is enough and therefore I support my noble and learned friend the Lord Chancellor and other speakers. Most of what is necessary has been said but I should like to make one or two points. First, obviously the circumstances leading to divorce are not always the same. This fact should be taken into account. You cannot have a blanket rule for such an emotional and sad issue. I think the length of marriage should be taken into account. In my own case I was married for 41 years before it was ended, and it was a sad thing to happen. Also, age is relevant. was in my sixties at the time and had the opportunity— 944 I believe this is a very important point in respect of resettlement—to resettle with a very delightful lady who had been a widow for six years and had children of her own. If I had had to wait for five years it would have been impossible for her and would have landed me in a situation where I would have been really too old to remarry sensibly. All the children in this particular case were married, and I believe that is another issue which also has to be taken into account.
I saw a film, as no doubt many of your Lordships have, called The War of the Roses, where the stresses and strains in a marriage ended up in the most horrific manner, with the participants either killing each other or committing suicide in a home which they could not share together properly. I think it is advisable to take account of all the views expressed here. One year seems to me to be right. There should be some allowance made for length of marriage, age, opportunities for resettlement and the fact of not having dependent children.
§ The Earl of Onslow
There is one more point which needs to be alluded to and that is this. Sometimes there have been cases of a marriage having broken down and one partner who, under the present law, could appear to be the innocent party has moral objections to divorce and will do nothing whatever to consent to it. However, for the sake of argument, let us assume that we all know of cases like this. The wife bends the husband's ear something rotten and finally he goes away; or he bends her ear and she goes away and he says, "I am not going to let you have a divorce". I may say that my religious beliefs do not allow me to do that. It seems to me that we should not always assume that the person who will not allow the divorce is being reasonable. I do not know whether that fact has been brought to your Lordships' attention but it happens in human affairs.
§ Baroness Macleod of Borve
We started this afternoon by talking about the children. To me the children are always paramount, and we have not mentioned them in discussing these amendments. I think that the longer the parents are unhappily together with children, and the children have to see it, the worse it is for the children as they grow up. Therefore, I would go along with my noble and learned friend the Lord Chancellor and have the one year, because of the children.
§ Lord Meston
As the noble Baroness, Lady Elles, said, it is not possible to generalise; but I tend to the view that parties for the most part begin the divorce process towards the end of a marriage which has been in trouble for some time. Your Lordships may take the view that in some cases one year is too short, but one thing I am clear about is that five years is too long. Under the existing law, surprisingly, divorces after a five-year separation are quite often those in which more acrimony and unhappiness are generated than in almost any other type of case. One party will not consent to the divorce and cannot or will not use grounds which may be available for some other form of divorce.
That is the point which the noble. Earl has just mentioned. Neither party can get on and reorganise the rest of their lives, and the longer the period—it is 945 inescapable—the greater the resentment, often to the detriment of the children and indeed of the grandchildren. If one is thinking in terms of punishment, I suggest that there are many cases where a five-year separation before divorce can be finalised punishes both parties and their families.
I ventured to mention on Second Reading one of the unhappiest divorce cases in which I have ever been involved. In fact, it was the wife who wanted to end the marriage. She had decided to go off after a very long marriage, but the husband would not divorce her. Rather stubbornly, he wanted to hold on to the marriage which had lasted for over 40 years. In the end, the wife brought a petition on the grounds that the parties had been apart for five years. However, the husband denied that they had been apart for that time. He said that it was a lesser period when the divorce petition was filed with the court. There then followed what was one of the most unhappy days that I have ever spent in a divorce court.
The bitterness and unhappiness of that couple was quite distressing to behold. In the end, the judge accepted the husband's case that they had not been apart for five years. Therefore, the husband did not get what he wanted—namely, his wife back—and the wife did not get what she wanted which was a divorce. They limped on with their future unresolved until eventually five years could be proved to have elapsed to the satisfaction of the court. I have to say that I left the court that day thinking that if only that couple had been seen by a professional mediator or counsellor at a much, earlier stage, they probably would not have reached such a sad situation.
I suggest that the noble Lord, Lord Mishcon, has put his finger on the point. Rather than worrying about the period, we should be looking more constructively at what can be done for both parties either under Clause 10 or, possibly, by giving the court a discretionary power to extend the period beyond a year as is suggested in forthcoming amendments.
§ Lord Stewartby
When I came to the debate this afternoon, I did not have any clear view as to whether I thought that any of the three amendments ought to be supported. I am still of that point of view. However, I believe that a number of issues have emerged from the debate which are most important as regards the overall balance of the Bill. That is why it is so difficult to look at any one clause, or any one part of it, in isolation from the rest.
If, as my noble friend Lord Can said, 12 months is the right period, we must accept that it is a matter of judgment between conflicting issues. Of course it must be possible in certain cases that a longer period might lead to a greater chance of reconciliation. However, it must equally be possible that a longer period in other cases might lead to greater recrimination and less chance of reconciliation. What we are trying to find instinctively is not a happy medium, but, perhaps, the least unhappy medium which would balance the conflicting issues.
946 My mind is quite unresolved on the matter. I have an instinct that 18 months might be necessary in some cases rather than 12 months. However, I should like to reassure the noble Lord, Lord Irvine—as, indeed, did the noble Earl, Lord Perth—that many of us who have contemplated the question of the length of time do not do so for the purpose of any penal intent, or specifically to make divorce more difficult. Any change in any of the provisions in whatever direction is likely to make divorce more difficult for some people, and will, possibly, make it less difficult for others.
We must try to strike a balance over the whole Bill as we see its other provisions unfold. That is why I believe that the point made by the noble Lord, Lord Mishcon, regarding Clause 10 is most important. It is not necessarily the only part of the Bill which needs to be seen in conjunction with the clause that we are now discussing; but it is the nexus of procedures and the nexus of provisions which will ultimately determine whether the Bill achieves the improvements which we all hope it will in relation to resolving the problems connected with divorce.
I should like to emphasise and support the comments which were made by several Members of the Committee about the lady on the bar stool mentioned by the noble Lord, Lord Marsh. It seems to me that the temptress on the bar stool symbolises one particular area of acute difficulty in the whole matter. I came across one of those characters once.
§ Lord Stewartby
I should hasten to tell Members of the Committee that she came to a surgery in my former constituency and tried to persuade me to do everything possible to enable her to gain permission to live in this country, so that she could exert her charms on one of my constituents.
One should never take any general issue from one case. But the case is so dramatic that it illustrates my point very emphatically. The man in question had been to the United States to take part in a darts match. On the bar stool afterwards, he had found the temptress—or the temptress had found him. She was unrelenting in her efforts to secure his affections. I cannot remember exactly how much resistance to the situation came from his wife. But eventually the temptress succeeded in her objective: she married my constituent and murdered him three years later.
§ Lord Stewartby
I do not recount the story in order to obtain such a reaction from Members of the Committee. Indeed, I do so because it made a very profound impression on me. It made me look at the potential implication of temptresses rather more carefully thereafter. Although I have slightly dramatised the story by using such language, I believe that there is a very serious issue to be considered which involves the question of unwilling spouses and, in some cases, such potentially short-term infatuations which may disrupt the marriage but which could easily blow over in a certain period. Whether it is through the proposed 947 clause, the other amendments or by virtue of other parts of the Bill, I believe that that is an area for which it is essential that the Bill should provide appropriate measures.
§ 6 p.m.
§ The Lord Chancellor
I agree with the view that the proposed amendments deal with matters which are at the very heart of the Bill. I believe that it is necessary to have a period for consideration and reflection. That period should be a minimum period and fixed by law, as a clear indication of the value and solemnity that we attach to marriage. However, the question of what that period should be is a difficult one and is a matter of judgment.
The Government set out in the White Paper the reasons which persuaded us that a year was the right period. There is another point to be made in that connection to which the noble Baroness, Lady Lockwood, referred and which bears on the point raised by my noble friend Lord Carr of Hadley. The period is for consideration and reflection. One of the conditions in addition is that there should be a resolution of the matters that arise between the parties consequent upon the divorce. That cannot be allowed to produce a divorce in less than a year. However, if the processes require longer than a year then, automatically, that will happen by virtue of the provisions.
I believe that we have met the point raised by my noble friend Lord Carr of Hadley. We have ensured not only that the period, whatever it may be, is not less than a year—and that is the important effect that I mentioned—but also that there is flexibility to ensure that what is required in the way of dealing with the situation between the parties is available in point of time.
As I said, we have before us a difficult question. It is one which requires judgment; and, indeed, Members of the Committee will be required ultimately to exercise judgment on it. My noble friend Lady Young has proposed various amendments. I do not believe that there is any real problem so far as concerns drafting. When we reach the stage where a definitive conclusion has to be taken on the amendments, it will not be a drafting question; it will be a question of judgment as to what is the right period. The longer the period the more it is necessary to think what the period is intended to do.
There is also the point that the longer the period the more pressure there is for special arrangements to be made for exceptional circumstances. It is extremely important that marriage is recognised as having the consequence of a definite period as a minimum associated with it. I am not very much in favour of extending the period if, as it were, the counter to that is a power in the court to shorten the period in special circumstances. That blurs the message which otherwise a clear minimum period sends.
As is often the case, there are problems in relation to individual cases. The case of the abandoned spouse who resents very much being abandoned has been referred to. Statistics tend to show that the proportion of these 948 cases in the total is rather small, and the idea that they are particularly exemplified by one gender rather than the other is not sound. That can happen both ways; I am sure that infatuation is not entirely a male preserve.
I agree that this is a serious problem which we need to consider. If the arrangement is to have extended periods related to particular cases, then Clause 10 is the way to deal with that. It is not right to impose as a minimum period a period that deals with exceptional cases only. That is imposing on others an unnecessary wait. I agree with my noble friend Lord Carr of Hadley that the effectiveness and purpose of the period would be damaged if it is too long for any reasonable utility and for the purpose for which it is set up. So far as that is concerned, this Bill makes a reasonable provision.
The noble Lord, Lord Mishcon, had concerns, which I will now address. Not all of them were precisely raised by this amendment but, nevertheless, they are important and have to be addressed.
The procedure in this Bill requires an information session at the outset in which parties contemplating this step, before they get into anything at all connected with the court, are given as much information as possible, in as effective a way as possible, about the various services available to them. This would include a solicitor if a party wants a solicitor, although it may he a party would prefer, or think it wiser, to go to a marriage guidance counsellor or someone with more specific skills that the party may require. Occasionally problems of illness arise and specialist advice may be required.
A party may be fortunate enough to receive wise advice—I hope that will be the case, at least on occasion—and that I very much want to encourage. The whole idea of the information session preceding any step at all is that people are given full opportunity and advice to think before they get into any process. If they do get into a process, the purpose is as I have said.
The third point is the plight of the party who wants the marriage to go on, and the noble Lord directed our attention to the possibility of using Clause 10 as the ultimate way of dealing with special cases. I feel sure that that is right.
The precise procedure that would be involved in seeking to invoke Clause 10 is not laid down in detail. The procedures would be subject to laying down details in regulations and in rules of court, with a degree of flexibility to take account of what actually happens; but that is the area in which special cases should be dealt with.
One or two of your Lordships referred to the distinction between consent and no consent. I personally believe that consent or no consent is not as relevant to this situation as at first sight appears. Of course, if there is consent there would be no question of seeking to invoke Clause 10 or the hardship bar. The distinction between the two cases is preserved by the fact that a person who does not consent will have the opportunity of recourse to the hardship bar.
It would not be right to distinguish between consent and no consent cases for showing that the marriage has irretrievably broken down. In that case the minimum period should apply whether or not the parties are 949 anxious to divorce because, apart from anything else, it is right that before the divorce is granted they should consider what arrangements should be made.
One has to remember also the children. I want to guard against a situation in which two rather selfish parents are so concerned to safeguard what they see as their definite futures apart—and therefore want to get a divorce as quickly as possible—that they neglect the responsibilities they have already incurred in their union in which children have been born. As I said, it is not right to distinguish in the minimum period on that account. But I do see, and agree, that where parties have not agreed the option of applying under Clause 10 should be considered.
I agree that that is one of the most important parts of the Bill. What I have in mind is that if this matter is to be taken forward, as I think it should be, to an ultimate decision on Report, I will ensure that the drafts supporting the various periods are adequate, and then the decision as to which period it should be would be a matter for the House, on a free vote, at that stage.
As to Clause 10, obviously there are amendments dealing with that and we will have to look at that later. Clause 10 gives the option of special arrangements, in relation to particular cases, to alter the minimum period, which some of the proposed amendments do not, and your Lordships may feel that, in principle, Clause 10 is the better route for that purpose.
As I said, these are extremely difficult matters. They require very careful consideration. I have not seen' evidence that would suggest that if a period of longer than 12 months is stipulated as a minimum that is likely to be particularly optimistic in terms of reconciling differences between a couple. On the other hand, for particular cases perhaps special provision should be made, and Clause 10 at least provides a basis on which that could happen.
§ 6.15 p.m.
§ Baroness Young
I should like to thank my noble and learned friend for what he said. This has been a very useful debate. It has covered a variety of situations. I welcome what my noble and learned friend said in his last remarks. That is very much a matter for consideration between now and Report stage. Many speakers taking part in this debate have not previously taken part in the debate on the Bill.
We need to hold on to what we want to achieve with the Bill. I am quite clear in my mind that I should like to see marriage buttressed, because I believe that the high divorce rate is having a devastating effect on society. Every time one opens a newspaper one reads of more of its effects. I do not have to spell that out. The noble Earl, Lord Perth, made an extremely important point. He asked what signal this piece of legislation will send out to young couples contemplating marriage, let alone couples contemplating divorce. One of the signals which will go out, as the Bill stands, is that at the end of a year one can get a divorce, and one can do so against the wishes of the other partner. I acknowledge that it does away with the quickie divorce which can be 950 obtained in less than six months. That is a benefit. On the other hand, if we weigh in the balance the fact that anybody who wishes to divorce can do so at the end of a year, then divorce is being made easier.
I find it distressing that when I make these remarks I am accused of trying to punish a lot of people. I am not trying to punish anybody. I believe in marriage. I believe in individual responsibility. In particular, I believe that couples who have children should make a great effort to stay together and look after them. I make no pretence that other alternatives are better. Of course there are some circumstances in which divorce is right. But there is a great deal of talk, which was apparent in the course of the discussion today, to the effect that we must try to make divorce possible for the man who wants to go off with a younger woman, or the woman who wants to go off with another man, or the woman who pushes her young husband out of the house because she is bored with him. It is implied that we must understand such circumstances. Of course such things happen, but at the end of the day we ought to be concentrating on marriage. If we do not do that what kind of lead do we give, to young people in particular?
I turn to my noble and learned friend's profound remark that the period of a year is a matter of judgment. It was a matter of judgment to those who wrote the White Paper. The noble Lord, Lord Irvine, can no more show that a year is perfect than I can show that 18 months is perfect, or indeed that six months is. It is a matter of individual judgment. It is a judgment which has to be made in difficult and differing circumstances. Therefore, I am pleased to hear my noble and learned friend say that we should consider the different lengths of time. We should certainly consider the point raised by the noble Lord, Lord Mishcon, about hardship. When we come to Clause 10 I hope that we shall do so because there is much to be debated on that particular point. I welcome anything which enables us to concentrate on first principles.
I turn now to the question of children. I am very sorry to disagree with my noble friend Lady Faithfull on this subject. If one believes, as I do, that the Bill will probably result in more divorces, then of course more children will suffer. I am sorry that the noble Lord, Lord Acton, and the noble Baroness, Lady Macleod, felt that children would be better off. The truth of the matter is that all modem research shows that, difficult as marriage may sometimes be, children are better off in a difficult marriage where the partners stick together than if they divorce.
We all have endless evidence, having met young people whose parents have divorced. I know of a 15 year-old girl whose parents have recently divorced who spends almost all her time at a friend's house because she feels she has no home and there is nowhere where she feels at home. I have met people in their twenties whose parents have divorced who have never recovered from that. Therefore, let us not think that this is an easy matter. It is not. That is why I believe that we have to consider the matter very carefully.
951 I have been given a great many examples. Lawyers are full of examples. They deal with divorce all the time, and no doubt if there is more divorce it makes no odds to them. However, every year 20,000 to 30,000 couples edge towards divorce and then withdraw from the procedure because they have had second thoughts. That must be welcome. Generally, experience shows that if one has longer to have second thoughts one is more likely to have them, although that may not be so in every case. However, one opens up the possibility for those second thoughts with a longer period of time.
My noble friend Lord Elton made an important point. Of course there are differences between the case of a couple, both of whom consent to divorce and where there are no children, a couple where there are children and both consent, and a couple with children where only one partner wants a divorce. We are dealing with a variety of different circumstances. As my noble and learned friend said, it must be right to regard the period as a matter of judgment.
I was very glad to hear my noble and learned friend say that he would not want the period to be extended if it could be shortened. I agree with that. However, the last thing I would wish would be for the period of a year to be shortened. That would send out an even worse signal than the one I fear we are already sending with this Bill.
It is worth reminding the Committee, in case we should have forgotten, that every single piece of divorce legislation has been accompanied by an increase in the number of divorces. Although I know that that fact has' been dismissed because divorces increase for many other reasons, if we believe that legislation has no effect on behaviour there is no point in any of us sitting here at all. We must take the matter very seriously.
I am extremely grateful to those who have supported me, in particular my noble friend Lady Elles, the noble Earl, Lord Perth, and the noble Lord, Lord Stallard. It was the amendment of the noble Lord, Lord Stallard, supported by the noble Lord, Lord Stoddart, which we considered at the beginning of these proceedings which identified the criterion against which we should measure every amendment, namely the buttressing of marriage. We should consider whether they support marriages that are in difficulties and parents who are struggling under great difficulties and temptations to bring up children in an extremely difficult world, one that is far more difficult than the world in which I grew up. We should judge every single amendment on the basis of whether or not it would buttress marriage. That is the real question before us.
It is not a question of satisfying adults who wish for some reason of their own to behave in some specific way. It is whether or not the provision buttresses marriage in the interests of the children. It is a matter of deep regret to me that the right reverend Prelate the Bishop of Oxford feels that we must stand on this period of one year. To feel that one does not have the support of the Church on these matters I find deeply upsetting.
§ The Lord Bishop of Oxford:
Perhaps I may say this to the noble Baroness. Speaking for myself, and I think 952 for various other bishops, we yet remain to be convinced of the advantage of increasing that period. We are still open to the argument but we are not yet convinced.
§ Baroness Young
I thank the right reverend Prelate. I appreciate that. I believe that the right reverend Prelate stated that he did not think that extending the year would improve the chance of saving marriages. However, what it might just do—it is again a matter of judgment—is to send a signal to those embarking on marriage. For those embarking on marriage, it is a hard undertaking. It seems to be thought that marriage is easy, but it is not. It is not easy for anyone, whether or not he or she is happily married. It is something that one has to work at. Marriage requires a great deal of unselfishness, and thought for someone else.
If we say at the beginning of a marriage, "Of course, if it all gets too difficult you can pack it in at the end of the year", one is sending a very strange signal to the country. The noble Lord, Lord Marsh, shakes his head. That is the signal which will be sent to the young people who will be the first to be involved under this legislation. Those who are 16 now may marry in five, six or seven years' time. There will probably he that many more divorces at the end of the year.
§ Lord Marsh
I was simply shaking my head as an indication that there could possibly be a different view.
§ Baroness Young
I entirely agree. We can all have different views. I do not happen to agree with the view expressed by the noble Lord, Lord Marsh, and we can agree to differ without, I hope, any hard feelings.
Like the noble and learned Lord, I think that the issue is central to this piece of legislation. It is very important. Perhaps we all need to reflect carefully on a number of issues: the length of time proposed; perhaps an amendment to Clause 10; and other considerations which may apply. A number of constructive suggestions have been made. I hope that perhaps I may have an opportunity to discuss these matters with my noble and learned friend before we reach Report stage.
§ The Lord Chancellor
Perhaps I should say that my noble friend has always an opportunity to discuss anything she wishes with her noble and learned friend.
§ Baroness Young
Perhaps we might talk about the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Coleraine moved Amendment No. 42:
Page 4, line 15, at beginning insert ("Subject to subsection (3A) below,").
§ The noble Lord said: Amendments. Nos. 42 and 51 are tabled in my name. During a previous debate at an earlier stage, my noble friend Lord Elton invited me to dip my toes into the debate; I think that he meant that debate. However, in view of the manner in which amendments are grouped, and what I consider to he the relative importance of this amendment, it seemed better procedurally that I did not seek to advance my amendment into an earlier group.953
§ Amendment No. 42 is a paving amendment. The short purpose and intended effect of Amendment No. 51 is that unless and until husband and wife are agreed that their marriage is at best an empty shell, the divorce process shall not end but may continue for up to three years from the making of the statement which originated the process. That would be an additional two years.
Amendment No. 51 inserts the new subsection (3A) to Clause 7 of the Bill in the following terms:
In any case where, by the end of the period of one year, one only of the parties has made a statement, the period for reflection and consideration does not then end but continues until the end of a further period of two years unless, in the meantime, the other party makes a statement, in which case the period then ends".
§ I intend to put forward for discussion this afternoon the case that we must distance ourselves a little in the Bill from unilateral divorce obtained on the request of one party only against the wishes of the other party. I make it clear to the noble Lord, Lord Irvine of Lairg, that that is my agenda. Although I appreciate that the party who may be prevented from obtaining a divorce as quickly as he or she may wish may be in a position of hardship as a result of the amendment, if it were accepted, that is only a consequential effect of the amendment. It is not my intention that the amendment should punish anyone.
§ The same case has already been cogently argued in debates on amendments in the name of my noble friend Lady Young which sought a return to the fault-based system. In the absence of my noble friend Lord. Ashbourne, my noble friend also spoke in support of an amendment calling for a total ban on divorce except by the agreement of both husband and wife.
§ I support most strongly the intervention of the noble Lord, Lord Stoddart of Swindon, pointing out that the Bill simply does not send out the right message so long as it proclaims that marriage is no more than a piece of paper. The marriage which this Bill offers resembles closely the piece of paper which Neville Chamberlain held in his hand with such good intentions so many years ago.
§ Having said that, I have to say to the Committee that I find it difficult to support the amendments so far debated which have the effect of writing unilateral divorce on demand out of the Bill, were it possible to improve the Bill in some other way. It is another way of achieving that objective that I wish to address now.
§ We are aware that the Zeitgeist demands that anyone who suggests that the divorce process should be in any way extended is told that to place obstacles in the way of a speedy and harmonious divorce will damage the harmonious relationships between the former husband and wife and their future spouses, and their subsequent spouses and lovers, and will hurt all the children involved in the marital restructuring and what comes after. The answer to that is that if a divorce is capable of being harmonious, it will be harmonious. However, my amendment unfortunately does not address the case where a harmonious divorce is likely to be achieved. It addresses the case where, frankly, husband or wife drags his or her foot. The reason may be a good or bad one.954
§ In the language of the Zeitgeist it has to be bad. The Law Commission report and all that has followed make it quite clear that a husband or wife who does not wish a divorce is likely to be stereotyped as unreasonable, irresponsible or vindictive. From the other point of view, the party who starts the divorce process will be seen not as abandoning his family and marriage but as escaping from a loveless marriage.
§ In my submission, we would be acting with grievous injustice were we to legislate on the hypothesis that a husband or wife who expressed a wish that there should be no divorce were to be treated with contempt.
§ What of the children in all this? The period of uncertainty will be lengthened; the rancour may continue. But there will be a longer period in which the parties will have the opportunity to adjust to new residential and contact arrangements for their children, a longer period before the parties can enter into new marriages, and a longer period of adjustment for all concerned. Those may or may not be bad results. Against the spirit of the Bill, I would assert that the general rule should be treated as applying: that whatever is not done in a hurry is likely to be better done in the long run.
§ There is the important question whether the children will be unduly harmed by delay in the divorce. The issue has been raised from time to time. It comes back to the much more important question whether more harm is done by parental conflict than by divorce itself, because the effect of delay and uncertainty is only one aspect of the total effect of conflict.
§ At col. 824 of the Official Report yesterday I questioned the received wisdom which was put loosely because it is a complicated subject. The received wisdom is that the conflict causes more distress to children than the divorce. That proposition is put forward again and again in the White Paper and unidentified recent research is given as the authority for it. I asked my noble and learned friend at some point to provide chapter and verse to flesh out the assertions and I hope that he will do so in due course.
§ If we legislate for divorce on unilateral demand, however the proposals are wrapped up with pretty ribbons and pious protestations that the proposals are supportive and not destructive of marriage as an institution, we shall paradoxically create a situation where we simultaneously destroy the institution of marriage and destroy the need for any legislative framework for the ending of civil marriages. For if marriage is to be no more than a piece of paper, a casual short term contract, who, I ask, will need the right to divorce? All that it will achieve is the right to contract another similar marriage. More importantly, we also damage the incentive to enter into marriage and to undertake the good commitments which marriage should involve for couples who may be pondering between marriage and cohabitation.
§ The last point which I wish to make is one which I have made before. It is that although we cannot, by passing laws, hold marriages together, we can at least pass laws which provide a framework of support for marriage. For a couple embarking on marriage, unless 955 they are cynically uncertain of each other and themselves and of the likelihood of their being constant to each other and to their vows, it will be a strength to know that without mutual agreement neither can abrogate the marriage. There can be no abrogation of marriage on demand. In that way trust will be fostered and with trust there will be a better chance that the marriage will deepen and thrive. In the last resort, with that thought in mind, I beg to move.
§ 6.30 p.m.
§ Lord Monson
I could not possibly support the efforts of the noble Baroness, Lady Young, to lengthen the period proposed from one year to two, or even 18 months in all cases. Incidentally, I did not wish to interrupt her closing remarks on the previous amendment, but I believe that she was mistaken in suggesting that marriages could be terminated after one year under the Bill as it stands. As I understood the comments of the noble and learned Lord the Lord Chancellor yesterday, in responding to the amendment of the noble Lord, Lord Meston, no marriage could be terminated in less than two years from the date of the wedding.
However, there is something to be said for the compromise represented by the pair of amendments, Amendments Nos. 42 and 51. The occasions when one hitherto happily married partner in a marriage runs off with a younger person after many years, indeed decades of marriage, is by no means as infrequent as some Members of the Committee have suggested. A longer period would give more time for second thoughts and for disillusionment to set in in such instances.
But I wonder whether the extra two-year period suggested by the noble Lord, Lord Coleraine, goes a little too far. An extra 12 months would probably be adequate. However, having said that, I broadly support the principle of the amendments.
§ Baroness Young
I wish to speak briefly because this amendment is linked to those which we have just been debating. I hope that when my noble and learned friend replies he will consider this amendment—which addresses a slightly different point from those which I addressed—in the context of the whole issue of extending the time.
I understand the object of my noble friend Lord Coleraine. The amendment's effect will be to ensure that the period for reflection and consideration will begin only when the other party has been informed and notice has been served in accordance with the rules of the court. I hope that what I say is correct.
§ Lord Coleraine
I believe that the noble Baroness is addressing another amendment which still has to be moved.
§ Baroness Young
I apologise to the Committee. In the excitement of all the amendments and the amount of paper with which I am surrounded I made a mistake. However, I hope that my noble and learned friend will consider the amendment with the others.
§ The Lord Chancellor
I have addressed the principle of the amendment in what I said on the previous one.
956 I believe that there may be special circumstances where the parties do not both accept that the marriage has broken down. Merely to make consent vital within the period is to ignore the nature of marriage as requiring continued commitment. It seems to me that the responsibilities associated with marriage require to be carefully considered.
Is it suggested that in the non-consent case the period of three years will realistically be taken up by a kind of consideration? I do not know how likely that is. If the period is reasonable for consent, how does it become too short for considering matters where the parties do not consent? I understand that in some circumstances the settlement of outstanding issues between the parties may take longer than a year. Where there is no consent that may be so, but the present provisions in the Bill try to take account of that. I do not understand how a different period for cases of non-consent is justified by reference to what would take place in the longer period.
My noble friend asked about the basis for various matters referred to in the White Paper. At this stage in such a debate it is important to focus on the point which appears to me to be vital. It is that unnecessary trauma introduced into the divorce process is damaging or apt to be damaging to the relationship between the parents being divorced and the children. Therefore, it is not directly relevant to consider other matters. We are discussing what the divorce procedure should be and in that context it appears to me that the evidence shows that the relationship with both parents is important after the divorce. It is vital at this stage that we do nothing to damage that, on the assumption that the divorce will take place.
For that purpose, one compares the situation of two families, both of whom have been divorced in different situations. The first is where the divorce process has generated unnecessary conflict between the spouses. I am not saying that there will not be conflict, trauma or bitterness between the spouses. If we compare the situation where the divorce process has generated unnecessary conflict between the parties with the situation where it has not, the relationship between the parents and the children after the divorce is likely to be better in the case where there is no unnecessary trauma than in the first example.
I do not wish to quote all of the evidence on this matter, but I refer to the Exeter Family Study to which repeated reference has been made. The situation of conflict is described in the following way:The data from this study shows that the particular outcomes measured for the study children tended to be worse in intact families with high levels of conflict between the parents than in families where conflict levels were low. In agreement with nearly all other studies, the data also suggests that violence in the family has a strong association with low self-image and other poor outcomes. It is likely, moreover, that both conflict and violence are under-reported in the intact family group.In this study, however, it was possible to compare the effects of family disruption on children in re-ordered families with those of conflict and/ or violence on children living in intact families. From the multivariate analysis carried out, it appeared that the most significant factor of those examined was the re-ordering of the family—the loss of a parent on one or more occasions—rather than the presence of serious conflict or violence that was most closely associated with children's poorer outcomes as measured. This is 957 consistent with a recent study in Oregon, which found a cumulative and linear relationship between behavioural measures in a group of boys and the number of family transitions that they had undergone. In the present research, violence in the past relationship between the child's biological parents was reported by seven out of 19 resident parents in the re-disrupted families".I continue:Meanwhile, it is clear from previous work that it is not the loss of a parent per se that appears to be associated with a poor outcome. The outcomes associated with loss of a parent by marital breakdown are different and generally more adverse in the long-term than those associated with bereavement.It is also clear that where major conflict and intra-family violence has been a feature of the marital relationship, the act of separation is often accompanied by immense relief for those who have been the victims or observers of the violence. It would follow from an understanding of the psychological processes involved that the children would experience a stability after the ending of a violent parental relationship which would enhance their well-being, at least in the short term. But the response is complex. Children's relief is also often tempered by concerns about the non-resident parent who may, or may not, have been violent to the child and may, or may not, have been a 'good parent'. The importance of the relationship with the non-resident parent, usually the father, has been written about extensively, particularly by Richards [and others], and is confirmed by the data from this study. Children expressed concerns about the non-resident parent being on their own and not having anywhere to live. Children were also concerned if contract arrangements were nebulous, and did not always find it easy to discuss the concerns for one parent with the other. Richards' study underlines the importance to the child of the biological parent, whether the family live together or not".I cannot read out the whole of the report because it is obviously lengthy. I should like to read just one other. passage on pages 57 and 58:What the data does not show, however, and did not set out to demonstrate, is whether the outcomes would have been better if parents in unhappy marriages had stayed together 'for the sake of the children' instead of separating".There is a lot to study in the report, but I take from it the important point that where divorce is postulated a good relationship with both parents should subsist after the divorce, and everything that we can possibly do to secure that is well worth doing.
§ Lord Stoddart of Swindon
I am interested in what the Lord Chancellor has just said. I shall have to look at the quotations from the Exeter report. They appear to give support to the amendments that we are now discussing. I should like to reiterate what I said yesterday about the family and agree with what the noble Lord, Lord Coleraine, has said today. The important point with which I and the noble Lord are concerned is that marriage is a contract between two people and made before people. It is a contract which they have freely entered into, and presumably it is one that they mean to keep. What concerns me, and I believe many other noble Lords, is that one party can unilaterally abrogate the contract no matter what the circumstances.
There are circumstances in which delay is desirable and will save the marriage. My present marriage has lasted 35 years, and a very good marriage it has been. Undoubtedly, one passes through various periods when one feels that one has had enough of it and it is time to 958 go. (I do not speak here of my own marriage). After a little while things may get better and the parties may say thank God they did not take the final step.
There are periods in people's lives when their health is different. There are periods in women's lives which are extremely difficult and need to be sympathetically dealt with. Where only one party to the marriage has expressed a desire for a divorce, sometimes for his or her sake it is better if the other party, who perhaps has had years of experience of living with that person, says that he or she does not want that to happen in such a short period as a year. This amendment is helpful because it will extend the period so that a party who says he or she wants to end the arrangement into which he or she has freely entered is given the opportunity for second thoughts.
Time is very important. I believe that the year's notice is insufficient, certainly where only one party has given notice. We have already heard the argument about whether a year is sufficient if both parties are agreeable, but in the case of one party I believe that one year is insufficient. There is no time for various ideas to be worked out, and it is not fair to the other party anyway. I believe that these amendments should be supported.
§ Lord Elton
We went over this ground, or ground very much like it, at great length earlier. Therefore I shall be very brief. I regret that my noble friend did not join these amendments with the others in the last group. These amendments are addressed to the particular case where one party to a marriage suddenly decides to rush off. We have had some wonderful illustrations of how this may happen. Suddenly one party is smitten by another attractive party and wishes to leave the marriage in a hurry with the other party left behind grieving over the marriage and not accepting that it was over. My noble friend's amendment would make an opportunity for the unwilling partner to force a slowing down of the period, during which the departing party might be persuaded to have a change of mind.
As I understood my noble and learned friend, he argued against that principally because it was against the interests of the child to protract the process. I did not hear him address the question of whether the interests of the child nevertheless might be greatly served if the extended period resulted in a reconciliation. I believe that his argument was merely that if it had not worked in one year one could not tell that it would work in two. I feel sure that I must have misrepresented him and wonder whether he could just elucidate that point.
§ The Lord Chancellor
I am not aware of any body of opinion expert in this area which suggests that after a year has passed the probability of anything in the way of a reconciliation would arise. In other words, it is not in any way established that lengthening the period beyond a year is likely to increase the chances of a reconciliation. As I said, it is a matter of judgment. That is why I feel that there may be special circumstances in a particular case to which the court should have regard. But I do not believe that as a general rule it follows that reconciliation is likely to be assisted by going along 959 with a period of more than a year. I do not see that the question of whether or not the parties are consenting or in any kind of agreement affects that.
§ Lord Coleraine
I am grateful to all those who have spoken in this short debate. I did not feel that the answer given by my noble and learned friend to my noble friend Lord Elton was persuasive. I introduced the amendment as a focus for discussion. I do not propose to go over the ground again. I just wish to thank my noble and learned friend for his answer to the question that I raised yesterday and again today; namely, what is the recent authority for the proposition that, in general, conflict affects the children much worse than divorce and separation?
He has now told us that the authority is the Exeter Family Study. I found that surprising but I shall read all the extracts from the study that he quoted to us. Indeed, I shall read certain parts of the study which he did not quote. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 44 not moved.]
§ The Deputy Chairman of Committees (Baroness Serota)
I must tell the Committee, in calling the next amendment, Amendment No. 44A, that if the amendment is agreed to, I cannot call Amendment No. 45.
[Amendment No. 44A not moved.]
Lord Coleraine moved Amendment No. 45:
Page 4, line 16, leave out ("is received by the court") and insert—.
("(a) is received by the court, where both parties have made the statement, or
(b) is served (in accordance with rules of court) on the other party, where only one party has made the statement.").
§ The noble Lord said: This is a very simple amendment. We learned yesterday that the statement which has to be made will be served on the other party. At present, the Bill provides that when the statement is put into the court the period for reflection and consideration then commences. It seems to me, as a matter of common sense as well as practicality, that the period for reflection and consideration should be a full 12 months. That is obviously achieved when the statement is made by both parties; but when it is made by only one party it cannot be achieved unless the period starts when the other party receives the statement from the court or whoever is charged with serving the statement. I beg to move.
§ Lord Meston
I speak briefly in support of the amendment. It seems to me that the noble Lord, Lord Coleraine, has an important point. If time is to run from when the statement is simply lodged with the court, rather than when it is received by the other party, it may mean that the period of 12 months is abbreviated for the other party if the process of service, for whatever reason, takes longer than would normally be expected. Therefore, I hope that the noble and learned Lord the Lord Chancellor will consider this amendment or one like it.
§ The Lord Chancellor
This point was raised in somewhat the same form this afternoon by my noble 960 friend Lady Elles. I certainly indicated then, and I am happy to do so in answer to my noble friend's amendment, that this is a matter that I should wish to consider. The rules will certainly provide for service and it may well be that in some circumstances at least there should be an adjustment in respect of the nature of the service. I should want to consider those two matters together. I am grateful to my noble friend for raising this issue.
§ Lord Coleraine
I am grateful to my noble and learned friend for his comments. I understand him to say that whatever is done with respect to the point that I raised will be on the face of the Bill. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 46 not moved.]
§ Lord Irvine of Lairg
Perhaps I may ask the noble Baroness, Lady Trumpington, whether it is wise to embark upon the discussion that we shall have on the next amendment, Amendment No. 47, with the extent of discussion that I anticipate going into the dinner hour. I am well able to move it and I am in the Committee's hands.
§ Baroness Trumpington
On Tuesdays, the dinner hour starts at half-past seven, if possible. If the noble Lord feels that he can deal with the amendment in just over half an hour, that would be great.
§ 7 p.m.
Lord Irvine of Lairg moved Amendment No. 47:
Page 4,line 16, at end insert ("except where subsection (8) applies").
The noble Lord said: I can deal with this amendment in a few minutes. What I had in mind was the interest which my observations might attract elsewhere in the Committee rather than my own efforts in delaying the proceedings. In moving this amendment I shall speak at the same time to Amendment No.61. Amendment No. 61 is the important amendment, under which it is proposed that,
The court shall have the power to abridge the period for reflection and consideration … [provided that] the requirements of Clause 2(1) are satisfied and the court is satisfied that it is necessary in the interests of the parties or of any relevant children to dissolve the marriage before such period [of one year] has elapsed.
§ I make the observation that there is great merit in a year for reflection and consideration. As I have said before in Committee, marriage should not lightly be undertaken nor should it lightly be set aside. Before I put the argument as to why there should be a discretion for the period of a year to be abridged it is worth observing, contrary to what has frequently been said in this Committee—namely, that this Bill will make divorce easier—that this Bill will make divorce harder to obtain in the great majority of cases in the sense that it will require a mandatory period of a year for reflection and consideration before a divorce application can be entertained.
§ On the first day of Committee I described how 75 per cent. of divorces are "quickie" divorces, granted within a few months of the divorce petition. I argued 961 that a mandatory year for reflection and consideration during which mediation takes place is much more seemly than the conveyor-belt process of the current divorce law which the Bill replaces.
§ I echo the observation of the noble and learned Lord that fault-based divorce or an excessive period for reflection and consideration beyond what is reasonably required for that purpose is productive of stress and trauma; it is damaging to both parents and children and serves no sensible purpose. It is said that if a longer period were stipulated, people would take their obligations more seriously. That is not a proposition which appeals either to reason or common sense. As the noble Lord, Lord Elton, said on a previous occasion, we must address the world as it is and not as it ought to be.
§ The corollary of arguments of that kind is that the more difficult we make divorce to obtain, the stronger will the institution of marriage become, with the logical conclusion—which only needs to be stated to be rejected—that if we make divorce impossible, then marriage will become stronger than it could be in any other circumstances.
§ It would be a pity if the vast improvement which the Bill signals—that is to say, a mandatory year for reflection and consideration—were made unusually restrictive by robbing the judges of any discretion to do justice in the rare cases where a divorce should be granted before the expiry of the 12-month period. At the risk of wearying the Committee, I shall repeat the example I gave on Second Reading because it is a. telling one.
§ A man who was separated from his wife more than 10 years ago was diagnosed in February of last year as dying from cancer. He and his wife had not divorced; neither of them had seen any need to do so. He was living with his new partner. She became pregnant. He wanted, so far as he could, to provide for her and their child after his death. His lawful wife was entirely supportive. She too was living with a new partner.
§ The lawful husband had substantial pension policies. Within a few months he was able to obtain a divorce from his wife with her full agreement and of course the co-operation of the courts. The divorce was finalised in June of that year; he died in September. His new wife now has the benefit of a widow's pension under his occupational scheme, to the great benefit of not only herself, but also of their child. Happily, the child was born last summer.
§ I observed on Second Reading and repeat, that I shall be more than surprised if the noble and learned Lord thinks other than that the courts should be given flexibility to grant divorces in less than one year in genuinely unusual and special cases. I hope Members of the Committee will find that to be a compelling example. It could be said that the couple should have divorced earlier and in a sense therefore they were the authors of their own misfortune. No doubt that is true; but they did not. I say it would be extraordinarily harsh to say that they have only themselves to blame. I say that no court should be prevented from doing justice in such an exceptional situation.962
§ I hold to the view to which not all those who are presently Ministers of the Crown subscribe; that is, our judges are to be trusted to do justice in exceptional cases where it is necessary in the interests of the parties or the children so to do. The noble Lord, Lord Meston, who knows much more about this in practice than I do, will confirm that the whole ethos of the family judges is overwhelmingly child-centred. Over the past 20 years they have developed a sensible and highly sophisticated approach to the repercussions of failed marriages. They should be trusted with the discretion which the amendment would give them.
§ My Amendment No. 102 is not grouped with Amendments Nos. 47 and 61; it is to be found tucked away in another over-heavy and unhelpful grouping with Amendments Nos. 97 to 117. I mention it because I accept the corollary of the amendment which I am presently moving. Amendment No. 102 is intended to be the converse of Amendment No. 47. Just as the courts should have discretion in exceptional cases to abridge the year for reflection and consideration in the interests of justice, so also, I accept, they should have the same discretion to extend the period where justice so requires. I do not shrink from the proposition—I do not believe that the noble and learned Lord does; on the contrary—that divorce should be made harder to obtain; that it should take longer than one year where justice so requires.
§ The noble and learned Lord, in responding to a number of amendments tabled by the noble Baroness, Lady Young, indicated that, whereas in his opinion one year is right in the generality of cases, special cases where a year may be too short should properly be dealt with under the vehicle of Clause 10. I agree with that. We have not yet come to Clause 10. By parity of reason, I believe that the law should be flexible enough to allow for unusual special cases where one year is too long.
§ Why is a year always right as a minimum? Why may it properly be lengthened under Clause 10 but, if the amendment is to be opposed, never abridged in special and unusual cases? I believe that there should be flexibility both ways and that judges should be trusted to identify those unusual and special cases where one year is either too long or too short. I beg to move.
§ Lord Simon of Glaisdale
The noble Lord, Lord Irvine, asserted that we do not make marriages stronger by making divorce more difficult. Even if that were the whole truth, it would not follow, as he implies, that by making divorce easier, we do not make marriages weaker. All the evidence is to the contrary, particularly from 1969, and there is the astonishing jump of 44 per cent. in the number of divorces, and therefore in the number of children affected, as soon as the Act came into force. It was not a sudden surge of backlog; on the contrary, the increase continued from that point at the preceding rate on average of 1 per cent. a year. That is 1 per cent. compound interest, so to speak.
There is also the graph that followed. Just as the divorce rate increased so concomitantly did the rate of marriage decrease. Although they do not appear in the same statistics, perhaps the right reverend Prelate will have in mind concomitantly, too, that the rate of church 963 attendances also decreased. The other graph that one can consider shows that not only did the divorce rate increase but so did the number of one-parent families and illegitimacy.
At an earlier stage the noble Baroness, Lady Seear, was inclined to doubt my assertion that the 1969 Act had had that effect. She denied, in effect, that it was propter hoc, it might have been post hoc. She quite rightly instanced the influence of the increasing economic emancipation of married women, and that is undoubtedly a factor. However, married women did not suddenly become 44 per cent. more emancipated in 1971.
There is also the comparison with Europe. Our divorce rate is higher than any in Europe and about double their average. In Europe, too, married women became economically emancipated. The noble Baroness was quite right in saying that that is a factor. There are others such as the fact that we have become more divorce-minded as a result of the war. The increased mobility of the population is another cause and no doubt also the increased use of contraception, removing part of the menace attendant on adultery earlier than that.
The noble Lord, Lord Irvine of Lairg, very bravely asserted that he was convinced that the rate of divorce would decline as a result of this measure. He was thereby much braver than my noble and learned friend the Lord Chancellor who was extremely cautious when interrogated by the noble Lord, Lord Stoddart, to that end.
§ Lord Irvine of Lairg
I hate to intervene, but believe that the noble and learned Lord will accept, when he reads Hansard tomorrow, that I made no assertion about the divorce rate lessening.
§ Lord Simon of Glaisdale
If the noble Lord says that, naturally I accept it: I did not make a note. I am riot a betting man—or, more truthfully, I am no longer a betting man—but I am willing to have a small wager with the noble Lord, Lord Irvine, that the effect of this measure will be an increase in divorce. I am willing to have that bet with others. Perhaps the noble Baroness, Lady Faithful!, would care to take it up. I do not suppose that my noble and learned friend would be willing.
§ 7.15 p.m.
§ Baroness Young
I am sure that the noble Lord, Lord Irvine, will not be surprised to hear that I am unhappy about this amendment because, having moved amendments which would have lengthened the time, conversely I am, of course, unhappy about the amendment shortening it. As regards amendments which I moved earlier, I believe that the noble Lord said that he would not want it to be thought that if he was going to lengthen the time the amendments would necessarily shorten it. That is a very important proposition just as it is a very important statement that the noble Lord, Lord Irvine, made about these amendments.
He quoted once again the "quickie" divorce, which occurs all the time. The figures which I have on this matter need consideration. If I am wrong perhaps someone will correct me. At present about three-quarters of all divorces 964 are based on fault. Of those, 30 per cent. are completed in under six months, but 26 per cent. only if there are children under the age of 16. Twenty four per cent. of the divorces take over one year and 26 per cent. if there are children under the age of 16. Those statistics come from the OPCS Table No. 21, Table 4.7. Twenty six per cent. of all divorces currently are based on separation, which takes two years.
We need to see in proportion the number of "quickie" divorces. They do not generally occur where there are children. Only 15.9 per cent. of all divorces take place in under six months where there are children under the age of 16 years. Again, these are OPCS statistics.
What worries me much more about the noble Lord's amendment is that it is chipping away at the one-year period. The noble Lord said earlier that in his judgment a year was right. We could debate that for a long time. Now he is saying that there are, of course, a number of cases where a year is too long and that it should be shortened.
§ Lord Irvine of Lairg
Does the noble Baroness accept that in her amendments she proposes that in the generality of cases a year should be extended in certain circumstances to two years or even to five years. Does she appreciate that my amendment says nothing about the generality of cases. It accepts that a year is right in the generality of cases. I accept that, but she does not. All that this amendment is proposing is that in exceptional cases the court should have power to abridge the year just as the noble and learned Lord has indicated that he believes it right that in exceptional cases one year, which is correct in the generality of cases, should be capable of being extended to meet the needs of special cases.
§ Baroness Young
Perhaps I may answer that particular point. I believe that the one-year period should be extended as a matter of principle. I have said that a year is too short. I agree that it is a matter of judgment. We shall come back to consider that again and I shall not repeat all the arguments now. For those reasons I believe that to shorten the period would send out an even worse signal to everybody. We are left with all sorts of circumstances to be decided by a judge. This amendment is chipping away at the year. The next time that we have a piece of divorce legislation, it will become easier still and the year will be shortened. We are on a slippery slope.
In principle, I am unhappy about allowing a court to abridge the year. Indeed, I very much support much of what the noble and learned Lord, Lord Simon, said on that. None of us can tell what the outcome of this measure may be, but if the history of other divorce legislation is anything to go by, we know as an absolute fact that every single piece of divorce legislation has been followed by an increase in the number of divorces. Nobody hopes more than I that that will not be the case with this Bill, but I am bound to say that history is not on the side of those who think that there will be fewer divorces as a result of this legislation.
§ Baroness Hamwee
I do not think that any of us is standing on our dignity in this Committee. However, I wanted to support the noble Lord, Lord Irvine of Lairg, in Amendment No. 61. In doing so, I confess that it is a better amendment than my amendment, Amendment No. 50. Perhaps I may put my arguments on the next group in this debate, and refer also to Amendments Nos. 48 and 49 which stand in the name of my noble friend Lord Russell.
I support Amendment No. 61 because of the exceptional nature of the circumstances to which it refers. The amendment provides that the court must be,satisfied that it is necessary in the interests of the parties or of any relevant children to dissolve the marriage".As I read the amendment, that is a high barrier to overcome. If the amendment were to be agreed, I am sure that the court would exercise that discretion quite sparingly. The Committee will not have needed to be reminded of the moving description given by the noble Lord, Lord Irvine of Lairg, on Second Reading. The circumstances which would meet the criteria in this amendment must be rare and terminal illness is perhaps such a circumstance. However, the provisions could apply also in immigration cases where unmarried partners are proposing to move to another country.. I suspect that that situation might not meet the criteria, even though the couple had to be married in order to fulfill the immigration requirements.
My noble friend Lord Russell referred to domestic violence in his amendment. Again, that is a special situation, but not a rare one. The noble and learned Lord the Lord Chancellor referred to the Exeter study, from which I gleaned that it is right to give the court the discretion to consider the particular circumstances of a case. Although the benefits to a child of the parents remaining together (even where there is domestic violence) might be more than those that would appertain if the parents separated, there may be circumstances in which it would be better if the divorce process were to go forward. In cases involving domestic violence, the partners may have been separated for some time before getting together again. That is a pattern in marriages involving violence. The wife often tries very hard, principally for the sake of the children, to make a go of the marriage and may return home on many occasions before deciding that the marriage cannot be made to work. Where a spouse—usually a wife—has suffered domestic violence, a good deal more reflection and consideration may already have been given to the position before the formal period starts than might be the case in other marriages.
§ Lord Monson
Having supported the noble Lord, Lord Coleraine, in his amendments, I do not think that I am being at all inconsistent in supporting the noble Lord, Lord Irvine, in his. I refer particularly to Amendment No. 102 which we shall be considering 966 later. Surely flexibility in legislation is always better than rigid inflexibility. After all, we are talking about exceptional cases.
§ Lord Beaumont of Whitley
I support the amendment of the noble Lord, Lord Irvine, but wonder whether the drafting of Amendment No. 61 needs to be reconsidered. I do not have any solution to the problem that I am raising, but I think that it is a very real problem. The amendment states:if … the court is satisfied that it is necessary in the interests of the parties or of any relevant children".I understand why the amendment has been drafted in that way, but under those provisions as drafted would it not be possible for the court to decide that it was necessary to dissolve the marriage in the interests of the parties although that was not necessarily in the interests of the relevant children? I am not saying that that is what will happen, but that is how it appears to me. I am sure that it will be possible to draft the amendment slightly differently to obviate that happening.
§ The Lord Chancellor
On reading the amendment, I think that it would have the effect which the noble Lord, Lord Beaumont, mentions because it states:it is necessary in the interests of the parties or of any relevant children".I believe that that is what would happen.
The purpose of the year is to provide a period for consideration and reflection which can be used to demonstrate that the marriage has irretrievably broken down. I believe that that is the minimum period required for that purpose. It is possible to instance hard cases and the noble Lord, Lord Meston, gave an illustration of his unhappy time in the divorce courts. That example of where the five-year period had not expired was unfortunate in the circumstances of that case.
My feeling—it is quite a strong one—is that in order to ensure that a marriage has indeed broken down before a divorce can be granted, it is necessary to provide a period for reflection and consideration. That is stipulated as the general period. If no improvement takes place in the relationship, it may be right to extend the period in certain circumstances and the provisions are drafted to allow for that. I do not think it right to make a provision that would shorten the period because I think that it is necessary to send out the clear signal that marriage is an important relationship and that a year is required before it can be dissolved once one or both of the parties has initiated the necessary procedure.
The statistics show that in 1993 there were 26,162 divorces in which children under 16 were involved which took under six months; and there were 45,814 which took between six and 12 months. So the overall number involving children in one year amounted to 71,976, whereas there were 22,703 involving children which took more than a year. It is interesting to note that there were 26,690 cases in which no children under 16 were involved which took under six months.
Reference has been made to the quickie divorce. I want to make it clear in relation to that matter that my fundamental point about fault-based divorces under the present law is that, by the very nature of things, there are more fault-based divorces than divorces which are 967 not based on fault. That is what I regard as the entirely inappropriate signal being given about the state of the divorce law. The fact that they take less than a year is of course an additional factor. That is the primary way in which I look at the matter.
I do not know that I want to go into details about how divorces have been affected by different legislation. I do not believe that it is possible to use history to show what the effect of this legislation will be. It is wise to consider many matters other than the precise change in the divorce law when one looks at the past. In the meantime, I am of the strong view that a minimum period for consideration and reflection is necessary to show that the marriage has irretrievably broken down. That minimum period is judged, rightly, to be one year. It would not be appropriate therefore to give the court power to abridge it.
§ 7.30 p.m.
§ Lord Irvine of Lairg
I appreciate of course that it is well possible to take the view that a year for reflection and consideration is always necessary to establish that a marriage has broken down. I had hoped however that the noble and learned Lord might have thought that the rigidity, the absoluteness, of that position might yield to a unique and highly meritorious situation, but it would seem not. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness Trumpington
I beg to move that the House be now resumed. Perhaps I may suggest that the Committee stage begin again at 8.35 p.m.
Moved, That the House be now resumed, and that the Committee stage begin again at 8.35 p.m.—(Baroness Trumpington.)
§ Lord Simon of Glaisdale
The Government will, I believe, concede that they owe a duty not only to themselves to get legislation through this place and through Parliament, come what may, but also to pay some regard to those Members of this place who are concerned about a very important measure. It would be greatly for our convenience if the noble Baroness could indicate at what time the Government propose we should rise this evening. Last night it was a quarter to 11. I trust that it will be nothing like that this time.
§ Baroness Trumpington
The matter is very much in the hands of the Committee. We have now been discussing the Bill for three days from 3 o'clock. On the first day we did five amendments. We are now still on page 4 of the Bill. We must get on with the Bill. I can make no promises about time. Apart from anything else, it is not in my gift to do so. We must get on with the Bill.
§ Lord Simon of Glaisdale
I think that the noble Baroness will admit that no time has been wasted. We have gone on in a measured way taking amendments. There has been nothing in the nature of a filibuster. That would in any case be contrary to the practice of this place. The practice is to allow the Government to get their business, but, reciprocally, the Government must give us time to discuss their legislation. This is most unsatisfactory.
§ Lord Graham of Edmonton
The noble and learned Lord is right, the Government are entitled to get their business eventually. Before the stages are mapped out, consultation takes place through the usual channels. The Labour Front Bench accepted the logic that four days should be set aside for the Committee stage of this Bill. It is—
§ Lord Graham of Edmonton
I shall continue. This side agree that four days are sensible. If there is a contrary view, no doubt the noble and learned Lord will make his view known to the Government Chief Whip. He has done so. He has more than once raised the issue of what is an appropriate day's work. The Labour Benches are flexible. We certainly subscribe to the noble and learned Lord's view that this place should not sit late, but if by not sitting late the timetable slips, then we are prepared to consider, periodically, how best to catch up with the timetable. All I can say is that I do not detect any sign that we are likely to rise as early as a quarter to 11 tonight. If that is the case, we on these Benches will reluctantly subscribe to the view that if we need to go beyond 10.45 p.m. we are prepared to do so.
§ Baroness Trumpington
Perhaps I may say how much I appreciate what the noble Lord, Lord Graham, has said. If the noble and learned Lord, who is unhappy about the position, feels that he would like to continue the conversation, may I suggest that he continues it with the usual channels and not in the Chamber, where the dinner hour, or pleasure, Motion has already been moved.
§ On Question, Motion agreed to.
§ House resumed.