HL Deb 25 January 1996 vol 568 cc1129-78

3.39 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.


Clause 14 [Financial arrangements]:

Baroness Hollis of Heigham moved Amendment No. 153A:

Page 8, line 21, at end insert ("and (c) to enable property adjustment orders to make provision as to pension benefits").

The noble Baroness said: In moving Amendment No. 153A I shall speak to the substantive Amendment No. 203C and to the consequential Amendment No. 212AC, which stands in my name and the names of the noble Baronesses, Lady Seear and Lady O'Cathain, and the noble and learned Lord, Lord Simon of Glaisdale.

I do not propose to describe the amendments in detail. If the Committee agrees, I shall instead try to argue the issue in the hope that the amendments will attract the support of the entire Committee. When we discussed the Pensions Bill last spring we tried to make more equitable the financial provisions of divorce. Now we are dealing with a family law and divorce Bill in which we are trying to make more equitable the financial provisions of pension.

Why do we need to revisit the issue? Last spring there was wide agreement in the House, when we discussed pensions, that they were part of matrimonial property. The husband may have earned it—let us assume for these purposes that he is the pension holder—but the wife, in bringing up the children, supporting the husband and taking a range of part-time jobs to add to the family budget, has contributed her share too. Until last spring, however, even though a pension might be the largest financial asset in the marriage, she was entitled to none of it.

Clearly, when you are trying to settle financial matters at the time of divorce, if you ring-fence as untouchable the largest single asset then possible injustice follows. And it did. Countless women wrote to your Lordships—especially to the noble Baroness, Lady Young—describing the destitution into which they had been plunged.

In the Pensions Bill, your Lordships decided two things. First, that courts must take pensions into account on divorce and, secondly, that they could do this either by offsetting it with other assets, if there were enough of them, or by earmarking, that is deferred maintenance. splitting the flow of pension income when it comes to be drawn at retirement. I am sure we would all like to pay tribute here to the noble Baroness, Lady Young, who fought so stoutly for an amendment that attracted the entire support of the House

Noble Lords

Hear, hear!

Baroness Hollis of Heigham

It was also agreed at that time that earmarking or deferred maintenance should be paid through the pension fund, rather than separately by the husband, to avoid pensioners having to pursue the issue through the courts.

These were good and valuable changes made by the whole House which were especially helpful to older women—women in their late 50s—who have too often written to us to say that they have been traded in for a younger model.

But deferred maintenance or earmarking has, as we now know, two great drawbacks. The first is that the wife's pension maintenance depends on the husband. It is a gamble. If he retires early she has less income; if he retires later she has to wait longer for it; if he dies early, she may get nothing; and when eventually after retirement he does die, she will get nothing.

Let us say that he is three years older than she. He dies at 80 and, unfortunately, she dies at 85. For 15 years after reaching pension age she will have had an adequate pension. Then, when she is 77, he dies. For the last eight years of her life her pension have vanished, because he has gone, and she will be forced onto income support at a time when she is increasingly frail, needs more home help, extra heating and perhaps more nursing. A frail, elderly lady is forced into penury, through no fault of her own, because deferred maintenance—though suitable for many couples—is a lottery on his life. That is no way to live.

The second difficulty with deferred maintenance is precisely that: it is deferred until retirement. A couple may divorce in their 40s, and that means that for the next 40 years their financial lives remain entangled, even though it may have been clean and decent for both of them to have had the opportunity of a clean break. With deferred maintenance they cannot do so. They have to keep track of each other and the pension scheme has to keep track of them both.

May I urge a third option which does not just offset assets against each other, if you are rich enough, and not just defer maintenance, which splits income at retirement if you are elderly enough. We need the third option of pension splitting, that is splitting the capital at the point of divorce, so that each party has the core of a pension on which to build while they continue in work, keeping both of them off poverty in old age and allowing both of them to get on with the rest of their lives. It is clean, it is decent, it is simple and it is fair. It is supported by every organisation that I am aware of which has an interest; by the entire pensions industry, by accountants and actuaries and professional associations, by business and industry led by the CBI, by the law societies and family solicitors societies, by organisations representing the elderly, such as Age Concern, and organisations representing women, from business and professional women's organisations to Fair Shares and the Mothers' Union itself. If then it is fair, and if it is, as I have suggested, so widely supported, why did the Government then resist splitting pensions? The Government gave, basically, two financial arguments. But those arguments no longer apply, as the Government concede.

The first argument was that it would cost the Government, as employer, £500 million a year if the departing spouse took her share of the pension out of an unfunded Civil Service scheme. The way to deal with that real problem is that in any unfunded scheme—the Civil Service scheme, for example—both fractions of the pension remain within that scheme and are not taken out until, or if, the pension earner transfers out or retires. That way there is no real cash outflow and, therefore, there is no cost to government as employer. The problem goes away. In good schemes—as the Civil Service scheme is known to be—most people would wish to keep their pensions there. Such a small restriction on Civil Service and unfunded schemes is a small price to pay for broad justice for the rest of our working people who are in occupational and private schemes. That was the first of the Government's argument, and we can show a way of addressing it which produces no cost to government as employer.

The Government's second argument was the cost to the Government as tax raiser. The Government, in this House, argued that tax allowances and fiscal drift would in 2037 cost —300 million. By the time it went to the House of Commons, the Treasury figures had become —200 million a year. Now the Treasury has conceded, in its Written Answers to myself on the 9th and 15th January, and in the House of Commons on 15th January, that in the year 2020–25 years from now—the cost to the Treasury in loss of tax will be £80 million, offset, says the Treasury, by savings of £70 million in income support, together with something in the region of £10 million in court costs and legal aid. In other words, costs of £80 million, savings of £80 million, cost to the taxpayer nil. Those are not my figures but Treasury figures, and I apologise if they are very different from the Treasury figure of £300 million which was bandied around last spring. The Treasury, on its own information, now accepts that the true cost to public funds is nil.

Last spring we did not, as some of us would have liked to do, press this amendment to a vote because we respected Treasury information that has subsequently turned out to be—how can I put it?—less than complete. However, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Mackay of Ardbrecknish, did say at the time that we would have a second occasion on which to revisit this issue—that is to say, this Bill—and my faith in them, if not in the Treasury figures, remains unshaken.

I would expect pension splitting to produce some technical difficulties with SERPS and GMPs, but we have drafted amendments which could possibly overcome such difficulties. No one ever said that pensions would be easy. It is technically difficult—we all accept that—and we accept that any amendments we have drafted may be flawed. However, we have overcome the two major arguments that the Government used to stop us going down that route last spring. We now know that the remaining arguments are lesser and technical. They can and should be overcome and they can and would be overcome if the political will was there. If the department were asked to resolve those difficulties it would do so. I hope that that is what Members of the Committee will say today.

The amendments are not party political; indeed, I believe that there is widespread support for them in the Committee. Certainly, Members of all parties in this Chamber have expressed their support. They do not favour women over men or men over women. The provision would apply equally to both. Many men would prefer to keep some present assets—savings—and part of their pension rather than lose all their present assets to keep a pension which they may never live to enjoy. Moreover, the provision would not privilege divorce over marriage. That is an argument to which I shall return if necessary. Instead, it would stretch a pension that normally covers one household to cover two, thus saving us all money on benefits in the process.

We are talking about a set of amendments which are fair, decent, clean and simple. Indeed, it represents what couples and the courts want as an option; it is what every professional organisation wants; and, on the Treasury's own figures, it need cost taxpayers nothing at all. I truly believe that Amendment No. 153A is a win-win amendment. We do not always have the chance to do what is right, fair, popular and free. We can do so today. In so doing, we will float thousands of elderly people off the poverty line in old age. I beg to move.

Baroness O'Cathain

I rise to speak to the amendment to which I have attached my name. One of the most compelling issues as regards the amendment is the fact that it is fair and just, as the noble Baroness said. Moreover, from the point of view of business, it would also introduce a system whereby there would be a reduction in administrative costs. It would make the organisation of pension funds as regards trustees that much simpler in the case of divorce. The amendment does not actually support divorce; indeed, it supports the situation which arises after a divorce where there is a break-up of the assets.

The two ways currently available in the case of a divorce have their problems. The first is that pension rights remain undisturbed but the value is taken into account in the allocation of assets and the second is the method of earmarking part of the pension for payment to the time hence when it actually comes into effect. However, the proposed method of splitting the pension is really the most sensible and easy way.

In the case of earmarking, the arrangements require pension scheme administrators to store and update information about a non-member spouse throughout the period up to retirement. Incidentally, I should like to make the point that it does not necessarily mean that it will be the woman who will benefit. It could well be that the woman is the higher earner in the case of a divorce—indeed, such situations do arise. That period could he 20, 30 or 35 years. The administrators must then implement the split of the pension and the lump sum payments and make two monthly payments rather than one. While employers, especially the CBI, welcome the Government's willingness to take account of the employer's administrative costs in earmarking arrangements (the costs are borne by the divorcing couple) those extra burdens in terms of costs are quite unhelpful.

In effect, splitting would mean a one-off administration cost—that is, the calculation and implementation of the transfer payment—and that should not be too difficult. Employers generally regard that as preferable to ongoing record keeping, and so on. Employee relations problems may develop when scheme members find that they do not receive from their employer the full benefit that they expected because of payments direct to a former spouse. That situation would be obviated by the amendment. Indeed, such problems could be exacerbated where a divorce has been bitter. Employers are concerned to avoid involvement in the personal affairs of their employees and, unfortunately, earmarking necessitates such involvement. Again, splitting would allow the employer to make a single payment which would mean an end to contact with the employee's former spouse. Such an arrangement should minimise the danger of employee relations difficulties.

The amendment should also have significant advantages from the perspective of divorcing individuals. Splitting better satisfies the common desire to achieve a clean break, as the noble Baroness said. I say that because each former partner would have his or her own separate assets, whereas earmarking only comes into effect when the scheme member chooses to retire. That may not occur at a time convenient to the former spouse who may not want to begin receiving such payments at an earlier time or, indeed, may have needed such payments far sooner than when the spouse who is receiving the main pension actually received it.

The provision of splitting gives freedom both to the employer and to the individuals concerned. On that practical basis alone, I believe that the proposal has much merit. Indeed, if we add that to all the merits outlined by the noble Baroness, Lady Hollis, I believe that the amendment is one that the Government should take away and act upon.

Earl Russell

I should like to join the noble Baroness, Lady Hollis, in the tribute that she paid to the noble Baroness, Lady Young, for the distinguished work that she has done on the subject and for which we are all extremely grateful. I should also, if I may, like to extend that tribute to the noble Baroness herself for the work that she carried out on the Pensions Bill. Indeed, I am also most grateful to my noble friend Lady Seear in that respect.

Members of the Committee will have observed that I am not my noble friend Lady Seear. Unfortunately, my noble friend is, for reasons beyond her control, unable to be with us until some time around 5 p.m. this evening. Therefore, I have been appointed understudy and it is in that capacity that I now appear before the Committee.

We are discussing an immensely complicated subject. There is one major difficulty which I do not see how we can get around whatever we do; namely, that there is not enough to go around. However, I can see no reason whatever why one party—and I agree with the noble Baroness, Lady O'Cathain, that there is no reason why it should necessarily be the woman—should suffer all the hardship. There is a case for some fairness even in hardship. Therefore, the argument for some form of splitting is a very strong one. Indeed, in terms of moral equity, it is very hard to answer.

The problem that we have to consider is how that ought to be done. I do not believe that I need to repeat the criticisms of the earmarking procedure which both noble Baronesses developed most fully. But I must say that I particularly like the way that the amendment tackles the problem. It seems to me that it follows the principles of drafting set out by the noble Lord, Lord Renton, in the Renton Report, to which I have often paid tribute. It would allow for the statute to state a general principle and for the application of that general principle to circumstances which will be infinitely various to be a matter for the court.

One pension scheme is not like another. Moreover, as the noble Baroness, Lady O'Cathain, pointed out, one retirement age is not like another. It is one of our big difficulties that the retirement of one partner is no longer under the influence of the other after divorce. That is probably the biggest reason why we need outside involvement. There will be immensely variable situations; for example, the numbers of dependants, who may or may not be children of the marriage; capital; property; and inherited resources. Moreover, there are quite severe complications as regards valuing art collections for probate.

Therefore, it will be necessary to consider each case on its merits. If we attempt to legislate in too much detail, we shall run into all the problems that are involved in laying down a formula. I shall not bore noble Lords with my views on those matters. I support the amendment.

I am pleased that the noble Baroness, Lady Hollis, mentioned the saving of income support that results from the division of pensions. The amount of income support spent on topping up the state pension is considerable. I suspect that the amount spent in that regard in the age group 60 to 65 did not form part of the Treasury calculations.

I received a written answer this morning about the number of people over the age of 50 who have been out of work for more than 10 years. The figure is 2.5 million. There will also he a saving of income support in regard to that group. Many of them will have a spouse who is already beyond pension age. I should like to know whether the Treasury has taken that fact into account and reworked the figures and whether the saving is greater than it would otherwise have been.

Before returning to this matter at Report, I should be grateful to receive clarification; but in the meantime I support the amendment.

4 p.m.

Lord Simon of Glaisdale

As my name is on the amendment I should like to congratulate the noble Baroness, Lady Hollis, on the amendment and on the speech that she made in support of it. I should also like to congratulate noble Lords who also spoke with such knowledge and intelligence.

Many aspects of marriage fall for consideration under the Bill, but one which is particularly relevant to the amendment is the concept of the norm of traditional marriage as a way of working out the different contributions made by husband and wife, operating co-operatively by way of differentiation of effort in marriage.

The wife inevitably is the child bearer and usually the home-keeper. By reason of those activities, even if she goes back to work, she is at an economic disadvantage. By performing those functions she releases her husband to obtain an economic advantage. Frequently his emolument these days will be paid in part in the form of a pension for work he has done but for which his wife has released him. That is recognised by the widow's pension that is present in most occupational pension schemes. The wife, having made that co-operative effort in the division of labour, is entitled in justice to enjoy that pension. It would be an act of simple injustice if she were to be denied it, without compensation, and if it were to be carried away for the benefit of another woman. After all, divorce is a licence to remarry.

I use the words "without compensation" because the situation is solvable, though frequently with difficulty, when there are sufficient other assets to compensate the divorced wife for the loss of her widow's pension. However, that is not possible if there are insufficient other assets. In those circumstances, if we are to consider justice at all it is essential that there should be some way of securing for her the widow's pension, the earning of which became due to her at negation.

The problem was serious enough under the 1969 Act, but in that case the unilateral repudiation of marriage could take place only after five years. Minimal use has been made of that provision. Under this Bill the situation is far more serious: there is unilateral repudiation simply on one year's notice. The problem is infinitely exacerbated.

The noble Baroness, Lady Hollis, and the noble Baroness, Lady Young, fought valiantly on this issue when we debated the Pension Bill. We got nowhere. We were told that the problem was too complex, which we interpreted as meaning that the Treasury thought it would cost £300 million in loss of income tax. The noble Baroness and the noble Earl on the Conservative Benches have dealt with that aspect of the situation. The problem would be largely solved if one looked at the figures in the way they did under the amendment. The noble Baroness proposes a simple act of justice. There should not be unilateral repudiation of marriage merely on one year's notice, without cause and without facing the injustice that requires solution. I fully support the amendment and the remarks made by the noble Baroness.

Lord Stoddart of Swindon

I support the amendment for two reasons: it is eminently sensible and it gives me the opportunity of supporting my Front Bench on at least one occasion in relation to the Bill.

At the point of divorce it is right to see that the husband and wife are treated fairly. The noble Baroness, Lady O'Cathain, emphasised that point. My noble friend Lady Hollis assured me that the amendment would be equitable as between the sexes, husband and wife.

I am glad that the noble Baroness was able to deal with the Treasury opposition to this amendment concerning pensions on divorce. However, it is quite outrageous that the Treasury should use fiscal arguments to attempt to abort a measure which is so reasonable, sensible and fair. I hope that we shall not hear today that, because of the fiscal implications, a measure which is so sensible, fair and reasonable should not be agreed to.

I wish to ask only one question. What happens where there are second, third and even fourth marriages? I assume that the accrued pension contributions will then be split according to the length of that marriage. My noble friend Lady Hollis nods her head. I am glad that that is so because I believe that that is the only way it can be done.

I support the amendment. I feel quite confident that, whatever the Government say, the whole House—or most noble Lords—will wish to support it.

Lord Boyd-Carpenter

I am sure that my noble and learned friend the Lord Chancellor has noted that all speeches so far have been in support of the amendment. I wish to say at once that I, too, fully support it.

It is clear that the splitting of pensions is practical. There are complex details to he resolved. However, I think that I know the noble and learned Lord the Lord Chancellor well enough to believe that he is not the sort of person who relies on technical small details of this kind but is well able and well suited to understand the opinions held throughout the Chamber on matters of considerable importance like this. I very much hope that he will not disappoint those of us who do not wish to see this admirable remedy for certain troubles and difficulties frustrated. I hope that he will feel that it is up to him to deal with any minor technical problems that arise and that he realises that your Lordships' House in a matter of this kind is a very appropriate judge of the merits.

I add one further comment. I do not know whether my noble and learned friend has had time to read the clear report of the Law Society—it is not a body unduly tainted by sentiment—which has considerable knowledge of the practicalities involved. In particular, in the document that the Law Society circulated support is given explicitly to Amendment No. 203C which is grouped with this amendment. Perhaps I may invite the attention of my noble and learned friend and the Committee to the beginning of the Law Society's opinion. It states: The Law Society supports this amendment, because it provides a better way to ensure that women who previously had a good standard of living do not suffer poverty following retirement because they are unable to benefit from the former husband's pension". That seems to me a conclusive consideration. Members of the Committee will be well aware that in the affairs of today for many married couples the husband's pension is the main, almost sole, source of income apart from current earnings. The tendency has been—I speak with some experience having been Minister of Pensions and National Insurance for a number of years, as some Members of the Committee may recall—that for a considerable number of families the husband's pension is the main support for a couple in their old age. It seems absolutely right from the arguments so well put, if I may say so, by the noble Baroness, Lady Hollis, that where there is a divorce, unhappily and unfortunately, the pension should be split and there should be power in the relevant authorities to ordain an adequate and sensible splitting.

I hope that the noble and learned Lord the Lord Chancellor, with his very great knowledge of these matters and his humane sympathy with human problems and difficulties, will see his way to accepting the proposals contained in the amendment, if necessary at a subsequent stage of the Bill introducing any minor and technical repairs which may be necessary.

Lord Acton

The noble and learned Lord, Lord Simon of Glaisdale, described the amendment as a simple act of justice; the noble Baroness, Lady O'Cathain, described it as practical; and the noble Baroness, Lady Hollis, described it as clean, decent, simple and fair. I regard the amendment as so obviously sensible that I, too, support it; and I very much hope that the noble and learned Lord the Lord Chancellor will see his way to agreeing to it.

4.15 p.m.

Lord Dean of Harptree

I support the amendments in principle. I shall be extremely brief because the main arguments have been effectively deployed already in all parts of the Chamber. As the noble Baroness, Lady Hollis, said, there is little doubt that the Pensions Act 1995 was a big step forward from the previous position. However, as one reflected on that position, it seemed clear that it did not go far enough. The earmarking has definite difficulties—this is not the only difficulty—in particular for the older divorced woman, and it can create uncertainty.

When we discussed the prospect of a clean break option in debate on the Pensions Bill, there appeared at that time to be a number of considerable difficulties which had not yet been overcome. Some were technical, some related to costs. It appears from what has been said in the Chamber this afternoon, and from the briefing material from the Law Society, the National Association of Pension Funds Limited and others, that many of those difficulties have now been removed. They have been resolved through further discussions, including, of course, the matter of costs which is clearly always an important factor when one deals with issues like the vast expenditure involved in the social security budget.

The National Association of Pension Funds Limited has stated that the clean break would be, "an inexpensive option". If the difficulties have been removed, and the cost implications are much less than appeared at one time, I hope very much that my noble and learned friend the Lord Chancellor will be prepared to give sympathetic consideration to the principle underlying the amendments. It may well be that the amendments are not technically correct. I shall he quite content if my noble and learned friend says that he is prepared to consider seriously the points put from all sides of the Chamber and that if he is not satisfied with the details of these amendments he will bring forward government amendments at Report stage.

Baroness Hamwee

I support the amendment from a slightly different perspective. The noble Baroness, Lady O'Cathain, mentioned the support for marriage which is absolutely fundamental to the Bill. I know a couple who are not married, the man rather older than the woman. They have been together a long time and it is clear that their relationship is stable. I wondered why they were not married. I discovered recently that it is because of anxiety for the wife who is also older than the female partner in the current relationship. There is anxiety about her loss of pension rights. There could be nothing more moral and more in support of relationships as they are than to pass the amendment and allow three people who find themselves in that situation to rectify matters.

Lord Marsh

There are strong, fundamental disagreements among us in relation to the Bill, but there is virtually no disagreement on the amendments. That is significant. It is understandable because there can be no logic in differentiating between pensions and other matrimonial assets. It is impossible to do that in logic.

It has been said that there are technical problems which would arise from the amendment. That is true. However, as someone who has spent many years in the pensions industry, I venture to say that the problems are not insoluble and are certainly not fundamental. The change is long overdue on the grounds both of logic and of compassion. The time has now come when Ministers should overrule the actuaries on the subject.

Lord Milverton

I hope that if the noble and learned Lord the Lord Chancellor is not able to accept the amendment as it is, he will at least give it due consideration. It has great support and, as was said by one noble Lord, we know him as an understanding person, concerned about human relationships, especially marriage and people's rights in the breakdown of marriage. I hope that he will be able to give a satisfactory answer to the amendment.

Lord Boardman

I wish to support the amendment and illustrate it with a short example of which I am well aware. A civil servant who had been married for many years divorced his wife and married a young second wife. He died. His young second wife then became entitled to the pension. She was an honourable person and did her utmost to disclaim it; she asked the Civil Service to pass the pension benefit to the first wife to whom the civil servant had been married for many years. She was unable to do so. The second wife then arranged a whole series of deeds of covenant to ensure that the first wife received what she rightly considered her due.

The rules in regard to Civil Service pensions may have altered, since that was a few years ago, but it is an illustration of the need for a change along the lines of the noble Baroness's amendment.

Lord Williams of Mostyn

Divorce is dismal. All divorce reflects human failures. The question therefore arises: what is to be done about the financial assets of the marriage. As the noble Lord, Lord Boyd-Carpenter, rightly said, the pension fund is either the greatest matrimonial asset or the second greatest. It is properly to be seen as a joint asset. It has been earned either directly or indirectly by both parties. The wife is fully entitled, I submit, in justice though not at present in law, unless and until this amendment takes effect, to her full part.

In the majority of cases—although not all, as the noble Baroness, Lady O'Cathain, said—at present the wife is left in a dependency which is indecent and unnecessary. I believe that there is no argument in principle against the thrust of the amendment and that any technicalities are not beyond the ingenuity of the human mind to resolve.

Lord Pearson of Rannoch

I too wish to support the amendments and to congratulate all Members of the Committee who have spoken so compellingly in favour of them. In lending my support I should declare a rather personal interest. Sadly, I am in the process of agreeing a financial settlement in divorce proceedings at the moment. A quite substantial part of my assets is represented by my personal pension fund. I believe that it is called a self-invested personal pension plan. It seems obviously fair, fair beyond peradventure, that my wife should in future be able to share in that fund and in the income arising therefrom. The amendments seem just as persuasive to me, even in cases where the pension is not the main asset.

Although it is not strictly the position in my own case, I wish to mention a situation which has perhaps not been fully exposed in the debate so far. It is that there must be many divorce settlements where the pension of one party represents such a substantial share of the joint wealth of both parties that, if it is not possible to split the fund and income, as proposed by the amendments, the family home may have to be sold, to the disturbance and therefore the detriment of the children who might otherwise continue to live where they have been brought up.

The amendments are not prescriptive. They would give the court the power to allocate this important asset either as agreed between the parties or as seems appropriate to the court. It appears to me that the case made by all other speakers is completely watertight, especially now that the dread hand of the Treasury has been so skilfully removed by the noble Baroness, Lady Hollis. I should he interested to hear anything that my noble and learned friend the Lord Chancellor can conceivably think of to say against the amendments—even acknowledging his considerable acumen. I very much hope that he will not employ his talents in that way.

The Lord Chancellor

That sounds slightly like a challenge and there is nothing that brings one forward quite like a challenge. I understand and fully sympathise with a great deal of what has been said about the amendments. I have sought to study the detail and have not found the amendments self-evident in their application, but I have no doubt that we can consider them later. They are quite complicated and I find it difficult to understand the main amendment and how it would work. If that is to be achieved, the Committee would need to decide matters of policy which go outside what is covered in the amendments.

The noble Lord, Lord Marsh, said that the pension is an asset just like other matrimonial assets. Of course, in a sense, that is true, but in another sense it is rather a special asset. The reason for that is that, generally speaking, the pension is not assignable. It is possible for a husband and wife between them so to arrange their property disposition from the point of view of tax as to minimise the tax burden on the couple. In the ordinary course most property assets are capable of being held jointly or in such proportion as the parties may decide.

However, that is not true of a pension. The pension is not assignable. That is the reason for the example given by the noble Lord, Lord Boardman, when the second wife—upright spirit that she must have been—generously wished to give the former wife a share of the fund which had been accumulated during the first marriage. However, although she was a beneficiary of that pension under the law, much as she would have liked to do so she could not assign it to anyone else. Therefore, the only way in which she could handle it was to give deeds of covenant out of the money that was payable to the former wife. Thus the pension is different in that respect, and it is quite an important respect.

Let us as take as an example a case where the husband is the earner and the wife has fully contributed to the family but has not earned a separate income. The only income coming into the home is the husband's salary during his working time, and then his pension when his working time is finished. There is no way in which the parties can divide that amount between them in such a way as to make any part of the husband's income the income of the wife for tax purposes. This is a fiscal point, but a very general one. It is part of the structure of our tax law as it is. The same is true of a pension, as my noble friend Lord Boyd-Carpenter, with his great experience of these matters, knows. The result is that the husband and wife between them, while they are married, can do nothing to reduce the total tax burden arising as a result of the payment of a salary during working time and the pension after retirement.

If a power of this kind is granted, on divorce that will alter the matter and give rise to two separate pensions, which will therefore be subject to tax separately thereafter. The total tax burden on the couple will therefore be reduced, which from their point of view is eminently a good thing. But there is no way in which they can reach that situation except through this kind of power. Thus, an incentive to divorce would, from that point of view, he created. That is certainly the case. If it is done simply in this way, it will have this effect— assuming that the tax regime remains as it is, which is an important assumption that I am making. If a couple are nearing pension age and the pension is substantial, a way of reducing their total tax burden would be to divorce and split the pension fund, and then to remarry, with the result that each would have a separate pension. It is a way of overcoming the difficulty of the non-assignability of pensions.

4.30 p.m.

Lord Marsh

I am most grateful to the noble and learned Lord for giving way. For very many years until relatively recently, when a wife's unearned income was taxed at the rate of her husband's earned income—I speak from personal experience—getting married was an extremely expensive business. I managed to wipe out my wife's unearned income in the three minutes of the service in Marylebone Registry Office—which she did not appreciate! We still got married, and so do most people in those circumstances.

The Lord Chancellor

That is absolutely right in that case. All I point out, and wish the Committee to have full acquaintance with, is that divorcing, if this particular power is granted, will have exactly the same effect in reverse. It will enable the tax burden of the individuals in the circumstances I mentioned to be reduced.

Lord Pearson of Rannoch

Would my noble friend give way? Surely that is always the case. It is the same with all the other assets. Divorce can be very tax efficient. But surely my noble and learned friend is not suggesting that that is a reason for it.

The Lord Chancellor

That is not so true of other assets. If a couple want their income to be tax efficient, they have the possibility of so arranging the assets between them as to maximise the tax allowances. The reason why that is not possible for the pension is the non-assignability of the pension, just as the salary that one earns is non-assignable. Therefore, in respect of this kind of asset, it is not possible during marriage, by agreement, to arrange the situation in the way it would be possible to do by reference to divorce. All I want the Committee to understand is that, while this proposition is extremely attractive from the point of view of fairness, it has quite considerable consequences. In other words, it enables a couple, in respect of the division of property, to do something that they could not do with the fullest agreement assuming that they remain married.

Lord Shaughnessy

Can the noble and learned Lord help me in one respect? It seems that the Committee has a feeling that something should be done about the pension arrangement, and in all equity that seems quite appropriate. Is there no way that Parliament, in its sovereignty, can adjust the law to make provision for this, either in this Bill or in some other way?

The Lord Chancellor

Certainly, Parliament can in its sovereign way make arrangements, but they would be fairly far-reaching if they were to be fair to everyone. Basically one is removing the non-assignability of pensions. Their non-assignability has been there for good reason and is of very considerable importance. I cannot see why, if it is done for people who are being divorced, the same should not follow for people who are married. That is a big problem.

Lord Stoddart of Swindon

This really is an extremely complicated matter. I am not well up in tax matters nor, I imagine, are a number of others in this Chamber. Is the noble and learned Lord saying that it would be tax efficient because there would be two tax allowances instead of one? But is it not the case at present that the state pension is assignable and a wife attaining the age of 60, if her pension is on her husband's contributions, is able to set her part of the pension against tax? Therefore there is assignability in the case of the state pension. Could the position not be overcome, and indeed would it not help marriage generally speaking, if the allowances were interchangeable? Would that not solve the problem?

The Lord Chancellor

It would be helpful if the salary or other emolument of that kind could be split in a way that suited the parties. It would be of tremendous advantage to many people. It is not such a mystery.

The position is that, ordinarily, a person's salary is taxable on the basis of that person's allowances. If one has other property, the right thing to do might well be to arrange matters so that the rest of the income is derived in favour of the wife. To that extent the recent changes are beneficial. But to take as a paradigm case an example where the husband receives quite a substantial salary and the wife is at home, working and supporting him in every way that she can to earn that salary, at present the reduced rates of tax based on allowances are all applicable to his salary. If he and his wife could arrange that, say, half the salary belonged to her and half the salary belonged to him, they would both be a good deal better off.

Lord Meston

I have heard of bogus marriages and now I hear of bogus divorces. Is there any evidence from any of the other jurisdictions which already allow pension splitting to support the argument that people will go through an artificial divorce?

The Lord Chancellor

I am not sure about that. I am not certain of the tax situation in other jurisdictions either. The point about people going through a bogus divorce is simply taking the argument to its logical conclusion. My point is that this power, as distinct from the arrangements made under the Pensions Act 1995, has the effect of enabling the pension itself to be split. Therefore, the income tax position of the two people could be substantially improved as a result. I want the Committee to understand that point. I hope that I am making it clear. I do not think that it needs any special knowledge of income tax or anything of that kind. It is quite a simple point. It arises from the non-assignability of the pension. In effect, this provision overcomes the non-assignability of the pension in the case of divorce. If the result were to be as I said, it certainly would be possible—I do not say that it would necessarily happen—as a tax efficient arrangement, if people agree to do it. I myself would not wish to encourage that.

Lord Milne

Surely that would only occur when the pension is practically the sole income of the pensioner. With single assessment, it is now perfectly possible for one spouse to transfer assets to the other spouse to equate the income of the spouses. So it will only occur when the pension is the main source of income and it must not be a great income.

The Lord Chancellor

That is precisely the point that I want to make. So far as other assets are concerned, they can be arranged between husband and wife in such a way as to be most tax efficient. But that is not true of a pension. I only mention the point in answer to the noble Lord, Lord Marsh, who explained that the pension is just a form of matrimonial property. Of course it is. It is the deferred earnings of the worker. But it is different in this respect.

I entirely agree that it applies principally in cases in which the pension is the main asset, but this problem is strongest in the case where the pension is the main asset and requires division, as the noble Baroness, Lady Hollis, said in her excellent introduction of this matter. That is where the problem arises. There is that effect.

Lord Williams of Mostyn

The noble Lord, the Lord Chancellor, is concerned about the floodgates being opened to the galloping throngs of those who intend to divorce simply to benefit their income tax position. Has any calculation been made at all of the net loss to the Revenue? Secondly, is not the principle for which we are contending that the tax regime and the regime of law ought to be the servants of just objectives, which every speaker has supported?

4.45 p.m.

The Lord Chancellor

The tax system should be a fair one for everyone, so far as possible. My point—it is for the Committee to consider what, if any, effect they feel that this point should have—is that it will confer a power in respect of pensions which is not available in respect of income of exactly the same type enjoyed by a couple in marriage. Of course the couple who are divorced are then in a different position from those in marriage. That is an important question. Therefore there is a comparison to be made between the situation of divorced people who are able to get over the difficulty of non-assignability of the pension and the situation of married people who will remain subject to that problem. So far as concerns the cost to the Revenue, I look at the matter from the point of view of the parties rather than that of the Revenue and the general tax regime with which we have been familiar for some time, and there is certainly an incentive there.

There are other matters to be considered in relation to this amendment. One of the most important is that it proposes that the benefits which are payable under an order of this kind would not be subject to the provisions of Part XIV of the Income and Corporation Taxes Act. That is an important part of the amendment. Certainly, it raises a technical question, but it is not a small question. There are very important questions of tax law about what the regime should he. Part XIV confers benefits as well as raising other matters—for example, in relation to lump sum payments. We need to know at some stage—not today, of course—the kind of regime that is envisaged for these payments.

There are fundamental issues in relation to this matter which I have sought to mention in respect of divorcing couples, particularly as this is a family law Bill. I want the Committee to understand that. I shall not go into them, but there are other fundamental issues about the tax regime which will apply to withdrawn or divided pensions. As an example, let me take the case of the husband, who is the earner and has the pension, and his wife who is not in employment. The regime applying to what she receives would not be the ordinary employee regime. The rules of the pension schemes are extremely complicated and there is a lot of policy involved. One would need to look very closely at what the policy should be in regard to these new types of pension scheme which are related to but not the same as the provisions relating to employee pension schemes.

There are also questions relating to where the pension fund is situated, particularly perhaps, so far as I am concerned, trust funds that are situated in Scotland. There are various matters of that kind which have to be considered.

I wanted to make that particular consideration clear to the Committee because it is relevant to concerns that some Members have expressed in relation to these proposals. Therefore, I suggest to the Committee that we should consider this amendment carefully. I should wish to have it considered carefully and sympathetically. Personally, I understand well that the Committee would like to see something along these lines carried into law. I should not like the Committee so to act without fully appreciating the point which I made earlier. I have now sought to discharge my responsibility in that connection. I have at least tried to make the point clear to the Committee.

In the light of the discussion, I should certainly wish to consider sympathetically this series of amendments, with the proviso that I believe that there are a great number of quite difficult questions associated with this matter that we would have to consider and try to resolve. I feel that their resolution would be likely to take a little time.

Lord Mishcon

I hope the noble and learned Lord will forgive me for submitting a very humble suggestion for his consideration. At present this Bill operates, as regards divorce, based on a declaration that the marriage has irretrievably broken down. If that were made the subject of a statutory declaration, would not the party that the noble and learned Lord is thinking about, who is merely trying to get a divorce in order to pay less income tax, be guilty of perjury if they made the statutory declaration that the marriage had irretrievably broken down?

The Lord Chancellor

I had thought about that. I wondered whether it might be possible for them to say that that marriage had irretrievably broken down, but they were hoping, perhaps as a result of the financial changes made, to enter into a new one. It may be that the Committee has given more emphasis to the particular illustration I gave than I intended. The really important point is that those being divorced are able to do, in relation to a pension, what people in marriage cannot do.

Earl Russell

I am most grateful to the noble and learned Lord for the concluding words of his speech. I have admired him for many things, although it has never previously occurred to me to compare him to Cleopatra, but on this occasion he has truly shown an "infinite variety". The noble and learned Lord has never surprised me quite so much as he has this afternoon.

The noble Lord, Lord Marsh, hit the first nail on the head. These are not normally matters on which one acts on a strictly economic calculation.

I recall a long series of exchanges with the noble and learned Lord in 1991 as regards the benefit penalty in the Child Support Bill. His argument implied that he believed that people breaking up marriages, when considering whether to name the father of their children, would act on a strictly economic calculation. I thought that that would not happen. I believe that events have shown that I was right. If people acted on a strictly economic calculation most of us would not get married. There are limits to complete, dogmatic, economic theory.

Were anyone to consider such a proposal it would have a very severe and detrimental effect on their own marriage. When I left home this morning I was happily married. Were I to decide now to take advantage of the noble and learned Lord's suggestion, and organise a divorce for financial benefit, I believe that when I reach home tonight my marriage would have irretrievably broken down, in which case I would be unwittingly telling the truth.

The noble and learned Lord's argument cuts equally seriously against the reduction in the married couple's allowance—a point with which we on these Benches agree. That also has the effect of creating an incentive to be apart in order to have two personal allowances. If the Government and the Treasury were taking the noble and learned Lord's argument seriously they would not have done what they have about the married couple's allowance.

Lord McIntosh of Haringey

The noble Earl, Lord Russell, has compared the Lord Chancellor to Cleopatra. I suggest that there is another comparison with her: The barge she sat in … Burned on the water".

Baroness Hollis of Heigham

I am sure that I am speaking for the co-signatories to these amendments; namely, the noble Baroness, Lady O'Cathain, the noble and learned Lord, Lord Simon of Glaisdale, and the noble Earl, Lord Russell, who at very short notice—and I am very grateful—stood in for the noble Baroness, Lady Seear. I am sure that I speak for everyone in expressing gratitude to the speakers this afternoon. I believe about 13 Members of the Committee contributed speeches and about another half-a-dozen additional speakers contributed with interventions. I believe that there was not one speaker who spoke directly, or by intervention, who did not support the principle of these amendments. The whole Committee has spoken today and it is saying to the Lord Chancellor, "We believe that the principle of these amendments is right". The precise wording may not he right and no one is going to the stake about that. We are asking the noble and learned Lord today to take these amendments away and to come back with government amendments, if they should be more satisfactory, which embody the voice with which the Committee has spoken today.

The Chamber has spoken today in a way which I have never heard before regarding pensions Bills or anything else of that kind. However, it would be wrong not to try to address some of the issues that the noble and learned Lord the Lord Chancellor raised in his remarks. He said that the amendments may be flawed and I entirely accept that. I am happy to withdraw them. They come with the full support and drafting of the National Association of Pension Funds and the Law Society. If the drafting is incomplete, so be it, but that is not an issue or a problem for us.

I shall try to address the issue, which I believe is the only one the Lord Chancellor raised; namely, that somehow this amendment would be an incentive to divorce. The Committee will note that the Lord Chancellor did not challenge at any point what I call the Treasury argument—that is to say, the cost would be balanced out for the public Exchequer because the savings on income support would offset the costs to tax revenue: it is between the couples concerned.

I have two points to make. Almost everybody, and certainly women, are poorer after divorce. People do not divorce to get rich: they are almost always poorer after divorce. We are saying that they should not be penalised by financial arrangements and locked into an unhappy marriage when all of us would respect and recognise the fact that it is time to make a clean break. Let us consider a married couple. If they were to divorce, following these amendments, they could split their pensions, but they would only be better off if they came to live together, having separate pension provision. The mind boggles at people in their late fifties or sixties getting divorced and then coming together again in their sixties to enjoy the tax privileges that they had so carefully arranged 10 to 15 years ago when they were divorced. I do not recognise that world and I do not believe the Committee does, either. If there is a problem in this area we can certainly look at it in terms of the issue of lump sums and so on. At the moment the Law Society says that financial arrangements are such that people offset the lump sums against the tax revenues.

I do not believe that the Lord Chancellor himself believes he is right. All governments have conceded this matter in one basic respect; namely, in the state old-age pension. That costs nearly £30 billion a year and represents £59 to a married man and £35 to his wife on his contributions. They get divorced and he continues to receive £59 a week on his contributions and she gets £59 a week on his contributions. The state recognises in its own pension scheme that in order to avoid poverty in old age different financial arrangements have to be made after divorce than in marriage because two households cost more than one. The state recognises that with its own pension scheme. Why is that justice denied to people whose main income derives from occupational pension schemes? The Government have already conceded this issue in its own scheme. They should not now deny the chance for similar justice to pension schemes.

The noble and learned Lord the Lord Chancellor then went on to talk about taking away the non-assignability of pensions. This is what this amendment will do and is precisely what it is intended to do, but only to assign it to one person and one person only; that is, the previous spouse or, to follow my noble friend, a second spouse or whatever at the point of divorce.

The reason that pensions were non-assignable in the first place and were privileged by means of tax concessions was because it is in the state's public interest to ensure that no one willingly has poverty in old age. Those tax privileges were meant to apply to personal pensions and the like as an encouragement to people to save for their old age. Tax concessions were made available so that they could do so but they were non-assignable so that they could not be used by creditors, for example. That was the purpose of the concessions; to make them non-assignable to pay off debt because it was not in the public interest to have the taxpayer helping somebody to have their debts paid off cheaply. It was not about marriage but about that.

Within marriage you do not need to assign a pension; it is matrimonial property for the two of you. The injustice arises only at and after divorce. That is why in that issue and instance, and only then, do we need the possibility of a pension being split. It is for no other reason than to remedy an injustice. All the other reasons to make it non-assignable—to aid creditors, mortgages, and what you will—would remain. Simply in this one situation would it be assignable, to rectify a grievous wrong. It would only be necessary at the point of divorce. And so the argument that it cannot be done in marriage falls because it does not need to be done in marriage, and that is why we are not asking for it.

The noble and learned Lord the Lord Chancellor said at the end that he thought this was fair. He admitted, if I may say so, that his objections were technical only. He was responding and giving us the benefit of a brief. Those technical objections can and must be met.

5 p.m.

The Lord Chancellor

I made it plain, I hope, that there are technical difficulties to be dealt with. The point I was making on the main matter is one of principle that your Lordships should understand. That is what I was seeking to do on that point. I will leave it at that. I am not suggesting that that of itself is any more than something that your Lordships should have in mind in considering this amendment. As I said, I am very happy to consider it further. Other details such as non-assignability attaching to the benefits for the wife have to he considered, because I do not think that is clearly protected under the present arrangement.

Baroness Hollis of Heigham

I entirely accept that. I was about to say that I think we have addressed the financial arguments produced by the Treasury to suggest that there is no cost for the taxpayer in supporting these amendments. The noble and learned Lord the Lord Chancellor has produced some technical difficulties, which certainly exist—no one would suggest otherwise—but we all know that they can he overcome.

The third set of arguments brought forward by the noble and learned Lord were that, by definition, the proposals appear to accord privilege to divorce over marriage. I am suggesting that the situation after divorce is very different from the situation in marriage itself. Injustices occur at the moment and this would help to rectify them. The Government themselves have recognised this in their own handling of the state old age pension.

I am sure that the noble and learned Lord has taken the opinion and view of the entire Committee this afternoon. I know that he had, if I may so put it, a set of arguments which he felt it important for the Committee to hear. However, I am convinced that the noble and learned Lord knows and believes that what the Committee has been arguing today is the right thing to do. We can do it on this Bill and we can do it without cost to the Exchequer and we can do it now. With the assurance of the Lord Chancellor that he will take this away and think sympathetically—I think that was his word—about this, I am delighted to ask him to do precisely that on behalf of all of us. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 14 shall stand part of the Bill?

Lord Coleraine

I should like to speak to the central position which would arise under Clause 14 of the Bill, the thrust of which I generally support. The main object of Schedule 2 which is to be introduced by Clause 14 is to provide that in the case of divorce or separation an order about financial provision may be made under the 1973 Act before a divorce order or a separation order is made. It would obviously be inconsistent with the whole thrust of the Bill and mediation, together with the period for reflection and consideration, were the existing law to be continued into this new Bill. Under the existing law, orders for financial provision and property adjustment may be made only at the time of the decree nisi and can only take effect on the decree absolute being made. The noble Lord, Lord Clifford of Chudleigh, has two amendments tabled for discussion later, Nos. 197A and 197B, and it might well be that he will wish to address points covered by those amendments at the same time, because they cover the same ground as do the points I am going to make.

Clearly the existing law cannot continue. We must have some way of making it possible to go to court during the period of reflection and consideration. This should not be deferred until the divorce is over; but the effect of the amendments made to the 1973 Act under this Bill would be to make it possible for a divorcing party to apply to the court for financial provision and for the application to be heard very soon after the statement of breakdown has been made to the court, very soon after the moment when the one year for reflection and consideration starts.

The effect of this would be to destroy all hope of reconciliation were a party to start straight off by going to court, because he or she might get the order made very soon afterwards and would find himself the beneficiary of a financial provision or property adjustment order which would completely destroy any confidence on the part of either party that there was any possibility of reconciliation. It would also completely short-circuit any possibility of mediation taking place. I am only here this afternoon to draw attention to the problem and to suggest one or two ways in which this position might be rectified.

One way would be to say that an order might be made as soon as the divorce proceedings were started but only brought into effect after the divorce when the application is made a year later. I would not for a moment support this approach because once the order has been made, whether we like it or not, the marriage will effectively be at an end and there would be no possibility of picking up the pieces later. It seems to me at the moment that the only way to resolve the problem is to provide for a date during the period for reflection and consideration during which there may be no application to a court for a court order. My own feeling is that it might be possible to say that there should be no application to a court before six months, or even nine months, of the year were up.

This would have the additional beneficial effect in that it would strengthen the period of reflection, because there would be a period during which the parties engaging in the divorce would not be able to go to court and would have to consider seriously either reconciliation or settling their differences by mediation. I believe that all those who favour fostering mediation in divorce proceedings, as I do, would recognise that this procedure would be beneficial.

There have been suggestions from time to time that there might be a compulsory period, set off during the early stages of the year, in which nothing could be done except attempts to reconcile. I do not favour that because I feel that reconciliation and mediation must be able to go hand in hand throughout the whole of the period. The effect of providing a period during which the application to the court may be made would have very much the same effect and be extremely beneficial. I hope the ideas that I am presently canvassing may be seen by the Committee to be good.

Lord Clifford of Chudleigh

I am grateful to the noble Lord, Lord Coleraine, for introducing the Committee to the fact that amendments listed in my name, beginning with Amendment No. 197A, are associated with the question of whether Clause 14 shall stand part. All my amendments are designed to address the grave financial injustices which exist in the present law and which are likely to be made worse by this Bill.

Under paragraph 4 of Schedule 2 of the Bill as drafted, as the noble Lord, Lord Coleraine, said, the parties can apply for financial orders before the mediation period even begins. Clearly that cannot he right. That is totally at variance with the attempt by a civilised society to support marriage.

The effect of the Bill would be to enable orders dealing with maintenance and matrimonial homes to be made before the period for reflection and consideration even begins. Maintenance and lump sum orders may be obtained at any time after the filing of a statement of the breakdown of the marriage; that is to say, at the very start of the divorce process. Orders giving the matrimonial home to one of the parties may, in special circumstances, be made at any time after the filing of a statement of breakdown; again, at the very start of the divorce process.

We are rightly concerned about "quickie" divorces. But Schedule 2 will give us the "superquickie" divorce. It means that a divorce in all but name may be obtained within weeks rather than months, still less the 12 months claimed. The parties concerned may not be allowed to remarry for 12 months, but in every other way the divorce settlement will have been sewn up. That surely defeats the purpose of mediation and pays lip service to the chances of achieving any reconciliation.

How does that save saveable marriages, which we are told is one of the purposes of the Bill? I am told by lawyers that once the matrimonial home is settled or transferred, then reconciliation becomes highly unlikely. Do we or do we not want to save marriages? How can we allow the possibility of a superquickie divorce? Under the present law financial and property orders are made after a decree nisi but are not carried into effect until after the decree absolute. The wrangling in divorce settlements takes place between the two decrees.

Perhaps I may say in passing to the noble and learned Lord the Lord Chancellor that the statistics he cited on Tuesday showing that only 15.9 per cent. of divorces involving children under 16 are obtained in less than 6 months is nothing like the figure of 75 per cent. that some have bandied about. I believe that only 32 per cent. of all divorces take place within six months. Under Schedule 2, orders can be made at any time after the statement of breakdown. The court does not have to wait for the divorce order. One can quickly see that that is a significant change in the present law where the court has to wait until the decree absolute.

Let us consider the following scenario. A wife wishes to divorce her husband. Her solicitor writes to him asking him to agree a settlement. He also adds that an appointment has been made before the judge in 28 days time to invite the judge to make an order moving the husband out of the home. That could arise under Part III of the Bill. The husband may agree so as to buy time. The wife can lodge a statement of breakdown on day one and, shortly after, the solicitor may obtain an early appointment before a judge and is able to present the parties' agreed settlement. Under Schedule 2 it seems that the judge will be able to rubber stamp the agreed settlement. How many judges will then say, "Wait 12 months"? Is not the experience of divorce courts proof that judges will use such powers as they possess?

My amendments are designed to face that problem. Specifically, Amendments Nos. 197A, 197B and 203A ensure that orders cannot be made by the court until after the period of mediation has ended and cannot take effect until the divorce order is made or the separation order comes into effect. The amendments are designed to make the mediation year effective and to give reconciliation a reasonable chance. That should also help the innocent party and the party that does not wish to divorce. In particular, it will eliminate the superquickie assets splitting which the Bill will otherwise introduce under Schedule 2. I hope that the noble and learned Lord the Lord Chancellor will see that it is an area of the Bill which requires careful review and amendment.

5.15 p.m.

Baroness Young

I wish to speak briefly in support of what my noble friend Lord Coleraine said on Clause 14 stand part and also because the amendments spoken to by the noble Lord, Lord Clifford, are obviously relevant to it.

As I understand the position, Clause 14 and Schedule 2 make fundamental changes in the law as it now stands. Financial provision orders by the court—that is, those that require the payments of large lump sums—can be made at any time after the statement of marital breakdown. In certain special circumstances property can be reallocated before the divorce. That has a number of implications of a serious character. For example, asset splitting can technically start on day two—a point made by the noble Lord, Lord Clifford, in his remarks. That could well lead to irreversible court orders within three months.

Without wishing to repeat all the arguments, that appears to run contrary to the principle of the Bill that there should be a year for reflection and consideration. Court orders for lump sum orders or property adjustments make reconciliation unlikely, if not impossible. I believe it to be true that such orders set the divorce in concrete long before the divorce order actually comes through. In other words, although the legal permission to remarry only comes with divorce under the Bill, all the practical arrangements can be set up well before the divorce order and very soon after the initial statement.

As was pointed out, that is a "superquickie" divorce and cuts right across what I understand my noble and learned friend seeks to do in the Bill. That is a point I recall my noble friend Lord Coleraine raising at Second Reading or perhaps at an earlier stage at the Committee. It is important and although no amendment has been tabled in that regard I hope it is a point that my noble and learned friend will address.

Lord Elton

I rise now for the avoidance of confusion later on. I notice that Clause 14 stand part is a group on its own; that the amendments to which the noble Lord, Lord Clifford of Chudleigh, was speaking fall to be debated some hours hence, and that among them is a solitary amendment in the name of the noble Lord, Lord Meston. I do not know whether it lies with the noble Lord, Lord Meston, to decide whether we should deal with the whole chunk now. I am merely anxious, on behalf of us all, that we do not deal with them twice. I wonder whether those on the Front Bench, or others, could give us some guidance.

The Lord Chancellor

I am quite content to deal with those amendments at any time, but. I certainly do not want to deal with the same amendments twice if I can possibly avoid it. It is a question of what the noble Lord, Lord Meston, wants to do with his amendment. The noble Lord, Lord Clifford, has tabled a number of other amendments which may hear on the same matter. Perhaps the noble Lord, Lord Meston, will indicate what he wants to do and I can then deal with the points that have already been made—that is, unless the noble Lord would like to leave it until later.

Lord Meston

It was not entirely clear to me to which of his several amendments the noble Lord, Lord Clifford, was speaking. When I have caught up with that point, I shall perhaps be able to give a clearer indication.

Lord Clifford of Chudleigh

Perhaps it would be easier if I listed the amendments which I should like to have included in my last speech. I refer to Amendments Nos. 197A and 197B, 199A to 199C, and 203A and 203B. I know that some of those amendments may not be entirely relevant to a Clause 14 stand part debate, but the Bill is so intricate that all of our amendments are in some way interrelated. I hope that the Committee will understand why I spoke as I did, especially given that the noble and learned Lord the Lord Chancellor has said that he does not want to deal with the same subject twice or three times this evening. Perhaps I may help the noble and learned Lord by advising him that I intend to speak later to the second group of amendments which stand in my name, that is, to Amendments Nos. 203D and 204A.

Baroness Trumpington

I wonder whether the noble Lord, Lord Clifford, has a copy of the groupings. Quite frankly, I was totally lost when he was speaking to amendments which are practically at the end of that list. Naturally, it is up to my noble and learned friend the Lord Chancellor to decide whether he wants to answer those amendments now, but we certainly do not want to go over the same ground twice. When it comes to the noble Lord's other amendments, perhaps I may suggest that he sticks to their place in the groupings and does not confuse the Committee.

Lord Meston

May I respectfully agree with the noble Baroness. It seems entirely appropriate to deal with Amendments Nos. 197A and 197B now because they deal with the important point raised by the noble Lord, Lord Coleraine, and the noble Baroness, Lady Young, about the timing of the application of the order as compared with the timing of the divorce. I suspect that the other amendments in the name of the noble Lord, Lord Clifford, cover other ground, as do my amendments, Amendments Nos. 199 and 206. Frankly, I should prefer to deal with them in their correct place. Having said that, I do not want to follow the noble Lord, Lord Coleraine, and others down the path which was addressed at the beginning of this debate. However, I should like to take this opportunity of a debate on Clause 14 stand part to express some concern about the structure of Schedule 2. That concern relates more to the technicalities of the drafting than to the substance of the provisions. The main object of Schedule 2 is stated in Clause 14(2)(a) as, to provide that, in the case of divorce or separation, an order about financial provision may be made under that Act before a divorce order or separation order is made; but (b) to retain (with minor changes) the position under that Act where marriages are annulled". From a drafting point of view the essential problem seems to be that provisions which fall at present in a single subsection of the Matrimonial Causes Act become three subsections in this Bill. As there are no substantive changes to the law relating to financial provision or property adjustment, that makes me wonder whether it might not have been better to try to make the minimum alterations that are necessary to the Matrimonial Causes Act in order to achieve the same object. I do not find that redrafting user-friendly. Of course, it may be that I lack familiarity with the Bill as drafted and that practitioners such as myself are too familiar with the existing provisions. However, I find the new provisions complicated and dense and wonder why they have been drafted in that way.

I have not presumed to table an amendment at this stage, but I wish to reserve the right to do so on Report. It must have been possible—I imagine that it was contemplated—to have redrawn the existing provisions of the Matrimonial Causes Act in such a way as to produce something which made far less change to the existing statutory structure and to have reproduced that amended structure in the Bill, possibly by way of a Keeling schedule to show how the provisions would look if amended in that way. I wonder whether we should look more fundamentally at the drafting of Schedule 2 to see whether this might be done differently.

The Lord Chancellor

The question of what orders a court can make and so on is important in that while the parties are in the stage of their marriage having broken down, the intervention of the court may be necessary to regulate matters between them, particularly in respect of periodic payments. The wife might have no income at all, for example, and it must then he right for the court to have the power to intervene. Therefore, the power to make orders of some kind at an early stage is a necessary one.

The question of the matrimonial home is also important since there may well be situations in which (for example, because of violence) the best way to deal with the matter is to give the wife the matrimonial home as early as possible because if that is not done, the violence may well continue with damaging effects.

Turning to the rule on property adjustment orders, apart from in special circumstances such orders take effect on divorce or when the separation order is granted. I think it is important that where the parties are able to bring such matters forward, they have an opportunity to do so if that will help them in their relationship. We have to look not only at the past, but also to the future. I think that the court needs the power to make orders between the parties from the time that it is seized with the matter.

I have now set up an ancillary relief advisory group to look at the current procedures with regard to ancillary relief and, as far as is possible, I should like to have its advice on the various matters that have been raised in the Committee. There are two competing problems. There is the problem of things requiring to be done during the interim period. We need a structured framework to allow the court to intervene if the parties cannot agree during that period. There will not be a complete vacuum during that time. Therefore some power in the court to make orders is required. Of course the firmer the orders are, if they take effect only on the divorce order being made, the more clear it is what the future arrangements will be. That is part of what the period for reflection and consideration has to look to. I agree that it is important that the schedule should go in accordance with that principle.

So far as concerns divorce in all but name, if the Committee thinks back to our previous discussion, one of the possibilities that the parties have is to make agreements while they are still married about all their property, without intervention by the court at all. The parties could agree, for example, that the matrimonial home became entirely the property of the wife. They could do that before any divorce proceedings were considered.

To say that settling property matters is divorce in all but name is, with respect, to undervalue what the divorce order does. A divorce order is what frees parties to remarry. They can make any arrangements—subject to the point I made before about assignability and so on—with regard to their property that the law allows. They can make agreements about such matters if they want to. I do not want to do anything which would create unnecessary dispute. On the other hand, I do not want to do anything that freezes unnecessarily matters which have been the subject of discussion during the period of reflection and consideration.

I hope that the Committee will agree that it is necessary for the court to have powers under the equivalent of Schedule 2 in the interim period. Whether those powers should be further restricted than they are is a matter that I am happy to consider in more detail, but we need something of the kind. With regard to the drafting, I would wish to take the advisory group's views on that. The intention was to make the matter plainer. So far as concerns the noble Lord, Lord Meston, we do not seem to have been entirely successful in that respect. I hope that with that explanation the Committee will allow Clause 14 to stand part of the Bill.

5.30 p.m.

Lord Coleraine

I am grateful to my noble and learned friend for what he has said. I hope that he will look further into the point that I have made. It is obvious that at any time during a marriage there must be power for the court to intervene with regard to the matrimonial home, for example, but I should have thought it would be sensible if it were those powers which continued into the period of reflection and consideration.

Without wishing to change the thrust of the argument put forward by the noble Lord, Lord Clifford of Chudleigh, the way I would put it is that what we do not want is not divorce in all but name, but irretrievable breakdown in all but name. If there is acrimonious dispute over ancillary provisions very early on in the divorce proceedings that will negate any prospect of progress through mediation or reconciliation.

Clause 14 agreed to.

Clause 15 [Grounds for financial provision orders in magistrates' courts]:

On Question, Whether Clause 15 shall stand part of the Bill?

Lord Simon of Glaisdale

This is a short, strictly exploratory Motion, that Clause 15 should not stand part of the Bill. On the face of it is unobjectionable. It is concerned with a provision under the Domestic Proceedings and Magistrates' Courts Act 1978. A magistrates' court may make two sorts of matrimonial order: a separation order and a maintenance order. I am concerned purely with the maintenance order. Under Section 1 of that Act a magistrates' court may make financial provision if the respondent: (a) has failed to provide reasonable maintenance for the applicant"; under (b) a reasonable contribution for the children; under (c) has been guilty of unreasonable behaviour; or, under (d) has been guilty of desertion.

The Domestic Proceedings and Magistrates' Courts Act 1978, in other words, brought the law of domestic proceedings under the Magistrates' Courts Act into line with the wording of the Divorce Reform Act 1969. What the Bill proposes is that paragraphs (c) and (d) relating to unreasonable behaviour and desertion should be omitted. That is presumably in line with the tendency of the Bill to try to eliminate fault when seeking relief. My noble and learned friend will correct me if I am wrong in that.

Does not the first provision, that the respondent, who will almost always be the husband, has failed to provide reasonable maintenance for the wife, itself frequently, in fact more often than not, involve the investigation of fault? The husband says, "It would he unreasonable for me to provide any maintenance at all in view of the conduct of my wife". There are infinite varieties of such a defence. Equally, the applicant has to prove that it would be reasonable for the husband to supply her with maintenance.

As I said, my question is a short one. Does not that provision itself, notwithstanding the elimination of paragraphs (c) and (d), invoke the investigation of fault, or be liable to, and will do so more often than not?

The Lord Chancellor

The provision that requires that the respondent has failed reasonably to provide for the applicant or child of the family may involve investigation of conduct, or something of the kind, or of the circumstances.

Lord Simon of Glaisdale

I do not believe that we are concerned with the child.

The Lord Chancellor

The child is of course one of the parties in respect of whom this may arise. The question is whether the respondent has failed reasonably to provide for the applicant—just to restrict it to that. It applies equally to a child. If reasonableness in the circumstances requires an investigation of fault, so be it, but there might he many cases in which what is really in question is whether the amount is reasonable. In other words, it is accepted that the respondent should be providing for the applicant, but the applicant may say, "It is not enough. You have given me £1 a week and it should be £20". Reasonableness is a broad concept. It requires investigation of matters such as fault only so far as the court may require to do that in order to judge whether in the circumstances what the respondent has done is reasonable.

Lord Simon of Glaisdale

I am obliged to my noble and learned friend. I respectfully agree that the quantum of maintenance may be sometimes in question. I wanted to ascertain—and I believe that it is conceded—that the conduct of the parties, the fault on either side, may require investigation. I wanted to know that because of the claim that an achievement of this Bill is to eliminate investigation of fault in case that exacerbates relations between the parties. I believe that my noble and learned friend wishes to intervene.

The Lord Chancellor

Only when my noble and learned friend has completed what he wants to say. I never said that it is possible to eliminate altogether such matters. I said that the purpose of the Bill is to eliminate them so far as possible; in other words, not to require that these matters be alleged or looked into unnecessarily. It may well be that sometimes it is necessary, and I make the point that we are saying only in so far as it is necessary to investigate these matters in order to decide on a question of reasonableness would they arise. Certainly there are many cases in which the main questions between the parties are as to the size of the payment.

Lord Simon of Glaisdale

I am obliged to my noble and learned friend. So be it. The point is that, here again, investigation of fault may be required. On Tuesday we heard that it might arise in different circumstances quite early in a marriage that an application for a separation order is made. My noble and learned friend said that that may well require follow up by an interim periodical payments order. He conceded that that too could well require the investigation of fault on either side.

I thought that we ought not to pass this provision before noting that, here again, investigation of fault in conduct may well be required. Later we shall come to the requirement in respect of the financial provisions under Section 25 of the 1973 Act and to property adjustment orders under that Act in Section 24.

We are merely noting as we go through the Bill that time and again conduct and fault fall for investigation. Arguments that it is impracticable to ascertain accurately in a court of law where the fault lies, as was argued earlier in Committee by the right reverend Prelate the Bishop of Oxford, simply goes by the board.

The Lord Chancellor

I do not accept the latter conclusion, but I accept that it may involve some investigation of conduct to decide whether the respondent has failed reasonably to provide for the applicant or a child of the family.

Clause 15 agreed to.

[Amendments Nos. 154 and 155 not moved.]

Clause 16 [Jurisdiction in relation to divorce and separation]:

[Amendment No. 156 not moved.]

5.45 p.m.

Lord Simon of Glaisdale moved Amendment No. 157:

Page 9, leave out lines 1 and 2.

The noble and learned Lord said: Amendment No. 157 is a probing amendment. It is to leave out lines 1 and 2, which provide that a divorce order shall not be made while nullity proceedings are pending. That is entirely reasonable. One cannot dissolve a marriage—indeed, one cannot separate the parties—until one knows that they are validly married. That was the doctrine of the ecclesiastical court and has been acted on by the lay courts ever since.

My only doubt as to that was whether it goes far enough. The question of the validity of a marriage these days—or perhaps I should say in my time—is often investigated by a party seeking a declaratory judgment. I do not know whether that has been considered. If it has not, perhaps my noble and learned friend will give it such consideration as he thinks it merits. I beg to move.

Lord Meston

I join the noble and learned Lord in questioning how Clause 16(2)(c) is to work in practice. It suggests that the court's jurisdiction is exercisable only if one of three possible states of affairs obtains. Presumably it is not intended in any way to restrict the party who is on the receiving end of a nullity petition from lodging a statement of marital breakdown, because it would be wrong if that could happen.

I move briefly to Amendment No. 158, which stands in my name and appears in this group of amendments. Clause 16(7) purports to define nullity proceedings by reference to Section 5(3) of the Domicile and Matrimonial Proceedings Act 1973. That section deals with jurisdiction in nullity proceedings but does not actually define them. Either Clause 16(7) is intended to define nullity proceedings, in which case it should do so, or at the least the word "nullity" should be added before the word "proceedings", which is proposed in Amendment No. 158.

The Lord Chancellor

As regards Amendment No. 157, my noble and learned friend Lord Simon is asking not to delete paragraph (c) but rather to consider adding to it the matter of a declaratory action in respect of issues concerning the marriage. I shall be happy to consider that.

As to Amendment No. 158, I am advised that what we have is all right. Let me explain why. Nullity proceedings are defined as proceedings in respect of which the court has jurisdiction under Section 5(3) of the Domicile and Matrimonial Proceedings Act 1973. As Section 5(3) is concerned only with the court's jurisdiction to entertain proceedings for nullity, the reference to proceedings in Clause 16, as currently drafted, can only mean nullity proceedings. Not only is the addition of the word "nullity" superfluous; it could be misleading as it implies that Section 5(3) deals with other proceedings as well as those of nullity.

That is the explanation of why we think what we have is better. I hope that the noble Lord, Lord Meston, is properly impressed with the cogency of those observations.

Lord Simon of Glaisdale

I ask leave to withdraw the amendment in view of what has been said by my noble and learned friend, for which I express my thanks.

Amendment, by leave, withdrawn.

[Amendment No. 158 not moved.]

Clause 16 agreed to.

Baroness Elles moved Amendment No. 158A:

After Clause 16, insert the following new clause—


(" . In deciding any question under this Part the court shall take account of the following—

  1. (a) the conduct of each of the parents of the child and any other person in relation to whom the court considers the question to be relevant;
  2. (b) in the absence of clear evidence to the contrary, the principle that the child's welfare is best served by regular and reasonable contact with each party to the marriage who is the natural parent of any such child;
  3. (c) the risk occasioned by the new living arrangements of the parent with whom the child will reside including any likelihood of risk arising out of cohabitation with any party who is not the natural parent of the child.").

The noble Baroness said: We have discussed the question of disputes between the parents. The two amendments that I have tabled are specifically concerned with the children of the marriage. As to the jurisdiction of the court, which is dealt with in Clause 16, it is appropriate to raise the issue. I hope that my noble and learned friend the Lord Chancellor—perhaps I am optimistic—will agree that the jurisdiction of the court should specifically include the duty to take account of the conduct of each of the parents, the regular contact of each party with the child and the risk occasioned by the new living arrangements of the parents. My noble and learned friend has already said that investigation into the conduct of a party may be necessary in certain cases.

The question of payment of maintenance for the children should be specifically mentioned here. The heading of my amendment deals particularly with the children's well-being and the considerations of the court. That would include, in Part I of the Bill, any financial arrangements being made for the children as well as the arrangements being made as between the parents.

This clause, I accept, is fairly widely drawn. It also includes any other person in relation to whom the court considers the question to be relevant. That may include guardians or grandparents who have a duty or obligation to maintain a child of divorced parents.

As to subsection (b) of my amendment, I am sure most noble Lords will agree that, whatever our views of this Bill, it is advisable—and we would wish it to happen—that a child should have regular and reasonable contact with each party to the divorce. Here again it is helpful for the court to have it explicitly set out on the face of the Bill. It is very often said that while the court is concerned, understandably, with the conduct of the parents in these cases, the children do not always get the priority that they deserve. I am trying to strengthen in this Bill the protection that should be accorded to the children, who, after all, will suffer most from the divorce.

The third point in relation to Amendment No. 158A is about the risk occasioned by the conduct of the parties or the way one of the parties is living, particularly in the case of the party with whom the child or children are resident. We all know the difficulties there can be where a cohabitee has come into the home, or where different matters arise out of the conduct of the party 'with whom the children are resident.

These are matters which I hope my noble and learned friend will consider including on the face of the Bill. He may rightly say that the court automatically takes these matters into account, but it would be helpful, in considering the provisions of the Bill, that they should he spelt out as being part of the duty of the court towards the children of the marriage.

The same thinking is contained in Amendment No. 158B. It should be an obligation on the court welfare officer who has to compile a report concerning the children of the marriage—this was a point raised by my noble friend Lady Faithfull—that he should interview the children in the presence of each of the parents separately so that the child can say what he or she thinks in relation to the situation. That would be much fairer on the children than any other way. Where it is not done, the court welfare officer should say that he or she has been able to get this evidence, and that should also be taken into account by the court when making its decision.

These amendments are fairly explicit in their content and I very much hope that my noble and learned friend will consider including them on the face of the Bill.

Baroness Faithfull

I support the noble Baroness, Lady Elles. As to subsection (a) of Amendment No. 158A, it says: the conduct of each of the parents of the child and any other person in relation to whom the court considers the question to be relevant". Throughout this Bill there is cross-representation, or cross-fertilisation, whatever it is called, with the Children Act 1989, and it would be very helpful, if possible, to refer to the Children Act 1989. There is a checklist in the Children Act to which, in addition to what the noble Baroness has recommended in Amendment No. 158A, I hope very much the court will refer.

As to subsection (b) of Amendment No. 158A, keeping regular contact with each party, there is very real trouble over the question of access. When I moved Amendment No. 155, I wished to know whether, if the court order was breached in regard to access, the party who was suffering by not seeing the child or having the child kept away from them would get legal aid. I think my noble and learned friend gave the answer yes.

One of the difficulties is that there are a number of cases where a man is not eligible for legal aid and yet he does not have enough money to go to court when access arrangements are not being fulfilled. It is a very great problem whether the father or the mother has the care of the child. Very often the access arrangements are not adhered to and the absent parent loses contact with the child over a number of years. I am not sure how this can be resolved, but there should he somebody safeguarding the interests of the child.

As to Amendment No. 158B, I am not quite sure. We debated this question on, I think, Tuesday. Although I recognise the recommendation of the noble Baroness that the child or children should be interviewed in the presence of both parents, we also discussed the proposal that the child or children should have someone to whom they could go either at the time of the divorce, or, afterwards, when access arrangements were being breached. We did not resolve the question, and I mention it only in relation to the noble Baroness's recommendation.

6 p.m.

Lord Simon of Glaisdale

With respect, I strongly counsel against the suggestion that any child should he interviewed in such circumstances in the presence of both parents. The more the child is kept out of the conflict the better. To have both parents present while questions are put to the child, whoever puts them, seems to me to be attendant with considerable danger. I respectfully agree that there should remain someone to whom the child can go, not only during the proceedings but also, as the noble Baroness postulated, after an access order has been made.

One of the functions that we envisaged as regards the Family Court was the fact that the welfare side should be available in such circumstances. However, failing the establishment of that Family Court as we urged it, I suggested that the best person to represent the interests of the child throughout was the Official Solicitor. I agreed with the suggestion made by the noble Earl. Lord Onslow; namely, that it is the interests of the child, much more than the views of the child, which need emphasis.

If the Official Solicitor is brought in at an early stage, I fail to see why he should not be available to the child subsequently. I understood that my noble and learned friend was prepared to brood over the suggestion that the Official Solicitor was the best person to represent the interests of the child. However, that does not mean that that should be the responsibility of the extremely eminent lawyer who is immediately responsible to my noble and learned friend; indeed, he has an official who is constantly and intimately concerned with such problems on a daily basis.

Lord Wilberforce

I should like briefly to suggest that Amendment No. 158A may be quite useful in practice. Of course, it could be said that such provisions will be held in mind in any event by any experienced court dealing with the matter and that there is no need to state them on the face of the Bill. Indeed, that is generally true in relation to this sort of provision. However, one might bear in mind that not all courts are equally experienced and that a number of other persons will be involved with the application of such considerations; for example, the parties' legal advisors or the parties themselves.

I believe that it might be quite useful to have such provisions on the face of the Bill so that they may be present to the mind of the parties at the stages when such matters are being considered. No doubt they would also find their way into any information pack which may be prepared for the use of parties or their legal advisers. Therefore, although the proposed provisions may be self-evident and tautologous, I believe that they may serve a useful purpose in practice. I should like to express my support for them.

Earl Russell

For the first time during the proceedings on the Bill, I am glad to be able to take the chance to agree with the noble and learned Lord, Lord Simon of Glaisdale. Indeed, we are back on familiar territory and I am very pleased to be there. I entirely agree with the noble and learned Lord that having the child interviewed in the presence of each of his parents, whether jointly or severally—and I am not quite clear about that—would put that child in a position whereby he would not be quite sure whether he was executing the judgment of Solomon or was its victim. It would be a very painful situation.

However, I have a great deal of sympathy with the intention behind the amendments. I imagine that one of the problems that they are intended to address is the fact that so many children lose contact after divorce with one of the parents, usually the father. The noble and learned Lord and I exchanged words on the matter on Second Reading. I entirely agree with what he said about the difficulty involved in doing anything about it. But if the amendment—or some other version of it—could help, I believe that it would be well worth trying.

In its present form of drafting, Amendment No. 158A is, perhaps, a little more prescriptive than I would have wished. Subsection (b) states that, in the absence of clear evidence to the contrary", the welfare "principle" must be assumed. It may very often be correct to do so, but I should like a little more room for discretion involved than the present wording allows. I say that because one can get some very unexpected reactions. I have in mind one case which was not actually a custody case. I must apologise, first, to the noble Baroness, Lady Faithfull, if this was a matter with which she had to deal. I do so because it actually happened in Oxford.

The child of two Jehovah's Witnesses aged eight was knocked down, severely injured and was bleeding to death. The parents refused to sign the form giving permission for a blood transfusion, as they would because of their religion. A judge was summoned to the child's bedside; a care order was made; the transfusion was given, and the child recovered. However, the parents refused to have the child back because they said that it was no longer the same child.

I believe that the judge and the hospital in that case did right. However, it goes to show quite how much one must pause and consider the unknown reactions that may arise. If one attempts to enforce access with a legal big stick, the reaction of one or the other parent may be quite unpredictable. Such a generalised discretion as the one suggested would, perhaps, force the court to run upon a waterfall. I believe that it should have discretion to hold back from that waterfall if it sees fit.

As regards subsection (a) of Amendment No. 158A, I would also be interested to know how the reference to "the conduct" of the parties impinges on the very long debates that we have had about fault during the course of the proceedings on the Bill. I am not able to work that out in the time available; and, indeed, I certainly do not intend to detain Members of the Committee. However, if fault is to come into the Bill, I believe that it should come in through the front door and not accidently by the back door. If we bring such a provision into the Bill accidently, it may create no end of legal confusion afterwards.

The Earl of Onslow

I had read that phrase in the amendment which refers to, the conduct of each of the parents", and found myself in exactly the same dilemma on the fault question. In the actual granting of a divorce, I believe that the fault question should be left outside. However, it is impossible to talk about custody arrangements without taking into account the behaviour of one or both of the parents. That suggests to me that we should have a little bit of "front door", "back door" or twin tracking—or whatever the latest cliché is.

I can see two distinct considerations. One is bringing a contract to an end in the most civilised way, with all the hoops that one has to go through to do so: the other is the matter of dealing with the fall-out from that contract being broken. One cannot divorce—I am sorry that was a rather silly pun which was not intended; I meant to say that one cannot separate the conduct of parents from child responsibility, but you can and should separate it with the end of a contract.

Lord Stoddart of Swindon

I support the amendments. It is helpful that the courts should have guidance. The guidance that is given here is quite firm and will ensure that the interests of the child are safeguarded.

We are very well aware of the recent trend that says that two parents do not matter and that one parent will do. I do not speak for Families Need Fathers, as suggested by the noble and learned Lord the other night, although I very often agree with what it says.

The Lord Chancellor

I did not mean to suggest that. The noble Lord has stated that he often agrees with that organisation. I meant that he put forward views which closely resemble its views in a number of respects.

Lord Stoddart of Swindon

The noble and learned Lord is correct, and I often sympathise with its views particularly in relation to access to children. All too often the courts do not enforce access orders which they have made. Children are then removed from the vicinity where the father lives which makes access extremely difficult and costly.

A child may be taken away from his natural father who will be devoid of all contact with his own child, whereas a stepfather will have daily access, and that access could be detrimental to the interests of the child. It is therefore in the interests of the child that there should be contact between both natural parents. That fact cannot be over-emphasised.

The noble Baroness had done a great service in bringing the amendments before the Committee. I know that the noble and learned Lord will take these matters very seriously. The existing arrangements are not good enough. There is insufficient provision in the Bill to safeguard the interests of children and to ensure that the rights of both parents in relation to children are properly taken into account.

Lord Meston

The provisions in the amendments concern: any question under this Part". I understood that considerations of residence and contact are always dealt with under the Children Act. Under that Act the kinds of principles that are stated in Amendment No. 158B are carried out as a matter of common practice. It is good practice for a welfare officer to interview a child in the presence of each of its parents. If that is not done it is usually the subject of comment by the court and something that the court would take into account.

6.15 p.m.

The Lord Chancellor

The court has a duty to be satisfied in relation to arrangements for children and has powers to enforce the Children Act which is the legislation that deals with private disputes between parents about children, and allows the intervention of the local authority, should that be necessary. The principle is that the court should not intervene and no public authority should intervene unless it is necessary. The family is best able to decide these matters, but the Children Act facilitates the intervention of the court.

The principles espoused in the Children Act have been operating for a considerable time. The noble Lord, Lord Meston, will correct me if I am wrong, but I understand that those with day to day involvement have found that the principles of the Children Act and the methods of employing those principles have worked extremely well.

One of those principles is quite plain; that is, that those with parental responsibility for children should be in contact with them unless there is a reason to the contrary. That is the central point in my noble friend's first amendment. That principle is already embodied in the Children Act.

The Bill deals with arrangements following disputes in divorce, but disputes about residence or contact with children are dealt with under the Children Act, whether they arise before or after a divorce or where there is no question of divorce and the parties are merely in dispute about where their children should be.

The general principles of Amendment No. I58A are correct. The difficulty is in reconciling those principles in an individual case. For example, Amendment No. 158A(a) states: The conduct of each of the parents of the child and any other person in relation to whom the court considers the question to be relevant. A situation that often occurs is where there has been abuse or cruelty by one parent to the children. That would normally displace any idea of contact. It would depend upon the nature of the cruelty, and there is always the possibility that the person responsible will repent, but that kind of consideration generally prevents an order for contact with both parents.

I agree with noble Lords who have said that it is extremely important for both parents to have contact with children after divorce. All the research shows that to be correct. One of the principles that moved me to put forward the Bill was to avoid difficulty in that area. In that sense my noble friend Lady Elks and myself are in agreement.

The first amendment is unnecessary because of the provisions in the Children Act which are presently enforced. The court must consider all the circumstances, for example any risks in relation to one of the parents setting up with somebody else, depending upon the nature of their relationship. Those circumstances would be taken into account when considering arrangements for residence and contact.

In relation to the welfare officer provision in the second amendment, under the Children Act there has been an adoption of national standards for probation service Family Court welfare workers. The Family Court welfare service is part of the probation service. Those standards were introduced on 1st January 1995 in the light of previous experiences. It is a framework to ensure that Family Court welfare work is carried out consistently and fairly. The standards require the court welfare officers in preparing reports carefully to consider whether or not it is appropriate to see the parties separately or together, to visit each party at their home, to contact other relevant agencies, for example a school, doctor or health visitor, to see each parent alone with their siblings, to see each child with both of its parents, to see each child with each parent at their home or to see any other significant carers or the new partners of a parent. I believe that that is the point referred to in paragraph (c) of Amendment No. 158A.

It is emphasised that the inquiry should be even-handed and fair to both parties. The standards also specify that the report should give details of the inquiries undertaken, including who was seen at each interview, where, and the source of any information included in the report. Thus, the court welfare officer's attention is specifically drawn to the need to consider the full range of options for interviewing the child and his parents, but the officer retains the flexibility to decide exactly what is appropriate in each individual case. In addition, the court will be made aware in the report of what inquiries have been undertaken. The court is able to consider the weight to be given to the report along with all the other evidence before it.

I suggest to my noble friend that that standard which is adopted throughout the court service gives effect in a good general way to the principles that she has embodied in Amendment No. 158B. If my noble friend wishes it, I can give her a full copy of the standards.

I hope that in the light of those assurances my noble friend will feel able to withdraw the amendment, leaving the mechanisms of this issue to the functioning of the Children Act.

Baroness Elles

I am grateful to my noble and learned friend for his reply. I should like to study it closely in Hansard.

I thank all noble Lords who have taken part in discussions on the amendment. I agree with the noble and learned Lord, Lord Wilberforce, that the Bill would benefit from having the provisions in Amendment No. 158A on the face of the Bill. I accept from my noble and learned friend that many of them are included in the Children Act. While I hate to disagree with him, I suggest that not all the elements set out in the amendment are spelt out in the Children Act. The checklist that courts are required to go through does not enumerate all those issues. Clause 9 of the Bill requires only that the court consider whether there are children and, if there are, the arrangements to be made for them, I believe under Section 41 of the Matrimonial Causes Act 1973.

Although I accept that the Children Act contains certain provisions, they do not cover every element spelt out in Amendment No. 158A. Even if the provisions are included in various parts of the Act, we owe a duty to the children who, I believe, will suffer as a result of the Bill. I know that the noble and learned Lord probably does not think that they will suffer, but the fact is that many children will suffer as a result of the Bill and it is our duty to ensure that they are fully protected under the Bill and that it is not left to the interpretation or discretion of a court to decide whether or not to include certain provisions on a checklist.

I shall not press the amendment to a Division. However, I very much hope that the issue can be considered again with my noble and learned friend between now and Report stage. There is the specific provision as regards risk arising where there is a cohabitee. That is a useful addition to the Bill. I accept that the drafting of the amendment is loose, and that it could be better worded. However, paragraph (b) of Amendment No. 158A specifically states: in the absence of clear evidence to the contrary". I accept what my noble friend Lady Faithfull said. Access is a difficult issue. However, I hope that my noble and learned friend will consider stating that principle.

As regards Amendment No. 158B, I know that the court welfare officer has a duty under the Children Act. However, I am informed—I may he wrongly informed—that the court welfare does not always have either the time or the opportunity to ensure that his report to the court contains the full details which may be necessary for a court to decide on the welfare of the children. I understand that judges tend to follow the court welfare officer's report. That is understandable. I believe that no stone should be left unturned to ensure that the position of children is protected in so far as is humanly possible.

The Earl of Onslow

Before my noble friend withdraws the amendment, perhaps I may ask my noble and learned friend the Lord Chancellor one question to clear my mind. Am I right in saying that the Children Act applies absolutely to any divorce proceedings that will take place if the Bill goes through? If that is the case, surely it is unnecessary to put any extra provision into the Bill. If what my noble friend Lady Elles wants does happen—as, I am sure, we all hope—it is surely not necessary to put the provision down twice.

The Lord Chancellor

The Children Act applies where a court has to consider questions of residence or contact in respect of children. This is the sort of situation in which those questions arise. The Bill will require the court to consider the arrangements for the children. If the court then considers that an order under the Children Act should be made it has power to enable that to happen and then the principles of the Children Act will apply.

Baroness Elles

Perhaps I may conclude. It is correct to say that contact and residence provisions are contained in the Children Act. The proposed amendment does not include only residence and contact, but other matters as well.

In the circumstances, I beg leave to withdraw the amendment. Perhaps we can consider the issue between now and Report stage.

Amendment, by leave, withdrawn.

[Amendment No. 158B not moved.]

Clause 17 [Time when proceedings for divorce or separation begin]:

[Amendment No. 159 not moved.]

The Lord Chancellor moved Amendment No. 160: Page 9, line 27, leave out ("or").

The noble and learned Lord said: I beg to move Amendment No. 160 and speak to Amendment No. 161.

These are drafting amendments. The word "or" at the end of Clause 17(3)(a) should not be there. A provision to the effect that marital proceedings are both divorce proceedings and separation proceedings at a time when no application for an order has been made was erroneously omitted from the final print of the Bill.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 161:

Page 9, line 29, at end insert—

("( ) Marital proceedings arc to be treated as being both divorce proceedings and separation proceedings at any time before an application for a divorce order or for a separation order is made by reference to the statement.").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Intestacy: effect of separation]:

On Question, Whether Clause 18 shall stand part of the Bill?

Lord Simon of Glaisdale

I have a Motion that Clause 18 shall not stand part of the Bill, and for more than one reason I am glad to be associated in this with the noble and learned Lord, Lord Archer.

Clause 18 disapplies part of the ordinary law of intestacy in the case of a separation order. By the normal law of intestacy, going back a long way, a widow enjoys a substantial right; in other words, there is a bias of the law in favour of marriage. Under this provision that right is no longer to be enjoyed after a separation order, notwithstanding that the parties remain married.

When we discussed separation orders on Amendment No. 2, my noble and learned friend confirmed that part of the purpose was to allow a spouse who had a conscientious objection to divorce to seek a separation order instead, in order to keep the marriage alive, if only because while the marriage is alive there is still a chance of a reconciliation. However, after a divorce there is little chance of it.

What the Bill does repeatedly, as it does here, is nevertheless to show a bias in favour of divorce and against separation. The noble Lord, Lord Mishcon, identified the first bias that we examined in Amendment No. 5 and there have been several instances since then. However, this is the most glaring. Why should a spouse who conscientiously prefers a separation order be penalised as to intestacy? The Bill is really saying: "You may take a certain course from conscience, but you must not think that you will enjoy the ordinary financial advantages accruing from that. We will larn you to be a toad".

As I understand it, the provision reproduces the effect of Section 18(2) of the 1973 Act. Perhaps, when he replies, my noble and learned friend will say whether that is right. The provision in the 1973 Act is repealed in the repeals schedule, Schedule 10 to the Bill. That is presumably why we have Clause 18. However, the 1973 Act itself replaced Section 40(1) of the Matrimonial Proceedings and Property Act 1970, which itself replaced Section 20(3) of the Matrimonial Causes Act 1965. I shall be corrected if I am wrong, but in other words the provision goes back no further than the 1965 Act.

I see no reason why we should attach any particular value to a statutory provision in a matrimonial statute of the swinging 1960s, particularly when it is contrary to the ordinary law of intestacy. By that law, if a marriage subsists the surviving spouse enjoys special rights on the intestacy. I oppose Clause 18.

6.30 p.m.

Lord Archer of Sandwell

In the course of our debates on the Bill, to my regret I have not invariably found myself in agreement with the noble and learned Lord, Lord Simon. On this occasion I can intervene with a confidence born of the fact that he and I are indeed in agreement. It would be presumptuous on my part to seek to clarify or embellish the case which he expressed so clearly and with such erudition.

In the course of one of our earlier debates there was a question as to what were the effects of a judicial separation. Clearly one such effect is that the marriage remains in existence. One of the reasons for retaining that option may he that one of the partners at least wishes to retain the rights and claims which are normally associated with marriage. If one partner enters into a new relationship and wishes to provide for the new partner or the children of the new relationship, he or she—and normally it will be he—can do so by making a will. If he neglects to do so, then a simple respect for the institution of marriage would seem to indicate that the normal consequences would follow. Certainly there is no obvious reason why the other partner should lose his or her rights under the marriage.

I simply add that this anxiety is, to my knowledge, shared by the Law Society. No doubt the noble and learned Lord will tell us the reasoning behind the clause, but I am bound to say that it is not self-evident.

The Lord Chancellor

So far as I am concerned, the reasoning behind the clause is that I have sought, generally speaking, to retain the existing law as regards the effects of orders. As my noble and learned friend Lord Simon explained clearly, that is the existing law and it has been so since 1965. The fact that it is the existing law does not mean that we should not change it, but until now there has not been much pressure to change the provision, as I have understood it. Generally, in regard to financial matters, I have left the existing law as it is. It is a big subject to get into in a systematic way. We shall have other amendments suggesting changes, some more dramatic and some less. That is the reason that I put in the provision. If the views that Members of the Committee have expressed represent the general view of the House, I have no feeling against it myself. My only reason for including it is that it happens to be the law and has been for about 30 years.

Baroness Elles

Will my noble and learned friend explain the logic of why he wishes the clause to remain when it is already part of the law? He was not keen on my amendment on children which he also says is part of the law, but in another Act. It does not seem to me logical why we should keep one provision which is the present law and not allow something which is the present law in another part of the Bill.

The Lord Chancellor

As usual, my noble friend has an extremely good point. However, as my noble and learned friend Lord Simon said, as regards drafting, Schedule 10 repeals a number of the provisions of the Matrimonial Causes Act 1973. Thus, in order to preserve the effect of the existing law I have to put in this provision. One of the effects of that is to bring the matter to the Committee's attention in a way that it would not have been if I had left the provision in the 1973 Act. Perhaps it is a good idea. However, that is altogether a different argument from the previous one. I am certainly not repealing the Children Act nor do I propose to do so in this Bill. What I am doing is to propose the repeal of parts of the Matrimonial Causes Act 1973. Therefore, I thought I should put the provision back in. It represents the existing law but if the Committee believes that the existing law should be changed, I have no strong reason against it.

Lord Coleraine

My noble and learned friend explained why the provision was introduced in the swinging sixties. Therefore I feel that we ought to go ahead and follow the course recommended by the noble and learned Lord, Lord Simon of Glaisdale.

Lord Simon of Glaisdale

I am most grateful to the noble and learned Lord, Lord Archer, the noble Lord, Lord Coleraine, and indeed to my noble and learned friend the Lord Chancellor. I seem to recognise in his reply—I hope rightly—some green edges. He is obviously not committed to this provision beyond the fact that it represents the existing law. But if the existing law is contrary to principle, if it is in derogation of marriage, as the noble and learned Lord, Lord Archer, has shown, we have no reason at all to be attached to it.

I undertook at the outset of the Committee stage that I should not press any of my amendments to a Division, and I think that covers this case. But I shall certainly return to the matter on Report. I hope in the meantime my noble and learned friend, having given himself a locus penitentiae, will tell me that it is not necessary and that he will do the job for me.

Clause 18 agreed to.

The Lord Chancellor moved Amendment No. 162:

After Clause 18, insert the following new clause—


(".—(1) The Lord Chancellor may, with the approval of the Treasury, make grants in connection with—

  1. (a) the provision of marriage support services;
  2. (b) research into the causes of marital breakdown;
  3. (c) research into ways of preventing marital breakdown.
(2) Any grant under this section may be made subject to such conditions as the Lord Chancellor considers appropriate.").

The noble and learned Lord said: This is a rather important amendment, to which I spoke earlier. I am very glad to have the opportunity of moving it. It gives the Lord Chancellor a basis for supporting research of a most important kind, as well as supporting by grant in appropriate circumstances the marriage support services. I beg to move.

Baroness Hamwee had given notice of her intention to move, as an amendment to Amendment No. 162, Amendment No. 162ZA:

Line 4, after ("marriage") insert ("and family").

The noble Baroness said: This amendment made its way onto the Marshalled List after we had debated the point. It is not moved.

[Amendment No. 162ZA, as an antendment to Amendment No. 162, not moved.]

6.45 p.m.

Lord Simon of Glaisdale

Speaking therefore to my noble and learned friend's Amendment No. 162, I have only one small point, which I put forward in no very hopeful mood. It relates to the statement that my noble and learned friend may make grants only, with the approval of the Treasury". Those words appear in statute after statute, and are totally unnecessary. There is firm and fair machinery within the machine of government which prevents my noble and learned friend splashing about with public money at his unfettered discretion. There is, indeed, a Treasury official who watches closely what is happening in my noble and learned friend's department; and similarly, all his officials are aware of that. They are firmly aware that they must not incur public expenditure except with the consent of the Treasury. The words are entirely unnecessary. I know that the Treasury values them greatly, but it is utterly wrong to include them. I venture to speak as a former Treasury Minister. I am all in favour of Treasury control, but not of cluttering up the statute book with a whole number of unnecessary phrases.

The Deputy Chairman of Committees (Lord Lyell)

We are still debating Amendment No. 162, but, with apologies to the noble Baroness, Lady Seear, I must call three other amendments before we proceed further with this one; namely, Amendments Nos. 162A, 163 and 163A.

[Amendments Nos. 162A to 163A, as amendments to Amendment No. 162, not moved.]

Baroness Seear

We on these Benches very strongly support Amendment No. 162. It is sometimes thought that those of us who are strongly in favour of this Bill are not in favour of marriage. That is completely false, and we should like to have it on record that that is so. We support this amendment because it will give great support to marriage. We want to make that absolutely clear. I should, however, like to see the amendment somewhat strengthened. I agree very much with the point made by the noble and learned Lord, Lord Simon. I have been waiting for someone to say that it is ridiculous that we are so much in the clutches of the Treasury. After all, the Prime Minister is the First Lord of the Treasury; if he decides that money should be spent, surely it should be spent.

That aside, one would like to see it made absolutely clear that there will he money for these services. I agree with the noble and learned Lord the Lord Chancellor that research is extremely important, but we also want to see support for conciliation services. On a number of occasions during debate on this Bill we raised the issue of the uncertainty of money being available for conciliation services. Those services are a very, very important prop to the sustaining of marriage. Unless money is there for them, a great many people will not take advantage of them. We are confident on these Benches—and I think probably this is true throughout the Committee—that while the present Lord Chancellor is in post he will be assiduous in giving support of this kind. But Lord Chancellors come and go. I do not say that the next one will be any better or worse, but there could come a time when a Lord Chancellor was less interested in these matters. We should like to see it firmly on the face of the Bill that these moneys will be available whatever the Treasury says and whoever the Lord Chancellor may be.

The Lord Bishop of Worcester

I support this amendment firmly and emphatically. I remember saying at Second Reading that I hoped the moneys would be available for marriage support services, and for research into the causes and ways of preventing marital breakdown. These are essential if this Bill is to bring about a hoped for improvement.

I agree that those of us who support the Bill have been accused of being soft, liberal and unsupportive of marriage and the family. That is not so. But we feel that the noble and learned Lord's Bill puts marriage and the family at the centre. However, if resources are not available, the last state will he worse than the first. That is the point. This is a Bill that seeks to bolster marriage, to build it up, and to provide counselling for those whose marriage has broken down. Therefore from these Benches I strongly support the noble and learned Lord's amendment, provided that we may have some fairly firm assurance that resources will be available for these extremely positive measures to support marriage and the family in such a way that it is more than just legalism.

Baroness Hamwee

In a genuine spirit of inquiry, I ask about the status of the Explanatory and Financial Memorandum to the Bill. The financial effects of the Bill are described in that memorandum. The provisions in Parts I and II of the Bill are designed to be cost neutral. The argument might be advanced that by making an investment in the services described in the amendment of the noble and learned Lord the Lord Chancellor, there will be savings made elsewhere but that, no doubt, would be over time.

I hope that the noble and learned Lord can reassure the Committee that the provisions of the Bill have precedence over that memorandum, which will be changed, as necessary, if—as I hope—the amendment is accepted.

Baroness Young

Before my noble and learned friend rises to reply, I should like to put a question to him. I do not think that anybody can quarrel with this particular amendment.

Lord Simon of Glaisdale

I can.

Baroness Young

I bow to the superior wisdom of the noble and learned Lord, Lord Simon. I am quite certain that there is a lot in it that I have not seen. But leaving aside his point—

Lord Simon of Glaisdale

With the consent of the Treasury.

Baroness Young

Yes. Having been an ex-Minister myself I have in fact seen that before. I do not have much sympathy with my noble and learned friend on anything to do with this Bill. However, on this particular point, I see that he must put that in, whatever the noble and learned Lord says.

There is a rather more serious point that I make on this amendment with regard to paragraph (a)—the provision of marriage support services. I am very concerned about much of the briefing material that has been sent to me by organisations that purport to support marriage. On reading them, it is perfectly clear that what they support is marriage as a kind of aà la carte menu on a series of lifestyles. I shall not go into that matter now. However, it seems to me that there are a great many organisations which, when one comes down to reading about what they are doing, are not supporting marriage. They say that if it is difficult, one may do something else and so on. It is a very serious point that I make. If public money is put into anything, it should be put into making quite sure that we are supporting marriage and not a sequence of, what I understand is now the politically correct term, alternative lifestyles.

Baroness Elles

Before the noble and learned Lord replies perhaps I may put my question to him. The noble Baroness, Lady Hamwee, drew attention to the Explanatory and Financial Memorandum to the Bill and the financial effects of the Bill. There is mention of the effects of public service manpower. Will the marriage support services be entirely confined to voluntary organisations—of which my noble friend Lady Young has spoken so strongly—or will they also apply to certain professional bodies being set up by the Government; or will they rely on the Churches? By whom will the marriage support services be fielded? What kind of people are they?

Lord Simon of Glaisdale

Adverting again to the point raised by the noble Baroness, Lady Hamwee, my noble and learned friend will correct me if I am wrong but I understood the memorandum to mean that there will be a saving on legal aid and that will go to financing the mediation services, those two items balancing out. This amendment would impose additional cost. It would help very much if we could be told what would be the cost of the amendment annually so far as can be envisaged.

Lord Stoddart of Swindon

I hope that I can like this amendment. I should very much like to be able to like this amendment. I hope that it is not just a sop to those who are opposed to the Bill. For example, the amendment speaks of: (a) the provision of marriage support services". I should like to know exactly what those support services are. The amendment continues: (b) research into the causes of marital breakdown". I know that one of the great causes of marriage breakdown is lack of money. I want to know what the Government intend to do to ensure that married couples get more money—are allowed to keep more of the money that they earn. The amendment goes on: (c) research into ways of preventing marital breakdown". I said at an earlier stage of the Bill that, although the Government have expressed their intention of bolstering marriage and their belief in marriage, all their actions have contributed to undermining marriage, particularly in relation to financial support for marriage. Indeed, over a long period of time, they have reduced the allowances of married couples, especially the married man's allowance, which has made it more difficult for married couples to exist and easier for couples to exist financially if they are not married. If we believe what is said in this amendment, we believe that the Government wish to put that kind of thing right.

It has also been government policy to favour the single person. I do not particularly object to that. If two people live apart—cohabit rather than marry—they can have two tax allowances. But if they are married and the wife remains at home and has no income of her own, they can only have one tax allowance plus a very much reduced in value married man's allowance. I have advocated for a very long period of time that the two allowances should be transferable. Where, in fact, a woman does not go out to work, she will then be able to hand her personal allowance over to her husband who is in work or vice versa.

Those are matters that have to be examined. If marriage is to be strengthened, it is necessary to enable one of the partners at least, if they wish to do so, to remain at home and look after their own children. It is absurd for us to give financial and tax encouragement for women to go out to work and a detriment for them to stay at home and look after their children.

If this amendment means that all those matters will he investigated—they are, believe me, very serious matters—then I am very much in favour of it. I do not want to delay the Committee beyond the dinner hour, though I could speak on this issue for a long time. I simply say to the noble and learned Lord the Lord Chancellor that if that is the intention and if we want to get to grips with the financial difficulties and indeed other difficulties faced by married couples, then I am all in favour and this is an amendment by the noble and learned Lord the Lord Chancellor that I could support.

7 p.m.

The Lord Chancellor

I am grateful for the support that this amendment has received. It is a considerable move from the present position. It puts on the statute book very clearly recognition of the importance of the three subject matters referred to. The phrase, with the approval of the Treasury is one which my noble and learned friend and I have discussed in a number of different contexts over quite a period. I believe that the phrase has appeared in statute both before and since my noble and learned friend was a distinguished Treasury Minister.

The noble Baroness, Lady Seear, said that the Prime Minister, as First Lord of the Treasury, can do anything. I suppose, subject to the law, that that may be true, but it is not the Prime Minister who is going to make these grants but the Lord Chancellor. Therefore, it is only natural that he should be subject in this respect to the First Lord of the Treasury. I am grateful for what the noble Baroness, Lady Seear, said in this connection. I shall do my best to get as much as I can and for it to be properly used for the purposes of this provision. Exactly what I shall be able to get from year-to-year may vary very much. I am unable to make estimates about that because it will depend on the success of the scheme. In my view, one of the matters of extreme importance is showing to what extent the work supports marriage and helps to prevent marital breakdown. The more successful the scheme is, the more likely it is to be supported. As Members of the Committee have observed, success in that connection—apart from the human relationships and those with children, which we all value as important—has important consequences for public finance.

The purpose of this clause is to enable the Lord Chancellor, with the approval of the Treasury, to make grants in connection with the provision of marriage support services. That envisages that they will he carried out by the Churches or other voluntary bodies of that kind. Many other different types of organisations are envisaged.

I particularly refer to what my noble friend Lady Young said. This clause will condition the power to make grants and therefore it emphasises the point made by her, that under this clause it will be legitimate to fund only those services which are for the support of marriage. That is what the clause says. It will clarify the matter. That is one reason why it is wise to keep the provision in this way, but it does not mean, as the noble Baroness, Lady Hamwee, asked when we debated this matter before, that children are not included. The provision focuses on marriage as the matter being supported.

The noble Lord, Lord Stoddart of Swindon, remarked on the tax treatment of married women. I see the point that he makes. He has advocated it over more than 17 years, but as yet he has not been successful. We have made a change in respect of any other income that the married woman has. There is separate assessment for her income. In the good old days, as some would see them—but that is not a view which I share in this respect—the income of both was aggregated. I believe that we have made some progress. The noble Lord would like to make more and he will no doubt continue to wish for that.

Lord Stoddart of Swindon

Perhaps I may make the point that that is so, but to take advantage of the situation the woman has to have some income. I fear that in most families a woman not at work has no income at all and that is the problem.

The Lord Chancellor

I understand that. I have to look at what has been done. Where people have between them income-bearing property, it is possible, as long as it is not a pension or a salary, for the woman to get the full benefit of that income and therefore the full benefit of a separate assessment. 1 understand that if she has no income she cannot get tax allowances. That applies whether she is married or single. In other words, though the noble Lord compared the married state with the unmarried state, he must compare like with like.

In the noble Lord's example of unmarried people the woman has to have no income, and if she has no income, she will certainly not receive any kind of tax allowance. Therefore, in comparing like with like, I believe that this Government have improved the situation although not as yet to the state that the noble Lord, Lord Stoddart, would like to take it. We have made progress and I hope that the noble Lord will be generous enough to acknowledge that. I also believe that we have made progress with this provision. The approval of the Treasury is a small price to pay for having this power in the Bill.

Lord Simon of Glaisdale

Is my noble and learned friend inclined to answer the two questions I asked? First, does the financial preface really envisage that the cost of mediation will be paid for by a saving on legal aid and, secondly, how much is it envisaged will he payable under this new clause?

The Lord Chancellor

As regards the new clause, as I said it will vary from year to year. Therefore, it will be unwise to say precisely what may come from that. The Explanatory and Financial Memorandum refers to the Bill as introduced.

As regards the cost of mediation, it is so far as it requires to be borne by the Legal Aid Board under the extensions. As regards mediation and services, I hope that the people who are able to pay for them will do so. That is the situation that obtains. However, this Bill enables the Legal Aid Board to incur costs for mediation, which is not the present position. The costs incurred for mediation in that respect, paid out of the public purse, are likely to be about the same as the savings in legal aid which otherwise would be defrayed in respect of the representation that will become unnecessary if this Bill takes effect.

Lord Simon of Glaisdale

I am much obliged to my noble and learned friend for the answer to that question. As regards the first question, I should like him to give an estimate of how much is likely to be spent on the support services, although he may not be in a position to do so at present.

The Lord Chancellor

I would prefer not to at the moment. This is a completely new provision. There has been no payment under it until now. The responsibility for making grants in this area has been with the Home Office. The matter was transferred to the Lord Chancellor's Department when the White Paper was published. Some grants have been made without the need for statutory authority. I believe that the statutory authority makes a difference and for my part, as has been said, I would wish to use this provision effectively, but it would be unwise for me at this juncture to estimate how successful I shall be in getting money.

Lord Coleraine

I believe that my noble and learned friend is quite clear on the point, but I ask him to confirm that in referring to marriage support services supporting marriage, he is speaking entirely of existing marriages and not marriage support services supporting, in anticipation, marriages which may form later on when existing marriages break down. A concern which many of us have about the expression "marriage support services" is that they may also extend to treating existing marriages as only part of a large problem and try at the same time to support the anticipated future marriages, which I do not believe should be the case and I do not believe it is what my noble and learned friend has in mind.

The Lord Chancellor

I am not sure that I fully understand the question, but let me attempt an answer and then if it is not the right answer to the question, my noble friend will correct me. When two people are married but their relationship has broken down and they are contemplating divorce, trying to consider whether the marriage has broken down irretrievably, I would think that a marriage support service could properly help them to keep the marriage together.

One of the purposes I have in mind in this Bill is that where parties are married they will face up to the responsibilities of that marriage before it is dissolved. I think that that is extremely important. As I have said earlier, the rate of breakdown in second marriages is very high and I believe part of the reason for that is that people have not faced up to the responsibilities of their first marriage before going into a second one and that the obligations and so on of the first marriage have continued to affect the relationships of the people in the second marriage. So part of the purpose of this Bill is to require people to face up fully to their obligations under the first marriage before they are divorced. However, there is no question so far as I am concerned of a grant being made to an organisation to help them move the people who are in a situation of marriage breakdown in a first marriage into a later marriage, not at all. On the other hand, the provisions of this Bill, if they work as I have said, will have the effect of making the chances of success of a second marriage better than they are now.

Of course, marriage support services would include a future marriage. I think that preparation for marriage is an important part of the whole situation and I believe it would be right, if at all possible, to help services that are designed to help people who are entering marriage to make them ready to understand and fulfil the commitments which I believe a proper marriage requires. In that sense it is a future marriage, but I think that perhaps my noble friend was concerned that I was trying to encourage people to get out of one marriage and into another. That is the last thing that I would want to do, but I would wish to support, if it was possible and necessary—that is, assuming they were needed—services which help people to prepare adequately for marriage. I hope that I have answered my noble friend's question.

Lord Coleraine

My noble and learned friend has understood me and has answered my question. I do not think he is saying that he would consider a marriage support service endeavouring to preserve an existing marriage as in any way preparing for a second marriage.

The Lord Chancellor

That is so, but I think that the obligation to face up to the responsibilities of the first marriage is an important step to take and it would help the success of a second marriage, if people want to go into that. That, in my view, is important in itself for a first marriage. I think that this is facing up to the responsibilities that people have undertaken. That is an important part of this Bill and an important change from the existing law. I believe it will be effective and that it will also have the effect that, if someone goes into a second marriage, the chances are that the second marriage has a better chance of survival because the responsibilities of the first marriage have been faced and taken into account before that second relationship has been entered into.

7.15 p.m.

The Lord Bishop of Worcester

The noble and learned Lord the Lord Chancellor has spoken extremely well on this because there is obviously in all our minds a terribly important concern for the state of marriage and the family, our present society and our present crumbling culture. Obviously we want marriage to be restored to the lifelong commitment it always has been. However, we must live in the real world. Anyone who is a parish priest knows perfectly well that there are people for whom the second marriage is the real marriage. It becomes a Christian home where children are brought up according to the best approved ways within Christian marriage. I hope, as I have already said in this Committee, that we shall not think that somehow you bolster marriage by making the divorce laws more punitive; you do not.

What we want is good marriage. I do not want to be anecdotal, but time and time again we meet people who have made an undergraduate marriage, who have married because their mother and father wanted them to, have married an unsuitable person and then, older and wiser, they actually make a second marriage. If they have been helped along the lines indicated by the noble and learned Lord, then their second marriage can be the success we know many of them to be, although of course I realise the statistics show that if people go straight out of one marriage into another, very often the second one gets just as far as the first one did and then breaks down again. We do not want that. We want to make laws in this country which will be positive and will make for good marriage. That is our aim in life. We are not saying it is just one other life-style among many. If I may say so, it is not right to suggest that bodies like Relate, Catholic Marriage Guidance and One Plus One are of that ilk. They are not. They want to support marriage and the family. Let us support them, for they have a lot to offer.

On Question, amendment agreed to.

Lord Lucas

I beg to move that the House be resumed. In moving this Motion, may I suggest that the Committee stage begins again at 8.15 p.m.?

Moved, That the House he now resumed.— Lord Lucas.)

Lord Simon of Glaisdale

May we know, at any rate when the Committee stage begins again, at what time the House will rise? What happened on Tuesday was profoundly unsatisfactory; indeed a discredit to Parliament.

Lord Lucas

I will certainly talk to my colleagues and to the usual channels, and I will report the results of that conversation to the noble and learned Lord.

On Question, Motion agreed to.

House resumed.