Family Law Bill [H.L.]

HL Deb 27 June 1996 vol 573 cc1059-120

6.25 p.m.

The Lord Chancellor

My Lords, I beg to move that the Commons amendments be now considered.

Moved, That the Commons amendments be now considered.—(The Lord Chancellor.)

Lord Simon of Glaisdale

My Lords, perhaps I may intervene at this stage just to ensure that I have the right papers with me. I have a Marshalled List of the Commons amendments and I have a copy of the amendments that it is proposed to be moved in that respect. However, I do not have something which we generally have on such occasions; namely, a list of the Government's recommendations on our consideration of such amendments. It would not surprise me if my noble and learned friend intends to ask the House to accept all the Commons amendments. That is perhaps why we do not have the usual document which is supplied to us. Nevertheless, I just want to be sure that I have not missed a document which I might need.

The Lord Chancellor

My Lords, my noble and learned friend correctly anticipates my intention. I intend to invite your Lordships, along with one of my colleagues, to accept all the amendments that the Commons have proposed to the Bill without any further amendment or qualification. I suspect that that is the reason why we have no document setting out different points of view in respect of the various amendments. I believe that my noble and learned friend has all the documents that I have, except possibly those containing some additional help in prompting me as to what to say when I come to make recommendations to your Lordships about particular amendments.

On Question, Motion agreed to.

COMMONS AMENDMENTS

[The page and line refer to Bill (82) as first printed hr the Commons.]

COMMONS AMENDMENT

1 Clause 1 page 1, line 12, leave out 'to save it' and insert ', whether by marriage counselling or otherwise, to save the marriage'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. In speaking to this amendment, I wish to speak also to Commons Amendments Nos. 20, 27, 28, 40 and 41. I am very pleased to present these amendments to the House. I am well aware of the concern felt by many Members of the House about the provisions of the Bill in relation to marriage counselling. That was eloquently expressed by many noble Lords and right reverend Prelates during the passage of the Bill through the House. This group of amendments has, I believe, improved the provisions of the Bill in this respect and will therefore, I trust, meet with the approval of your Lordships.

I shall deal, first, with Amendment No. 1. It builds on the suggestion made to the House during the passage of the Bill by the noble Lord, Lord Stallard; namely, that we should have a general principles' clause at the beginning. The other place has obviously warmly endorsed that and has used it to elaborate somewhat the provisions that it thought should be made in that respect. Indeed, the amendment raises the profile of marriage counselling by ensuring that it is referred to within the clause.

Amendment No. 20 provides that one of the purposes of the information meeting is to provide parties with the opportunity (and to encourage them to take it) of attending a meeting with a marriage counsellor. Amendment No. 27 provides for regulations to specify the way in which such a meeting must be held and to specify the qualifications and appointments procedure for marriage counsellors carrying out such a meeting. Amendment No. 28 provides for such meetings to be free to those who qualify for legally-aided mediation on a non-contributory basis.

Amendment No. 40 provides that when making grants under Clause 20, the Lord Chancellor shall pay particular regard to the desirability of services being available when they are first needed. Your Lordships may remember that I sought to make that point repeatedly during the time that the Bill was in your Lordships' House. I believe it to be extremely important that, where money is available, it should be applied to provide for services when those services are first needed, otherwise it may well be that matters have gone too far for any real help to be effective. The amendment makes clear that proper emphasis will be given to services aimed at preventing relationship breakdown before a couple reach the point where they are, sadly, considering divorce.

Amendment No. 41 introduces a new clause which provides for the funding of marriage counselling during the period for reflection and consideration. Marriage counselling under this amendment will be state funded for parties who are eligible for non-contributory legal aid. The provisions give the Lord Chancellor the powers to prescribe the circumstances in which the provision of funded marriage counselling is subject to the approval of the Lord Chancellor to ensure that standards of service can be set and maintained.

I believe that the amendments strengthen the Bill in precisely those areas which have been of most concern to your Lordships in this House. Such concerns have been taken up in the other place.

Moved, That the House do agree with the Commons in their Amendment No. 1.—(The Lord Chancellor.)

Lord Irvine of Lairg

My Lords, I welcome in particular Amendment No. 1 which will give a high profile to marriage counselling as a distinct process designed to save a marriage. I have no doubt that this group of amendments significantly improves the Bill. It is also particularly welcome that a purpose of the information meeting is to encourage the party or parties who attend to take up the opportunity of marriage counselling with a view to saving the marriage.

The effect of Amendment No. 28 is to provide a level playing field between marriage counselling and mediation because the meeting with a marriage counsellor will be free for those who qualify for legally aided mediation on a non-contributory basis. Likewise, by way of Amendment No. 41, marriage counselling during the period for "reflection and consideration" will be state funded, again, for those eligible for non-contributory legal aid.

The intent of Amendment No. 40 is to ensure that marriage counselling is available at the time when it is "first needed" and—it is to be hoped—before the marriage has broken down. I believe that this group of Commons amendments accords a rightful high priority to marriage counselling as a means of saving marriages and that it establishes a balanced scheme for the provision of such counselling.

Baroness Seear

My Lords, from these Benches I should also like to support the amendments. I do so especially because of the advantages given before conciliation. During the earlier stages of the Bill, we pressed the point that that was a very important matter and one for which finances ought to be made available. Therefore, we are extremely glad to see that that will now be incorporated in the legislation.

Lord Simon of Glaisdale

My Lords, I, too, very much welcome the amendments. I particularly welcome the provision that marriage counselling should be made available at the earliest possible moment. Certainly all assistance in aid of marriage is 10 times more useful if it is available as soon as trouble appears in the marriage.

I have only one question to ask; namely, what is the cost of the counselling services which are now to be provided? That must have been agreed with the Treasury. It is most important that we should know that and, indeed, the total cost involved as regards the measures in the Bill.

Baroness Young

My Lords, I, too, should like to support this group of Commons amendments. We discussed the issue at very considerable length during our deliberations on the Bill. If I have any regret, it is that some of our amendments were not accepted at an earlier stage. However, that is a rather grudging thing to say and, on the principle of better late than never, I am very pleased that the amendments were made to the Bill in the other place.

I should like to reiterate one concern that I have about counselling services. I recently received a piece of literature from Relate. It is quite interesting in that, on looking through the document, one has to read two sections of it before marriage is even mentioned. The literature claims at the beginning that Relate, is Britain's leading couple counselling agency". I really feel—and this is a serious point—that there is a very real distinction in life between marriage and co-habitation. I have always believed that the Bill should buttress marriage and that the counselling services employed ought to be doing just that and not be involved in other forms of what are today called, "alternative lifestyles".

When my noble and learned friend comes to answer the question posed by the noble and learned Lord, Lord Simon of Glaisdale, I hope that we will learn what sums of money we are talking about. Indeed, where government money is involved, we must ensure that it really goes to organisations whose function in life is to support marriage. We must be absolutely clear on that point.

Having said that, I welcome anything which encourages couples to stay together. One of the more encouraging statistics that we heard about at an earlier stage is the fact that between 20,000 and 30,000 couples start divorce proceedings each year but do not proceed to the end. We really must try to encourage more couples, who feel that they have to start counselling, to go back together before divorce occurs.

Lord Stallard

My Lords, I also wish to support the amendments. The noble and learned Lord the Lord Chancellor was kind enough to mention the debates that we had when the Bill was passing through this House. I share the concerns expressed about counsellors, especially those of the noble Baroness, Lady Young. Indeed, that matter was referred to in our original debates. Since the Marriage Guidance Council changed its name—it has done so at least once, or, perhaps, a number of times—to Relate, it seems to be distancing itself from marriage as such; that is, in terms that we understand. I am worried as to where all the counsellors will come from to carry out the provisions set out in the amendments.

The noble and learned Lord, Lord Simon of Glaisdale, asked: where will the money come from? They are all important questions. It is great that we have achieved at least the sense of our amendments, but the questions that remain are: who will the counsellors be? Who will counsel the counsellors? I know that there are many Church organisations which have excellent counsellors, but who will counsel the vast army of counsellors which will probably be needed as a result of this new industry of counselling?

I am also worried about the quality of the training of many of the counsellors—that is, those who currently practise and those who will become counsellors. I repeat: who will the counsellors be; who will counsel and train them; and, finally, where will the money come from?

The Lord Chancellor

My Lords, I am grateful for the support for the amendments that I have received from all parts of the House. As regards the point raised by my noble friend Lady Young which was taken up to some extent by the noble Lord, Lord Stallard, I should point out to the House that the Bill makes clear that it is marriage support services and marriage counselling that are in issue from the point of view of support. Therefore, in respect of the clauses we are discussing, there is no question of this Bill authorising counselling in relation to alternative lifestyles. The divorce provisions are relevant only to the situation of marriage. As regards the costs, my noble and learned friend—

Lord Stoddart of Swindon

My Lords, before the noble and learned Lord leaves that subject, I did not speak upon that point but I wish to ask him how will the marriage guidance service be supervised. Will it be supervised by the Government? Will another organisation be set up? How are we to ensure that marriage counselling is about counselling to save marriages?

The Lord Chancellor

My Lords, the provision of counselling will be in the hands of a number of organisations which offer services. However, they will do so under contract or under grant. The grants will certainly be offered under conditions that make it clear what the nature of the service is and the standard of service to be provided. I do not envisage a whole army of counsellors. I have read some suggestion of that in some pieces of paper. However, I do not envisage that at all. I envisage support for a high quality service.

When the Bill was in this House previously, I said I believed that marriage counselling was capable of being monitored in quite an effective way, because one can ascertain to what extent the consequences of counselling have produced continuation of marriages. I believe that can be effectively monitored. We shall put in place effective monitoring as part of the arrangements. That is also important in relation to costs. I have tried to explain before to your Lordships that I believe it is much easier to get money if you show you are saving a lot of money, than if you are not. If this provision works—as I hope it will—the result should be quite substantial consequential savings in respect of other matters such as housing, benefits and the like. Therefore I believe that monitoring the results of the applications of these amendments is important.

The costs of marriage counselling are comparatively cheaper than are the costs of the provision of legal aid under the present arrangements. Of course there is the additional grant which we presently give under the general powers. I have explained that pilot studies will be conducted before we bring the divorce and mediation parts of this Bill into effect. As this Bill comes into effect I anticipate that it will be possible within the total budget that is presently allocated for legal aid to make quite a substantial shift in favour of marriage counselling. Apart from the grants which are presently separate, I anticipate that the overall result of this Bill will be cost neutral.

We want to encourage a variety of counsellors and a variety of help. One area where counsellors are sometimes situated with particular effect is in association with family medical practitioners. I believe that a good family doctor sometimes has an opportunity of picking up signs of difficulty in a marriage before any other professional adviser is likely to have notice of that difficulty. I wish to keep as flexible arrangements as possible in place, but I believe that this is something that—

Lord Mishcon

My Lords, before the noble and learned Lord leaves that point, would I not be correct in thinking that he of all people would want to encourage those in the legal profession, as soon as a client comes to them in regard to matrimonial affairs, to be fairly good trained counsellors themselves? They could do so much good.

6.45 p.m.

The Lord Chancellor

My Lords, of course there are different circumstances in which clients approach lawyers. There are some people who are able to afford to have a reasonably continuous legal service. I heard someone say that some people complained there were too many lawyers in the United States. In fact there are too few lawyers there because not everyone can have his own lawyer; people have to share lawyers.

The point I was trying to make earlier is that the medical practitioner may well, because of his continuing relationship with patients, have an opportunity of detecting difficulties early. Often lawyers are approached rather later in the course of a problem arising. I entirely agree with the noble Lord, Lord Mishcon, that the legal profession should be sensitive about trying to do that. I know there are many lawyers who are extremely good at helping people to overcome their difficulties and keep their marriages going. I know that some of your Lordships will readily identify some such lawyers.

Lord Simon of Glaisdale

My Lords, before my noble and learned friend is finally allowed to settle down, he mentioned that he expected a substantial shift in resources from legal aid to counselling. Could he at least put a figure on that, and also, desirably, on the total cost of the counselling service?

The Lord Chancellor

My Lords, it is quite impossible to do that at the present moment because the precise nature of the arrangements require to be taken into account. My information is that the hourly charges in respect of counselling are very much less than the corresponding charges in respect of legal aid. I hope that there will be more take-up of counselling with the result that there will be less need for legal aid either as regards advice or representation in proceedings. The arrangement this Bill is based on is that the overall cost will remain no greater than the cost of legal aid in respect of the present services, plus the amount which is presently the amount of the grant to the marriage guidance services. Obviously, the precise costs will depend very much on the take-up of that provision. I certainly hope we can encourage that take-up so that the amount that is allocated ultimately to marriage counselling rather than to legal aid is as high a proportion as the practicalities allow.

On Question, Motion agreed to.

COMMONS AMENDMENT

2 Clause 1, page 1, line 22, at end insert; and (d) that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.

Together with this amendment I wish to speak also to Commons Amendments Nos. 30, 31, 42 and 62. Amendment No. 2 inserts in the general principles clause the principle, that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished". This principle will guide me in making regulations under the Bill, for example, as to attendance at information meetings or attendance at a mediation assessment meeting. It will also inform the actions of those conducting such meetings, mediators and anyone else exercising functions under Parts II and III of the Bill. So in a sense it is a further building on the work of the noble Lord, Lord Stallard, when the Bill was in this House.

Amendments Nos. 30, 31, 41 and 62 introduce into Schedule 1 a further exemption to the requirement of Clause 9 that financial arrangements must be decided upon before a divorce or separation order can be granted. Your Lordships will remember that I regard that as quite an important part of our proposals. Having regard to the considerations before the other place, the additional exemption has been inserted. It will apply where there is an occupation order or non-molestation order in force in favour of the applicant, or a child of the family, against the respondent, provided certain requirements have been fulfilled and that delay would be significantly detrimental to the welfare of any child or seriously prejudicial to the applicant.

I believe that it would be wrong for a divorce to be denied on the ground that financial arrangements had not been settled when domestic violence by the respondent is or has been present in the family, provided the applicant has made every effort to comply with the requirements as to the parties' financial arrangements for the future. It should be no part of the law regulating divorce that the victims of domestic violence should be locked into such destructive relationships because the other party to the marriage will not co-operate in making financial arrangements for the future. In my submission to your Lordships, I am anxious to preserve the general principle, but that I regard as a wise exception.

Moved, That the House do agree with the Commons in their Amendment No. 2.—(The Lord Chancellor.)

Lord Irvine of Lairg

My Lords, Part IV of the Bill is about domestic violence. It started as a separate Bill in this House and then was hijacked in the other place by certain Members of the noble and learned Lord's party there. I shall not cause him pain by saying any more. It is to his great credit that he brought back the substance of its provisions as part of this Bill. He could have lost both his Domestic Violence Bill and this Family Law Bill, but he has lost neither.

Structurally, the substantial incorporation of the old Domestic Violence Bill into this Bill has resulted in there being a division between the domestic violence provisions and the divorce and separation provisions. To my mind the real significance of the group of amendments from the other place is that they draw attention to the overlap between the two sets of provisions when domestic violence or the threat of it is a feature of the divorce process. As the noble and learned Lord said, that is the significance of Amendments Nos. 30, 31, 41 and 62.

The failure to agree financial arrangements as a bar to the making of a divorce or separation order should not apply—and I agree with the noble and learned Lord—where there is an occupation order or a non-molestation order in being against the respondent in favour of the applicant or a child. That should be the case where the applicant has genuinely tried to arrive at an agreement about the financial arrangements but without success, when no such agreement is in reasonable prospect and when the delay in the grant of divorce would seriously prejudice the applicant or be seriously detrimental to the welfare of any child. I agree, therefore, that these are beneficial amendments.

Finally, I particularly welcome Amendment No. 2, an amendment moved by my party in the other place and accepted by the Government at the Commons Report stage. As the noble and learned Lord said, it adds to the general principles clause the requirement that the court and any person exercising functions under Parts II and III shall have regard to this new general principle: that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, he removed or diminished". The noble and learned Lord has been good enough to acknowledge that it was my noble friend Lord Stallard on these Benches who was the author of the idea that the Bill should include a general principles clause. From this Front Bench I supported it in principle, as did the noble and learned Lord, who was hospitable to the suggestion, as the other place proved to be.

I am sure that noble Lords will agree that as a result of the amendments in the other place, the clause has been significantly improved. Also, as we noted in our discussions on Amendment No. 1, Clause 1 has been further strengthened by the other place in another important way: a high profile has been given to marriage counselling as a distinct process designed to save a marriage. For those reasons, I welcome this group of amendments.

Earl Russell

My Lords, I too welcome the group of amendments and extend a particularly warm welcome to Amendments Nos. 2 and 42. In doing so, I pay tribute to the part played by both the other two Front Benches in bringing it about.

When I first started a debate on domestic violence in this House in 1990, I was told that it was the first time the subject had been discussed in either House of Parliament in a period of 10 years, whereas the picture has totally changed now. The prominence of the issue is much increased. For that, I give the warmest thanks to the noble and learned Lord for Part IV of the Bill and for the persistence he has shown in getting it towards the statute book. In that regard he has enjoyed the entirely involuntary assistance of the Daily Mail. It is a remarkable example of the law of unintended consequences. The practical wording of the amendments seems to me good and helpful and I am glad to see them.

Lord Mishcon

My Lords, I hope that I am not being a pedant, but when the noble and learned Lord replies perhaps he could inform the House, if there is any point in it, why there is the word "and" in the first line of the amendment, and not "or".

The Lord Chancellor

My Lords, in Clause 1 the principles are cumulative in effect. For example, that the institution of marriage is to be supported is to be taken with the other principles. Principle (d) will be the last provision, so that principles (a), (b), (c) and (d) are all to be taken into consideration at all times.

Lord Mishcon

My Lords, I am sorry but I believe that the noble and learned Lord did not understand my point and perhaps it was unintelligible. I was looking at the first line of principle (d) in the amendment: that any risk to one of the parties to a marriage, I should have thought the next word should be "or", to any children, of violence", not "and".

The Lord Chancellor

My Lords, I misunderstood the noble Lord and thought he meant the "and" at the beginning of the amendment. However, the same point applies. Any risk to one of the parties to a marriage and to any children, if there is such a risk, must be minimised. In other words, all risks must be minimised. On the whole I prefer the wording of the amendment to the alternative proposed by the noble Lord. I have great authorities on grammar immediately on my left, but that is my own view. I hope that your Lordships will agree with it.

Baroness Seear

My Lords, if the word is "and", the provision must mean a risk both to the children and to one of the parties. If the word is "or", it can be to either of them.

Lord Irvine of Lairg

My Lords, before the noble and learned Lord sits down, I offer the opinion that the amendment means both: any risk to one of the parties to a marriage, and [any risk] to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished". So either risk, so far as is reasonably practicable, should be removed or diminished. The noble and learned Lord will recall that there are some decisions of the courts where the courts have been ready to read "and" as "or" if the purpose of the clause so requires. For my own part I think that there is no risk in leaving the clause as currently expressed.

On Question, Motion agreed to.

COMMONS AMENDMENT

3 Clause 3, page 2, line 30, after (6)' insert 'or (13)'.

7 p.m.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I wish to speak also to Amendments Nos. 4, 5, 7 and 15. Amendments have been tabled to Amendments Nos. 7 and 15 and we shall return to those in a little more detail when they are moved. However, I wish to deal with the group now.

This group of amendments deals with the period for reflection and consideration. Noble Lords, in particular my noble friend Lady Young, the noble Lords, Lord Stallard and Lord Stoddart of Swindon, and my noble and learned friend Lord Simon of Glaisdale, expressed the view that the period as set at 12 months was not long enough. It was felt that this was especially the case where children were involved or if one of the parties did not consent to the divorce. However, other noble Lords had expressed equal concern that lengthening the period would be detrimental to the welfare of children by increasing uncertainty, or that it might be considered as a system of two-tier marriage.

Amendment No. 15, which was passed on a free vote in the other place, strikes a balance that is to be commended at this stage. We discussed amendments similar to this when the Bill was before this House, but none of those ultimately moved included the provisos in Amendment No. 15.

Amendment No. 15 provides that, where there are children or one of the parties objects to the divorce, the period for reflection and consideration shall be extended by six months. However, it provides safeguards, meaning that the extension may not be made in cases where remedies against domestic violence have been obtained—that is automatic; such remedies have been obtained, the extension does not take place—or where the court is satisfied that further delay would be significantly detrimental to the welfare of children.

That is a very important safeguard. During our discussion of the amendment moved by my noble friend Lady Young and carried to a Division at Third Reading in this House, I expressed concern about the effect that it might have on children. I mentioned a number of children's charities, and that those concerned with these matters had expressed that anxiety to me.

I emphasise strongly that Members of the other place, in their consideration of this matter, took very full account of that concern. They put into this amendment the proviso that, where the court is satisfied that further delay would be significantly detrimental to the welfare of the children, the extension does not apply. That gives the court a very clear and full authority in this matter to have proper regard to the effect on the children. "Welfare" is the general word used.

Some have not fully taken on board this important exception. The noble Lord, Lord Habgood, has tabled an amendment, with which we shall deal in a little more detail. But in substance, this point is provided for very clearly.

This is the area in which a free vote was contemplated, both here and in the House of Commons. I regard it as extremely important that, on matters involving important issues of conscience, Parliament should be prepared to legislate. We ought not to shy away from important matters of that kind simply because issues of conscience are involved. Not long ago, two of my noble friends wrote to a newspaper to raise questions concerning life support systems for people in a persistent vegetative state. They asked whether that sort of subject should be referred to Parliament. I express no view about that. I wish merely to point out the need for the mechanism of free votes to be used to resolve matters involving issues of conscience. That is the proper mechanism by which Parliament can legislate on such matters.

In a Committee of the whole House the other place, on a completely free vote, resolved in favour of this formulation. This would be a matter for a free vote in this place, were any of these amendments to be put to a Division. However, I wish to express very strongly my own view that if we are to be able to legislate satisfactorily in this area, unless there is a very strong reason to differ, it would be right for this House to consider as very important the result of a free vote in the other place.

Noble Lords may remember that when the result of the free vote was published a number of commentators described it as a government revolt. I find it difficult to understand how revolt is possible when the Government takes no position on a matter and allows a free vote. That was true for my part, and for my colleagues in the other place. Once the Second Reading had taken place and the Committee of the whole House had been charged with the clauses on which free votes were to take place, the Government expressed no particular view and did nothing to advance any, in order that a fully free vote should take place.

Naturally enough, next morning I was asked about the matter. My express opinion then was that the only way in which this kind of issue could be satisfactorily addressed was by my accepting wholeheartedly the result on the free vote in the House of Commons. That I have done, consistently, since. I believe that is wise.

This is a matter for a free vote. Your Lordships are all free and utterly independent. However, I suggest that if matters of this kind are to be legislated for properly in government time as they should be when they are central to our national life, we must do what we can to respect the result arrived at by a democratic free vote in the other place.

The other amendments in this group are consequential on Amendment No. 15. Amendment No. 3 provides that, where the court has both an application for a divorce order and a separation order before it under Clause 3 and the period for reflection is extended, the court is entitled to proceed with the separation order rather than only the divorce order. Amendments Nos. 4, 5 and 7 amend Clause 4 to prevent parties circumventing the extra six-month time period set out in Clause 7 by obtaining a separation order after 12 months and immediately applying to convert it into a divorce order. Obviously that would be to subvert the purpose of Clause 7. This provision was inserted in consequence of the passing of Clause 7 in its present form. The amendments will make the time period in Clauses 4 and 7 consistent. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 3.—(The Lord Chancellor.)

Lord Irvine of Lairg

My Lords, in some respects the Bill was a better Bill when it left this House. In many other respects it has been improved by amendments that have been promoted by my party in the other place.

I adhere to my view that a year for reflection and consideration is generally sufficient. Therefore, I appreciate the reasons for the amendment proposed by the noble Earl, Lord Russell, Amendment No. 15A, which he will move shortly, although for reasons that I will explain I do not feel able to offer my support to that amendment.

The other place took the view on a free vote that if one of the parties wants 18 months, then 18 months it shall be; or where there are children, 18 months it shall be, regardless of the wishes even of both parties, but subject to a discretion in the court to take the further six months out where the court is satisfied that further delay would be significantly detrimental to the welfare of the children.

That provides a satisfactory means of dealing with my concern which, in common with other noble Lords, I have expressed a number of times during our consideration of the Bill: that unnecessary delay and uncertainty would be in many cases detrimental to the interests of the children. I have confidence that the courts will be well able to identify the very many cases where that concern would be justified, so that the further six months should come out in those cases.

On the whole, I am content with this aspect of the amendments. Under the amendments one of the parties is able to insist on 18 months—and I do not doubt that this point will be the burden of the argument of the noble Earl, Lord Russell, when he moves Amendment No. 15A—even where no sensible purpose can be achieved by withholding a divorce for the further period of six months. That is why I was persuaded by the noble and learned Lord in the first instance that 12 months was right in the generality of cases.

We should remember that under the present law there can only be a divorce on the grounds of separation after two years if the parties consent and five years if they do not, in separation cases only, so 18 months is better than five years.

It is true that the quickie divorce on grounds of adultery is these days the rapid line of exit from a failed marriage, but, as many of your Lordships, including myself, argued in our consideration of the Bill, the quickie divorce disfigures the institution of marriage. We must therefore bear in mind that the quickie divorce has gone under the Bill. I believe that the abolition of the quickie divorce and the fault principle is in the interests of the institution of marriage and of the development of sensible agreed arrangements for the future for the benefit of both the parties and their children.

The position that I adopt is that the totality of the provisions governing the delay period and the Bill as a whole are a package which noble Lords should accept.

Earl Russell

My Lords, I shall speak to Amendment No. 15A when it comes to be called in its place. Meanwhile, I should like to respond briefly to the noble and learned Lord's comments on free votes.

I am entirely in agreement with the general framework of what he has said. My noble friend Lady Seear remarked that it was spoken like a true rebel. There is no higher praise. Like the noble and learned Lord, I cannot understand how there can be said to be such a thing as a government defeat on a free vote. We are discussing these matters in a non-party spirit. I do not believe that any party can gain credit or discredit.

It has always been my understanding that on a free vote Bill the two Houses count equal. That is the principle which this House adopted in the War Crimes Bill. The basic argument for the primacy of another place is that the Government should be able to get their business through. If the Government have agreed that there is a free vote, then we may vote freely regardless of the fact that another place may not agree.

In regard to representing the people, if one looks at the opinions of the Houses it is by no means self-evident that on a non-party issue the opinions of another place automatically represent the people in a way that we do not. We may vote according to our consciences and as we are, or are not, persuaded by the arguments.

Lord Simon of Glaisdale

My Lords, in my view the amendments have substantially improved the Bill. I am convinced that the provisions are now in a form that will enable the court to do justice and promote welfare generally in all the circumstances that have been envisaged. It is on that ground, rather than attaching any magic significance to a free vote in the other place, that I venture to support the Commons amendments.

7.15 p.m.

Baroness Young

My Lords, these are clearly very important amendments and I am very glad to support Amendment No. 15 which extends the period of reflection and consideration up to 18 months. That is an issue upon which I moved in this House. It is a matter of regret, and I think I wrote down my noble and learned friend's exact words when he said that the Government expressed no view in another place. It is sad that they expressed a view here. We will not debate the relative merits of free votes in another place and free votes here. That is a subject also on which I would have a great deal to say.

I am glad about the 18 months and I accept the qualifications. I am glad about the ending of the quickie divorce. I never thought that it was a good thing and I am pleased that we shall see an end of it. It is unbelievable that throughout the stages of this extraordinary Bill the quickie divorce, which came in by statutory instrument in 1977 under the Labour Government, now presumably being reversed by the Bill, could not be dealt with without all of these complicated measures.

I am glad about the extension because I have always felt that it was quite wrong that one party should be divorced against the wishes of the other at the end of a year without any reason needing to be given.

I realise that there is not a majority in this House or in another place on the issue of fault, but I believe that the institution of marriage has been weakened by removing the moral basis of it and by removing the concept of fault. It has also weakened the legal basis. That is something we shall come to regret very much in the future. If American experience is anything to go by, it will ultimately increase, and not decrease, the number of divorces. I wish to place that view on the record.

This is a Bill about which I have very grave doubts, but I think that Amendment No. 15 is an improvement. I am very glad that it came through on a free vote in the Commons and I am pleased to accept its provisions.

Lord Habgood

My Lords, perhaps I may take guidance as to whether it would be helpful for me to speak to my amendment now or wait until we reach the relevant clause.

The Lord Chancellor

My Lords, in so far as guidance from me may be useful, there is no harm in speaking to the subject matter now. However, I have the impression that because of the form of the amendments of the noble Earl, Lord Russell, and that in the name of the noble Lord, Lord Habgood, it may be convenient to discuss the detail when I call the amendment in the form in which it appears as an amendment to the amendment. There is a grouping which makes it possible to take the amendment now, but the narrow substance of the issue may be better dealt with at that time. My noble friend is going to give us further advice.

Baroness Trumpington

My Lords, further to what my noble and learned friend said, in the chronological order only Amendment No. 3 is moved at this time. All the other amendments are open to being spoken to as they arise.

On Question, Motion agreed to.

COMMONS AMENDMENTS 4 Clause 4, page 2, line 35, after 'while' insert '— (a)". 5 Page 2, line 36, at end insert '; or (b) subsection (3A) applies.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 and 5 en bloc. I spoke to these amendments with Amendment No. 3.

Moved, That the House do agree with the Commons in their Amendments Nos. 4 and 5.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

6 Clause 4, page 2, line 42. at end insert 'once the requirements of section (Welfare of children) have been satisfied.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6.

In moving this amendment I should like also to speak to Amendments Nos. 29, 34, 53, 59, 60, 61, 103 and 128. This group of amendments is concerned, first, with the links between the divorce procedures to be established under this Bill and procedures under the Children Act 1989 and, secondly, with the representation of children in family proceedings.

Section 41 of the Matrimonial Clauses Act 1973 provides a procedure which acts as a bridge between divorce proceedings and procedures under the Children Act. Your Lordships will remember that considerable reference was made to this when the Bill was before the House at an earlier stage. It provides a mechanism which enables the court to decide whether, in the light of the arrangements made or proposed, it should exercise its powers under the Children Act in order to protect a child. These amendments re-enact the substance of Section 41 of the 1973 Act as it relates to divorce and separation on the face of this Bill and extend the list of factors which a court should take into account when deciding whether the circumstances are such as to require it to exercise its powers under the Children Act. These now include: a requirement to regard the child's welfare as paramount; a requirement to have regard to the wishes and feelings of the child concerned in the light of his age and understanding and the circumstances in which those wishes were expressed; a requirement to have regard to the conduct of the parties in relation to the upbringing of the child; the principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by the child having regular contact with those who have parental responsibility for him and with other members of the family; and a requirement for the court to have regard to any risk to the child which may be caused by the actual or proposed arrangements for the child's future.

The main thrust of this amendment remains as it was following an amendment tabled by my noble friend Lady Elles and supported by many other noble Lords. The current amendment adds to the factors included in my noble friend's amendment, to which the court shall have particular regard on the evidence before it when making a decision as to whether the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Children Act 1989. The amendment also re-enacts what was Section 41 of the Matrimonial Causes Act procedure and so brings that procedure on to the face of this Bill in relation to separation and divorce cases. At the time Section 41 was amended during the Bill's passage through this House, the procedure remained part of the Matrimonial Causes Act and so was amended by paragraph 23 of Schedule 8.

In consultation with the children's organisations during the passage of this Bill in another place, it was decided that it would be helpful to have the full text of this procedure on the face of the Bill and also to enhance its provision. Essentially, however, the function of the court under this procedure remains the same as under the current law; namely, consideration of whether there are children of the family to whom the section should apply and, where there are any such children, whether it should exercise any of its powers under the Children Act 1989. The court has no jurisdiction, therefore, to make a residence or a contact order under this provision. Such orders, if they are to be made, must continue to be made under the Children Act itself. In exercising its jurisdiction under that Act, the court will apply the welfare criteria set out in Section 1(3) of that Act.

In order to clarify the status of the various factors set out in this amendment, I should point out that their purpose is to guide the court when it is deciding whether or not it should exercise its Children Act powers. These factors are not intended to change any of the provisions of the Children Act itself. In particular I would point out that the reference to conduct in subsection (4)(b) is intended to mean conduct towards the child by its parents and not conduct between the parents towards each other. I believe that there has been some misunderstanding about that.

Turning to Amendment No. 53, the Government believe that the voice of the child should be heard in proceedings regarding his or her welfare. The existing law already makes provision for the representation of children in a number of ways: by a panel guardian ad litem and/or a solicitor in public law proceedings under the Children Act 1989; via the report of a welfare officer, again under the Children Act 1989; through the offices of the Official Solicitor in private law proceedings in the High Court and county court; and under Section 10(8) of the Children Act 1989 a child may bring his or her own application and be represented. In addition, Commons Amendment No. 46 (to Clause 24) which we shall be discussing later would require the proposed code of practice for publicly funded mediators to require mediators to have mechanisms in place to take account of the interests and wishes of children during mediation between spouses. It is important that, in relation to a child's residence and contact, those matters are taken into account. I have no wish—and when we discussed this matter before I understood your Lordships to have no wish—to embroil children unnecessarily in conflict with their parents. However, this issue relates to the welfare of the children themselves and the arrangements being made for them.

Amendment No. 53 empowers the Lord Chancellor to make regulations across a wide range of family matters, including domestic violence cases. It will be important to ensure that any such arrangements complement existing arrangements, do not duplicate them and so far as practicable, do not place children at risk or exacerbate conflict between spouses by unnecessarily dragging children into disputes between their parents. That will be a difficult and sensitive task and I shall wish to consult widely with both the children's organisations and with those who currently represent the interests of children in court proceedings before attempting to devise an effective system and to make any regulations under this provision.

As I said, we have time to do that, particularly in relation to the divorce and mediation part of this Bill. I shall, therefore, wish to consult widely on that aspect.

Lord Irvine of Lairg

My Lords, it is right to join the noble and learned Lord in acknowledging the credit that should be given to the noble Baroness, Lady Elles, for the incorporation of a list of factors which the court must take into account when deciding whether it should exercise its powers under the Children Act 1989. Commons Amendment No. 34 significantly extends that list.

The court must regard the welfare of any children of the family as paramount when considering whether it should exercise its powers under the Children Act. Also it must have regard to the wishes and the feelings of the child concerned. Usefully it extends the general principle that the welfare of the child is best served by regular contact not only with those who have parental responsibility directly for the child, but also with other members of the family.

I offer a general welcome to this group of amendments. The clauses are an important contribution to the welfare of children. They are fully in tune with the new and increasing contemporary awareness that a child is a person in his or her own right and not merely an object for concern. So the divorce court must now have regard to the interests and views of the children. They will now have a right to be consulted about the proposals which the parents are making for the future in which they have a vital interest and, if need be, to be represented separately in proceedings. That is the purpose of Amendment No. 53. It gives the Lord Chancellor the power to make regulations for the separate representation of children. I believe that that is already the law in Scotland under Section 6 of the Children (Scotland) Act 1995 and although it is early days, it seems to be working well there.

There is too often a temptation for divorcing couples to believe that because they have come to an amicable settlement and have made themselves happy, the children must also be happy. Sadly, frequently that is not the case and to the high cost of a failed marriage there must be often added a child who has gone off the rails or a daughter or son who ploughs his or her examinations. Of course, the courts can only do so much. They cannot heal the hurt to a child at losing one of its parents, if that is what happens; but at the very least it can focus on the needs of that child and ensure that, amid the clamour for dissolution and the squabbles over money and the house, the voice of the child is also heard.

In particular, we welcome Amendment No. 53 which empowers the Lord Chancellor to make regulations across a wide range of family matters including domestic violence cases. We agree with the noble and learned Lord that this is a sensitive and difficult task. In particular, we welcome his expressed desire to consult widely on these matters with the children's organisations and with those who derive their expertise from their experience gained from representing the interests of children in court proceedings. We welcome these amendments.

7.30 p.m.

Lord Renton

My Lords, the noble Lord, Lord Irvine of Lairg, has done me the favour of making the speech that I was going to make, so I can be very brief. I simply add that to my mind these are the most important amendments that have come to us from the other place. I particularly welcome the fact that they will enable the provisions of the Children Act 1989 to be dovetailed with the provisions of this legislation. The only point I wish to add now—and I hope I am in order in doing so—is that these amendments, especially the new Amendment No. 34 which inserts the new clause, which is the operative clause in this group of amendments, make the proposed Amendments Nos. 7A and 15C unnecessary. I hope that I am not out of order in anticipating that.

Baroness Young

My Lords, I welcome this group of amendments. I particularly thank my noble and learned friend the Lord Chancellor and the noble Lord, Lord Irvine of Lairg, for their kind remarks about my noble friend Lady Elles. Unfortunately, she is unable to be in her place this evening. I know that she greatly welcomes these amendments and particularly Amendment No. 34, which incorporates many of the points which she raised.

Baroness David

My Lords, I join in the general welcome for this group of amendments. I ask the noble and learned Lord two questions about Amendment No. 53 dealing with the separate representation of children which I welcome very much.

Is Section 8 of the Children Act included, bearing in mind that Section 8 orders have been perceived by judges and by childcare law and social work practitioners as a pressing lacuna in the present law? We would like to receive confirmation—because we are concerned—that panel guardians ad litem will be involved in private law proceedings given that in future we cannot depend on Family Court welfare officers being qualified social workers following the recent withdrawal by the Home Office of probation officers from social work training.

Lord Simon of Glaisdale

My Lords, when this Bill first came before your Lordships it was very thin indeed in its consideration for the welfare of children of broken marriages. That was entirely consonant with the long tradition of divorce reform which looked almost exclusively to the welfare of the parents. There was constant talk of a "dead marriage" even though there might be living young children to whom the parents had a living responsibility. The noble Lord, Lord Irvine of Lairg, implied that point.

During the course of our deliberations a noble Lord whom we all hold in very high respect actually talked about the parties, "being locked in a loveless marriage" as though a marriage with young children is other than quite exceptionally loveless. Normally, parents love their children. Their passion or even affection for each other may have deteriorated, but they still have a responsibility and other than in exceptional cases they have love for their children. It cannot properly be spoken of as a dead marriage or being locked in a loveless marriage.

One of the features of the Bill in your Lordships' House was the significant strengthening of the provisions relating to children. I join in the tributes that have been paid to the noble Baroness, Lady Elles, in that regard. The amendments in the other place have continued that and strengthened the Bill so that now, as regards divorce reform, I trust that we shall never again talk of a dead or loveless marriage where there are children but that, on the contrary, in all consideration of marriage and divorce reform the centre of our consideration shall be the children of the marriage.

Lord Meston

My Lords, I welcome Amendment No. 34 in particular. It seems to be an improvement on the existing arrangements in undefended divorce cases. As the noble and learned Lord the Lord Chancellor said, the existing mechanism derives from Section 41 of the Matrimonial Causes Act 1973. In its original form, the court was required by that section to have a hearing to consider the arrangements the parties had made or proposed for the children of the family. That section was altered—most people would say that it was watered down—by the Children Act 1989 to such an extent that there is nowadays no actual hearing before a judge. A statement of arrangement for the children is still put before the court by the parties, but in the vast majority of cases the court does not actually meet the parties themselves, it simply reads what they have put their names to.

The new clause, which stands as Amendment No. 34, amplifies the existing Section 41 procedure. I assume that the procedure under the new clause will also depend upon there being filed with the court a statement by the couple as to the arrangements proposed for the children. I ask the noble and learned Lord whether he has formulated procedures to deal with this: what concerns me is the reference in what will be new subsection (4) to the court having regard, on the evidence before it, to", there then follows a list of matters. In my mind, that begs the question of how, in practice, the court will have evidence before it of the different matters set out in that subsection. Is there going to be in place a specific mechanism to enable the court to be informed properly in every case of the wishes and feelings of the children, and so on? If these provisions are to work, there must be a proper mechanism in place to ensure that the court has before it the best information available at the time.

Lord Mishcon

My Lords, perhaps I may say how very much I, too, welcome the new clause represented by Amendment No. 34. However, I have one question for the noble and learned Lord. It arises from the use of the word "exceptional" in subsection (2)(c), which reads: there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section". Perhaps I may ask the noble and learned Lord what, to his mind, should be the court's mental direction in following the word "exceptional". Will we not have many cases in which in the circumstances it is desirable that the order should be made, but in one case a judge may well feel that he cannot regard the circumstances as "exceptional"—no guidance on that is given in the amendment—whereas another judge may think that he can regard that word loosely? Why is the word "exceptional" there?

7.45 p.m.

The Lord Chancellor

My Lords, perhaps I may take that short question first. The ordinary rules with regard to the granting of a divorce are stipulated and, ordinarily, there will be an entitlement; but where something more is required, there may be a need for postponement of the divorce notwithstanding what otherwise would be an entitlement.

The phrase "exceptional circumstances" appears in the current law, as the noble Lord knows. I have sought advice from those who exercise this jurisdiction and I am advised that no difficulties have so far been experienced. Something must be very special in situations where it is right to postpone the divorce until these powers have been exercised in connection with the Children Act procedure, where otherwise there would be an entitlement. My main point, however, is that all that we have done is to adopt the current phrase. If one wants to minimise legal argument, one is wise to adopt the current phrase unless there are some difficulties with its operation.

Reverting to the questions asked by the noble Baroness, Lady David, Section 8 of the Children Act 1989 is not included in Amendment No. 53 because Children Act proceedings are outside the scope of this Bill, as we are advised. On the rule-making powers under the Children Act, I believe that I may deal with such matters under the rule-making powers available under the Children Act.

On the point about panel guardians, I have indicated that we shall consult widely not only about the types of proceedings, the categories of case and the particular circumstances in which separate representations should be available, but also on the type and nature of that representation. We shall want to consider all types of possible representation in order to decide what is appropriate in different situations.

I turn now to the question asked by the noble Lord, Lord Meston. When the Bill was before us previously, I mentioned—perhaps more than once—that I would expect to provide (under the powers that I have to require matters to go before the court in the form of the statements that are necessary) to consult widely, particularly with children's organisations, about the way in which important factors can be brought out so that the judge—a district judge, presumably, or a judge at whatever the level may be—will have before him or her in the statement the kind of information that would throw light on whether the powers under this section (and therefore under the Children Act) require to be exercised in the particular circumstances of the case. That is the nature of the evidence that I have in mind. As the noble Lord correctly said, the efficacy of the clause depends on having such a scheme in place. As I have said, that is my intention and, again, I shall wish to consult widely about it.

I am grateful for the support that these amendments have received and for the considerable agreement on this aspect of the matter. I welcome particularly what my noble and learned friend Lord Simon of Glaisdale said. I believe that divorce reform is best conducted in a government Bill where it is possible to deal with a much wider range of matters than is normally possible when trying to carry out divorce reform through a Private Member's Bill, as has often been the case in the past.

In view of the various well deserved compliments that have been paid to various Members of your Lordships' House, I feel that it is appropriate for me to mention that the very last piece of business which my late noble friend Lady Faithfull attended in your Lordships' House was the concluding stage of this Bill when it was before us previously. All of us who remember her knew of her concern for children. I am sure that she would have been delighted to know that at long last we have made some considerable improvements as a result of having her help and I am sure that she would have welcomed the sum total of these amendments. It gives me particular pleasure to honour her memory in this way at this stage.

Noble Lords

Hear, hear!

On Question, Motion agreed to.

COMMONS AMENDMENT

7 Clause 4, page 2, line 42, at end insert— '(3A) Subject to subsection (3B), this subsection applies if—

1. (a) there is a child of the family who is under the age of sixteen when the application under this section is made; or
2. (b) the application under this section is made by one party and the other party applies to the court, before the end of such period as may be prescribed by rules of court, for time for further reflection.

(3B) Subsection (3A)—

1. (a) does not apply if, at the time when the application under this section is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family, made against the other party;
2. (b) does not apply if the court is satisfied that delaying the making of a divorce order would he significantly detrimental to the welfare of any child of the family;
3. (c) ceases to apply—
1. (i) at the end of the period of six months beginning with the end of the period of reflection and consideration by reference to which the separation order was made; or
2. (ii) if earlier, on there ceasing to be any children of the family to whom subsection (3A)(a) applied.'.

The Lord Chancellor

My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 7. I spoke to this amendment with Amendment No. 3.

Moved, That the House do agree with the Commons in their Amendment No. 7.—(The Lord Chancellor.)

AMENDMENT TO COMMONS AMENDMENT No. 7

7A Clause 4, in subsection (3A)(a), after ("made") insert ("and the court considers, on the evidence before it, that it will be in the best interests of the child for this subsection to apply").

Lord Habgood

My Lords, I beg to move Amendment No. 7A as an amendment to Commons Amendment No. 7.

Amendment No. 7A is consequential upon my other amendment, Amendment No. 15C. I should like to speak to both, with the emphasis on Amendment No. 15C. The purpose of Amendment No. 15C is to modify the impact of the Commons amendment, which extends the period of reflection by six months when there are children under the age of 16 in the family, by making the extension discretionary rather than mandatory. Amendment No. 7A simply brings the provision for separation into line with this. It provides that a separation order may not automatically be converted into a divorce order when one or both of the parties apply to the court for extension of the period of reflection on the grounds that there are children under 16. The main point of both amendments is that any extension of the period of reflection relating to children should not be automatic but should be considered by the courts when there appears to be a need for it.

The noble Lord, Lord Renton, has already said that Amendment No. 34 makes my amendments redundant. I do not believe that this is so. Amendment No. 34 relates to Clause 10 which deals with exceptional circumstances, to which the noble and learned Lord on the Woolsack has already referred, whereas my amendments refer to what may be called the ordinary process under Clause 11. These amendments in no way undermine the main provisions of the Bill as it has now been returned to us. They would not weaken the power to extend the process to 18 months when one party did not consent to the divorce. When there is a clearly established need to devote more time to the process in the interests of the children, it is right that that time should be given.

My amendments make provision for that. But they place the onus on the court to impose this rather than dispense with it, as the Bill now stands. Dispensation is possible only when there is an occupation or non-molestation order in force, which may be a very tight restriction, or when the court decides that there may be significant detriment to the interests of the children. Much will depend on how the courts use the power to dispense.

I acknowledge that the difference which my amendments make may be small in practice if the courts adopt a proactive role. Whether the courts will adopt that role is another matter; whether they will be able to do so in reasonable time is another matter still. Whether they will become clogged up with more business than they can manage by having the power of dispensation is a very serious consideration. I accept that this may work in different ways, some of which may be significant and some not. Nevertheless, I believe that there are important principles at stake here which this House ought to have another chance to consider. I am encouraged in this by a speech by Mr. Peter Bottomley in another place. In the light of what has already been said about the debate in the other place, I believe it is worth reading part of his speech. Referring to this particular argument about children, he said: That argument did not take place in Committee of the whole House, but I do not think that, after 9 p.m., after a fairly full day on Report, it is right to think that, in two or three minutes, probably under pressure from the business managers even though there might be a free vote, we can rehearse all the arguments. I simply ask that we put this idea to the other place when it considers the amendment we have made".—[Official Report, Commons, 17/6/96; col. 612] Therefore, the question to be asked is whether, if these amendments are passed, this House will be going against something which the other place has debated thoroughly. It certainly thoroughly debated the question of when one party did not consent to the divorce. I have no objection to the extension of the period of reflection to 18 months in that case. But I submit that it did not adequately discuss the particular issue which arises when there are children.

I recognise that politically there may be a risk in taking this Bill back to another place with an amendment. But, given Mr. Bottomley's invitation, I do not believe that this house can be accused of seeking, as it were, to reverse a carefully considered decision against that other place. The motives for making this change and adding an extra six months when there are children in the family are entirely admirable. But all noble Lords recognised in the lengthy debate on this point that divorce was bad for children, that it should be discouraged whenever possible and that children should be given every possible protection. It does not follow logically from such admirable intentions that automatic extension of the divorce process when there are children in the family is good for them. The argument is a non sequitur.

As my amendment recognises, extension of the period may be necessary; in other cases it may not. As we were reminded by the noble and learned Lord on the Woolsack in our debate, the main voluntary agencies concerned with the welfare of children urged against an automatic extension. I have a list of 18 such agencies. That list includes all of the most famous organisations which deal with children. They support these amendments and have urged me to propose them. We also have to consider Section 1(2) of the Children Act, which states: In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child". Therefore, my first reason for moving these amendments is that the automatic six-month extension confuses proper concern for the welfare of children with what in many cases may turn out to be a largely symbolic and possibly harmful gesture in lengthening the process. My second reason follows closely on the first. By making the presence of children in a family the basis of automatic extension the Bill will place them at the focus of the divorce process in a manner which may lead to subsequent recrimination. "But for you", says an aggrieved parent, "all this could have been settled months ago". This is not as unlikely a scenario as one may think. We should not underestimate the potential for divorce to create feelings of guilt, not least in the children of the marriage themselves.

The Bill is deeply concerned with the well being of children, but I believe that it would be wise to place the emphasis on extending the time for making a settlement on their behalf as and when it is needed rather than on making some children feel unnecessarily that they are a further complication in what otherwise might have been a straightforward process.

My third and final reason for wanting to see these clauses amended is that, as they stand, they subtly change the public perception of a marriage by drawing a legal distinction between a marriage with children and a marriage without children. Of course, having children brings additional responsibilities, but those are the responsibilities within the state of marriage—a state which I believe should carry the same implications for everyone. It is a state which is based on mutual consent. It is taken on for life, whether or not there are children, and it is a serious business to break it.

If we create a category difference, implying that it is, in legal terms, a more serious business to break a marriage with children—I am not saying that it is not more serious emotionally, but I am saying that in legal terms it is a more serious business to break a marriage with children—then I believe we have taken a step towards a different concept of marriage—a more utilitarian one in which the focus is not on the state of marriage itself, but on estimates of possible harm.

It is because I believe deeply in the holy estate of matrimony that I want to preserve the law whereby all marriages are legally equivalent, and let the issue of possible harm be treated as a separate matter for decision by the courts. I hope that latter point carries some resonances with Members of your Lordships' House so that, even if in the end we decide this matter pragmatically, it remains clear that we want to safeguard marriage as it has been traditionally understood. Although my amendments may seem to lower the hurdles on the road to divorce, I believe that they strengthen our understanding of marriage as well as safeguarding the interests of children. I beg to move.

Moved, That Amendment No. 7A, as an amendment to Commons Amendment No. 7, be agreed to.—(Lord Habgood.)

Lord Harmsworth

My Lords, my name is down to Amendments Nos. 7A and 15C. As the noble Lord, Lord Habgood, said, Amendment No. 15C is a substantive amendment and Amendment No. 7A is a consequential one. I speak to these amendments with a measure of humility because I did not speak at earlier stages of the Bill. I know that the subject matter of the Bill is deeply felt, and quite rightly so, by your Lordships. All the more so perhaps because we are considering amendments from another place. We have already heard some of the constitutional points that we should be bearing in mind. I hope that my noble friend Lord Renton will contribute further points if he has any to make.

Although the amendments are fundamental, in effect they are gentle. What is important is that they strengthen the Bill—one of the major roles of your Lordships' House and one for which it is rightly famous.

The noble Lord, Lord Habgood, said that the amendments in no way undermine the Bill's main provisions, and will not weaken the power to extend to 18 months the period for reflection and consideration.

I am certain that if the Bill becomes law, as I hope it will, it will not be long before all possible routes to short-cut the system will be tested. If there is a short cut, before long it will be well-trodden.

As drafted, there are two categories of marriage: couples with no children under 16, and couples with children under 16. One thing I do not like about it is the automaticity of the extra six months that is triggered by the fact that a child under 16 is involved. That presents scope for harm to the children. The two amendments neatly and easily remove that danger. I do not like the two-tier system. The provisions are unnecessary in so far as there are many safeguards already built in for the protection of the children.

My fear is that the Bill, as currently drafted, will result in couples wanting a quicker divorce, using the children to achieve their end. That is something that your Lordships and Members of another place have, throughout the Bill, wished to avoid.

Parents have a card to play: the significant detriment to the child's welfare. The children would, as the noble Lord, Lord Habgood, said, become the focus of litigation. That is an avoidable danger. The faster and more flexible resolution of the situation which the amendments provide will bring the Bill into line with the central tenets of the Children Act and with Clause 1(c)(ii) in which there is the positive requirement that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end … with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances". That is a positive approach to the problem.

I am not a lawyer, but I suspect that the amendments make the work of the courts easier. The noble and learned Lord, Lord Simon of Glaisdale, has already said words to that effect. The amendments would clarify and strengthen their position.

On the constitutional points, the noble Lord, Lord Habgood, said that my honourable friend Mr. Bottomley in another place has asked Members of this House to move the amendments. He pointed out the lateness of the hour at which they were considered, and the circumstances.

I support the amendments. They are innocuous in so far as they do not change anything fundamentally but improve and clarify the Bill. I hope that noble Lords will support the amendments.

Earl Russell

My Lords, I, too, support the amendments to which I have put my name. When the Bill was last before us, we had lengthy arguments about whether it was in the best interests of children for the parents to stay together for the sake of the children or to release the children from a marriage which was on the rocks. The noble and learned Lord, Lord Simon of Glaisdale, has just given your Lordships an echo of those arguments. I shall resist the temptation to respond.

The noble Lord, Lord Habgood, has brought to this—I would hesitate to describe an amendment concerned with the welfare of children as a judgment of Solomon—at least a judgment of great wisdom. The noble Lord said that one case is not exactly like another, and for that reason the decision as to whether it is in the interests of the child is best taken by the court. I agree with him. I am delighted that he put down the amendment, and I warmly support it.

Lord Irvine of Lairg

My Lords, I can see the point of the amendment tabled by the noble and right reverend Lord, Lord Habgood. However, I am not persuaded that the point is important enough in practice to differ from the Commons. I am not persuaded for the reasons which he acknowledged in moving the amendments most persuasively. I do not believe that in practice it will make much difference if the court has to decide whether it is in the best interests of the children for the 12 months to be extended to 18, or for the court to have to decide whether to abbreviate the 18 months to 12, if satisfied that the making of the divorce would be significantly detrimental to any child of the family. I am not satisfied that in practice there will be any material difference between the operation of the two approaches and therefore I am not persuaded that we should differ from the Commons in line with the noble and right reverend Lord's two amendments.

Finally, I wish to comment on the noble Lord's two tier marriage point. My view is that a year for reflection and consideration is adequate both where there are children and where there are not. However, another view has prevailed in the other place and it must be accepted that when contemplating breaking a marriage there is more to think about when there are children than when there are not. I find the two tier marriage point a little too abstract and I do not support the amendments.

Earl Russell

My Lords, before the noble Lord sits down, do I understand that in putting the argument that this is not important enough to persist with he attempts to impale the House upon a fork? Either an amendment from the other place is not important enough to be worth changing or it is too important to take the risk. Would he agree that it is not in the interests of this House to allow itself to be impaled upon that fork?

Lord Irvine of Lairg

My Lords, I do not recognise the fork. I simply see no difference in substance between the two approaches and therefore I oppose making a change which I regard as unnecessary.

Baroness Young

My Lords, I hope very much that the House will not agree with the amendment tabled by the noble and right reverend Lord, Lord Habgood. I do not accept for one moment his argument about two tier marriages. The view that I and a great many of my colleagues have taken consistently on this Bill is the need to buttress marriage. I should have preferred to have a two year period for reflection. Under the 1969 Act, if one party did not consent the period was up to five years.

However, I accepted that in life one must consider all the arguments and must frequently compromise. I accepted that in the case of a couple who have no children and both agree to the divorce one year is long enough. That is not in any way to undervalue marriage. A divorce is a tragedy in any event. In the case where there are children I wish to see the period extended to 18 months and I completely accept the qualifications to that which were made in another place on a free vote and which I am glad to see.

As I read the amendments tabled by the noble and right reverend Lord he is saying that in the Commons amendment the period is kept to 12 months where the court believes that it would be significantly detrimental for the period to be longer. Commons Amendment No. 7 makes consequential amendments to the arrangements for the conversion of a separation order into a divorce order. It has been agreed to extend the period by another six months if there is a child of the family under the age of 16 but the noble and right reverend Lord's Amendments Nos. 7A and 15C tack on the phrase: and the court considers, on the evidence before it, that it will he in the best interests of the child for this subsection to apply". It seems to me that the amendments would require the party who objects to the divorce to prove that a six months' extension is in the best interests of the children. That would put children at the very centre of the dispute as to whether the period should be 18 months or one year. I should have thought that that was not in the best interests of children or of achieving the least acrimonious settlement following the divorce. I do not follow the advantages of the amendment and I hope that it will not be agreed to.

8.15 p.m.

Lord Renton

My Lords, perhaps I should try to reassure the noble and right reverend Lord, Lord Habgood, about the effect of Clause 4 upon the two amendments. The provision in Amendment No.6, once the requirements of section (Welfare of children) have been satisfied", invokes Amendment No. 34. We must bear in mind the opening words of that amendment, which are: In any proceedings for a divorce order or a separation order, the court shall consider", and there appears a list.

As the issue has been brought into Clause 4 I do not see how the court could fail to consider the matters under Amendment No. 34, which are set out and which invoke the Children Act 1989, the opening words of which provide that when deciding any case under this Act the welfare of the children shall be paramount.

Baroness O'Cathain

My Lords, having listened carefully to the noble and right reverend Lord, Lord Habgood, there is no way in which I can support the amendments. Despite what the noble Lord said, marriage is very different when there are children and when there are not. Although a divorce in which there are no children is a disastrous situation it is easier to sort out, for instance, the financial and housing matters. When children are involved there is much more to be contemplated; for example, the educational needs, the future emotional needs, the housing needs and the financial strains which are inevitable following a divorce. For all those reasons I believe that Amendment No. 34 is the best that we can hope for and I hope that this House will not overturn it.

Lord Stoddart of Swindon

My Lords, I too oppose the amendments moved by the noble and right reverend Lord, Lord Habgood. I am surprised that he has insisted that children make no difference to a marriage. After all, marriage is about having children more than anything else. It is my belief, and I expressed it in Committee and on Report, that children mean that there at least three people to be considered in any matters of divorce and not just two.

As was pointed out, the interests of children are often different from the interests of the parent. They should therefore be paramount and it will take a great deal longer to settle those interests to suit the children and not the parents. That is why I believe that it is necessary to have the extra period of six months. I do not believe that it should be qualified in the way that the amendments suggest. It may only be a matter of nuance but, on the other hand, it may be more important than that when it comes to the practicalities. I believe that the safeguards set out in subsection (3B) are adequate to deal with any difficult situation.

The amendments proposed by the noble Lord will in fact increase the difficulties of the divorce in that parents will seek to use their children in arguments before the court to reduce the time from 18 months to 12 months. In that case, the children become a sort of marital football between the parties. For those reasons, I shall certainly oppose the amendments moved by the noble Lord and, indeed, I hope that he will decide not to press them.

The Lord Chancellor

My Lords, I have said already something about this matter but I should like to express my submissions to your Lordships a little more fully.

First, the amendment that the House of Commons has proposed is not automatic in the sense that the court has a power to disapply it in a situation where the postponement would be significantly detrimental to the welfare of any child of the family. Therefore, there is an overriding and important power in the court in respect of any damage to the welfare of a child of the family.

The second point that I wish to make is that the noble Lord, Lord Habgood, pointed out that he does not wish to distinguish, from the point of view of the marriage itself, between a marriage with children and a marriage without children. The obligations of the marriage as between the parties are substantially the same. Of course, when children come into the world as a result of a marriage, there are new obligations to the children which both parents have as a result of that fact. But the nature of the marriage itself is not affected.

The point that I make in response to that is that the noble Lord's amendments will permit postponement of the divorce where there are children. Therefore, he has also to recognise that from the point of view of the divorce arrangements, they will be different or may be different in a case where there are children as affecting the divorce itself. Of course, there are other arrangements but, as affecting the divorce, the noble Lord's amendments, equally with those which have been passed by the Commons, give a different status to a marriage where there are children from where there are none. That is because in the case of a marriage with children, there is a power in the court to postpone the divorce to the 18 month period or the additional six month period according to the situation of the children.

The next point that I wish to make echoes a point made by the noble Lord, Lord Irvine of Lairg. In practice, the difference between those two formulations will be relatively small because if it is in the best interests of the children that the divorce should be postponed, it is likely not to be detrimental to their welfare. On the other hand, if it is not in the best interests of the children that the divorce be postponed, it will be detrimental to the welfare of the children. Therefore, those are mirror images, the one of the other.

I should like to make one other point which was made by my noble and learned friend Lord Ackner during our discussions on Third Reading on the amendment moved by my noble friend Lady Young. Of course, at that time, that did not contain the power of the court to disapply the extension. My noble and learned friend said that in a case where there are children—and my noble friend Lady O'Cathain also made this point—the arrangements are likely to be more complicated and take more time to sort out than if there are no children. So it is highly likely that, in any event, the arrangements will take a good part, if not the whole, of the 18 months. Therefore, there is very little in it.

I suggest respectfully to your Lordships that the difference in practice between the amendment proposed by the noble Lord and the amendments which the Commons have passed is not sufficient to justify the view that we should invite the Commons to reconsider. It is true that the matters were discussed on a free vote as part of a Committee of the Whole House. We must remember, at least I wish to remember, that the House of Commons ultimately passed all the provisions of this Bill with a very large majority. It had a majority of 418 in favour of the Bill which is quite unusual in relation to the Third Reading of a Bill. Therefore, the package as a whole has been very forcefully endorsed.

Of course I understand the concerns of the children' organisations and others. But I feel that those considerations were well before the House of Commons because they were expressed very fully in our debate on Third Reading. The amendment moved on Third Reading embraced those points and, indeed, as some of your Lordships may remember, I read out a very succinct communication from well-known children's charities making those points.

The House of Commons has taken account of that by giving the court the power to disapply that extension where it would be detrimental to the interests of the children that that extension should apply. Therefore, I hope that the noble Lord, Lord Habgood, will feel that this matter has been considered again in your Lordships' House but that, having regard to all the circumstances and the stage which we have reached, it would not be wise to press this amendment.

I give that view as a personal view. Of course, this is a free matter. But having considered as carefully as I can and with a great deal of sympathy the point of view of the children's organisations, I think in practice the court is likely to distinguish in no degree between those two formulations and that the House of Commons has dealt quite reasonably with the point.

Lord Habgood

My Lords, I am grateful to all those who have spoken on the amendment and in particular to the noble and learned Lord on the Woolsack for what he has just said.

Despite what has been said, a certain confusion still persists. It seems to me that there is still an important difference of principle at stake here. While I accept readily that distinctions occur within marriages and within the divorce process where there are children, those distinctions arise out of perceived difficulties. Clearly, where there are perceived difficulties, the process needs to be changed.

I am exercised about the long-term implications of having two categories of marriage because that is in effect what the Commons amendment would provide. Therefore, I regret that as an ex-Prelate, I am speaking on a moral plane about something which concerns me and many other people very deeply.

I recognise also that there are difficult political issues at stake here and I am not sufficient of a politician to be able to judge the political risks in all this. Indeed, I have already shown my political incompetence by quoting from a speech in another place and naming the person concerned, for which I apologise humbly. However, it seems to me that your Lordships' House is full of people with much more political nous than I have and that that insight would carry the day if I were to divide the House.

I am also conscious that 18 agencies have formed a coalition to sponsor these amendments and they are looking to me to see that this matter gets a fair hearing. I find myself in a tremendous quandary. I have no wish to create difficulties, but I feel that in fairness to those people it would be right for this House to make a decision. I shall leave it to the politicians to decide what is the wisest course to take, while trying to continue my assertion that on the moral level there is a substantial point at stake here. I therefore ask the House to make this decision.

On Question, Amendment No. 7A, as an amendment to Commons Amendment No. 7, negatived.

On Question, original Motion agreed to.

COMMONS AMENDMENT

8 Clause 5, page 3, line 4, leave out from 'statement' to 'has' in line 9.

8.30 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8, and with this amendment I would like to speak to Amendments Nos. 32, 35 and 36. Amendments Nos. 8 and 32 amend Clause 5 and Clause 9. Clause 5(1)(a) requires that where the division of pensions may be involved the statement of marital breakdown was made by statutory declaration. These amendments remove that requirement and instead require that where the division of pension assets may be involved any declaration relating to the couple's financial arrangements, which accompany the application for a divorce or separation order, must be a statutory declaration. These amendments do not affect the principle of pension splitting.

Amendment No. 35 paves the way for introducing pension splitting on divorce. It replaces the parts of Clause 15 relating to England and Wales, and Amendment No. 36 removes those parts from Clause 15, leaving behind a part which attempts to extend Amendment No. 35 to Scotland.

As I said at an earlier stage of this Bill, the Government are fully committed to the principle of pension splitting and we acknowledge the strength of feeling on this matter. While we have stated our belief that legislation in this Bill is premature we have, nevertheless, accepted the desire to see the principle of pension splitting on the face of the Bill, and so made no attempt to overturn the original Clause 15 in the other place. As I pointed out to your Lordships, that clause expressed the principle but did not will the means to put it into practice. The amendment before us today attempts to will us the means, in the absence of a full policy, by giving a range of delegated powers to my noble and learned friend the Lord Chancellor. It is not clear that even these wide powers would be capable of delivering full policy when that is settled.

Clearly, those who proposed this amendment in the other place are well aware of the range of changes likely to be required. Thus they have given my noble and learned friend powers to amend by regulation, not only secondary, but also existing primary legislation, and via the negative procedure at that. Furthermore, the noble and learned Lord the Lord Chancellor will have to use these powers to make important changes to pensions and tax law.

I have some reservations about this Henry VIII procedure, having been taught by a few of your Lordships the intricacies of this historic debate. Our work on pension splitting has already identified a considerable number of issues which, under this clause, would demand changes to regulations. That work is on course for the publication of a Green Paper at the end of July. I am sure your Lordships will welcome that. In that Green Paper we will raise all the key issues associated with pensions splitting, and seek the views of interested parties. It will look into, for example, such issues as whether state as well as non-state rights should be included, what rights a non-scheme member's spouse should be given, what obligations scheme managers should have, and to what extent their discretion should be fettered.

We will then proceed with developing a full package of policy proposals and afterwards we envisage publishing a White Paper, followed by legislation as soon as is practicable. We believe that this is a better way to proceed, not only for those who are likely to use pension splitting, but also for the pension industry and other non-divorcing scheme members.

I am convinced that further primary legislation will be necessary. However, I am mindful of the strength of feeling on this issue. The House obviously wishes to see pension splitting on the face of this Bill, and despite my reservations concerning Henry VIII procedures, I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Mackay of Ardbrecknish.)

On Question, Motion agreed to.

COMMONS AMENDMENT

9 Clause 5, page 3, line 27, leave out 'more than one year' and insert 'one year ("the specified period")'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. I should like to speak also to Amendments Nos. 10, 11 and 12.

The Bill has always allowed parties to suspend the passing of the period for reflection and consideration, by notifying the court that they wish to attempt reconciliation. These amendments provide that the passing of the lapse period, following the period for reflection and consideration, can also be suspended for the same reason. This will therefore encourage attempts at reconciliation right up until the time of an application for a divorce or separation order. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 9.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

10 Clause 5, page 3, line 30, after 'the' insert 'specified'. 11 Page3, line 30, at end insert— '(4A) Subsection (4B) applies if, before the end of the specified period, the parties jointly give notice to the court that they are attempting reconciliation but require additional time. (4B) The specified period—

1. (a) stops running on the day on which the notice is received by the court; but
2. (b) resumes running on the day on which either of the parties gives notice to the court that the attempted reconciliation has been unsuccessful.

(4C) If the specified period is interrupted by a continuous period of more than 18 months, any application by either of the parties for a divorce order or for a separation order must be by reference to a new statement received by the court at any time after the end of the 18 months.'. 12 Page3, leave out line 32 and insert 'the specified period'.

The Lord Chancellor

My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 10, 11 and 12 en bloc.

Moved, That this House do agree with the Commons in their Amendments Nos. 10, 11 and 12 en bloc.—(The Lord Chancellor).

On Question, Motion agreed to.

COMMONS AMENDMENT

13 Clause 7, page 4, line 26, leave out 'one year' and insert 'nine months'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 13. At the same time, I should like to speak to Amendment No. 16.

This amendment reduces the period for reflection and consideration from one year to 9 months. Amendment No. 16 provides that no statement of marital breakdown may be made fewer than three months after attendance at an information meeting. This is in order that there may be a three month 'cooling-off' period between attendance at an information meeting and the making of a statement. Other amendments which have already been debated provide that this three month period will be used to provide parties with an opportunity to have a meeting with a marriage counsellor and that the party or parties attending the meeting would be encouraged to take up that offer, although they would not be compelled to do so.

It was always the intention that the extra three months given to parties to consider the information that they had received should not extend the overall period for reflection and consideration. Amendment No. 13 provides for this. Were the period for reflection and consideration to remain at 12 months, the overall period would be 15 and 21 months. The view taken on a free vote in the other place was that the overall period should be 12 months or 18 months if the six month extension were to apply.

This really gives effect to the desire that a number of your Lordships expressed, including my noble friend Lady Young, that the period of reflection and consideration should have, effectively, meant a period in which conciliation was the primary matter in issue. This is a way of arriving at that solution. I hope noble Lords will feel able to accept the amendment.

Moved, That this House do agree with the Commons in their Amendment No. 13.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

14 Clause 7, page 5, line 2, leave out 'give joint' and insert 'jointly give'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 14.

In moving the above amendment I shall speak also to quite a large number of other Commons amendments which are linked, to some extent, by their diversity, but also by the fact that they are minor. I should like to speak to Amendments Nos. 54 to 58 inclusive, Amendment No. 78, Amendments Nos. 83 to 92, Amendments Nos. 95, 104, 108, 109, 113, 117 to 127 and 129 to 137. They are all minor technical, consequential and drafting amendments which do not make any policy changes.

Moved, That the House do agree with the Commons in their Amendment No. 14.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

15 Clause 7, page 5, line 14, at end insert— '(10) Where an application for a divorce order is made by one party, subsection (13) applies if—

1. (a) the other party applies to the court, within the prescribed period, for time for further reflection; and
2. (b) the requirements of section 9 (except any imposed under section 9(3)) are satisfied.

(11) Where any application for a divorce order is made, subsection (13) also applies if there is a child of the family who is under the age of sixteen when the application is made. (12) Subsection (13) does not apply if—

1. (a) at the time when the application for a divorce order is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family made against the other party; or
2. (b) the court is satisfied that delaying the making of a divorce order would be significantly detrimental to the welfare of any child of the family.

(13) If this subsection applies, the period for reflection and consideration is extended by a period of six months, but—

1. (a) only in relation to the application for a divorce order in respect of which the application under subsection (10) was made; and
2. (b) without invalidating that application for a divorce order.

(14) A period for reflection and consideration which is extended under subsection (13) and which has not otherwise come to an end, comes to an end on there ceasing to be any children of the family to whom subsection (11) applied.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No.15. I spoke to this amendment when dealing with Amendment No. 3.

Moved, That the House do agree with the Commons in their Amendment No. 15.—(The Lord Chancellor.)

8.45 p.m.

MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT No. 15

15A That this House do disagree with the Commons in their Amendment No. 15.

Earl Russell rose to move, That this House do disagree with the Commons in their Amendment No. 15.

The noble Earl said: My Lords, before attempting to give the noble and learned Lord on the Woolsack one last run for his money, I should like to pay tribute to the way that he has handled the Bill from the very beginning. First, I should like to pay tribute to the exhaustive—and I should imagine that the noble and learned Lord would wish to add the word "exhausting"—process of consultation that he has undertaken. As one who has many times complained of inadequate consultation, it really is incumbent upon me to pay tribute to more than adequate consultation where we find it.

Secondly, I should like to pay tribute to the noble and learned Lord's skill, good humour and, indeed, the patience of the blessed Job with which he has handled the business as it has gone through the House. If it should fall to anyone on this side of the House to bring in a major piece of legislation, I can think of no better model to follow for how it should be done. But, as the Bill went through its passage in both Houses, I have also come to the conclusion that the best Bill was the one which the noble and learned Lord first put before us. In relation to Part IV, I mean the part that went through the Jellicoe procedure last Session. I believe that that is a tribute to the noble and learned Lord's skill. My intention here is to restore the Bill to the state in which the noble and learned Lord first introduced it.

On all the other amendments that we have discussed tonight we have seen the extent of the noble and learned Lord's skill in producing consensus. When I say that the best Bill was the one that he first placed before us, I do not mean the Bill that I personally would have liked most. The job of a Bill on this subject is to secure the consent of as wide a group of people as possible. I believe that the noble and learned Lord got that right the first time and that the changes which have been introduced since then have diminished the range of consent. In particular, the Law Society's withdrawal of consent to the Bill was a hammer blow of which we must take considerable account.

When a piece of legislation of this sort is introduced, it must be necessary to hope that it will last for at least a generation. I believe that the Bill the noble and learned Lord first introduced met that criterion. The Bill as we have it now, after bitter battles in the course of its passage, falls short of meeting it.

The arguments on the matter are well rehearsed. Your Lordships may be relieved to hear that I shall not go through them at length; indeed, I believe that most of us know them. The noble Baroness, Lady Young—to whose conduct during the passage of the Bill I must also pay tribute—has always argued that one preserves marriage by making divorce more difficult. However, on the other hand, I have argued that by making divorce more difficult all one achieves is making break-up more painful. I do not think that we shall reach agreement. I believe that everyone knows where they stand in that respect. Therefore, I shall not pursue the matter further.

However, people tend to come out of marriage suffering from centrifugal force, very much in the way that certain people come out of a political party when they leave it. I believe that we risk having a large number of messy and disorderly separations where people are living with one person while married to another. Further, I think that we shall see a considerable fall in the number of couples who choose to go through the ceremony of marriage.

A decline in the number of couples who choose to go through the marriage ceremony may not dismay me as much as it may dismay some of your Lordships. But, if there are couples who wish to go through that ceremony, then, to deter them from so doing when they would wish to do so, would, on good liberal principles, be something that I mind very much indeed. I believe that that will be the effect of leaving the Bill in its current form. Therefore, if we are to gain consent, especially from younger people whose attitudes to such matters are changing steadily—and it is a change which we all must in one way or another accommodate—we would do better to put the Bill back to where it was when the noble and learned Lord first presented it to us. It is to put down a marker for that position that I have decided to place the amendment before your Lordships tonight.

Moved, That this House do disagree with the Commons in their Amendment No. 15.—(Earl Russell.)

The Lord Chancellor

My Lords, as I said, so far as I am concerned, the way that one makes progress on such an issue is by free votes and then by embracing the result of that vote in carrying it forward. Of course the noble Earl is perfectly entitled to say—as, indeed, he did earlier—that the same principle of a free vote applies here. However, in the circumstances in which we are placed, and taking into account the way that the matter has developed, I humbly suggest that your Lordships would be wise to embrace the decision which the other place has taken on a free vote.

In relation to the previous amendment moved by the noble Lord, Lord Habgood, I said that, in practice, there is not likely to be such a tremendous difference as in theory might appear to be the case. The same is to some extent true in this case. If one has a situation where the parties are not in agreement so far as concerns divorce, it is likely that the making of arrangements between them will also take quite a considerable time. One of the features of this Bill to which I attach great importance is that, before divorce is granted, those arrangements must be made. Therefore, in practice—and it is the practical rather than the theoretical effect of the law that we should look at—I believe that the results would not be very different.

For my part, as I said, it is a free matter and your Lordships must deal with it on that basis. However, I personally suggest to your Lordships that it would be wise to accept the judgment of the other place and reject the Motion to disagree with Commons Amendment No. 15.

Earl Russell

My Lords, perhaps I may reply briefly. I respect the arguments about the practical issues. However, I am not quite so impressed by the arguments about the other place. I believe that this place is free to take its own view on any matter. It is free to disagree with another place when it sees fit. I do not sense among your Lordships any great appetite tonight to take the matter further, though it is a matter to which we shall return in the next Parliament. It may return in a rather more laborious form than it would have done tonight. However, I sense the mood of the House and, in the circumstances, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

AMENDMENT TO COMMONS AMENDMENT No. 15

15B Clause 7, in subsection (10), leave out paragraph (a) and insert—

1. "(a) the other party objects (whether or not because of deeply held religious beliefs)—
   1. (i) to being divorced, or
   2. (ii) to being divorced without time for further reflection,
   and applies to the court before the end of such period as may be prescribed by rules of court for time for further reflection;
2. (b) the application under paragraph (a) states that objection; and".).

Baroness Young

My Lords, I beg to move Amendment No. 15B as an amendment to Commons Amendment No. 15. I shall speak briefly on this matter. I have tabled this amendment because it is my understanding that a number of Members in another place wished to have this amendment but time did not allow it to be debated. I hope I am correct in saying that an understanding was given by the parliamentary Under-Secretary, my honourable friend Mr. Streeter, that the Government would look on this matter favourably.

As it is set out, this is quite a simple amendment. It signals to the court that an objection to a divorce is implicit in Amendment No. 15. However, my Amendments Nos. 15B and 15D allow this objection to be recorded on the divorce order. The party objecting to the divorce is free to decide whether or not the objection is recorded. This is not a matter which I would think of pressing to a Division. It is quite straightforward. I hope that my noble and learned friend will say that when he considers regulations under the Bill this point may be considered. I beg to move.

Moved, That Amendment No. 15B, as an amendment to Commons Amendment No. 15, be agreed to.—(Baroness Young.)

The Lord Chancellor

My Lords, this amendment was in the "free vote territory" in which the Government did not express a view. My honourable friend the Parliamentary Secretary—the Lord Chancellor is different from others in that he has a Parliamentary Secretary rather than a Parliamentary Under-Secretary, as the Lord Chancellor is not himself a Secretary, at least not technically—Mr. Streeter, indicated that he would be prepared to support this amendment if it were moved, but it was never moved.

The precise form of this amendment is open to question. I do not think I need to delay your Lordships by discussion of that in view of the way my noble friend has presented the matter. The question of the form of orders and so on is a matter that may be within the competence of the relevant rule committee; that is, a body which would have authority to deal with matters of practice and procedure. I am willing to draw the attention of that body to the matter that my noble friend has raised and await the outcome of its deliberations on that. I hope that, with that indication of the way in which I would handle this matter, my noble friend may feel that the purpose of her amendment has been sufficiently served.

Baroness Young

My Lords, I thank my noble and learned friend for that practical suggestion. I think that is the way to proceed. As I am on my feet, I must apologise to him for describing the Parliamentary Secretary in another place incorrectly. I hope I have it right now and I trust I shall not make that mistake again. I am grateful for what my noble and learned friend has suggested. I beg leave to withdraw Amendment No. 15B.

Amendment No. 15B, as an amendment to Commons Amendment No. 15, by leave, withdrawn.

[Amendments Nos. 15C and 15D not moved.]

On Question, Motion agreed to.

COMMONS AMENDMENT

16 Clause 8, page 5, line 17, after 'meeting', insert 'not less than three months'.

The Lord Chancellor

My Lords, I have spoken to this with Amendment No. 13. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 16.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

17 Page 5, line 17, at end insert '(2A) Different information meetings must be arranged with respect to different marriages.'

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17. With this amendment I wish to speak also to Amendments Nos. 18, 19 and 21 to 26 inclusive.

I am pleased to present this group of amendments to the House. I recall some of the concerns which were expressed by some of your Lordships during the Bill's passage through this House, and I believe that this group of amendments addresses those concerns. In particular, the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Archer of Sandwell, expressed concern about the privacy of information meetings. Amendment No. 17 provides for meetings to be held not as group meetings but with parties attending individually, although it is drafted in such a way as to allow both spouses to attend together or with a third party to accompany them if they so wish. The noble Baroness also expressed concern about the identification and qualification of information providers. I believe that Amendments Nos. 19, 21 and 23 satisfy this concern.

Finally, Amendments Nos. 24, 25 and 26 extend the list of matters set out in Clause 8 of the Bill, about which regulations must make provision for information to be given at the information meeting. The additional points are protection against domestic violence and how to obtain support and assistance, legal representation, and the principles of the legal aid scheme and how the parties can get advice about obtaining legal aid. I would emphasise that the list now contained within Clause 8 is not exhaustive. It is still intended to pilot the information meetings extensively, and to develop the exact format and content accordingly. Amendments Nos. 18 and 22 are simply drafting amendments. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 17.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

18 Page 5, line 28, after 'purpose', insert '—(a)'.

19 Page 5, line 28, leave out 'the party or parties attending with relevant information' and insert ', in accordance with prescribed provisions, relevant information to the party or parties attending'.

20 Page 5, line 30, at end insert- '; and (b) of giving the party or parties attending the information meeting the opportunity of having a meeting with a marriage counsellor and of encouraging that party or those parties to attend that meeting'. 21 Page 5, line 30, at end insert— '( ) An information meeting must be conducted by a person who—

1. (a) is qualified and appointed in accordance with prescribed provisions; and
2. (b) will have no financial or other interest in any marital proceedings between the parties.'.

22 Page 5, line 35, leave out 'and'.

23 Page 5, line 38, at end insert— '(d) for information of a prescribed kind to be given only with the approval of the Lord Chancellor or only by a person or by persons approved by him; and (e) for information to be given, in prescribed circumstances, only with the approval of the Lord Chancellor or only by a person or by persons approved by him.'.

24 Page 6, line 2, at end insert— '( ) protection available against violence, and how to obtain support and assistance;'.

25 Page 6, line 4, at end insert 'and representation'.

26 Page 6, line 4, at end insert— '( ) the principles of legal aid and where the parties can get advice about obtaining legal aid;'.

27 Page 6, line 8, at end insert— '( ) A meeting with a marriage counsellor arranged under this section—

1. (a) must be held in accordance with prescribed provisions; and
2. (b) must be with a person qualified and appointed in accordance with prescribed provisions.'.

28 Page 6, line 8, at end insert— '( ) A person who would not be required to make any contribution towards mediation provided for him under Part IIIA of the Legal Aid Act 1988 shall not be required to make any contribution towards the cost of a meeting with a marriage counsellor arranged for him under this section.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 18 to 28 en bloc. I have spoken to Amendments Nos. 18 and 19 with Amendment No. 17; to Amendment No. 20 with Amendment No. 1; to Amendments Nos. 21 and 22 with Amendment No. 17; to Amendments Nos. 23, 24, 25 and 26 with Amendment No. 17; to Amendment No. 27 with Amendment No. 1; to Amendment No. 28 with Amendment No. 1; to Amendment No. 29 with Amendment No. 6; to Amendments Nos. 30 and 31 with Amendment No. 2 and to Amendment No. 32 with Amendment No.8.

Moved, That the House do agree with the Commons in their Amendments Nos. 18 to 28. —(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

29 Clause 9, page 6, line 42, leave out from 'section' to 'must' in line 44 and insert '(Welfare of children)'.

30 Page 7, line 6, leave out 'or'.

31 Page 7, line 7, at end insert', or (d) those set out in paragraph 3A of that Schedule,'.

32 Page 7, line 9, at end insert— '(8) If the parties' arrangements for the future include a division of pension assets or rights under section 25B of the 1973 Act or section 10 of the Family Law (Scotland) Act 1985, any declaration under subsection (2) must be a statutory declaration.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 29 to 32 en bloc.

Moved, That the House do agree with the Commons in their Amendments Nos. 29 to 32.—(The Lord Chancellor.)

On Question, Motion agreed to.

The Lord Chancellor

My Lords, I am asked at the next convenient break in Business—what more convenient break can there be than this?—to make the following announcement: in the second Division, on the Security Service Bill, the figure for the Not-Contents was announced as 107. This figure should have been 109.

COMMONS AMENDMENT

33 Clause 10, page 7, line 31, leave out from 'if' to 'after' in line 32 and insert 'an application is made under section 3 or 4(3)'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 33.

This amendment simply rectifies an earlier omission in the Bill. Under Clause 10(4), after cancellation of an order preventing divorce, a divorce order can be made if an application is made under Clause 3 or Clause 4(3) of the Bill. The provision had previously failed to refer to the possibility of an application for a divorce order being made under Section 4(3), hence this amendment. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 33.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

34 After Clause 10, insert the following new clause—

WELFARE OF CHILDREN

'.—(1) In any proceedings for a divorce order or a separation order, the court shall consider—

1. (a) whether there are any children of the family to whom this section applies; and
2. (b) where there are any such children, whether (in the light of the arrangements which have been, or are proposed to be, made for their upbringing and welfare) it should exercise any of its powers under the Children Act 1989 with respect to any of them.

(2) Where, in any case to which this section applies, it appears to the court that—

1. (a) the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Children Act 1989 with respect to any such child;
2. (b) it is not in a position to exercise the power, or (as the case may be) those powers, without giving further consideration to the case; and
3. (c) there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section,

it may direct that the divorce order or separation order is not to be made until the court orders otherwise.

(3) In deciding whether the circumstances are as mentioned in subsection (2)(a), the court shall treat the welfare of the child as paramount.

(4) In making that decision, the court shall also have particular regard, on the evidence before it, to—

1. (a) the wishes and feelings of the child considered in the light of his age and understanding and the circumstances in which those wishes were expressed;
2. (b) the conduct of the parties in relation to the upbringing of the child;
3. (c) the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by—
1. (i) his having regular contact with those who have parental responsibility for him and with other members of his family; and
2. (ii) the maintenance of as good a continuing relationship with his parents as is possible; and
4. (d) any risk to the child attributable to—
1. (i) where the person with whom the child will reside is living or proposes to live;
2. (ii) any person with whom that person is living or with whom he proposes to live; or
3. (iii) any other arrangements for his care and upbringing.

(5) This section applies to—

1. (a) any child of the family who has not reached the age of sixteen at the date when the court considers the case in accordance with the requirements of this section; and
2. (b) any child of the family who has reached that age at that date and in relation to whom the court directs that this section shall apply.'.

35 After Clause 14, insert the following new clause—

DIVISION OF PENSION RIGHTS

'.—(1) The Matrimonial Causes Act 1973 is amended as follows.

(2) In section 25B (benefits under a pension scheme on divorce, etc.), in subsection (2), after paragraph (b), by inserting— (c) in particular, where the court determines to make such an order, whether the order should provide for the accrued rights of the party with pension rights ("the pension rights") to be divided between that party and the other party in such a way as to reduce the pension rights of the party with those rights and to create pension rights for the other party.".

(3) After subsection (7) of that section, by adding—

"(8) If a pensions adjustment order under subsection (2)(c) above is made, the pension rights shall be reduced and pension rights of the other party shall be created in the prescribed manner with benefits payable on prescribed conditions, except that the court shall not have the power—

1. (a) to require the trustees or managers of the scheme to provide benefits under their own scheme if they are able and willing to create the rights for the other party by making a transfer payment to another scheme and the trustees and managers of that other scheme are able and willing to accept such a payment and to create those rights; or
2. (b) to require the trustees or managers of the scheme to make a transfer to another scheme—
1. (i) if the scheme is an unfunded scheme (unless the trustees or managers are able and willing to make such a transfer payment); or
2. (ii) in prescribed circumstances.

(9) No pensions adjustment order may be made under subsection (2)(c) above—

1. (a) if the scheme is a scheme of a prescribed type, or
2. (b) in prescribed circumstances, or
1101
3. (c) insofar as it would affect benefits of a prescribed type.".

(4) In section 25D (pensions: supplementary), by inserting— (a) in subsection (2) —

1. (i) at the end of paragraph (a), the words "or prescribe the rights of the other party under the pension scheme,"; and
2. (ii) after paragraph (a), the following paragraph—

(aa) make such consequential modifications of any enactment or subordinate legislation as appear to the Lord Chancellor necessary or expedient to give effect to the provisions of section 25B; and an order under this paragraph may make provision applying generally in relation to enactments and subordinate legislation of a description specified in the order,"; (b) in subsection (4), in the appropriate place in alphabetical order, the following entries— funded scheme' means a scheme under which the benefits are provided for by setting aside resources related to the value of the members' rights as they accrue (and 'unfunded scheme' shall be construed accordingly); 'subordinate legislation' has the same meaning as in the Interpretation Act 1978;"; and. (c) after subsection (4), the following subsection— (4A) Other expressions used in section 25B above shall be construed in accordance with section 124 (interpretation of Part I) of the Pensions Act 1995.".'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 34 and 35 en bloc. I have spoken to Amendment No. 34 with Amendment No. 6 and to Amendment No. 35 with Amendment No. 8. I have spoken to Amendment No. 36 with Amendment No. 8.

Moved, that the House do agree with the Commons in their Amendments Nos. 34 and 35.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

36 Clause 15, page 10, leave out lines 12 to 29.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 36.

Moved, That the House do agree with the Commons in their Amendment No. 36.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

37 Clause 18, page 12, line 9, leave out from 'time' to end of line 10 and insert 'when no application by reference to the statement, either for a divorce order or for a separation order, is outstanding.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 37. Together with this amendment, I wish to speak to Amendments Nos. 38 and 39. Amendment No. 37 clarifies the fact that marital proceedings are to be treated as being both divorce and separation proceedings unless there is an application pending for a particular order, in which case proceedings will be treated as either divorce or separation proceedings depending upon the type of order applied for. Therefore, in a situation where a party had applied for either a divorce or separation order, and the application had then been withdrawn, the proceedings would revert to being proceedings of both types until a further application was made.

Amendment No. 39 makes it clear that marital proceedings come to an end once the lapse period has passed, only when there are no applications outstanding at that time, or after any such outstanding applications are withdrawn.

Amendment No. 38 is a minor amendment, consequential upon the amendment made in the other place, which introduced the possibility of applying for an extension to the period for reflection and consideration. Clause 4 now refers to two types of application: that for an extension and that for conversion of the separation order and it is necessary therefore to identify the appropriate type of application being referred to in this clause. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 37.—(The Lord Chancellor.)

On Question, Motion agreed to.

9 p.m.

COMMONS AMENDMENTS

38 Clause 18, page 12, line 12, after '4', insert '(3)'.

39 Page 12, leave out lines 18 to 20 and insert— '( ) at the end of the specified period mentioned in section 5(3)(b), if no application under section 3 by reference to the statement is outstanding; ( ) on the withdrawal of all such applications which are outstanding at the end of that period; ( ) on the withdrawal of an application under section 4(3).'

40 Clause 20, page 12, line 34, at end insert— '(3) In exercising his power to make grants in connection with the provision of marriage support services, the Lord Chancellor is to have regard, in particular, to the desirability of services of that kind being available when they are first needed.'.

41 After Clause 20, insert the following new clause—

PROVISION OF MARRIAGE COUNSELLING

'.—(1) The Lord Chancellor or a person appointed by him may secure the provision, in accordance with regulations made by the Lord Chancellor, of marriage counselling. (2) Marriage counselling may only be provided under this section at a time when a period for reflection and consideration—

1. (a) is running in relation to the marriage; or
2. (b) is interrupted under section 7(8) (but not for a continuous period of more than 18 months).

(3) Marriage counselling may only be provided under this section for persons who would not be required to make any contribution towards the cost of mediation provided for them under Part IIIA of the Legal Aid Act 1988. (4) Persons for whom marriage counselling is provided under this section are not to be required to make any contribution towards the cost of the counselling. (5) Marriage counselling is only to be provided under this section if it appears to the marriage counsellor to be suitable in all the circumstances. (6) Regulations under subsection (1) may—

1. (a) make provision about the way in which marriage counselling is to be provided; and
2. (b) prescribe circumstances in which the provision of marriage counselling is to be subject to the approval of the Lord Chancellor.

(7) A contract entered into for the purposes of subsection (1) by a person appointed under that subsection must include such provision as the Lord Chancellor may direct. (8) If the person appointed under subsection (1) is the Legal Aid Board, the powers conferred on the Board by or under the Legal Aid Act 1988 shall be exercisable for the purposes of this section as they are exercisable for the purposes of that Act. (9) In section 15 of the Legal Aid Act 1988 (availability of, and payment for, representation under Part IV of the Act), after subsection (3H) insert— (3I) A person may be refused representation for the purposes of any proceedings if—

1. (a) the proceedings are marital proceedings within the meaning of Part II of the Family Law Act 1996; and
2. (b) he is being provided with marriage counselling under section (Provision of marriage counseling) of that Act in relation to the marriage."'.

42 Clause 21, page 13, line 1, at end insert— "non-molestation order" has the meaning given by section 39(1); occupation order" has the meaning given by section 36;'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 38 to 42. I spoke to Amendments Nos. 38 and 39 with Amendment No. 37, I spoke to Amendment No. 40 with Amendment No. 1 and I spoke to Amendment No. 42 with Amendment No. 2. With your Lordships' leave, I shall move them en bloc.

Moved, That the House do agree with the Commons in their Amendments Nos. 38 to 42.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

43 Clause 24, page 15, line 13, leave out from beginning to 'the' in line 17 and insert— '(6) Any contract entered into by the Board for the provision of mediation under this Part must require the mediator to comply with a code of practice. (6A) The code must require'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 43. With that amendment, I should also like to speak to Amendments Nos. 44 to 47 inclusive.

Amendments Nos. 43 to 46 amend Clause 24 and provide a number of important safeguards and a strengthening of the provisions in relation to the provision of publicly funded mediation. In particular they stress: the voluntary nature of mediation; that where parties are influenced by fear of violence or harm, the mediator should be in a position to identify this at an early stage and mediation should not continue; that mediators should encourage the parties to consider whether their children should have an opportunity to express their views during mediation regarding their own wishes and feelings.

These are in addition to the requirements that mediators must have arrangements in place to ensure that the possibility of reconciliation is kept alive throughout mediation and to keep the parties informed about the availability of independent legal advice.

Amendment No. 47 provides for the removal of the presumption in favour of mediation. The Government still believe that it is vital to the successful introduction of mediation into the divorce process that parties are required to attend a meeting with a mediator before they can receive legally aided representation in order to be in a better position to make an informed choice. Amendment No. 54 provides for this. This meeting will allow the mediator to help the client decide whether the case and they are suitable for mediation. This will take into account the willingness of the parties to participate in the process by virtue of the provisions of Clause 24. It is also so that the mediator may ensure so far as possible that mediation does not take place if the parties are fearful of violence or harm. Experience indicates that where parties are offered a choice between an old established service and a new service, the old service will generally be favoured, and that is because of the view, "better the devil you know". Meetings with mediators will allow parties to make an informed decision on the basis of the facts, and in the process learn of the considerable benefits of mediation for the parties and the children.

During the Bill's earlier stages a number of your Lordships expressed concern that appropriate protection be afforded to victims of domestic violence in the mediation process. Concern was also expressed that Clause 26 would result in parties being forced into mediation. In particular I recall concerns expressed by the noble Lord, Lord Irvine of Lairg, the noble and learned Lord, Lord Archer of Sandwell, the noble Earl, Lord Russell and the noble Baroness, Lady Hamwee. I believe that the amendments address these concerns by providing the necessary protection for vulnerable parties and those for whom mediation is not suitable while also safeguarding public funds from the expense of unnecessary litigation, and demonstrating the Government's commitment to the development of mediation in family matters in this country.

Moved, That the House do agree with the Commons in their Amendment No. 43. — (The Lord Chancellor.)

Lord Irvine of Lairg

My Lords, I am grateful to the noble and learned Lord for recalling that in our consideration of the Bill in your Lordships' House I, along with other noble Lords, expressed serious concern that the effect of Clause 26 might be to force parties into mediation so that mediation would not be truly voluntary. I therefore welcome these amendments because they emphasise the voluntary nature of mediation. Thus, Amendment No. 47 substitutes a new Clause 26 with the effect of removing the former presumption in favour of mediation.

I should make plain that my concern did not arise out of any hostility to mediation. Quite the contrary. It was born out of a concern that for mediation to be fair and to succeed it should be truly voluntary. I have no objection to Amendment No. 54 which provides that attendance at a meeting with a mediator is in effect a precondition of the grant of legally-aided representation. As the noble and learned Lord said, the parties should be free to make an informed choice between mediation and the courts; that requires such a meeting. I hope that in a large number of cases they will prefer mediation. But what is important is that where mediation has been found to be unsuitable in a particular case, the Legal Aid Board is not entitled to take account of the existence of mediation in deciding whether to grant applications for court representation.

I also welcome the amendments which are designed to ensure greater professionalisation in mediation, just as I have welcomed the amendments which we have already discussed which should lead to greater professionalism in the information meetings.

In pinning so much faith on mediation, we must appreciate that we are entering substantially uncharted seas. Amendments Nos. 43 to 46, which provide that contracts made between the Legal Aid Board with mediators must require mediators to comply with a code of practice, are particularly welcome. They enhance the quality of publicly funded mediation. For those reasons, we support the amendments.

On Question, Motion agreed to.

COMMONS AMENDMENTS

44 Clause 24, page 15, line 18, at end insert— '( ) that parties participate in mediation only if willing and not influenced by fear of violence or other harm; ( ) that cases where either party may be influenced by fear of violence or other harm are identified as soon as possible;'. 45 Page 15, line 21, leave out from beginning to 'and' in line 23. 46 Page 15, line 25, leave out 'and' and insert— '(6B) Where there are one or more children of the family, the code must also require the mediator to have arrangements designed to ensure that the parties are encouraged to consider—

1. (a) the welfare, wishes and feelings of each child; and
2. (b) whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.

(6C) A contract entered into by the Board for the provision of mediation under this Part must also include'. 47 Clause 26, page 17, leave out lines 21 to 28 and insert— '(3F) A person shall not be granted representation for the purposes of proceedings relating to family matters, unless he has attended a meeting with a mediator—

1. (a) to determine—
1. (i) whether mediation appears suitable to the dispute and the parties and all the circumstances, and
2. (ii) in particular, whether mediation could take place without either party being influenced by fear of violence or other harm; and
2. (b) if mediation does appear suitable, to help the person applying for representation to decide whether instead to apply for mediation.

(3G) Subsection (3F) does not apply—

1. (a) in relation to proceedings under—
1. (i) Part IV of the Family Law Act 1996;
2. (ii) section 37 of the Matrimonial Causes Act 1973;
3. (iii) Part IV or V of the Children Act 1989;
2. (b) in relation to proceedings of any other description that may be prescribed; or
3. (c) in such circumstances as may be prescribed.

(3H) So far as proceedings relate to family matters, the Board, in determining under subsection (3)(a) whether, in relation to the proceedings, it is reasonable that a person should be granted representation under this Part—

1. (a) must have regard to whether and to what extent recourse to mediation would be a suitable alternative to taking the proceedings; and
2. (b) must for that purpose have regard to the outcome of the meeting held under subsection (3F) and to any assessment made for the purposes of section 13B(3)."'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 44 to 47. I spoke to these amendments with Amendment No. 43.

Moved, That the House do agree with the Commons in their Amendments Nos. 44 to 47.—(The Lord Chancellor.)

Question, Motion agreed to.

COMMONS AMENDMENT

48 Clause 33, page 25, line 38, leave out '(e)' and insert '(d)'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 48. With this amendment I should also like to speak to Amendments Nos. 49 to 52.

This group of amendments relates to Part IV of the Bill which deals with occupation of the family home and protection against domestic violence. The practical situation which Clause 38 was intended to address was the kind of case where a cohabitant without any right to occupy the home of his or her partner or former partner seeks to obtain an occupation order against the partner with the right to occupy. A graphic example of this would be where a girlfriend of a few months sought to obtain the right to occupy her boyfriend's home, over which she had no pre-existing right to occupy.

This situation is covered by Clause 33. In Clause 33(6) the court is required, in considering whether to make such an order, to consider all the circumstances, and nine specific circumstances are then mentioned. One of these—Clause 33(6)(e)is, the nature of the parties' relationship". and it is at this point in particular that the court should be required to take into account the fact that cohabitants or former cohabitants have not seen fit to make the same degree of commitment involved in marriage. Amendments Nos. 49 and 50 seek to focus the impact of Clause 38 on this element of the court's deliberations—in other words, making clear that Clause 38 is somewhat of an elaboration on what is already provided for in Clause 33(6)(e).

The Government hope that, where an applicant who is a cohabitant or former cohabitant without pre-existing property rights seeks an occupation order against his or her partner, the courts in practice will have regard to the fact that cohabitants have not made the same commitment as the parties to a marriage as directed by Clause 38 as amended. However, the courts will also wish to distinguish between a short-lived relationship between cohabitants and a stable and long-term relationship where a couple have lived as man and wife for a number of years. These amendments are intended to clarify this by focusing the impact of Clause 38 on the court's consideration of the nature of the parties' relationship under Clause 33(6)(e). The length of time the couple lived as man and wife is a separate consideration for the courts to which they must have regard at Clause 33(6)(f).

Amendments Nos. 48 and 51 are drafting amendments.

Turning to Amendment No. 52, the proposal to grant the police powers to obtain civil remedies on behalf of those suffering under the threat of domestic violence has its origin in the Law Commission report of 1992. However, the Home Affairs Select Committee's inquiry into domestic violence in 1993 rejected the proposal, as did the Special Public Bill Committee of your Lordships' House on the Family Homes and Domestic Violence Bill.

There was, and remains, concern that the police have neither the resources nor the expertise to take on this role. Interest groups were also divided on the issue, some fearing the further disempowerment of women already trapped in situations over which they had little control.

In the light of these considerations, I decided not to include such a provision in the Bill. Whatever the pros and cons of the third party approach to tackling domestic violence, it is clear that we are not yet in a position where it would be wise to embark immediately on this course.

The Government readily accept, however, that knowledge and experience in this area is growing all the time and that, for example, police domestic violence units are now much more developed and expert in this field than they once were. At this point it would be appropriate for me to pay tribute to their efforts. This is a very important matter, and it has developed well over the years. The co-ordination of local services is also improving.

There is still some way to go, all will admit. And the Government remain of the view that there may need to be a good deal more thought, discussion and research before any rules are made under this new clause. However, the new clause is purely permissive and is drawn widely. For example, it does not prescribe that it is the police who shall act as the representatives; there may be others who could more appropriately do so in consultation with the police. It also makes provision in a very special and appropriate way for the piloting of any rules made. The provision enabling piloting to take place is a quite unusual but very useful one.

It may well be that a measure of agreement will emerge amongst those concerned with the prevention of domestic violence as to the need for the provision of third party action in the way envisaged by the new clause, and for suitable pilot schemes to be devised. It would not seem sensible then to have to await a further legislative opportunity in order to provide for this rule-making power. I am grateful for the suggestion of this particular clause. As I have said, it has many advantages. It came from the Opposition Front Bench in the other place. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 48.—(The Lord Chancellor.)

Lord Irvine of Lairg

My Lords, I wish to say only a few words about the great importance we attach to Amendment No. 52. It enables rules of court to be made authorising representatives to act on behalf of another in domestic violence proceedings. For example, the police could be authorised to seek occupation orders or non-molestation orders on behalf of those entitled to do so themselves. As the noble and learned Lord was good enough to observe, this provision arose out of a new clause tabled by the Opposition at Report stage in the Commons, the principle of which was accepted by the Government. It is the Government's redraft, however, that constitutes this amendment, which we are happy to accept.

I accept that a good deal more thought and consultation will be needed before these rules can be framed. I welcome and agree with the Government's acknowledgement that thinking on this subject is moving ahead and that police domestic violence units are now much more developed than they were. In my reference to the police I should not be taken to exclude any persons other than the police from acting as representatives in these cases. As the noble and learned Lord indicated, there may be others who could more appropriately do so, perhaps in consultation with the police. I hope that consultation with the police and other interested bodies can proceed with all speed towards the drafting of rules and the introduction of pilot schemes.

I believe such consultation to be pressing and urgent. We are addressing the possibility of third parties taking action in the courts on behalf of victims of domestic violence rather than leaving it to a terrified spouse to face the awful dilemma of deciding whether to seek respite from domestic violence, invoking the wrath of the abusing partner, or to stay silent and put up with continuing assault. In most cases the third party who would take that action would be the police, but that need not always be the case. The probation service, the local authority, social services and other welfare organisations may have a part to play.

The progress of the Bill through your Lordships' House and another place was highlighted by an appreciation of the widespread and appalling nature of violence in the home. It cuts across class, age and ethnic groups. It simply cannot be tolerated in a society calling itself civilised. It is estimated that upwards of 750,000 children are affected by domestic violence. That is one reason why we were so horrified by the hijacking of the original Family Homes and Domestic Violence Bill in the other place for no sensible reason. What is the prospect for children who are victims of domestic violence in regard to parenting of their children? What role model will they follow with their own children?

There are women who are all too often even murdered by the their husbands. That necessarily means children who have lost their mother, and those children will also suffer while their father spends long years in prison. Any measure that enables the courts to come to grips with the problem before it gets out of hand, to warn the assaulting party that such conduct will simply not be tolerated, will reap a very rich harvest and save public cost as well as protecting the vulnerable.

I emphasise that consultation on developing the rules envisaged by Amendment No. 52 is an urgent necessity and we will desire to monitor progress closely.

The Lord Chancellor

My Lords, it is right that we should have regard to the developments mentioned by the noble Lord, Lord Irvine of Lairg, in considering the extent to which this clause could be put into operation. It will be useful in dealing with this very important, distressing and difficult situation.

On Question, Motion agreed to.

COMMONS AMENDMENTS

49 Clause 38, page 29, line 3, leave out from beginning to 'have', in line 5, and insert— '(2) Where the court is required to consider the nature of the parties' relationship, it is to have regard to the fact that they'. 50 Page 29, leave out line 7. 51 Clause 45, page 33, line 5, leave out from 'issued' to end and insert 'on an application made under section 44(8)'. 52 After Clause 56, insert the following new clause—

PROVISION FOR THIRD PARTIES TO ACT ON BEHALF OF VICTIMS OF DOMESTIC VIOLENCE

'.—(1) Rules of court may provide for a prescribed person, or any person in a prescribed category, ("a representative") to act on behalf of another in relation to proceedings to which this Part applies. (2) Rules made under this section may, in particular, authorise a representative to apply for an occupation order or for a non-molestation order for which the person on whose behalf the representative is acting could have applied. (3) Rules made under this section may prescribe—

1. (a) conditions to be satisfied before a representative may make an application to the court on behalf of another; and
2. (b) considerations to be taken into account by the court in determining whether, and if so how, to exercise any of its powers under this Part when a representative is acting on behalf of another.

(4) Any rules made under this section may be made so as to have effect for a specified period and may make consequential or transitional provision with respect to the expiry of the specified period. (5) Any such rules may be replaced by further rules made under this section.'. 53 Before Clause 60, insert the following new clause—

PROVISION FOR SEPARATE REPRESENTATION FOR CHILDREN

4.—(1) The Lord Chancellor may by regulations provide for the separate representation of children in proceedings in England and Wales which relate to any matter in respect of which a question has arisen, or may arise, under—

1. (a) Part II;
2. (b) Part IV;
3. (c) the 1973 Act; or
4. (d) the Domestic Proceedings and Magistrates' Courts Act 1978.

(2) The regulations may provide for such representation only in specified circumstances.'. 54 Clause 60, page 41, line 3, at end insert— '( ) This section does not apply to rules of court made, or any power to make rules of court, for the purposes of this Act.'. 55 Clause 62, page 41, line 15, after `that' insert 4— (a)". 56 Page 41, line 17, leave out 'and'. 57 Page 41, line 19, at end insert '; and (iii) the amendments of the Maintenance Orders Act 1950, the Civil Jurisdiction and Judgments Act 1982, the Finance Act 1985 and sections 42 and 51 of the Family Law Act 1986 extend also to both Northern Ireland and Scotland; and (b) in Schedule 10, the repeal of section 2(1)(b) of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 extends also to Scotland.'. 58 Page 41, leave out lines 20 to 23. 59 Schedule 1, page 42, line 6, leave out '41 of the 1973 Act' and insert '(Welfare of children)'. 60 Page 42, line 21, leave out '41 of the 1973 Act' and insert '(Welfare of children)'. 61 Page 42, line 39, leave out '41 of the 1973 Act' and insert '(Welfare of children)'. 62 Page 42, line 42, at end insert—

`The fourth exemption

3A. The circumstances referred to in section 9(7)(d) are that—

1. (a) the requirements of section (Welfare of children) have been satisfied;
2. (b) an occupation order or a non-molestation order is in force in favour of the applicant or a child of the family, made against the other party;
3. (c) the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to try to reach agreement about the parties' financial arrangements;
4. (d) the applicant has not been able to reach agreement with the other party about those arrangements and is unlikely to be able to do so in the foreseeable future; and
5. (e) a delay in making the order applied for under section 3—

1. (i) would be significantly detrimental to the welfare of any child of the family; or
2. (ii) would be seriously prejudicial to the applicant.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 49 to 62 en bloc.

Moved, That the House do agree with the Commons in their Amendments Nos. 49 to 62.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

63 Schedule 1, page 43, line 17, leave out `(2)'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in Amendment No. 63. I should also like to speak to Amendments Nos. 64 to 66.

Amendment No. 63 extends the application of paragraph 7 of Schedule 1 so that it covers Clause 9(3) in addition to Clause 9(2). Paragraph 7 sets out the nature of declarations made under Clause 9 and there is no reason why these requirements should not apply equally to Clause 9(3).

Because of the extension of this application, Amendments Nos. 64 and 65 ensure flexibility to prescribe the particular circumstances in which requirements must be met under this section.

Amendment No. 66 was made to ensure that no one is able to challenge the validity of a divorce order simply on the grounds that information contained within the declaration made under Clause 9 is incorrect.

The amendment addresses a concern put forward by the noble and learned Lord, Lord Archer of Sandwell, in an amendment at Report stage in this House, when he sought to clarify whether the Government intended that false declarations would invalidate any subsequent divorce order.

Moved, That the House do agree with the Commons in their Amendment No. 63—(The Lord Chancellor.)

Lord Meston

My Lords, I wish to raise a question in regard to Amendment No. 66. Having spent probably too long over the years looking at suspect divorces, I have always had a concern about the potential misuse of Clause 9(2)(d) of the Bill which provides that one of the parties may declare that, he has no significant assets and does not intend to make an application for financial provision [and] believes that the other party has no significant assets and does not intend to make an application for financial provision". It has always struck me that there is potential for misuse and misrepresentation in that clause. I have taken some comfort from the fact that the Bill properly preserves a role for the Queen's Proctor. However, Amendment No. 66 provides that, The validity of a divorce order … is not to be affected by any inaccuracy in the declaration". That raises in my mind a question as to what degree of inaccuracy there must be for the divorce process to be wholly undermined. For example, if a party who ought to disclose substantial assets declares inaccurately that he has none, and moreover he ought to declare that the other party intends to make an application, but declares the opposite, why should such an inaccurate declaration not affect the validity of the divorce?

One can see that there may be situations in which the inaccuracy is trivial or innocent, though it is difficult to see, in the context of Clause 9(2)(d), how an inaccuracy could be other than substantial. It would mean that there were significant assets on one side or the other and that there was in fact an intention to make an application on the part of the other spouse. That is the only possible type of inaccuracy that could arise under that clause. It further begs the question therefore: what effect, if any, does an inaccuracy have if it is not trivial or innocent, but is a complete misrepresentation by the party making the declaration who is trying to hoodwink the court and the other party?

The Lord Chancellor

My Lords, the intention is that these declarations should be statutory declarations and therefore any falsity contained in them will carry sanctions under the Statutory Declarations Act. In relation to the consequences of a false declaration, other remedies are available.

The point of this amendment is that it should not affect the validity of the divorce order itself. One can see that once a divorce order is granted rights may accrue as a result of that which may be awkward. That is why we made that provision.

On Question, Motion agreed to.

COMMONS AMENDMENTS

64 Schedule 1, page 43, line 19, after 'must' insert ', in prescribed cases,'. 65 Page 43, line 20, after 'must' insert `, in prescribed cases,'. 66 Page 43, line 20, at end insert— '( ) The validity of a divorce order or separation order made by reference to such a declaration is not to be affected by any inaccuracy in the declaration.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 64, 65 and 66 en bloc. I spoke to these amendments with Amendment No. 63.

Moved, That the House do agree with the Commons in their Amendments Nos. 64, 65 and 66.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

67 Schedule 2, page 45, leave out lines 7 to 10.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 67. In moving this amendment I shall speak also to Amendments Nos. 68 to 77, 79 to 82, 93 and 94, 96 to 102 and 105 to 107 inclusive. This group of amendments relates to financial provision on divorce. Amendments Nos. 67 to 69, 72 to 77, 79 to 82, 94, 101, 105 to 107 are of a technical drafting nature and effect no policy change.

Amendments Nos. 70 and 71 give the court power to make orders for interim lump sum payments on nullity. During the Report stage in this House the Government tabled amendments giving the court a statutory power to make interim lump sum orders in favour of a party to the marriage and a child of the family when an application for a financial provision order under the new Section 22A of the Matrimonial Causes Act 1973 on divorce and separation is made. The Government had it in mind to give the court similar powers in relation to nullity in this House but were concerned not to come forward with amendments on nullity which would risk being beyond the scope of the Bill. I was delighted to see that the amendments were made in the other place and that they did not go beyond the scope of the Bill.

Amendment No. 93 was moved by the Government at the Committee stage of the Bill in the other place. It emphasises that it is conduct of whatever nature which it would be inequitable to disregard which is to be taken into account when the court is considering financial provision on divorce. The amendment also clarifies that the conduct to be taken into account is conduct whether it occurred during the marriage or after the separation of the parties or (as the case may be) dissolution or annulment of the marriage. The amendment does not make any significant change to the existing law. The role of conduct in ancillary relief proceedings has not changed and there is therefore no question, as has been suggested in some quarters, of conduct being introduced through the "backdoor".

The purpose of the amendment is to emphasise what the law is at present on this aspect because it was misrepresented or, at least, some people were under the impression that only particular types of financial conduct, for example, were relevant in this connection. It is right that we should make it clear on the face of the Bill what is the present law on this matter in order to avoid misrepresentation.

The noble Lord, Lord Clifford of Chudleigh, tabled amendments to Section 25(2)(g) of the Matrimonial Causes Act 1973 during the passage of the Bill through this House. I was unable to accept those amendments as they sought substantially to increase the role of conduct in ancillary relief proceedings, and the advice of my Ancillary Relief Advisory Group on that matter was that the role of conduct should not be increased. During the passage of the Bill in the other place, concern was expressed by my then Parliamentary Secretary that in practice there was a perception that it is only conduct of a financial nature to which the court is to have regard. I am pleased to say that the Government moved this amendment to clarify the position, as I have sought to explain. My Ancillary Relief Advisory Group is content that the amendment does not increase the role of conduct in this matter.

Amendment No. 96 was moved by the Government in the other place and extends the court's powers to make orders between parties to a marriage where one spouse has failed to provide reasonable maintenance to the other or to a child of the family (subject to the Child Support Act 1991) by giving the court a statutory power to make interim lump sum orders by way of maintenance. This extension strengthens the remedies available for financial relief during marriage and may be particularly useful to a spouse who has attended an information session during the three months from this time to the time when a statement of marital breakdown is received by the court.

Amendments Nos. 97 and 102 are consequential to the alternations to Section 27 of the 1973 Act in Schedule 8.

Amendments Nos. 98, 99 and 100 were also moved by the Government in the other place and give the court power to vary all types of property adjustment orders made before a divorce order or separation order is made and also lump sum orders made before this time. It should only be possible to apply for this power of variation to be exercised before the divorce or separation order is made and before the order takes effect. The amendment was moved to alleviate concern that the final nature of these orders may prevent reconciliation between the parties. The amendment was in addition to the powers of variation on reconciliation which were already included in the Schedule 2 to the Bill.

Moved, that the House do agree with the Commons in their Amendment No. 67.—(The Lord Chancellor.)

On Question, Motion agreed to.

9.30 p.m.

COMMONS AMENDMENTS

68 Schedule 2, page 46, line 14, leave out from 'consideration' to end of line 15 and insert 'is interrupted under section 7(8) of the 1996 Act.'. 69 Page 46, line 30, at end insert— '(5) In this section, "period for reflection and consideration" means the period fixed by section 7 of the 1996 Act." '. 70 Page 46, line 42, after 'order', insert 'an interim order for the payment of a lump sum,'. 71 Page 46, line 44, after 'order', insert 'an interim order for the payment of a lump sum'. 72 Page 48, line 45, leave out from 'consideration' to end of line 46 and insert 'is interrupted under section 7(8) of the 1996 Act.'. 73 Page 49, line 7, leave out '22A' and insert '23A'. 74 Page 49, line 12, at end insert— '(5) In this section, "period for reflection and consideration" means the period fixed by section 7 of the 1996 Act." '. 75 Page 49, line 40, after '(b)' insert 'above, unless sub-paragraph (ia) below applies,'. 76 Page 49, line 41, at end insert— '(ia) where the order is made by virtue of section 22A(2)(b) above and the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, than the date of the making of that application;'. 77 Page 49, line 42, leave out 'or (d)' and insert 'above'. 78 Page 50, line 3, leave out 'an order of divorce' and insert 'a divorce order'. 79 Page 50, line 12, after 'above' insert ', except where paragraph (aa) below applies,'. 80 Page 50, line 13, at end insert— '(aa) in the case of an order made by virtue of section 22A(2)(b) above where the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, the date of the making of that application;'. 81 Page 50, line 14, leave out 'such'. 82 Page 50, line 14, leave out 'or (d)'. 83 Schedule 3, page 51, line 37, after 'means' insert '— (a)". 84 Page 51, line 38, at end insert 'or (b) if the proceedings are for the conversion of a separation order into a divorce order under section 4 of the Family Law Act 1996, the statement of marital breakdown by reference to which the separation order was made.'. 85 Schedule 8, page 66, line 37, leave out from 'In' to 'section'. 86 Page 66, line 38, after 'applies)' insert '— (a) in subsection (2)(a)(i),'. 87 Page 66, line 39, leave out 'and'. 88 Page 66, line 39, at end insert'; and (b) in subsection (2)(c)(v), after "Matrimonial Causes Act 1973" insert "(as that Act had effect immediately before the passing of the Family Law Act 1996)".'. 89 Page 67, leave out lines 4 to 13. 90 Page 67, line 46, at end insert—

'Proceedings after decree nisi: general powers of court.

15B. —(1) Where a decree of nullity of marriage has been granted under this Act but not made absolute, then, without prejudice to section 15A above, any person (excluding a party to the proceedings other than the Queen's Proctor) may show cause why the decree should not be made absolute by reason of material facts not having been brought before the court; and in such a case the court may—

1. (a) notwithstanding anything in section 15 above (but subject to section 41 below) make the decree absolute; or
2. (b) rescind the decree; or
3. (c) require further inquiry; or
4. (d) otherwise deal with the case as it thinks fit.

(2) Where a decree of nullity of marriage has been granted under this Act and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned in paragraphs (a) to (d) of subsection (1) above.'. 91 Page 67, line 47, after 'divorce' insert `to'. 92 Page 67, line 48, leave out from '19)' to end of line 6 on page 68 and insert'—

1. (a) for "1(5), 8 and 9" substitute "15, 15A and 15B"; and
2. (b) for "divorce" in both places substitute "nullity of marriage".'.

93 Page 68, line 16, after '23A":' insert— '( ) in paragraph (g), after "parties" insert ", whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be) dissolution or annulment of the marriage,";'. 94 Page 69, line 6, at end insert 'and, if the first party has already applied to the court for the making of such an order, it may dismiss the application.'. 95 Page 69, line 14, after '25C(1) and (3)', insert 'and'. 96 Page 69, line 21, leave out from beginning to 'substitute' in line 22 and insert— '—(1) Section 27 (financial provision orders etc. in case of failure to provide proper maintenance) is amended as follows. (2) In subsection (5) — (a) after "an order requiring the respondent" insert "— (a)"; and. (b) at the end insert ", or (b) to pay to the applicant such lump sum or sums as the court thinks reasonable. (3) For subsection (6)'. 97 age 69, line 27, at end insert— '(4) In subsection (7), for "(6)(c) or (f)" substitute "(6)". 98 age 70, line 13, at end insert— '( ) after paragraph (dd) insert— (de) any other order for the payment of a lump sum, if it is made at a time when no divorce order has been made, and no separation order is in force, in relation to the marriage;";'. 99 age 70, line 17, at end insert— '(ea) any order under section 23A which is made at a time when no divorce order has been made, and no separation order is in force, in relation to the marriage;".'. 100 Page 70, line 24, after '(4A)' insert— 'In relation to an order which falls within subsection (2)(de) or (ea) above ("the subsection (2) order")—

1. (a) the powers conferred by this section may be exercised—
1. (i) only on an application made before the subsection (2) order has or, but for paragraph (b) below, would have taken effect; and
2. (ii) only if, at the time when the application is made, no divorce order has been made in relation to the marriage and no separation order has been so made since the subsection (2) order was made; and
2. (b) an application made in accordance with paragraph (a) above prevents the subsection (2) order from taking effect before the application has been dealt with.

(4B) '. 101 Page 71, line 23, leave out '(9) and (10)' and insert '(7) and (8)'. 102 Page 71, line 40, at end insert ', so far as it requires the making of periodical payments."'. 103 Page 72, leave out lines 9 to 28. 104 Page 72, line 31, leave out 'Family Law Act 1996' and insert '1996 Act'. 105 Page 73, line 4, after '22A', insert 'or 23'. 106 Page 75, leave out lines 3 and 4 and insert— '(a) section 22A(5) (provisions about lump sums in relation to divorce or separation); (aa) section 23(4), (5) and (6) (provisions about lump sums in relation to annulment);".'. 107 Page 75, line 17, leave out from 'etc.)' to end of line 27 and insert '— (a) after paragraph (b), insert— (bb) is executed in pursuance of an order of a court which is made at any time under section 22A, 23A or 24A of the Matrimonial Causes Act 1973, or"; and. (b) in paragraph (c), for "or their judicial separation" substitute ", their judicial separation or the making of a separation order in respect of them".'. 108 Page 76, line 53, leave out first 'is' and insert 'has been'. 109 Page 82, line 24, at end insert— '( ) In Schedule 11 to that Act, in paragraph 6(a) (amendment of the Domestic Proceedings and Magistrates' Courts Act 1978), for "sections 16(5)(c) and" substitute "section".'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 68 to 109 en bloc. I spoke to Amendments Nos. 68 to 77 with Amendment No. 67; to Amendment No. 78 with Amendment No. 14; to Amendments Nos. 79 to 82 with Amendment No. 67; to Amendments Nos. 83 to 92 with Amendment No. 14; to Amendments Nos. 93 and 94 with Amendment No. 67; to Amendment No. 95 with Amendment No. 14; and to Amendments Nos. 96 to 98 with Amendment No. 67. I spoke to Amendments Nos. 99 to 102 with Amendment No. 26, I think, but I am not certain—

Lord Meston

With Amendment No. 67.

The Lord Chancellor

I am much obliged. I spoke to Amendments Nos. 99 to 102 with Amendment No. 67. I spoke to Amendment No. 103 with Amendment No. 6; to Amendment No. 104 with Amendment No. 14; to Amendments Nos. 105 to 107 with Amendment No. 67 and to Amendments Nos. 108 and 109 with Amendment No. 14.

Moved, That the House do agree with the House in their Amendments Nos. 68 to 109.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

110 Schedule 9, page 82, line 31, at end insert—

'Transitional arrangements for those who have been living apart

.—(1) The Lord Chancellor may by order provide for the application of Part II to marital proceedings which—

1. (a) are begun during the transitional period, and
2. (b) relate to parties to a marriage who immediately before the beginning of that period were living apart,

subject to such modifications (which may include omissions) as may be prescribed.

(2) An order made under this paragraph may, in particular, make provision as to the evidence which a party who claims to have been living apart from the other party immediately before the beginning of the transitional period must produce to the court.

(3) In this paragraph— marital proceedings" has the same meaning as in section 21; prescribed" means prescribed by the order; and transitional period" means the period of two years beginning with the day on which section 3 is brought into force.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 110, which is an amendment of some importance. With this amendment, I should like to speak also to Amendments Nos. 111 and 112 and to Amendments Nos. 114 to 116 inclusive.

Amendment No. 110 provides for those couples who have been living apart immediately prior to the new provisions of this legislation coming into force. It seeks to address the situation where parties are in the process of a two or five-year separation period, and have therefore not actually commenced divorce proceedings.

When the Bill went to the other place it provided that parties in such a position would be required to undergo the full process under the new system, with no account being taken of any prior period of separation. Following this amendment the Lord Chancellor may modify the requirements of Part II of the Bill in relation to people who have previously been living apart upon proof of such separation being produced to the court, for a transitional period of two years. I believe that the Bill with the inclusion of this provision will now avoid the difficulties which may have otherwise arisen in some cases, especially where there are children involved and further delay may be detrimental to their welfare.

The other amendments in this group are technical amendments. Amendments Nos. 111 and 112 extend the Lord Chancellor's powers to make consequential amendments to include references in other legislation to enactments amended or repealed by the Bill. Amendments Nos. 114, 115 and 116 make some technical corrections to the transitional provisions in Schedule 9. They provide that other statutes, amended in Schedule 8, shall apply in their unamended form in relation to decrees of divorce or separation granted either before the new law comes into force or under transitional provisions.

Moved, That the House do agree with the Commons in their Amendment No. 110.—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

111 Schedule 9, page 83, line 9, at end insert— ' 1A. If an Act or subordinate legislation—

1. (a) refers to an enactment repealed or amended by or under this Act, and
2. (b) was passed or made before the repeal or amendment came into force,

the Lord Chancellor may by order make such consequential modifications of any provision contained in the Act or subordinate legislation as appears to him necessary or expedient in respect of the reference.'.

112 Page 83, line 11, leave out 'paragraph 1' and insert 'paragraphs 1 and 1A'.

113 Page 83, line 20, after 'Part II' insert ', Part I of Schedule 8 or Schedule 10'.

114 Page 83, line 21, leave out from 'affects' to end of line 22 and insert '— ( ) any decree granted before the coming into force of the provision; ( ) any proceedings begun, by petition or otherwise, before that time; or ( ) any decree granted in any such proceedings;'.

115 Page 83, line 27, after first 'proceedings' insert 'or decree'.

116 Page 83, line 28, leave out from 'any' to third 'or' and insert 'such proceedings or decree;'.

117 Page 83, line 30, at end insert— '( ) In this paragraph, "subordinate legislation" has the same meaning as in the Interpretation Act 1978.'

118 Page 83, line 45, leave out 'this Act' and insert 'Part IV, Part III of Schedule 8 or Schedule 10'.

119 Page 84, line 2, leave out 'this Act' and insert 'Part IV, Part III of Schedule 8 or Schedule 10'.

120 Page 84, line 12, leave out 'this Act' and insert 'Part IV, Part III of Schedule 8 or Schedule 10'.

121 Page 84, line 15, leave out 'this Act' and insert 'Part IV, Part III of Schedule 8 or Schedule 10'.

122 Page 84, line 17, leave out 'this Act' and insert 'Part IV'.

123 Page 84, line 18, leave out 'this Act' and insert 'Part IV'.

124 Page 84, line 26, leave out 'this Act' and insert 'Part IV'.

125 Page 84, line 29, leave out 'this Act' and insert 'Part IV'.

126 Page 85, line 8, leave out 'Paragraphs 9 to 12 shall not' and insert 'Nothing in this Schedule is to'.

127 Schedule 10, page 85, column 3, leave out line 21 and insert— 'Sections 9 and 10'.

128 Page 85, column 3, leave out lines 46 and 47 and insert— 'In section 41, in subsection (1) the words "divorce or" and "or a decree of judicial separation" and in subsection (2) the words "divorce or" and "or that the decree of judicial separation is not to be granted.".'.

129 Page 86, line 2, at end insert 'and",'

130 Page 86, line 4, column 3, at end insert— 'In Schedule 1, paragraph 8.'

131 Page 86, line 6, column 3, leave out '(1)(a), the words' and insert '(1), the words "subject to section 6(3) and (4) of this Act" and, in paragraph (a),'.

132 Page 86, line 9, column 3, at end insert 'and (4).'.

133 Page 86, line 31, at end insert—

'1980 c. 43

The Magistrates' Courts Act 1980.

In Schedule 7, paragraph 159.'

134 Page 87, line 4, at end insert—

'1986 c. 53.

The Building Societies Act 1986.

In Schedule 21, paragraph 9(f).'.

135 Page 87, line 4, at end insert—

'1986 c. 55.

The Family Law Act 1986.

In Schedule 1, paragraph 27.'.

136 Page 87, line 4, at end insert—

'1988 c. 34.

The Legal Aid Act 1988.

In section 16(9), the word "and" at the end of paragraph (a).'

137 Page 87, line 7, column 3, at end insert—

'In Schedule 11, paragraph 6(b).'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 111 to 137 en bloc. I spoke to Amendments Nos. 111 and 112 with Amendment No. 110; to Amendment No. 113 with Amendment No. 14; to Amendments Nos. 114 to 116 with Amendment No. 110; to Amendments Nos. 117 to 127 with Amendment No. 14; to Amendment No. 128 with Amendment No. 6 and to Amendments Nos. 129 to 137 with Amendment No. 14.

Your Lordships will be glad to know that once I have moved, with your Lordships' leave, that the amendments be taken en bloc, I shall have completed the Motions that I wish to place before your Lordships on this matter and we now come to the last Question on this Bill.

Moved, That the House do agree with the Commons in their Amendments Nos. 111 to 137. —(The Lord Chancellor.)

On Question, Motion agreed to.