HL Deb 04 March 1996 vol 570 cc64-73

(".—(1) The "special procedure" (whereby petitions for divorce based on section 1(2)(a), (b) or (c) of the 1973 Act have accelerated and informal consideration) is hereby abolished.

(2) No decree of divorce shall be pronounced in respect of any petition based on section 1(2)(a), (b) or (c) of the 1973 Act until a period of twelve months for reconciliation, reflection and consideration has elapsed since the date on which the court received the petition.").

The noble and learned Lord said: My Lords, this, I venture to say, is an important amendment. It gets rid of the roundly denounced, universally denounced, so-called quickie divorce.

Subsection (1) of the new clause gets rid of it procedurally, and subsection (2) of the substance. I am speaking also to Amendment No. 116, which is the effective implementation.

The necessity for this new clause rose late on the last day in Committee, in fact after eleven o'clock. The noble Lord, Lord Coleraine, told me when this legislation would be brought into effect, and my noble and learned friend the Lord Chancellor said he thought it would be two years after Royal Assent. I do not quarrel with that. It is eminently sensible to make sure that the administrative substructure is in place first. We have the care that was taken over the Children Act on the one hand, which has been a success, and, on the other hand, the disaster that followed the Child Support Act. The necessity, therefore, is to make sure that the quickie divorce disappears as rapidly as possible and does not have to wait two years until my noble and learned friend is ready to bring the rest of the measure into effect.

I do not need to expatiate on the disadvantages of the so-called quickie divorce. They were in the forefront of the propaganda in favour of this Bill, which was heavily promoted by the Lord Chancellor's Department. The noble Lord, Lord Irvine of Lairg, gave a description of how it worked procedurally, and it certainly reflected no credit on the law. It was a patent step towards what has always been the ultimate aim of the extreme permissive divorce reformers; namely, the simple registration of a divorce—as simple as the registration of a marriage, or even simpler.

One has to go back, as subsection (2) shows, to the 1969 Act, although I have cited it in its re-enactment in 1973. As your Lordships now well know, the Divorce Reform Act pretended to be based on irretrievable breakdown of marriage but in fact depended on the so-called five facts which, together, were the exclusive grounds of breakdown that could be alleged, and any one of them was a conclusive ground.

The first, as your Lordships know well, and is referred to in Section 2, is on the ground of adultery. But it was divorce in a new form. It was divorce stripped of anything which might impede it; for example, an agreement to produce the evidence of a divorce or even plotting that a divorce should take place—even one party plotting that the other should commit adultery because connivance and collusion disappeared.

The second ground was unreasonable behaviour. The third ground was desertion for two years, reduced from three years. The third introduced into our law for the first time divorce by consent after two years' separation. Both Church and state stood against divorce by consent over the centuries because the Church said that it is inconsistent with the vows that have been made, not just privately but in the face of the congregation. The state said that the institution of marriage was more than the concern of the spouses themselves; it was a fundamental institution of society.

The last ground was unilateral separation after five years. In fact, that was the only ground that was before the Royal Commission because irretrievable breakdown was very much an afterthought. But the ground of unilateral repudiation was rejected by Archbishop Fisher giving evidence on behalf of the Church of England to the Royal Commission on marriage and divorce. Notwithstanding that, that measure was handed over by the Lord Chancellor's Department and negotiated by the Law Commission with a Private Member. It was supported by the Bishop of Exeter in your Lordships' House who volunteered to act as a Teller.

As early as February 1970, before that measure had ever come into force, it was pointed out in a lecture to the Institute of Legal Executives at the annual Riddell lecture that the earlier provision could be used for divorce by consent. The promoters of the Bill in both Houses had assured Parliament that although the measure introduced divorce by consent, it was only after two years separation. But it was pointed out that adultery, without the bars of collusion or connivance, could be used to achieve an immediate divorce.

Nevertheless, the Law Commission and the Lord Chancellor's Department proceeded to consolidate the 1969 Act into the 1973 Act where we now have it. But they did not stop there because they brought in subsequently the procedural provision of the quickie divorce. One could immediately obtain a divorce by consent with a put-up case of adultery. That could then be rushed through the courts informally, rapidly and disgracefully, in the way that was described by the noble Lord, Lord Irvine of Lairg.

That is the position that we have—a thoroughly discreditable provision of the law which is relied on as the principal ground for this measure. It is abrogation strongly relied upon. Talking to Members of your Lordships' House, I have found that even those who are deeply disturbed about the thrust of the Bill before us say that at present one can obtain a divorce in an average of six months and at least this Bill stipulates a 12-month lapse. Therefore, is it not plain after that which the noble Lord, Lord Coleraine, ascertained, that there is urgent need not to wait for two years and possibly more but to get rid of that disgraceful provision immediately? That deals with that subsection.

Amendment No. 116 amends the Bill to the effect that the provisions can be brought into force, and stipulates that this particular provision shall come into force on the passing of the Act. I beg to move.

6.45 p.m.

Lord Moran

My Lords, I have put my name to this amendment and I strongly support it. It seems to me to be very important that we should remove the special procedure at the earliest possible moment. I too listened to the noble Lord, Lord Irvine of Lairg, at an earlier stage when he described this procedure. What he said was quite new to me and I did not realise that such a high proportion of today's divorces go through simply by post. They arrive at the court and are dealt with, so to speak, on the nod with minimum consideration. That seems to me to be profoundly unsatisfactory and I am quite sure that we should try to remove that procedure, as my noble and learned friend Lord Simon of Glaisdale has suggested, at the earliest possible moment and not wait for two years.

Lord Coleraine

My Lords, I support the amendment moved by the noble and learned Lord, Lord Simon of Glaisdale, because I believe that it is necessary to provide some form of interim law to cover the period of at least two years before this Bill is brought into effect.

I should like to add that it seems to me that one should go further than is proposed by the noble and learned Lord's amendment because the effects of a quickie divorce are as much ill thought out in the ground that must be proved as in the speed at which the divorce can be achieved. I am talking about the behaviour ground.

It is well known and referred to at paragraph 2.5 of the White Paper that it is almost impossible to defend the behaviour ground in a divorce. The White Paper states: The details pleaded in divorce petitions in support of, for example, the fact of intolerable behaviour, do not need to be corroborated and are irrebutable. Such allegations are therefore easy to make and easy to establish". Experience shows that they are almost impossible to defend.

In our debate on Thursday last on the debate on Amendments Nos. 11, 12 and 13 in the name of my noble friend Lady Young, which would have re-introduced fault into the divorce law, the right reverend Prelate the Bishop of Oxford described the case of a friend of his who had written to him to explain what had happened in his divorce. The letter read: The solicitor advised her, that is the wife, that she could get a quick divorce if she went for unreasonable behaviour. This did not include adultery or violence. It did include her view of my failings vastly exaggerated by the solicitor for the purpose of proving that the marriage had irretrievably broken down". The letter went on to say: The 'faults' did not seem legally serious enough for divorce". The right reverend Prelate observed correctly: The present law is very flawed, as we have heard from that moving testimony".—[Official Report, 29/2/96; col. 1652.] Had I been able to speak in that debate, I would have drawn the attention of the House to the fact that the amendment moved by my noble friend was drafted in terms to improve the fault ground of behaviour. Under Section 1(2)(b) of the Matrimonial Causes Act 1973, what has to be shown is, that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. On a true construction of those words, I understand that "petitioner" means the particular petitioner in the case under consideration and not the ordinary, reasonable spouse considered as petitioner. Therefore, the test of behaviour is subjective, not objective. It means that, in determining whether a particular petitioner can or cannot reasonably be expected to live with a particular respondent, the court has to take into account the character and personality, disposition and behaviour of the petitioner as well as the behaviour of the respondent as alleged.

The amendment to which my noble friend spoke last week, Amendment No. 12, would have changed the grounds so that it would have to be proved that, the respondent has behaved in such a way that a reasonable spouse, considered as petitioner, could not be expected to live with the respondent". If that had been appreciated, I believe that the right reverend Prelate the Bishop of Oxford would have realised that it will not be so easy in the future to get away with a behaviour ground merely by saying, for example, "My husband was very messy in the bathroom, he would leave his pyjamas on the floor. I, being the person that I am, found it intolerable to live with him". In fact, an objective ground for divorce would have been introduced. That was one of the points which the noble Lord, Lord Meston, addressed when he dealt with and commented upon the points raised by the right reverend Prelate.

If the noble and learned Lord, Lord Simon of Glaisdale, wishes to produce an amendment which would really get rid of all the bad effects of the quickie divorce, I believe that he ought also to look at the behaviour grounds in the 1973 Act, and incorporate the words proposed by my noble friend Lady Young, or other words. That way he would ensure the introduction of an objective definition of the behaviour ground.

Lord Meston

My Lords, I should, first, declare an interest in that no one present in the Chamber would be more pleased than myself—with the possible exception of the noble Lord, Lord Phillimore—if the so-called "special procedure" were abolished. Its introduction was a fairly serious financial blow to the junior Bar and was undoubtedly intended to effect a considerable saving to the legal aid fund. Indeed, I am quite sure that it had that effect.

At the time, I remember we all grumbled that one still needed a hearing in open court to wind-up a company but not to wind-up a marriage. Before the introduction of the special procedure, the petitioner had to go to court with his or her lawyers and give oral evidence to a judge of the breakdown of the marriage and evidence of the supporting facts which were relied upon. The procedure introduced in the 1970s converted that into a largely paper exercise.

However, I question the phraseology in the amendment. In particular, I question whether the "special procedure" can now be described as an "accelerated" procedure. The special procedure involves a number of stages. The petitioner has to apply for the petition to be considered by the court and swear an affidavit, or make an affirmation in support. The district judge has to certify that he is satisfied that the petitioner has made good his or her case and is entitled to a decree. He then has to fix a date for the announcement of that decree.

I seriously question whether that practice is any quicker than the machinery which existed before the introduction of the special procedure, whereby the petitioner simply applied for a hearing date and the petition, if undefended, was set down in a list of cases for hearing by the court on a particular day. If the process was any slower before the introduction of the special procedure, it can only have made a difference of weeks and certainly not of months. Therefore, I invite noble Lords to consider whether they are in fact, by way of the amendment, doing away with the so-called "quickie divorce".

I also question the use of the word "informal". It is certainly true that under the special procedure, the petitioner does not have to give evidence in open court, but he or she still has to swear an affidavit or make an affirmation in support of the matters set out in the petition. That is treated sufficiently seriously in that, if a false affidavit is sworn and discovered, the Queen's Proctor can intervene in the normal way.

With respect, I should point out that the noble Lord, Lord Coleraine, made a separate point about defended divorces. We are in fact talking about the special procedure, which applies only to undefended divorces. However, the noble Lord is perfectly right to say that it is not altogether easy under the present regime to defend a divorce, especially if behaviour is alleged. But the Legal Aid Board takes the view that it is common ground that the marriage has irretrievably broken down. There are certainly considerable procedural pressures within the machinery of the court to persuade people to compromise divorce suits so that they do not take up substantial time in the courts with arguments over allegations of behaviour which, if necessary, can be watered down. The question of defending divorces is not the same as the issue regarding the special procedure. I wonder whether the abolition of that procedure would really make any impact on the speed with which an undefended divorce could be obtained.

Baroness Elles

My Lords, I should like to express my support for the principle set out in the amendment proposed by the noble and learned Lord, Lord Simon of Glaisdale. The noble Lord, Lord Meston, pointed out that there may be technical difficulties in so far as we are talking about undefended divorces. He also wondered whether the amendment would have the desired effect which lies behind the noble and learned Lord's proposals.

As I understand it, those proposals entirely support what my noble and learned friend the Lord Chancellor has been saying right through the proceedings on the Bill; namely, that one of the main purposes of the legislation is to abolish quickie divorces. He could not see why someone who was at fault should be able to get a quick divorce and be able to remarry, whereas in other cases, if one had to wait for consent for two years or five years, the innocent party may be prevented from remarrying. I understand that to be one of the principles involved.

The other principle stressed by my noble and learned friend this afternoon is in sticking firmly to his view that, under the Bill, the minimum time from the date of the statement should be a year. That will give couples time for reconciliation, reflection and consideration. Regardless of the actual wording of the amendment, it is quite clear that the noble and learned Lord, Lord Simon, has the objective of introducing a system whereby the quickie divorce is stopped and no divorce granted until after one year from the time when the petition is presented to the court.

I suggest that the principle underlying Amendment No. 95 and the implementing amendment, Amendment No. 116, should be looked at again and, possibly, retabled on Third Reading. I hope that my noble and learned friend will agree that the principle is one that he can support. That redrafting should also take into account one problem not addressed by the current amendment; namely, the question of those divorces which are, so to speak, on track at present.

I think it would be very difficult to introduce with this Bill at Royal Assent that this particular amendment or principle should be adopted straight away but then only start the new system as from the date of the Act coming into force which would not be made retrospective.

Lord Stoddart of Swindon

My Lords, since I have signed the amendment I would like briefly to support what has already been said by the noble and learned Lord, Lord Simon, and others. I believe that the case that has been put is entirely logical and one which I hope the noble and learned Lord the Lord Chancellor will accept. The only thing that strikes me is that all the way through this Bill we have been talking about the necessity to end quickie divorces. It seems to me that we need not have had this Bill at all. All we need to have done was to repeal the 1973 Act and we would have achieved what the noble and learned Lord wanted to achieve and what everybody else apparently wants to achieve.

7 p.m.

Baroness Young

My Lords, I want to support everything the noble and learned Lord, Lord Simon of Glaisdale, has said on this. This is entirely in line with what the noble and learned Lord the Lord Chancellor wishes: that is, to get rid of the so-called quickie divorce and to keep, as my noble friend Lady Elles said, the month. As I understand it, the special procedure fixes the time between the decree nisi and the decree absolute at six weeks at least, which by any measure is a very short time. The original statute suggested six months. What we would be doing by this would be having a year. This is a very important principle. If we believe in it we should stand by it.

The Lord Chancellor

My Lords, the principle of the quickie divorce is that you get divorced more quickly if you allege fault than if you do not. That is my understanding of the principle behind it and that is enshrined in the present law. This amendment is not intended to take effect to change that while the matter is in transition. I am certainly very much in favour of doing away with that principle because I think that it is inimical to any kind of signal that fault is something of which Parliament disapproves and to which a stigma is attached.

This amendment does not attempt to do that. What it seeks to do is to produce on the existing law some part of what we are proposing: the one-year period of reflection and consideration. As I understand it, this transition will allow—indeed, require—allegations of fault to be made in the petition. The amendment refers, as your Lordships have it, to grounds I (2)(a), (b) or (c) of the 1973 Act; that is to say, grounds which require the allegations there referred to to be made. If I thought that that was a reasonable way forward I would certainly have considered that for the main provisions, but the point is that that destroys the idea of reconciliation. If you have to start off your petition by making allegations of fault you destroy the whole basis—

Lord Simon of Glaisdale

No, my Lords. What it does is to accept what my noble and learned friend proposes, namely, that for the next two years there will be a petition based on adultery or on unreasonable behaviour. It does no more than accept what he proposes.

The Lord Chancellor

My Lords, it does a good deal more than that because it seeks to impress upon that a period of reconciliation, reflection and consideration. What is more inimical to reconciliation and reflection with the purpose of restoring the marriage than to require that the process starts with allegations of fault? I would have thought, with great respect to your Lordships, that this would be introducing the concept of the period for reflection and consideration in the worst possible atmosphere where it has very little chance of success.

Lord Coleraine

My Lords, is the noble and learned Lord, Lord Simon, saying that the period for reflection and conciliation is going to come into effect from the beginning of the Bill, from when the Bill receives Royal Assent, or shortly afterwards, because it seems to me that what the noble and learned Lord, Lord Simon, is saying is that this amendment is to take place before the provisions of the Bill come into effect, which would introduce this period of reflection and consideration.

The Lord Chancellor

My Lords, my noble friend has read the amendment and, as far as I can understand, the amendment in subsection (2) of it does just that. It says, No decree of divorce shall be pronounced in respect of any petition based on section 1(2)(a), (b) or (c) of the 1973 Act until a period of twelve months for reconciliation, reflection and consideration has elapsed since the date on which the court received the petition". Can your Lordships imagine a better way to destroy the idea of reconciliation than to start off by making allegations of fault on the basis of adultery that has destroyed the marriage or conduct that has destroyed the marriage? It is impossible to put these two together and have a workable system.

I would love to go down this road; I would love to stop quickie divorces tomorrow, but the problem is that you have to substitute something better. You have to substitute something which has a chance of working. What I want to substitute is a period for reconciliation, reflection and consideration, and the best way to destroy that is to require the people to make these allegations to begin with. If we do go down this road your Lordships will be seriously damaging the period of reconciliation, reflection and consideration before it gets a proper chance to operate. I am anxious to introduce this new machinery as quickly as possible.

In answer to my noble friend, Lord Coleraine, I said that we need to do it deliberately because I want it to work, but the last thing I want to do is to introduce it against a background which is calculated to destroy it before it starts. I am as keen as anybody to stop these types of divorce but I do not believe you can do it by this means in a way that is likely to be effective.

The second point I want to make is this. As the noble Lord, Lord Meston, has pointed out, all you would be doing is elaborating a procedure which has very little effect. I explained to your Lordships the other day, the previous day on Report, that in my early days it was all fault-based and the idea, for anyone who actually experienced it, that that helped and made marriage more successful and helped to produce reconciliation is just nonsense.

Much as I would like to support getting rid of these divorces quickly, the only way to do it is by introducing a constructive, properly thought out new system asthis Bill seeks to introduce. I believe it will do that if your Lordships pass this Bill in something like its present form. However, I believe that the system in the amendment will not do so.

If your Lordships look at subsections (1) and (2) of the amendment, what is the point of subsection (1) unless you wish to give, as the noble Lord, Lord Meston, said, more legal aid money to lawyers? If your Lordships wish that as an aim in itself then you will pass this amendment. But if, on the other hand, you wish me to use the money to help set up something better, then you will refuse this amendment. I cannot see for the life of me what the benefit is of subsection (1) of this amendment. I can see some sense in subsection (2) but for the insuperable problem to which I have drawn attention, namely, that you do not have much of a chance of reconciliation if you have to start off by alleging that the marriage has broken down by one of the named features. I hope that your Lordships who share my view that the sooner we get rid of the present system the better will not support this amendment on the grounds that it does so.

Lord Simon of Glaisdale

My Lords, I am grateful to all those who supported the amendment. I am particularly grateful to the noble Baroness, Lady Young, who put it as a point of principle, which it is. So your Lordships are free to vote on the amendment as conscience directs.

My noble and learned friend said over and over again that the amendment requires the person seeking a divorce to allege a fault. It does no such thing. It requires nobody to do anything. It proceeds on the basis that for the next two years that is how divorces will be obtained. I do not accept for a moment that because a fault has been alleged in a petition there is no opportunity, no suitable need, for consideration, reflection and, if possible, reconciliation. There are many petitions where the parties can be helped in that way by being delayed for a year and being given assistance with counsellors.

The quickie divorce is such a disgrace to the law and such an affront to the institution of marriage that I must ask your Lordships to support me in the Division Lobby.

7.11 p.m.

On Question, Whether the said amendment (No. 95) shall be agreed to?

Their Lordships divided: Contents, 27; Not-Contents, 101.

Division No. 1
Archer of Weston-Super-Mare, L. Halsbury, E.
Ashbourne, L. Harris of High Cross, L.
Clifford of Chudleigh, L. Howell, L.
Coleraine, L. Kilbracken, L.
Craigmyle, L. Kinloss, Ly.
Cross, V. Massereene and Ferrard, V
Elles, B. Moran, L. [Teller.]
Fitt, L. Northbourne, L.
Gardner of Parkes, B. Orr-Ewing, L.
Grantley, L. Pearson of Rannoch, L.
Griffiths of Fforestfach, L. Perth, E.
Robertson of Oakridge, L. Stallard, L.
Stoddart of Swindon, L.
Simon of Glaisdale, L. Young, B. [Teller.]
Acton, L. Irvine of Lairg, L.
Addison, V. Jeger, B.
Allenby of Megiddo, V. Jenkins of Putney, L.
Beloff, L. Kinnoull, E.
Birdwood, L. Lawrence, L.
Blaker, L. Lindsay, E.
Boardman, L. Lindsey and Abingdon, E.
Boyd-Carpenter, L. Lockwood, B.
Brabazon of Tara, L. Long, V.
Burnham, L. Lucas, L.
Carmichael of Kelvingrove, L. Lyell, L.
Carnegy of Lour, B. McColl of Dulwich, L.
Carnock, L. McConnell, L.
Carter, L. Mackay of Ardbrecknish, L.
Chalker of Wallasey, B. Mackay of Clashfern, L. [Lord Chancellor.]
Chesham, L. [Teller.]
Clanwilliam, E. Mackintosh of Halifax, V.
Colwyn, L. Marlesford, L.
Courtown, E. Mason of Barnsley, L.
Craigavon, V. Mersey, V.
Cranborne, V. [Lord Privy Seal.] Meston, L.
Cumberlege, B. Miller of Hendon, B.
Darcy (de Knayth), B. Monkswell, L.
Dean of Harptree, L. Mountevans, L.
Denham, L. Moyne, L.
Dixon-Smith, L. Munster, E.
Donoughue, L. Northesk, E.
Dornand of Easington, L. Oxfuird, V.
Dubs, L. Park of Monmouth, B.
Dundonald, E. Perry of Southwark, B.
Elton, L. Peyton of YeoviL, L.
Faithfull, B. Phillimore, L.
Falkland, V. Rawlings, B.
Flather, B. Redesdale, L.
Gainsborough, E. Renton, L.
Geddes, L. Russell, E
Glenarthur, L. St.John of Bletso, L.
Goschen, V. Seear, B.
Graham of Edmonton, L. Shaw of Northstead, L.
Grey, E. Smith of Gilmorehill, B.
Habgood, L. Stedman, B.
Haddington, E. Strathclyde, L. [Teller.]
Hamwee, B. Taylor of Blackburn, L
Harris of Greenwich, L. Taverne, L.
Haskel, L. Thomas of Gwydir, L.
Henley, L. Tordoff, L.
Holderness, L. Trumpington, B.
HolmPatrick, L. Wade of Chorlton, L.
Hooson, L. Wilcox, B.
Howe, E. Wise, L.
Inglewood, L. Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

Baroness Trumpington

My Lords, I should like to say that I was quite wrong, and I have already apologised in writing to the noble Lord, Lord Clifford, in preventing him from speaking when it was his right to do so. It is, of course, open to any noble Lord to speak to any amendment at the point when the Question is put.

I beg to move that consideration of the Report stage of the Bill be adjourned until twenty-past eight.

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