Family Law Bill [H.L.] (Hansard, 11 March 1996)

HL Deb 11 March 1996 vol 570 cc692-730 692

§ 8.11 p.m.

§ Proceedings after Third Reading resumed on Clause 10.

§ [Amendments Nos. 13 to 15 not moved.]

§ Clause 11 [Lord Chancellor's rules]:

§ The Lord Chancellor moved Amendment No. 16: Page 7, line 8, at end insert ("and what information must accompany it").

§ The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 17. Amendments were tabled on Report by my noble friend Lady Elles and by the noble 693 and learned Lords, Lord Simon of Glaisdale and Lord Archer of Sandwell, which sought to place a requirement on the face of the Bill for the statement of marital breakdown to state the attempts made to promote reconciliation between the two parties.

§ I have been giving this matter some consideration since Report. I believe that a requirement of this kind would be a valuable addition to the Bill as it will draw the attention of parties making a statement to the issue of reconciliation and perhaps make them question their own efforts in this regard. However, I believe very strongly that the provision should be one which requires the parties simply to state whether or not they have attempted reconciliation. It should not be assumed that attempts at reconciliation will have been appropriate in every case and there should be no punitive result in cases where parties have not attempted reconciliation. Its appropriateness depends on the circumstances of the individual case.

§ For the reasons which I gave at Report stage—namely, that I do not wish to tempt people into giving a history of their marital difficulties which the other party may wish to refute and which may then have the effect of increasing the hostility between the parties—I have drafted the amendment to enable rules made by the Lord Chancellor to require parties to state whether or not they have attempted reconciliation since they attended an information meeting. The information meeting is intended to give parties information on the divorce process itself and on the facilities available to them if they wish to seek help in saving their marriage, and it is therefore of relevance to ask parties whether or not they have attempted reconciliation since receiving this information and before taking the serious step of making a statement of marital breakdown.

§ I have taken advice on how best to incorporate a provision of this kind into the Bill, as a result of which I have tabled Amendment No. 17 to Clause 11 to empower the Lord Chancellor to make rules to this effect. I have also tabled Amendment No. 16 to ensure that the Lord Chancellor is able to make rules specifying the information which should accompany a statement of marital breakdown, as well as the form in which that statement is to be made.

§ As appeared from the discussion on Report, there is also merit in the information about reconciliation referring to the period after the information meeting because that may give a good impression of the extent to which the information meeting is successful in transmitting information to the parties. I beg to move.

§ Baroness Elles
My Lords, I thank my noble and learned friend for incorporating the amendment which we tabled on Report in this new form into the Bill. It makes a good addition to the role of the information meeting. As my noble and learned friend said, it will help also to assess the value of the information meeting and as to whether the parties concerned are encouraged 694 to embark on reconciliation before taking what I consider to be the final step of making a statement. I am extremely grateful to my noble and learned friend.

§ Lord Irvine of Lairg
My Lords, I welcome the amendment. Primarily it provides that the parties should be required to say whether they have attempted reconciliation but they are not placed under any obligation to do so and there are not adverse consequences if they do not do so. That must be right. Attempting reconciliation can only be voluntary. Therefore, I support the amendments.

§ The Lord Chancellor
My Lords, I am grateful for the support which the amendments have received. I beg to move.
On Question, amendment agreed to.

§ The Lord Chancellor moved Amendment No. 17: Page 7, line 8, at end insert— ("(aa) requiring the person making the statement to state whether or not, since satisfying the requirements of section 8, he has made any attempt at reconciliation;"). On Question, amendment agreed to.

§ The Lord Chancellor moved Amendment No. 18: Page 7, line 28, leave out ("or has been").

§ The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 19 to 21. I have tabled Amendment No. 19 partly in response to an amendment tabled by the noble Baroness, Lady David, and the noble Lord, Lord Northbourne, at Report stage and partly to bring the duty of legal representatives into line with that placed on mediators by Clause 24 of the Bill as amended on Report. The amendment will empower the Lord Chancellor to make rules which impose a duty on legal representatives to inform a client who is initiating, or proposes to initiate, the divorce process of the availability of marriage support services and mediation; and where there are children of the family, to inform the party that in relation to the arrangements to be made for any such child the party should consider the child's welfare, wishes and feelings. Under the terms of the amendment, any rules made by the Lord Chancellor will also require legal representatives to provide the party with names and addresses of persons qualified to assist them to effect a reconciliation and in connection with mediation.

§ Your Lordships will see from the Marshalled List that I have tabled an amendment to Clause 24 to require mediators to have arrangements in place to ensure that parties are informed about the availability of independent legal advice, in addition to those matters specified in the new Section 13B(6) of the Legal Aid Act 1988 inserted by Clause 24.

§ Under Amendment No. 21, any rules made by the Lord Chancellor will require the legal representative to certify whether he has complied with the provisions of the paragraphs introduced by Amendment No. 19, and also to certify whether he has discussed with the party any of the matters mentioned in the first of those paragraphs or the possibility of reconciliation and, if so, 695 which of those matters he has discussed. The form of that is intended to elicit reasonably detailed answers rather than a rubber-stamped form.

§ Amendment No. 18 restricts the provisions to legal representatives currently acting for parties making or proposing to make a statement.

§ Your Lordships will see that Amendment No. 20 removes the reference to counselling from Clause 11 (2)(c). I have considered carefully the arguments put forward by the right reverend Prelate the Bishop of Oxford on Report and your Lordships will note that I have changed the references from "counselling" to "marriage support services". I know that the right reverend Prelate and others in the House were concerned that the requirements of this clause should be focused on the issue of reconciliation, and I believe that that is achieved by the changes. In addition, the amendments I am proposing enable rules to impose a duty on legal representatives to inform their clients of certain matters. While I am sure that the usual practice of legal representatives is to inform their clients of many services which may be of assistance to them, I believe that, in the context of the Bill, it is only appropriate for the Lord Chancellor to impose a duty on legal representatives in relation to the matters raised in the amendment. I beg to move.

§ Baroness David
My Lords, I thank the noble and learned Lord for Amendment No. 19 and for Amendment No. 25, which amends Clause 24. I believe that these amendments are responses to the amendments that I moved at earlier stages. I thank the noble and learned Lord very much for his amendments.
I wonder whether I may ask the noble and learned Lord a question which is not exactly directly related. On Report I moved Amendment No. 63 for my noble and learned friend Lord Archer. The noble and learned Lord said that he would not accept that amendment but would bring forward an amendment, probably on Third Reading. I have not yet found that amendment, although that may be due to my stupidity. However, when the noble and learned Lord responds, I would be most grateful if he could tell me whether I have just missed it or whether, perhaps, that will be an amendment tabled in another place at a later stage. Nevertheless, I thank the noble and learned Lord for what has been done.

§ The Lord Bishop of Ripon
My Lords, the right reverend Prelate the Bishop of Oxford is unable to be present at this stage but he has asked me to express his thanks to the noble and learned Lord the Lord Chancellor for the amendments and in particular for the inclusion of "marriage support services" in Amendment No. 19. On his behalf, I am glad to express my support for the amendments.

§ The Lord Chancellor
My Lords, I am grateful for that support. If the noble Baroness, Lady David, could tell me the subject matter of her Amendment No. 63, I might well he able to answer her question, although I may be able to answer it in due course. I cannot 696 recollect at this moment the precise subject matter of the amendment, but I will probably remember it if it turns out that I have dealt with it.

§ Baroness David
My Lords, I must apologise to the noble and learned Lord. I have just been reproved by my noble friend for not having mentioned the subject matter of the amendment. It related to divorces which were agreed to on bogus evidence, where false information had been accepted. Is that enough information to trigger the noble and learned Lord's memory?

§ The Lord Chancellor
Yes, my Lords; my impression at the minute is that it is a little removed from the subject matter now under discussion.

§ Baroness David
My Lords, it is.

§ The Lord Chancellor
My Lords, I do not wish to incur a further rebuke from the noble Baroness and I am sympathetic to the amendment that she moved on Report. However, I have to ascertain whether it is necessary to do something along the lines suggested and, if so, on precisely what terms. Therefore, the answer is that I have not yet been able to deal with the subject matter of the noble Baroness's amendment. If it turns out that something is required, then I shall seek to promote it in another place.

§ Baroness David
My Lords, will the noble an learned Lord allow me to write a letter to him in order to explain the position a little further? I regret that I have been so inadequate in explaining what I wanted.

§ The Lord Chancellor
My Lords, the noble Baroness wishes to write me a letter. I must say that I am always extremely glad to receive communications from Members of your Lordships' House. I believe that I have the point in mind now. Once we got away from the number of the amendment to the subject matter I remembered the position quite well. As I said, I must ascertain what is required, if anything, to deal with the point that the noble Baroness and her noble and learned friend raised.
On Question, amendment agreed to.

§ The Lord Chancellor moved Amendments Nos. 19, 20 and 21: Page 7, line 30, leave out from ("made") to ("names") in line 38 and insert— ("(aa) to inform that party, at such time or times as may be specified—

(i) about the availability to the parties of marriage support services;
(ii) about the availability to them of mediation; and
(iii) where there are children of the family, that in relation to the arrangements to be made for any child the parties should consider the child's welfare, wishes and feelings;

(ab) to give that party, at such time or times as may be specified,"). Page 7, line 41, leave out ("(ii) by counselling"). Page 7, line 42, at end insert ("; and (ac) to certify, at such time or times as may be specified— 697

(i) whether he has complied with the provision made in the rules by virtue of paragraphs (aa) and (ab);
(ii) whether he has discussed with that party any of the matters mentioned in paragraph (aa) or the possibility of reconciliation; and
(iii) which, if any, of those matters they have discussed.").

§ On Question, amendments agreed to.

§ Clause 14 [Financial arrangements]:

§ Lord Coleraine moved Amendment No. 22: Page 9, line 10, at end insert— ("(aa) to provide that such orders are not to be made, except in cases of special and immediate need, during the first six months of the period for reflection and consideration, in order to promote reconciliation and, where reconciliation is not possible, the settlement of arrangements for the future by negotiation or mediation; and").

§ The noble Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 55 and 57. Amendment No. 22 is a paving amendment for the latter and it is supported by my noble friends Lady Young, Lord Ashbourne and Lord Archer of Weston-Super-Mare and the noble Earl, Lord Perth. The intention behind the amendments is to provide a period in which the parties to a divorce can attempt to resolve their financial arrangements for the future by agreement with the aid of mediators or their lawyers and without the threat of an immediate order by the court hanging over them.

§ The amendments would provide that no court order for financial provision of property adjustment may be made in the first six months after the statement, except where there are shown to be special circumstances of "urgent need". That provision takes account of points made by my noble and learned friend on Report. The sort of circumstances which are intended to be covered by reference to "urgent need" are cases where, shall we say, a wasting asset needs to be sold such as where there is a negative equity situation, where one or both of the parties requires to be housed when they are both living together and it is impossible to house them, or for an occupation order under Part IV of the Bill to be made. In that sort of case, one would readily agree that it would probably be necessary for an immediate order to be made.

§ The amendments would apply to immediate orders as well as to the orders taking effect on the divorce only, which are the orders presently favoured by my noble and learned friend. I would preclude those. Allowing a court order of whatever sort to be made immediately the statement has been made will inevitably result in increased acrimony as solicitors' letters are exchanged, bargaining goes on, positions are jockeyed for and the solicitor for one party or the other attempts to get on top in the battle of finance straight away. In many cases, the early settlement or financial arrangements made under duress will produce de facto an early, irretrievable breakdown of marriage and give no opportunity for mediation to work or even to be tried.

§ The amendments do not preclude applications to the court during the six-month period. They do not preclude the procedures leading up to the hearing and the need to 698 make financial disclosures and the like. The intention is merely that the order should not be made in the first six months so that, if a party feels that nothing is being achieved by mediation or attempting to reach agreement, that party will still be able to apply for an order. The fact that the hearing of the application may be delayed until the end of the six-month period will provide the incentive for both parties to negotiate.

§ It is a very modest amendment. When my noble and learned friend dealt with the matter at earlier stages in a different form he was fairly lukewarm in his opposition to my amendment or to what we proposed. That did not surprise me because I know that my noble and learned friend has no wish for the court to be tried in preference to mediation or negotiated agreement elsewhere. However, I hope that my noble and learned friend will be able to say that the thoughts behind the amendments are now agreed, that they may need redrafting and that he will bring forward something in another place. In the meantime, I beg to move.

§ Baroness Young
My Lords, I should like to express my support for my noble friend Lord Coleraine. As the House will recall, my noble friend introduced amendments along similar lines both in Committee and on Report. The point that he has raised is an extremely important one in that, if such orders are made at any time after the first statement, the whole idea of reconciliation, reflection, consideration, and so on, is pointless because the situation is decided by those circumstances.
We are concerned with two orders here and, as I understand it—although it is quite possible that I have not got it quite correct—the Bill permits lump sum orders to be made at any time after the first statement and provides for property transfers to be made in special circumstances before the divorce. I believe that my noble and learned friend has gone some way towards meeting one of those points and that is most welcome. That will certainly help the situation. The provision would mean that either the husband or the wife could obtain a court order during the reflection period which would settle who would own the house at the divorce and how much would be paid in a lump sum on divorce. Therefore, although my noble and learned friend's provision goes part of the way, it does not go as far as we would wish.
Having gone part of the way, I hope that my noble and learned friend will feel able to go all the way with my noble friend Lord Coleraine on this most important series of amendments. I believe that that would be in keeping with what my noble and learned friend wants; namely, to have such a period for reflection and consideration. It would not in any way be damaged by the fact that a party could make a settlement of their assets right at the beginning before anything else had been considered.

§ 8.30 p.m.

§ Lord Ashbourne
My Lords, I rise to support these amendments because they establish a six month period when the court may not make property or financial provision orders so that reconciliation can be 699 concentrated on. If the Government are really saying that this Bill is supportive of the family and buttresses marriage, then surely reconciliation needs to be the central focus of the Bill.
Many people take the view that one of the more pressing problems we face in this country today is the breakdown of the traditional family leading to widespread social misery and great distress among children who frequently suffer from loss of status, loss of identity, loss of self-esteem, and in many cases loss of one parent altogether. Of course I realise that one cannot legislate against human nature and that whatever laws are passed in Westminster may have little effect on human relations within a family; but I believe that it is the responsibility of the Government to create an atmosphere within which marriage and the traditional family can flourish. In fact the 1969 Act did exactly the opposite with the result that we now have the highest divorce rate in Europe. By putting more emphasis on reconciliation, more marriages will be saved. It is for that reason that I commend these amendments to the House.

§ Lord Northbourne
My Lords, I rise to say briefly how much I support the noble Lord, Lord Coleraine. It seems to me quite inimical to the objectives of the Bill to allow the courts to make what appear to be permanent settlements in regard to lump sum payments and property transfers before the parties have had an opportunity to attempt reconciliation and before the parties have had an opportunity to attempt mediation and to arrive at an agreed solution. Surely, it should be possible to make temporary arrangements for sufficient capital or income to be available to the spouse, or, alternatively, for occupation of the property, without actually making a property transfer.

§ Lord Elton
My Lords, I do not know what my noble friend intends to do with the amendment after he has heard my noble and learned friend's reply but if, as I imagine, the matter may be left open to go to another place, I wonder whether that opportunity will he taken to look at it again in a slightly different light. I think we have all accepted that the divorce proceedings are not the start but the conclusion of a process, and we need to consider whether any additional time or slack water is to be introduced in the light of that. There will have been great turbulence before this passage of time—the 12 months—begins.
That said, surely the difference that strikes the parties to the marriage and the divorce at the moment divorce proceedings begin, is the crystallisation into reality of what they had merely imagined to be the arrangements that will result. Many of your Lordships feel—I rather think that I feel this way too—that it is that crystallisation that makes people seriously have a second look. Merely beginning the argument about the arrangements, or beginning the process, does not. It is arguable—this is probably a persuasive argument—that it is when they see what the position will be at the end of the process that they think, "Good heavens! Is this really what we meant?" I should have thought that an amendment which made the order of the court in some way provisional after it had been made, and left the six 700 months for reflection at the end of the process, so that people would know what they were reflecting about, would have much more attraction than what is now proposed. That is what I would say if my noble friend was leaving it to be discussed in another place.

§ Earl Russell
My Lords, the logic behind this amendment is, I think, impeccable. The points made in its support are serious, but I also listened with a great deal of interest to the points made by the noble Lord, Lord Elton. I can see a great deal of force in those points. The other point that occurred to me is one about the tempo of negotiation. I think most of us find that in negotiation there is usually one moment at which the parties may be induced to reach agreement. It may come sooner or later when moods coincide.
If that moment is attained, it is a matter of a tide in the affairs of men which is not taken at the flood, especially in cases involving matrimonial breakdown. It is not unknown after matrimonial breakdown for hostility between the parties to go on growing which may mean there could be some cases where a settlement might have been accessible early on but there may be bitter contests later if it is not taken when it is accessible. I hope that all those points on both sides will be taken into account. However, I recognise the case that has been made in favour of the amendment is a serious one; I just think that it probably is not quite the whole story.

§ The Lord Chancellor
My Lords, I have indicated on previous occasions what my noble friend Lord Coleraine has described as a rather lukewarm antagonism to these amendments. That just about accurately reflects my attitude to them. There is a great deal to be said in the ordinary case for an order being made in the first six months. I think as a practical matter it is highly unlikely that a contested order would in any event be made in the first six months. However, there may be situations in which agreement is required on the basis of which some further understanding can be built. There is also the point that under the European Convention on Human Rights there is the question of conducting a hearing within a reasonable time. What amounts to "reasonable time" depends very much on the circumstances.
It is important to think about these amendments against the background of what I am proposing both in the Bill and in amendments to be discussed later; namely, that any order that is made for property adjustment or for financial provision will not take effect until the divorce order is granted unless there are exceptional circumstances and it is just and reasonable to do so. I have added the term "exceptional circumstances" out of concern to meet the points that my noble friends have made to me before.
I am endeavouring to see whether reforms of the ancillary relief procedure can be put in place to reduce the cost and delay involved. My inclination at the moment is to think that this sort of matter is best dealt with in rules of court which take account of the various circumstances. However, I think that the present rules of court may not be sufficient to enable this particular 701 type of obstacle to become effective. If your Lordships would be kind enough to allow me further time on this matter, I should like to consider whether a degree of flexibility, taking account of this desire, could be built into the rule-making procedure in such a way as to give effect, generally speaking, to the wishes expressed in this amendment by my noble friend Lord Coleraine and those who have supported him.

§ Lord Coleraine
My Lords, I am grateful to all noble Lords who have spoken and for the general understanding around the House of the purpose of these amendments. At the moment I find it difficult to see what rules of court can do when the thrust of the Bill, as it is at the moment, is that at any time after the statement is made one party can go to court and obtain a financial provision order or a property adjustment order. That will effectively ruin any chances of reconciliation or mediation on other aspects of the arrangements for the future.
The Bill ought to be aimed at ensuring that as far as possible mediation and negotiated agreements are favoured rather than court applications. Taking up a point which my noble and learned friend made when discussing his disagreement with his advisory group, my noble friend Lord Elton made the point that if the order was made the parties would then realise that that was not what they wanted. I believe that in fact when the order is made one party will realise that it is not what he or she wanted but the other party will be extremely satisfied with what he or she has, and the divorce will continue in an acrimonious manner.
As regards the tempo of negotiations, I understand that the early stages are possibly not the time when one will achieve an easy agreement. On the other hand, if agreement is not achieved in the early stages I very much doubt whether it will be possible to reach agreement in the later stages.
Nevertheless, I am very grateful to my noble and learned friend for what he said about looking into ways in which those points can be met. I know that he will do so because he said that his opposition to the amendments was lukewarm. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Clause 23 [Legal aid for mediation in family matters]:

§ The Lord Chancellor moved Amendment No. 23: Page 13, line 16, leave out ("Part") and insert ("Parts II and").

§ The noble and learned Lord said: My Lords, the amendment provides that legal aid for mediation will be available for questions arising under Part H of the Act as well as those arising under Part IV. It is desirable to ensure that if any issues arise under any part of the Bill which are appropriate for mediation then funding for publicly supported mediation will be available. I beg to move.

§ On Question, amendment agreed to.

§ Clause 24 [Provision and availability of mediation]:

§ The Lord Chancellor moved Amendment No. 24: 702 Page 14, line 20, leave out ("and").

§ The noble and learned Lord said: My Lords, in moving Amendment No. 24, I shall speak also to Amendment No. 25. The amendments amend subsection (6)(a) of Section 13B of the Legal Aid Act 1988, introduced by Clause 24. They provide that where the Legal Aid Board enters into a contract for the provision of mediation the contract must include provision requiring the mediator to have in place arrangements to ensure that each party is informed about the availability of independent legal advice.

§ I have put down the amendments in response to an amendment tabled at Report stage by the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Irvine of Lairg. I am grateful to them for drawing this matter to my attention, and have pleasure in moving Amendment No. 24. I beg to move.

§ On Question, amendment agreed to.

§ The Lord Chancellor moved Amendment No. 25: Page 14, line 23, at end insert— ("(iii) that each party is informed about the availability of independent legal advice; and").

§ On Question, amendment agreed to.

§ Clause 25 [Payment for mediation]:

§ The Lord Chancellor moved Amendment No. 26: Page 15, line 4, after ("is") insert (", except so far as the regulations otherwise provide,").

§ The noble and learned Lord said: My Lords, at Report stage I indicated my gratitude to the noble Earl, Lord Russell, for drawing my attention to a lacuna in the Bill as a result of which the statutory charge disregard did not apply in respect of legal aid for mediation. The amendment rectifies that.

§ The amendment extends the regulation-making power of the Lord Chancellor in respect of the statutory charge for mediation to mirror the current provisions in the Legal Aid Act 1988 which allow regulations to be made in respect of advice, assistance and representation in matrimonial matters where the statutory charge applies, to disregard the first £2,500 of property recovered or preserved in the calculation of the statutory charge.

§ As I indicated at Report stage, it would not be appropriate for that provision to appear on the face of the Bill: first, because that would make any changes which were necessary regarding the level of the disregard more difficult; and, secondly, because I believe that details such as this are appropriately left to regulations, as they are in relation to the disregard under the present provisions of the 1988 Act.

§ I reiterate that my intention has always been that, when the statutory charge is applied, through regulations, to mediation in family matters, there should be some replication of the statutory disregard which applies in matrimonial matters for advice, assistance and representation. I should like to express my thanks once again to the noble Earl, Lord Russell, for drawing this oversight to my attention. I beg to move.

§ Earl Russell
My Lords, I should like to thank the noble and learned Lord very warmly indeed for the 703 amendment. To be able to make a concession to me in the form of a new regulation-making power must have afforded the noble and learned Lord considerable amusement, in which I share.
On Question, amendment agreed to.

§ 8.45 p.m.

§ Clause 26 [Mediation and civil legal aid]:

§ Lord Irvine of Lairg had given notice of his intention to move Amendment No. 27: Page 16, line 22, after ("matters") insert ("except where either party to the proceedings does not agree to take part in mediation").

§ The noble Lord said: My Lords, I have reflected on the assurances given by the noble and learned Lord at Report stage on 4th March in relation to the amendment, and shall not move the amendment at Third Reading.

§ [Amendment No. 27 not moved.]

§ Clause 30 [Occupation orders where applicant has estate or interest etc. or has matrimonial home rights]:

§ Baroness Young moved Amendment No. 28: Page 20, line 34, after ("parties;") insert— ("( ) the conduct of the parties;").

§ The noble Baroness said: My Lords, in moving Amendment No. 28 I shall speak also to Amendment No. 31.

§ I am in some difficulty, as I am sure my noble and learned friend will appreciate, because I understand that his Amendment No. 30 to a large extent meets the purpose of Amendment No. 28. If that understanding is correct, I am very grateful. That is of value. There was anxiety that it might be possible for one spouse to turn the other out of the house without conduct being taken into account. I beg to move.

§ Lord Simon of Glaisdale
My Lords, I supported a similar amendment at Report stage, both on general grounds and invoking a technical canon of construction—the ejusdem generic rule—which I thought prevented the general rule, on which my noble and learned friend relied, covering the case of conduct.
I was remiss in not having given my noble and learned friend notice that I would raise that point. Therefore, understandably, he did not deal with it. As a result I wrote to him after the debate. As I understand it, my noble and learned friend has now completely met our point, and I join the noble Baroness in expressing thanks for that.

§ The Lord Chancellor
My Lords, I am grateful to my noble friend Lady Young and my noble and learned friend Lord Simon of Glaisdale for what they have said.
Reviewing what was said at Report stage, having regard to the pre-existing law, and looking at the most recent decision in this area, I came to the conclusion that the result of leaving out the reference to the conduct of the parties was probably to change the appearance of the law without changing its substance, and therefore it was wise simply to restore the phraseology of the existing law. I have therefore met the thrust of the amendments of my noble friend Lady Young and 704 the technical point of my noble and learned friend Lord Simon of Glaisdale, which I would have met in more detail even without notice had I not thought, after hearing so much of the debate on the previous occasion, that I should be wise to go ahead on this basis. That is what I have done. I am grateful.

§ Baroness Young
My Lords, I am anxious to be constitutionally in order on this matter. I wonder whether I should be right now to withdraw my amendment in order that my noble and learned friend can move his. I am happy to do so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ The Lord Chancellor moved Amendment No. 29: Page 20, line 34, leave out ("and").

§ The noble and learned Lord said: My Lords, Amendment No. 29 is the first of a rather large number of amendments that I wish to propose. The amendments in my name grouped between Amendments Nos. 28 to 38 and Amendments Nos. 40, 41, 43 to 46, and 48 to 50 are on this point generally.

§ The amendments are intended to emphasise the need for the court to take into account the conduct of the parties when making occupation orders under Part IV of the Bill. They also ensure that the balance of harm test or questions should apply where significant harm to an applicant or a relevant child is harm attributable to the conduct of the respondent.

§ As I said a little while ago, I have reflected further on the amendments tabled at Report stage by my noble friend Lady Young and have tabled these amendments to ensure that when the court is considering whether to make an occupation order under Clauses 30(3), 32, 33, 34 and 35 of the Bill it must take into account, in addition to the factors already specified in those clauses, the conduct of the parties in relation to each other and otherwise. I believe that in the previous wording they included notwithstanding the general point. But I think that it is quite wise to make it explicit. The amendments enable the Bill so far as possible to reflect the existing law on this point in the Matrimonial Homes Act 1983.

§ At Report stage I made amendments to the definition of harm in Clause 59 in respect of an adult applicant to provide that the harm in question would have to be the result of the conduct of the respondent. Your Lordships will remember that that arose out of an amendment proposed by the noble Lord, Lord Irvine of Lairg, which focused on the distinction between the harm as described for children, which included harm other than physical harm, and the adults where we did not have that introduction. In looking at that, it brought me to consider this question. After further consideration, I have decided that harm to children should be treated in a similar way. The later amendments therefore provide that where significant harm to an applicant or a relevant child is referred to in the Bill, it is significant harm attributable to the conduct of the respondent. However, where reference is made to harm to the respondent or a relevant child in the balance of harm test to be applied in relation to occupation orders, the harm will be harm as a consequence of the respondent's occupation being 705 regulated by the occupation order. The later amendments therefore dealing with this matter amend the definition of harm in Clause 59 accordingly.

§ In the light of that explanation, I beg to move Amendment No. 29.

§ On Question, amendment agreed to.

§ The Lord Chancellor moved Amendment No. 30: Page 20, line 37, at end insert ("and ( ) the conduct of the parties in relation to each other and otherwise.").

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

§ On Question, amendment agreed to.

§ Baroness Young had given notice of her intention to move Amendment No. 31: Page 20, line 38, leave out subsection (7).

§ The noble Baroness said: My Lords, I should like to say how grateful I am to my noble and learned friend for the series of amendments which he has just moved which meets at least one of the points that I raised at Report stage and I am sure will be regarded as a great improvement to the Bill.

§ I am a little concerned that he has not dealt fully with the whole question of the balance of harm test which was one of the other issues raised. He says that he has amended the definition of harm in, I think, Clause 59 which includes a child as well as others.

§ At this late stage of the proceedings, I shall not repeat the arguments that I put forward at Report stage. It is very valuable that my noble and learned friend has moved the amendments which meet a considerable part of my concern. As regards the balance of harm test, I shall read carefully what my noble and learned friend said. The matter may well be taken up in another place.

§ It is important that definitions should be sufficiently tight so that it is not possible to argue a case of harm which in effect is bogus, in the serious event that someone asked to be removed from the occupation of a house should be brought before the court on the matter.

§ I do not wish to pursue the matter on this occasion, but to thank my noble and learned friend for the point to which he has agreed.

§ [Amendment No. 31 not moved.]

§ The Lord Chancellor moved Amendments Nos. 32 and 33: Page 20, line 39, after ("harm") insert ("attributable to conduct of the respondent"). Page 20, line 45, after ("harm") insert ("attributable to conduct of the respondent which is").

§ The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 32 to 39 with Amendment No. 29. I beg to move.

§ On Question, amendments agreed to.

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§ Clause 32 [One former spouse with no existing right to occupy]:

§ The Lord Chancellor moved Amendments Nos. 34 to 37: Page 22, line 19, at end insert— ( ) the conduct of the parties in relation to each other and otherwise;"), Page 22, line 36, leave out ("(b) and (c)") and insert ("to (d)"). Page 22, line 39, after ("harm") insert ("attributable to conduct of the respondent"). Page 22, line 44, after ("harm") insert ("attributable to conduct of the respondent which is"). On Question, amendments agreed to.

§ Clause 33 [One cohabitant or former cohabitant with no existing right to occupy]:

§ The Lord Chancellor moved Amendments Nos. 38 and 39: Page 24, line 15, at end insert— ( ) the conduct of the parties in relation to each other and otherwise;"). Page 24, line 34, leave out ("(b) and (c)") and insert ("to (d)").

§ On Question, amendments agreed to.

§ Lord Irvine of Lairg moved Amendment No. 40: Page 24, line 34, leave out from ("(c)") to end of line 43 and insert— ("(8) If it appears to the court that the applicant or any relevant child is likely to suffer significant harm if an order under this section containing one or more of the provisions mentioned in subsection (4) is not made, the court shall make the order unless it appears to it that—

(a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and
(b) the harm likely to be suffered by the respondent or the child in that event is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made.").

§ The noble Lord said: My Lords, I beg to move Amendment No. 40 and speak to Amendment No. 43 which I also moved on Report.

§ The amendments are designed to restore the full force of the previous Bill before concessions were made to appease what I previously described, and would continue to describe, as the uninformed minority in the other place.

§ I yield to no one in my acceptance of the need sometimes for political compromise. What I cannot accept is that such a need existed where there was a clear majority in every party, including that of the noble and learned Lord, for the Family Homes and Domestic Violence Bill in the form in which it left your Lordships' House. At this hour of the night, and because these amendments were fully argued on Report on 4th March, I shall express myself shortly.

§ The first amendment is to ensure that the balance of harm test is equally applicable in cases where the victims of violence have no strict legal right to occupy the property as it applies to cases where the victims of violence do have such a right. I believe that the Law Commission's view should prevail: that is, that the courts should make an order in favour of the non-entitled applicant when the courts are satisfied that 707 more harm would be caused to that applicant or any child than would be caused by not making the order. The plain fact is that under the Bill the courts are being given a discretion to withhold a protection from non-entitled partners even though the balance of harm test is satisfied in their cases.

§ I welcome the support which the noble and learned Lord, Lord Brightman, felt able to give these amendments on Report on 4th March. He chaired our Jellicoe Committee into the Family Homes and Domestic Violence Bill of the last Session with great distinction. His support on Report, however, was perhaps not in political terms the most cogent for which I could have wished when he was commending these amendments to your Lordships' House. He said that he felt the courts would ensure that justice was done whether or not the amendments were carried. Perhaps I may say to him, with great respect, that that is a lawyer speaking rather than a politician. For my part, I do not feel so sanguine. If the noble and learned Lord on the Woolsack feels that there will be no difference in practice in the court's decisions on his watered-down proposals, then he would be as well to reinstate his first thoughts on the subject for the avoidance of any doubt.

§ The second of the amendments is likewise aimed at restoring the previous provisions in the Family Homes and Domestic Violence Bill. Under that Bill, ouster orders in favour of non-owners, the victims of domestic violence, could continue for as long as the court thought necessary. Ouster orders in favour of non-owners may now be for six months only, with the possibility of one single extension of six months but no further extension in whatever circumstances.

§ I believe—as the noble and learned Lord, Lord Brightman, believes, and as the noble and learned Lord on the Woolsack once believed, and perhaps still believes—that judges should have the same discretion as they had under the previous Bill so that the hands of the court should not be tied to arbitrary time limits.

§ As I said on Report, rare cases will arise in which acute difficulty will be found in rehousing the abused and in particular where couples may be elderly, ill or even terminally ill. If alternative accommodation does not become available within 12 months, under the Bill in its present form the courts are powerless to prevent the individual being turned out into the street. I really do not know what the answer to that point can be and I believe that the present Bill must therefore be wrong in principle.

§ I submit that this gap in the courts' protective powers leaves the abused and uniquely vulnerable at risk of homelessness. These amendments will fill that gap and I therefore beg to move.

§ Lord Brightman
My Lords, I am sorry I did not give satisfaction to the noble Lord, Lord Irvine of Lairg, on the last occasion and I will try to do better this time.
May I begin, as I began at the Report stage, by emphasising that the Family Homes and Domestic Violence Bill of the last Session, upon which this part of the Family Law Bill is based, had nothing whatever to do with the saving of the institution of marriage and 708 nothing to do with the buttressing of marriage. It was concerned only with the avoidance of anti-social behaviour and violence after a marriage, after a family home, had come to an end. Part III of this Bill has exactly the same purpose. I therefore turn to these amendments.
For convenience I will refer to the earlier Bill simply as the domestic violence Bill, which I think is expressive of the basis of that Bill. All that I respectfully ask now, and all that these amendments are designed to do, is to restore a part of the domestic violence Bill to the form which it took when it was before your Lordships' House on the previous occasion—that is, the part that deals with occupation orders affecting, co-habitants who have no legal right to occupy the family home. An occupation order is a purely temporary order for regulating the temporary occupation of the family home after the breakdown of the relationship between the parties. Under the domestic violence Bill a man and a woman cohabiting were equated with a married couple for the purposes of this temporary order.
I wish to submit only two points for consideration. My first point is this. If a couple have set up a family home together and the relationship comes to grief, it is just as necessary to regulate the temporary occupation of the family home whether that home was based on a marriage in church, a marriage in a registry office or an informal relationship. The same stresses, the same risk of anti-social behaviour, the same risk of violence, the same risk to any child, will arise whatever the origin of the family home. Therefore, the court ought to have the same jurisdiction, exercisable to the same extent, in the same way, on the same principles, whatever the origins of the family home. This result will be achieved if Amendments Nos. 40 and 43 are accepted by your Lordships. The jurisdiction of the court will be restored to the form it took in the domestic violence Bill. That will not be achieved if these amendments are rejected.
My second point is this. This House decided in the last Session what form your Lordships wished the occupation order jurisdiction to take. I suggest, with the greatest possible respect to my noble and learned friend the Lord Chancellor, that there is no reason for this House to change its mind at this stage.
Perhaps I may say a brief word in order to record the unusual history of the domestic violence Bill upon which Part III of this Bill is based. A Committee of this House considered the domestic violence Bill over several days in the last Session. It received written evidence from almost 50 witnesses. It heard oral evidence at six meetings. This House considered the Bill at the Report stage in May of last year. There was no Division. The Bill had its Third Reading in June and again there was no Division. The Bill went to the other place. After a Second Reading debate the Bill went to the Select Committee on Home Affairs. It then came before Standing Committee B. The Parliamentary Secretary to the Lord Chancellor's Department told Standing Committee B, according to the Official Report, that the Bill had been "intensively scrutinised" by the Select Committee on Home Affairs. No change was made by Standing Committee B to the provisions affecting occupation orders. No amendment to those 709 provisions was even tabled. The Bill was then dropped, for reasons which I would not presume to question. I ask myself: why should we now take it upon ourselves to alter our considered opinion on occupation orders? It was an opinion with which the other place has so far shown no disagreement whatever. Let us therefore send the Bill back to the other place in the form, in relation to temporary occupation orders, which in our considered opinion of last year we thought to be right. That will happen if the amendments are accepted. Let us see what the other place thinks. In my submission, it is far too early to change our minds. I therefore support the amendments.

§ Earl Russell
My Lords, I too wish to add my support for the amendments. First, I do so because I believe that in the last Session, in the Select Committee—of which I regret I was not able to be a member—the Bill received a far more careful scrutiny than we in full House have been able to give it now.
Part IV of the Bill is highly technical. We have been through it concentrating on the "headline" points. For all the effort I have put into trying to get it right, I do not understand it nearly so well as those who were members of the Select Committee in the previous Session. I therefore think that, if we disagree with the Select Committee, the balance of probability is that the Select Committee got it right. All Her Majesty's subjects are entitled to equal protection against physical violence and may suffer from an equal need for it. That point appears to me to be capable of carrying great weight.
The balance of harm test is a good one. So far as I can see, it is what we need to know in order to decide what should be done. That test enables the court to take all relevant influences into consideration. It enables the court to weigh conflicting interests, conflicting needs and conflicting dangers against each other. Since cases are extremely individual, it can be difficult to fetter the consideration of the court in such matters. At present, the noble and learned Lord, Lord Brightman, is probably right that it will not make much difference in practice. However, we must hope that the Bill will remain on the statute book for a long time. I do not believe that we can foresee how judges in 30 or 50 years might interpret the clauses. Therefore, the fact that it may make little difference at present does not obviate the need to give ourselves security for the future.
Also I see no answer to this question: if the changes did not make much difference, why were they worth introducing? They set the mark of Cain upon some of Her Majesty's subjects. Why was that worth doing, unless it made a difference to how the Bill operated in practice? If it is useless, then it should go out because it is a provoking and, in many quarters, extremely unpopular set of changes. They could only have been justified by showing that they met a genuine practical need. I have not heard that case demonstrated; I have not even heard it argued.
On Amendment No. 43, the case made by the noble Lord, Lord Irvine, about terminal illness is powerful. If someone is in a state of terminal illness and may live 710 another three months, it seems gratuitously cruel to have to move them out, with all the disruption that that entails, in the last few weeks of their life. It might also entail a considerable cost to public funds. There is the further possibility that the accommodation might be purpose-built for a disabled person. In those circumstances, if the court were entirely free to consider the issue, it might appear to be sensible to continue the order. I wish to see the court given back that discretion. I would trust the court not to use it in any reckless or unadvised way. I too very much hope that the amendments will be accepted.

Baroness Darcy (de Knayth)
My Lords, as a member of the committee which was chaired with such skill by my noble and learned friend Lord Brightman, I wish to add my strong support for the amendments, for the reasons which have been stated so clearly and convincingly. I have in mind something which the noble Earl, Lord Russell, said on a different amendment at Report stage. It was that there was a difference between marriage and cohabitation but it is simply not relevant in this context. Both families are equally in need of protection.

§ Baroness Young
My Lords, I had not intended to enter into this debate at all. However, I have listened to the arguments, and my noble and learned friend will perhaps be astonished to hear that I very much support the stand that he has taken over this matter.
I was quite concerned at the speech by the noble and learned Lord, Lord Brightman, and that by the noble Baroness, Lady Darcy (de Knayth). There is a very real distinction between marriage and cohabitation. One of the great dangers now is that we are going down the path of making that distinction less and less. This is one such case. I accept that there are hard cases. But after all, if you are living together, you can always leave. That is one of the points about living together as opposed to marriage, where you are in an entirely different legal situation.
I regret very much that I did not follow the intricacies of this debate when it came before the House last year. I apologise for that. I realise that I should have done so, but other matters intervened. I am one of those who feel that there is a very real danger—signalled, I may say, by the Law Commission—that we shall be pushed into a situation where there is not a distinction between marriage and cohabitation; and this bit of the Bill is a classic example. We need to think very carefully before accepting these amendments.

§ Earl Russell
My Lords, before the noble Baroness sits down, I ask her to read tomorrow in the Official Report what the noble Baroness, Lady Darcy (de Knayth) actually said. She did not say that there was no distinction between marriage and cohabiting; she said that it was not relevant to this Bill.

§ Baroness Young
Yes, my Lords, of course I shall read tomorrow in Hansard the remarks of the noble Baroness, Lady Darcy (de Knayth), with whose views 711 on most matters I am in agreement. I do not agree with her on this point. I believe that the distinction is relevant to the Bill.

§ Baroness David
My Lords, as another member of the Jellicoe Committee, I believe that the noble Baroness, Lady Young, is wrong about this. I do not think it is a question of whether people are married or not. It is a case of domestic violence. I very much support the remarks of the noble Baroness, Lady Darcy (de Knayth). That particular argument is irrelevant to this small part of the Bill.

§ The Lord Chancellor
My Lords, I, too, was a member of the committee over which my noble and learned friend Lord Brightman presided with such distinction. In some of these issues one has to take account of perceptions and the way in which matters are dealt with.
As I mentioned before, Part IV of the Bill recognises in relation to occupation a distinction between those who are married and those who are not, in the respect that those who are married have rights of occupation in the matrimonial home, whereas those who are not married do not. They may get an order from the court for occupation, but they are not entitled as of right to occupy the family home. So that distinction is recognised in this part of the Bill, and was recognised in the Bill as it emerged from the committee last time and also from this House last time.
The question is how far that distinction should go. In this particular situation, in consideration—I shall be quite frank about it—of the views of my colleagues in another place, I proposed amendments to the Bill that emerged from this House and had gone through a considerable part of its passage in the other place when difficulties arose in relation to it. It is reasonable to take account of those in the way in which this Bill as now drafted does.
As I mentioned before, Amendment No. 40 is not appropriate. It refers to subsection (4) rather than subsection (5). Reading the whole thing together does not make sense. Therefore it is not a particularly happy amendment to insert at Third Reading on that account. I mention that again only because this is Third Reading.
Turning to Amendment No. 43, it seems reasonable when this question is raised and people are concerned about it, to recognise the distinction between those who are married and those who are not in the respect that the person who is unmarried has no right in the family home. It is not a question of people being "second-class" but of recognising all the circumstances. If one wants a right in the family home, the law says that people have that by being married. Surely the law can recognise that. If you do not have a right in that way, this clause as presently drafted limits, and not particularly narrowly, the power of the court to grant an occupation order twice, up to a total of two with six-month periods as the periods of the order.
I certainly see the arguments on both sides of this question. Earlier I saw more forcefully the argument on one side and I am now proposing the argument on the other, having regard to the views expressed by my 712 colleagues in another place. This point having been raised in the other place, I invite your Lordships to agree that the Bill goes forward as it is presently drafted. In any event, there is a technical obstacle in the path of Amendment No. 40.

§ Lord Irvine of Lairg
My Lords, I am completely unconvinced by the Lord Chancellor's response. If the noble and learned Lord respected intellectual consistency, he would not even convince himself.
I am disappointed but unsurprised by the response. That is a condition which I often experience when listening to the noble and learned Lord, though I can assure him that I have the identical experience when listening, from time to time, to others from the Government Front Benches.
Despite the hour; despite the small number of your Lordships in the Chamber—though I dare say that there will be many more on hand who will vote who have not listened to the debate—I desire to test the opinion of the House. I do that not least because it will show the other place the concern that some in this House feel for this subject. I commend the amendment to your Lordships.

§ 9.20 p.m.

§ On Question, Whether the said amendment (No. 40) shall be agreed to?

§ Their Lordships divided: Contents, 13; Not-Contents, 58.

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Division No. 3
CONTENTS
Attlee, E.	Hylton, L.
Barnett, L.	Irvine of Lairg, L.
Brightman, L.	Lawrence, L.
Darcy (de Knayth), B.	Mackie of Benshie, L.
David, B.	Meston, L.
Graham of Edmonton, L.	Monkswell, L.
	Russell, E. [Teller.]
NOT-CONTENTS
Addison, V.	Henley, L.
Blatch, B.	Hooper, B.
Boardman, L.	Howe, E.
Brentford, V.	Inglewood, L.
Brigstocke, B.	Leigh, L.
Burnham, L.	Lindsay, E.
Carnock, L.	Long, V. [Teller.]
Chalker of Wallasey, B.	Lucas, L.
Clark of Kempston, L.	McConnell, L.
Clifford of Chudleigh, L.	Mackay of Ardbrecknish, L.
Coleraine, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Courtown, E.
Dean of Harptree, L.	Mackay of Drumadoon, L.
Elles, B.	Miller of Hendon, B.
Elton, L.	Montgomery of Alamein, V.
Faithfull, B.	Mountevans, L.
Ferrers, E.	Northbouene, L.
Gilmour of Craigmillar, L.	Northesk, E.
Habgood, L.	Park of Monmouth, B.
Hamilton of Dalze11, L.	Perth, E.
Harmar-Nicholls, L.	Ripon, Bp.
Harmsworth, L	St. John of Bletso, L.
Harvington, L.	Shaw of Northstead, L.

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Shrewsbury, E.	Trumpington, B.
Simon of Glaisdale, L.	Tugendhat, L.
Skelmersdale, L.	Vinson, L.
Stoddart of Swindon, L.	Wade or Chorlton, L.
Strange, B.	Wilcox, B.
Strathclyde, L. [Teller.]	Wynford, L.
	Young, B.

§ Resolved in the negative, and amendment disagreed to accordingly.

§ 9.29 p.m.

§ The Lord Chancellor moved Amendments Nos. 41 and 42: Page 24, line 38, after ("harm") insert ("attributable to conduct of the respondent"). Page 24, line 41, at end insert ("attributable to conduct of the respondent which is").

§ The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 28. I beg to move.

§ On Question, amendments agreed to.

§ [Amendment No. 43 not moved.]

§ Clause 35 [Neither cohabitant or former cohabitant entitled to occupy]:

§ The Lord Chancellor moved Amendments Nos. 44 to 46: Page 26, line 25, after ("child;") insert-— ( ) the conduct of the parties in relation to each other and otherwise;"). Page 26, line 29, after ("harm") insert ("attributable to conduct of the respondent"). Page 26, line 32, at end insert ("attributable to conduct of the respondent which is").

§ The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 28. I beg to move.

§ On Question, amendments agreed to.

§ Clause 42 [Ex-parte orders]:

§ The Lord Chancellor moved Amendment No. 47: Page 29, line 14, after ("child") insert (", attributable to conduct of the respondent,").

§ The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 28. I beg to move.

§ On Question, amendment agreed to.

§ The Lord Chancellor moved Amendment No. 48: Page 29, line 26, leave out ("initial order") and insert ("order by virtue of subsection (1)").

§ The noble and learned Lord said: My Lords, Amendments Nos. 48 and 59 are drafting amendments. The first concerns an amendment to Clause 42(3) made at Report stage in relation to ex-parte orders. As drafted, this would have the effect of preventing the provision that the respondent should be given an opportunity to make representations in relation to an ex-parte order as soon as is just and convenient at a full hearing from applying to non-molestation orders. That was certainly not my intention. The first amendment corrects the position.

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§ Amendment No. 59 is a drafting alteration to Schedule 7 arising from a renumbering of subsections following earlier amendments. I beg to move.

§ On Question, amendment agreed to.

§ Clause 44 [Arrest for breach of order]:

§ The Lord Chancellor moved Amendment No. 49: Page 30, line 24, after ("child") insert (", attributable to conduct of the respondent,").

§ The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 49, 50 and 51 with Amendment No. 28. I beg to move.

§ On Question, amendment agreed to.

§ Clause 59 [Interpretation of Part IV]:

§ The Lord Chancellor moved Amendments Nos. 50 and 51: Page 38, line 6, leave out ("an applicant") and insert ("a person"). Page 38, leave out lines 8 to 10. On Question, amendments agreed to.

§ Schedule 1 [Arrangements for the Future]:

§ Lord Coleraine moved Amendment No. 52: Page 41, line 13, after ("has") insert ("wilfully").

§ The noble Lord said: My Lords, in moving this amendment, I speak also to Amendment No. 53, which is also in my name. My purpose in speaking on these amendments is to question my noble and learned friend on the drafting of a peculiarly sensitive part of the Bill. As noble Lords will recall, the requirements concerning the arrangements for the future have to be satisfied before a divorce can be obtained. I shall read from Clause 9(5) so far as is relevant: If the court is satisfied, on an application made by one of the parties after the end of the period for reflection and consideration, that the circumstances of the case are— (a) those set out in paragraph 1 of Schedule 1, it may make a divorce order or a separation order even though the requirements of subsection (2) have not been satisfied as regards the arrangements for the future.

§ Again, as far as relevant, the first exemption in Schedule 1 is that, The circumstances referred to in section 9(5) [include that] the applicant has made an application to the court for financial relief and has complied with all requirements of the court in relation to proceedings for financial relief, but— (i) the other party has delayed in complying with the requirements of the court or has otherwise been obstructive".

§ Dealing with the first amendment, that puts the word "wilfully" before "delay". It seems to me that the delay may be outside the control of the party and therefore an element of culpability ought to be imported into the Bill. I go a bit further and ask my noble and learned friend exactly what he has in mind. The normal requirement of a court will be to do something within a certain time. The failure to do something within a certain time does not come within the heading of "delay". If that is what my noble and learned friend has in mind, I would have thought the words would have been "the other party has failed to comply with the requirements of the court".

715

§ The other point raised by Amendment No. 53 is to inquire as to the meaning in this context of "obstructive". What sort of things does my noble and learned friend consider that the word would cover? I have provided that the other party has been obstructive "of the court process". The word "obstructive" is a very vague one and seems capable of being used in a number of ways. I shall be grateful if my noble and learned friend can explain what is in mind here. I beg to move.

§ The Lord Chancellor
My Lords, my noble friend has drawn to our attention Amendments Nos. 52 and 53. It might be useful if I turn first to Amendment No. 53, which sets the scene. There are circumstances—for example, not responding to correspondence from the applicant's solicitors or refusing to instruct his or her solicitor so that matters may progress—where one party is being obstructive to the applicant without necessarily being obstructive of the court's process. I believe that the court, which will have before it all the papers relevant to the case, should be entitled to make its own judgment, taking into account all the circumstances of the case, as to whether behaviour has been obstructive or not. I am also concerned that, by requiring the court to make a judgment as to whether behaviour has been obstructive "of the court's process" rather than other aspects of obstruction, another proposition is introduced which the delaying party could use to create further delay.
The object is to try to ensure that that party does not without proper reason drag out the process of having the arrangements made. The idea behind the exemption is therefore reasonably clear. Any form of obstruction, which the court regards as simply obstruction, could be taken into account.
In relation to Amendment No. 52, the court is likely to have to undertake lengthy investigations into the state of mind of those parties who have delayed in complying with the directions of the court to establish whether that delay was wilful. Your Lordships will be aware that questions which relate to the state of mind of a person are always difficult to determine. I heard recently of a case where one party to a marriage had avoided paying maintenance to his wife for some five years because he happened to be on business trips every time the court was to have a hearing to set the level of his maintenance obligations or he was due to file relevant papers in order to comply with directions. I am sure that your Lordships have come across such cases—perhaps not involving a delay of five years, because that is exceptional, but I thought that it might therefore be of particular interest. The only time when the business trips did not interfere with the husband's appearance in court or prompt compliance with court directions was the day before the time available for him to appeal against orders made in his absence was due to expire. He then seemed miraculously to be at home. On the face of it, that may appear to be wilful delay, but how is the court to prove or judge wilfulness against coincidence? It may just have happened that his employers arranged their business in that extraordinarily coincidental way.
It must be remembered that, when considering questions in relation to the application of Schedule 1, the court will have before it all the papers relevant to 716 the case. It will be able to see when and where delay has arisen and whether there was a good reason for delay and so judge the merits of the application for exemption on the basis of the facts before it. I do not believe that a test of wilfulness is necessary, as this may lead to many protracted appeals to the detriment of the parties and the children when the court will have available to it the sort of information which would enable it to make a fair and just decision on the issue of delay.
I think that it is reasonably plain that the purpose of the schedule and the provisions connected with it is to ensure that, unless there are really exceptional circumstances, the arrangements are complete before the divorce order is pronounced. That is the common sense of the matter. What is being attempted in this part of the schedule is to make sure that, if the reason why the arrangements have not been made is simply because of a delay without good reason—that is, obstruction—that will not be allowed to delay the process indefinitely. That seems a sensible balance in a difficult area. I hope that that has sufficiently answered the probes which my noble friend directed to me and that he will feel able to withdraw the amendment.

§ Lord Coleraine
My Lords, I am grateful to my noble and learned friend for his reply. It is helpful to have that on the record. Beyond saying that I find it difficult to see how the passivity of failing to respond to correspondence can be called "obstruction", I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ [Amendment No. 53 not moved.]

§ Schedule 2 [Financial Provision]:

§ The Lord Chancellor moved Amendment No. 54: Page 45, line 7, leave out from ("satisfied") to end of line 8 and insert— ("( ) that the circumstances of the case are exceptional; and ( ) that it would be just and reasonable for the order to be so made.").

§ The noble and learned Lord said: My Lords, with this amendment I shall speak also to Amendments Nos. 56 and 60. The amendments ensure that financial provision orders and property adjustment orders, except interim orders, cannot take effect before the divorce order or the separation order is made, unless the court is satisfied that there are exceptional circumstances and that it would be just and reasonable for the order to take effect before that time.

§ Your Lordships will remember that on Report I mentioned that I was advised by the Ancillary Relief Advisory Group that the phrase "just and reasonable" was stronger than the phrase proposed in the amendment tabled by my noble friends Lady Young and Lord Coleraine. I of course accepted that advice. But looking back over the debate, I am entirely supportive of the principle lying behind my noble friends' amendment. I thought that it might add a degree of security if I added "exceptional circumstances" as well. So we have "exceptional circumstances" and that it would be "just and reasonable", in order to make it as clear as we can that the ordinary rule is that these orders 717 should not take effect until the divorce itself is pronounced. I hope that your Lordships will feel that that is an emphasis which is worth making and which the amendment underlines.

§ Your Lordships will remember that in the previous amendments there was a specification of circumstances. I have taken the view that that might make it easier to make the orders take effect earlier, so I have not incorporated that. I believe that the general words that we have now used send the message plainly. I beg to move.

§ Baroness Young
My Lords, I thank my noble and learned friend for tabling the amendment which entirely meets the points raised at Report. I am grateful to him.
On Question, amendment agreed to.

§ [Amendment No. 55 not moved.]

§ The Lord Chancellor moved Amendment No. 56: Page 47, line 36, leave out from ("satisfied") to end of line 37 and insert— ("( ) that the circumstances of the case are exceptional; and ( ) that it would be just and reasonable for the order to be so made.").

§ The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 54. I beg to move.

§ On Question, amendment agreed to.

§ [Amendment No. 57 not moved.]

§ Baroness Young moved Amendment No. 58: Page 48, line 26, at end insert— ("( ) For section 25, substitute— "Principles which the court is to apply. 25.—(1) The principles which the court shall apply in deciding what, if any, order to make under any of sections 22A to 24 above, are that—

(a) the net value of matrimonial property should be shared fairly between the parties to the marriage;
(b) fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of the family;
(c) any economic burden of caring, after the marriage breakdown, for a child of the family under the age of 16 years should be shared fairly between the parties;
(d) a party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years, to the loss of that support after the marriage is dissolved or annulled;
(e) a party who seems likely to suffer serious financial hardship as a result of the marriage breakdown should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.

(2) In subsection (1)(b) above— economic advantage" means advantage gained whether before or during the marriage and includes gains in capital, in income and in earning capacity, and 'economic disadvantage' shall be construed accordingly; 718 contributions" means contributions made whether before or during the marriage; and includes indirect and non-financial contributions and, in particular, any such contribution made by looking after the family home or caring for the family. (3) In applying the principles set out in subsection (1)(a) above, the net value of the matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances. (4) The net value of the matrimonial property shall be the value of the property at the time the court deals with the matter in exercise of its powers under this Part, save that any appreciation or depreciation in value since the parties' separation which is primarily attributable to the acts of one party may be disregarded. (5) Subject to subsection (6) below, in this Part of this Act "matrimonial property" means all the property belonging to the parties or either of them which was acquired by them (otherwise than by way of gift or inheritance from a third party)—

(a) during the marriage; or
(b) before the marriage for use by them as a family home or as furniture and effects for such home.

(6) The proportion of any rights or interests of either party—

(a) under a life policy or similar arrangement; and
(b) in any benefits under a pension scheme which either party has or may have (including such benefits payable in respect of the death of either party),

which is referable to the period beginning with the marriage and ending with the date of the parties' final separation, shall be taken to form part of the matrimonial property, subject to any discounts which the court thinks fit to apply (for example, for the chance of receiving less than the quoted benefits). (7) In subsection (3) above "special circumstances", without prejudice to the generality of the words, may include—

(a) the terms of any agreement between the parties on the ownership or division of any of the matrimonial property or maintenance;
(b) the source of funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage;
(c) any destruction, dissipation or alienation of property by either party;
(d) the nature of the matrimonial property, the use made of it (including use for business purposes or as a matrimonial home) and the extent to which it is reasonable to expect it to be realised or divided or used as security."

( ) For section 25A, substitute— "Matters which the court is w take into account. 25A.—(1) In applying the principles set out in section 25 of this Act, the following provisions of this section shall have effect. (2) For the purposes of section 25(1(b) of this Act, the court shall have regard to the extent to which—

(a) the economic advantages or disadvantages sustained by either party have been balanced by the economic advantages or disadvantages sustained by the other party, and
(b) any resulting imbalance has been or will be corrected by a sharing of the matrimonial property or otherwise.

(3) For the purposes of section 25(1)(c) of this Act, the court shall have regard to—

(a) any maintenance being paid to or on behalf of the child;
(b) any expenditure or loss of earning capacity caused by the need to care for the child;
(c) the need to provide suitable accommodation for the child;
(d) the age and health of the child;
(e) the educational, financial and other circumstances of the child;
(f) the availability and cost of suitable child-care facilities or services;
(g) the needs and resources of the parties; and
(h) all the other circumstances of the case.

(4) For the purposes of section 25(1)(d) of this Act, the court shall have regard to—

(a) the age, health and earning capacity of the party who is claiming the financial provision;
(b) the duration and extent of the dependence of that party prior to divorce;
(c) any intention of that party to undertake a course of education or training;
(d) the needs and resources of the parties; and
(e) all the other circumstances of the case.

(5) For the purposes of section 25(1)(c) of this Act, the court shall have regard to—

(a) the age, health and earning capacity of the party who is claiming the financial provision;
(b) the duration of the marriage;
(c) the standard of living of the parties during the marriage;
(d) the needs and resources of the parties; and
(e) all the other circumstances of the case.

(6) In having regard under subsections (3) to (5) above to all the other circumstances of the case, the court may, if it thinks fit, take account of—

(a) any legal or moral duty of support owed to a third party by the party against whom the claim is made;
(b) the conduct of the parties both during and since the marriage (including the way in which they deal with any contact arrangements for a child of the family).".").

§ The noble Baroness said: My Lords, I moved this amendment briefly at the end of the Report stage. It was at such a late hour that I did not feel it appropriate to go into any detail. I am sure that my noble and learned friend the Lord Chancellor will recall that he kindly offered to arrange a meeting on this matter, which we had last week.

§ As a result of that meeting, I retabled the amendment. It may be helpful to the House if I say clearly that this is not an amendment upon which I would wish to divide the House, because that would be inappropriate. It opens up a new principle which would be helpful to the principles which my noble and learned friend wishes to have behind this piece of legislation.

§ The amendment is based on Scottish law and what happens now in Scotland. It may surprise your Lordships, as it did me, to discover that English law is devoid of any principle of sharing assets on divorce. The ruling section (Section 25 of the Matrimonial Causes Act 1973) leaves everything to the court's discretion. There is a power to transfer assets from one spouse to another, or to settle property on one or both spouses and the children, but there is no guidance on how those powers are to be exercised.

§ Furthermore, the Court of Appeal has said repeatedly that previous decisions are no guide: every case turns on its own facts. The House had a long debate on pension splitting on Report, and an amendment was 720 carried which opens up the principle of splitting, assets. I believe that amendments must be made to the Bill in order to meet that decision of your Lordships' House.

§ I understand that most systems of law treat marriage as a partnership of equals. Systems of law, in particular in Europe, go on to provide what most people would accept as fair; namely, that property and savings which will come into being during the marriage as a result of joint efforts of the parties should be divided equally. It matters not whether one goes out to work while the other stays at home looking after the children. The corollary is that assets brought into the marriage by one spouse or come from outside by way of a gift or inheritance remain the separate property of that spouse. That is broadly the position in Austria, Belgium, Denmark, Finland, France, Germany, Italy, Norway, Spain, Sweden, Switzerland and, last but not least, Scotland. Therefore, there is extensive experience of the working of the provision. As I said, in every one of those countries the divorce rate is lower.

§ Therefore, it shows that the English system of making such settlements raises a number of problems. In the first place, on entering divorce people do not know what their rights are. Lawyers cannot advise on the likely outcome of court proceedings because a court may award this or it may award something else. Furthermore, practice may vary in different parts of the country. It appears to be the case that, proportionately speaking, wives in the south east tend to do better than in the Midlands or the north. Whether or not that is the case it is certainly a perceived case.

§ Since the outcome of such cases is so unpredictable, lawyers are reluctant to commit themselves to a quoted fee in advance and therefore they quote on an hourly rate. The client is then sucked into a spiral which he or she often cannot control and costs increase. I understand that my noble and learned friend is looking for savings and this appears to be an area in which savings might be made. I believe that we would all agree that it would be to our advantage if savings could be made on legal aid in this way. It would appear that Scottish law is fairer than ours and there is no sound reason why England and Wales should operate a different system.

§ One of the reasons why I have tabled the amendment is that we need to ask ourselves whether the different system has any influence on the divorce rate. In the absence of clear statistics it is difficult to make such judgments. Nevertheless, it is observable that 75 per cent. of divorce petitions are presented by wives. It is just possible that the majority of men have behaved badly and that this is a restoration of some kind of balance of power over the ages. What seems to be a more likely explanation is that women are now cushioned economically from the effects of divorce. That arises in two ways; there are state benefits in the Child Support Act and the courts frequently award 75, 80 or even 100 per cent. of the family home to the custodial parent, who is usually the mother.

§ It appears that as a consequence divorce may be a much more attractive option for many women than struggling to make the marriage work. I regret to have to say that because I do not like to speak in such a way 721 about my own sex. However, there is considerable evidence to show that for no good reason many men appear to be turned out of the house and divorce follows. It would be unrealistic to suppose that all those factors have no effect on the divorce rate because, in a way, our system offers incentives to divorce rather than the reverse.

§ This is a wide subject and I do not wish to take up more time at this late hour. I believe that it shows that there are serious weaknesses in the English system. It generates anxiety; it certainly generates uncertainty; and I believe that it generates acrimony.

§ It seems to me that if there were clearer ground rules, more cases would be settled which would contribute to the saving of public funds. It seems strange that we are alone among European powers and quite distinct from Scotland in what we do. If the Scottish system has the great merits of clarity, fairness and providing much greater certainty so that you know much more clearly when you go into divorce what the consequences will be, and if it leads to less acrimony, they would be merits which make the amendment well worth very serious consideration.

§ It is for those reasons that I have tabled the amendment. My attention has been drawn to what is currently happening in Scotland where the system appears to work well. It works well in a great many countries in Europe. We should consider having something similar if it has all those beneficial advantages which other countries appear to enjoy coupled with a lower divorce rate, which I believe we all wish to see. I do not wish to push that argument too far because I am not sufficiently familiar with all the details of it, but I hope that my noble and learned friend will take away the amendment and consider and consult upon the matter. If at the end of all that, it were thought to be a good idea, perhaps we should incorporate it into our legislation. I beg to move.

§ Lord Meston
My Lords, the noble Baroness said very realistically that this is an important amendment. Indeed it is. It proposes to replace the existing provisions of Section 25 of the Matrimonial Causes Act, which is familiar to family lawyers in England and Wales, with a set of guidelines based on Scottish law and relating to matrimonial property.
At earlier stages of the Bill, reference was made to the differences between English and Scottish divorce law. Indeed, a long time ago, one of the factors which contributed to the Matrimonial Causes Act 1857 was protracted conflict between English and Scottish law. Scotland was then the place where divorce was much easier.
English law on property and financial matters has been in its present form since 1970, with some modification in 1984. It is the product of the Law Commission and detailed parliamentary consideration before each enactment.
This Bill is primarily concerned with the substantive law of divorce rather than with any attempt to make major policy changes in the property and financial law 722 of England and Wales. In no way would I wish to say that Scottish law in this area, of which I have little knowledge and less experience, is in any way inferior. The Scottish legislation was of course the result of parliamentary consideration, and indeed, it could be said that it is more recent than that for the English law.
The general perception among English lawyers is that Scottish law is rather less generous to wives and perhaps less flexible. That perception may or may not be correct. I think that it can be said that where the marriage of an English wife and a Scottish husband breaks up, the Scottish husband tends to head north of the Border and he goes to see his lawyers in the hope that they can get in first.
The amendment is important. It is really too important for the Third Reading of this Bill. What is required for any serious consideration of this important point is a full comparative analysis of the strengths and weaknesses of the law in each jurisdiction. I would be very reluctant to accept anything which drives a coach and horses through 25 years of English law without very careful and full debate. We must be sure of the merits of anything which will replace English law.
Without clear evidence, I would question whether English law as it presently stands could in any sense be described as an incentive to divorce. The noble Baroness suggested that Scottish law appears to be fairer. There is certainly more emphasis on an equal division, but, even in Scotland, that does not always happen. As I understand it, a 50:50 split is not always a fair split; indeed, it is not always a practical split, especially when there are children involved.
English law concentrates rather more on other discretionary factors—for example, the length of the marriage, the contributions of the parties, the loss of pension rights and other disparities. It might he said that the discretion is a little more subtle. Even pension splitting, which may well come into effect and to which reference has been made, I do not understand necessarily to be the equal splitting of pensions but rather a provision designed, if it is enacted eventually, to enable a split either equally or in some other proportion.
The noble Baroness also suggested that Scottish law was more certain and, indeed, that English law was undesirably uncertain. I am not able to say whether a Scottish lawyer is better able to state with any confidence or accuracy the likely result of court proceedings. However, I do know that English law is not so wide in its discretion that cases cannot be settled with a reasonable expectation of what a court would do. The noble Baroness further suggested that lawyers found it difficult to give advice, so vague and discretionary was the English system. Well, some of us have to try to give firm advice. I do not know about fixing the cost of that advice, but I know somewhere where the noble Baroness can obtain cheap and cheerful advice should it be required.
There are of course differences as between court and court, even within a relatively small jurisdiction. That is not simply applicable to divorce law; indeed, it can apply to the quantification of damages for a broken leg. One can have two different judges looking at the same 723 set of medical reports and producing different figures, but not producing such a wide disparity in the awards that either award could be said to be wrong or unfair. I respect the motives behind the amendment, and I ask your Lordships to accept the spirit in which it was moved. However, as I said, it is really too important a topic to be considered in detail at this stage and at this late hour.

§ Lord Stoddart of Swindon
My Lords, I was very pleased to attach my name to the amendment. I agree with the two former speakers that perhaps we ought not to discuss such a matter in great depth at this time of night in relation to this Bill. I understand that the noble and learned Lord the Lord Chancellor has had discussions with the noble Baroness, Lady Young, and has expressed his interest in giving the matter further consideration. I sincerely hope that he will do so.
The noble and learned Lord will remember that we discussed the matter during the proceedings on the Child Support Act. A good deal of praise was heaped on the Scottish system at that time, which the noble and learned Lord gladly accepted with alacrity. After the Bill has been passed, I sincerely hope that action will be taken to try to clear what many people believe are grave anomalies in the present law in relation to the distribution of assets on divorce.
There is great resentment, particularly among men who believe that they are badly treated and that on divorce the splitting of assets goes very much in favour of wives, and often unfairly so. That resentment has expressed itself in all sorts of ways throughout the country—for example, in letters to Members of both Houses of Parliament and in demonstrations up and down the land. I accept that many of those demonstrations were occasioned by the Child Support Act, but nevertheless there is clearly a grave problem here which ought to be investigated and which ought to he addressed by Parliament in the near future. That is all I want to say, except to ask the noble and learned Lord the Lord Chancellor if he can give an assurance that this matter will be attended to and will be addressed at an early moment.

§ 10 p.m.

§ Lord Northbourne
My Lords, first I wish to congratulate the noble Baroness on bringing this issue forward. I want to draw attention to an aspect of the matter which, if I have correctly understood the situation, is important and makes the amendment relevant to this particular Bill. If Spouse A is seeking to obtain a divorce, and Spouse B does not wish to have a divorce, and Spouse B has not committed any fault, under the law as it exists at the moment, Spouse A would have to wait five years. Under the Bill which we have before us, Spouse A will only have to wait one year. Therefore that means that this Bill gives an enormous opportunity for gold-diggers and for injustice if an unscrupulous spouse enters into marriage with a view to gaining financial advantage.
As a result, the issues that are raised by this proposal are of extreme importance and relevance to this Bill. I marginally disagree with the noble Lord, Lord Stoddart 724 of Swindon, in saying that I think this issue should be dealt with under this Bill. I know of a number of cases where I believe gross injustice has occurred, usually to men who are fairly newly married with a young wife who has a child, and those men have lost a high proportion of their assets as a result of a divorce precipitated by the wife. That situation could become much worse under the terms of this Bill when it is enacted.
My other point, which has also been mentioned, is that it can be argued that the English system as it stands at present can offer incentives to divorce to young women with children. I believe that courts frequently award 75 to 80, and even sometimes 100 per cent., of the family home to the custodial parent, who is usually the mother. State benefits and child support are also tailored to support the lone parent. On the other hand, at a later stage in the marital cycle the man may have the advantage when the children are grown up, and it may be more attractive financially for the man to divorce.
It seems to me from what I hear that the Scottish system is fairer than ours. It has the enormous advantage that people know roughly where they stand. Some sort of criteria for decision are laid out on the face of the Scottish legislation. If that were to be transposed into this Bill, that would surely give a sounder basis for mediation criteria; criteria to help enable sensible decisions to be made at mediation rather than leaving the matter completely open and vague. It seems to me that we have here a great opportunity to improve the law. I hope that the noble and learned Lord will seriously consider the ideas behind this amendment, and consider them for amendment in another place.

§ Lord Simon of Glaisdale
My Lords, the noble Baroness is greatly to be congratulated in bringing this amendment before the House. It is an important amendment. The noble Lord, Lord Meston, suggested that it was unsuitable for Third Reading but the alternative was to move it after midnight on the final day of the Report stage. The noble Baroness quite rightly withdrew it at that stage, when it would have been indecent to discuss a proposal of such importance.
This is a divorce Bill, although it parades under the name of a family law Bill. It is a divorce Bill with a domestic violence Bill left over from last Session attached to it. However, the law can intervene in support of marriage as well as in its destruction. One of the ways in which it can intervene in support of marriage is in adjusting the law of family property so that it reflects the promise made at marriage of the sharing of worldly goods.
At the moment, for a married woman to acquire any interest in the matrimonial home she has either to become a widow or to be divorced. At an earlier stage of the Bill I proposed, as schedules to the Bill, two Law Commission Bills which are of long standing dealing precisely with matrimonial property during the subsistence of the marriage and not merely after divorce. My noble and learned friend was, I thought, fairly encouraging, but he has since written to me to suggest that that matter, which has been outstanding with Law 725 Commission recommendations since 1980, cannot be considered now for another three years. That is shameful to the law. I very much hope that, although that is a matter of prime importance, a married woman who stands by her marriage should not have to be divorced in order to acquire any rights and should not be put at a disadvantage by the law compared with a woman who takes divorce proceedings.
In the meantime, I hope that my noble and learned friend will take the amendment away, consider it very carefully, and, if it so commends itself to him, table the necessary amendments in the other place.

§ Lord Hamilton of Dalzell
My Lords, I came to the Bill not liking it in principle, and took particular exception to it in that I felt that it created a gold-diggers' charter. I am extremely grateful to my noble and learned friend for taking me on board and putting me through the mill on this Bill, and for explaining that Schedule 10 of the Bill covered much of the ground by introducing the interests of children and protecting property. It will have the effect that if there is a child of the marriage it will not be in the interests of the child for the squabbling couple to split inherited property or businesses.
One of the interesting points that should be borne in mind is that Ireland very nearly defeated the right to divorce because of the effect it has on property. That is not only the prerogative of large landowners but also ordinary people affected by divorce, and also businesses. One of the challenges was to improve Section 25 of the Matrimonial Causes Act 1973. I have studied it. After a perfectly sensible collection of matters which the courts ought to bear in mind it ends by stating, and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other. The fact is that that is an inducement to cut everything down the middle. The question then hinges on, having regard to their conduct, just to do so".

§ Lord Meston
My Lords, I hesitate to interrupt the noble Lord. However, the statutory objective of placing the parties in the position in which they would have been had the marriage not broken down has not been the law since 1984. That has gone.

§ Lord Hamilton of Dalzell
My Lords, I thank the noble Lord. I am grateful for that. In talking to people who have experienced divorce, the fact that that provision has gone does not seem to be apparent to them.
If one is not to have a gold digger's charter, how on earth does one decide who will get what out of the division after a divorce unless someone is prepared to consider what took place before the divorce?
My noble and learned friend wrote to me saying that in response to the amendment by the noble Lord, Lord Clifford, in Committee, the view of the ancillary relief advisory group—it consists of members of the 726 judiciary and representatives of the Law Society, the Solicitors Family Law Association, and so on—was that the amendment should not be accepted. The letter states: It was the Group's view that the current provisions did not cause problems". That is news to noble Lords who have people involved in divorce proceedings. The document continues: The court was not the appropriate forum to look into the causes of marital breakdown". I know that the purpose of the Bill is that the courts should not have to look into the causes of marital breakdown. It is a pragmatic Bill which incorporates the existing situation. Does my noble and learned friend consider that the Scottish alternative to Section 25 is a more pragmatic solution to the problem than the present Section 25, if fault is not to be involved?

§ Lord Clifford of Chudleigh
My Lords, I thank the noble Baroness for moving the amendment. I wish to address subsection (6). The remainder has been addressed already.
The issue relates to pensions. I thank the noble and learned Lord the Lord Chancellor who has avowed to give much more attention to this part of the Bill despite what happened in Committee. It may be wise to listen to the advice that I have been given on certain matters relating to occupational pensions. My advisers tell me—I think that noble Lords will be interested to know it if they do not already know—that we should be concerned that the domestic law measure in 1981, the Transfer of Undertakings (Protection of Employment) Regulations, is, sadly, being undermined. It appears that future occupational pension rights are not protected by those regulations. I am grateful to the noble and learned Lord for saying that he will consider that point.
As we have heard, and as we were well aware, approximately 71 per cent. of couples today both have jobs. Should that be the case, it makes it that much fairer that each party contributes to a pension scheme, and that there should be a fairer share on a divorce.
I agree 100 per cent. with what the noble Baroness said. As I am sure noble Lords are aware, the Scottish law holds that whatever asset is brought into a marriage, it is retained by the party who brought it in. Any of the assets which are brought in after the marriage are shared by both parties. It is only fair to consider the mother in a marriage who has nurtured, cared for and looked after the social education of her children, that her contribution should be considered as equivalent to the premium paid to a pension and that that should therefore guarantee to her a due share. Apart from that, I agree with what the noble Baroness said. We must consider very seriously the ideas which have been practised in Scottish law.

§ 10.15 p.m.

§ The Lord Chancellor
My Lords, I am very grateful to my noble friend Lady Young and the noble Lord, Lord Stoddart of Swindon, for tabling Amendment No. 58, which seeks to replace Section 25 of the Matrimonial Causes Act 1973 with Sections 9, 10 and 11 of the Family Law (Scotland) Act 1985 with some modifications, one of which is quite major.
727 Section 25 is the provision of the 1973 Act which lists the factors which the court is to take into account when it is considering financial provisions on divorce, first consideration being given to the children of the family who are under 18.
The wide discretion which the 1973 Act gives to the court when it is considering financial provision on divorce would be restricted by this amendment. The court would instead be required to consider the five principles set out in subsection (1) of the amendment; for example, the principle that the net value of the matrimonial property should be shared fairly between the parties.
The ambit of matrimonial property would be more limited under the proposed amendment than at present. Gifts and inheritance are excluded and also pre-marriage property unless acquired for use as a family home or its furniture. In contrast, the 1973 Act permits the court to consider all the spouses' property.
Your Lordships will not be tremendously surprised to know that I am somewhat attracted to the Scottish system, although it came into force after I ceased to practise in that distinguished jurisdiction. It may well be that the application of the principles would form an effective starting point for negotiations. Parties would know better where they stood and perhaps there would be less acrimony than under a more discretionary system such as the current system here. On this aspect I attach a great deal of importance, as does my noble friend Lady Young, to reducing as far as possible acrimony at this stage of the matter where questions arise about distribution of property and the like.
However, the substitution of the amendment for the existing law in England and Wales would represent a major change in the law relating to financial provisions on divorce. I have taken the preliminary advice of the Ancillary Relief Advisory Group. It agrees that this is a complex area, the reform of which would require detailed consideration. The loss of a wealth of expertise and jurisprudence on Section 25 of the 1973 Act could only be contemplated after detailed review because it is in the light of the jurisprudence that exists on Section 25 that cheap and cheerful advice is available on the law of England, as the noble Lord, Lord Meston, said earlier. It is not just the statute, it is the jurisprudence that has followed from the statute which enables that to happen.
I do not for a moment accept that this Bill, as it bears on divorce, will enhance the prospects of a gold-digger. The courts are astute in taking account of conduct where it is inequitable not to do so in such a situation. The wide discretion which the courts have under Section 25 is an important factor. If one considers law across the world, opportunities for gold-digging are more apt to arise in jurisdictions where there is a set scheme than in cases where there is discretion. However, that is a subsidiary matter. A degree of precision in the prescription of the rules can help in negotiations and also in the forecasting of court decisions.
My noble friend's amendment contains a major difference between the amendment and Section 11 of the Family Law (Scotland) Act 1985. It is the reference in Clause 25 A(6) to the conduct of the parties, both 728 during and since the marriage, including the way in which they deal with any contact arrangements for a child of the family. The 1985 provisions allow the court, in having regard to all the circumstances of the case, and if it thinks fit, to take into account the conduct of either party, unless the conduct has adversely affected the relevant financial resources or it would be manifestly inequitable to leave the conduct out of account. It is therefore similar to the 1973 Act in relation to conduct.
The purpose of the amendment is to draw attention to the important advantage that there might be in having a more prescriptive system than is set out in Clause 25. On the other hand, it is clear that that would be a major move from the present law, not to be contemplated without extensive consultation and consideration. I would wish to take it forward, but it is out of the question to do so within the timetable of the Bill. Therefore I confirm to my noble friend and the noble Lord, Lord Stoddart, that I wish the matter to be further considered and due consultation to take place upon it. However, I do not believe that we could properly deal with the problems in the course of this Bill.
I wish to make one other point. My noble and learned friend Lord Simon of Glaisdale mentioned that the Bill deals with divorce. But it also deals in an important way with the support services for marriage, as a result of the amendments which your Lordships have passed. I regard that as an extremely important part of the Bill and am glad to have been able to move the amendments to it. They show a way forward to concentrate on trying to prevent marital breakdown before any question of divorce arises. To concentrate on it only in relation to the divorce process is too close to pathology, whereas preventive medicine is a much better approach. I believe that the Bill encourages it. I hope that your Lordships will not lose sight of that aspect. The Bill gives a good opportunity to put the strength of the nation behind the institution of marriage in a way that has not been possible for some time.
In the light of what I have said about the amendment and what I feel as to how it should be taken forward, I hope that my noble friend will be able to withdraw it. It has served the purpose for which she put it down, as a result of our consultation.

§ Baroness Young
My Lords, I feel that we have had a short but useful debate on the matter. I have been interested in all the points that have been raised. I wish to assure the noble Lord, Lord Meston, that, even were I contemplating a divorce, I could not possibly afford his fees. My experience of lawyers does not quite bear out what he said. You can ask them for advice and you are fortunate if you receive a clear statement. Lawyers are always much too clever in covering themselves. You find that when you consider what they said, it was not as helpful as you thought at the beginning. One thing is for sure: it is certainly expensive. I agree with the noble Lord that this is not a big issue on which we should divide the House. Nevertheless, it is worth raising on this occasion.
I am grateful to the noble Lord, Lord Stoddart, for his support. The noble Lord is quite right on the point he drew to the attention of the House. There are two groups 729 of people who are particularly affected by divorce. One is older women who are left by their husbands for younger women; and the other is men who seem to be left in increasing numbers by their wives effectively turning them out of the house. That is a very undesirable development. In that case, the wife is just as much at fault as the man is in the other case. It is a matter that we should consider.
The points made by the noble Lord, Lord Northbourne, were very valuable. It will be very interesting to see whether some of the dangers to which he pointed become evident in the Bill as it stands.
My noble and learned friend Lord Simon of Glaisdale has been assiduous in raising in particular issues of fairness towards the spouse who does not wish the divorce, or indeed the wife who remains at home to look after the children and does not earn a salary, qualify for a pension and so on, and to try to make quite sure that such people get an equal benefit.
I entirely agree with the noble and learned Lord the Lord Chancellor that to introduce this amendment would mean major change. Clearly it would be quite inappropriate to introduce such a measure at this stage. It would need extensive consultation and consideration. I recognise that at the end of that process we might feel that there was no benefit to be gained. However, it is right to consider the proposal. It clearly seems to work and is seen to be fair in Scotland. In this very complex world we are looking for fixed points, and it might well be helpful to parties to know much more accurately when they enter into a divorce what would be the result. That is one of the uncertainties. I am told repeatedly that one of the greatest causes of acrimony is the division of the assets and the fighting over them. It is bad for everybody, particularly for children. If that can be avoided in any way, it is certainly worth considering. I was very pleased to hear that the noble and learned Lord is considering taking this matter up with his advisory committee and consulting about it. It is certainly something that we should examine. As I said, it is not a 730 matter that we could include in the Bill this evening. I am satisfied with my noble and learned friend's remarks and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Schedule 7 [Transfer of certain tenancies on divorce etc. or on separation of cohabitants]:

§ The Lord Chancellor moved Amendment No. 59: Page 62, line 17, leave out (" 33(5)(d)") and insert (" 33(6)(d)").

§ The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 48. I beg to move.

§ On Question, amendment agreed to.

§ Schedule 8 [Minor and consequential amendments]:

§ The Lord Chancellor moved Amendment No. 60: Page 69, line 29, leave out from ("satisfied") to end of line 30 and insertx2014; ("( ) that the circumstances of the case are exceptional; and ( ) that it would be just and reasonable for the variation to be so made.".").

§ The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 54. I beg to move.

§ On Question, amendment agreed to.

§ An amendment (privilege) made; Bill passed and sent to the Commons.

§ Lord Irvine of Lairg
My Lords, in our debates there have been sharp differences. I recognise that those who have opposed some of the central provisions of the Bill—

§ Lord Elton
My Lords, if the noble Lord will forgive me, I believe that the Bill has actually been passed. I do not know whether it was accidental or not, but it has been passed.

§ Lord Graham of Edmonton
That was speed!

§ The Lord Chancellor
My Lords, I am sorry. I did pause to see whether anyone wished to enlighten us at this hour. I then put the Question and I understood the House to agree.
House adjourned at half past ten o'clock.