§ 8.20 p.m.
§ The Under Secretary of State for Northern Ireland (Mr. James A. Dunn)
I beg to move,That the draft Matrimonial Causes (Northern Ireland) Order 1978, which was laid before this House on 8th June, be approved.I ask for the indulgence of the House because the introductory speech is of necessity a little longer than normal.
The purpose of the order is to reform the law of Northern Ireland relating to divorce, annulment of marriage, judicial separation and other matters connected with marriage. The effect will be to bring Northern Ireland law on those subjects broadly into accord with the law of England and Wales.
The House will wish me to begin by saying a few words about the historical setting in which this order comes before us. Until 1939 the only way in Northern Ireland of obtaining a divorce conferring freedom to remarry was by the passage of a Private Act of Parliament. There were in fact 63 such divorce Acts passed by the Stormont Parliament over the period of 15 years from 1924 to 1939—an average of just over four a year. But the procedure was unsatisfactory and unnecessarily expensive, and in 1939, for the first time, the Northern Ieland High Court was given power to grant divorces.
As in other countries, the divorce rate has been rising steadily over the past 10 years. Last year alone there were 700 divorce petitions. But evidence before us shows that there are cases where the existing law is inadequate to deal with the problems of some marriages that have already broken down—with grave social consequences for those concerned, especially the children.
Under the Matrimonial Causes Act (Northern Ireland) 1939, which is the existing law, the party seeking a divorce has to demonstrate that the other spouse has been guilty of a matrimonial offence such as adultery, cruelty or desertion. Indeed, it is recognised that presently in order to be successful evidence must be presented in terms that there is a guilty party, who must be severely punished, and an innocent party, who must be vindicated. This is done with full public 314 knowledge and publicity, with the consequential adverse impact that it can have on the future well-being of those concerned. May I remind the House that it has been my experience, and I am sure that of others, that nothing is lost in the retelling of what a person imagined he had heard.
The law I have described corresponds to that which existed in England and Wales prior to the passing of the Divorce Reform Act 1969. As right hon. and hon. Members will be aware, the English law of divorce is now governed by the Matrimonial Causes Act 1973 which is a consolidation of the Divorce Reform Act 1969, the Nullity of Marriage Act 1971 and those provisions of the Matrimonial Causes Act 1965 and the Matrimonial Proceedings and Property Act 1970 which relate to the termination of marriage.
One of the main purposes—indeed I believe the main purpose—of the English legislation was to discard the concepts of guilt and punishment, and to consider, factually, whether the marriage had irretrievably broken down. In this it has taken a more realistic view of human behaviour than the existing law of Northern Ireland just as, in relation to property and financial settlements, it has a more compassionate approach.
Over the past few years there has been growing pressure in Northern Ireland for divorce law reform. My right hon. Friend the Secretary of State for the Home Department, who was then Secretary of State for Northern Ireland, took account of this feeling when on 2nd July 1976, in a speech in this House, he expressed the Government's intention to seek the advice of the Standing Advisory Commission on Human Rights. On 18th April 1977 the Commission recommended that the law on this matter should be brought more closely into line with the current law in England and Wales. The Government's response to that recommendation was announced by my right hon. Friend the Secretary of State for Northern Ireland in this House on 19th July 1977, and, in cosequence, a proposal for a draft matrimonial causes order was published on 24th November last.
The Government were most anxious to have the widest possible consultation and debate on the proposed draft order. To this end an explanatory document was 315 made generally available to stimulate public discussion, and the normal consultation period was extended to three months. We attached the greatest importance to the expression of opinion on the subject of the grounds for divorce and made clear our willingness to take account of all opinions expressed either orally or in writing before draft legislation would be brought before this House.
May I take this opportunity to express my appreciation to the many people and organisations within Northern Ireland for their response, not just those who wrote, often at great length, or those who discussed their opinions with me, but also those who organised seminars, conferences and other meetings to explore the issues in depth? I pay particular tribute to the Queen's University, Belfast, because it is my firm conviction that its seminar provided a base for a more informed public debate.
Despite the reservations expressed by some—including an eminent jurist and the Committee of the Northern Bishops of the Roman Catholic Church—about the prospect of easier divorce, it was clear that the majority showed an overwhelming desire to bridge the gap between the divorce laws in different parts of the United Kingdom. In placing on record my appreciation, I wish it to be widely known that the response I have described, while in principle in favour of extending the divorce law of Great Britain to Northern Ireland, was also equally anxious that this should not be done uncritically or without having due regard to local opinions, attitudes and conditions. I believe that this measure now bears the imprint of that approach—that there is a distinct Northern Ireland character to the order.
Before I conclude I shall indicate the main features which distinguish this order from the legislation in Great Britain. However, may I first say a word or two about the order generally? In doing so I shall endeavour to draw out the principles on which it is based rather than give a recital of its detailed provisions.
The order provides that the sole ground of divorce shall be that the marriage has broken down irretrievably. This will be established by proof of one or more of the facts set out in Article 3(2).
316 Article 3(2)(a) provides that irretrievable breakdown of marriage is to be inferred from the respondent's adultery. It also stipulates that the adultery must have been committed since the date of the marriage. Adultery is thus retained as a ground for divorce in its own right, as it is in Scotland. In England the petitioner must also prove that he or she finds it intolerable to live with the respondent. I believe that the choice whether to rely on the adultery ought to be left to the aggrieved spouse.
The second group of facts which the court may look to in considering the possible breakdown of a marriage is set out in Article 3(2)(b). This relates to the respondent's behaviour. Clearly it comprises much of the ground covered by the old matrimonial offences. "Cruelty" cases, for instance, and the former ground of mental illness are subsumed under this heading.
But I emphasise that mental illness by itself will no longer be a sufficient ground. In future the emphasis will be upon the patient's behaviour, not upon the patient's clinical condition. The court must look at the respondent's conduct and its impact on the petitioner in the light of their relationship. As one judge has put it,Would any right-thinking person come to a conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?The real test is not whether the respondent is morally culpable but simply whether the facts are such that, after making all allowances for the respondent's disabilities and for the temperaments of both parties, the character and gravity of his or her acts are such that the petitioner cannot reasonably be expected to live with the respondent.
This is fully in accord with the basic principles of the legislation. It really means that behaviour must be regarded from an objective and not merely a subjective point of view. If the provision applied only to deliberate behaviour we would be back with the concept of the matrimonial offence.
When the Divorce Reform Act 1969 came into operation there was little or no direct authority upon how this guideline to irretrievable breakdown would 317 operate in practice and there has indeed been some difficulty about the interpretation of the word "behaviour", particularly where the party whose conduct is complained of is mentally ill. This is, undoubtedly, a complex subject. It is important to distinguish two questions clearly.
The first is, can negative conduct or involuntary actions amount to "behaviour"? The second is, when has any given behaviour been such that the petitioner cannot reasonably be expected to live with the respondent?
The first of these questions was for some time the cause of conflicting expressions of legal opinion in the courts. However, it now seems reasonably well established that "behaviour" is capable of including negative conduct, for example, prolonged silences or total inactivity, as well as positive conduct, and can also include conduct which is involuntary and stems from mental or physical illness or injury.
Where the real difficulty arises is in determining whether the behaviour makes it unreasonable to expect the couple to live together. This is an objective test, but it is one that must take account of the mental states of both parties. It has been judicially stated that the facts of each case must be considered and a decision made, having regard to all the circumstances, whether the particular petitioner can or cannot reasonably be expected to live with the particular respondent.
If the behaviour stems from misfortune such as the onset of mental illness or from disease of the body, or from accidental physical injury, the court must take full account of all the obligations of the married state. These will include the normal duty to accept and to share the burdens imposed on the family as a result of the mental or physical ill-health of one member. The court will also consider the capacity of the petitioner to withstand the stresses imposed by the behaviour, the steps taken to cope with it, the length of time during which the petitioner has been called on to bear it and the actual or potential effect on his or her health. The court will then be required to make a judgment whether the petitioner can fairly be required to live with the respondent.
318 The granting of the decree to the petitioner does not necessarily involve any blameworthiness on the part of the respondent, and no doubt in cases of misfortune the judge will make this clear in his judgment.
In reaching a decision the judge will have regard to all the circumstances, including the disabilities and temperaments of both parties, the causes of the behaviour and whether the causes were or were not known to the petitioner, the presence or absence of intention, the impact of it on the petitioner and the family unit, its duration, and the prospects of cure or improvement in the future. If the judge decides that it would be unreasonable to expect the petitioner to live with the respondent he must grant a decree of divorce unless he is satisfied that the marriage has not irretrievably broken down.
A further problem that may arise in this connection is that of a person who is rendered permanently comatose or turned into a human vegetable as a result of a road accident or other affliction. Does such a condition amount to "behaviour" which indicates the irretrievable breakdown of a marriage and entitles the victim's spouse to a divorce? As the House will realise, this question has not yet been answered by the courts. However, I have already pointed out that, under the order, mental illness as such is not a fact giving a right to divorce, as it is under present law. Similarly, physical illness will not by itself be such a fact. It seems, therefore, right in principle that total immobility caused by total unconsciousness should not by itself be a ground for a divorce petition.
Article 3(2)(c) reduces the prescribed period of desertion from the three years under the present law to two years. This is because of the close connection between the time provided for in this paragraph for desertion and the time provided in Article 3(2)(d) for separation. Two years' desertion is even stronger evidence of the breakdown of a marriage than two years' separation.
Article 3(2)(d) and (e) bring about the major practical changes in the law. It is at this point that the Divorce Reform Act broke entirely new grounds. Paragraph (d) requires that the parties have lived apart for a continuous period of at 319 least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted. Paragraph (e) requires that the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. The fact that the parties have spent the required period "living apart" is taken to be an indication not only that the marriage has broken down but that it has done so irretrievably.
Two provisions are specifically designed to give protection to the respondent when the petitioner relies on two or five years' separation. First, under Article 7, the respondent to a petition for divorce in which the petitioner alleges five years' separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage. It is expressly laid down that hardship for this purpose includes the loss of the chance of acquiring any benefit that the respondent might acquire if the marriage were not dissolved.
Secondly, under Article 12, where a petition for divorce is based either on two years' or five years' separation and the respondent applies for consideration of his financial position, the court may not make the decree absolute unless it is satisfied either that the petitioner should not be required to make any financial provision for the respondent or that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances or, where an early decree is desirable, that the petitioner has given a satisfactory undertaking to bring the question of proper financial provision for the respondent before the court.
These are complex provisions and apply when the petition does not disclose any fault or breach of matrimonial obligation on the respondent's part. The issues raised usually concern loss of social security benefits based on the husband's contributions and of private pension rights. There are few reported cases of other grave hardship. Although a petition for divorce based on five years separation may be opposed, as I have said, on the ground that the dissolution 320 of the marriage will result in grave financial or other hardship and that it would in all the circumstances be wrong to dissolve the marriage, a decree is unlikely to be refused if the wife respondent is young, without children and able to earn her living or the marriage has lasted for a very short time. None the less, in the admitted rare cases in which Article 7 can apply it provides a considerable safeguard.
Before turning to the proposals for better financial protection for a respondent spouse, may I say a word about reconciliation, distinguishing between that concept and the concept of conciliation. The difference between reconciliation and conciliation is succinctly stated in the Finer Report on One-Parent Families. By "reconciliation" is meant the reuniting of the spouses. By "conciliation" is meant assisting the parties to deal with the consequences of the established breakdown of their marriage, whether resulting in a divorce or a separation, by reaching agreements, giving consents or reducing the area of conflict upon custody, support, access to and education of the children, financial provision, the disposition of the matrimonial home, lawyers' fees and every other matter arising from the breakdown which calls for a decision on future arrangements.
Article 4 of the order seeks to encourage reconciliation by encouraging the spouses to live together with a view to resolving their differences. This may seem a very obvious course of action, but surprisingly enough, present law penalises spouses who resume cohabitation, by treating their living together as condonation of adultery or cruelty or termination of desertion. Article 5 prevents a divorce petition being presented within three years of a marriage save in the most exceptional circumstances. The purpose is first of all to deter hasty marriages by those who may say "Well, we can always get a divorce" and, secondly, to allow time for reflection when newly-weds quarrel. Article 8 encourages adjournment of court proceedings where reconciliation seems possible. This order does not follow the English and Welsh legislation requiring that a solicitor shall certify to the court where he or she has discussed the possibility of reconciliation. Everything I have heard convinces me that this has not proved effective in practice.
321 A major reform enshrined in the order is the conferring on the courts of important new powers to award ancillary relief on divorce, the annulment of a marriage or judicial separation. The main changes from existing law are as follows.
First, the distinctions in terminology between maintenance, alimony, and periodical or gross sums are abolished. All will now be described as "financial provision" except alimony granted on an interim basis, which is now termed "maintenance pending suit".
Second, there will be no distinction between the powers of the court in relation to husbands and wives, or petitioners and respondents
Third, all forms of periodical financial payment, but not maintenance pending suit, are capable of being secured and of being awarded for the life of the payee or, except in cases of judicial separation, until he or she remarries, whichever may be the shorter period.
Fourth, the court is empowered to award a lump sum both in respect of the future and also to enable the payee to discharge liabilities already reasonably incurred in order to maintain the payee or the children, and to order any lump sum to be payable by instalments.
Fifth, there is power to order either spouse to make financial provision by way of periodical payments secured or unsecured, or lump sums, to or for the benefit of a child of the family. This power is designed to preserve as far as possible the pecuniary position of the child whether in nullity, divorce, judicial separation or wilful neglect proceedings.
Sixth, the legislation is drafted in terms of "children of the family", which includes any child, including an illegitimate or adopted child, of both spouses and any other child, except one boarded out with the spouses, who has been treated by both of the spouses as a child of their family.
Seventh, clear principles are introduced regarding the maximum age to which orders in favour of children extend. Periodical financial provision will not be ordered beyond the child's attaining the upper limit of compulsory school age unless there are children of the family receiving educational instruction or under- 322 going training for a career, or where there are other children whom the court considers "need protection."
Eighth, power is given to the court to order settlement of property and to vary existing settlements; and there is power to vary most financial provision orders, but not those for payment of a lump sum or, normally, those affecting settlements.
Ninth, extended power is given to the court to alter maintenance agreements.
In determining the financial provision to be made for a spouse the court is to have regard, among other things to the spouses' respective contributions to the welfare of the family, including any contribution made by looking after the home or caring for the family. The aim is to put the spouses, if possible, in the financial position they would have been in had the marriage not broken down so far as, having regard to their conduct, it is just to do so.
I appreciate fully that many people are concerned that an offending spouse may be, as they see it, insufficiently penalised in the property division on account of his or her conduct. I believe it is important to remember that the order reduces the matter to a question of justice and injustice. Would it be unjust to the other spouse to ignore particular conduct? If it would, the conduct must go into the balance. This seems a reasonable yardstick.
What the provision of Article 27(1) aims at is avoiding the arguments and recriminations which for too long have been a sad feature of some divorce actions. It is recognised that normally some fault exists on both sides, and a minute weighing up of such conduct ought to be discouraged. The hearing of mutual condemnations, allegations and counter allegations by the parties to the case would frustrate the order's aim of enabling what is an "empty legal shell" of a broken marriage to be ended with the minimum bitterness, distress or humiliation.
The community has come a long way from earlier experiences of divorce jurisdiction where a wife who had committed adultery, or deserted her husband, received at most a compassionate allowance which might save her from utter 323 destitution or, as the old ecclesiastical courts put it, was tobe fed with the bread of affliction and with the water of adversity".Today's approach is much more humane and compassionate. It corresponds with the community's view that financial resources should be disposed of on the basis of need rather than by a finely balanced apportionment of blame.
In brief, immoral or other adverse conduct will not affect the ultimate award of financial provision unless it would be unjust to ignore it. Two other points ought to be mentioned. First, that the conduct of one party may be relevant in increasing the other party's share in matrimonial property; and secondly, that such conduct is not to be treated as being confined only to matrimonial misconduct. The "scheming" wife, about whom some understandable fears have been expressed, is likely to have her claim for financial provision described by the court, as "astonishing and impudent", particularly if her conduct was calculated to destroy the marriage in circumstances in which the other party is substantially or entirely blameless.
I come now to the principal amendments which it has been decided to make to the order as first published in the light of comments received during the consultative period. It will be apparent from the scope of these changes that the Government have responded meaningfully to the representations received and consequentially have accrued benefit from the discussion, debate and exchange of views shown in a multiplicity of ways over the last few months. I have already expressed my indebtedness to all those who gave me the benefit of their considered opinion and participated in what I consider to have been a most worthwhile process. In my opinion, it is not surprising that the outcome of this consultative period has aroused such considerable interest and been so rewarding.
I begin with the most important of the amendments made to the original draft order as first published. As the House will be aware, the children of divorcing parents were under the proposal for a draft order, already entitled to adequate economic support, and Article 43 of the proposal—now Article 44 of the present draft—proposed safeguards where child- 324 ren are involved in cases of divorce, nullity or judicial separation.
In Article 43 of the present draft a significant new provision is proposed—namely, that rules of court shall provide for the reference of such cases to a properly qualified person, in practice normally a social worker employed by one of the health and social services boards, who will consider the possibility of conciliation between the spouses and will report on the children and the arrangements for their welfare. The intention is that the social worker to whom a case is referred will endeavour to talk to both parents and, if they are willing, arrange for them to meet a marriage guidance counsellor.
I am aware that, once a divorce action has begun, the chance of maintaining the marriage by reconciliation is very remote. the Finer Report makes it clear that this has been the experience not only in Great Britain but abroad. I take the view that if the parties will only listen, a great deal of valuable conciliation work can be achieved with the help of a counsellor. He can work for the creation of a more reasonable and understanding attitude between the parties with a view to avoiding unnecessary conflicts on matters concerning money, the family home and, most important, the children.
The social worker will also see the children and will prepare a report for the judge on the arrangements proposed by one parent or both for their welfare. One must be realistic about this. In practice, the options open to a court in settling the children's future are often limited, but there will be other cases where the social worker's report shows a very different assessment from that shown by the Statement as to arrangements for children attached to the divorce petition. In such cases the judge will have power to instruct that the children are separately represented by counsel.
If the future well-being of a child is not adequately served under the custody of either parent or some other close relative, the children, as a last resort of protection, could be committed to care under Article 46 of the order or, in suitable cases, a child can be placed under supervision in accordance with Article 47.
Another additional benefit from the provision of Article 43 is that the social 325 worker's visit could indicate the need for other relevant social service agencies to advise on benefits and services to which the parties in the divorce or the children may be entitled.
During the consultative period, vigorous representations were made both for and against the county court being given a divorce jurisdiction. It has been determined after due consideration that this should be so, and the Lord Chancellor will have enabling powers under Article 48 of the proposed legislation to select the courts that will exercise this jurisdiction.
Amendments to Articles 2, 25, 25 and 32 empower the court, when making financial or property orders, to give consequential directions. Such directions may order the sale or exchange of property or create a charge on property. So far as these amendments empower the court to order a sale of property, they duplicate Clause 91 of the Judicature (Northern Ireland) Bill, but there is advantage in having in the order a comprehensive power for the court to give a full range of consequential directions.
A particular advantage of the amendments is that they confer on the court a new power to make charging orders. The power is a flexible one and allows the court to direct that a charge is to be effective after a specified interval—for example, when all the children have come of age.
Amendments to Articles 3 and 4 empower the court to dismiss a petition for divorce based on proof of adultery, if the adultery has been connived at by the petitioner. In this context "connivance" relates to some action or default on the part of the petitioner undertaken with the intention that adultery should result or, at least, some acquiescence amounting to promoting the adultery by wilfully refraining from taking any action to prevent it. The concept therefore covers a broad field, but the essential element in every case is that there must be a "corrupt intention".
At present, connivance is an absolute bar to divorce. This means the court must refuse a decree unless it is satisfied that no connivance has occurred. The amendments propose that in future it 326 could be a defence, and this accords with the philosophy of Article 51 of the order that the bars to divorce in the existing law should be abolished, but still enables an abuse of the law to be prevented. The amendments would, therefore, expressly empower the court to withhold a decree in any flagrant case of connivance, when the point is taken by the defence.
Substitution of paragraphs (1) to (4) of Article 29 abolishes sex discrimination in High Court and, in future, divorce county court maintenance proceedings. The amendments simplify the article and bring it more into accord with other provisions of the order. In particular husband and wife are given rights which are equal so far as circumstances require, there is no need to prove wilful neglect to maintain, but only failure to do so, maintenance can be ordered for any child of the family, and no longer expressly only for those the respondent might reasonably be expected to maintain, and a wife's adultery ceases to be a bar to the making of an order in her favour.
A change to Article 6 allows the period of a magistrates' non-cohabitation order to be added to a period of desertion. The amendments to Articles 6 and 29 follow the lines of the Matrimonial Proceedings and Magistrates' Courts Bill at present before Parliament, although in the case of Article 6 with the qualification that the periods mentioned cannot by themselves solely be treated as periods of desertion but must be linked with some period of actual desertion.
I also bring to the attention of the House that we have felt able to strengthen Article 39 when an injunction is made under paragraph (2)(a), by enabling a statutory charge to be created on land thus giving further protection to a wife pending a financial or property order.
Finally, there are two amendments, on the face of them technical but with substantive effect, which I specifically wish to draw to the attention of the House. The first is paragraph (3) of Article 3, which requires the court to hear the petitioner's oral testimony before granting a divorce. This effectively excludes the introduction of the special procedure under which a divorce may be obtained on affidavit evidence alone—the so-called postal divorce.
327 The majority of those who gave us the benefit of their opinions made strong representations against the introduction of the special procedure for Northern Ireland. Those strong objections to the special procedure indicated a general view that such a procedure would reduce the dissolution of marriage to an unacceptable mere formality—as though it were of little consequence—and in honesty that is not the view of marriage still commonly held in Northern Ireland.
The second of the amendments to which I wish to refer concerns Articles 12 and 44. These amendments deal with two distinct situations—under Article 12, where the respondent is in a two or five years separation case and has applied to the court for consideration of the financial position after the divorce; and under Article 44 where the court has to consider the arrangements for the children. In each case the court is instructed not to make the divorce final unless it is satisfied, to put it briefly, that the financial provisions are adequate or that the children will be properly provided for.
The amendments propose that where a court makes a decree of divorce final without obeying that instruction the divorce should be voidable in both cases. That contrasts with the situation in England, where it has been held that the result of an oversight of the requirement of the provision equivalent to Article 12—that is, Section 10 of the Matrimonial Causes Act 1973—is to make the divorce voidable, and where it is specifically provided that an oversight of the duty imposed by the equivalent of Article 44, Section 41 of the 1973 Act, makes the divorce void.
In incorporating these amendments we have accepted that it is excessive to make a decree absolute automatically void. A decree of divorce involves a change in status and should have as much certainty as possible. If a party has remarried on the strength of the decree, his after-taken wife and their children might suffer because his second marriage will be void. Where children are concerned, treating the decree as void will rarely protect their interests. On the other hand, if the decree is voidable, the court will be able to apply its sanction selectively in those cases where, for example, a party deserves punishment for misleading the 328 court, or a husband needs to have some pressure put on him to make proper financial provision for his first wife or their children.
The remaining amendments, contained in Articles 56, 58 and 61, are largely self-explanatory. Article 56 allows a husband to seek a magistrates' custody order for his children where his wife has deserted him and allows maintenance to be awarded for children on a wife's application even though she herself is debarred from any relief because of her adultery. Article 58 abolishes the practically obsolete actions for damages for the seduction or harbouring of a wife. Article 61 allows the remarriage of certain relations by affinity following divorce.
If the House approves the order, it will constitute a new basic code of divorce law for Northern Ireland. I believe that it will be a substantial improvement on existing law.
Accordingly, I commend the order to the House.
§ 9.0 p.m.
§ Mr. Ian Gow (Eastbourne)
The House will be grateful to the Under-Secretary of State for the thoughful and careful way in which he has presented the order. If ever an order should go through the full legislative process of Parliament, this one most emphatically should.
The proposals in the order arouse very strong feelings—I was going to say in all parts of the House, but perhaps that would be a little invidious in view of the empty Government Benches—which cut across party lines. Although I am speaking from the Opposition Dispatch Box, I recognise that some Opposition Members will not agree with what I am about to say.
We approach the order from the same principle as that with which we approached the first order relating to company legislation. We believe that, unless there are over-riding reasons to the contrary, there is a strong argument for harmonising the law of Northern Ireland and of Great Britain.
The effect of the order is to replace the Matrimonial Causes Act (Northern Ireland) 1939, which related only to Northern Ireland, with what has become 329 the Matrimonial Causes Act 1973. The new grounds for divorce are set out in Section 1 of the 1973 Act. That section, reproduced in the order, substantially extends the grounds on which a divorce decree may be granted.
When the Divorce Reform Act 1969 was going through Parliament—long before I became a Member of this place—I was strongly opposed to it. I am a solicitor by profession. In the nine years which have passed since the Divorce Reform Act went on the statute book and in the five years which have passed since that Act was consolidated with and reenacted in the Matrimonial Causes Act 1973 my view has changed. I now believe—still with some misgivings—that the structure of our divorce law as set out in the 1973 Act is basically right.
I want to refer to two matters which the Minister mentioned in the closing passages of his speech. One concerns reconciliation. My experience is that Section 6(1) of the 1973 Act, which provides that a solicitor acting for a petitioner shallcertify whether he has discussed with the petitioners the possibility of a reconciliation and given him the names and addresses of persons qualified to help effect a reconciliation".has been largely ineffective. Indeed, the Minister recognised that, because the Government do not propose to include a similar provision in the order.
Secondly, again with my experience as a solicitor over the past nine years, I welcome the refusal in the order to have a divorce decree pronounced without hearing evidence in person from the petitioner. I dislike the provisions of the 1973 Act which say that a decree can be granted in Great Britain without oral evidence being given by the petitioner. The proposal in the order is an improvement.
I wish to examine briefly the principal grounds for granting a decree. The provisions of the order are virtually identical to Section 1(2) of the 1973 Act. The test that before a decree of divorce can be granted the court must be satisfied that the marriage has broken down irretrievably is essentially right. The question then arises as to the circumstances in which the court shall be so satisfied. The order sets out five grounds and 330 reproduces them in substantially the same form as they appear in the 1973 Act.
There is one important difference. In the 1973 Act the first ground is that the respondent has committed adultery and that the petitioner finds it intolerable to live with the respondent. The corresponding provision in the order leaves out the wordsand the petitioner finds it intolerable to live with the respondent".That is in a sense slightly inconsistent with the other provisions to which the Under-Secretary referred, because the provisions of this order, with the omission of those words, certainly mean to me that a court in Northern Ireland will be more readily satisfied that the marriage has broken down irretrievably following adultery than would be the case in Great Britain. I am not clear why the Government have decided to make that amendment.
The second ground, that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, reproduces Section 1(2)(b) of the 1973 Act. The Minister referred to the problem that would arise in the event of unsoundness of mind on the part of the respondent. The old Matrimonial Causes Act 1939 provided that a petition would be granted where the respondentis incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition".I have never understood why the 1969 and 1973 Acts, and now this order, do not provide for the ground for divorce that was contained in the 1939 Northern Ireland and the pre-1969 Great Britain legislation.
For the reasons that the Minister explained, it would be possible to interpret Article 3(2)(b) of the order in such a way that unsoundness of mind did not amount to behavour which would grant the petitioner the ground for divorce that the petitioner could not reasonably be expected to live with the respondent.
The next sub-paragraphs deal with desertion and with the case in which the parties to the marriage have lived continuously apart for at least two years and where the respondent consents to a decree being granted. That follows exactly the provisions of the 1973 Act.
331 No Government can ever stand aside or be neutral in the divorce laws of its country.
§ Mr. J. Enoch Powell (Down, South)
I am sure that the hon. Member will be dealing with this matter, but he will be aware that when the original Divorce Reform Act, as a Bill, was before the House, in 1968 to 1969, the Government of the day expressly declared that they were neutral in regard to the Bill, and declared it through the mouth of their Solicitor-General.
§ Mr. Gow
The right hon. Gentleman reminds me of an event that took place before I inflicted myself upon this House. But I was certainly asserting the contrary proposition. I do not believe that a Government can stand aside or be neutral about the divorce laws of a country, because the consequences of the divorce laws of a country are very far-reaching indeed. It may be a tribute to the Under-Secretary that the speech that he made to the House this evening is in direct conflict with the views that the right hon. Member for Down, South (Mr. Powell) reminds me were expressed in 1968 and 1969 by the then Solicitor-General. I disagree with the then Solicitor-General and I agree with the Under-Secretary. I repeat that I do not believe that a Government can stand aside from the divorce laws of a country.
I said at the beginning of my remarks that some of my right hon. and hon. Friends would disagree with remarks that I would make from this Box. I recognise, of course, that that is so.
I welcome the order for two main reasons. I welcome it, first, because I believe that unless there are overriding reasons to the contrary, it is desirable that the law of Great Britain and the law of Northern Ireland should be the same. Secondly—and to this extent I am a convert—although I was opposed to the 1969 Act, the experience of operating that Act and a study of the circumstances in which that law has affected our society at home have led me to the view that basically the Act of 1973 has provided this country with a humane, sensible and practical divorce law. I say that as someone who has mercifully had no personal experience of divorce and who has, therefore, seen it only from a professional point of view.
332 For those reasons, I welcome the order. If there should be a Division upon it tonight, I shall vote in its support.
§ 9.12 p.m.
§ Mr. James Molyneaux (Antrim, South)
It is a matter for very real regret that those hon. Members who occupied the Labour Benches during the debate on the previous order and who contributed, albeit in a rather negative fashion, to that debate have not felt able to be with us as we debate this order, and as we on the Opposition Benches assist Her Majesty's Government in seeking to improve the law as it affects a very large social area of life in Northern Ireland. If only those hon. Members could see their way to giving constant attention to their responsibilities we might find that the people of Northern Ireland would develop much more confidence in the capacity of this House to bring its beneficial and constructive influence to bear on their everyday lives.
The Secretary of State and the Under-Secretary have always recognised that this was a very significant item of social legislation on which there were very wide differences of opinion. They accepted the view that I expressed on behalf of the Unionist Parliamentary Party in a letter to the Secretary of State dated 21st July 1977, in which I expressedthe exceptional importance of carrying public opinion as far as possible with whatever it is eventually decided to do about the law in Northern Ireland on the subject of divorce.At that time we also expressed our preference for a Bill which would undoubtedly have provided the necessary opportunity for public opinion to be educated and brought fully to bear, thus avoiding resentment and misunderstanding. However, one has to concede that the processing of this legislation has provided an outstanding example of the extent to which it is possible to modify, stretch and even exploit the Order in Council procedure. That in no way implies acceptance of the procedure as a permanent feature for the future government of our part of the United Kingdom. Indeed, it strengthens the case for progression towards normal parliamentary legislative processes.
In his letter to me of 17th August 1977, the Secretary of State indicated—the Under-Secretary has reminded us of this tonight—that he had decided to extend the 333 normal period of consultation after the draft order had been published as proposals, and at that time he said that he would do all in his power to ensure that individuals and organisations as well as Members of Parliament would have the fullest opportunity to express their views.
Our Unionist Parliamentary Party made its contribution in the form of a conference on 30th March this year, and the Under-Secretary of State has referred to these activities, which not only enabled interested groups and individuals to convey their views to us but, equally important, provided groups representing different viewpoints with an opportunity to meet face to face and discuss their differences in a civilised manner. I think that that was of enormous benefit.
The conclusions of our conference were conveyed to the Minister, and they provided the basis for the detailed consultations after which he produced his printed paper listing what I call the 21 amendments. I think that I am right in saying that this was the first time that such a document had been produced, and I assure the Minister that we found it of great benefit and we hope that he has established a precedent and a pattern.
The 21 amendments met our submissions to such an extent that, as the Minister knows, we did not then consider it necessary to proceed with the plan for a sitting of the Northern Ireland Committee, and it has thus been possible to have this debate on the Floor well in advance of the end of the present Session.
We have taken great care to keep the general public informed about the progress made, and I am sure that the public share our astonishment at the red-hot news that the Unionist Party of Northern Ireland met the Minister only last week to offer belated advice on the contents of the order, already set down even at that time for debate today. What is more, I understand that the deputation demanded that the order should be approved by Parliament in the next Session.
Lest the Minister fears that he might have dozed off and missed out a whole year, let me comfort him with the news that the UPNI has a habit of getting its timescale wrong. For example, it recently announced that it would campaign at the next election for increased representation for Northern Ireland at Westminster. All 334 of this—I think, with respect, that this is where you come in, Mr. Deputy Speaker—leads me to conclude that, in the unlikely event of that party winning a seat. the Chair, I am afraid, will then have to adjust itself to working always from yesterday's Order Paper and relating debates to the contents of the Queen's Speech before the last one.
§ Mr. Dunn
In all honesty, I ought to put the record straight. What the Unionists, or a particular group of Unionists, asked me was when the operative date would be, and I said that it would be early next year. I do not wish to comment on the other matters. But that is a statement of fact, and I am obliged to make that statement in the House. The hon. Gentleman forces me.
§ Mr. Molyneaux
The Minister speaks of a certain type of Unionist. I would say a "peculiar type of Unionist". But we shall agree to differ.
We must place on record our view that, in principle, it is objectionable that law made in Great Britain on private Members' initiative, on a free vote and without Government responsibility, should be applied to Northern Ireland as an act of Government policy. But I do not wish to labour that point. I trust that the process will not become a habit.
However, to avoid Northern Ireland having again to catch up, we accept the intention to embody in this legislation those features already found desirable in English law. Secondly, we hope that the next legislation on this subject will extend with minor variations to the whole of the United Kingdom, the way having been prepared by this order.
My right hon. Friend the Member for Down, South (Mr. Powell), who has contributed so much to the improvement of the order, will, if he catches your eye, Mr. Deputy Speaker, give his views on various aspects of the legislation. I want to look briefly at the arguments which centre on grounds for divorce, and particularly the ground that the marriage has broken down irretrievably.
I am glad that the Minister has already said that that phrase cannot be used as a kind of shibboleth. The claim of the breakdown has to be supported by facts, and a combination of facts and 335 common sense is vastly preferable to acting out charades and engaging in deception—practices which unfortunately have been made necessary by the current legislation. The proper balance seems to have been struck, and if properly presented should remove the false impression that under English law divorce is automatic and can be obtained on the casual say-so of one of the partners.
I am also glad that the Minister has stressed that there will be no special procedure in Northern Ireland. He has provided for that situation in Article 3(3). I almost used the phrase "special category", but I leave that to some of my happily married friends to take up at a later date.
Article 8 provides for the encouragement of reconciliation. The possibility of reconciliation should be kept in mind at all stages and as far as possible we should delay the point of no return at least until the final legal stage. It is sensible to remove the bars to reconciliation which exist in the present legislation under which the mere coming together to discuss the possibility can be enough to justify the rejection of a petition.
I welcome also the dropping of the requirement in English law for solicitors to certify that they have discussed the possibility of reconciliation with the partners. I have always thought that that provision was nonsense, and in practice it has proved a non-starter. It involved the legal profession in a world of make-believe. I have no doubt that some of them were well rewarded for engaging in a task which should not have been theirs. They are not fitted or trained for the role of marriage guidance counsellors. After all, if solicitors the world over developed the art of reconciliation to perfection, they would soon make themselves redundant.
I have said that this is a subject on which there are sincerely held opposing views. That division is reflected in the ranks of the elected representatives of Northern Ireland. In a free vote such as we shall have tonight, those differences may be expressed in the Lobbies.
I close with a purely personal view. I am sure that we are all mindful of our responsibility in debating this issue—to weigh our words carefully and to ponder 336 the outcome of our decisions. It would be impossible, surely, to overstate the importance of the survival of the family unit in relation to the survival of civilised society as we know it. However, it would clearly be unwise to assume that by mere legislation we can build or sustain the type of society in which the vast majority would choose to live.
We cannot legislate for righteousness. Simply to preserve a tough and unyielding divorce law will not compel couples to honour their matrimonial obligations. We are talking here of far deeper things—of principle, honour, integrity and loyalty. We who are privileged to serve in this House may strive to inspire and encourage these qualities; sad though it may be, we cannot legislate for them.
§ 9.25 p.m.
§ Mr. Robert J. Bradford (Belfast, South)
There are important matters to which we must return albeit in the face of a comprehensive and detailed presentation by the Minister. I should like to make two prefactory comments. First, we are grateful to the Under-Secretary of State for affording us a considerable period of time in which to look at his proposed draft, to submit ideas, suggestions, proposals and amendments and to review his comments on them before coming to this stage of our proceedings. We are grateful for the sensitive way in which he has received our views, knowing that this matter is vital to the people of Northern Ireland and sharing our view that it is unfortunate that legislation should proceed in this way on such a vital matter. We understand that the constitutional context is not of his making, and we believe that his sympathy and sensitivity are such as to afford us a greater measure of consultation than might have been afforded by someone else.
Secondly, it is unfortunate that we have to make a decision on the basis of the order as a whole because in the minds of some of us there is a conflict. There is the obvious need to improve those provisions which relate to the financial wellbeing of those who are caught up in the dreadful trauma of divorce. There is the need to deal with the plight of the children. There are all the property considerations. All those improvements and the provisions relating to the improvements have our wholehearted support.
337 The conflict arises when we turn to the first few pages of the order because for some of us the grounds for divorce now proposed cause a great deal of concern. By opposing those provisions we may be giving the impression that we are opposing the improvements in the financial provisions and those articles which relate to the wellbeing and the welfare of the children. Such is the nonsense of proceeding by way of Order in Council in a fundamental issue of this nature.
Before moving on to some of the provisions—I shall not traverse the territory covered so ably by the Under-Secretary of State—I should like to ask the Minister whether he would care to say a word or two at the end of the debate about legal aid. He omitted to refer to legal aid in his introductory speech, and we feel that this is a vital consideration in divorce proceedings. It may be that we are meant to infer from Article 3(3) that, because oral testimony is vital in divorce proceedings in Northern Ireland, legal aid will be available. However it is the case that in England legal aid has been withdrawn from all undefended divorce cases. Will the Minister return to this question of legal aid and confirm that, because of this article, legal aid will be available in Northern Ireland in every circumstance?
I come now to Article 3(d). Here we read:that the parties to the marriage have lived apart for a continuous period of at least two years".Under the Matrimonial Causes Act (Northern Ireland) 1939 the period was three years. I do not believe that it is helpful to reduce the period of separation since I do not believe that we should reduce the opportunities for renewed attempts at reconcilation. The reduction of this period is not a helpful provision.
I agree with my hon. Friend the Member for Antrim, South (Mr. Molyneaux), who said that he was relieved to know that a "quickie" divorce by post would not be available in Northern Ireland. I know that we have the full-hearted support of the Minister in making that point.
Turning now to reconcilation, we agree that the provisions available under the 1973 legislation, whereby a solicitor had to sign a document establishing that he had endeavoured to reconcile the parties, 338 was a nonsense. This order has been more realistic than that. We congratulate the Minister on taking into account the comments we submitted on this point, particularly in the light of the unanimous voice, not only of our conference, but of the conference to which the Minister referred which took place at Queen's University, Belfast.
Turning to the statutory charges provision, we found, having consulted every interested body, that there was concern for the spouse who might be deprived of his or her part in the property of the home. It has in the past taken only a little subtlety to produce deprivation in this respect. We are please that Article 39(2)(a) enables the securing of property and the securing of the financial resources of a home for the spouse who feels that a subtle attempt to deprive him or her will not now be possible because of this legislation.
I come now to the main burden of my speech, which is to voice my concern about the grounds for divorce as outlined in Article 3, namely that the marriage has broken down irretrievably. When the change in the legislation took place here in 1969, a useful series of articles appeared in the national Press. But it is not just upon those that I base the comments which I am about to make. I speak not only as one whose interest is in good law but as one who has some experience of the social and family pressures, having dealt with those in a pastoral context. I have instinctively recoiled from any legislation which has made divorce much easier and which has made reconciliation either unattractive or not worthwhile.
As I tried to articulate my own concern about the 1969 and 1973 legislation, I was delighted to learn that many eminent divines on both sides of the water, and many experienced judges, also agreed. In the case of Northern Ireland, a former Lord Chief Justice articulated my concern far more eloquently and cogently than ever I could have done. To the comments of the divines on both sides of the water was added recently the comments of an eminent judge here. His comment that one out of every two marriages was now breaking down was challenged by groups with vested interests. Although that statistic was challenged, 339 and possibly still could be challenged, the fact of life is that divorce in this part of the kingdom is now far easier to obtain, and this has reflected on the stability of marriage.
It is, therefore, vital for us to concern ourselves not only with good law but with moral law. I cannot be dissuaded that the 1969 and 1973 legislation conditioned people to the possibility of temporary marriages. That argument is beyond peradventure. Young people now know that even if they make a solemn vow in church or before a registrar, there is the possibility—if the words of the eminent judge are correct, almost the expected result—that one in every two marriages will flounder in their very early stages. If there is not in fact a conditioning, albeit unwittingly, by bad legislation, that marriages are expected to be temporary affairs, at least I believe this legislation affords the possibility that young people will be given the opportunity to sever the marriage prematurely. In reducing the period from three years to two in respect of separation and, in the case of the 1969 and 1973 legislation, in respect of cruelty, I believe that we have made the possibility of reconciliation more difficult and we have limited the opportunities of perpetuating the marriage in a way that is unhelpful for the parties concerned and for society as a whole.
But perhaps one of the most serious criticisms which could be levelled not only at this legislation but at the legislation which exists in this part of the kingdom is that we have now afforded the unfaithful and—let us not shy away from the expression—the guilty party the right to take the initiative. Some people may abhor reference to the guilty party, but guilt orientation is still implicit in the legislation on this side of the water. Certainly it is implicit in the legislation enshrined in this order. Although there is this movement away from the word "guilt" and the concept of guilt orientation, they still exist and are implied in the legislation. However, in this order we have provided the unfaithful, the guilty party, with the right to take the initiative to dissolve the marriage. This is done by the five-year provision which does not need consent.
For the life of me, I cannot believe that that is natural justice or justice of 340 any kind. Certainly it is not good law. Certainly it is not moral law. Therefore, I feel that the very pertinent observations of the previous Archbishop of Canterbury and the commission which was inaugurated in 1955 were not given due weight when the legislation was introduced here in 1969 and again when this House considered the consolidation legislation in 1973.
I move on to the courts dealing with uncorroborated evidence with the respondent absent from the trial and, of course, in the case of the legislation here, when no one is present at the trial. The judge and the court face the dreadful possibility of reaching a decision without any evidence which can be corroborated being exposed to scrutiny and examination. I do not believe that there should be divorce without both sides of the matter being ventilated. Yet in this legislation we have that opportunity. I do not believe that that is fair to the courts or to the judiciary, and I do not think that it is good jurisprudence.
This legislation provides very important safeguards for the children of a marriage, and I am delighted with Article 44 and those which follow it because they go much further to safeguard children than any other legislation in any other part of the kingdom. For that I believe we should be grateful, and again we express our gratitude to the Minister for concentrating on this vital area in the serious matter of divorce.
I conclude by making one observation which may not be supported by my colleagues, but I believe it is one reason why I shall have to vote against this legislation. It is not Parliament's job to make it easy for any couple who have made a vow in a church to break that vow. I do not suggest that we should return to the pre-nineteenth century arrangement where only the ecclesiastical courts could decide on divorce proceedings. That created the elitism to which we are all opposed. However, I believe that we are in dangerous waters when Parliament takes it upon itself to make it easy for people who, within the terms of reference of the word of God on divorce, marriage and the wonderful matter of living together and perpetuating creation, seek to undermine that promise, vow or institution so that a marriage is eventually dissolved. I refer to occasions 341 when such action is in direct contravention to the terms of reference for a Christian marriage—that is to say, the word of God.
That argument may sound somewhat esoteric and may not engender a great deal of support on either side of the House, but I believe that it is an argument which this House should hear. I believe that because we have ignored that view, it has caused the fabric of society to become unstable. The institution of marriage has been in danger of becoming temporary and transitory, and unfortunately it is being tragically undermined.
Although I am grateful for the hard work which the Minister has undertaken in producing this order, and although I agree that many of these provisions will improve the lot of those who have been hard done by in the past, I feel that I must oppose the order because I do not believe that irretrievable breakdown should be regarded as the best ground for divorce.
§ 9.48 p.m.
§ Mr. Wm. Ross (Londonderry)
The pressure for changes in divorce law in the present social climate is not unexpected. However, I agree with my hon. Friend the Member for Belfast, South (Mr. Bradford) that marriage is an institution that should not be changed purely and simply because of passing fashion in human affairs. I believe that we should ask what society is seeking and what it needs. These are not necessarily the same thing, but I believe that Northern Ireland society wants to preserve the traditional attitude to marriage. Perhaps we are different in this respect from the rest of the United Kingdom, but I believe in my bones that the people of Northern Ireland wish to preserve that tradition.
The people of Northern Ireland wish to preserve the traditional attitude to marriage because in Ireland as a whole the family is regarded as the basic unit of society and as a unit which must be preserved. People in Northern Ireland believe that that unit in society cannot be preserved by weakening the bonds of marriage.
I also wish to direct attention to the opinions of Lord MacDermott on Lord Dunleath's Bill. A great deal of what was said by Lord MacDermott in respect 342 of that legislation can be said of this order. I agree with Lord MacDermott, who seemed to consider the family unit as a sheltering rock which we must preserve if we are to have a stable society and a stable country.
I do not agree with the ground of irretrievable breakdown of marriage as a basis for divorce. It raises a very serious question concerning blame, and the attitude taken in the order that it is impossible to apportion blame is humbug and nonsense. I believe that there is blame. I know that it can be deeply buried and may not be easy to unearth and that it may simply be behaviour by one individual which grated on the other's nerves and made it impossible for them to live together, but at some point something happens in a marriage which starts the slide down the slippery slope to divorce.
While we may try to avoid the concept of apportioning blame, we shall find increasingly that when a marriage is dissolved and the property has to be shared out, we shall inevitably see the apportioning of blame, whether we like it or not.
The ideal of marriage for life is rarely as happy as it is supposed to be, but even when a marriage is unhappy, we should try to preserve it, improve what is left and build upon it. Hon. Members often see the results of broken marriages and we wonder why common sense does not prevail. If there were better guidance when difficulties arose and if the Churches could be involved—and this may be easier to achieve in a society such as that in Northern Ireland than it is in Great Britain—many marriages would not break down.
I believe that husbands and wives who are going down that slippery slope often discount the lessons they have learned through overcoming obstacles in the past. There is a danger in believing that all is lost before all possible paths of reconciliation have been tried and, above all, there is often a lack of willingness to try again. Often, if one last genuine effort were made, the marriage would survive, grow and be better than it was before.
I welcome the possibility of referring people in danger of divorce to social workers, but again I make a plea that efforts should be made to involve the Churches because no institution in the community 343 is more deeply involved in broken marriages. People are married in churches and I believe that most clergymen are delighted when they have the opportunity to preserve a marriage.
We are forgetting that a marriage is not only a bond before God but a contract between two people to live as one and to share everything they have. That is something that young people, especially, often lose sight of, and I sometimes wonder whether the schools, particularly secondary schools, do not have a role to play in the preparation for marriage among the boys and girls committed to their care. Unfortunately, this matter is ignored in education today.
In all that I have said, I am not unaware of the need to safeguard wives and children after a marriage has broken down. I welcome the changes that have been made to look after children. Those changes refer only to the material needs of divorced people and they could have been ealt with by amending the existing law in respect of the material things of life, rather than through the order and the legislation in Great Britain which strike at the roots of our society by eroding respect for marriage and the marriage vows and bond. I believe that the fundamental change at the centre of the order is one that we shall deeply regret and that will bear bitter fruits for society in future.
§ 9.55 p.m.
§ Rev. Ian Paisley (Antrim, North)
We from Northern Ireland, as a result of the Order in Council procedure, have to deal with matters that affect the whole of our society. We are dealing with issues that run right into the basic unit of society—the family. I am becoming alarmed that we are now almost conceding that the consultation before an Order in Council is laid is almost as good as a proper parliamentary debate and the production of a Bill that passes through the proper legislative machinery.
I am afraid that more and more in Northern Ireland the elected representatives and the proper parliamentary procedure no longer produce laws. Instead we have Orders in Council in draft form, consultation, a final draft and a short debate in the House. I know that today there has been more time because of the procedure adopted. However, with all the 344 time that can be given to us there is no possibility for an hon. Member to move an amendment or to do anything to change the order. It must either be passed as it is or voted against. We must stress that this type of legislation should be produced not in the House but before a devolved Parliament of Northern Ireland, where the elected representatives of Northern Ireland could debate the issues.
I have been in the Chamber for most of the debate. If Northern Ireland Members were discounted, there were times when there was only the Minister and one Labour Member on the Government Benches. I do not blame Labour Members as they have other considerations to which they must attend. This legislation in no way affects any of their constituencies. It has nothing to do with the future of their constituents. Why should they take time off from their other duties to listen to a debate that does no concern them and their constituents?
We are reaching the stage in Northern Ireland where this sort of legislation will have to be postponed until the political situation has settled, until we know whether we shall have a devolved Parliament and Government of our own so that these matters may be dealt with by the elected representatives of the Northern Ireland people who will know exactly what the people require.
It is an impossible task for the Under-Secretary of State to gauge the opinion of people in Northern Ireland by means of the consultative procedure. I accept that amendments have been made. Many of the amendments were extremely good as far as they went. Consultation has been long and many parties have met the Minister. I know that while representing my party I met the Minister for a long time, had long discussions with him and went over the ground.
We heard from the hon. Member for Antrim, South (Mr. Molyneaux) the consultations that the United Ulster Unionist Party had on this matter. But that is not proper parliamentary representation. That is not what goes into producing good laws for the country. We cannot dispense with the legislative machinery in that manner.
I do not want to press this matter, but I feel that it must be ventilated so that the House may understand the feeling of people in Northern Ireland. We find that 345 we cannot by our vote say to the people of Northern Ireland that we approve of the good things in the order. There are good things in it. I have spent 32 years in the city of Belfast in pastoral work. I have officiated at hundreds of marriage services. I have a large congregation. Therefore, I understand how people feel. I deal with these matters all the time.
The one person who needs to be defended in a broken marriage is the child. From the depth of my heart I welcome every provision which will safeguard the child, for the child must be safeguarded in the terrible calamity when the family is divided. It is a traumatic experience for the child. Its loyalties to its mother and father are natural. The division of the home is a serious matter. I also welcome adequate provision for the mother in these circumstances. I believe that these provisions need to be made.
However, because of the basic principle of the order with which I disagree, I must vote with those of my colleagues who will express their opposition in the Lobbies. Why must we do it? The hon. Member for Antrim, South said that it was not for us to legislate righteousness. That is right. But it is for us to legislate right laws—a very different mattter.
What is right? There is something radically wrong with this nation. There has been a departure from those principles which made this nation great. That has been conceded from all sources. We want to see something in this nation which will bring back those principles which made the nation great.
I am arguing not about some new imperialism, but about moral standards, right conduct, human sympathy and all those things which went into the building of the social structure of our society. I am talking about those who pioneered prison reform, the care of widows and orphans and other things which made this nation really great. We know that something is wrong.
When we examine our society, we must examine the basic unit—the family. Something is wrong with the family. The foundation of the family is the sacredness of the marriage bond. I think that we would be better employed in buttressing, reinforcing and strengthening that sacred bond than in undermining and 346 demolishing it. That is why hon. Members have to make and have made speeches in strong terms.
It is all very well for the Opposition Front Bench spokesman to talk of the harmonisation of laws in Northern Ireland with those in the rest of the United Kingdom. I am sure that the Minister will freely admit that a different attitude prevails in Northern Ireland from elsewhere in the United Kingdom on many matters, including marriage and divorce.
There still is in Northern Ireland—this applies to the whole of the island of Ireland—a strong conviction among Protestants and Roman Catholics alike that marriage cannot and must not be undermined, and that it should be for life. It is a common principle that is held far more strongly in Northern Ireland than in this part of the United Kingdom.
On a Sunday morning more people will be in their places of worship in Northern Ireland than are there on this side of the water. That is because the Christian principles prevail in their minds and in their upbringing, and even among people who have perhaps forsaken the church to which their fathers belonged this strong principle has followed. They still want a church marriage. They still want to believe that marriage is not something to be lightly and unadvisedly entered into but should be approached reverently, discreetly and in the fear of God.
The House needs to take account of this fact. It ill becomes any hon. Member here to try to tell us that on a matter such as this there must be harmonisation. On the matter of homosexuality there is a great difference of opinion in Northern Ireland between those who accept it and those who reject it. That difference cuts across the political and religious divides.
It is not therefore a matter of considering this matter in the Great Britain context and saying that it is good for Britain and that therefore it will be all right for Northern Ireland. There are differences in the laws that apply to different parts of the country—even in Scotland. That point needs to be underlined tonight.
§ Mr. Dunn
The hon. Gentleman will recall that I made that statement loud and clear in a consultative document about family law reform in which I clearly 347 stated that what is necessarily good law for one part of the United Kingdom is not necessarily good law for another part, particularly for Northern Ireland. I am on the record in that respect.
§ Rev. Ian Paisley
I am glad that the Minister took that opportunity to put his point to the House. I entirely agree with him.
I now come to the heart of the matter which rests upon the question whether there is a guilty party in the break-up of home and marriage. The order attempts to say that there is no guilty party. It was strange to hear the Minister say in his opening remarks that there should be punishment for a party that misleads the court with the possibility of indictment for the offence. That party does a far more grievous act if it is unfaithful to its partner. If one party commits a crime against its offspring, or is guilty of violating a solemn pledge that was voluntarily taken, evidently no guilt is to be imputed to that party. I find that very strange reasoning. As far as the court is concerned, it is punishable for misleading the court, but in a contract that is far more precious and sacred than any court of law, no matter how dignified, he is to have no guilt whatsoever.
Let us take this matter a step further. The marriage bond in this country may be enacted in a church ceremony, but it still rests upon the civil authority to approve of it, so it is basically a civil contract to which the State is a party, for the State sets down certain conditions, certain regulations and certain matters that must be attended to and adhered to. If those matters are not attended to and they are serious matters, the marriage is reckoned to be null and void. Therefore, there is a contract. It is a contract not only between the two contracting parties but between them and the State, as the body that draws up the terms of that contract.
If this were any other contract, if, for instance, I did not tax my car—we have many very efficient wardens in Belfast who will put a label on one's untaxed car, Mr. Speaker, although I am sure that it has never happened to you—I would be called to answer. What for? For breaking a contract. One is obliged to tax one's car.
348 But here, on a matter that affects the well-being of the party who has been seriously offended and affects the well-being of the children of the family, if there be children of the family, and affects the whole of society because the family is the basic unit of society, we in this House are saying "It does not matter. You can tear up that contract. There is no guilt whatsoever, and the person who commits adultery is as innocent in relation to these divorce proceedings as the person who keeps his faithfulness and fidelity."
Furthermore, when it comes to the reckoning of the apportionment of an estate, the matter of the matrimonial offence and matrimonial guilt will not be considered. To me, that opens a very wide door.
It has been argued—I am rather amazed that it has been argued in this House—that there have been set-ups of adultery, connived at adultery, and that this was done in order to get divorces. It was the duty of the courts to deal with connived at adultery. How will they deal with it under this leglislation if they could not deal with it under the previous legislation? The Minister made a quite lengthy statement about attempts to deceive the courts. If the courts in Northern Ireland were deceived in the way in which the tenor of some of the remarks in the debate suggests, surely the courts were at fault in not seeing that it was adultery and that it was adultery within the meaning of the legislation, and not connived at adultery. They had a responsibility to do something about it. I find it very hard to give any credence whatsoever to that reasoning when we come to this very important matter.
Let us take the matter of cruelty behaviour. If a man beats up his wife and beats up the family, is there not some guilt there? Is there not some offence there? Has not that man something to answer for? Under this legislation, he has not. He is not a guilty party. There is no guilt. No one is guilty. The family will be broken up, but there is no guilty party.
What about the other part where a man deserts his spouse? On the other hand, what of the mother who leaves her family and children? Anyone who knows of these things understands what a heartbreak that can be. Children want their 349 mother, and the mother does not return. I have been in homes where young children cried for their mother to come, but she had gone. It is hard to explain to a child what will happen. Has that woman no guilt? Or, on the other hand, when a husband forsakes his responsibilities, is there no guilt?
The House should direct its mind to these matters. If we cannot legislate righteousness, at least we can legislate right laws which will put the matter into its proper perspective.
The hon. Member for Belfast, South (Mr. Bradford) raised the important issue that the person who has been guilty may now institute the proceedings and take the steps which eventually procure the divorce. There is no doubt that this legislation offers an easy road to divorce.
But there is something which worries me far more, and that is the fact that this legislation conditions young people not to face their responsibilities for life. A young person can say "I am getting married, but in two years, or five years, I can get out of it." It is that conditioning which is the danger. If, as one learned judge said, one out of every two marriages on this side of the water could go on the rocks, I dread to think what society will be like.
The Minister gave us some figures. I believe that he said that there were 700 divorces last year, and he then told us of the figures before that. We can see how the figures are escalating. In my talk with him, the Minister admitted to me that, as the pressures would go on, there could even be a greater easing in the divorce law. We are here tonight, of course, because of pressures. That is why this legislation has been brought forward.
We must be prepared to buttress the family, to strengthen and to undergird marriage, doing everything in our power to save marriages. Thank God, marriages can be saved. Even those of which one has almost despaired can be built upon again. We should be setting our strength as a Parliament behind a campaign to build up the family, not to destroy it— 350 to buttress the sacred tie of marriage, to strengthen the knot, not to loosen it. That is our duty.
There is in Northern Ireland a great feeling that this is a proposal which runs against the whole ethic of the Ulster people. It is not for the betterment of our society. I have already made my position clear, as have my colleagues. There are provisions in this legislation which we need. I believe, of course, that we could have had a different Order in Council to help the child and to ease the responsibilities of those who have economic hardship, but the order is tied in with another principle, and that principle, I believe, cannot be accepted.
Although the hon. Member for Belfast, South may not have many other supporters for the view which he expressed, I agree with his sentiments. Christian marriage is a thing of human sympathy and compassion. The most sympathetic figure who ever walked this world was the Lord Jesus Christ. I believe that He knew the strains, stresses and hardship which men and women, sinners by birth and practice, have to endure in this life, and He knew what was right for the people of this earth. He set out the only conditions on which the marriage bond could be broken—not with the consent of God's law, but by permission, because of the infidelity of a person who broke the most solemn contract. It cannot be true to say that we are unsympathetic because we take the view of the one who was the most sympathetic person of all.
I want to see children, wives and husbands helped in their difficulty, but this is not the way to help them. I trust that in the vote tonight, which we will not win—but good causes have to fight for a long time before they are carried—we shall show that there are still people in this House who believe in the sacredness of the marriage bond and want the family to return to those great principles that our families had in the past and which made this nation the nation that it has been.
§ 10.21 p.m.
§ Mr. J. Enoch Powell (Down, South)
I congratulate the Minister on the remarkable speech with which he introduced the order. It was remarkable for its comprehensiveness and clarity and it was quite clear that he was not, as is often unavoidable for Ministers, simply reading what others had written. For many months the Minister has made this subject his own. The order which he has presented to the House bears clearly the impress of his own work and of his own views and wishes.
Reference has already been made to the extensive and lengthy consultations, both between the Government and hon. Members and much more widely in the Province, since these proposals were first announced eight months ago. Certainly it would be impossible, I should have thought, within the narrow and constraining limits of the procedure by Order in Council, for opinion to be more sensitively gauged and tapped than has happened.
My hon. Friend the Member for Belfast, South (Mr. Bradford) referred to one of the many conferences on this subject in Northern Ireland—that organised by the Ulster Unionist Party. From that, in which widely opposite, indeed conflicting, views were expressed, emerged a number of definite proposals for the alteration of the order as it then was. In its original form, the order was virtually a reproduction of the 1973 consolidating Act for the law in England and Wales. I think that I am right in saying that every one of the suggestions which emerged from that conference and which were thrown into legislative propositions by my hon. Friends and myself have—either in the form in which they were put forward or, I may say, in a better and more suitable form—found a place in the draft order as it has finally been put before the House tonight.
So this is not a mere reproduction, a mere application to Northern Ireland, of the law as it applies to England and Wales. It is at any rate a genuinely Northern Ireland version of the law of Great Britain in this respect, and it bears the impress of Northern Ireland opinion.
What is more, any hon. Member who heard the Minister's exposition will be pretty convinced that the legislation which 352 this order creates will be superior in form to that which applies in Great Britain. Indeed, in a number of respects —I shall mention only one—I believe it is destined to be the model for future reform of the law—and it will not be a loosening of the law—in Great Britain.
The one respect to which I wish specifically to refer—I want to avoid repeating the many important alterations of the original proposals which the Minister listed in his speech and which were referred to by my hon. Friend the Member for Belfast, South—is Article 43 taken in conjunction with Article 44. The germ of that article, to which nothing in the 1973 Act corresponds, was the general dissatisfaction, when we came to consider this legislation from the point of view of Northern Ireland, with the pure humbug of the English provision for reconciliation. From that came the notion that, instead of that purely formal and unrealistic procedure, there should be some genuine attempt, if not to reconcile, at any rate to rescue from a breaking or broken marriage what was important both in the continuing arrangements between the former partners and, above all, for the children of the marriage. Knowing as I do that the Minister had a considerable personal hand in the framing of that article, I would say that he probably looks tonight upon Articles 43 and 44 of the order with as much satisfaction as upon any of his political work. So, we have not just the extension to Northern Ireland of law uniform with that in Great Britain. We have a substantial improvement upon it, an improvement in which along with many others, I have taken my part. Yet I shall vote against the order when the Division comes at the end of the debate. I shall do so despite my strong belief that, wherever possible, unless a contrary case can be made out, the law in Northern Ireland as a part of the United Kingdom ought to be uniform with the law in Great Britain, uniform in principle and, unless there be contrary reason, uniform in detail. Nevertheless, I conceive it to be right to vote against the order. [Interruption.] I will give the hon. Member for Belfast, West (Mr. Fitt) no cause for jollity or amusement.
§ Mr. Powell
Perhaps the hon. Member will listen instead of making an ass of himself on the Floor of the House.
§ Mr. Powell
I shall vote against the order because the setting of this order, and the proposal to apply the law of Great Britain in this way to Northern Ireland, have no parallel in the other cases that have come before the House.
§ Mr. Powell
There is no parallel in the other cases that have come before the House.
This legislation began in England and Wales with a Private Member's Bill introduced in 1968. During the passage of that Bill the Government declared through the mouth of the Solicitor-General, that they were entirely neutral in the matter. It was a matter wholly for the House; there was no question of the authority of Government; there was no Whip; it was not a policy of the Government. It was for the House of Commons, as a House of Commons, to decide whether and in what form it wished to pass that Bill.
The principles of that Act, and nearly all the details, were subsequently applied to Scotland by another Private Member's Bill, for which, similarly, no Government responsibility was taken, and which was also passed as a matter of individual conscience by hon. Members.
I say that it is unacceptable that law which has been made for Great Britain by free vote of the House, with the Government of the day—in both cases they happened to be Labour Governments—disclaiming all responsibility, should be applied to Northern Ireland by a Government order, for which the Government take responsibility. So far as I know, they have the Whips on, although that is not material to my argument.
It is wrong in principle that that which in Great Britain is a matter of conscience and can be got through only as a matter of conscience should not be a matter of conscience when it is applied to Northern Ireland, but that its application is treated as so automatic that it ought to be done and can be done by the fiat of the Government.
354 There is an alternative course that can be taken—indeed, that would have been taken, if the Government had not proceeded in this way. When it was desired by a majority—not by all—in Scotland to have the law in Scotland changed as it had been changed in England and Wales, a private Member, indeed a number of private Members, came forward with a Private Member's Bill. The law reached the statute book as a Private Member's Bill, voted upon or accepted not as a matter of Government policy but as a matter of the free decision of the House. If there was pressure of opinion, if the Government considered that it was desirable, for the law in Northern Ireland not to remain out of touch with that in Great Britain, I am sure that there would have been no difficulty. There would have been those who would have wished to put legislation forward to be considered upon its merits in the House, by the House. That alternative procedure was always available, and it was the only right procedure.
This has had another, incidental, consequence. Reference has been made to the fact that during this debate, unlike the previous one, almost only Northern Ireland Members have been present in the Chamber. You may be sure of this, Mr. Deputy Speaker, that if the change in the law of Northern Ireland was being proposed in a Private Member's Bill, there would have been a considerable attendance on both sides of the Chamber and both sides of the argument at any stage when decisions had to be taken.
So not only have we infringed what I would have thought was an obvious constitutional and moral principle, namely, that what is a matter of conscience in Great Britain ought also to be a matter of conscience in Northern Ireland, but if we had used Private Member's Bill procedure we should have engaged the interest and concern and responsibility of the whole House in what we were doing.
In 1968–69 I voted against the Second and Third Readings of the Bill for England and Wales. Unlike the hon. Member for Eastbourne (Mr. Gow)— whom the absurdity of sending the Finance Bill into Committee on afternoons and evenings has prevented from remaining on the Opposition Front Bench to hear the rest of the debate which he 355 inaugurated—I have not changed my mind. There are two grounds on which I voted against the Bill then and will vote against the order now.
Reference has been made to marriage as an institution. Marriage is not only an institution, but the description "institution" marks an essential part of its nature. Those who are married in church are marriedin the sight of God and in the face of this congregation".That is to say, it is not only a religious act in which they are joined together, it is also a social act, an act in which they are going to be sustained by society, by those who have witnessed it as representatives of the entire society which maintains and approves that institution. Part of the essence of marriage is to be institutional, and it is the nature of that institution, the assumptions by which their estate is surrounded in the society where they live, which sustain the man and the woman in each individual marriage.
The assumption by which marriage has been sustained hitherto is that it is to be permanent. This legislation inverts that assumption. Legislation which makes it possible for a marriage to be regarded after two years separation as irretrievably broken down and proper to be dissolved by law, has abandoned the assumption that marriage is to be permanent and has substituted the assumption that marriage is revocable. The whole institutional framework of marriage is therefore threatened by the change in the law which was made in 1969.
My other reason is this: I believe that an unhappy marriage, a bad marriage, an unsuccessful marriage, is still far better for the children than a marriage which is dissolved. Obviously I do not state that as an absolute rule to which I believe there would be no exceptions but I am convinced that in the overwhelming majority of cases, so long as the children are young, the holding together of a marriage, however unsatisfactory—I even dare say, however unfaithful or unhappy—is better for those children than the dissolution of the framework of the family itself.
When we say that such debates as this and the corresponding debates for Great Britain are debates of conscience and, therefore, debates for free vote, that 356 means that in them we are expressing, each individually and each personally, our prejudices and our beliefs. Since I intend to vote against this measure, I have explained not only why politically I can do so consistently with my other political beliefs and opinions but also why those non-political beliefs and opinions which obliged me to vote as I did in 1969 oblige me to vote as I shall tonight.
§ 10.39 p.m.
§ Mr. James Kilfedder (Down, North)
I intervened only briefly. I understand the arguments put forward by the right hon. Member for Down, South (Mr. Powell), although I do not fully accept them, about this being a Government-sponsored piece of legislation in contrast to the divorce reform in Great Britain which was initiated by Private Members' Bills. But here we have a piece of legislation which will give comfort to many husbands and wives whose marriage has irretrievably broken down and who are suffering as a consequence.
I understood what the right hon. Member for Down, South said about it being better for the children's sake that an unhappy marriage should continue. But there are many cases where husbands have maltreated their wives brutally and the wives have put up with it on the basis that their marriages ought to continue because the Church says so. In the same way, wives may drive their husbands to behaviour which subsequently they regret and those husbands may put up with their marriages because they believe that for the sake of public appearance the marriages should continue. But in many of those cases it is better for the children that the marriages should come to an end and the spouses separated than that they should continue their brutal battle in the presence of those children, who are not unaffected by what goes on in their presence.
It is many years since the first Matrimonial Causes Act passed through this House in 1854. A member of the Commission which preceeded that Act, Lord Redesdale, said:The law of England which now holds the marriage tie to be indissoluble should remain unaltered… The practice of passing exceptional laws in favour of particular cases should henceforth be discontinued.He believed that there should be no divorce at all. That perhaps would have 357 been all right if no one could get a divorce. But the law was unfair because the very wealthy could come to this Parliament and obtain a special Act of Parliament which would divorce them from their spouse. There was one law for the rich, and another for the poor or not so rich. It did not matter whether the marriage was causing great agony. Anyone who had the money could come here and get a divorce. Anyone who did not have the money had to suffer. That was wrong. It is still wrong.
I remember the remarks made about those private Acts of Parliament, and they created anomalies which should not have been allowed to exist then, and certainly they should not have been allowed to continue to exist in the legislation which followed that 1854 Act of Parliament. Nevertheless it was established prior to 1854 that there could be different standards for people this country. That is reprehensible.
The opposition to the 1854 Bill—and it is well to remember it before the hon. Member for Cardigan (Mr. Howells) leaves the Chamber, since he is the sole Liberal Member present at the moment —was led by Mr. Gladstone. He said that the Billwas fraught with danger to the highest interests of religion and the morality of the people",and he argued at length in Parliament from the scriptures, no doubt like my hon. Friend the Member for Antrim, North (Rev. Ian Paisley), and from the teachings of the Church for the absolute indissolubility of marriage. The Liberal Party has moved on from those days, though it now has in its ranks the hon. Member for Cornwall, North (Mr. Pardoe), who in a recent outburst about the people of Northern Ireland showed that he needed a rest from his parliamentary activities.
We had a number of attempts to reform the divorce law. In 1937, we had another Matrimonial Causes Act—[Interruption.] I do not know whether the hon. Member for Belfast, West (Mr. Fitt) would like to return to the place where he has no doubt spent some considerable time this evening.
§ Mr. Deputy Speaker (Mr. Oscar Murton)
I think that it will help the 358 House immeasurably if there are no sedentary interventions.
§ Mr. Kilfedder
Having spent some time elsewhere, Mr. Deputy Speaker, the hon. Member for Belfast, West is now very spirited.
A. P. Herbert, as he was then, in putting forward his Bill, which was long overdue to correct the law—which continued the anomalies by which the wealthy could get divorce and those who were not wealthy would usually have to do without—said that as the law stood then, those who wished to bring an end to marriage were forced to take one of two alternatives; they must either commit adultery and provide a ground for divorce to their partner or they must commit perjury.
That is not what we would recommend as a basis for the law which was supposed to have the respect of the people. [Interruption.] Mr. Deputy Speaker, I do not know which way the hon. Member for Belfast, West will vote tonight, but I do not believe he should decide where he will go in the Division Lobby until he has gone out into the cold air.
§ Mr. Deputy Speaker
The hon. Gentleman should not make comments about another hon. Member. I appealed for no sedentary interventions. I do not think there should be any reactions to them either.
§ Mr. Kilfedder
The question we have to ask is how much misery must a partner or spouse suffer before he can get a divorce. How much misery must be inflicted on him or her, and how far should the law perpetuate a marriage which has irretrievably broken down and is no longer anything but a burden to the husband or the wife, who may have found someone else and who may wish to have the blessing of a legal union. The purpose of divorce reform is to treat with compassion—that is all I ever ask for these people caught up in this difficult situation—those who are suffering from acute matrimonial difficulties.
Divorce does not create a decline in moral standards, but weakened moral standards have weakened the stability of marriage itself. It is the permissive society and not divorce reform which is the cause of the present unease.
I intend to vote for this order even though I regret that it is not possible to 359 move amendments to it. That is the worst aspect of direct rule—that we cannot move amendments to draft orders. I regret it because there are a number of matters which I should have liked to put forward as amendments. None the less, this is a piece of legislation which will do good. For that reason I recommend it.
§ 10.49 p.m.
§ Mr. William Craig (Belfast, East)
This is one of the most difficult problems to which I have had to address my mind for a long time, because it touches on the conscience, but as well as a matter of conscience, it is a matter of law, and a matter of fundamental human rights guaranteed by the law.
I found the argument of my right hon. Friend the Member for Down. South (Mr. Powell) persuasive and understandable. On the other hand, I look back on my past experience as a solicitor and on the unique privilege and intimacy which exists between solicitor and client, and I remember the enormous tragedies and difficulties that arise out of a marriage which has really broken down. My difficulty is that I feel that people who go before the Church and undertake obligations cannot expect the law to absolve them from their obligations. On the other hand, I do not think that marriage is necessarily an institution of the Church. It is an institution of society regulated by law. Whether we like it or not, or whatever our convictions may be, in my judgment a great many of the citizens of the United Kingdom and Ulster have come to accept that it is more of a civil contract than it is a religious relationship.
In support of that view, I draw attention to the remarkable increase in the number of divorces in Northern Ireland that took place when legal aid was introduced. One can only draw the conclusion that if it had not been for the financial barrier the divorce rate over a long period in Northern Ireland would have been very much higher than it was.
I believe that at present marriages are being forced to carry on simply because the law is inadequate. It is inadequate to such an extent that it is making people dishonest. More than that, it is making their legal advisers connive at dishonesty. It is not a situation in which I as a solici- 360 tor like to be placed, but I should be misleading the House if I did not confess that my firm acted in divorce cases when we knew that the adultery was contrived for the purpose of obtaining a divorce. That cannot be a healthy or good situation for any community.
My judgment as a solicitor is that if two people can no longer live together in an atmosphere of trust and love, the sooner that marriage is broken up the better. Children cannot thrive in such conditions. Anybody who pretends otherwise has not seen the ugly side of a broken marriage.
It is that view that sways me this evening. I agree with my right hon. Friend the Member for Down, South that the procedure for this change in the law is wrong. I should like there to have been a much more liberal and free choice in making this change, but the balance of despair leads me to support the order. I agree with my right hon. Friend that it is a better law than that which exists in Great Britain. I have no hesitation in supporting it tonight becaue I think it will help to bring about a much healthier and happier relationship in our community, and, above all, it will help those unfortunate children who, for one reason or another, find their parents torn asunder.
I only wish we could get our community to face up to the reality of the fact that if they go to a church altar they should not then feel free to turn to the civil power to relieve them of the obligations which they took before their church altar, of whatever description it might be. But in regard to the State, it is unreasonable and irrational to say that people can enter into a contract until death do them part. I shall support the order because I believe that it will help to relieve a great deal of misery.
§ 10.53 p.m.
§ Mr. Dunn
I do not think this is the right place or the right moment to argue about the procedure in the House for dealing with this order. Probably on another day and at another time I shall give a spirited defence of the situation in which the Secretary of State for Northern Ireland, my other colleagues and myself find ourselves.
However, I readily admit that I wish that the procedure were different because 361 my task would not then be so heavily upon me. I frankly admit that this has caused me grave anxieties and some significant difficulties. I, too, have strong beliefs, but the responsibility fell on my shoulders and I undertook what I considered to be a most difficult and sensitive task. I am most grateful to the hon. Members who have rewarded me with kind words about the way I have fulfilled that responsibility. This is bound to be a matter in which strong beliefs and deeply held conscientious opinions are interwoven and involved. I do not want any of my hon. Friends to feel that they must, or are obliged to, go into one Lobby or the other.
If there had been more meaningful ways of discussing the legislation, if there had been a devolved Administration—
§ Mr. Dunn
—or if someone had put down a Private Member's Bill, I would have been relieved of the responsibility. But no one did that and, in those circumstances, it was felt that, because of the representations that had been made and the reports that had been brought before use, the reform of the law had to be proposed to the House.
I have said before to the right hon. Member for Down, South (Mr. Powell) that I am a captive of what the House decided in 1974 and, until the House changes that, there is naught that I, as an individual, can do, though behind the scenes my views are well knows and I think that hon. Members will agree that I have attempted to provide, at every possible turn, more meaningful ways of hon. Members expressing their opinions. The problem can be resolved only with the help of all those in Northern Ireland. The sooner they come to a decision that will bring back the Administration to which hon. Members have referred, the greater will be my pleasure.
I also understand the forcibly expressed views about the concept of guilt. I do not always share those views, but I understand why these views are so sincerely held and I have tried to take them into account in the way that certain language has been put into the draft order.
It is true that, temporarily, there are penalties for guilt when one deceives the 362 law, but again I had a dilemma. How can I say in honesty that the law must hold up a religious morality when in several sectors the civil law has for long been in disuse? I am talking about adultry, lesbianism and so on. I do no believe that it is always necessarily right that a law should uphold a religious morality and philosophy.
There are times when such decisions have to be taken by the individuals concerned in concert with one another and in congregation. When they do so, the law of the land should respect their decisions. At the same time, there are major difficulties when congregations of one mind want to try to impose their views across the wider majority of the community. I am fortunate that, like others, I have the defence of and the belief in Christian principles that guide me into the ways in which I behave. I hope that I shall never have need of what is now proposed, but I must pay due regard to those who do.
I understand the conviction of the right hon. Member for Down, South and I am aware of his own attitude to previous proposed measures of this nature. However, I differ from him because I believe that in many circumstances the future well-being of the child has been severely jeopardised because of the inflexibility of the law to cope with the child's needs. If I were to admit or confess to any relaxation of my belief, it would be because of what I have seen imposed upon the child. Unhappy marriages often do irreparable psychological damage to the the child. At the end of the day some of them are left deserted, irrespective of whether there is resort to the law. Many families are left deserted, and in some instances almost destitute. In compassion I had to take into account some of the impositions that such action has brought in its wake. If I differ at all from the right hon. Gentleman, it is on that one aspect.
A number of questions have been put to me and some of them I shall answer in precise detail by letter. I shall give some general answers to some of the matters that have been raised.
I am advised, and I firmly believe, that legal aid as it presently operates will continue. If there is any need for change, by the decision of the House that power 363 is vested in my right hon. Friend the Secretary of State. On the basis of experience I should not be slow to bring to his notice a need for revision of the legal aid system. The green form system will continue to apply.
As for harmonisation of the law in the United Kingdom, it is right for me to respond to the hon. Member for Eastbourne (Mr. Gow), who is unfortunately in another part of the House attending to parliamentary duties. He carefully explained his position and asked that if I were to have the opportunity to reply to some of the matters that have been raised he would be grateful if I would convey his apologies to the House for not being able to be present.
The hon. Gentleman spoke of harmonisation of United Kingdom legislation. That has never been the attitude of the United Kingdom. There have been several fundamental principles considered for all of the United Kingdom. They have been considered in detail and the application has been left basically to the people and the community of the regions concerned, and in Northern Ireland this is no less of a requirement than in any other part of the United Kingdom. I do not take the view that harmonisation would usefully suit any particular purpose. Indeed, it could bring about a reaction and counter-reaction that would prove difficult to overcome.
I refer to the means and the method by which the order came before the House. I express my appreciation to those who had some kind words to say about it. One or two issues are interrelated. During the consultative months —it was a much more extended period than eight months—I was always available to anyone who wished to discuss the proposed measure.
Although the official Unionist Party made recommendations arising from its conference, of the 25 amendments which were printed and circulated, a major portion had already been determined before the results of that conference were known. Some were adjusted to take account of additional recommendations and representations by the official 364 Unionist Party. But many other organisations throughout the Province made similar recommendations. I should not wish it to be thought that all the amendments emanated from one source. Many people had identical thoughts. If I did not put that fact on record, I am sure that I should receive many telephone calls early tomorrow morning.
§ Mr. Molyneaux
I am grateful to the Minister for giving me this opportunity to make the position clear. I am sure that he will be generous enough to recognise that I did not imply that in my remarks. I said that we regarded it as our duty to reflect—we hoped accurately —the views which had been put to us, and no doubt to him separately, by many groups and individuals in Northern Ireland.
§ Mr. Dunn
I assure the hon. Gentleman that I would not deliberately misinterpret anything that he said. That would not be the way to deal with what I regard as a sensitive subject. Whatever the House decides tonight, further discussions will necessarily have to be undertaken. I wanted to put the record straight. From a wide variety of organisations institutions and individuals in Northern Ireland there was a repetition of the need for further amendment of the original proposed draft.
I could claim some responsibility for one or two of the proposed amendments, not least in Articles 43 and 44. I think that all my parliamentary colleagues, whatever part of the country they represent, would do well to look at the provisions of Articles 43 and 44. I suggest that if it were possible to include the intentions of those articles in the law as it applies to their constituencies, great service would be afforded to the protection of children and conciliation rather than reconciliation—a very overworked word—would be made more meaningful.
I do not think that I need say anything more. I appreciate that hon. Members feel strongly about the order. I hope that they will show that feeling in a sensible and sincere way in the Division Lobbies.
§ Question put:—
§ Question accordingly agreed to.
That the draft Matrimonial Causes (Northern Ireland) Order 1978, Which was laid before this House on 8th June, be approved.
§ The House divided: Ayes 110, Noes 16.365
|Division No. 234]||AYES||[11.08 p.m.|
|Allaun, Frank||Ewing, Harry (Stirling)||Molyneaux, James|
|Armstrong, Ernest||Fernyhough, Rt Hon E.||Morris, Rt Hon Charles R.|
|Atkinson, Norman (H'gey, Tott'ham)||Flannery, Martin||Murray, Rt Hon Ronald King|
|Barnett, Guy (Greenwich)||Ford, Ben||Neave, Airey|
|Barnett, Rt Hon Joel (Heywood)||Forrester, John||Nelson, Anthony|
|Bates, Alt||Freud, Clement||Noble, Mike|
|Blenkinsop, Arthur||George, Bruce||Pardoe, John|
|Boardman, H.||Ginsburg, David||Parry, Robert|
|Bray, Dr Jeremy||Golding, John||Price, William (Rugby)|
|Brown, Hugh D. (Provan)||Gow, Ian (Eastbourne)||Radice, Giles|
|Brown, Robert C. (Newcastle W)||Grant, George (Morpeth)||Renton, Tim (Mid-Sussex)|
|Buchan, Norman||Grocott, Bruce||Richardson, Miss Jo|
|Callaghan, Jim (Middleton & P)||Harper, Joseph||Robinson, Geoffrey|
|Campbell, Ian||Harrison, Rt Hon Walter||Rodgers, George (Chorley)|
|Cant, R. B.||Howell, Rt Hon Denis (B'ham, Sm H)||Rowlands, Ted|
|Carter, Ray||Howells, Geraint (Cardigan)||Sever, John|
|Cocks, Rt Hon Michael (Bristol S)||Jones, Dan (Burnley)||Sheldon, Rt Hon Robert|
|Coleman, Donald||Judd, Frank||Skinner, Dennis|
|Concannon, Rt Hon John||Kaufman, Rt Hon Gerald||Smith, Rt. Hon. John (N Lanarkshire)|
|Conlan, Bernard||Kilfedder, James||Snape, Peter|
|Cowans, Harry||Lamborn, Harry||Spearing Nigel|
|Cox, Thomas (Tooting)||Lamond, James||Spriggs, Leslie|
|Craig. Rt Hon W. (Belfast E)||Lester, Jim (Beeston)||Steel, Rt Hon David|
|Crawshaw, Richard||Lestor, Miss Joan (Eton & Slough)||Thomas, Mike (Newcastle E)|
|Crowther, Stan (Rotherham)||Lewis. Ron (Carlisle)||Thomas, Ron (Bristol NW)|
|Cryer, Bob||Litterick, Tom||Tilley, John|
|Davies, Rt Hon Denzil||Loyden, Eddie||Varley, Rt Hon Eric G.|
|Davis, Clinton (Hackney C)||Luard, Evan||Wainwright, Edwin (Dearne V)|
|Dean, Joseph (Leeds West)||McCusker, H.||Walker, Harold (Doncaster)|
|Dewar, Donald||McDonald, Dr Oonagh||Ward, Michael|
|Dormand, J. D.||MacFarquhar, Roderick||White, Frank R. (Bury)|
|Douglas-Hamilton, Lord James||MacKenzie, Rt Hon Gregor||Wise, Mrs Audrey|
|Douglas-Mann, Bruce||Marks, Kenneth||Woodall, Alec|
|Dunn, James A.||Marshall, Dr Edmund (Goole)||Wrigglesworth, Alan|
|Dunnett, Jack||Marshall, Jim (Leicester S)|
|Eadie, Alex||Maynard, Miss Joan||TELLERS FOR THE AYES:|
|English, Michael||Miller, Dr M. S. (E Kilbride)||Mr James Tinn and|
|Evans, John (Newton)||Mitchell, Austin (Grimsby)||Mr Ted Graham.|
|Alison, Michael||Marten, Neil||Ross, William (Londonderry)|
|Biggs-Davison, John||Mawby, Ray||Woof, Robert|
|Bradford, Rev Robert||More, Jasper (Ludlow)|
|Buchanan, Richard||Page, Rt Hon R, Graham (Crosby)||TELLERS FOR THE NOES:|
|Dempsey, James||Paisley, Rev Ian||Mr John Carson and|
|Dunlop, John||Powell, Rt Hon J. Enoch||Mr Richard Body.|
|Hamilton, Michael (Salisbury)||Roberts, Michael (Cardiff NW)|