§ 'Section 3 of the Matrimonial Causes Act 1973 (in this Part referred to as "the 1973 Act") (which provides that no petition for divorce shall be presented within three years of marriage unless the leave of the court has been obtained) shall cease to have effect.'.—[Mr. Best.]
§ Brought up, and read the First time.
§ Mr. Deputy Speaker
With this it will be convenient to consider the following amendments: No. 1 in page 2, line 8, leave out clause 1.
No. 2, in clause 1, page 2, line 15, leave out 'one year' and insert 'two years'.
No. 3, in page 2, line 15, leave out 'one year' and insert 'three years'.
Government amendments Nos. 27, 35, 36, 37, 38, 39, 40, 42, 46, 47, 57, 48, 58, 59, 49, 50, 51, 53 and 55.
§ Mr. Best
I hope that my right hon. and hon. Friends will not mind my pointing out that there is a free vote on new clause 3—one of those rare and delicious moments when there is a sense of freedom on the Government side of the House. One can vote according to one's conscience, completely untrammelled, and in the interests of justice.
I have no doubt that my right hon. and hon. Friends the Government Whips, whom I hold in the highest regard and affection, will not in any way seek to congregate by one of the Lobbies when I seek to divide the House later this afternoon and try to cast doubt on the validity of my statement that this is a free vote.
I am very grateful to the Department of my noble Friend the Lord Chancellor, which has given me assistance in drafting the new clause. If it were passed in conjunction with the amendment tabled by the hon. Member for Torfaen (Mr. Abse), to which I put my name, it would effectively do away with clause 1, and the new clause would fit neatly into the Bill. It would all make sense and the Bill would go forward as a sensible piece of legislation.
The new clause will enable anyone to present a petition for divorce at any time after the celebration of the marriage. I need not dwell on the existing law, as I am sure it is well known to hon. Members. In effect, there is a discretionary bar on the presentation of a petition for divorce in so far as a person is not entitled to present it within three years from the date of marriage, unless he or she can show "exceptional hardship or depravity." That is an infelicitous phrase, if I may say so with respect to the learned draftsman who coined it, and it has proved difficult of judicial interpretation.
It is a welcome move that the Bill seeks to do away with the difficult ground of "exceptional hardship or depravity." The Bill proposes to do away with the discretionary bar, which has been in existence since 1937, and to impose instead an absolute bar for one year. In other words, it will be impossible in law to present a petition for divorce within one year of the celebration of the marriage.
I shall adumbrate some examples of hardship that may well occur as a result of that proposal if the Bill is 950 unamended. I have no doubt that right hon. and hon. Members have other examples to cite if they catch your eye, Mr. Deputy Speaker.
I appreciate the fears of those who believe that to do away with a bar, even a discretionary bar, and to import what I would describe as the draconian imposition of an absolute bar — a novel feature in our divorce law — would be a signal to the public that the House is cheapening the institution of marriage. There is no evidence whatsoever to support that view.
I speak as one outside the pale of marriage. I shall be put right, no doubt, by those hon. Members who have the happy institution of marriage behind them, if I have got it wrong. I believe people do not think of divorce as soon as they celebrate the marriage ceremony. Perhaps it would be ridiculous to pretend that they do so.
I believe that very few people know of the law of divorce, unless and until they suffer the misfortune of marital breakdown. I suspect that lawyers—I shall not resume the debate that we have just had within the profession—collectively entertain the happy thought that the public know far more about the law than they really do. I believe that there is general ignorance of the law of divorce until people have little choice but to interest themselves in its provisions.
The evidence from Scotland, where there is no time bar on the presentation of a petition for divorce, does not support the view that marriage is thereby cheapened and leads to more divorce. Indeed, the Law Commission's report No. 116 on family law, time restrictions on presentation of divorce and nullity petitions, is set out so succinctly that I hope the House will forgive me if I merely quote from it. It states:in England and Wales the number of divorces in the first three years of marriage is low compared with that for subsequent years of marriage and that (as is to be expected given the existence of the three year restriction on divorce) the proportion is lower than that in Scotland for the same period. In England and Wales the figures, however, increase rapidly in the fourth and subsequent years; and by the seventh year the proportion of marriages ending in divorce in the two countries has become almost equal. This statistical comparison may well be thought to weaken the force of the argument that the three year restriction has a positive role in buttressing the institution of marriage.6 pm
That applies equally to the concept of one year. The quotation continues:If it be accepted that the main effect of the present restriction is to delay rather than prevent divorce, it would follow that the restriction only preserves, for an arbitrary period of time, the legal bond between some couples whose marriage has in fact irretrievably broken down. The restriction cannot compel them to live together, but it can and does prevent them from creating a new legally recognised relationship. This (it may be said) is tantamount to imposing a penalty for having made a mistaken choice of partner: and the penalty may in some cases be severe — for example, a wife deserted soon after marriage might wish to re-marry and have children; a wait of three years"—again, that applies equally to the concept of one year—could make child-bearing difficult or dangerous for the mother and imperil the health of her child. Such cases undoubtedly involve hardship, but possibly not such as would qualify as 'exceptional' for the purposes of an application for leave to present a petition within three years from the date of the marriage.
§ Mr. Favell
I am grateful to my hon. Friend for giving way. My intervention will save me making a speech later. [HON. MEMBERS: "Hear, hear."]
I have studied the figures for divorces in Scotland and England for three years and subsequent years. It is 951 interesting that the figures are now the same after the fifth year. By the end of the fifth year, the proportion of divorces in England is now greater than in Scotland, although in the first three years it is extremely difficult to get divorced. The most important point is that if parents are compelled to live together for three years, or have to remain married, children could be born who will ultimately suffer. Children suffer from divorce more than anybody. To encourage people to stay married who, subsequently, will be divorced, and who might have children who otherwise would not be born, is a grave mistake.
§ Mr. Best
I am grateful to my hon. Friend. The approbation that greeted his comment that he would not make a speech will have been exceeded only by the approbation as a result of what he has just said. He has helped me a great deal.
The present law is not an absolute, but a discretionary bar. A person can present a petition for divorce within three years as long as he can show exceptional depravity or hardship. Those of us who practise in the matrimonial courts will know that that has become a fiction in many respects. The case of Fay v. Fay in the House of Lords requires a recitation of the allegations that are made, which only increases the bitterness in divorce. Before that case, it was easy for someone to go before a particular judge, who might have thought that the provision of exceptional depravity and hardship did not add a great deal to the law, and be granted an application to present a petition for divorce within three years, more or less on the nod. I say, without identifying the judiciary before which it happened, that I found that within my own experience. I have no doubt that many of my hon. Friends who are lawyers have discovered the same thing. There was great disparity between judicial interpretations of exceptional depravity and hardship.
It is interesting that a petition for divorce could be delivered before the expiry of three years if people made an application under those provisions. That contention is supported by the figures. The Law Commission, in its report No. 513 of the 1982–83 Session of the House of Commons, found that a high proportion of applications for the presentation of a petition for divorce within three years of marriage were successful. In fact, it was found that the failure rate was only 5 per cent. In other words, under the present law, 95 per cent. of those in England and Wales who wish to present a petition for divorce within three years and hang it on the basis of exceptional hardship or depravity can now do so within three years. Therefore, effectively, there is no bar at present. I hope that that is an endorsement of what I am seeking to do in the new clause—to ensure that what is now largely the practice is enshrined in legislation.
§ Mr. John Page (Harrow, West)
My intervention may save the House a speech from me, too.
Has not my hon. Friend put an Exocet on his own case? The fact that 95 per cent. of cases succeed means that there were exceptional reasons for that. Therefore, it is sensible to leave things as they are, let the exceptional cases be obviously shown and let the other people go on to try and make the best they can of the dicey business of trying to stay married for three years.
§ Mr. Best
I am afraid that I cannot agree with my hon. Friend, much though I am loth to disagree with him. I am 952 forced to say to him that the Bill proposes an absolute bar for one year. The exceptional cases will have no relief and no chance. Those people will have to live in misery for 12 months, technically married, although they may not live together, before they can present a petition for divorce.
§ Mr. Anthony Nelson (Chichester)
Surely the point is that things will not remain the same. The point of the clause is that a new restriction will be introduced by the Bill which will cause great hardship, unless my hon. Friend's new clause is carried.
§ Mr. Best
Again, with unerring accuracy, as we have come to expect, my hon. Friend has put his finger on the point. It is a new restriction since 1937; it is a novel concept in the law of divorce that there should be an absolute bar on the presentation of a petition for divorce. That is one of the reasons why it is entirely wrong for the clause to be in the Bill.
I said that considerable cases of hardship might occur. By "considerable" I mean considerable in extent rather than numerically. Only a few people who might be affected by an absolute bar would want to present a petition for divorce, although the statistics do not show that to be so at present. The numbers of those who want to remarry within one year of a divorce or the presentation of a divorce petition, or who want to form another relationship, which is sexual and might lead to marriage, might be small, but are we in the House to say that just a few do not matter? Are we to say that willingly and knowledgeably we are visiting hardship and distress on those people simply because, numerically, they are few? I hope that that is not the intention of the House.
Those people might form another association within that year, when the marriage has irretrievably broken down and there is no hope of saving it. There might be a sexual relationship, but the Legislation that the House will pass will show that we care little about adultery. That is precisely what will happen. There will be adultery — condoned condoned adultery if you like—because those people will not have the chance to present a petition for divorce within three years.
By preventing people from presenting a petition for divorce within three years, those people who find themselves in difficulty in marriage, who go to a solicitor, who then perhaps initiate proceedings for divorce and who now get the benefit of court welfare officers and all the support that the divorce court can give, will be denied that assistance for that period of 12 months.
The fundamental objection to what is proposed in the Bill is that any bar is illogical. The sole ground for divorce under our divorce law is the irretrievable breakdown of marriage. That can happen at any time after the celebration of marriage. Why put a bar of 12 months on it?
When we say that irretrievable breakdown is the sole ground for divorce, why do we say that it cannot happen before the expiry of 12 months? Why not 18 months, two months, two years or any other period? Not only is there no logical reason for saying that it should be 12 months, but there is no logical reason for saying that there should be a bar at all when one considers that a marriage can irretrievably break down at any time subsequent to the celebration of the marriage.
The reason for there being a 12 months restriction in the Bill is clear. It is "a purely social compromise". The only real reason for a one-year baris historical and the result to which the history gives rise.953 Those are not my words but the words of Sir John Arnold, President of the Family Division of the High Court. He began his submission to the Special Standing Committee, on which I had the privilege of serving, by saying:The purpose of Section 3 of the Matrimonial Causes Act 1973 was no doubt to help to preserve marriages which encountered early difficulties. The justification, if there be one, for the alteration sought to be introduced by Clause 1 of the Bill is that the provisions of Section 3 have not been successful in achieving that objective. While it undoubtedly is true that the persons affected by the provisions of Clause 3 are most often young and that the marriage has not yet, in many cases, become established at the point of which the relevant stresses occur, these factors by themselves do not establish that any greater maturity in the spouses or in the marriage should be likely to lead to its prolongation. This is not only because there is no inherent reason to suppose that any particular marriage would, if prolonged, be likely to succeed but also because the embargo contained in Section 3 is an isolated embargo against divorce and not one which in any sense controls the alternatives available to those who are disenchanted with their marriage; these include a legal claim for judicial separation which is not subject to any time bar, an informal separation either within the home or by leaving it and the establishment of a new, though unhallowed, relationship. All these courses are wholly destructive of marriage but do not provide any socially acceptable alternative. The escape provided within Section 3 is not widely embraced. There were 1,906 such applications in 1982. This figure may be compared with 147,763 decrees nisi granted in that year".—[Official Report, Special Standing Committee; 22 March 1984, c. 75.]It is, therefore, apparent that not many people are waiting for the expiry of the three-year period before wanting to present a petition for divorce.
§ Mr. Humfrey Malins (Croydon, North-West)
Given that the first few months of marriage are often the hardest, when couples are finding it difficult to settle down together—I am not speaking of myself and my wife—does my hon. Friend not fear that if there were no bar to divorce couples unhappy in their first few months might quickly try to get divorced, whereas a bar of, say, a year—remembering that we in this House, the churches and many others want to buttress the institution of marriage — might result in those marriages staying together, thereby slightly strengthening the institution of marriage?
§ Mr. Best
The statistical evidence is against my hon. Friend. The comments that I have made arising from that statistical evidence, and the experience in Scotland, are also against him. In any event, it should not be the function of this House—nor is this House capable of doing so—to force people to remain married when the marriage has irretrievably broken down. It can only cause misery if we force people into that situation.
My hon. Friendthe Member for Croydon, North-West (Mr. Malins) must appreciate that temporary difficulties in marriage—within, say, the first few months—do not amount to irretrievable breakdown which gives rise to the presentation of a petition for divorce. Unless he thinks that the courts give no scrutiny to these matters and do not impose the law, his argument falls to the ground.
We in this House want to see legislation which will strengthen and support the family, but that is not achieved by ill-conceived and logically insupportable legislation. At present, we see in Britain the tragedy of one third of all marriages failing. Why do they fail? Therein lies a 954 capacity for a great debate into which I shall not be tempted. However, a much respected body, the Study Commission on the Family, recently reported:We do not know the incidence of marital breakdown in the past, but the evidence supports more than a hypothesis that the divorce figures simply reflect increase in marriage and easier financial support for divorce. The most plausible explanation of the divorce figures for the past two decades is that they reveal a decline from the post-war numbers, followed by a rapid and equally continuing rise which is related to social and cultural changes much more fundamental than amendments to the terms of a somewhat limited welfare scheme.Moreover, because the increase in divorce is a widespread phenomenon in Europe, and is not exclusive to this country, it cannot be levelled at our present divorce law. The figures for divorce, sad though they may be, have increased steadily in the last 25 years. Even if one wanted to blame the law for the increase—and I have no doubt that some hon. Members wish to do that, and it is true that there has been a sharp increase since 1971 — the problem, if there is a problem with the law, lies in the change from a fault to a no fault concept of divorce and has nothing to do with a restriction placed on the presentation of a petition for divorce. The two are completely separate issues.
I shall not enter into that argument because it goes outside the ambit of this debate. But I ask those who are seeking to blame the law for the increase in the incidence of divorce to blame the substantive law in changing from a fault to a no fault concept, rather than seeking to blame it on the absence of a restriction on the presentation of a petition for divorce. I do not believe that the law has caused an increase in divorces, but that is a debate for another day.
I am not alone in believing that there should be no time bar to presenting a divorce petition. The noble Lord Denning in another place moved an amendment to abolish any time restriction. I know that some hon. Members, particularly Opposition Members, may not always agree with some of his views, but it is universally acknowledged that he is extremely experienced in divorce and has been largely responsible for our present divorce law.
The noble Lord said that, as a matter of general principle, he wanted to see an amalgamation of the laws of Scotland and England. He thought that they should be uniform on this matter. He felt that if the two countries remain separate it would be easy enough for a couple to live in England and know that they must go to the divorce court in England and wait for three years, or whatever the period may be. He asked what would happen if a Scotsman married an English woman, or vice versa. To which jurisdiction should they go? It involved complicated research into the Domicile and Matrimonial Proceedings Act 1973 to determine that matter because a wife can and does have a separate domicile from her husband.
The noble Lord also pointed out to the other place that the Law Commission had drawn attention to the good working of the Scottish system, where there is no time limit and where a few marriages only break down within the first two or three years. In the noble Lord's experience, those marriages broke down only in extreme cases where the husband or wife went off with another person and perhaps had another child. That may answer the point made by my hon. Friend the Member for Croydon, North-West.
955 I believe this to be an important new clause, and I hope that the House will forgive me if I have been somewhat lengthy, but I wanted to deploy all the arguments that I believed to be valid.
No one can produce any evidence to show that a three-year bar, albeit discretionary, has saved one marriage, but we know of the considerable hardship that can occur from a one-year restriction. Should we in the House say that we must support legislation when we know that there will be hardship but cannot be sure that there is any benefit? A restriction —
§ Mr. Best
If my hon. Friend is seeking to catch your eye, Mr. Speaker, no doubt he will have done his own research and will be able to give the figures, if he has been able to find any. If he has not been able to find any, my point holds good.A restriction on the presentation of a petition for divorce can only shape an attitude of mind; it cannot save a marriage.I use those words in answer to my hon. Friend because they are not mine; they are the words of the Law Commission. The Law Commission's working paper argued for an outright abolition of any restriction and used the words:The evidence does not suggest that there would in fact be any significant number of precipitate divorces.I use the Law Commission to answer my hon. Friend. I do not pretend to have sufficient evidence or knowledge and I am a lawyer.
§ Mr. Harry Greenway (Ealing, North)
Is not my Friend making a non-point? There is no statistical evidence one way or the other.
§ Mr. Patrick Nicholls (Teignbridge)
My hon. Friend has spoken as a divorce law practitioner. Has a couple ever come to see him to whom he has said, "You have only been married a year. You have not yet been married for three years. There is no exceptional depravity", and the couple has said, "If we cannot have a divorce for three years, we will have a reconciliation"? I doubt whether my hon. Friend has ever had that experience.
§ Mr. Best
I have not had that experience. My experience is that where people have discovered that their marriage has irretrievably broken down they dig up all the muck that they can to ensure that they can prove to a judge that there are grounds of exceptional depravity or hardship so that they can present a divorce petition within three years. That marriage will not be saved by having a one-year restriction or by them looking to the law to find that the law says that irretrievable breakdown cannot occur within 12 months. That is what the House will be saying if we pass the Bill unamended.
My hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) who supports this new clause spoke in the Special Standing Committee — [Interruption.] I hope that that strengthens my case. I am sure that it does. My hon. and learned Friend is a most persuasive advocate. He came to the conclusion that people are ignorant of the three-year restriction on divorce, 956 so it cannot affect their attitude or that of the public to marriage. That is the sole reason for having any restriction. There cannot be a time bar that has the dichotomous effect that for one year it makes people wish to stay married, but all of a sudden thereafter makes them want to divorce. If we abolished the time bar, all that the new clause would do would be to signal that divorce is not a matter that should be undertaken unless circumstances justify it.
If the Bill is passed, it will concentrate people's minds on divorce after 12 months by saying, "You can now think about divorce if you want to." It is not right that the House should do that. Divorce should be contemplated only where a marital breakdown has tragically occurred. Legislation should not point people towards divorce. That is what would happen if the Bill were passed without the new clause.
There is a duty on the House to pass good law which can be defended in logic, is of benefit to people and does not create terrible hardship for a few. If the Bill goes through unamended, we will bear that responsibility, and that is why I urge all hon. Members to support my new clause.
§ Mr. Ivor Stanbrook (Orpington)
On a point of order, Mr. Speaker. If my hon. Friend the Member for Ynys Môn (Mr. Best) were to be successful and his new clause were to become part of the Bill, it would be incompatible with clause 1 as it stands. For that reason, as I understand it, my hon. Friend has put his name, as have I and the hon. Member for Torfaen (Mr. Abse), to amendment No 1 which seeks to delete clause 1. In that case, Mr. Speaker, will you say that you will allow a separate Division on amendment No. 1?
§ Mr. Alex Carlile
In so far as there is evidence, it suggests that the average man or woman does not know how long he or she must wait before he or she can petition for divorce. The first time that the potential petitioner discovers when he can petition for divorce is when he walks into his solicitor's office and asks for advice. In almost every case, he walks in without the other spouse. If less than three years have passed since the date of his marriage, the solicitor tells him that he cannot petition for divorce until he has been married for three years, unless he can show exceptional depravity or exceptional hardship.
The petitioner, aided perfectly conscientiously and honestly by that skilled solicitor, and in difficult cases by the advice of counsel, can easily construct a convincing case of exceptional hardship and depravity. As the hon. Member for Ynys Môn (Mr. Best) said, that is why 95 per cent. of cases succeed. It is not because there is exceptional hardship or depravity in 95 per cent. of cases. Anyone who thinks that is totally naive, has no experience of the subject or the jurisdiction, and does not appreciate that the skills of lawyers aided by the exaggerations of their lay clients, and sometimes by the misogyny of some judges, can easily obtain leave for divorce within three years. It is wrong that the law should be in that state, and that the present bar should be a discretionary bar, through which the client and the legal profession can wangle their way so easily.
957 The hon. Member for Ynys Môn, who moved the new clause so ably and fully, will agree that the decision in Fay v. Fay makes little difference. Advisers must be more careful, put more paragraphs in their affidavits, be more lurid in their descriptions of alleged depravity, and more pathetic in their descriptions of alleged hardship. The present law does little credit to Parliament, the legal profession, the institution of marriage or the regrettably necessary institution of divorce.
The problem presented by clause 1 highlights some of the major faults in the Bill. The Bill and the clause represent part of the piecemeal reform of matrimonial law. It is wrong that we are discussing a Bill containing provisions to alter the time bar, however that may be done, which does not also include meaningful provisions for conciliation.
The remedy against divorce in the early stages of marriage is not to be found in general moral judgments. We must face the fact that any time bar imposed by Parliament involves a general moral judgment. The remedy against divorce in the early stages of marriage is in conciliation, bringing the parties together, discussing the issues which have arisen as differences between them and persuading them, where appropriate—in some cases it would be inappropriate — that they should give marriage another try.
I do not believe that a time bar assists conciliation or that people will be discouraged by a time bar if they have fallen out so seriously within a few weeks or months of marriage that they are going to solicitors to seek to petition for a divorce. A time bar would simply make them wait a few more weeks or months.
This subject was fully debated in Committee, and I commend to right hon. and hon. Members the views of Sir John Arnold, President of the Family Division of the High Court, which the hon. Member for Ynys Môn mentioned, and the views of Lord Scarman, who appeared to believe that a time bar provision was illogical.
There was no time bar for divorce before A. P. Herbert's Bill in 1937. It was difficult to obtain a divorce because it was expensive and legal aid was not available. The time bar arose as a parliamentary compromise when that Bill was being discussed. For 45 years that parliamentary compromise continued, albeit in an amended form as the years passed, against fierce and cogent criticism.
§ Mr. Stanbrook
Has the hon. and learned Gentleman considered that before 1937 it was difficult to obtain a divorce because of the restricted grounds for divorce? When the new measure was passed, the natural response of the majority was to say that at least under the new liberal conditions for easier divorce there should be a restriction within the first three years. Was that not reasonable?
§ Mr. Carlile
I do not wish to return to the difficulties that obstructed divorce before 1937. It created much unhappiness and hardship in the community. We are specifically debating time bars. Clause 1 and the next new clause represent yet a further parliamentary compromise, without coming to grips with the logic and merits of the issue. For those reasons, I shall support this new clause.
§ Sir Edward Gardner (Fylde)
Clause 1, which we are considering carefully because we must reach a decision 958 about it, reflects exactly the recommendations of the Law Commission. It removes from our divorce law what many people consider to be an obnoxious provision — the three-year bar except for cases of exceptional depravity or hardship.
When we consider the problem, it is essential to make the clear distinction between an absolute bar and a discretionary bar. The present three-year bar exists to prevent a divorce petition from being presented for three years of marriage and it is a discretionary bar. The court hearing the facts of the case can make up its mind whether the bar will prevent the parties from presenting a petition. However, the court has only two grounds upon which to make up its mind—exceptional depravity or exceptional hardship.
The House should realise as a matter of fact that since 1949, when the case of Bowden was decided, the courts have not administered the law strictly. They have been more and more inclined to grant petitions merely on the plea of exceptional hardship or exceptional depravity. What is more important—not everyone in the House may know this—the judges in the Family Division are disinclined to allow a divorce on the ground of exceptional depravity. If both grounds are pleaded, judges will almost always grant a divorce on the grounds of exceptional hardship.
As has been said at least three times — I do not apologise for repeating it—it was only in 1937, when Sir Alan Herbert's Bill came before the House, that the three-year discretionary bar was introduced into our law. Clause 1 removes that three-year discretionary bar and substitutes a one-year absolute bar. Another important factor that should be considered before anyone decides how to vote tonight on whether we should keep the law as it is or whether we should have no bar, or a one or two-year bar, is that only the parties to a divorce who have had to rely on the grounds of exceptional hardship and exceptional depravity can understand the distress and humiliation that they bring to the parties. Anyone who must rely on those grounds plunges into a sea of acrimony that drowns, and must in almost all cases drown, any hope of future understanding between the parties and, more importantly, with their children. Those who make such allegations and counter-allegations have hardly any hope of coming to sensible and unemotional decisions about the future of their children or, indeed, about the financial arrangements that will ultimately govern their lives.
I am sure that no one—I speak with confidence—in the House wishes to weaken the institution of marriage or undermine family life. However, I believe—if I did not hold this opinion firmly and steadily I would not say that we should have a one-year bar as set out in the Bill—that no law passed by Parliament will mend a broken marriage. No law that the House can pass will make a failed marriage succeed or keep together the two parties to a marriage if one or both of them have decided to separate. The edicts of the Church and the consciences of its communicants may achieve that, but the civil law never can.
The difficult question is, what purpose does a time bar serve? It has been rightly said that the Scots do not have a time bar. They have never had one, and when it was suggested that they should they rejected the argument out 959 of hand. The Law Commission discovered that there was no convincing evidence that a time bar buttressed a marriage or generally helped the stability of marriage.
My fear is that, if we remove the time bar completely, we shall risk misunderstanding in the country at large. We could give the impression, although it would be false, that Parliament did not have the respect for the institution of marriage that it clearly does.
§ Mr. Andrew Rowe (Mid-Kent)
It could equally be argued that the country might believe that we have once again learnt from Scottish experience, as we have often been proud to do.
§ Sir Edward Gardner
That view troubles many people, including me. It is difficult to answer my hon. Friend's point. There are many reasons why I support that view, but I take into account what was said in evidence to the Special Standing Committee by Sir John Arnold, the President of the Family Division. He believed that, if we removed the time bar altogether, the country might believe that we were denigrating the institution of marriage.
Lord Scarman said something which hon. Members might wish to bear in mind when they go into the Division Lobby. In his evidence to the Special Standing Committee he said that the positive effect of a time bar might be slight,but it acts in favour of impressing uponthe minds of young people the factthat marriage is not an ordinary contract, but a very important institution.The House will agree with that, and it is because of those words that I turn my back on logic and certainly on my instinct that the Scots have something that we should follow. Perhaps my argument is as much psychological as logical. But I shall support the Bill as it stands.
§ Mr. Abse
I believe that the only difference between the view presented by the hon. Member for Ynys Môn (Mr. Best) and that presented by the hon. and learned Member for Fylde (Sir E. Gardner) is that the hon. Member for Ynys Môn is urging upon us that we create a framework of law in which a man can get married on Monday, quarrel on Wednesday and file a petition on Friday, whereas the hon. and learned Member for Fylde, going along with the view of the Government, tells us that we should create a new framework of law which has the effect of a man or woman being able to marry without excessive difficulty every 12 months.
The House has so far been presented with only two choices—either that there should be no bar at all, or that there should be a bar of 12 months. Those are not the alternatives before the House. That is why, for the support of hon. Members on both sides of the House, I have put down an amendment, the effect of which would be to wrench clause 1 completely from the Bill. I shall explain to the House in due course what should be done.
At a time when Britain is heading to the top of the divorce league in Europe, and when, if the present trend continues, one in three marriages will end in divorce, it is extraordinary that we are being asked by the Solicitor-General to ensure that in future anyone should, without procedural or substantive restriction, have the right to petition for divorce, not as now after three years, but after 12 months of marriage.
Whatever justification may be advanced for this extraordinary proposition by the Solicitor-General, surely it defies all the canons of common sense and mocks at all 960 our talent for political divination when we are told that, despite making divorce so rapidly available, the electors will not believe that, by the clause we are being asked to pass, we are declaring marriage to be a transient state, capable of being repudiated almost at whim.
We are being invited by the Government, fortunately in a free vote, to take this step without any legislative approval, to save legal aid money by connivance between the Treasury and the Lord Chancellor's Department, after the special procedure system has been introduced by order with such effect that almost all divorce decrees are granted without any kind of judicial supervision, judicial care or judicial hearing. We are asked to pass this clause, knowing that despite the fact that we are dealing with so young a marriage as to be measured only in months, and despite the fact that constant pleas have come for our divorce procedures to have in-built conciliation procedures, the Government are still brooding over the painfully inadequate recommendations of the Treasury-dominated interdepartmental committee on conciliation.
Worse, we are being asked to grant this easing of divorce to a very young marriage at a time when, far from augmenting reconciliation and conciliation services, the Government in their Home Office paper of 1 May revealed that they are hell-bent on withdrawing probation officers from matrimonial work, refusing to accord it the priority it desperately needs.
Many of us are opposed to the clause, as the debates showed in Committee. Although we are congruent in our conclusion that we do not want the clause, we present our anxieties with different emphases. Some find it morally offensive, some oppose it on pragmatic grounds, and some are outraged by its absurd illogicality, although let me say, in fairness to the Solicitor-General, that logic is the one attribute which he has never claimed for the clause to which he, like the Lord Chancellor, is so strangely attached.
The first and oft-repeated justification for the proposed change is that the existing rule, which requires that anyone seeking a divorce within the first three years of marriage has to establish exceptional hardship or exceptional depravity, causes distress and ill-will. That is the first argument that we have heard justifying it. Since, in cases of exceptional hardship, ill-will in any event is almost inevitable since much of the distress can be avoided by waiting for three years before obtaining the right to remarriage, and since, in the meantime, a decree of judicial separation can be obtained without difficulty which in every respect, apart from the capacity to remarry—maintenance, property, custody and access to children—safeguards the petitioner, I do not find that argument overwhelming.
I know that we live in an era of instant politics and that there is a mood around of "now, now". Perhaps those of us of my age who had to wait years—in my case six years because of the war—before we took the step at quite a late age to marry have a different sense of time. When copious tears are shed because people may have to wait before they have another marriage, and when we hear of the hardship that is caused, I think of the divorce rate of those who remarry. Common sense tells me—there seems to be a lack of it in discussing this matter—that there are good reasons, not bad reasons, for delaying remarriages. There is a syndrome known as the rebound, 961 and I see no reason why we should incite people to jump out of bed from one marriage and jump into bed with another.
§ Mr. Abse
The hon. Member has had his say.
The Lord Chancellor may savagely tease the Church, as the hon. Member for Ynys Môn did in effect when he said that in opposing this the Churches are encouraging people to live in sin. I find such language, which has been used elsewhere, anachronistic and, in the pill era, totally unrealistic. For my part, aware that 40 per cent. of second marriages end in divorce, I do not understand the enthusiasm of the Lord Chancellor to create a framework of law which will facilitate the exchange of marriage partners every 12 months.
The second reason justifying the change is that there is an unacceptably wide divergence of judicial practice throughout the country in interpreting the requisite degree of hardship or depravity. That may be the subjective view of some, but the very figures which the hon. Member for Ynys Mon was quoting show that that is not happening. When he tells us that 95 per cent. of those making applications each year for a speedy divorce have their applications granted and that only 5 per cent. are rejected, surely it is a little droll to plead that we have to change the law because of a diversity of this kind.
§ Mr. Abse
Other hon. Members want to speak. The hon. Member has to face the fact that that 5 per cent. consists of only 31 cases. The slight delay—it is only a slight delay—which they suffer before being able to remarry, and the inconvenience of the judiciary in having some interpretative difficulty, seems little enough reason for a clause to be passed which brings with it—
§ Mr. Abse
No—the certain danger that the House will be believed by many outside to be condoning the easy in, easy out, view of marriage. If we make divorce easier to obtain after 12 months of marriage we will correctly be widely regarded as condoning a further erosion of the stability and dignity of marriage.
§ Mr. Best
The hon. Gentleman seems to be saying that there is now a facility for granting applications for divorce within three years, on the ground of exceptional hardship or depravity. He knows as well as I do that, following the House of Lords' decision, if such a petition is presented to a court a whole lot of muck has to be raked up and put in affidavit form, which is not commensurate with amity in such tragic matters. The hon. Gentleman cannot have it both ways. He accuses me—
§ 7 pm
§ Mr. Abse
That is clearly a case of exceptional hardship. In such a case there would be no difficulty in 962 obtaining a divorce under existing law. I argue, not that we should keep indefinitely an unsatisfactory law, but that we must have the capacity to tolerate doubt. We must not try to resolve the problem without taking account of the consequences to far larger numbers of people than the few who suffer exceptional hardship.
§ Mr. Abse
I am anxious to continue. It is clear that many hon. Members wish to speak.
The move is partly the result of the way in which the press and television present the issue. It is certainly not the inevitable public perception which causes me to resist the clause. The prime duty of the legislature when considering divorce, and the only overwhelming reason which the legislature has for intervening in an essentially personal matter, is to ensure that the legislation protects the weak and disadvantaged. Others attempt to justify intervention by the legislature in divorce. I understand the churchmen's claims that those views are weighty, but I believe that our duty to interfere in such personal relations when a marriage ends stems from the need to protect the weak and, above all, the children.
The House should take account of the number of births conceived pre-maritally or in the first year of marriage and realise how dangerous it will be if, without any conciliation procedures, we increase the opportunities for divorce as soon as 12 months of marriage have elapsed.
Of the 570,000 legitimate live births in England and Wales in 1980, more than 70,000 were in the first 11 completed months of marriage. Another 70,000 were to mothers whose current marriage had lasted for between nine and 20 months. Most of the children were conceived in the first year of marriage.
As only 14 children each year are involved in marriages which are dissolved on the ground of exceptional hardship, the House must understand that it is putting at risk 140,000 babies each year whose parents, unlike at present, will find that without any legal plug or prohibition they can proceed to divorce.
It may be argued that I cannot prove that couples will take the opportunity to divorce after 12 months if it is given. It is not for me to prove anything. The Law Commission rightly said:The difficulty of predicting the effect on public attitudes of any changes in the law casts a heavy onus on those who seek to justify reform.We are not asking for the change. Those who are must satisfy us that the change will not put at greater risk young marriages in which couples have hardly settled down.
I have been married for 30 years—to only one wife. I have quarrelled during the whole of the 30 years and have had reconciliations throughout the years. If I did not quarrel, I should not experience the sweetness of reconciliation. The tolerance threshold of young people is probably lower than ours. As I get older my threshold of tolerance becomes higher. I believe that I indulge my wife—as she indulges me—more than I did in the first 12 months of marriage.
Those who want the clause have a duty, which they have not yet discharged, to satisfy us that the change will not put at extra risk marriages which would otherwise survive and within which 140,000 children a year are born or conceived. It is no use arguing that children can be born or conceived after three or four years of marriage and the parents then petition for divorce, or that a woman could 963 be carrying a child, perhaps unknown to her husband, in the fourth or fifth year of marriage. The statistics show that large numbers of children are born or conceived in the first 12 months of marriage. Many couples decide to marry when they find that the girl is pregnant. That might hasten the marriage. Some couples decide to marry in order to have a child. We should not be surprised that the statistics for the first 12 months of marriage are so high. We should realise the danger in the proposal.
We shall invite trouble if after 12 months we give the opportunity to a young parent to dash, without legal constraint, to the divorce court after the inevitable quarrels in the early settling down months of marriage. The House must weigh the risks of more men becoming fathers only after they have ceased to be husbands against the claimed advantages of the clause.
I shall vote against the clause, and I ask the House to wrench it from I he Bill, because I believe that it will delay the coming into effect of a divorce law emancipated entirely from the miserable doctrine of the matrimonial offence. Today we effect to have a divorce law founded on the doctrine of matrimonial breakdown. Hon. Members may ask how we can keep marriages together when they have broken down. We must face the fact that all that is required today is not real evidence of breakdown, but evidence that a partner has been unreasonable in his or her conduct, or committed adultery. Adultery may not be evidence that a marriage has broken down. Sometimes adultery is a plea for help rather than an affirmation of breakdown.
Our divorce law is founded on the doctrine of matrimonial breakdown, but evidentially the breakdown is established by declaring matrimonial offence. As a result, miserably we emblazon abroad, to the detriment of the children and the partners, the fact that one partner is said to be vicious, cruel or unreasonable and the other perhaps adulterous. Fortunately, the law commissioners are currently seized of the matter and are examining the grounds of divorce and the issue of breakdown, and we all know the way in which they and, indeed, all who are concerned with the present position are moved.
Lord Scarman, in his evidence to the Committee, knowing what we were moving towards, said:From what I have seen of the moving social picture, I believe that a change in the grounds for divorce—if such a change comes — is likely to be the introduction of one year's separation as the ground for divorce. It is likely to be exclusively on that ground, so as to eliminate conduct from the consideration of the petition for divorce. If that happens, the new ground will have built into it the one-year bar."—[Official Report, Special Standing Committee, 22 March 1984; c. 83.]If the clause is passed, what Lord Scarman and I look forward to, which is almost universally yearned for, is less likely to be brought about speedily, for we will have made divorce easier, and we will be seeking later, when eliminating conduct, to make it more restrictive.
All my experience in divorce law shows that to relax rules and then seek to tighten them is a formidable political task. It is because of this that so many bodies are urging us not to make this change until the law commissioners have reported. That is the strongly expressed view of those who wish finally to free us from the anachronistic and severely damaging doctrine of the matrimonial offence which is so conductive to acrimony and hatred between the parties and their children.
All around us there is a plea for postponement. This is asked for not only by the Law Society. It has been asked 964 for by the Conservative National Women's Council, the Association of Conservative Lawyers and by numerous bodies from all parts of the political spectrum. What is this desperate hurry while the law commissioners are sitting? We have suffered the inconveniences, which I do riot dispute, since 1937. Why are we now being urged at all costs to make this change? 'Why should we implement a bad clause, inherently illogical, when a little toleration of delay until the Law Commission has reported could result in a clause which would free us from a matrimonial offence, yet have sufficient weight for it not to be perceived, as the clause will be, as the establishment of quickie divorces devaluing the institution of marriage?
To those hon. Members who say that the delay will be too long, I say that we should tolerate some delay. I say to those hon. Members who maintain that the law commissioners may take years, and that the change will not be implemented for years, that they should remember that part II of the Bill arose originally from an Adjournment debate, in which the hon. Member for Cambridgeshire, South-West (Sir A. Grant) and I spoke, and that it was followed by the setting up of an all-party committee. I had the privilege of being chairman of that committee and of making repeated representations to the Lord Chancellor, who was wholly opposed to part II of the Bill at the time, and, because of our persistence, here we are already in 1984 considering a comprehensive Bill dealing with the financial considerations.
If we have the political will, of course we can expedite the Law Commission report. If the Lord Chancellor would pay more attention to the law commissioners, and if he would augment his staff, who are sadly depleted, I believe that there could be a speedy report on this matter, in the same way as we have had two reports on the financial matters.
Therefore, I say to hon. Members, do not be tempted, do not be seduced into believing that we have to do something. There are difficulties, but they are not of such a kind that they need to bring about a change which will be seen outside the House, whatever sophisticated arguments are advanced, as indicating that we are careless of the institution of marriage, and indifferent to the consequences that divorce has upon the family.
§ Mr. Roger Sims (Chislehurst)
I agree with one or two of the last sentiments expressed by the hon. Member for Torfaen (Mr. Abse), although I would not necessarily reach the position from the arguments that he used.
The hon. and learned Member for Montgomery (Mr. Carlile) said that the matter had been fully debated in Committee. That is correct. Hon. Members who have had an opportunity to read the debates in Committee will agree that that is so. Nevertheless, I am sure that it is right that such an important issue should be fully debated on the Floor of the House, should be voted upon by all hon. Members, and should be decided on a free vote.
The present position, as has been clearly described by my hon. Friend the Member for Ynys Môn (Mr. Best) and other hon. Members, is that a petition for divorce cannot be presented within three years of marriage unless exceptional hardship or depravity can be proved. The Law Commission report effectively deployed the case against continuing the hardship and depravity conditions. One effect is that members of the legal profession, when handling a divorce case, are liable to look round for a 965 judge believed to have, shall we say, a flexible approach to the conditions—a practice which must surely be a bad thing, and must bring the law into disrepute. Another effect is that the parties and the solicitors compile the most horrific cases of hardship or the most unpleasant accounts of depravity that they possibly can.
It is not difficult to understand how distasteful and unpleasant this procedure and the court hearings which accompany it must be, particularly the effect that it must have upon the relationship between the parties to the divorce. Many hon. Members would like to see more emphasis given to conciliation—to discussions between parties when a marriage is dead to get a sensible arrangement, financial and otherwise, when the divorce is completed.
What hope can there be of such an arrangement if, before that stage is reached, both parties have been scratching around for the most unpleasant and distasteful accusations to throw at each other? For that reason, I strongly support the abolition of the conditions of depravity and hardship. Therefore, I am against amendment No. 1, which would retain the depravity and hardship conditions.
If we abolish those conditions, and do nothing else, we shall be left with the minimum period of three years before a divorce petition can be presented. It will not be possible to initiate divorce proceedings, whatever the hardship involved. That would be the effect of amendment No. 1. The Bill proposes that for one year there should be a complete bar so that it would be impossible to bring any divorce proceedings within the first year.
The effect of new clause 3 is that there would be no restriction whatever, and a divorce petition could be brought at any time after the marriage had taken place. My concern is what the effect of whatever change we finally decide upon will be. I cannot do better than quote from the report of the Law Commission in paragraph 213:In social terms we are concerned about the attitudes people have towards marriage and divorce. We believe that it is in the interests of society that the institution of marriage be respected and that divorce be regarded as regrettable. It follows that there is an obvious danger that any move which would appear to make divorce easier to obtain would be seen as further eroding the stability and dignity of marriage.
§ Sir Peter Mills (Torridge and Devon, West)
I agree with my hon. Friend. Is there not a danger, if the time is reduced to one year, that the impression will be given to the public that it is almost like having a season ticket for marriage?
§ Mr. Sims
My hon. Friend has anticipated the comment that I was going to make. Indeed, I call in aid my hon. and learned Friend the Solicitor-General who, in Committee, said:The commission concludes that it is important not to send out a signal that might be misinterpreted as Parliament saying that marriage is of less importance." — [Official Report, Special Standing Committee, 20 March 1984; c. 13.]I fear that some of the proposals before us, including the one in the Bill, will send out exactly that signal.
§ Mr. Sims
I hope that my hon. Friend will not mind if I do not give way, but I should like to develop my argument.
966 The family is the foundation of our society, and the basis of the family is marriage. There is, of course, a religious aspect to the issue. Many of us who are of the Christian faith believe that marriage should be for life—although, of course, most of the Christian churches accept that we are all imperfect and fallible and make mistakes.
I confess that I should have liked a lead to have been taken in this important matter by Church leaders —[HON. MEMBERS: "Hear, hear."] They are very quick to make comment — sometimes, I fear, somewhat ill-informed—on issues such as the British Nationality Act, the Police and Criminal Evidence Bill, and the proposals regarding the GLC, but alas, on an issue such as this, on which they are knowledgeable and informed, they speak with divided and muted voices.
However, let us look at the issue purely from a secular point of view. It must be in the interests of society to support marriage. It cannot be good for Parliament to appear to diminish the status of marriage. Sir John Arnold told the Committee:I said that the bar was widely regarded as something of a deterrent to divorce, and that it was therefore to some extent a buttress to the institution of marriage. For that reason, I do not think that you would be justified in removing it altogether, because that would denigrate the institution.The Chairman turned to Lord Scarman and said:Would you agree with that, Lord Scarman?Lord Scarman replied:Yes, I agree." — [Official Report, Special Standing Committee, 22 March 1984; c. 91.]I do not suggest that couples considering marriage will look at the divorce law and consider its effect. I do not suggest that they will say, "After all, we can get divorced in one or two years, so let's give it a whirl." However, I am concerned about what the perception of marriage and its importance will be. To use a term with which many politicians are familiar, I am concerned about the image of marriage. In Committee, there was some reference to any bar being purely symbolic — as though it was therefore unimportant. But symbols play a very important part in our religious and secular life. They are all-important. Indeed, there is one only a few yards from us, which we all consider to be very important. Even if a bar is purely symbolic, that is an important reason for keeping it.
§ Mr. Alistair Burt (Bury, North)
Does not my hon. Friend agree that divorce and its consequences are just symptoms of the real problem, which is that couples do not prepare thoroughly for marriage? If we reduce the bar, is there not a danger that couples will be dissuaded still further from considering what they are entering into? It just will not be worth the candle to prepare as deeply for marriage as they should do, as they need not go into it considering anything other than the fact that they can easily get out of it.
§ Mr. Sims
My hon. Friend is, of course, right. That is all part of the general impression of marriage and the way in which people approach it. I am concerned as to what the general image of marriage would be if it became known that Parliament had approved the idea that people could enter quite lightly into marriage and that if it did not suit them, they could get out of it in a year, or—if my hon. Friend the Member for Ynys Môn has his way—tomorrow.
We can well imagine what the headlines could be in some newspapers tomorrow. They would not go into all 967 the finer legal points that have been debated today. They would immediately say, "The Quickie Divorce", "The Tomorrow Divorce", "Divorce within One Year", or whatever. We can well imagine the effect of the reports that would appear in the newspapers before long, about people entering into a second marriage within 18 months of their first. What would that do for the image of the institution of marriage?
§ Mr. Sumberg
Why does my hon. Friend think that there would be a different headline in the newspapers tomorrow if his amendment for two years was passed? What is the great merit in the extra year?
§ Mr. Sims
If my hon. Friend gives me a moment or two, I shall of course come to that point.
It has been argued that if a marriage has broken down irretrievably, the sooner it is ended the better. But we all know from experience that the first years of marriage, particularly the very first year, can be among the most difficult—especially with the arrival of the first child. There is a case for a minimum period before which a petition for divorce can be presented. Even if the marriage has irretrievably broken down, we should not lose sight of the fact that there is such a thing as judicial separation, which gives all the benefits of divorce except the right to marry again.
If we agree to amendment No. 1, we are left with the status quo, and the depravity and hardship conditions, which are quite unacceptable. If we accept new clause 3, we are then agreeing to the idea of immediate divorce. I believe that to be harmful, for the reasons that I have adumbrated.
That leaves us with the choice of a complete bar for three years, which is the effect of amendment No. 3. In effect, it would make divorce more difficult than at present, because we would be removing the hardship condition. The alternative is to reduce the three years to one year, as provided for in the Bill. As I have said, I fear that that would clearly make divorce much easier than it is now.
In Committee, my hon. and learned Friend the Solicitor-General said that this was a matter of compromise. Of course it must be a matter for compromise, but I am not at all satisfied that the one-year bar gets the compromise right. That is why I have tabled an amendment suggesting a two-year absolute bar. I believe that to be a satisfactory compromise between the present three-year conditional bar, and the one-year absolute bar in the Bill. This is not an issue of black and white, or right or wrong. We are looking for a compromise and for the least worst solution to an extremely difficult problem.
I believe that a two-year absolute bar would be the best compromise, and I hope that right hon. and hon. Members will reject new clause 3 and that I shall have their support when I formally move amendment No. 2.
§ Mr. Benyon
When I first considered this matter I took the same view as the hon. Member for Torfaen (Mr. Abse), and so convinced was I by the arguments that were put to me that I nearly voted against Second Reading. However, when I sat down and read the report of the Law Commission and, more importantly, the debates in the other place, I found my view changing. I found my view 968 approximating closely to what is now in the Bill. Since the proceedings in the other place we have had the deliberations of the Committee. It, too, has come down on the same side. Divorce is a tragedy, and, as has already been said, we are top of the league in the percentages of marriages that go wrong. This is a serious situation, and none of us can view it with any equanimity or satisfaction.
The choice seems to lie, and this was put clearly by my hon. and learned Friend the Member for Fylde (Sir E. Gardner), between what we have in the Bill—with due respect to my hon. Friend the Member for Chislehurst (Mr. Sims)—and the new clause moved by my hon. Friend the Member for Ynys Môn (Mr. Best). I listened carefully to my hon. Friend's explanation of the proposals in the new clause, but I could not follow him when he started to describe how unjust it would be to have an absolute bar for one year. With the best will in the world, and taking into account all one's experience with different couples in this situation, I cannot find myself agreeing that one year produces an unnecessarily long period of hardship.
The real answer to all this is that the law has lost its place in this deliberation. I do not blame the changes in the law for the large number of divorces that now take place. I am convinced that other matters play a very much more important part in this. Therefore, the proposals in the Bill are a logical tidying up of the law and an effort to be fairer to all the parties. My point is that all the efforts, going back to the A.P. Herbert Bill in 1937, and the efforts of the hon. Member for Torfaen (Mr. Abse) have led towards making divorce easier, to correcting what has seemed to be the hardships of the people who are thereby involved, and to safeguarding the position of children.
Now is the time to put the emphasis the other way and to ensure that the greatest action that the Government can take goes towards preserving and strengthening the institution of marriage, whether by education, counselling or by supporting financially those organisations that are set up to help and strengthen the institution of marriage. That is where the effort should go now, because the effort before has always been the other way—towards divorce and the break up of marriage and the family.
Rest assured, we must do this in the circumstances. If the present trends continue, the social fabric of this country will be greatly damaged. Enormous problems result from the breakdown of marriage and divorce, whether it is juvenile delinquency, financial cost to the taxpayer in so many ways or the difficulties in housing. Only last Friday, when I was holding my advice bureau in my constituency, a couple in perfect harmony came to me after their divorce had taken place. They had three children, aged six, five and four, and they could not understand why the council could not give them two homes, because they had joint custody. I mention that in passing, because this is the sort of social implication that we are finding all the way through.
I confine myself simply to the secular side. I have not mentioned any of the moral considerations which concern many of us. My hon. Friend the Member for Chislehurst has said things with which I heartily agree. However, I think that the Government have this legislation about right and I shall support it.
§ Mrs. Elizabeth Peacock (Batley and Spen)
I have listened to the many discussions, this evening and in many other places, on this matter, and nothing that I have heard has changed my view that clause 1, which proposes to 969 shorten the time bar, or new clause 3, which proposes to abolish the time bar in which couples can apply for divorce, will weaken the social fabric of marriage. As we have heard, provision already exists for special cases under section 3 of the Matrimonial Causes Act 1973.
This aspect of the Bill has aroused much opposition, particularly from churchmen, women's groups, welfare organisations and some magistrates, many of whom are often directly involved with the problems from which divorced couples and their families suffer. I am sure that we are all concerned for the stability of family life. About 170,000 divorces a year take place, one in three marriages appear destined to fail, and of those, seven out of 10 divorces involve children. We have to be concerned with what happens to the children of people who divorce.
As a magistrate, I have faced the heart-rending decision of taking children into care. Let no one underestimate the tremendous impact and the traumatic effect that this has, not only on the children, but on the parents, even if they are divorced. On the social ground of the family, and the caring ground of the children disturbed by broken homes, the Bill will be a backward step in the compassionate care of all families.
I understand that those who find that they have made a painful mistake should have the opportunity to rectify that mistake, but I do not feel that the Bill will help those people. Time needs to be given for couples to reflect on what they feel is a mistake and also for planning for the future, not only for themselves, but for their children.
The number of illegitimate children born in England and Wales last year soared to a record 99,200, an increase of 10 per cent. A report issued yesterday by the Office of Population Censuses and Surveys discounts the idea that promiscuous teenagers are responsible. It says:Numbers of illegitimate births increased to women in all age groups; but the increase of 6 per cent. for teenage mothers was only half the average increase in the number of illegitimate births to women in their 20s and 30s.The blame for this increase in illegitimate births is put on the increasing unpopularity of marriage among young people. Fewer people married in 1982 than at any time in the previous 12 years. The statistics suggest that what we have heard this afternoon about downgrading the institution of marriage is true.
Are we further discouraging young people from getting married by reducing the value of marriage by putting too little value on the time that a marriage should last before a divorce can be applied for? I suggest that in the Bill that is what we are doing. As we have heard, marriage is a partnership, a working together, and there must be time in those early stages, which many of us know, and some of us can remember, are difficult times, for people to adjust to each other and to their circumstances. We must not take away that opportunity.
This has been a long debate, but we have heard very little about conciliation, which is and should be a growing service. Indeed, it is often provided by or at the instigation of solicitors because they see at first hand so many of the problems of early divorce.
Amendment No. 3 will leave the provision as it now is and I believe that that is the right course to follow.
§ Sir Ian Percival (Southport)
I agree with my hon. Friend the Member for Ynys Môn (Mr. Best) that the present bar should go, although I believe that he 970 underestimated its significance. At one stage he seemed almost to suggest that the present provision was no bar. It is a very real bar for honest people whose marriages have broken down, even when there is depravity or hardship, if they are not prepared to exaggerate the situation. Those people face a real bar for three years. That is most unfair, because those prepared to lie and exaggerate can fool the courts.
In a previous incarnation, I had something to do with the work of the Queen's Proctor and I know that it is not possible to check on every case. The present system thus constitutes a real bar for the honest but no bar for the dishonest. Indeed, for people determined to obtain divorces whether or not they are entitled to them, the present system is a great temptation to exaggerate the position. The present bar is wrong in every way and I have no doubt that it should go.
We must then decide whether to have no bar at all or an unqualified bar of one, two or three years. I believe that it would be wrong to have no bar at all. Personally, I plump for a one-year bar, but that is a matter of judgment. No evidence can be advanced for that period rather than a two-year period. I have just one reason for believing that there should be a bar and I have narrowed it down to one year because a longer period is not necessary to achieve the purpose that I wish to achieve.
§ Mr. J. F. Pawsey (Rugby and Kenilworth)
My right hon. and learned Friend refers to the problems of getting rid of the bar, but would it not be easier to re-examine the conditions attached? Does not the problem lie in the clauses setting out the conditions rather than in the bar itself?
§ Sir Ian Percival
There would be force in that argument if anyone could suggest any better conditions, but I have been in the law long enough to know that as soon as qualifications are introduced the result is a beanfeast for the lawyers and a further set of unfair comparisons. That is my view as one who has some experience of practising in that division of the law.
I have solid reasons for favouring a one-year bar and I should love to develop those reasons, but I am conscious that time is short. I believe that there must be a bar of some kind and it should be an absolute bar, because, with the best of intentions, introducing qualifications creates difficulties of the kind that we now face.
I plump for one year not on any logical grounds or because I can produce any evidence to support it but because I believe that it is sufficient to meet the purpose for which the bar should be retained. My hon. Friend the Member for Ynys Môn said that there was no logic in the bar, and that is so, but there is no logic against it either. We all know that "irretrievable breakdown" is a matter of judgment. Who is to say whether something really has irretrievably broken down? Many of us have thought that many young and not-so-young men and women could have had a very good future before them if they had put a little more effort into seeking it rather than giving up the ghost too early and concluding that their marriages had irretrievably broken down when there were good reasons to have another go at making them work. Logic does not come into it either way. I do not base my case on logic, but nor do I believe that there is any logical argument against it.
971 7.45 pm
On the subject of hardship, I agree—not for the first time, although not always—with the hon. Member for Torfaen (Mr. Abse) and with my hon. Friends the Members for Milton Keynes (Mr. Benyon) and for Batley and Spen (Mrs. Peacock). What really is the hardship? I shall be careful not to exaggerate my case, as exaggeration never helps any argument and I believe that the hardship aspect has been exaggerated. Is it so much hardship to have to wait 12 months even if the marriage has irretrievably broken down, assuming that it is possible to come to that conclusion within 12 months? I find it difficult to imagine any circumstances in which the danger of hardship—a largely hypothetical danger, I believe—is such that we should act in advance to meet it in a way that in my view could denigrate the most important institution in our lives.
My positive reason for wanting a bar of some kind is that in my view there is a real danger that the absence of any bar at all will further denigrate the institution of marriage. I take the word "denigrate" from the evidence of Sir John Arnold to the Special Standing Committee from which we have already heard quotations today. I remind the House, too, of the comments of my noble and learned Friend Lord Scarman, who agreed with Sir John Arnold that doing away with the bar altogether was not justified because it would denigrate the institution of marriage and took the view that some kind of bar should be retained to show that marriage was not just another contract but a very important institution.
The House of Commons has a very special responsibility in this. I am always influenced by the observations of persons such as the president of the Probate, Divorce and Admiralty Division and my noble and learned Friend Lord Scarman because they speak from experience, but this House has an added responsibility, because in the past 20 years we have cheapened the institution of marriage by making divorce so easy that another inch down the road would make it a straightforward post office job. We must thus be extremely careful not to take any further step, however small, in that direction.
I believe that getting rid of the present bar and substituting an absolute bar of one year would allow us to do something positive in this respect. How it will appear to the public will depend on how we sell it. I hope that the House will get rid of the three-year bar and replace it with an absolute one-year bar and then explain clearly to the public that we have got rid of a totally unsatisfactory provision—which is a real bar for the honest but no bar for the dishonest—and put in its place a sensible bar that cannot be got round and which gives people 12 months to consider seriously whether they cannot make a go of their marriage. If we do not do that, we shall further denigrate the institution of marriage. If we get rid of the present bar and institute an absolute bar of one year, we shall be able, if we wish, to sell that measure as a positive step in restoring the picture of importance that we attach to the institution of marriage.
I hope that the House will leave clause 1 alone, because it does what it should do. I shall vote against the new clause, and I ask other hon. Members to do the same.
§ Mr. Blair
As a member of the Special Standing Committee I found it enormously helpful to have a procedure to take evidence from a wide range of people 972 who were experts in their field. Having taken that evidence, it is perverse for the House to ignore its effects and simply to put the evidence to one side.
Two points emerge clearly from the evidence. I came to this conclusion with a completely open mind. The first point is that the Law Commission, when proposing the measures contained in the Bill, decided, for especially concrete and positive reasons, that a one-year absolute bar was the right measure. The Law Commission did not decide by some type of instinctive psychology that a one-year absolute bar was the right measure. Instead, the commission had an argy-bargy among its members—the commission took it slightly less coloquially, but that is more or less what it did—on whether there should be a time bar. At the end of the day, the commission decided to compromise between nought and three years and, therefore, one year was taken.
The second and most important point to emerge from the evidence given to the Committee was that there was nothing to suggest that a time bar affected people's predilection or otherwise for divorce. There was nothing to suggest that marriage would be one wit strengthened by the existence of a time bar. It is difficult to ascertain how the evidence could have shown otherwise, because in Scotland, where no such time bar exists, although the grounds for divorce are similar to or the same as those applying in England, the record on divorces in the first year of marriage is better than the record in England. The proposition that the time bar should be retained because it somehow strengthens the institution of marriage is entirely contradicted by the evidence we heard in Committee from Sir John Arnold and others who have experience of this aspect of the law.
I appreciate that there are no statistics to prove that statement, but statistics are not the only evidence. One can judge also by the experience of people practising in certain aspects of the law and during their lives. As a member of the Committee—I hope a fairly reasonable one—I had to take account of what several people told me was the case.
I say to the House — and especially to my hon. Friend the Member for Torfaen (Mr. Abse) who, with respect, I believe went slightly over the top in some of his rhetoric—that it is not sensible, when considering the position realistically, to assume that people will get divorced because of the time bar. The truth is that the time bar has nothing to do with the grounds for divorce. Petitioners for divorce in any case must show irretrievable breakdown of the marriage. There is no question that people can come to a court after a week of marriage arid say, "We want a divorce." They must show irretrievable breakdown of the marriage. That irretrievable breakdown exists either within or beyond the first year of marriage, as the case may be.
I ask Conservative Members who may support a time bar to listen carefully when the Solicitor-General presents the Government's case. They will not hear from the hon. and learned Gentleman an assertion that the time bar affects the strength of marriage as an institution. The Government's case will be that it is important to give the right signal to the public and that, if the time bar is removed, the signal will be wrong.
§ Sir Ian Percival
The hon. Gentleman has come near to the point I was querying. Does he agree that there is a world of difference between saying the measure will not 973 strengthen the bonds of marriage and saying that the lack of the measure will weaken those bonds? They are two separate aspects. The evidence given to the Committee seemed to support the second aspect, though not the first.
§ Mr. Blair
The Committee was given evidence that the existence of a time bar would not adversely or positively affect the strength of marriage as an institution, but it may affect the public's perception of marriage as an institution. The Government's case was that it was necessary to retain the time bar; otherwise the wrong signal would be sent to the public.
I shall explain what seems to be the fallacy inherent in the Government's case. The Government say that we shall send the wrong signal to the public if we abolish the time bar. What signal do we send to the public if we assert that the time bar is important to the institution of marriage, and that that is why we retain it, but reduce the period from three years to one year? That is the absurdity of the Government's position. The Government end up with the worst of both worlds because, on the one hand, they assert the relevance of the time bar to marriage by retaining it—that is their justification—but, on the other hand, they reduce the period from three years to one year. That is why practically any other proposition is better than the one put forward by the Government.
§ Mr. Sumberg
The hon. Gentleman misses the essential point that the present position is not a three-year absolute time bar but a three-year discretionary time bar. It is a matter of going not from three years to one year, but from three years with discretion to a one-year absolute. That is an important distinction.
§ Mr. Blair
That is, indeed, an important distinction, but it is not the distinction that will come across to the public. The public will not grapple with that distinction. Hon. Members have quoted the headlines that appeared in the papers when the proposal was first made. The hon. Gentleman is right, but I do not believe that that meets the point. I do not believe—nothing that I have been told shows otherwise — that the time bar affects the institution of marriage. If that is right, is it correct for me to support a time bar?
Symbolism in politics can be important. Statutes enshrining symbols can be a perfectly acceptable way of proceeding. If we believe that symbolism is not based on any sensible appreciation of the truth about a particular matter, we engage in putting forward not symbols but postures. We should not be engaged in that action.
The institution of marriage is valuable. The institution is strengthened not by the law but by public respect for and the attitudes of those engaging in it. A time bar will not assist marriage in any way. Given what I heard in evidence as a member of the Committee and given what my beliefs and instincts tell me, it is my duty to vote for no time bar. In doing that, I shall say clearly to the public that we do not believe that the institution of marriage will be weakened. In fact, the evidence points to the institution not being affected by the time bar. The sensible, logical, coherent and most psychologically correct thing to say is, "Let us get what we believe truthfully to be the real position." That is why I shall support the new clause.
§ Mr. Stanbrook
I can speak briefly to amendment No. 1 because of the excellent speeches made in support of the 974 general proposition, which is that the law should stay as it is and should not be amended in the way the Government wish.
It is curious to note that so many of our biggest social, legal and religious changes have been initiated outside Parliament. We have often legislated only after the argument has been made elsewhere and we have accepted that argument without proper thought and consideration and often contrary to the will of the people.
The Law Commission is a vehicle for this sort of change. Indeed, the change that it made for mistresses to obtain a share in the estate of a deceased against the interest of the widow was made against the will of the majority of the British people. However, that is now law, largely for the reasons that are now being urged for this change.
The Law Commission, an institution composed of the most excellent lawyers and judges, does good work within its proper terms of reference. Judges are excellent at choosing the truth from different circumstances, evidence and facts. They are good at applying principles and the law to individual cases. But they are not good at making political judgments. That is the whole purpose of this place. We have to make political judgments and if we abdicate that responsibility—as we are asked to do in this case—to a rather bureaucratic body which is not elected and is not responsive to the needs of the people, we are doing democracy a disservice.
The procedure which we adopted in the Special Standing Committee was excellent. It enabled hon. Members to hear the views of experts in matrimonial law and to question them. Many of the defects in our understanding of the subject were removed as a result. That applies with especial force to parts of the Bill other than part I. I am satisfied that much of the argument about the Bill, other than part I, is about semantics. Indeed, as some of our witnesses suggested, the law which has to be applied by this Bill is largely the law which is being applied by the courts at the moment, without the need for statutory change. To that extent, the procedure of the Special Standing Committee was good in that it enabled those of us who were members to understand the changes and therefore to have our misapprehensions and misunderstandings corrected.
But part I goes beyond lawyers' law. It has to be judged not in terms of the expertise of Sir John Arnold, an excellent man and judge, or Lord Scarman, or any who gave us the benefit of their judgments. We have to make a decision in the interests of the public. We have to make it about a subject which it must be admitted impinges upon a small minority of the population.
I feel a sense of humility in discussing this matter publicly in the knowledge that I have been particularly fortunate in the happiness I have enjoyed over the past 38 years of my marriage. I appreciate that it is not for me to add to in any way or to perpetuate any hardship which may be suffered by less fortunate individuals as a result of the existing law. Nevertheless, we owe it to the public to pass laws which we believe to be right and just which are designed to ameliorate differences and difficulties among people. Therefore, I simply do not believe the argument that clause 1 is a proper and acceptable compromise.
The present law provides for a three-year bar, with the power of discretion in the courts. That formula is and 975 should be acceptable and is far better than any of the suggested solutions and compromises which have been advanced either by the Government or by my hon. Friends. I do not understand the argument of my hon. and learned Friend the Member for Fylde (Sir E. Gardner) that the bar cannot be dispensed with completely because that would give a bad impression but that it can be reduced from three years to one year, which would not give such an impression. What is so bad about dispensing with the bar of three years which does not apply to reducing it from three years to one year?
What is worse is to substitute an absolute bar, with no discretion. My hon. Friend the Member for Chislehurst (Mr. Sims), who is my constituency neighbour and whose judgment I value, thinks that it would be acceptable as a compromise—as if one had to compromise in such a matter where the existing law is right and appropriate—to have an absolute bar for two years. There must be some injustice about that. It is bad enough for the Government to say that there must be an absolute bar to divorce for one year. Is it not far better to accept what we have—a three-year bar but provision for exceptions? It is so easy to choose a middle position and say that it is right.
From where does the pressure come for such a change? The Committee received many memoranda. I have piles of documents which were sent in either by institutions or pressure groups, as well as the official briefing documents from the Lord Chancellor and my right hon. and learned Friend the Attorney-General. I also received hundreds of letters from individuals wanting to give the Committee the benefit of their experience and suggesting how the law should be changed in one way or another. Working through those documents, it was difficult to avoid being confused. One is bound to come to the conclusion that no good argument has been made for changing the law at all.
Three years with discretion in the court is a sound and wise provision which in the long run does less injustice than any of the other provisions which have been suggested. For that reason I ask the House to support amendment No. 1.
§ Mr. Simon Hughes (Southwark and Bermondsey)
The conclusion to which I shall come is that reached by the hon. Members for Torfaen (Mr. Abse) and for Orpington (Mr. Stanbrook). It is the wrong time to change the law in the way proposed by the Government. We speak in this debate as individuals, and the debate is much the better for that. We are all learning and respecting much more the opinions of colleagues than we often do and should.
I start from the position that marriage is a Christian institution, which is ordained. Like many others, I believe that the creator of mankind ordained it as the best form of relationship—not for everybody, but where possible. It is now generally accepted—certainly in Britain and also in many other countries—that in social and sociological terms it is the best form of relationship. So our secular law has also come to ordain marriage and to sustain it over the years in a way that enhances the good ordering of our society.
I start from the viewpoint—I came into this place a Christian, having been a Christian for some years and, as one who is no better or worse than a non-Christian—that it would be wrong for me to legislate to bind others by the laws that I derive from my faith. All of us speak from the knowledge that a minority in England subscribe 976 to the Christian faith and we respect and understand other minority faiths. But the majority have no faith, or are uncertain what it is. They are seeking to come to faith or are not yet confronted with the need to do so. We are legislating, therefore, primarily for people who do not accept the premise from which I begin. We must legislate for them in secular terms, as well and as properly as for anyone else.
My initial view was that it would be proper, except where there were children, for couples married by the state to divorce as and when they liked and that it was wrong for me to tell them that they should regard their secular marriage—a marriage of the state, ordained by the state—as an institution with sacramental or permanent value from which they could not divorce themselves by agreement in the same way as they had brought themselves together in the first place.
My view was that it would be proper, therefore, to segregate the secular from the religious, as many European countries do. We are all aware that in many continental countries one goes first to the town hall for a secular, civil marriage ceremony and then to a church ceremony if that is wished. The state gives a contractual basis and the church will give couples a sacramental partnership ordained for life. For Christians its derivation is from the Gospel teachings, which are clear and unequivocal on the subject.
The problem with the differential approach, of which I was eventually persuaded. is that the institution of marriage was ordained for everyone, whether or not he or she believed that it was the sacrament ordained as the most appropriate relationship for the best ordering of society. Therefore, the same rules and law should apply whether one is a Christian believer, a Buddhist, a Moslem, a believer in any other religion or not a believer at all.
Having come to that view, we must work from the present legal position in England and Wales, which is different from that in Scotland. Since 1937 in England and Wales there has been a restriction on the time after marriage before which one can divorce or institute proceedings for divorce. In Scotland that is not the case and it is probably correct — the hon. Member for Sedgefield (Mr. Blair) was right in his analysis—that there might not be a substantial change in the number of divorces in England and Wales, and that it might be more logical and consistent if we changed to the position in Scotland. I understand and appreciate that view.
However, we are not starting from the same position as that pertaining to Scotland. We have a three-year bar, with discretion. In most cases that are argued for discretion on the ground of exceptional hardship or depravity, that discretion is exercised by judges and leave is granted for a petition to be presented within three years. We have heard that few people are refused permission in those circumstances.
I believe—we must all make this judgment—that before we change the present position, under which the public perceive that marriage is instituted for at least three years under secular law, but from which, in certain circumstances that make it unbearable, unsuitable or unjust to continue, they can escape, the right way to reach a more logical position is first to await the evidence. The hon. Member for Torfaen reminded the House that eminent bodies are working to produce more evidence 977 about the effects of irretrievable breakdown and other facts on divorce. More figures and research will be available to us within a year or two. We should wait for that evidence and then be sure to proceed in a way that upholds the institution of marriage.
My judgment is that to move from a general rule that marriages will last for three years to a rule that marriages must last for one year would be perceived as devaluing marriage as an institution. I must ask next, therefore, whether it is right to adopt the proposal in amendment No. 2 and opt for a two-year bar. That may be a way forward, but it would mean a two-year bar without a discretionary let-out for those sad and irretrievable cases where it must be right to permit the marriage to end. It would be wrong in such cases for any of us to prohibit that. There are examples of marriages in which there is severe injury, humiliation of one partner by another, physical imprisonment or great drunkenness. Those of us who have practised in the family courts well know of such cases, which come before the courts every day.
It would not be right to change the position to get rid of discretion, unless there was no time limit and a couple could divorce straight away. The right course is to bring forward proposals that uphold and support the institution of marriage which the Bill does not do, so that a positive package will result that is of benefit to the nation. If we set about that process, a framework for conciliation is needed, a move towards a structure of family courts will be needed. We must remove adversarial disputes from divorce cases. Those of us who have been involved in them know that they continue for months, to the detriment of all concerned.
The other missing factors in our present systems are methods to make sure that those who decide to marry are given the encouragement and support to continue a relationship in marriage, as far as possible, especially where children are involved. We all know—it must be a truism by now — that when marriages with children break down, more often than not it is the children who are affected most, in the short or long term, in terms of cash, in physical terms, or in emotional and moral terms.
The Bill which most should be before us should not deal with matters such as financial provisions, with which I am not most concerned tonight, where there should be changes, although not fundamental changes. The Bill we need most must bolster marriage where that option is chosen by our fellow citizens. I believe that marriage should be chosen only after careful consideration.
It is not right that our society should take the view that relationships outside marriage are generally promiscuous, or that the young are any more promiscuous than older citizens. Many people enter into a permanent relationship, but they may not choose to make it a marriage relationship. They should be entitled to that. As a Liberal, I believe that they have a right to do so. It is not for me to provide that they should feel badgered into making marriage out of that relationship.
Some people choose marriage. It is a fundamental human right to get married, but it is also a choice. When people make that decision, its importance must be reflected in our laws and supported and sustained as one of the key pivots of the ordering of our society. When marriages work, families work, relationships are effective, and an enormous amount of social legislation becomes 978 irrelevant. An enormous amount of money can be saved. An enormous amount of harm can be prevented by people working out their crises and recovery, through the periods of difficulty and darkness, light and joy and all the day-to-day struggles of everyday life. We are all struggling to help those who come to this decision.
§ Mr. Greenway
I am very interested in what the hon. Gentleman is saying, but I am concerned because it seems that he has thrown his argument about the Christian principle overboard and is saying that people can do as they like. Is not that a sad situation?
§ Mr. Hughes
I am saying that, just as in politics it is my job to convert people to my way of thinking but they have the right to reject my view of political life, so people come to a Christian faith or any other faith by choice. I can try to persuade them but they must elect to make their response to the Creator whom I declare is the Creator of us all. People must make that choice in society as well.
One of the tragedies in the Church today is that under the law of the land vicars and priests are obliged to marry people who come to church not wanting anything other than the social context of a church for their wedding. I do not suggest that they are not entitled to that, but it is so much better when they make a choice to marry wholeheartedly knowing what they are letting themselves in for. Therefore, if people choose not to be married and not to see their relationship in a sacramental or religious context, that is their choice. It is the job of myself and other people of religious faiths to win them to a different view of life, and why we are here, but we should not legislate to prevent them reaching other conclusions.
Therefore, for the time being, let us, if we can, reject the proposal to change the present law. I accept that the exceptional two circumstances now provided are probably too tightly drawn. We should probably adopt the Law Commission's original suggestion in its working paper, which is that in the interim we could say that if, in less than three years, the marriage has irretrievably broken down and one of the facts for divorce has been proved, that would provide the let-out. We could make that amendment.
However, let us wait for the rest of the evidence that has been commissioned and then make a proposal for changing this law, at the same time as taking other steps that many of us are awaiting with great hope and interest, for family courts, conciliation and other things. Together, they could provide a package which does not undermine marriage, which I trust is something we all want to sustain. However, marriage will be at risk to a degree which none of us can evaluate and which many of us suspect will be more than minimal if we remove the present restriction and reduce the period from three years to one.
§ Mr. Pawsey
I support amendment No. 1, leaving out clause 1, moved by the hon. Member for Torfaen (Mr. Abse), because I believe that the one-year limit is calculated to reduce and diminish marriage and that marriage may be regarded simply as a one-year stand.
The clause, with its time limit, will serve to underline not the permanence of marriage but a new and somewhat casual contract of rather doubtful worth. It seems that if a marriage does not work, people should not try and try again to make it work, but simply divorce and then try again with a new partner. If that partner does not suit, the person should change, discard, and marry again and if 979 necessary again. Increasingly, marriage would become a form of lottery; a lucky dip. If one did not like one's partner one would change. Is that really what couples promise each other when they get married? Is it what the sacred vows are about?
I was particularly interested in what my hon. Friend the Member for Chislehurst (Mr. Sims) said when he referred to the churches and the lack of lead that had been given. One might say that the silence of the churches on this issue has been deafening. I look forward to hearing my hon. Friend the Member for Wokingham (Sir W. van Straubenzee), who represents the Church Commissioners, speaking on that point.
§ Mr. Pawsey
Indeed, but that is not a matter for me.
The Churches have maintained a silence on the issue that is less than understandable. One would have thought that here was a case on which they might make a clarion call. They should have stressed their views on this all-important subject. However, it seems that at times the voice of the Churches—I refer to all the Churches—is somewhat clouded and their vision is obscured by more temporal issues, whether it is the Greater London council or the Campaign for Nuclear Disarmament. That is most unfortunate. They should have given the House a clear lead on the matter. It is unfortunate that they did not do so.
The clause is less about marriage than about a break. Its very existence will ensure that more marriages break down. Often, the first 12 months of any contract are the most difficult months, and I wonder how many five and seven-year commercial agreements would run longer than 12 months if break clauses were inserted. If one tried putting the clause, as statute, into any rental or leasing agreement, what a howl of anguish would go up from the finance houses.
§ Mr. Sumberg
Is not the distinction that should be drawn as follows? If the parties want the contract to continue, it will, but if they do not wish it to continue, it will not. That is the issue. It is not what the law is; it is what the intention of the parties is.
§ Mr. Pawsey
With respect, my hon. Friend misses my point, which is that often in commercial law parties may disagree about the issue at stake, but the law will hold them to the terms of the contract into which both parties freely entered. This case is the same.
Often, the first 12 months are difficult. I speak from the experience of having been married for 28 years. There is an old saying that one has to live with someone before one really understands that person. It is equally true, however, that, given time, solutions can be found to difficulties and that two very different people can discover each other's virtues. Twelve months just is not long enough. The clause will reduce the incentive for couples to stay together and find the solutions that so often exist. The clause will ensure that, instead of divorce being the final option, it will become the first.
My hon. and learned Friend the Member for Fylde (Sir E. Gardner) mentioned psychology. It seems that, psychologically, if both parties are aware that a break clause exists at 12 months, the incentive to persevere will 980 be diminished. Simply because the 12-month clause exists, it will be used, and I believe that it will be used frequently.
Much has been said about exceptional hardship and exceptional depravity, and I fear that we may encourage the bringing of such charges. As has been said, the discretion given to the courts on this issue accentuates marital discord. It has become such a positive factor in martial discord because, as the hon. and learned Member for Montgomery (Mr. Carlile) said, many solicitors and counsel are aware of the existence of the clause and doubtless some of them refer to it when discussing matters with their clients.
If one party requires a quick divorce perhaps in the face of some opposition from the other partner, that party may plead exceptional hardship or exceptional depravity and hope that that plea will be accepted by the court. That appears to be borne out by the report of the Law Commission, which said:The effect of this provision is said to be to encourage, if not actually to require, the petitioner to make the most unpleasant allegations possible about his or her spouse in order to make out a convincing case.I am sure that the original intention of those two definitions was to free one partner from a particularly difficult situation, but I doubt whether those who drafted the provision and steered it on to the statute book could have anticipated where their well-meaning efforts would lead and that the provision would be used to justify a one-year marriage licence.
I do not argue that exceptional hardship and exceptional depravity do not exist. They do, and they must cause a great deal of misery in a minority of cases. It might help the House to bear in mind the numbers involved. In 1982, 1,900 applications were received under section 3 of the Matrimonial Causes Act 1973, which deals with exceptional hardship and exceptional depravity. Of those, only 843 had decrees promulgated. In that same year, 145,000 divorces went through the courts. In other words, cases involving exceptional hardship and exceptional depravity represented less than 0.5 per cent. of the total. I hope that that brings the figures firmly into perspective, because it is clear that that issue is having a decided effect on this debate.
In seeking to reduce the misery of a small minority, we are likely to increase the misery—for any divorce must bring misery in its train—for a much larger number. This House passes legislation for the best reasons, with every Act being designed to improve the lot of the majority of our fellows. That is the intention, but the reality is sometimes different. The Divorce Reform Act 1969—the easing of divorce—has not, in my view, increased the sum of human happiness. Rather the reverse, if my surgery is anything to go by.
The victims and the problems of divorce are the children, the break-up of the home and the division of property, all of which have served to multiply the hardship, bitterness and unhappiness that undoubtedly go with divorce. All, I believe, are greater today than they were in 1968, and that has been due to that well-intentioned Act which we passed in 1969.
The figures are important. In 1958, there were 22,500 divorces. In 1969, following the implementation of the Act, the number had doubled to 51,310. In 1980, following further procedural reforms, including the 981 introduction of the so-called quickie divorce, which at that time cost between £25 and £30, the figure had risen to 148,300 divorces. Today even that appalling total is exceeded, with 176,000 divorces a year. One marriage in three fails. If there was ever a time for a change in direction, that time is now. For too long we have gone down a road which has increasingly led to unhappiness and misery.
It is said that 70 per cent. of couples have children, a point dealt with by my hon. Friend the Member for Batley and Spen (Mrs. Peacock). More than 200,000 children each year are therefore affected by the divorce of their parents. That number of children now grow up in broken homes with only one natural parent. The House would do well to concern itself with the delinquency problems that we are storing up for ourselves. The far-reaching consequences of the increasing number of divorces—and, therefore, the number of such children—should occupy our thoughts.
I accept that the clause has been drafted in its present form for the most compassionate reasons. It will, however, exacerbate an already appalling situation. The present legislation is far from perfect, but clause 1 will not only not help; it will worsen an already bad situation.
One might take the view that the reform suggested by the Law Commission, a group possessing such expertise and knowledge of the law, must be right. If we accept that view, we will be heading towards government by expert rather than by elected Member. This House must be responsible for the political consequences of its acts. Hence, we must reach a decision based on our collective mind and not necessarily based on expert advice, however proficient that advice might be thought to be.
It might just be that the view of the Law Commission is based on experience not so much of "normal" marriage or what might be termed "normal" divorce, but of a relatively small number of particularly unpleasant cases. It might also be thought that the Law Commission is recommending throwing out the bath water and the baby. I urge hon. Members in all parts of the House, in a free vote, to oppose the clause.
§ Mr. David Amess (Basildon)
The purpose of amendment No. 3 is to protect the institution of marriage and discourage divorce. As an enthusiastic supporter of the Government, it grieves me on this matter to take issue with them. I am always ready to quote the election manifesto which we put before the electorate, but, much as I have searched to find something about this provision in our last manifesto, I have been unable to do so. Indeed, I was shocked when I first heard of this measure being suggested by the Government, for it is a most unconservative piece of legislation. I regard clause 1, as drafted, as utter madness, ill-thought out, ill-conceived and downright stupid. This is a matter on which the consequences of what is proposed are mere conjecture.
Although not a member of the Special Standing Committee, I have read the evidence presented and I am unconvinced by the arguments advanced. I believe that the family is the foundation of democracy and an ordered society. The protection of the family and democracy are fundamental traits of Conservatism in all its forms.
The increase in marriage breakdown, illustrated by the number of divorces, has now reached a crisis of alarming 982 proportions. It has deep political, social and religious implications for our national life. Unfortunately, there are 1.5 million children now living in 1 million single-parent families. The number of one-parent families in Basildon district, which includes my constituency, rose to 1,332 between 1971 and 1981. As the divorce rate has risen, there has been moral decay with the rate of illegitimacy, abortion, children in care and juvenile crime increasing proportionately.
The financial cost to society is over £1 billion a year, and 50 per cent. of second marriages fail. All that has happened, yet for 2,000 years the Church has preached that marriage is for life. We are only too well aware that the evil Abortion Act introduced by the leader of the Liberal party opened the floodgates to abortion, as happened to divorce after the passing of the Divorce Reform Act 1969.
§ Mr. Amess
The hon. Gentleman may say that, but he was not here at the time.
From 1901, the number of divorces per thousand of the married population was 0.1; in 1961 it rose to 3.2, and in 1982 to an appalling 12.1. We have the third highest divorce rate in the world. The highest is America, followed by Russia. We have the highest divorce rate in Europe, whereas Italy has the lowest.
§ Mr. Amess
I am deeply worried that the clause might encourage more young couples to rush into marriage than at present. The clause will enable those who have not given marriage the thought that it requires the opportunity to marry on an experimental basis.
One year is not even a fraction of the time needed to evaluate the true merits of marriage intended to last for life, but it is sufficient time to produce children. Do we want a society in which single-parent families are the norm and where the courts decide the level of opportunity for a majority of children at an early age?
The clause gives people whose marriages experience temporary difficulties, which are surmountable by mutual efforts, the easy way out. It takes a great deal of patience, thought and time to sustain a genuine marriage, as I often tell my wife when I arrive home after being here. The clause eliminates the need for thought.
I deal now with the danger of the absolute bar for one year during which no petition may be presented. As has been said, it is a feeble compromise. The clause is a facade which seems to have the effect of loosening the legal restrictions while tightening up the process. It falls between two stools and satisfies no one.
Those hon. Members who share my views about the clause will no doubt leave themselves open to all manner of charges, such as being unfeeling, impractical, not accepting reality and not understanding the traumas of couples who wish to divorce. Such a criticism is grossly unfair. I should not for one minute underestimate the heartbreak of couples who intend to have a divorce. There is no doubt about the seriousness of the matters that we are debating. We are setting the moral code for future generations. This measure will unquestionably give the wrong lead.
983 The Conservative party continually draws to the attention of the public the need to return to a stable family life. I believe that this part of the Bill does nothing to strengthen marriage, which means, under present circumstances, that it will weaken marriage.
If the new clause is passed, will the Synod be required to amend the marriage oath to read, "For better for divorce, for richer for poorer, in sickness and in health, until one year's absolute bar do we part"?
It gives me no great pleasure to suggest to my right hon. and learned Friend that if we put through these changes tonight we will open the floodgates to divorce and regret the day that we ever took the decision. Surely we should create a climate that makes people think more carefully before entering marriage, if we believe genuinely in the institution.
§ Sir William van Straubenzee
I sense that it would be in accordance with the wishes of the House that those of us who are fortunate enough to be called—I believe that we have all sat, as we should have done, from the start until now — should exercise extreme brevity. I will speak shortly and discard almost all that I would have said, because much has been said so much better by others. I cannot be sure whether I can match the moderate language of my hon. Friend the Member for Basildon (Mr. Amess).
First, mention has been made of the Special Standing Committee procedures which were exercised in relation to the Bill. If ever we needed a justification for that alteration to our procedures, which I have always thought was the most important that we have made in recent years, the Bill and the Special Standing Committee that preceded it gave outstanding evidence of its value. I am grateful to it, because I have, as I am sure have other hon. Members who were not members of the Special Standing Committee, read virtually every word and profited greatly from it.
I have gently to correct my hon. Friend the Member for Rugby and Kenilworth (Mr. Pawsey), who is once again, happily, with us, because he says that I answer for the Church of England.
§ Sir William van Straubenzee
I believe that the record will show the first version, but he corrects himself and I gratefully accept the correction. I do not believe that anyone could answer for the Church of England. I am anxious to get that right, or heaven knows what questions will be put down to me. I answer only for the Church Commissioners.
I should like to reflect the regret that has been expressed in a number of speeches that on an issue so fundamental as marriage we Anglicans—I should not presume to speak for any of the other Christian churches, such as the great one to which my hon. Friend the Member for Rugby and Kenilworth belongs—have been given virtually no guidance. The appropriate commission of the Church of 984 England gave evidence to the Special Standing Committee and the Bishop of Birmingham has a letter in The Timestoday. I find it strange, but it is the case — I have examined it closely — that, although his staff made a great many calls to the two Whips' offices, they would not confirm that there was a free vote on the new clause. [Interruption.] I have been into the matter carefully and that is what I am assured that they were told. I wish to establish that there is no doubt—all hon. Members saw the implication in the Bishop of Birmingham's letter—that we are totally free to make up our own minds. My friends in the Church of England are spending a deal too much time on purely political issues—sometimes at the expense of the sort of moral issue which is before us.
A third matter troubles me greatly about the Bill. It is rather personal, so I shall treat it with care. The House has been extraordinarily fortunate in having been guided ministerially by my hon. and learned Friend the Solicitor-General. He has guided us, as ever, with judicial detachment, wisdom, fairness and courtesy, which all hon. Members associate with him. Although we may not all enter the same Lobby, I want to make that point clear.
I did not feel that there was that same detachment in another place. My right hon. and noble Friend the Lord Chancellor has an emotional commitment to the provisions of clause 1, which may, for the first time, have out-weighed his supreme judicial judgment and great services to the nation. That is not a wise way to legislate, especially for delicate legislation such as this. It troubles me profoundly. Some of his outbursts in relation to the bishops of the Church of England — [Interruption.] I mean to speak with care about a much-respected public figure — caused great offence to members of the Anglican Church.
Finally, I shall vote to keep the status quo, not because I think that it is perfect — I am aware of its imperfections—nor because I shall never be prepared to change it, but—this point was put well by other hon. Members—because I wish it to be changed as part of a wider package. Members of the Church of England are for once entitled to be heard on this issue because we produced the report "Putting Asunder" which was the basis of importing into our legal system the concept of the irretrievable breakdown of marriage. I was a Back-Bench Member of the Church team that confronted the judiciary at a remarkable meeting at All Souls.
The opening statement by a leading judge was that the issue we were putting before them was not justicable. The team, headed by the then formidable Bishop of Exeter, carried the day, and we moved forward considerably. Unfortunately, we added the concept of the matrimonial offence. If we could move further, and as part of a larger examination of matrimonial law—it is under way—bring in conciliation, consider family courts and—I am not sure how far this could be done by law—consider marriage preparation, bearing m mind the hideous break-up rate of the very young, as a package, I should certainly not stick upon the conditional bar for three years. I wish the change to be part of a whole.
If we cannot achieve that tonight, second best — I cannot do this because of the order these things appear on the Amendment Paper—would be my hon. Friend's new clause, and no absolute bar. That may surprise my right hon. and hon. Friends. I urge hon. Members to reread the speech of the hon. Member for Sedgefield (Mr. Blair), who made a blistering critique of the concept of an 985 absolute bar, whether for one, two or three years. I am deeply worried that we may substitute a very poor alternative for an admittedly inadequate existing provision.
That is why I shall plead, not as a rigid, conservative man, but as one who has taken part in debating and changing matrimonial law, that we maintain the status quo pending wider consideration of the whole matter. That would be the proper way to proceed, and hon. Members would do, as we all wish to do, our proper duty in supporting the institution of matrimony.
§ Mrs. Jill Knight (Birmingham, Edgbaston)
Marriage is not only the concern of the two people involved. It is not even the concern of the couple and any children they may have. Marriage and family life are the hearts and cornerstones of society, and, when this institution crumbles, the whole fabric of society breaks down. Therefore, it follows that Parliament should do everything in its power to strengthen, preserve and support it. I believe that tonight we are being asked to weaken it fundamentally.
The cost of marriage breakdown to the taxpayer is immense and is rising fast. Three years ago legal aid costs for all matrimonial proceedings in the High Court and the magistrates courts were about £30 million. Today, the sum is nearly £50 million. Three years ago legal advice and assistance in connection with divorce and judicial separation was almost £8 million. Today it is £12.8 million. Three years ago one-parent benefit cost £52 million a year, and today it is £122 million. It is important to recognise that we are talking about a period of three years in which those costs soared.
The social cost of divorce is also ruinous. Of course, I do not imply that all the children of divorced couples get into trouble, but the cost to society of difficulties with children from broken homes and one-parent families is vast in terms of delinquency, vandalism and juvenile crime. The Government know that and they deplore the breakdown of family life, but their case is that the Bill does not damage the institution of marriage. I believe that they are wrong, but I admit that, had I been forced to listen to some of the experts who addressed the Committee, I would have been very confused. The hon. Member for Sedgefield (Mr. Blair) made some excellent points on this matter.
I was amazed to read that one witness told the Committee that the courts should not apply the law of the land strictly. Does that mean that we are wasting our time passing laws and then selecting experts to come to our Committees and say that the law should not be applied strictly? I went through all the Committee reports, some of which stood reason on its head. I shall mention only a few moonbeams from the general lunacy. For example, one witness said that a one-year bar buttresses the institution of marriage, and to remove the bar would denigrate marriage. Is it buttressing marriage to tell couples about to be married that they can get divorced after one year? Would it denigrate marriage if it were not hammered home to the starry-eyed couple that the marriage could last for only one year? The Committee was told that the one-year bar is a compromise. A compromise between what—three years and one day?
986 We were told that available evidence shows that marriages in which the wife is aged between 20 and 24 are about 20 per cent. more likely to end in divorce than are marriages in which the wife is aged between 30 and 34. We are told:Apart from marriages in which the wife married as a teenager, the younger the wife at marriage the longer the marriage tends to last before divorce.That is a most puzzling statement.
However, it is clear that problems will not be solved by having a one-year bar. We were also told thatpeople do not many with a view to early divorce if the relationship does not work out; that young couples tend to stay married several years before resorting to divorce; that a period of years usually elapses between separation and divorce; and that the irretrievable breakdown of marriage culminating in divorce is not prevented by the three-year time bar.In that case, why are we introducing a one-year time bar? It is difficult to see the reasoning behind the evidence given to the Committee. The more I see of experts, the more I mistrust them, because it is difficult for them to agree even among themselves.
I am extremely worried, and I beg my hon and learned Friend the Solicitor-General to appreciate that the worry about this clause and the fear that it will weaken marriage goes far beyond the House. My hon. Friend the Member for Wokingham (Sir W. van Straubenzee) was right to rebuke the Church for not giving clear guidance. I have no doubt that in the Church and in the general public many extremely worried people are asking themselves, "What on earth are the Conservative Government doing?" Whichever way one examines the matter, the clause suggests to a couple that they need be married for only one year before they can get a divorce. That must weaken marriage.
I was attracted to new clause 3 solely because, as my hon. Friend the Member for Ynys Môn (Mr. Best) said, a time bar points people to divorce. However, I did not agree with his statement that it is completely intolerable and unacceptable to have even a one-year time bar. I have been most impressed by the arguments of hon. Members on both sides of the House on the advisability of amendment No. 1, which seeks to leave out clause 1. I am a signatory to amendment No. 2, but I would rather have amendment No. 1. We shall make a grave mistake if we introduce the one-year bar, and I shall vote against it.
§ Mr. Lawrence
This has been a fascinating and enlightening debate, although I found some difficulty in taking seriously the lament of my hon. Friend the Member for Wokingham (Sir W. van Straubenzee) that he had received no guidance from the Anglican Church, since no one in the House is better able to think for himself so sensibly, constructively and elegantly than my hon. Friend. My hon. Friend the Member for Basildon (Mr. Amess) seemed to think that the Bill was contrary to Conservatism. My reading of Conservatism is that we are the party that believes in sensible change when it is called for. That is why this is a very Conservative Bill.
The hon. Member for Southwark and Bermondsey (Mr. Hughes), who, I think, missed his vocation, suggested that we should wait even longer for evidence. What is not generally appreciated is that the process by which we have come to this day started as long ago as 1979. Countless committees, commissions, bodies and organisations have considered how best, if necessary, to reform the law. A total of 45 organisations and 469 private individuals wrote to or spoke to the Law Commission.
987 My hon. Friend the Member for Orpington (Mr. Stanbrook) said that there was no sound reason for changing the law. I find that difficult to accept when the President of the Family Division, various Lords of Appeal, including Lord Scarman, the Law Commission itself, the chairman of the Family Law Bar Association, Mr. Joseph Jackson, QC., countless Members of Parliament and Lords all think there is something wrong with the law and that it needs changing. My hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) implied that the law was not operating so badly that it needed change. I think she is wrong.
The question that we have to consider is whether clause 1 undermines marriage, reduces the security of children and weakens the fabric of society, as those who wish to see no change maintain. I have been written to by churches in my constituency and by lay persons who are concerned and who have worked themselves into quite a high state of anger at the suggested changes in the law. Therefore, I have thought it important to consider the matter with great care.
I do not think that the existing situation is better than the suggested changes, and one suggested change in particular. There are two reasons why I do not think the existing law is working particularly well. First, whether we like it or not, we live in what has come to be called the permissive society. One aspect of that permissive society is that women in particular, but also men, have different expectations in their relationship from those that they would have had at the time of the Marriage Act 1937 or what preceded it. No longer are people expected to know their proper place in society, and whether they are happy or not they must stick together and live in a sort of resignation, which may or may not be short of misery. Expectations now are very different and the law is wrong if it takes no account of those expectations or of the immense amount of misery involved in outdated legislation that does not relate to a changed situation in society.
Great misery and suffering are involved in dragging people who cannot live together in pleasure and happiness through the courts of law. I do not have to repeat all that has been said about the disgusting procedures involved in proving exceptional hardship and exceptional depravity. They leave marks on the character of people which often make it impossible to reach reasonable conclusions about financial arrangements or the future of the children. One effect of the present three-year bar is that when people can no longer live together—cannot bear to live together—they go to live with someone else. The result is a very large number of illegitimate children.
A headline in the Burton Mail reads:JP attacks new divorce plans".The article that follows says:The plans to allow divorce after one year instead of three should be rejected for the sake of the children involved, according to Burton magistrate, Mrs. Eleanor Hayward, the Chairman of the Burton branch of the Church of England Society".I wonder whether people consider the suffering caused to illegitimate children as a result of parents not being able to divorce and remarry. That is an important aspect which has not yet been mentioned in today's debate. It is part of the misery and suffering created by the present law.
I also think that the existing law is bad because it is ineffective. My colleagues argue that there is a bar, as if it were an effective bar. They have said that it is a 988 discretionary bar. In fact, no bar exists because anyone, the day after marriage, can apply for a judicial separation. About 70 per cent. of judicial separations are applied for within the first three years of marriage. Judicial separations usually result in divorce. The problem with that system is not that it acts as a bar to divorce, but that it involves going through the law twice, which is expensive, distressing and unnecessary.
The bar is not effective and the misery caused by the existing law invites us to change the law, as it invites so many of the distinguished people who have considered the matter year in and year out. Those distinguished people have considered not only the hard cases. All our judges have worked in the Family Division. The chairman of the Family Law Bar Association deals with nothing but divorce cases and has massive experience. Not one colleague to whom I have spoken who practises at the divorce Bar thinks that anything is wrong with the Government's proposal, because the existing law is so painful and unnecessary in the causing of misery and is so relatively ineffective.
What kind of change is needed? The change must involve a time bar. I am sorry that the hon. Member for Sedgefield (Mr. Blair), who made a most effective speech, has left the Chamber. My hon. Friend the Member for Wokingham thought that his speech was a blistering demolition of the time bar concept. I do not agree.
There can be two kinds of time bar—that which causes the misery experienced today, and that which does not cause misery. A one-year time bar has been hit upon as a reasoned and enlightened compromise, because it is believed by those who work in the divorce courts that., since it takes three to six months to get a divorce going, an extra six months will not cause untold misery and hardship. Twelve months seems reasonable. We are left to decide whether we agree.
The pressures for not having a time bar are great, but the public—who are perhaps unjustifiably worried—are entitled to have their views reflected, to some extent at least, by us. The public would be reassured not only by the fact that there is a one-year bar, but by the fact that it is an absolute time bar that is stronger in the protection of marriage than the existing situation, in which the bar is discretionary and in which anybody can go running to the magistrates court the day after their marriage and get a judicial separation. Such a time bar will reassure many of the public who have elected us, and who certainly do not wish to run down the institution of marriage.
We are all agreed that marriage is an excellent and vital institution. However, we are discussing divorce, not marriage. We are considering the abolition of misery, where possible, and the substitution of rules that may alleviate some of that misery. This is no more than damage limitation.
The Government have just about got it right in the Bill. I therefore support the Government's formulation, and I reject the formulations advanced by other hon. Members.
§ Mr. Peter Bruinvels (Leicester, East)
I declare an interest as a member of the Church of England, a member of a diocesan synod and its board of social responsibility, and a member of the board of advisers and pastoral committee. To that extent, I have advised many couples 989 in matrimonial difficulties. That may seem strange, as I am obviously one of the youngest Members and have been married only three and a half years.
I believe in giving marriage a chance. I greatly value the institution of marriage. I have always understood that marriage is for life. We have all heard the phrase "Till death do us part." The proposed clause denigrates the value of marriage. We need to learn about each other, and we cannot do that in a year. We do that every day. There is something new in marriage every month and every year, and marriage grows on one. It is to me, and to many people, the most important decision in life. It is far more important than buying a house.
I am concerned at the ease with which one can obtain a divorce. I agree with my hon. Friend the Member for Bury, North (Mr. Burt) that couples must be carefully prepared before marriage. If clause 1 goes through, one could be married for only a year, and the time bar would be allowed. I hope that strong emphasis will be put on that, because one does not just walk into marriage. If it is to be for one year only, some of the young will experiment and say, "We need not be married for long. We can get out of it in a year." They have nothing to lose, because they can get a divorce. The hon. Member for Southwark and Bermondsey (Mr. Hughes) said the one-year absolute bar would do that, and I agree.
I ask my hon. and learned hon. Friend the Solicitor-General whether a shorter term will strengthen family life and public morals. I do not think that it will. We live by example, but by whose example? I mentioned learning something new each day and each month. The first few months in any marriage are the most difficult. Having recently married, I speak with experience. It takes a long time to understand what is happening. What is wrong with waiting for three years? I cannot understand why people are not prepared to do that. Two of my closest friends in different marriages are going through divorces. I know both sides of their arguments. Both are prepared to wait the full three years. Indeed, one is reluctant to have a divorce, because he believed that he had married for life. Even though the marriage has irretrievably broken down, the idea of getting divorced is abhorrent to him, a Christian with Christian values and moral decency.
There is the reverse argument that couples may grow out of marriage many years later, and one ought to consider that, too. The divorce figure for women aged over 44 is 6.6 per cent. At that age, it may be easier to divorce, because the children have grown up and a couple do not have so many responsibilities. It is obviously terrible to have a divorce, but they could at least accept it at that time. An immediate divorce leaves any child born just in or out of wedlock with a very poor start in life. My great friend, my hon. and learned Friend the Member for Burton (Mr. Lawrence), spoke about more illegitimate children appearing on the scene. Obviously there will be many more illegitimate children if people can get divorced in that first year. In many of those marriages the lady will already be expecting a baby. A period of three years would help the child. It would give him a start in life. He would have the influence of his father or mother, whereas, after the divorce, he will obviously miss out on that. In the formative years at least, parents should try to stay 990 together. However, I am glad that the Government are prepared to help financially in an alternative clause, and that is welcome.
I am also worried that many young people at school may suddenly think that they should avoid exams and get married. A year later they may be divorced, with no qualifications behind them. What a start in life! What a future for them!
If it is easy to obtain a divorce, people will get married again and again. It concerns me that it does not seem to be a case of just remarrying once. However, can we blame people from going round in a circle if they can get divorced after a year? I am very worried about that. As Parliamentarians, we must lead by example. The public and the country need an example. They need to know that there are good, decent values. We need to show them what family life is all about, and how this country can be protected by avoiding the devaluation of the marriage vows.
I believe that marriage vows are sacrosanct. Marriage is a serious undertaking, and no one should ever undertake it lightly. The one-year provision would encourage people to take it lightly. This debate is not about politics. It is marvellous that, for the first time since I became a Member of Parliament, we can have a free vote. The debate concerns Britain's morality, and our society. Society expects us not to destroy but to protect marriage. My hon. Friend the Member for Rugby and Kenilworth (Mr. Pawsey) spoke about the high rate of divorce in this country. Under the new clause, there will be an even higher rate of divorce, and that is very worrying. We should do better.
I know that the Government are well intentioned in introducing the clause, but, with great reluctance, I have to say that they are wrong. It is the public who should be listened to. I say that we should leave the law as it is with a three-year discretionary bar. I shall have no hesitation in supporting amendment No. 1.
§ Mr. Greenway
It is a great honour to bring up the rear in this historic debate. My hon. and learned Friend the Member for Burton (Mr. Lawrence) spoke about a Church of England lady. From what he said, I should have thought that she was speaking not against the children of divorced people having properly married parents, but against the suffering of those whose lives are broken by parental divorce. That is how I read it. Although I almost always agree with my hon. and learned Friend, I must say that this debate concerns not divorce, but marriage. Indeed, if it is not about marriage, I cannot have been following the debate as I should have been doing.
My views are based on a lifetime's teaching experience, culminating in running a school of 2,000 children. I saw hundreds of children who were the result of broken homes and broken marriages. At the same time, I am a member of the Church of England and have always accepted the sacrament of marriage as one of the Church's seven great sacraments. It is a principle that marriage is sacred, and for life. That does not mean that I do not understand modern society, or that there has to be provision for divorce, but, as other hon. Members have said, we should all aspire, while accepting the fallen nature of man, to that principle.
I have consulted my constituents widely on this matter and have had discussions or correspondence with members of every church of every denomination. They have all 991 shown great compassion in their thinking on the matter, and also great firmness in thinking that marriage is a matter for the holy spirit of God rather than for man. That is why I say that this debate is about marriage and God's interpretation of it, not about man's legal interpretation of marriage, because it is a gift of God.
I echo the unhappiness of my hon. Friend the Member for Wokingham (Sir W. van Straubenzee) who referred to the Lord Chancellor's strong and distressing remarks in the House of Lords, which upset a large number of members of the Church of England and other faiths. We need to admit, and not be afraid to say, that there is a higher authority than the Lord Chancellor, and that authority is God himself.
The Law Commission, whose recommendations are being supported by the Government in the Bill, received overwhelming endorsement for a change in the existing law. At present the court has discretion to admit petitions for divorce in less than three years of marriage, but only in cases where exceptional hardship has been suffered by the petitioners or exceptional depravity has been committed by the respondents. It is argued that this discretion positively accentuates divorce because it encourages the petitioner to make the most unpleasant allegations possible to make a convincing case. Afterwards, the financial settlement and arrangements for any children are thereby made most acrimonious.
As I understand it, each judge has his own idea of what is exceptional in these cases and no consistent standard can be set, and that is one of the central problems. This makes divorce arbitrary — of that there is no question. Some people are tempted to opt for no time bar on divorce because such a system has worked well in Scotland and because they feel that the most Christian emphasis is to prevent pain and suffering. There is no convincing evidence that a time bar operates as an external buttress to the stability of marriage, as the Law Commission said. The number of marriages dissolved by the end of 10 years of marriage is no higher in Scotland, where there is no time bar, than in England and Wales. The increasing numbers of judicial separations and petitions, most of which are followed by divorce, demonstrate that the time bar is ineffective in bolstering failing marriages. Some say that no time bar would be the most rational step, but we are not operating in terms of pure logic—that is the burden of what I have already said and what the House should take on board.
We must take into account the public's perception of the proposed change and the Christian tradition of this country. Our role as legislators must be undertaken with these things in mind above all else. It is most important that marriage remains, and is seen to remain, as the bedrock of our society. In the Bill the grounds for divorce are not changed—they are still irretrievable breakdown of the marriage—but the proposal to introduce a one-year absolute ban in place of a three-year discretionary one is not the correct step.
One year is too short, for several reasons. First, it persuades people that divorce has been made easier. Second, it devalues marriage in the public eye and gives the wrong emphasis. There is a great need to reinforce family life within marriage, to strengthen family unity and to give children the security and help that come from the psychology of happily married parents.
Third, it shows a lack of respect for Christian marriage vows and the ideal of a union that is permanent and 992 lifelong, for better or for worse, although many, of course, fall short of that ideal. We can have only one law in England and Wales to cover all types of marriage, but I believe that a ban of only one year would show lack of respect for our Christian traditions and vows. I support a two-year absolute ban, which I believe better meets the public interest, if I may argue it in secular terms.
Two years may also be long enough to deter those contemplating sham marriages to achieve British nationality. I hesitate to mention that, but we know that it can happen. If there were no time limit, that might become a serious problem in some areas. Such an abuse would also seriously undermine the institution of marriage. A two-year period is also long enough to dismiss the thought that divorce has been made easier, but it is not so long to wait for those who have fallen short of the ideal marriage and may be suffering the traumas of a broken relationship, which in a minority of cases are very real and horrible and are admitted within the three-year period even under the existing law. Case history includes the wife who is pregnant by another man and the other party having syphilis, a wife going back to a former lover immediately after the honeymoon and a husband going off to be a homosexual within a few weeks of marriage. Those cases are part of legal history.
There is a small minority of cases—
§ Mr. Greenway
There is a small minority. A singular subject takes a singular verb. The hon. Lady should remember that I used to be a schoolmaster. As I am currently marking a thousand English papers, I am somewhat sensitive about these matters.
It should be remembered that 90 per cent. of all divorces are uncontested or completed by post. We must decide whether to prolong the agony in a small minority of cases for a little longer and enshrine the value of marriage in law or to be seen as making divorce easier for all and undermining the institution of marriage. I believe that we should make it clear to the public that we value marriage as the bedrock of society. The law must be concerned with strengthening family life. I support a two-year ban rather than a three-year ban, but certainly not a one-year ban.
§ The Solicitor-General
I begin by expressing my gratitude for the extraordinary high quality of all the speeches that I have heard, and I believe that I have listened to all but about one and a half of the contributions to this debate. I am also grateful for the kind remarks made about me by my hon. Friend the Member for Wokingham (Sir W. van Straubenzee). My hon. Friend spoke delicately, as he put it, because he wished to make a personal comment on the handling of matters in the other place by my right hon. and noble Friend the Lord Chancellor. I must say at once—I wish to get it over at the outset—that I cannot accept my hon. Friend's gentle strictures on the conduct of my right hon. and noble Friend.
The bishops have the good fortune to occupy a Bench in the House of Lords presided over by one of the great figures of our public life, and fortunate it is that he is robust, or he would not still adorn the place that he does. 993 Certainly my right hon. and noble Friend argued his Bill with vigour—had he not done so, I should have thought that he was ill—but he did not, I believe, argue it with discourtesy, although he perhaps argued it under some provocation from the ecclesiastical shortcomings so accurately identified by my hon. Friend the Member for Wokingham. I believe that my right hon. and noble Friend's resolute leadership should be seen as an example, not a source of grievance.
Throughout the debate the story kept coming back to me about the papal audience granted to Mrs. Clare Boothe Luce, the new United States ambassador to the Holy See. The story is that, after a mere half-hour of being addressed, the Pope observed faintly, "Ambassador, I am a Christian, too." I, too, am in favour of marriage as an institution and wish nothing to be done to weaken it. I, too, believe that the family is the foundation of society and I regret the prevalance of divorce. The same is true of the Lord Chancellor.
All of us are faced with a statutory provision that is actively and seriously harmful. It has been found to be harmful by judges, practitioners, voluntary agencies working in this connection and the law commissioners after substantial consultation and research. The law commissioners looked at the matter not as gurus or experts but as people carrying out research. That the provision is harmful was not denied by any of the witnesses whom the Special Standing Committee called, whether legal, ecclesiastical or lay.
The debate was very complex, because a number of amendments and new clauses were helpfully grouped together, although it is not especially helpful for me in having to reply to them all. I thought it might be helpful to the House, in giving a framework to my reply, to summarise the advice that I shall offer the House. First, the abolition of all time restrictions—this matter was raised by my hon. Friend the Member for Ynys Môn (Mr. Best)—might well be unsafe in its influence on public opinion, although a logical case can be made for it.
Secondly, the amendment No. 1 option of the hon. Member for Torfaen (Mr. Abse) and my hon. Friend the Member for Orpington (Mr. Stanbrook) to keep the present law unchanged would extend the harm done at present and would not be tolerable.
Thirdly, I believe that any future time bar should be absolute, because no satisfactory alternative conditions to the present one have been devised, nor do I believe they can be devised. Fourthly, the amendment No. 2 option of my hon. Friend the Member for Chislehurst (Mr. Sims) for a two-year time bar would often cause gratuitous hardship to innocent people, and a three-year time bar, as proposed in amendment No. 3, would be worse. Accordingly, I invite the House to accept that the clause, as drafted, is right.
I shall substantiate those propositions. The Law Commission recommended the change that is embodied in the Bill because of the harm caused by the present law, about which there is general agreement. The trouble is that there is a three-year conditional bar on presenting a divorce petition which, as my hon. and learned Friend the Member for Burton (Mr. Lawrence) reminded us, is not effectively a bar. The conditions in which that bar can be lifted — exceptional hardship and depravity — are incapable of consistent enforcement, because they are 994 conceptually absurd. Is anyone proud of the concept of normal or non-exceptional depravity as distinct from exceptional depravity? That measure hardly adorns the law.
The conditions in which the bar can be lifted cause increased bitterness and reduce the chances of conciliation, because the allegations needed to substantiate the charge of exceptional depravity encourage the use in a petition of damaging and exaggerated allegations of a distressing and painful kind, which flow over into the subsequent negotiations to matters such as access, custody, maintenance, and so forth.
The evidence is all one way. It is very damaging and it goes plumb against what is now the common ground that if, regrettably, a marriage comes unstuck our divorce procedures must permit the legal shell to be done away with with the minimum of humiliation, distress and indignity.
Lastly, for all those reasons, the conditions are harmful because they do harm to the children. Small wonder that Lord Scarman described it asan ugly and objectionable discretion which is causing embarrassment to judges and a good deal of hardship and bitterness to the parties whose marriage has broken down."—[Official Report, House of Lords, 21 November 1983; Vol. 445, c. 63.]In that castigation he was supported today by my hon. and learned Friend the Member for Fylde (Sir E. Gardner), whose speech I greatly admired, and by my hon. Friend the Member for Chislehurst, supporting the two-year option, but in no doubt about the harmfulness of the present situation.
Therefore, my advice to the House has to be that an overwhelming case has been established for some change to be made. It is argued, as it always is, that we should do nothing yet because it is premature. The only difference is that it is normally argued by civil servants that it would be premature to make any sort of move proposed by politicians whereas here it is politicians who are arguing that it would be premature to make any move until the Booth committee has reported on procedure, until steps are taken to introduce further provisions for conciliation, and until the Law Commission has reported on its study of the grounds for divorce. Yet those with experience of the Law Commission and these matters generally consider that it may well be five, six or seven years before new grounds are enacted and brought into operation. That was the evidence to the Committee.
The last point of the hon. Member for Torfaen was that he hoped we would not go ahead with this because if we did it would delay the day when the sole ground for divorce was separation for one year. I am not so sure that everybody in the House—certainly on the Conservative Benches—wishes to see that day arrive. Be that as it may, five, six or seven years is surely too long to go on tolerating the harm that has been so universally identified and condemned. That is not to say that progress cannot be made on matters such as conciliation, the family court, and so on.
My right hon. and noble Friend the Lord Chancellor is proceeding with a study of ways in which conciliation can be brought forward. The conciliation services do a valuable job, but they have not proved to be particularly effective at preserving marriages that have broken down in the early days. Indeed, the primary objective of conciliation is to enable parties to resolve the issues 995 between them in as amicable a manner as possible. Reconciliation is not the objective, although in some cases it can be a welcome side effect.
My right hon. and noble Friend the Lord Chancellor has some money available, which he has devoted to a further study of conciliation and how conciliation services can better be encouraged, and movements are afoot for progress in the areas that have been identified, but they do not in the main require primary legislation. Therefore, we should conclude that a change should not only be made but be made now. Therefore, we should reject amendment No. 1.
That is all very fine, but what change should be made? I entirely agree that this is a matter of practical judgment, as has been said by so many hon. Members tonight. No great issue of principle or dogma is engaged, as may be seen from the rich variety of alternatives on the Amendment Paper. None of us wants to make matters worse. None of us wants to signal that Parliament somehow thinks less of marriage and regards it as an ephemeral state, not to be cherished as an institution. We all want to make our divorce procedure work acceptably and we all share a desire not to encourage more divorce.
The judgment of the Government agrees with that of the Law Commission in that, whatever change is made, it is preferable on balance to keep some time restrictions and that any such restrictions should be not conditional, but absolute.
I owe it to the House to explain why, on balance, we think that there must continue to be a time bar, restricting the commencement of divorce proceedings. It is an opinion that is rooted in compromise, and none the worse for that. If there were more compromise in marriage, there would be less divorce. There is no doubt that an attractive and logical case can be made for having no time restriction at all. I am grateful to my hon. Friend the Member for Ynys Môn for that and for his remarks about the help that he was given by the Lord Chancellor's Department in drafting his new clause. The drafting is all right, but I advise the House that, on balance, its effect is not.
Irretrievable breakdown of marriage is the sole ground for divorce these days. Perhaps that is a pity, but it is so. Therefore, we can say that once marriage has broken down irretrievably according to the tests laid down by the law, there should be no time bar. Breakdown is established through one of the four states of fact that the House already knows about: adultery, unreasonable conduct, separation and desertion. It is at once apparent that, by these statutory criteria of whether or not a marriage has broken down, it can break down irretrievably within months, or less, of the wedding day.
Lord Denning gave examples. Within a day or a week of marriage a wife went off with her former lover and lived with him. The husband was left alone, and the wife became pregnant by her former lover. That was an actual case, and leave was given without question for an early divorce.
In another case, immediately after the wedding there was a honeymoon with an entirely heterosexual relationship. After three weeks, the husband went off with a male cousin, committed homosexuality with him, lived with him and discarded his wife. Of course, early divorce was permitted.
996 Early breakdowns of marriage leading to early divorce are not negligible in number—the House should attach some importance to that — although they are a tiny proportion of the total. An hon. Member rightly said that we must never regard cases as unimportant because each concerns the lives of human beings. The cases have not been negligible in number over the past three years. I can give figures if they are wanted.
An answer is needed to the question why, if the marriage has died in fact and it would be held to have died in substantive law, should procedural law insist on ensuring that its legal existence may not be ended?
The case that was put by my hon. Friend the Member for Ynys Môn is reinforced by the Scottish experience. I shall not say more about it as it has been adequately and effectively canvassed in the speech by my right hon. and learned Friend the Member for Southport (Sir I. Percival). Scotland never had and does not have a time bar now.
The Law Commission concludes from the Scottish experience that a time bar defers but does not deter divorce. There has been much support for that view in the House this afternoon. It is further reinforced by our legal history in England and Wales. We did not have a time bar after the civil courts were granted jurisdiction over divorce in 1857. What a revolutionary change that must have seemed—the green light for divorce. Yet, for all that, no time bar was imposed, and for 44 years of Queen Victoria's reign and for the first 37 years of this century there was no time bar at all, and none, evidently, was thought necessary.
Some of us reflect with nostalgia on Victorian values. If there was a greater respect for marriage in Victorian times, it owed nothing to a time bar on the commencement of divorce proceedings, for there was none, and none was thought desirable. If it is said that times were different, nevertheless adultery was still adultery, even in 1857, and divorce was available for it. If it is said that the public's attitude to marriage is different now, it has coincided with the period of the three-year time bar. As Prebendary Gladwin of the Board for Social Responsibility said, has it been caused by it? I face the fact that there is much to be said for new clause 3, but there is a difference between sticking to what has always been the arrangement and suddenly switching from a three-year bar, albeit conditional, to none at all.
My hon. Friend the Member for Croydon, North-West (Mr. Matins) made that point in his intervention, and it was made by many others. That change, which is not apparent in Scotland, might be invested with a significance, a drama, deriving from the very fact of the change itself. It may send a false signal that Parliament cares little for marriage. I entirely agree with what was said by my right hon. and learned Friend the Member for Southport (Sir I. Percival), my hon. and learned Friend the Member for Fylde and others. That thought was expressed in the evidence given to our Committee by the President of the Family Division, Lord Scarman, and, indeed, by the hon. Member for Ipswich (Mr. Weetch), whose contributions to our proceedings were of such great benefit to us all.
§ Mr. John Home Robertson (East Lothian)
Referring to the point that the Solicitor-General has just made, for how long has the rule in Scotland been different from the rule in England?
§ The Solicitor-General
For 400 years or more. I wish that my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) were here, because he would explain how long the Scots have had this rule. They have had it for 400 years or more. It serves them well. They have rejected opportunities to make a change.
This is a matter of practical judgment, but this was the reasoning that turned the Law Commission away from recommending that we adopt the Scots arrangement, with no time restriction at all. On balance, the Government agreed, so clause 1 still provides a time bar.
§ Mr. John Morris (Aberavon)
Given the evidence before the Committee, which I have read, that very few people knew the time limitation before one could bring a divorce petition, is the only argument of substance against that of the hon. Member for Ynys Môn (Mr. Best) that a false signal might come from Parliament to people who are now wholly unaware of the position?
§ The Solicitor-General
It is very much the most important argument against new clause 3. Perhaps not many people know that the period is now three years. However, many more will know that we have had this debate and made the change. That is the answer to the right hon. and learned Gentleman.
It is for all right hon. and hon. Members to decide for themselves. I agree with my hon. Friend the Member for Orpington, who said that it is for us to decide, and that we might bring more to the debate than experts in the Law Commission and so on. My advice to the House is to reject new clause 3 for the reasons that I have given.
However, that leaves the question, "What kind of bar?" Should it be conditional or absolute? The old conditions must go. That is common ground. Because amendment No. 1 retains them, I advise the House to reject the amendment for that reason, if for no other—and there are others.
Are there any other conditions that will serve viably to hold the line, as it were, against frivolous marriage and instant divorce, on the one hand, while giving the flexibility that is needed to prevent hardship, on the other? I can say only that no conditions have been suggested by any witness, and the Law Commission could think of none. Some got as far as saying that it should not be beyond the power of Government, and it should not be impossible to find them, but none ventured to put any forward.
There is a letter in The Times today from the Bishop of Birmingham, the chairman of the Board for Social Responsibility. That board gave evidence to the Committee through its vice-chairman and its secretary. I should like to read a passage from the evidence which showed that they said one thing in June and virtually the opposite the following March. I can only say of the Board for Social Responsibility, in this regard, that its trumpet hath sent forth an uncertain note. I agree with what my hon. Friend the Member for Wokingham said about that. One of the witnesses of the Board of Social Responsibility told us:We find it rather difficult to suggest ways of handling the immediate needs",and added that the board was "rather unsettled" about that. The Government must decide how to handle the immediate needs. We do not think it right simply to remain "rather unsettled" after the Law Commission's inquiry and report.
998 I hope that the board is not of the view that for marriages which, it agrees,never get established and which, in the light of what is discovered in the early stages of the marriage, have no reasonable hope of ever being successful in any meaningful sense",a three-year absolute time bar should apply in the civil law of divorce. I hope that it is not saying that. If it is, I do not think that many would see that as representing a reasonable attitude.
While the board rejected a one-year bar, it did not feel able to say what it would approve. In the absence of any satisfactory alternative conditions, the Government are clear that the Law Commission was right in recommending an absolute, not a conditional, bar. I must allow, therefore, that amendments Nos. 2 and 3 have that merit in that they are absolute bars.
In the opinion of the Government, even a two-year absolute bar is too long. If we are changing from a three-year conditional bar to an absolute bar, it is self-evident that the absolute bar must be shorter than three years. The reason is that we must cater for the kind of case recalled by Lord Denning, to which I have referred, of the almost instant breakdown with no blame on the part of the deserted spouse.
It is not to be assumed that such a person will never wish to marry again. Why should it? Every one of the benefits of marriage was withheld from her first marriage, which died almost before it began. She never tasted marriage at all. No doubt that wife will not wish to remarry at once. To postpone, until a year has elapsed, her first step on the road to remarriage might cause inconvenience but surely not hardship.
I disagree with my hon. Friend the Member for Ynys Môn that there would be hardship. The hon. Member for Torfaen dealt with that, as did my hon. Friend the Member for Milton Keynes (Mr. Benyon), who made an impressive speech in favour of clause 1, as drafted, having thought differently to begin with. My right hon. and learned Friend.the Member for Southport said much the same.
To postpone for two years the right to start down the road to remarriage is very different indeed, and I agree with my hon. Friend the Member for Orpington that that would be hardship. Why should a woman whose marriage crashed in those hideously distressing circumstances, almost at once, be made to wait for so long before she can even start to rid herself of that marriage's legal shell, and then perhaps a further six months before she is able to marry again?
I regret that the hon. Member for Southwark and Bermondsey (Mr. Hughes), having made a speech, is not in his place. He spoke of marriage being an ordained state, and with that I agree, as do many of my hon. Friends. What is the most poignantly described of the purposes for which we are told incomparably in the Prayer Book that marriage is ordained? It is the mutual society, help and comfort that the one should have of the other, both in prosperity and adversity. That is just as true of marriage in a registry office as it is of marriage in a church.
Why should that woman be denied those precious benefits for so long by a state which permits divorce and recognises as lawful a second marriage? Is it argued that in her adversity she has no need of comfort and merits no help? Suppose she does not want to live with a man to whom she is not married. It has been suggested to me by a distinguished churchman that it is perfectly all right for her to live with him so long as they do not get married. 999 Suppose she does not want to live with that man, however fond of him she may be. Suppose she does not want to bear his child. I hope that such an attitude is not so old-fashioned that the modern Church cannot applaud it.
It has been said that we are against illegitimacy. My hon. Friend the Member for Batley and Spen (Mrs. Peacock) rightly deplored the increase in illegitimacy. I ask her to reflect, with respect, whether by making someone wait two or three years before they can even start on the road to remarriage that will encourage or discourage illegitimacy.
I shall remind the House of how it is argued. The written evidence on behalf of the Board for Social Responsibility may be consulted. It states:In any case it needs to be asked"—which I find is Church language for a statement that the opposite is the truth—
§ It being Ten o'clock, the debate stood adjourned.
§ Question again proposed, That the clause be read a Second time.
§ The Solicitor-General
To continue:In any case it needs to be asked whether it is in the best interests of those who made such a disastrous choice of partner in their first marriage that it crashed within a few months of its commencement to be given freedom to contract another union almost immediately, rather than after two or three years.—[Official Report, Special Standing Committee, 20 March 1984; c. 38.]I heard the Bishop of Birmingham say the same thing on television at lunch-time today.
That is an approach that I find—the House may agree with me or not—highly unjust and unattractively presumptuous. It is one that is incompatible with the basis of our civil law of divorce, which is founded on the irretrievable breakdown of marriage. It is the penalty to which the Law Commission referred and to which my hon. Friends the Members for Ynys Môn and for Stockport referred. [Interruption.] Not Southport, Stockport. I know the difference between the two because I went to one of them on Friday. I went to the other at the general election. [Interruption.] I ask hon. Members not to press me.
If there is to be an absolute time bar, my advice to the House agrees with that of the Law Commission — that unacceptable hardship may well result if it is longer than one year.
Of course, I must face the fact—and I have not left it to the last because I wanted to get away from it—that there remains an assertion that this will send forth a damaging signal to the country, and that it will be misunderstood. I do not believe it. For the first time, we shall be imposing a time bar with no exceptions in place of a discretionary bar which is lifted virtually whenever an applicant asks for it without any close investigation. As has been made clear, it happens in 95 cases out of every 100. For the first time we shall be making the real quickie divorce impossible. This is a sterner, not a weaker, rule.
I venture to suggest that if there are people who misunderstand this, if it is explained to them, as has been said, they are not in any event likely to reshape their own attitude to marriage accordingly. I suspect that they will continue to be formed by numerous other influences and be quite unmoved by anything that we do.
1000 I advise the House, therefore, to vote for clause 1 as it stands. This has been a tricky debate to which to reply and to do justice, and I cannot claim to have done that.
To abolish all time restrictions might well be unsafe, and that is new clause 3. To retain the present law—amendment No. 1—would be harmful and intolerable. It would retain the quickie divorce available on demand. I hope that my hon. Friends will reflect upon that.
An absolute time bar is, on balance, preferable; yet two years would frequently cause gratuitous hardship to innocent people, and three years would be worse. With the Law Commission, we believe that the right compromise lies in the one year absolute, which will cause no hardship and yet will serve as a valuable symbol.
I commend with the greatest respect the speeches of my right hon. and learned Friend the Member for Southport, my hon. Friend the Member for Milton Keynes and my hon. and learned Friends the Members for Fylde and for Burton.
I hope that I am no less ardent than any of my hon. Friends in support of the family, marriage, or the reputation of the Government or the party. I do not believe that by closing the door on the real quickie divorce we cart be accused of cheapening marriage. If, by new clause 3, we insisted on retaining it, we would seem odd indeed. If we carried amendments Nos. 2 or 3, we would seem to be harsh and insisting on law that is out of touch with reality. Amendments Nos. 2 and 3 seek absolute bars for two or three years respectively to be considered as an alternative to the absolute bar of clause 1. For the reasons that I have given, each of those would give rise to gratuitous hardship to innocent people, and probably to greater illegitimacy. That cannot be justified. That is why I invite the House to reject both amendments and to support the clause as it stands.
§ Mr. Best
When my hon. and learned Friend the Solicitor-General practised at the Bar, he may have come up against the chilling experience which sometimes confronts me. When I have presented a case to a judge and he starts with the words: "Mr. Best, you have said all that could have been said on behalf of your client. You have put it in the most persuasive way, but I have to say to you … ", I know that I have lost.
My hon. and learned Friend said all that could be said on behalf of the Government in support of clause 1, and said it in a most persuasive way. Nevertheless, some hon. Members, including myself, will not have been persuaded by his comments. I hope that he will understand me when I say that his argument about the difference between Stockport and Southport was as persuasive as his argument about the difference between a one-year absolute bar and no bar.
I thank my hon. and learned Friend for much of what he said, because it appeared to support new clause 3. He said that there was much to be said for new clause 3, and I am grateful to him for that. There was not even a poisonous sting in the tail, as I expected. He deployed persuasive arguments in favour of new clause 3. The gravamen of the argument against new clause 3 is whether the abolition of a bar, such as the present discretionary bar, and the failure to substitute for it an absolute bar of one year, as is proposed in the Bill, might send a false signal. That is a matter of speculation. Against that, one can be certain that hardship cases will be caused if there is a bar 1001 on the presentation of a petition, whatever the length of the period. Examples of that have been put forward by hon. Members, including the Solicitor-General.
I accept that that may occur in only a few cases if there is a one-year absolute bar but, as my hon. and learned Friend said, we must consider people as individuals. If individuals will suffer hardship, as they will do if the clause is made law, that is a reason to scrutinise the clause even more carefully and to vote against it.
The Solicitor-General said that clause 1 might cause inconvenience, as of course it will. But why should it cause inconvenience and hardship when we can ensure that they do not occur? He argued against the two-years bar. Would he have argued so persuasively against a 18-months for 13-months bar? I wondered at what point he would change from his vehement opposition to the two-years absolute bar to his support for the Government's one-year absolute bar. There is no logical point at which that could occur.
I listened with great care to my hon. and learned Friend the Member for Fylde (Sir E. Gardner), who put his finger on the point. He said that it was against logic and his instinct not to support new clause 3, and that his argument was as much psychological as it was logical. I respect deeply what he said, because it obviously came from the heart. I ask the House to vote logically, not on the basis of a perception that, on the evidence, does not exist in the general public. Far from being a signal that marriage has been cheapened, if we pass new clause 3 it will be a signal that we believe that marriage is for life but that, in circumstances where it has irretrievably broken down through the misfortunes that can occur, those people should be helped at whatever time the breakdown occurs.
That is the message that should go from the House tonight, and I hope that hon. Members will support me in sending it.
§ Question put, That the clause be read a Second time:—
§ The House divided: Ayes 45, Noes 162.1003
|Division No. 364]||[10.10 pm|
|Atkinson, N. (Tottenham)||Madden, Max|
|Batiste, Spencer||Meadowcroft, Michael|
|Bermingham, Gerald||Mikardo, Ian|
|Blair, Anthony||Morris, Rt Hon J. (Aberavon)|
|Callaghan, Jim (Heyw'd & M)||Nellist, David|
|Chope, Christopher||Nelson, Anthony|
|Corbyn, Jeremy||Norris, Steven|
|Cowans, Harry||Ottaway, Richard|
|Davis, Terry (B'ham, H'ge H'l)||Parris, Matthew|
|Dicks, Terry||Pike, Peter|
|Dunwoody, Hon Mrs G.||Raffan, Keith|
|Favell, Anthony||Richardson, Ms Jo|
|Forsyth, Michael (Stirling)||Rowe, Andrew|
|Harman, Ms Harriet||Skinner, Dennis|
|Haynes, Frank||Smith, C.(Isl'ton S & F'bury)|
|Hayward, Robert||Spencer, Derek|
|Home Robertson, John||Thurnham, Peter|
|Hooson, Tom||Tinn, James|
|Howarth, Alan (Stratf'd-on-A)||Twinn, Dr Ian|
|Jones, Robert (W Herts)||Wood, Timothy|
|Knowles, Michael||Tellers for the Ayes:|
|Lawler, Geoffrey||Mr. Keith Best and Mr. Alex Carlile.|
|MacKay, Andrew (Berkshire)|
|Abse, Leo||Hunt, David (Wirral)|
|Alexander, Richard||Hunter, Andrew|
|Alison, Rt Hon Michael||Hurd, Rt Hon Douglas|
|Amess, David||Jessel, Toby|
|Ashby, David||Johnson-Smith, Sir Geoffrey|
|Atkinson, David (B'm'th E)||Jones, Gwilym (Cardiff N)|
|Baker, Rt Hon K. (Mole Vall'y)||Joseph, Rt Hon Sir Keith|
|Baker, Nicholas (N Dorset)||Key, Robert|
|Baldry, Anthony||King, Roger (B'ham N'field)|
|Bellingham, Henry||Knight, Gregory (Derby N)|
|Benyon, William||Lawrence, Ivan|
|Berry, Sir Anthony||Leigh, Edward (Gainsbor'gh)|
|Bevan, David Gilroy||Lilley, Peter|
|Biggs-Davison, Sir John||Lloyd, Peter, (Fareham)|
|Boscawen, Hon Robert||Lyell, Nicholas|
|Bowden, Gerald (Dulwich)||Maclean, David John|
|Braine, Sir Bernard||Major, John|
|Brandon-Bravo, Martin||Malins, Humfrey|
|Bright, Graham||Mather, Carol|
|Brinton, Tim||Mayhew, Sir Patrick|
|Brooke, Hon Peter||Mills, Sir Peter (West Devon)|
|Bruinvels, Peter||Morris, M. (N'hampton, S)|
|Burt, Alistair||Morrison, Hon C. (Devizes)|
|Campbell-Savours, Dale||Morrison, Hon P. (Chester)|
|Carlisle, John (N Luton)||Moynihan, Hon C.|
|Carlisle, Kenneth (Lincoln)||Murphy, Christopher|
|Chapman, Sydney||Newton, Tony|
|Clark, Hon A. (Plym'th S'n)||Nicholls, Patrick|
|Clark, Dr Michael (Rochford)||Oakes, Rt Hon Gordon|
|Clark, Sir W. (Croydon S)||Onslow, Cranley|
|Conway, Derek||Page, Richard (Herts SW)|
|Coombs, Simon||Pawsey, James|
|Cope, John||Peacock, Mrs Elizabeth|
|Cranborne, Viscount||Percival, Rt Hon Sir Ian|
|Currie, Mrs Edwina||Powley, John|
|Deakins, Eric||Raison, Rt Hon Timothy|
|Dorrell, Stephen||Rhodes James, Robert|
|Douglas-Hamilton, Lord J.||Ridley, Rt Hon Nicholas|
|Dover, Den||Ridsdale, Sir Julian|
|Dunn, Robert||Robinson, Mark (N'port W)|
|Durant, Tony||Rossi, Sir Hugh|
|Dykes, Hugh||Sackville, Hon Thomas|
|Evennett, David||Sainsbury, Hon Timothy|
|Eyre, Sir Reginald||Sayeed, Jonathan|
|Fallon, Michael||Shaw, Sir Michael (Scarb')|
|Farr, John||Shelton, William (Streatham)|
|Fenner, Mrs Peggy||Shersby, Michael|
|Finsberg, Sir Geoffrey||Silvester, Fred|
|Forman, Nigel||Sims, Roger|
|Forrester, John||Skeet, T. H. H.|
|Fox, Marcus||Smith, Tim (Beaconsfield)|
|Franks, Cecil||Spicer, Michael (S Worcs)|
|Fraser, J. (Norwood)||Stanbrook, Ivor|
|Freeman, Roger||Stern, Michael|
|Fry, Peter||Stevens, Lewis (Nuneaton)|
|Gale, Roger||Stewart, Allan (Eastwood)|
|Galley, Roy||Stewart, Andrew (Sherwood)|
|Gardiner, George (Reigate)||Sumberg, David|
|Gardner, Sir Edward (Fylde)||Taylor, John (Solihull)|
|Garel-Jones, Tristan||Temple-Morris, Peter|
|Goodhart, Sir Philip||Thatcher, Rt Hon Mrs M.|
|Goodlad, Alastair||Thomas, Rt Hon Peter|
|Gow, Ian||Thompson, Donald (Calder V)|
|Gower, Sir Raymond||Thompson, Patrick (N'ich N)|
|Greenway, Harry||Thome, Neil (Ilford S)|
|Hamilton, Hon A. (Epsom)||Tracey, Richard|
|Hamilton, Neil (Tatton)||van Straubenzee, Sir W.|
|Hargreaves, Kenneth||Viggers, Peter|
|Harris, David||Waddington, David|
|Haselhurst, Alan||Wakeham, Rt Hon John|
|Havers, Rt Hon Sir Michael||Walden, George|
|Hawksley, Warren||Waller, Gary|
|Higgins, Rt Hon Terence L.||Wardle, C. (Bexhill)|
|Hind, Kenneth||Watson, John|
|Hogg, Hon Douglas (Gr'th'm)||Watts, John|
|Holt, Richard||Weetch, Ken|
|Howard, Michael||Wells, Bowen (Hertford)|
|Hubbard-Miles, Peter||Whitfield, John|
|Hughes, Simon (Southwark)||Whitney, Raymond|
|Winterton, Mrs Ann|
|Winterton, Nicholas||Tellers for the Noes:|
|Yeo, Tim||Mr. Ian Lang and Mr. Michael Neubert.|
|Young, Sir George (Acton)|
§ Question accordingly negatived.