§ 3.49 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, I rise to move that this Bill be now read a third time. I am entirely in the hands of the House, but I would suggest that any general debate we have on the Bill should be taken on the Motion, That the Bill do now pass, as I have four amendments down in my name which I would hope to discuss next. I beg to move.
§ Moved, That the Bill be now read a third time.—(The Lord Chancellor.)
§ On Question, Bill read a third time.
The Lord Chancellor moved Amendment No. 1:
After Clause 8, insert the following new clause:
§ ("Orders for payments which have been agreed by the parties
. For section 6 of the Domestic Proceedings and Magistrates' Courts Act 1978 there shall be substituted the following section—
Orders for payments which have been agreed by the parties.
§ 6.—(1) Either party to a marriage may apply to a magistrates' court for an order under this section on the ground that either the party making the application or the other party to the marriage has agreed to make such financial provision as may be specified in the application and, subject to subsection (3) below, the court on such an application may if—
- (a) it is satisfied that the applicant or the respondent, as the case may be, has agreed to make that provision, and
- (b) it has no reason to think that it would be contrary to the interests of justice to exercise its powers hereunder,
§ (2) In this section "financial provision" means the provision mentioned in any one or more of the following paragraphs, that is to say—
- (a) the making of periodical payments by one party to the other,
- (b) the payment of a lump sum by one party to the other,
- (c) the making of periodical payments by one party to a child of the family or to the other party for the benefit of such a child,
- (d) the payment by one party of a lump sum to a child of the family or to the other party for the benefit of such a child,
§ (3) Where the financial provision specified in an application under subsection (1) above includes or consists of provision in respect of a child of the family, the court shall not make an order under that subsection unless it considers that the provision which the applicant or the respondent, as the case may be, has agreed to make in respect of that child provides for, or makes a proper contribution towards, the financial needs of the child.
§ (4) A party to a marriage who has applied for an order under section 2 of this Act shall not be precluded at any time before the determination of that application from applying for an order under this section; but if an order is made under this section on the application of either party and either of them has also made an application for an order under section 2 of this Act, the application made for the order under section 2 shall be treated as if it had been withdrawn.770
§ (5) Where on an application under subsection (1) above the court decides—
- (a) that it would be contrary to the interests of justice to make an order for the making of the financial provision specified in the application, or
- (b) that any financial provision which the applicant or the respondent, as the case may be, has agreed to make in respect of a child of the family does not provide for, or make a proper contribution towards, the financial needs of that child,
- (i) that it would not be contrary to the interests of justice to make an order for the making of some other financial provision specified by the court, and
- (ii) that, in so far as that other financial provision contains any provision for a child of the family, it provides for, or makes a proper contribution towards, the financial needs of that child,
§ (6) Subject to subsection (8) below, the provisions of section 4 of this Act shall apply in relation to an order under this section which requires periodical payments to be made to a party to a marriage for his own benefit as they apply in relation to an order under section 2(1)(a) of this Act.
§ (7) Subject to subsection (8) below, the provisions of section 5 of this Act shall apply in relation to an order under this section for the making of financial provision in respect of a child of the family as they apply in relation to an order under section 2(1)(c) or (d) of this Act.
§ (8) Where the court makes an order under this section which contains provision for the making of periodical payments and, by virtue of subsection (4) above, an application for an order under section 2 of this Act is treated as if it had been withdrawn, then the term which may be specified as the term for which the payments are to be made may begin with the date of the making of the application for the order under section 2 or any later date.
§ (9) Where the respondent is not present or represented by counsel or solicitor at the hearing of an application for an order under subsection (1) above, the court shall not make an order under this section unless there is produced to the court such evidence as may be prescribed by rules of—
- (a) the consent of the respondent to the making of the order,
- (b) the financial resources of the respondent, and
- (c) in a case where the financial provision specified in the application includes or consists of provision in respect of a child of the family to be made by the applicant to the respondent for the benefit of the child or to the child, the financial resources of the child.
§ The noble and learned Lord said: My Lords, these first four amendments look fairly formidable but I hope to make them reasonably simple because they all relate to an undertaking which I originally gave to the noble Baroness, Lady David, in Committee, and I had to apologise to her on Report for not having them ready at that time. They relate to the proposed amendment to the Domestic Proceedings and Magistrates' Courts Act 1978.
§ Amendment No. 2: Clause 42, page 32, line 16, at beginning insert ("With the exception of section (Orders for payments which have been agreed by the parties)").
§ Amendment No. 3: Page 32, line 19, at end insert ("and that section shall come into force on such day as the Lord Chancellor appoints").
Amendment No. 4: Schedule 1, page 36, leave out lines 40 to 44 and insert—
(" . In section 1 of the Domestic Proceedings and Magistrates' Courts Act 1978 the words "(in this Part of this Act referred to as "the respondent")" shall be omitted.
. In section 7(5) of that Act, for the words "subsection (1)" there shall be substituted the words "subsection (2)(c)".
§ . In section 11 of that Act—
- (a) in subsection (2), after the words "of this Act" there shall be inserted the words "on an application for an order under section 2 or 7 of this Act,";
- (b) after subsection (2) there shall be inserted the following subsection—
§ "(2A) Where by an order made under section 8(2) of this Act on an application for an order under section 6 of this Act, the right to the actual custody of a child is given to the party to the marriage who has agreed to make the financial provision specified in the application, the court may make one or both of the following orders, that is to say—
- (a) an order that the other party to the marriage shall make to that party for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;
- (b) an order that the other party to the marriage shall pay to that party for the benefit of the child or to the child such lump sum as may be so specified.";
- (c) in subsection (5), after the words "subsection (2)" there shall be inserted "(2A)" and for the words "section 3(2)" there shall be substituted the words "section 3(3)";
- (d) in subsection (6) after the words "subsection (2)(a)" there shall be inserted "(2A)(a)"; and
- (e) in subsection (7) after the words "subsection (2)(b)", in both places where they occur, there shall be inserted "(2A)(b)".
§ . In section 19 of that Act, after subsection (3), there shall be inserted the following subsection—
§ "(3A) Where an application is made for an order under section 6 of this Act by the party to the marriage who has agreed to make the financial provision specified in the application—
- (a) subsection (1) shall apply as if the reference in paragraph (i) to the respondent were a reference to the applicant and the references to the applicant were references to the respondent; and
- (b) subsections (2) and (3) shall apply accordingly."
§ . In section 20(8) of that Act, after the word "respondent" there shall be inserted the words "or the applicant, as the case may be,".
§ . In section 29 of that Act, at the end of subsection (2), there shall be added the words "or, in a case where there was made to the magistrates' court an application for an order under section 2 and an application under section 6 and the term of the periodical payments were or might have been ordered to begin on the date of the making of the application for an order under section 2, the date of the making of that application".")
§ The House will see from the somewhat lengthy amendments which stand in my name the reason which led me to find that the operation was a slightly more complicated drafting one than I had originally contemplated when making my original undertaking. I think I can speak to all of them most conveniently together, because that will explain the structure of the amendments.
§ The first amendment, which technically I am now moving, gives effect to my undertaking. The point which the noble Baroness made was that these orders under Section 6 of the Act to be amended are now made on the application of the recipient only. The effect of this, which one would think to be much simpler than appears on paper, was simply to enable the payer also to make such an application. It proved to be more complicated than we had thought.
§ The only two special features of the first amendment to which I ought to draw the attention of the House are, first, that under the new subsection (8) of the amendment we have tried to meet the point of the noble Baroness that where a case starts under Section 2 and develops into a Section 6 application during its course, the court would have power to backdate the resulting agreed order to the date of the making of the original application under Section 2.
§ Subsection (9), which is also to some extent new, deals with the case where the respondent neither 772 attends the hearing in person nor sends a legal representative to do so on his behalf. In such a case the absent party will have to provide the court with evidence of consent to the making of the order and the financial resources of the respondent and, where applicable, of the children.
§ Where the respondent is the recipient (that is normally the wife) who might also very well have the care of children, the court will be able to check whether the agreed financial provision specified in the payer's application is reasonable in the light of her means and those of the children. Where the payer is the absent respondent, the amendment makes no changes because the existing section already requires evidence of consent and resources so that the court can check that he has the means to afford the proposed financial provision.
§ I should like to explain how the following amendments fit in, because I shall then be able to move them together formally. Nos. 2 and 3 make a change in the commencement date. The original provisions provided for automatic commencement three months after Royal Assent. Unfortunately, the effect of the new amendment is that there will have to be changes in the court rules. I therefore have to allow time for the scrutiny of the new rules by the Rule Committee and the parliamentary procedure associated with subordinate legislation. That generally takes a minimum of three months, and we therefore thought it advisable to allow a little more time for the process to be carried out. I think that all the amendments set out in Amendment No. 4, although they are numerous, are consequential upon the first. I beg to move the first of the amendments standing in my name.
§ Baroness David
My Lords, I am extremely grateful to the noble and learned Lord for having carried out his commitment to put down an amendment of this sort. I had not envisaged that it would take about four pages to do it, and I quite understand why it was not ready for Report. I think the noble and learned Lord knows that I put down the amendment at the instigation of a friend who is a solicitor and who works in the domestic court a great deal. The noble and learned Lord having kindly sent me the amendments in manuscript form, I sent them on to her. She says she is entirely satisfied with what has been done and is glad that the opportunity has been taken to do a tidying-up operation. She says that the new clause will be very much easier to follow than the old one; so I can only express my gratitude for what has been done.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendments Nos. 2, 3 and 4:
§ [Printed above]
§ The noble and learned Lord said: My Lords, it might be in order if I now move the other three amendments en bloc, because I have already explained them. I beg to move Amendments Nos. 2, 3 and 4.
§ On Question, amendments agreed to.773
The Lord Chancellor moved Amendment No. 5:
In the Title: line 14, after ("in") insert ("the Maintenance Orders (Reciprocal Enforcement) Act 1972 and").
§ The noble and learned Lord said: My Lords, this is a technical amendment which follows consequentially. I beg to move Amendment No. 5.
§ On Question, amendment agreed to.
§ Moved, That the Bill do now pass.—(The Lord Chancellor.)
§ Lord Elwyn-Jones
My Lords, I was waiting impatiently for the noble and learned Lord to father his Bill to the very end, but no doubt he will give it his benediction, if that is a safe expression to use, in the fullness of time. To claim that this Bill, like the traditional parson's egg, is good in parts may be somewhat imprudent in view of the exchanges that took place between the noble and learned Lord the Lord Chancellor and the Episcopal Bench. However, I think it is a true description of the Bill and it is, I fear, in some respects a Bill of lost opportunities. For instance, the provision in regard to the setting up of a family court, which I shall come to briefly in a moment, is an example of what I have said.
On the beneficial side, I will not list them but we note with approval, in particular, the provisions for financial relief after foreign divorce proceedings based on the recommendations of the Law Commission. Those provisions fill a gap in our existing legislation. For my part, during the discussions on the Bill I also approved of the very controversial provision in Clause 1. I hasten to add that there was of course no Whip on the Bill, and there was some difference of opinion on these Benches about that. But the provisions in Clause 1 impose an absolute bar of one year in place of the present discretionary bar of three years before presentation of a petition for divorce by either party.
As the law now stands, that discretionary bar can now be lifted in cases of,exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent".In practice, attempts to use that provision have increased bitterness between the parties, have damaged their children and have reduced the possibility of a reconciliation between them by encouraging the use of the provision to rake up details—sometimes trivial, sometimes best forgotten—of the marriage. The concept of exceptional hardship or exceptional depravity, in any event, as was pointed out during the debates, is unsustainable. Depravity is depravity, hardship is hardship and there are no normal standards of either of those conditions. I think that the Law Commission was right about that and it carried the approval of the House.
For most of those likely to be affected by the Bill, its most important part is Part II dealing with financial relief after divorce. On Second Reading, I ventured to stress the inadequacy of the available information about many of the factors which the court should take into account and has, indeed, to take into account. A number of us urged that, at the very least, there should 774 be a monitoring of the operation of the Bill to see how it works out in practice. Some noble Lords took the view that the Bill was brought in prematurely before the necessary information was available. But there emerged during our discussions the fact that the noble and learned Lord acknowledged that more information and knowledge about the financial consequences of divorce were needed.
He was good enough to send me a letter during the course of the proceedings stating that a feasibility study for a large-scale survey of the financial consequences of divorce will be undertaken. He added the interesting additional information that a research officer at principal level has been appointed to his department and that other inquiries are proceeding. This is important and, so far as it goes, reassuring information and we shall await eagerly the outcome of this work, the results of which we hope to see sooner rather than later, although it is obviously a big task.
The House discussed anxiously the issue of how far the conduct of the parties should come into the question of the award of financial provision in divorce proceedings. I do not propose to retraverse that ground now. Many of us felt—and I certainly still feel—that the Bill has not got it right and that as it now stands it could well result in the old mischief which arose, especially in cruelty cases, of digging up past incidents, creating bitterness and destroying the prospect of civilised behavour of the parties towards each other after divorce.
I think that, for the most part, we on this side regret also the retention in the Bill of the words that the court shall, in particular, have regard to any increase in earningcapacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire".As my noble friend Lady Lockwood pointed out in a notable speech on Report, this has caused much concern to women's organisations and has contributed to their distrust of the Bill, which still persists.
Finally, while welcoming the provisions in the Bill which will increase the degree of transferability between the county court and the High Court, many of us regret that so little has been accomplished to bring into being a family court. We greatly hope that the work which the noble and learned Lord has indicated is to be done on this matter will be speeded up. Other jurisdictions in other countries have found family courts to be of very great value. We must not allow ourselves to be locked in the procedural relics of a hesitant past.
§ 4.5 p.m.
The Lord Bishop of Norwich
My Lords, I should like to follow the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Elwyn-Jones, in one or two similar thoughts. But, first, I should like from these Benches to pay tribute to the good things in the Bill and to the constant concern for detail, which the noble and learned Lord the Lord Chancellor has shown throughout this mini-marathon. I was glad that the noble and learned Lord, Lord Elwyn-Jones, mentioned the curate's egg, because I once had to open a new church and, rather than have a large stone to knock on the top and unveil 775 as one often does, the architect—who was a modern architect—had produced something on the floor for me to act upon in some way. I drew it away and there was something like a golden egg with the words, "Maurice, our Bishop. laid me". I was helped by that opening illustration of the noble and learned Lord.
I believe that there are still three unresolved problems in this Bill. The first, the conduct area, has been touched on by the noble and learned Lord. I think that it is unresolved in your Lordships' House because, as I look back to the discussion on Report on 24th January—I shall quote a few columns of Hansard to make it easier for us to refer to them later—from col. 173 to col. 189, the result of our debate and Division on an amendment in that area was Contents, 59 and Not-Contents, 86. That shows that, at least, in that area of conduct—and I use that word as a form of shorthand—we have not yet reached resolution in this House and one hopes that it will be looked at carefully in another place.
The second area on which I believe we are not yet clear has just been mentioned and it stems from the amendment of the noble Baroness, Lady Lockwood, which was debated at cols. 190 to 197 of Hansard of the same day. Of course, it was negatived, but I believe that the national women's organisations—and I mean the general and well-founded ones; I am not referring to any smaller pressure groups of any sort—are still distinctly anxious about the likely outcome of this Bill. We hope that our fears will be groundless, but not very much has yet been done to do away with our fears.
I know that many wives are in distress and I am sure that all of your Lordships have had letters, as I have done. Clearly, there is anxiety there. At Committee stage on 5th December—this was dealt with at cols. 965 to 980—the noble and learned Lord the Lord Chancellor sought to allay those anxieties, and I should like to pay tribute to that allayment by the noble and learned Lord. He said that we have to be fairly evenly handed between the two parties to a marriage. That is good. In col. 977 he said:a wife's earning capacity is impaired, and perhaps destroyed, by the duration of the marriage and by the obligation to look after young children of which she has care and control.That is clear and compassionate.
The noble and learned Lord has reminded us, in his vivid and occasionally repeated phrase, that this is not a one-man band. He spoke often of the immense work of the Law Commission behind him, so that we might feel that this is not in any sense simply a Lord Chancellor's Bill even though that, in its own right, is of major importance in our country. But, in the words which our children use at home, I feel that it is not a question of its being a one-man band, but that the backing group has not been as vocal as one would have hoped it might have been, if there had been wider support for this Bill throughout your Lordships' House.
It is worth remembering that the Law Commission said that greater weight is to be given to a divorced wife's earning capacity, and that both partners are to be encouraged to become self-sufficient. The noble Lord, Lord Foot, made a telling speech in that area, which I have read with a good deal of care. But the Law Commission must, I believe, bear responsibility for the underlying ethos of this Bill in certain parts. 776 Yet, when the noble and learned Lord, Lord Scarman, spoke, he said, at col. 162 on 24th January 1984:My Lords, I desire to support as strongly as I can Amendment No. 2—at any rate, the principle of Amendment No. 2—and my attitude to it has been eloquently and vigorously expressed by the noble Lord, Lord Hatch of Lusby. I can therefore be brief. We are here considering an area of the law where there is a serious weakness, in practice and in principle, in the financial support available to a divorced woman".I shall not weary your Lordships by reading the next paragraph in col. 163, but the noble and learned Lord, Lord Scarman, said this in the following paragraph:This option was considered by the Law Commission when I was its chairman. In retrospect, I am very sad that we did not put it forward. It is a very ingenious provision".Your Lordships will remember that that ingenious provision is set out at length in col. 163. I have quoted that extract because I very much hope that in another place this second area will be looked at even more closely.
I apologise to the noble and learned Lord on the Woolsack for not having had time to digest the new amendments. It seems to me that the long amendment may well relate to this matter. Therefore I shall study it with great care to see whether it does in fact relate to it, otherwise it seems as though a certain inflexibility about the financial care provided for the divorced woman has not yet been overcome.
I can deal shortly with the third area; it is one which your Lordships have heard me speak on before. It concerns the continuing anxiety, well known on these Benches and voiced in particular by the Lord Bishops of London and Rochester and myself, about Clause 1, which deals with the substitution of the new Section 3(1) in the Matrimonial Causes Act 1973. Your Lordships will remember that not only the Church but, I believe, many, many people are anxious about the health of marriage today and view this provision with great disquiet. The new Section 3(1) reads:No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage".I know that flexibility has been suggested. I remember that the noble and learned Lord on the Woolsack said that at one time he leaned a little towards the view which the noble and learned Lord, Lord Denning, gave us of no limit, but this is what the Bill provides. We can work only on the actual words and decisions of Parliament. The nation finds it very hard, I believe, to differentiate between lawlessness and sinfulness. They are not directly related to this point, but the analogy between lawlessness and sinfulness is a good one. It is another way of saying that if, with the full weight of Parliament, it is agreed that something can be done, it is very hard for straightforward, ordinary people not to believe that it should be done. For that reason, I believe that the public image of marriage—not only Christian marriage but marriage as an institution in our land—is likely to be affected adversely by the Bill.
§ 4.16 p.m.
§ Lord Simon of Glaisdale
My Lords, as my noble and learned friend Lord Elwyn-Jones pointed out, the Bill effects certain improvements in the way of jurisdiction and practice, and I welcome them. It has also, in my respectful submission to your Lordships, introduced one substantive improvement; namely, that in the financial provision the court shall pay first 777 consideration in future to the welfare of the children of the marriage of divorced parents. That seems to me to be a very real improvement. As for the rest, I can only say that I fully understand the apprehensions of the women's organisations. It seems to me that the Bill prejudices the position of divorced wives. Both my noble and learned friend and the right reverend Prelate have emphasised that the married women's organisations are worried. I respectfully submit that they have every reason to be worried.
On the face of it, the Bill effects no more than a marginal alteration in procedure and in the financial and property consequences of divorce. In fact, it does far more than that. It sweeps away the only safeguard that was inserted in what is now the 1973 legislation against the hardships and injustices that were inherent in the situation which was created in 1969. On the other hand, a number of matters of general consensus have emerged in your Lordships' debates: first, the necessity for much more knowledge and research. I share the satisfaction that, although there is nothing in the Bill about it, my noble and learned friend on the Woolsack was distinctly helpful and forthcoming.
Secondly, it is, I believe, now a matter of general agreement that a wife suffers economically by the very fact of marriage. That point was made in both of the speeches which preceded mine. It was notably made by the noble Baroness, Lady Lockwood, at Report stage. It was also made by my noble and learned friend Lord Elwyn-Jones at Committee stage. It is no argument against marriage. It does not necessarily involve injustice, provided that one condition is satisfied, as I believe it has been in your Lordships' minds; namely, the understanding that marriage involves a functional division of labour between husband and wife. In general, the husband is enabled to be the breadwinner because the wife devotes herself to her functional side as homekeeper. It follows (this has also been recognised) that, owing to this division of labour, the wife is entitled in justice—justice which ought to be buttressed by the law—to share in the fruits and emoluments of the labour. If she is denied that entitlement, it is an act of injustice. Moreover, anything which strikes against the position of a wife in marriage strikes against the institution of marriage itself and the institution of the family which is constituted by marriage.
It was next recognised that increasingly part of the emoluments of labour is postponed, to be paid in the form of a pension, specifically a widow's pension. It follows, if your Lordships have accepted what I have said so far, that anything which denies a wife her right to share in a pension or to enjoy a widow's pension is an act of injustice. We owe it to the noble Lord, Lord Hatch of Lusby, to my noble and learned friend Lord Scarman, and to the noble Baroness, Lady Ewart-Biggs, that that point is now firmly in the public gaze. Again, I welcome what was said about that matter by my noble and learned friend on the Woolsack.
The next matter which I believe has general recognition is that the slogan "a clean break"—one of the many slogans which bedevil the development of matrimonial law—is virtually meaningless. As my noble and learned friend Lord Elwyn-Jones said, one cannot have a clean break if there are children. He added that children cannot divorce their parents. Also, 778 there cannot be a clean break, on the submissions that I have made to your Lordships, if there is a pension possibility. I trust that as this Bill is further deliberated upon, any idea of "a clean break"—except in a very small minority of cases—will not be taken as governing any matrimonial situation.
On my next point, I believe there is some division of view in your Lordships' House, but I should like to declare unequivocally that one cannot equitably adjudicate upon financial provisions for wives unless one takes conduct into account. It was at one time said, in many of the slogans, that there is no black and white in these matters. In the sense that saints and devils in human form are very rare, that slogan is true—but the fact that there is no black and white does not mean that there is no such thing as charcoal or off-white.
The noble Lord, Lord Mishcon, went so far as to say, "In 90 per cent. of cases it is six of one and half-a-dozen of the other, if one knows the whole story". Of course, such easy cynicism means that one can shrug off any question of doing justice to a wife. I should like to quote one sentence only from a book written in 1971 by the most experienced matrimonial solicitor in London at the time, David Morris, which contained a foreword by my noble and learned friend on the Woolsack. David Morris wrote this:I agree that there are often faults on both sides but I believe that in many cases, if all the facts were known, most people would say that far more of the fault was on one side than the other".My noble and learned friend added:That, too, has been my experience".If I may so presume, may I add that it has been my own experience, too.
In my respectful submission, this Bill has the balance just about as right as it can be. The amendment which was pressed against it would have been deleterious.
The financial and property consequences of divorce cannot be considered except against the background of substantive law. The substantive law today dates from 1969. I will not go through all its provisions; but my noble and learned friend on the Woolsack opposed it strongly—and rightly—because it had an inbuilt injustice. So, too, was it opposed by Lady Summerskill, whose absence we regret so much on these occasions. She saw quite clearly the potentiality of injury to the interest of married women. There are many other aspects of that legislation which have a potential of injustice, and therefore it is incumbent upon us to be very careful to see that those injustices do not spill over into the property provisions.
The Law Commission saw the danger quite clearly. They wanted to work out the fundamental considerations of property between men and women. They did that. They produced a report, Family Property—A New Approach, which has been virtually disregarded. That was when my noble and learned friend Lord Scarman was chairman. The commission produced a second report which effected some marginal improvement in the law of inheritance. My noble and learned friend Lord Elwyn-Jones, as Lord Chancellor, implemented that. But then came the 779 important third report, which argued the case closely. By that time, the Law Commission had a different chairman—the late Mr. Justice Cooke—and they worked on and implemented the theme which has been set out so clearly in the general report. They proposed three Bills.
The first Bill they proposed was of marginal significance. It improved the rights of occupation of wives in the matrimonial home. That has been implemented. The two other Bills, on the co-ownership of the matrimonial home and the co-ownership of its contents, have not been implemented. What has happened is that this Bill, as a result I think of the pressure group, has picked out those plums of the Law Commissioners' recommendations which are favourable to husbands and has disregarded those which are favourable to wives.
While the Law Commission was working out the fundamentals, it proposed the provision in the principal Act with which your Lordships are instantly concerned; namely, that the settlement after divorce—financial and property—should so far as possible and so far as is equitable put the parties back in the position they would have enjoyed if the marriage had subsisted. As far as it went, that was a considerable protection to married women. But it was adverse to the wives of second marriages and the divorced husbands who wanted to contract such marriages. There was immediately an enormous pressure group which grew, and which I am bound to say I think has seen its fruit in this Bill.
At Report stage the noble Baroness, Lady Lockwood, quoted an article in the Spectator, and, of course, that was ridiculously hyperbolic. Nevertheless, the fact remains that the so-called Campaign for Justice in Divorce has virtually achieved all its objectives in this Bill. The title of the campaign itself was brilliant. They went on to coin the phrase "alimony drones", with which, thankfully, your Lordships have not been afflicted and which I hope has been disposed of by the noble Baroness, Lady Lockwood. But what a way for a man to talk about a woman to whom he made vows of loyalty and with whom he promised to share all his worldly goods! They went on further to talk about "a bread ticket for life"—again a most ugly and vicious slogan, particularly when one reflects that many of the men who were taking part in that campaign were no doubt cashing luncheon vouchers.
I was going to say something about family courts, but the time is getting on and my noble and learned friend has shown himself favourable to the concept. The noble Lord, Lord McGregor of Durris, speaks with particular authority on the matter. I think he was probably a principal hand in the Finer Report, which is the locus classicus in favour of family courts. Opinion is now coming round in favour of family courts, particularly as the most effective vehicle of conciliation, as to which we have nothing effective in the legislation now.
May I conclude by quoting once more from David Morris's book? It is almost the last word:I cannot help thinking that the champions of women's rights have been asleep during the last few years and will wake up to find that the male has won the last battle in the 100 years war.
§ 4.32 p.m.
§ Baroness Ewart-Biggs
My Lords, I certainly do not intend to prolong this debate by more than a few minutes, because I feel this would not be popular, but I should like to take advantage of the opportunity, before this Bill moves on, to make one or two points. First, there can be no doubt that those of us who took part in all stages of this Bill can only be grateful for the concern and, indeed, the passion that the noble and learned Lord the Lord Chancellor put into it. We have felt very relieved at the general welcome given to so much of it by the noble and learned Lords who have taken part in the debates.
From another aspect, I am bound to say that I believe I am not alone in feeling perhaps a little sad at the way in which many views put forward by noble Lords, genuinely and sincerely felt by them, have been rejected in (if I may say so without getting myself into trouble) a rather summary way by the noble and learned Lord on the Woolsack. After all, I feel very strongly that, without there being at any time any party political points reflected in this debate, we have tried to show our concern for all of the ever-increasing number of Britain's families who, through divorce, are undergoing what must be one of the greatest crises in life, second only to bereavement. Those of us without the advantage of legal experience have listened to groups and associations concerned with marital break-up in order to help us to come to some informed decisions. Surely the members of those groups have offered this help and advice seriously and conscientiously, and only with a view to helping to find some just and equitable solution to this social dilemma.
Lastly, may I stress, from the point of view of the Bill itself, that there must be disappointment, as my noble and learned friend Lord Elwyn-Jones has said, at the opportunities which have been missed. For example, can there be any doubt of the need for procedures to minimise bitterness in these rising numbers of family breakdowns? Reforming the law without the introduction of family courts can only keep couples locked in adversarial situations while failing to protect their children. It seems a tragedy that the initial proposals which have already been prepared should not now be implemented as the first stage of the ideal structure. The omission of conciliation has been touched on by many of your Lordships, and I will not say more than that. But there is valuable evidence to show the importance of schemes to allow parents to resolve various conflicts themselves with skilled help, rather than fighting over children in court, as is the case at present.
Furthermore, the Bill does not tackle the chief financial problem, which is the lack of adequate financial support for one-parent families, and it does nothing to ensure that private maintenance obligations are met and enforced, nor to consider private and public maintenance together. The conduct clause has been discussed at very great length, but surely there is agreement that it will increase the likelihood of hard-fought disputes over the rights and wrongs of past behaviour rather than help families to look forward to something more constructive.
I hope my contribution has not sounded rather sour. The comments I have made are genuinely felt. I hope 781 they will be taken seriously and considered in the other place.
§ Lord McGregor of Durris
My Lords, I wish briefly to thank the noble and learned Lord on the Woolsack for his willingness to promote research into an area of ignorance which caused the Law Commission considerable anxiety. It may well be that, in a few years, research in England will catch up with that being done in Scotland. There appears to be a notable discrimination between the two countries, in that the lack of resources which has bedevilled this work in England does not seem to have affected the Scots, who are able to produce a steady stream of admirable research on this subject.
I am concerned to draw attention to one point which could not have been raised during the earlier debates. The noble Baroness, Lady Faithfull, and I put down an amendment urging the importance of improving the annual statistics of maintenance, and we mentioned the family proceedings of the summary courts. The noble and learned Lord on the Woolsack then drew our attention to a statistical bulletin published by the Home Office on 19th January. In many ways this is an extraordinary document, because the statistics which it contains about the matrimonial jurisdiction of the summary courts were first published, I believe, in 1894. They were inadequate and uninformative then, and they so remained until 18th January this year.
This bulletin presents a battery of statistics about the summary courts: the number of maintenance orders, the number of suspended committal orders, the number of variation orders and their results, and the number of applications under different clauses. Indeed, we have a new wealth of information, and this will introduce another anomaly into our knowledge about maintenance. It bears directly upon Part II of the Bill, because we now have extensive knowledge of the financial results of summary jurisdication but we shall have no knowledge at all, at least for another two-and-a-half years, of the financial results of the jurisdiction of the superior courts. That anomaly can be cured only by an improvement in annual statistics. It cannot be remedied, other than in the very short run, by research of the sort which is currently proposed. Therefore, I appeal to the noble and learned Lord on the Woolsack to secure an improvement in the annual statistics.
§ Lord Hatch of Lusby
My Lords, I should like to take this opportunity of paying my tribute to the noble and learned Lord on the Woolsack for his patience and receptiveness during the whole of the process of this Bill, right from the time of his anger during Second Reading to the modified rapture that he offered us on Report. I should also like to add my voice to those who have expressed concern that this Bill might at least increase and strengthen the use of matrimonial conduct in divorce cases, particularly in those which concern the allocation of the care and control of children. I know that the noble and learned Lord on the Woolsack has chided me for neglecting the use of conduct under present law. All I ask him to do is to ensure that there is no strengthening of the use of that conduct, particularly when the future of children is at stake.
782 With regard to the comments of the right reverend Prelate, I do not share his doubts about the assurance that we were given by the noble and learned Lord the Lord Chancellor. When we introduced the whole concept of the right of a wife to a share in her husband's pension, or lump sum, even after divorce, it was the noble and learned Lord who gave us sympathy and assurance. It was of great comfort to the noble and learned Lord, Lord Scarman, and the noble Baroness, Lady Ewart-Biggs, who supported me on this issue, that the entire House agreed with the principle that a wife who has participated in the accumulation of her husband's entitlement to pension or lump sum has a right to share it, whenever it may be paid. We were further encouraged by the reception and response which that received from the noble and learned Lord. I should like briefly to quote his assurance. In col. 169 of Hansard for 24th January he said:I mentioned that my department was going to issue a consultation paper on the question of the allocation of pension rights on divorce".We shall look forward to seeing this paper and to comparing it with the proposition that we put forward. In the following column, the noble and learned Lord gave this specific assurance:I certainly promise the noble Lord that I will draw the attention of the Government machine to what has been said and express my sympathy with that. There is no doubt that we must deal with this problem and this is wholly in accord with the report of the Law Commission, which we are putting into effect".—[Official Report, 24/1/84; cols. 169–170.]I feel much more confident than apparently the right reverend Prelate did that the noble and learned Lord will feed this into the Government machine and that we shall see some action taken, either through the Law Commission or when the Bill appears in another place. I thank the noble and learned Lord for that assurance and look forward to seeing it put into effect.
§ 4.48 p.m.
§ The Lord Chancellor
My Lords. I will be as brief as I can because I think we have discussed the Bill exhaustively and I know the House is waiting for a Statement. However, I must answer some of the points which have been made.
I did say earlier, I think in the last Parliament, that one difference in being Lord Chancellor in 1979 and being Lord Chancellor in 1970 was the vast number of letters one was getting direct from the public or through Members of Parliament about what were called the injustices of our divorce laws. These letters come in almost equal quantities from wives, from second wives and from husbands. All expressed the experience of their own cases. None was prepared to admit that there was any other case but their own. All had irrefutable cases but none was prepared to admit the strength of the case on the other side.
I should have been absolutely shamefully neglectful of my office as Lord Chancellor if I had not taken immediate action to refer this matter to the Law Commission. I brought no pressure to bear upon it to come to any conclusion at all, and this Bill contains nothing, so far as I know, which the Law Commission did not in its wisdom, or otherwise, recommend in its reports Nos. 112, 116 and 117. The idea that I was favouring one side or the other must be dismissed from 783 everyone's mind, although I now confess that on the whole I am on the side of first wives if their marriages have been of long duration and if there have been children, for reasons we have now explored to the utmost. I have sought to protect their interests in every possible way and I shall continue to do so.
I should also like to ask the right reverend Prelate to do me the honour of reading my Second Reading speech—I think he was not present on Second Reading—and he will see that I have at least as great a respect for the institution of marriage and the family as any Bishop on the Bench of Bishops. The fact is that the situation had got wholly beyond control and I had to do something about it. What I did was to refer the matter to the Law Commission and to try to carry out its proposals.
As was said by a very distinguished predecessor of both myself and the noble and learned Lord, Lord Elwyn-Jones—Lord Campbell, the 19th century Lord Chancellor—law reform is either by consent or not at all. I have had to push this Bill through rather harder than I should have liked. I have had as much difficulty from my friends as I have from those who were critical of the Bill, because they wanted to put into the Bill many things which would have killed it, either because I should not have obtained any Government time for it or because it would have required further work to be done. For example, I have always been a friend of the family court. I wanted to put more into the Bill about moving towards family courts by the amalgamation of the county courts and the High Court jurisdiction, but I could not do that, as matters turned out, and still less could I go the whole way to a full family court, which would have meant rejigging the whole of the summary jurisdiction in the magistrates' courts. I should have lost the Bill had I done that. Similarly with conciliation: that can go on without a word in any legislation anywhere. I did not put anything in the Bill about that because I intend to carry it on.
I also fully accept that we have to do something about occupational pensions. I can only repeat what I said before. It is my intention to do my best to see that something is done. But a lot more work needs to be done on that and it would not have been appropriate to this Bill.
On the subject of information, I accept of course that we want to know a great deal more than we do; but the Law Commission expressly reported that the present reforms should not be delayed because of the lack of information—although the more information that we can get the better. The amount of information that will become available, since we are running at the rate of about 170,000 petitions a year, will increase with time.
I am quite sure that I am right about conduct. The present situation in the Bill that conduct should not be regarded, except where conscience makes it inequitable to disregard it, is I am quite sure a reflection of the present case law up to the point to which it has gone. Anybody who has the smallest fear that the influence of conduct will be increased by what is in the Bill really should study the present case law. Wachtel is still the law, and for reasons which I described on Report, at much greater length than I shall now do, what is in issue is conduct in so far as it 784 is relevant to maintenance. That may be conduct during the marriage or it may be conduct after the marriage; it can be conduct of either party to it, and the conduct of the two parties varies enormously.
Equally it is quite clear that under the existing law an increase of earning capacity of either party ought not to be disregarded. There are husbands who deliberately go on the dole rather than pay their former wife anything; there are wives who, being well off because of the circumstances in which they are living, continue to harry their former husbands although they have sometimes an illicit partner.
The right reverend Prelate the Bishop of Norwich took the name of his right reverend friend—if that is the right phrase—the Bishop of London in vain. The Bishop of London both spoke and voted for Lord Denning in his amendment and not for the Bill, as the right reverend Prelate led us to believe that the right reverend Prelate was putting forward. There was another member of the Episcopal Bench who took the same view, although he did not make a speech.
I put this Bill to the House. It was no light task and it was no very pleasant task. I know the amount of bitterness and the amount of hardship that is involved in divorce. If you look at last week's Listener you will see a most misleading picture on the cover. There is a cake of enormous size being carved up by a judge, who, as usual when cartoonists depict judges, was wearing a full-bottomed wig instead of the wig that he normally wears on the bench. The point is that the cake was enormous. The shares could easily have given more than a meal to both the parties. This is just about the opposite of the situation with which we have to deal. We have to deal with a situation in which we allow divorce at the rate of 170,000 petitions a year and in which in the nature of the economic facts of life one breadwinner cannot afford to keep two families. The cake is almost always too small, except in a relatively small proportion of cases.
The noble Lord, Lord McGregor of Durris, at an earlier stage of the Bill gave us a very startling statistic. It was even more startling than I believed the situation to be. But it reflects the fact that the problem we have to face is that divorce is a licence to remarry. Many parties do. I have come to the conclusion—and I say this to the right reverend Prelate—that, despite my belief that marriage ought to be for life, if you have divorce, I think it is better that both parties remarry, and second marriages are often more successful than first ones. That is my conviction and it is based on the experience of my own life and others.
On the other hand, once you accept that divorce is a licence to remarry and that people take advantage of that licence, you have the situation with which this Bill is an honest attempt to deal. I do not claim that it is perfection, because on the whole it is not possible that divorce causes anything other than unhappiness to the children and to the parties who have suffered the trauma of divorce. That trauma is only partly assuaged by a second marriage. This I know from a long professional and a considerable personal experience.
But I must say at the end of it that any belief that is held that I have tried to be other than entirely even-handed between the unhappy partners to this traumatic experience is entirely without foundation. 785 What I would say is that much of the anxiety that has been caused—and I accept that it is genuine anxiety—is caused by the existence of these pressure groups which overstate their own case and cause anxiety among the opposite camp. We are trying to do our best. The best thing that I could do was to submit the matter to the Law Commission. I have done what the Law Commission recommended—neither more, nor, I think, less. I believe that was the right principle for me to work upon. I believe it is also the principle which the whole of Parliament should follow, recognising that we have not done with this question. There are pension problems and there are conciliation problems to be dealt with. There is the question of the jurisdiction of the court. I have not created a new heaven and a new earth. All I have said is that I may be alpha but I certainly am not omega. I beg to move.
§ On Question, Bill passed, and sent to the Commons.