§ 2.59 p.m.
§ Read a third time.
§ Clause 1 [The general principles underlying Parts II and III]
The Lord Chancellor moved Amendment No. 1:
Page 1, line 16, after ("affected;") insert—
("(ii) with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances;").
§ The noble and learned Lord said: My Lords, this amendment, which adds a new paragraph to Clause 1, requires that one of the principles to which the court should have regard when exercising its functions under Parts II and III is that marriages which are to be brought to an end should have questions dealt with in a way which is intended to promote as good a continuing relationship between the parties and any children affected as possible.
§ I have tabled this amendment as a result of a most helpful point made by the noble Lord, Lord Robertson of Oakridge, at Report stage. The noble Lord drew attention to the continuing needs of children. I am entirely sympathetic to his point that the current draft of the Bill, without this amendment, might be seen to imply that children's needs and problems can be disposed of when the marriage is brought to an end. I have therefore brought forward this amendment which indicates that, when exercising functions under Parts II and III, the court or any person concerned in these matters should have regard to the principle that where a marriage must be brought to an end, questions should be dealt with in such a way as to promote the best possible relationship now and in the future between the parties and, crucially in my view, any children affected, as the circumstances allow.
§ I am grateful to the noble Lord, Lord Robertson of Oakridge, for drawing attention to this point, which enables us to put early and fundamentally into the Bill 619 a matter which has concerned your Lordships again and again during our discussions. Your Lordships will remember that my noble friend Lady Elles drew attention to the fact that in many cases these days fathers completely lose contact with their children after divorce. That is extremely bad for the children. Therefore, it is important that attention should be focused on this issue when the divorce is being considered. I beg to move.
§ Lord Robertson of Oakridge
My Lords, I thank the noble and learned Lord for moving this amendment and for his kind words. The amendment deals with a point that I raised at Report stage and means that all who are concerned with children who are affected by divorce will have to look beyond the divorce settlement. I hope that your Lordships will accept the amendment.
§ Baroness Elles
My Lords, I join the noble Lord, Lord Robertson, in thanking my noble and learned friend for picking up this point which is a theme that has run through all our debates on the Bill. On behalf of all of those children who will be affected by divorce, I thank my noble and learned friend for including this provision in the Bill.
On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 2:
Page 1, line 18, leave out ("it") and insert ("the marriage").
§ The noble and learned Lord said: My Lords, this amendment is consequential on Amendment No. 1. I beg to move.
§ On Question, amendment agreed to.
§ Clause 2 [Divorce and Separation]:
Baroness Young moved Amendment No. 3:
Page 2, line 4, at beginning insert ("Subject to the requirements of section 7(3)(a) and (b)").
§ The noble Baroness said: My Lords, in moving this amendment, I should like to speak also to Amendment No. 5. Amendment No. 3 is a paving amendment to Amendment No. 5. I am conscious that we are returning to one of the central proposals in the Bill. The amendment would have the effect of extending from one year to 18 months the period for reflection and consideration where there are children in the marriage or where one spouse does not wish to divorce. It will leave the period at a year for couples both of whom consent to the divorce and where there are no children of the marriage. I should make it clear that in this case by "children" I am using the definition that applies in all other parts of the Bill.
§ As I said on Report, the amendment is a compromise. I hope that my noble and learned friend will agree that it does not in any way go against the principle of what he is seeking to do in the Bill. It is a compromise because I recognise that by extending the year to 18 months in particular circumstances it goes further than some would like, but, on the other hand, it does not go as far as I know that quite a lot of other people would like. The principal aim of the amendment is to buttress marriage, which is what I believe fundamentally that we should be doing in this Bill because it is so important for the whole fabric of society.620
§ I have said before that my great concern about the Bill is the message that it sends out. Divorce at the end of one year, even against the wishes of one spouse who may not want it, is not in my view a good message to send out. Now that your Lordships have voted for the abolition of the concept of fault, the period of time before divorce is even more important than it was originally.
I believe that this amendment has the support of a number of people whose opinion I value. Perhaps I may start by quoting from what Cardinal Hume said in his article in the Tablet on 20th January, in which he wrote:
Whatever the truth of this"—
referring to fault—
it is necessary to find effective ways of underlining the seriousness of the marriage contract. One obvious possibility is to lengthen the so-called waiting period. The Bill, as I understand it, proposes that either or both parties should be able to apply for a divorce after a 12-month period for reflection providing that they declare that the marriage has irretrievably broken down … here again there are a number of factors to be considered—not least the effect of prolonged uncertainty on children, but I do myself wonder whether a period as short as a year is sufficient to establish that a marriage has irretrievably broken down".
It is only right to say that my amendment also has the support of the right reverend Prelate the Bishop of London. In addition, I have today received a letter of support from the right reverend Prelate the Bishop of Chichester and from the right reverend Prelate the Bishop of Chester. I believe that the right reverend Primate the Archbishop of York also supports the amendment.
§ If there is one thing on which we are all agreed, it is that there are too many divorces. When deciding on the length of time for reflection and consideration it is very much a matter of judgment as to how the arguments fall between having a period of one year or a period of 18 months. I believe that an 18-month period is important for one reason above all others: it provides a longer opportunity for reconciliation. Noble Lords on all sides of the House have stressed the importance of reconciliation and of the opportunity for reconciliation. Extending the period to 18 months in those cases where one spouse does not want a divorce or where children are involved provides a longer opportunity for reconciliation to take place.
§ We know that 27 per cent. of divorces in England and Wales are based on separation and take between three and six years. Some 16.3 per cent. of all fault-based divorces take more than a year. Therefore, some 43 per cent. of all divorces now take more than a year. In dealing with the so-called "quickie" divorce, we are in fact speeding up divorce for a very large proportion of all couples who seek divorce in England and Wales. The situation in Scotland is different. Some 60 per cent. of divorces take place on the basis of separation and take some two years, and in Northern Ireland 73 per cent. of divorces take place on the basis of separation and take at least two years. By definition, therefore, the length of time in at least two parts of the United Kingdom is considerably longer. I believe that it is not without significance that the divorce rate is lower in both Scotland and Northern Ireland.621
§ We also know that between 20,000 and 30,000 couples each year draw back from divorce before it is granted. Surely we should encourage more to do so. At any rate, according to Relate, the organisation concerned with marriage guidance, 50 per cent. of divorced men regret the fact that they ever divorced. Should we not be helping those people by offering them more opportunity for reconciliation?
§ The Lord Chancellor's MORI poll showed that 60 per cent. of the respondents who answered the question about the time limits supported a period of 20 months, which is approximately what I have said.
§ Since Report, I have been able to obtain some information from countries within the EU. We have often been quoted—I believe it to be true—that we have in England and Wales the highest divorce rate in the EU—a rather doubtful distinction. It is clear from the table I have that the difference between divorces where there is mutual consent and where there is no consent is considerable. In Germany, for instance, with mutual consent it is one year's separation, and without consent it is three years' separation. In Spain, with mutual consent it is one year's separation, and with no consent two years' separation, or it could be up to five years' separation. I shall not read out the entire table, but I can assure noble Lords that a considerable degree of difference is set out as between couples who consent to a divorce and those who do not. As we all know, their divorce rates are lower. We should look at some of those figures and ask why that should be the case.
§ When we debated this matter previously, a great deal of emphasis was placed on children. Much of the argument centred on the fact that it was said that a year of uncertainty in a child's life is a long time, and that it is better to end the uncertainty—to have the divorce—rather than to continue the uncertainty for up to 18 months.
§ The more I have reflected upon that argument, the more I have wondered whether it is as true as it appears. What we know for certain is that there are few children for whom divorce is positively beneficial. Indeed, we know that 30 per cent. to 40 per cent. of fathers lose contact with their children two years after the divorce. Only this morning I was at a conference where I was told by a headmaster of a school of 500 pupils in the north that only 10 per cent. of the children had fathers. That is a terrible situation in which to find ourselves. Is it surprising that we worry about the state of the fabric of society when one sees those children growing up without the influence of a father? What is hardly surprising—I am sure we have all read it—is the report, which was widely noted in the press, of Mr. Chris Woodhead, the Chief Inspector of Schools, which shows how badly a great many white, working class, as they are described, boys are doing in terms of examination results. If we looked into it I am sure that we would find that they are the children of divorced parents and are without fathers. Those are facts which we must consider.
§ When noble Lords consider the amendment they must weigh up the balance of interests of many people: the husband, the wife, and the children. We must determine 622 how much time we should give that extra chance of reconciliation to see whether we can bring together the husband and the wife.
§ We have to determine what is the effect of divorce on children. The pain of the child does not end with the divorce, it goes on. If we can prevent the divorce, we can ameliorate at least some of the pain. It is the divorce itself, not the procedures, which affects children. It is often the acrimony involved. There are later amendments which try to buttress marriage and do something which I believe my noble and learned friend the Lord Chancellor wishes to achieve, as I do—less acrimony than there is at present.
§ I believe that it is right to extend the period of one year to 18 months for reflection and consideration. That would apply where there are children. It would provide a greater opportunity for reconciliation. It would help those couples who are uncertain. It would, in particular, help those couples where one spouse does not want the divorce, to see whether they cannot find some way of coming together.
§ I accept that where both parties consent to a divorce and where there are no children, a year is the right time. I am content to go along with that, but where other people are to be considered, especially the children, a year is a short period in which to consider whether to take the extremely important step of divorce—of ending a marriage—with all the consequences that that entails, not just to the two people who are divorcing but to the children.
§ In weighing up this matter, we must consider the effect that all this will have on the fabric of our society. I said at the beginning of the Second Reading of the Bill that I regarded it as the most important piece of legislation this Session. Its effects are profound and far-reaching. I can speak only for myself, but I have never weighed so carefully all the arguments and considered so hard and so long about anything because the effects for us all are profound. That applies wherever we may live.
§ The amendment gives us an extra six months, which is not a long time. It offers a better chance to hold more marriages together. That is something which I believe to be right in the Bill; it is right for the couple concerned and the children; and it is right for society as a whole. I beg to move.
§ 3.15 p.m.
§ Lord Irvine of Lairg
My Lords, I ask of these amendments the same question that I have asked of other amendments designed to make divorce more difficult to obtain: what sensible purpose is being sought to be achieved? The noble Baroness describes the amendments as a compromise. Compromise is only sensible if it serves a sensible purpose. Apparently it is accepted that a year for reflection and consideration is sufficient where there are no children, but 18 months is said to be necessary where there are children.
I start from the basic position that it can make no sense to compel parties to remain married if the marriage is dead. The law cannot compel parties to — 623 remain together. Even if it could, which it cannot, compelling them to live together against their will would cause greater harm to the innocent children.
The law can deny divorce; it cannot compel people to live together. Once that is recognised, I ask: what is the point of denying divorce where there are children until 18 months has elapsed? I believe, as I believe the noble and learned Lord believes, that one year is sufficient for the state to be satisfied that a marriage has broken down irretrievably. I believe that to be equally so where there are children and where there are not.
To deny divorce does not prevent breakdown. Therefore, where there are children of marriages and where there may be innocent children of new relationships outside lawful marriages, I see no point in denying the regularisation of these new relationships after lawful marriages have broken down irretrievably.
I know, and I acknowledge, that these amendments are well meaning but I believe them not to be well judged. Therefore, I oppose them.
The Earl of Clanwilliam
My Lords, before the noble Lord sits down, does he consider that a marriage has irretrievably broken down when one of the parties to the marriage does not wish it to be broken down?
§ Lord Irvine of Lairg
My Lords, I fear that the answer to that question is yes: I believe that, sadly, the same arguments as I have addressed in relation to the children apply where one party alone is determined that the marriage has broken down. Only the consent of the two parties can prevent that.
§ Baroness Elles
My Lords, the noble Lord, Lord Irvine of Lairg, asked what sensible purpose there is in prolonging what he considers to be the agony of having a marriage that has broken down to go on for another six months. The fact is that we are dealing with thousands of different complex cases. We are dealing not only with the cases in which two people have decided that they do not get on and imagine that they would both be happier if they were divorced. When one marries and has children there is another party to the consideration, even if two people are unhappy together. I know of many couples of my children's and grandchildren's generations who prefer to stay together than to leave their family and to suffer the agonies of not seeing their children any more.
That is one of the reasons why I strongly support my noble friend's amendment. What has not been taken into account is that a year in the life of a child is a short time, in particular if the child is at school. My noble and learned friend may say that hard cases make bad law, but the fact is that many marriages have been saved by the long school holidays during which the father will suffer the horror and the agony when he realises that next year he will not have that holiday with his children if he divorces.
I believe that the period of six months is a most reasonable and modest demand. I understand my noble and learned friend's principle that a year is a year is a year, but life is not like that. There are cases in which 18 months is of great value. I think in particular of the 624 case that I raised during our discussions on Report and in Committee. In cases in which one is allowed to make a statement after only one year, many wives must be left literally holding the baby. Is it fair on a woman who does not want a divorce to live through a whole year imagining that the marriage must come to an end regardless of whether or not she wants that? Is it not reasonable, fair and just for a woman in that situation to have an extra six months to be able to consider the matter and to take the necessary measures to protect her interests and those of the child? I speak only on one side but we know of many cases in which the husband is equally unwilling to divorce his wife who has gone away.
My noble friend mentioned education. It was clear from the report as well as from the headmasters' conference that divorce is one of the three major factors in the lowering of standards, the lack of self-esteem and of discipline and the vandalism with which so many schools now have to deal.
We are not babies in this House and we must know what is going on around us. Some of us may pretend that we do not know and lead lives in ivory towers, but we have only to read the press to know of the horrors that are affecting young children and their standards, education and chances in life. If we do not protect the children of today who will be the adult society of tomorrow, is it not the duty of this House to ensure that every opportunity is given to defend the lives of those children within a sure and stable family life?
It is with the greatest pleasure that I support my noble friend Lady Young. I pay tribute to the stand that she has taken throughout the Bill to see that fairness as well as justice is given to people who do not want a divorce and, above all, to protect the lives of children who suffer not only on divorce but often for the rest of their lives.
§ Lord Irvine of Lairg
My Lords, it appeared that the noble Baroness, Lady Elles, was asking a question in my direction and therefore, with the leave of the House, perhaps I may make one short observation. Delay means uncertainty and uncertainty is always bad for children. Surely it is the quality and not the absolute length of the consideration that matters. Surely one year is always enough.
§ Lord Stoddart of Swindon
My Lords, I was pleased to sign the amendment so ably moved by the noble Baroness, Lady Young. She has left us little to say. My noble friend Lord Irvine of Lairg believes that the amendments are ill judged and unnecessary. However, I would say to him and to the noble and learned Lord that those who are concerned that the Bill will send the wrong messages to people who are married or about to be married have greatly shifted their ground. Even though they still hold their original beliefs they, through these amendments, are making the compromises.
Let us not forget that in Committee and on Report we came forward with amendments which would have retained fault and the waiting period at two and five years. Neither the noble and learned Lord the Lord Chancellor nor my noble friend Lord Irvine have moved towards that position. They have been rigid in 625 their opposition. They have not been prepared to make any concession at all. Here are we, the people who wanted to keep the 1969 Act virtually intact, coming forward with a very mild amendment. I should have thought that at this stage of the Bill the noble and learned Lord the Lord Chancellor and my noble friend Lord Irvine would have said, "All right, that seems a fair compromise. There are good reasons for the compromise and let us go along with it". Unfortunately, they have not done so.
Arguments have been adduced in favour of the amendments. Perhaps we may go through the two major arguments again. The first proposition is that there should be a further delay of six months in cases in which the parties are not agreed. I refer to cases in which one party has said that there is no irretrievable breakdown of the marriage. It is very different because one party obviously believes that the marriage has not irretrievably broken down. In those circumstances, and in order to take into account both points of view, is it not fair and just that there should be an additional period of six months for further reflection and perhaps further reconciliation and mediation? Is that too much to ask when one of the parties says, "I do not believe that this marriage has irretrievably broken down"? Is it not just that that person should have as much, if not a little more, consideration than the person .who says that it has?
The other major point raised in these amendments is the position of children. The special position of children has already been recognised in the Bill—and I compliment the noble and learned Lord on that. And, indeed, there are amendments which go rather further along that line.
These amendments propose that where there are children, it is surely right that the parties who are to divorce should take a little more time to consider whether that is the right course to take. After all, we are saying, and the noble and learned Lord is saying, that although children obviously should not be a bar to the divorce, at least they have interests and they may be able to express some sort of view. Therefore, do we not need a little more time to see that the interests of children are expressed and are taken into account by the divorcing couples, bearing in mind the expression of those opinions? Is an extra six months for the sake of the children too much to ask? Surely it cannot be. Surely we must consider that that extra six months will certainly do no harm. What harm can it do? It may do a lot of good.
For those reasons, I hope that noble Lords will vote for these amendments this afternoon. They are important. They are the minimum which are needed to make the Bill at least somewhat acceptable throughout the country. Therefore, I commend them to the House.
§ 3.30 p.m.
§ Lord Peyton of Yeovil
My Lords, the noble Lord, Lord Stoddart, described this amendment as extremely mild. I do not think that one would disagree with him. But the question that we must answer today is whether it would be useful and to whom.
626 There are two reasons why I have not sought to intervene so far in the debates on this Bill. The first is because I think that it poses very difficult questions to which I personally have no absolutely certain answers. Once you embark on the road of divorce, it is very difficult to know where you can call an acceptable and enduring halt to the process. There are those who wish to protect the cause of sustaining the institution of marriage. My noble friend Lady Young, with whom I am very sorry indeed to differ this afternoon, is championing that cause. Against her are those who wish to limit the anguish which may follow a relationship which has irrevocably broken down.
The second reason on which I should not wish to dwell, although it still seems to me to be relevant, is that 30 years ago I was divorced and the fault was mine. Therefore, during the passage of the Bill I felt in no position to preach to or advise others. But this issue is one on which I do venture an opinion.
The wrenching apart of a relationship as fundamental as marriage must cause distress and anguish for all those who are close to it, not just the two principally concerned but very particularly the children. I quite see that this is a very difficult question. However, once one accepts that a year's period for reflection is enough where there are no children, I cannot for the life of me see why the presence of children should be allowed to change that view. What would that extra six months be likely to achieve?
I recognise that this is very much a matter of opinion and no one can prove to everyone else's satisfaction that either side is right. But I still find it very difficult to believe that a further six months would do anything other than prolong the anguish and uncertainty and postpone even the possibility of recovery.
In moving the amendment with her usual skill and sincerity, as she did, my noble friend referred to the jeopardy in which the fabric of our society is placed today. I do not disagree with her about that. But once the point has been reached in the history of divorce that we accept that a year is a sufficient period for reflection for those facing the breakdown of a relationship, I believe sincerely, after a good deal of reflection, that the extra six months would not really achieve very much, although I realise that it would afford a measure of satisfaction to those who are desperately concerned about what is to happen to the fabric of our society.
§ Lord Ackner
My Lords, like the noble Lord, Lord Peyton, I too have not intervened in the debates. I have not intervened for the first reason that he mentioned but not yet for the second. One hopes that the 50th anniversary will be achieved this year.
I agree entirely with the noble Lord, Lord Stoddart, that this is a mild amendment. It seems to have been overlooked that once the one year has expired, it does not provide an entitlement to a divorce. A year must pass and the ancillaries must be completed. The necessary arrangements and decisions must be made as to the children; that is, as regards custody, care or control, access, maintenance, education and so on. 627 In regard to the party who is resisting the divorce, arrangements have to be made for maintenance, division of property and so on.
Where there are children and where there is resistance to divorce, I believe that it will be a very rare case indeed where the ancillaries are completed within the 12 months. I do not think that the noble and learned Lord the Lord Chancellor would be giving away anything in practice if he were to accept the amendment because the 18 months is necessary to deal with those cases in relation to the ancillaries.
I have three further points to make. First, I believe that there is a marked difference which ought to be signified in the legislation between the divorce which involves children and the one that does not. In the latter case, when the parties marry they take on a responsibility to each other which, after the year, they can get rid of without doing any harm to anyone else other than themselves. But where a couple have brought children into the world they have extended their range of responsibility beyond themselves. I believe that that fact ought to be recognised. The recognition of six months is a small recognition. The difference between a consensual parting where both parties agree to a divorce and one where the other party says, "No, I want six further months for this to be sorted out if possible and if that is not possible it must be sorted out amicably in regard to the ancillaries", should also be recognised.
My final point relates to the proposition put forward by the noble Lord, Lord Irvine, that this suggestion would serve no sensible purpose. The noble Lord is intensely busy and will not have seen a "Panorama" programme that I switched on by mistake and continued to watch. It involved a young couple. They were shown on the programme as having met, become very enthusiastic about one another, married and continued that marriage very happily. But when a child arrived the marriage deteriorated and there was a divorce.
To my surprise, both parties in that programme were utterly perplexed as to why the marriage had broken down. It seemed to me that it had broken down quite simply for one reason; namely, that they were unable to adapt themselves to the enormous change which is made to a matrimonial relationship with the arrival of a child. It is a particularly radical change nowadays and it arose in regard to that couple. There was no child and they both worked. They returned home at the end of the day having had an interesting time. They were tired from their occupations and swapped stories about how they had spent the day, and so on.
However, with the arrival of a child, the wife has to give up her work. She stays in all day faced with the rather unsatisfactory occupation of putting food into one end of the child and dealing with the complications at the other. When the husband returns from work she expects that the stimulus which she has lacked throughout the day will be made up by him. But he is tired and has not spent the day having a jolly game of golf: he has been working. He comes home tired and expects to be able to relax by watching the television or reading the paper. But not a bit of it. He is expected to cope with the child to some extent—something which 628 he has never been taught to do and which, in the case to which I referred, the husband was clearly quite incompetent in doing. So the marriage begins to break down. The couple are angry and disappointed with one another and it ends. It ends so obviously because no one told them in advance about the extent to which they had to adapt.
With that type of situation, an extra six months when attempts at reconciliation would be made might make some couples realise that there has to be a great deal more adaptation; in other words, something must be done to enable the wife to get out of an evening with some adult company. Something will have to be done to take the child off her shoulders for 24 hours, which is often the case. Because of the consequence to the father of a divorce—who, in this case, was utterly devoted—with the difficulties of access, the obsession which descends on the frustrated father in that way, the opportunity to explain the consequences of at least not trying a little harder would be a heaven-sent opportunity. Therefore, 18 months in order to cope with that task is not long. It seems to me that it is a very granite-like approach to refuse to accept this very mild compromise. I support it.
§ 3.45 p.m.
§ Lord Hylton
My Lords, before my noble and learned friend sits down, can we just be clear about what he has described as the "ancillaries". When the Bill becomes law, will they begin to operate from the beginning or the end of the 12-month reflection period? To my mind, that makes a very big difference and has a strong bearing on the thrust of the amendment.
§ Lord Ackner
My Lords, as it understand it—subject to correction—the ancillaries are available to be dealt from the moment that the 12-month period begins. The mediation proposals in the Bill were designed to take the friction out of coping with settling those ancillaries. My proposition was that if you had the complication of children, or the resistance of one spouse who does not want a divorce, you would not in the ordinary course of events complete those ancillaries within a year; indeed, the process would go on for a good 18 months. Therefore, the amendment seeks no concession of any significance.
§ Baroness David
My Lords, to accede to the argument put forward by the noble and learned Lord, Lord Ackner—that the ancillaries would take longer than a year so why not require an 18-month waiting period where there are children which would, therefore, make no difference in practice—is to impose a delay. If there is no delay, the ancillaries are completed in under the year. It seems to me that it would be sensible to accept that. Where there is no delay, the arrangements should continue and a year would be ample in that case.
§ Baroness Faithfull
My Lords, I do not support the amendment. I greatly admire the speakers who have spoken for it, but I believe that they have overlooked one aspect; namely, that there is a time before this period—the time of reconciliation. We have had long debates on the difference between mediation and reconciliation.
629 Many of the couples whom I know and with whom I work have been to Relate, which gives marriage guidance. They have gone there for perhaps a year or two years, so there has been a period of uncertainty for the children before mediation started. The process has, therefore, been going on for more than a year. That is not good for children. The period of one year is not the only time when the couple have considered the matter. Indeed, they considered it for a long time beforehand. I have to say that children cannot bear such long periods of uncertainty.
I absolutely agree with my noble friends Lady Young and Lady Elles that the children of divorcing parents suffer. But it is much better for them to suffer for less, not more, time because they have already been suffering. Relate's figures show that a number of couples do not go forward with their divorce. However, if the couple have reached the point of going through with a divorce, then they have already had a long time for consideration before reaching that decision. Therefore, for the sake of the children, I believe that a year for consideration is enough.
§ Lord Stallard
My Lords, I shall be brief because the noble Baroness and the noble Lord, Lord Stoddart, have covered most of the points that we have tried to make throughout the Bill on Second Reading, at Committee stage and today. We are still saying much the same thing. We have achieved some minor successes and there have been changes. The noble and learned Lord the Lord Chancellor has responded positively to many of the suggestions that we made, and we are grateful for that. Nevertheless, there is still a great difference between us regarding the matter we are discussing. However, the difference between 18 months and two years is not so great. It is only six months.
I believe that the noble Baroness, Lady Faithfull, was quite wrong to try to pretend that there is a definite period for reconciliation. I wish to God there was! Ever since November I have been asking for a definite period for reconciliation. As yet we have not achieved that. There is no definite period for reconciliation in the Bill. Therefore, it is not quite true to suggest that there is. I believe it was the noble Lord, Lord Peyton, who asked for whom the extended period would be useful. It is obvious that it would be useful for the partner who does not wish to end the marriage.
As the noble Baroness, Lady Elles, said, it is only just that we should try to be as fair as possible to the partner who in the first instance does not want the marriage to break up. Why should she be told that it has to break up whether she likes it or not? The extended period would also be useful to the children of a marriage. At least it would postpone the damage and misery caused to children by divorce. In Committee we heard all about the damage caused to children when parents decide to part. It is not true that more damage is caused to children when an unhappy couple stays together than when such a couple divorces. There is an element of doubt regarding the reasoning of some people on the matter.
630 This whole matter is based on the White Paper which in turn is based on a false premise; namely, that 75 per cent. of people seek a quickie divorce, and that this Bill will do away with the quickie divorce. However, that figure is wrong. The true figure is between 27 and 32 per cent. Therefore, the White Paper is based on a false assumption to begin with. Had we started with correct statistics, the period of 18 months might already have been included in the Bill.
My noble friend Lord Irvine said that the law cannot force people to remain married; in other words, one cannot influence people's morals by means of laws. There are umpteen examples of where that argument has been turned on its head. I refer to laws countering sexual discrimination, racial discrimination or, more recently, the movement to introduce laws countering age discrimination. Those are all attempts to change people's morals and conduct through the introduction of legislation. I believe it was at the Committee stage that I quoted the words of Dr. Johnson who said, using much the same argument as my noble friend,How small of all that human hearts endure,That part which laws or kings can make or cure".Benjamin Jowett—whom I have quoted many times—replied,It is of course true 'that you cannot make men moral by Act of Parliament'; yet the laws and institutions of a country do make it, to a degree, which it is difficult to exaggerate, either easier or harder for men to walk in the right way".It is more accurate to espouse the latter theory than simply to say one cannot change people's minds by introducing certain laws. People can be guided in the right direction through the introduction of legislation. I believe we are justified in seeking this modest extension of six months. I only hope that the extended period would be used for reconciliation. Then it would be worthwhile. I support the amendment.
§ The Lord Bishop of Ripon
My Lords, like others in your Lordships' House, I am speaking in a debate on this Bill for the first time. Others of my colleagues have spoken at previous stages of the Bill. It will not have escaped your Lordships' notice that they have not spoken with united voice. That illustrates the immense complexity of the matter before us and the great difficulty of reaching decisions on these matters. All of us in your Lordships' House are concerned to buttress the institution of marriage—or rather, I would say, to give it respect—and to encourage the expectation that marriage is something that has to be worked hard at—as the noble and learned Lord, Lord Ackner, said—not just in practical ways, but also in more profound ways. It is a partnership within which we have to grow and within which we learn a great deal about our own faults and how to live with the faults of others. What we are concerned about is how best to enable that partnership to be reinforced and to continue. However, we are also aware that there are times when relationships break down.
I wish to pay tribute to the noble Baroness, Lady Young, for her tremendous persistence in bringing this matter before your Lordships' House. I wish to make three simple points. The first is to underline the point that 631 has already been made about the signal which the Bill will send out. I was particularly taken by the point made by the noble and learned Lord, Lord Ackner; namely, that within the signal that is sent out there needs to be a distinction made between those marriages where there are no children and those marriages where there are children. Clearly, the damage done to children by divorce is immense. It needs to be made clear that those who are married with children bear an additional responsibility than simply the responsibility of two people to each other. I believe that this simple amendment would send that signal.
As regards cases where one partner contests a divorce, I have found in my experience that there is frequently considerable bitterness on the part of a person who opposes a divorce, even with the present regulations. That bitterness is likely to be increased with the shortened period of time that is proposed. As the noble Baroness, Lady Elles, said, it is just that the partner who contests a divorce should be allowed a period in which to make representation, and indeed perhaps to come to terms with what is happening to him or her as a result of a course of action which he or she does not approve of. Therefore I believe that the extended period would be of help in that regard.
In relation to children, I should have thought that the moment that most disturbed children was the moment of separation which is not necessarily the moment of divorce. Indeed the moment of separation can sometimes take place before—as I understand it—proceedings under this Bill could ever begin. Therefore the uncertainty is created in the period leading up to the separation. I should have thought that any measure which resulted in one or two marriages where there were children being reconciled was worth considering. The damage done to children by divorce is enormous. If this modest increase of six months were included in the Bill and saved even a limited number of marriages, it would achieve a great deal.
§ Lord Boyd-Carpenter
My Lords, I have not spoken so far during the debates on this Bill but I have listened carefully, particularly to this important debate. I must confess to a considerable bias in favour of marriage having had 59 years of happy married life. The point is a perfectly straightforward one. What the amendment seeks to do is to specify that where there are children to the marriage, the situation is somewhat different from cases where there are not, and that therefore there is a strong argument, it seems to me, for having a slightly longer period—it is only a six-month increase that is sought—for reflection, or possibly for reconciliation, where there are children than in the case where there are not.
Therefore my noble friend Lady Young is right in urging that where there are children, 18 months is a reasonable period. I appreciate that it is essentially a compromise. There are many people who would think it should be a longer period. There are others who doubt whether it would be of any great value. However, a small increase of six months in the cases where there are children to consider seems of the greatest importance. The presence of children makes a real 632 difference. I urge that that difference be reflected in the length of time required for the dissolution of the marriage.
§ 4 p.m.
§ The Earl of Perth
My Lords, I rise to give strong support to the amendment moved by the noble Baroness, Lady Young.
Before I give my reasons I should like to thank the noble and learned Lord the Lord Chancellor for the two amendments which he moved after listening to your Lordships during earlier stages of the Bill. I refer to the amendment which lists the general principles on which the Bill should be considered and, secondly, to the important amendment to Clause 20 relating to marriage support services, which opens the door for reconciliation or counselling. Those amendments improve the Bill enormously.
It is that second aspect which leads me to believe that we should have the longer period before divorce. If we accept the amendment, that will achieve two things. First, it will make clear the very real difference between a marriage which is not blessed with children and one that is and the special responsibilities that are involved in that case. Secondly, it gives longer for counselling which, with the recent changes to the Bill, we recognise as being so appropriate. That is the main thrust of what I want to say to your Lordships.
If the amendments are accepted, at least two of the cardinal's wishes have been carried out; namely, a longer period of time and recognition of the responsibilities to children. Many noble Lords would prefer an even longer period, but we must try to reach agreement.
At an earlier stage the noble and learned Lord the Lord Chancellor said that the period is a matter of judgment. He recognised that there are two views. However, he went on to ask whether it can be right to require that, just because there are children, those children should be subjected to a longer period of distress. That is the nub of the issue. I am quite clear in my own mind that if, as a result of providing for an extra six months where there are children, there is a chance of reconciliation, although some others may suffer, on balance there is no question which is the right approach.
There was a remarkable article in The Times on Saturday, which might have been written in the knowledge that this debate was to take place. It was on the subject of marriage counselling and was written by a lady called Theresa Buck. I beg your Lordships to read it. The thrust of the article was the need for proper training in counselling and the importance of counselling in saving marriages. She made the point, which has already been made today, that the divorce rate in this country is twice that of the rest of Europe. She also felt that this country should jettison its muddled attitude towards marriage guidance. The Bill would he very much better if marriage guidance were regarded as at least as important as mediation. However, marriage guidance takes time, and if there are children it should necessarily take longer.
633 One of the problems in relation to marriage guidance is the shortage of money. The eminent and excellent bodies which provide marriage counselling between them receive £3 million a year, whereas legal aid for divorce amounts to over £300 million. That is wrong. It reinforces the need to provide greater opportunity for marriage guidance or reconciliation, especially where there are children. Therefore, we should support the longer period that is proposed.
The 1969 marriage Bill did not achieve its purpose. As we all know, it resulted in a great increase in the number of divorces. Let that not happen again with this Bill. None of us wants that. The signal that goes out should be that children matter, and that in those cases where children are involved a year is too short a time and the reconciliation and mediation will have a better chance of success if the period is 18 months.
§ Earl Russell
My Lords, first, I should like to congratulate the noble Baroness, Lady Young, on the integrity, determination and persistence with which she has fought her corner on this Bill. It is never easy to go out into the road and stand in front of the legislative juggernaut and signal it to stop. I admire the way in which she has done that. However, having said that, I do not understand her reasons for doing so any better than I did at Second Reading.
The noble Baroness has said that her objective is to buttress marriage. That objective is shared in every quarter of this Chamber. I do not see how she can pursue that objective by making divorce more difficult. It is so self-evident to the noble Baroness that that link holds that she has not entirely taken on board that many of us in this Chamber not only do not accept it but cannot understand why others do accept it.
A legal marriage is an outward and visible sign of an inward and personal relationship between two parties. I do not understand how, by keeping the outward and legal relationship going, you can invigorate the inward and personal relationship between two parties. I cannot understand how the prevention of divorce can make two people love each other when they have ceased to do so.
The noble Baroness said that many people draw back from divorce. She is quite right about that. However, I have yet to hear of cases where they draw back simply because the legal procedures of divorce are too difficult. Some of your Lordships may remember a film of some time ago called "The Sheep has Five Legs", all five of them being played by Fernandel. At one moment in the film the wife of one of Fernandel's characters had decided to leave him, packed her suitcase, shoved in everything in a hurry and a rage and filled it too full. She could not shut it. He had to sit on the suitcase beside her to help to shut it, at which moment they both burst out laughing and the thought of divorce went out of the window. I believe that that is the kind of way in which couples draw back from divorce. I believe that the state of the divorce laws, difficult or easy, has nothing to contribute to it. The divorce laws contribute to the number of broken relationships which end up in 634 separation and in divorce. Whichever way that goes, I do not think that it contributes anything to the buttressing of marriage.
As we are at Third Reading, perhaps I may ask the noble Baroness this question. When she refers to children under 18, does that mean under 18 at the beginning of the period of reflection and consideration or at the end? At what moment do they have to be under 18? If we do not decide that now, and the amendment is carried, some court will do so at considerable public expense. I believe that that should be made clear at some stage.
We have again heard statistics that we have heard many times since Second Reading about divorced men regretting that they were divorced. But what exactly does that mean? I doubt whether a professional opinion pollster would be entirely confident in using such a question. It may mean that one regrets one's marriage broke down: that many people do without believing that it could be saved. It may mean something very different: that one wishes one could have made a go of it. But it may only mean wishing that one's misguided spouse had done something different. We have all heard people in negotiations talking like that and getting nowhere. Until I understand what that information means, I shall not give it that much weight.
The noble Earl, Lord Clanwilliam, raised the question of the unwilling party to a divorce. But it is a personal relationship. You cannot have a relationship of one. Therefore I would say to the noble Earl that by no endeavour can a magnet ever attract a silver churn. That is why, however sad it may be, one unwilling party cannot be used to defer divorce unduly, because the spouse cannot keep the marriage going on his or her own.
The noble Lord, Lord Stallard, raised the parallel of anti-discrimination legislation, but I do not think that the cases are quite on all fours. In anti-discrimination legislation we ask people to refrain from performing or to perform an action. One may do that with a good or an ill heart. I may appoint a woman, a black man, a homosexual, or whoever, against my own inclination that it is still a perfectly good appointment, but I cannot be required by the law to love somebody. However determined you are to obey the law, you cannot do so simply because the law says so. If you cannot do that, I do not see how you can save the marriage. That seems to me to be a very big distinction between anti-discrimination legislation and the legislation required in the Bill.
I listened with great interest to the noble and learned Lord, Lord Ackner. So much of what he said was so vivid that I think we shall all remember it when much of the remainder of the debate is forgotten. But the noble and learned Lord illustrated to me why I believe that the introduction of paternity leave would do more to preserve marriage than anything we can do or refrain from doing in the whole of the Bill. The noble and learned Lord was proposing to lock the door, but I fear that his horse was already stolen.
§ 4.15 p.m.
§ Lord Elton
My Lords, my noble friend Lady Young stated that we are not introducing a matter of principle but of degree; and that is perfectly true. We are properly treating the provision as though it were a matter of principle. As the amendment is drafted, it is a matter of two principles, paragraphs (a) and (b). I for one regret that they are tied together because I am not sure that I have the same feelings about the two. The first deals with marriages where one of the partners does not consent to a divorce. The right reverend Prelate reminded us that a principle of justice applies. The noble and learned Lord, Lord Ackner, applied his formidable intellect to producing intellectual arguments which support one's instinct in the matter.
However, there is a second leg to the amendment: that which deals with children. That is a principle not of justice but of compassion. In my book that must always prevail. Therefore, in order to judge how to conduct myself on this amendment—I hope that your Lordships will feel the same—it is the effect on the children and not the effect on the partners which must take primacy. The children, after all, were no part of the contract from which they sprang into existence. They are innocent parties and are almost certain to be damaged in some degree by what is happening. As my noble friend Lady Faithfull said earlier, what is happening begins long before the order is applied for. That is not the beginning of the process; it is the culmination.
My noble friend Lady Young said that the process of divorce takes more than a year in 43 per cent. of cases. The amendment, presumably, will not bite too much on them. But the Bill bites on the remaining 57 per cent. I suspect—I think that your Lordships will share my suspicion—that the cases in which children are involved will largely fall in the 43 per cent. because of the intricacy and importance of making arrangements for them. If that were not the case now, it would be provided under the Bill not only because of the welcome amendment that my noble and learned friend has put into Clause 1 at the instigation of the noble Lord, Lord Robertson of Oakridge, but also because Clause 3(1)(c) states that,the court shall make the order applied for if (but only if)—the requirements of section 9 about the parties' arrangements for the future are satisfied".Clause 9(3) states:The requirements of section 41 of the 1973 Act (duty of court to consider whether there are children of the family and, if there are, the arrangements to be made for them) must have been satisfied".If that were not enough, Schedule 8 amends Section 41 of the Matrimonial Causes Act to ensure that the minutiae of the Act are applied as regards children. I refer to paragraph 23 on page 71.
There is a whole range of protection for children and a requirement that their interests shall be fully attended to before the order can be given. Again, once there is a dispute, the whole process is caught by the Children Act. So there is no question of a quickie divorce so far as concerns children.
We come now to the question of whether, where there are cases involving children, the process of divorce should he extended from a minimum of one year to a 636 minimum of 18 months in order to prolong the period for reflection. I listened to my noble friend Lady Elles with the close attention that I always give her. It worries me greatly to be sitting and speaking between two ladies of your Lordships' House whom I so greatly admire, if I may say so, and in whose opinions in almost everything I so greatly concur. Indeed, I concur in the opinion that the institution of marriage is central to the fabric of our society and that children are the most important feature of it. I concur that decline in the stability of marriage is one of the principal contributing factors to a decline in the strength of the fabric of our society.
If my noble friend Lady Young were to go to school in the north of England, she would find—and she will correct me if I am wrong—that the majority of the horrifying 90 per cent. of children in that school with no known father are not the product of broken marriages but, I fear, are the product of what is now a quite common feature: liaisons which produce children without marriage; and I think that they are outwith the terms of this debate.
We come back to the question of the interests of the children. I have studied this issue painfully and at close hand. It seems to me that the only good that can come from a divorce is the protection of the children from damage. That protection is intensely difficult for parents to achieve.
Your Lordships have, in my view mercifully and rightly, agreed to remove the issue of fault and therefore litigation in court over the heads of children as an inevitable part of this Bill, and for that I am profoundly grateful on their behalf. But one comes back to what is left, and that is the period which started long before the application to the court and will last until it is over. I can tell your Lordships that the really difficult time in which to maintain a relationship with an estranged party which protects the children is the period while the matter is in the hands of the lawyers. That is the time that your Lordships are speaking about. I hope your Lordships will not extend it.
§ Lord Simon of Glaisdale
My Lords, I support this amendment. Much of the discourse about divorce treats the question as if it concerned only husband and wife. There have been signs of that in today's debate. The great value of the amendment moved by the noble Baroness, Lady Young, and her splendid speech in support of it, is that it focuses clearly on the fact that as soon as a child is born the marriage is concerned with more than husband and wife. That point was made by the noble Lord, Lord Boyd-Carpenter, the right reverend Prelate and many others.
There is a focus as if there were only husband and wife. We have heard today of a dead marriage. If there is a living child, the marriage is not dead. Earlier in our deliberations there was talk of the parties being locked in a loveless marriage. How many marriages are there where parents do not love their children? By focusing exclusively on husband and wife one loses sight of the fact that the first of the purposes for which marriage is ordained is the procreation of children. That is also the first purpose that a sociologist will accept. Even today 637 the noble Earl, Lord Russell, whose clarity of mind on these matters has been so valuable to us, spoke of marriage as a relationship between two people. It is not. As soon as there is a child, it is a relationship with more than two people. It is for that reason that the amendment is valuable.
The noble Earl, Lord Russell, wishes to say something, which I shall not hear but I shall read.
§ Earl Russell
My Lords, I merely wish to say to the noble and learned Lord that I have spoken of the interest of children in these amendments at such length at earlier stages of the Bill that I chose not to do it again.
§ Lord Simon of Glaisdale
My Lords, the noble Lord, Lord Irvine of Lairg, said, and said truly, that uncertainty is bad for a child, and that was echoed by the noble Baroness, Lady Faithfull. So it is. But there are two things to say. The first is that responsible parents can shield the child from uncertainty to a large extent during these painful processes, and wise counselling can help them to do so. The second is that, although there is uncertainty, we now know for certain that divorce is very bad for a child. The statistics have been mulled over in the course of our deliberations but, in the end, one comes down to this. When there is a divorce, there are two families to be supported. Remarkably few people in this country can afford more than one family. More often than not the result is that both families go down to subsistence level; income support level. After the divorce, which is a licence to remarry, there is the gravely damaging conflict of loyalty in the mind of a child between two families, with probably a surrogate parent being substituted for the natural parent.
It is not much to ask that, where a child is involved, the parties should consider the matter for an extra six months and be helped to have regard to their responsibilities to the child as well as to each other.
§ Lord Eden of Winton
My Lords, I hope I may briefly trespass upon your time. I suppose in some way I have a double interest in this amendment which I should declare. The first lies in the fact that I have been through the divorce courts myself; the second is that I am the father of four grown-up children and, through a second marriage, I have inherited two grown-up stepsons. I have therefore listened very closely to many of the proceedings on this Bill and have a great deal of sympathy with the purpose underlying the amendments which have been tabled and which have been so movingly addressed by many of your Lordships. However, I do not agree with them, for the following two reasons.
First, I think it is very often the case that the breakdown of a marriage is the product of a lengthy period of decline in the relationship between the partners to that marriage. That period sometimes lasts for years 638 and can put very considerable strain upon the husband and wife; that strain frequently being reflected in the home and therefore impacting upon the children.
Secondly—I am not in a position to enumerate in how many instances—it is quite often the case that, where there are children of the marriage, the children themselves, assuming they are of a certain age, contribute to the continuing relationship between the father and the mother even when they find it difficult to continue to live together. The influence of the children helps to continue the marriage, very often in time bringing about a reconciliation, sometimes after a period of separation. I do not believe that formalising arrangements in the sense that is proposed will help in those processes, nor that protracting the processes through the introduction of a law will help to bring about greater contentment between the two people concerned or greater happiness for any children of that marriage.
I very much agree with the point that was made by my noble friend Lord Perth that there should be better guidance for marriage. However, guidance for marriage should come before marriage. That is where the emphasis is needed. It is where Churches of all denominations have a major responsibility and part to play in the advice they give to people before they marry.
It is not a question of making divorce easier or harder; divorce is usually hard. We should be considering how to make marriage more difficult, the result of a more thought-through process by the partners concerned. Then there would be less divorce because the product of that relationship, when marriage comes about, would be the result of careful thought and long drawn out consideration. I hope that we shall reject the amendments and concentrate on guidance before marriage.
§ 4.30 p.m.
§ Lord Northbourne
My Lords, I support the amendment. I put one down at Report stage which would have had largely the same effect. However, it had one other feature: it provided that either party should be able to appeal to the court if they felt that the interests of the children would be disadvantaged by the extension of the period from 12 months to 18 months. If the court felt that to be the case, it could reduce the period from 18 months to 12 months, but no less.
The noble Lords, Lord Irvine of Lairg and Lord Peyton of Yeovil, the noble Baroness, Lady Faithful, and others, referred to the situation where a marriage was dead at the end of the 12-month period. They went on to suggest that it is important to limit the anguish of the parties and the children. That is a fatalistic approach; I do not believe that all marriages are dead at the end of that period. The evidence is to the contrary.
In the amendment we are trying to save marriages and a little extra anguish may be necessary in order to achieve that objective. If the anguish will be too great in relation to the children, then if noble Lords are minded to vote for the amendment this afternoon, a small additional amendment could be introduced in another place to cover the point which I made at Report stage.
639 There are many reasons for your Lordships to vote for the amendment, but perhaps the most important is the message or signal that it gives. I have talked to many people—my friends, taxi drivers, bus drivers—and almost without exception they all had the impression that the Bill is intended to make divorce easier. I know that the noble and learned Lord will tell me that that is not the Bill's intention, but I am sorry to say that is the way it is being received. It is the way a message is received and not the way it is sent that matters. Noble Lords will remember the schoolboy story about the general who sent back a message: "Send reinforcements, we are going to advance". It arrived at headquarters: "Send three-and-four pence, we're going to a dance". The message received is what matters and if the message received is wrong, we must change the message that we are sending. By introducing the 18-month period on the face of the Bill, we would strengthen the Bill somewhat, though not much.
I was going to speak about the important difference between marriages with children and with no children, but the noble and learned Lord, Lord Simon, and the noble Lord, Lord Elton, said fluently everything that I had intended to say. They are right. Where there are children in a marriage it is essential to give the marriage a little extra chance of achieving reconciliation. As the right reverend Prelate said, some marriages might be saved. That is a tremendously worthwhile objective and I urge your Lordships to vote for the amendment.
§ Baroness Strange
My Lords, one of the most important and valuable things in the world is time, as noble Lords are aware. Everyone who has had the good fortune to be married for a short time, or even a considerable time, will know that occasionally we have the odd disagreement. But we manage to get over it. On his wedding anniversary my father used to say: "We've had only one argument during all our married life". Then he would add, "But every now and again we have an armistice". Probably his armistice was longer than the war. We all believe in the sanctity and value of marriage as the foundation of all proper civilisation. The most important thing we can give anyone to save their marriage is a little time to heal it.
§ Lord Jakobovits
My Lords, I have waited for an hour-and-a-half during the debate to make a contribution because, frankly, I came with an open mind on Amendment No. 3. To me it is not a matter of principle whether one waits 12 months or 18 months, or even whether one draws a distinction between children or no children, because every divorce, with or without children, is an infinite tragedy.
I waited because I wanted to listen. I have been richly rewarded because I am immensely moved by the contributions, and by the manner in which noble Lords have agonised over the subject. Having listened to both sides, I feel that those in favour of the amendment have persuaded me more than those who oppose it.
I wish to add one angle to the reasons which have been mentioned, and I was stirred by what I heard. My pastoral experience tells me, dealing with any number of unhappy marriages, threats of divorce, young couples 640 and elderly couples coming to me, that a prime reason for the rise in the divorce rate is that people simply do not try hard enough. Divorce becomes the first alternative, instead of being the last. In many cases—though not all—I am persuaded that were people to give it another try, put more effort into it, they would succeed and the marriage would remain intact. But this is an age in which we want instant solutions, instant answers. We do not have the patience to work out a problem. The result is that many divorces occur simply because they are snap decisions, taken on the spur of the moment. There is not enough time to allow the decision to mature.
The noble Earl, Lord Russell, said that one cannot force people to love one another. I beg to differ. I think that necessity becomes the mother of invention; and a mother loves. Therefore, if people feel a necessity to live together, to make a success of their marriage for their own sake or their children's sake, if they try hard enough then many will find that, where a great effort is put in, the reward will come. It will be a mother of invention. That invention will lead to the capacity to generate love, to nurture love and eventually to have a perfectly happy marriage after a period of disturbance. Therefore, by increasing the time, particularly where children are concerned, to me the signal that will go out is, "Try harder".
§ Lord Archer of Weston-super-Mare
My Lords, I support my noble friend Lady Young and am proud to have my name on the amendment. I have listened to every stage of the debate and this is the first time I have spoken. I hope that noble Lords will forgive me if I say that, although I am fairly new to the House, I believe that my noble friend Lady Young has given the example to everyone of exactly how to fight a cause when you believe in it, at every single level. I am proud to be on her side.
At the same time, I am very grateful to the noble and learned Lord the Lord Chancellor. During the past few weeks he has given way on two or three matters on which I felt strongly. One thing has become obvious to me at every level. The sincerity of feeling in the debates is something I have rarely seen in any Chamber anywhere in the world. It is possibly because so many of us speak from personal experience. I cannot match the noble and learned Lord, Lord Ackner, who is coming up for 50 years of marriage; or indeed my noble friend Lord Boyd-Carpenter, at 59 years of marriage. But, at a mere 30 years, I have an opinion to give, and indeed look forward to joining them both.
I have two sons, one aged 21 and the other 23. I take up a point made by the noble Lord, Lord Jakobovits, on Report. The most important argument to emerge from this debate is surely that we should be working on the importance of how hard it is to get married, not how easy it is to get divorced.
As I am sure many noble Lords remember, at school the child of a divorced pair in the class was somehow a strange and rare object. Now my sons tell me that I am strange because I have been married for 30 years. That is where the message is wrong. That is what the noble Baroness, Lady Young, means by "the fabric of society" 641 for which we should fight. Surely we should be fighting for our children to believe that you should think very carefully indeed before you get married.
Most of the arguments have been rehearsed very competently this afternoon. However, I should like to answer one or two of my noble friends and others who did not agree with our argument. We heard the noble Earl, Lord Russell, use the word "drawback". He told us the story of how sitting on a suitcase had made a couple realise they wanted to remain married. That might have happened in the 13th month, or the 14th, 15th, 16th, 17th or 18th month; and they might have spent the rest of their life regretting that they had made the wrong decision.
We heard the noble Lord, Lord Irvine, say, with all the brilliance that we hear from lawyers, that this is a compromise. Of course it is a compromise. Many of us on this side wanted something a damn sight tougher and knew we could not get it. This afternoon we are trying to get through the House a proposal not only in which we believe, but on which we think we might be able to carry people with us. I say to the noble Lord, Lord Irvine: do not kid yourself; the noble Baroness, Lady Young, and I would have liked to table an amendment that was a damn sight tougher, but we realised that we would never get it through the Chamber, and all we would win, among a few of us, was an academic moral argument. I say to the noble Lord: yes, the amendment is a compromise. But it is one in which we believe and on which we hope people will join us in the Lobby. We want to push the period from 12 to 18 months.
My noble friend Lord Peyton made a very sincere and moving speech. Whenever one talks at a personal level it rightly seems to capture the whole House. I say to my noble friend that if both sides agree that there should be a divorce, we are not standing in their way. We are saying: if one person still believes there is an outside chance, let us give them another six months to find out. That is our suggestion.
I say to my noble friend Lady Faithfull: has she never heard of marriages where one party is shocked to discover that the other wants to leave; and then that same person changes his or her mind at a later date? I agree with my noble friend that for a great percentage of people another six months is tiresome. But for those few for whom it is not, and whose marriage might be saved, this amendment is worthy of your Lordships' consideration.
For the children, and for that marvellous concept that comes up again and again, "the fabric of society", I say to noble Lords who are still considering the matter: perhaps 18 months will save a few thousand marriages. Perhaps it will help a few thousand children. It is not a large number. It will not change the whole world. But I ask those who have still not made up their minds: for those few thousand, I hope you will join the noble Baroness, Lady Young, in the Lobby.
§ 4.45 p.m.
§ Lord Marsh
My Lords, I shall detain the House only briefly. I take up two points that the noble Baroness, 642 Lady Elles, mentioned in passing. She said that all of us know many people who have had marriage troubles, but who have managed to get together and sort things out and have been reconciled. She also said, "We are not babies in this House". It is worth reminding ourselves that the vast majority of people who get divorced are not babies either. They are adults. They are a total cross-section, literally from princes to paupers. Another problem is that people in very happy marriages have difficulty in understanding just how bad a bad marriage can be.
So far as children are concerned, we have our convictions—and somebody else will tell us one day whether we are right or wrong. I believe that the consequences of this amendment could be for very many children an extension of misery. My noble and learned friend Lord Simon said that marriage cannot die while the children are alive. I can show him children who look back on the day the marriage finally died as a point of relief.
The only good thing about this amendment is the clarity of its objective. It seeks to force a couple to remain married when at least one partner finds life with the other intolerable. We cannot even say on that basis that it is to force them into a happy marriage. I say "at least one of them" because much has been made of one partner. In these circumstances an extra six months of compulsory matrimony—an attractive proposition!—is a devastating weapon in the hands of one party in a vicious and bitter divorce. Can Members of this House realise the extent to which the children will be prayed in aid when there is one partner who does not want the divorce? It is not because the marriage can be put together; they have already tried that. People do not come down to breakfast one morning and say: "You remember that row last night; I'm seeing the lawyers today". As the noble Lord, Lord Eden, said, it grows and festers to the point where people can take it no longer.
I ask the House to consider the situation of the typical family in those circumstances. They live in a very small house. They have a couple of children. The children do not go to boarding school; they are in the house seven days a week, and are there over the weekends when the family can have that "happy time" together from Friday night right through to Monday morning. It is not coincidence, as is well-known, that one of the great times for divorces and final breakdown of marriages is Christmas—because it is a time when they cannot stand each other any longer. The children are there. And what do noble Lords think in that circumstance Mummy and Daddy do in the evenings and over breakfast? What is the conversation? Do they chat about cricket, or the new exhibition at the Tate? No. They resurrect the argument, accusations and bitternesses that they have been resurrecting day in, day out for months before. They pick over the corpse of the marriage like a couple of crows with a dead rabbit. Is that what we want a further six months for?
I never claim to be particularly modest and remain regularly amazed that people do things in a different way than I would have done them but it has never occurred to me that I had a role to play in the marriages of my closest friends, let alone hundreds of thousands 643 of people that I have never seen. The difference between a democracy and a totalitarian society is the way in which the family survives as a family. There are some things where politicians writ should not run and they have no real role in this particular case.
§ The Lord Chancellor
My Lords, this is an extremely important amendment. I recognise, as my noble friend Lady Young made clear, that there is a considerable element of compromise in this proposal. My feelings in favour of compromise will not entirely have escaped your Lordships over the years when I have had an opportunity of addressing the House on legislation. However, when it comes to a matter of this kind, I must try to examine the effects of that compromise on others. I have sought to do so.
This Bill did not come forward without a great deal of consultation. One of the questions, as those who read the consultation paper will recall, was whether the period for reflection and consideration should be longer where children are involved than otherwise. The result of that consultation was decisively against that proposition.
My noble friend Lady Young gave some figures, and I am not sure that they are central to this issue. However, I should perhaps place on record that in the 1993 OPCS statistics on page 79, your Lordships will find that the number of divorces that took place within six months was 52,852, and those that took place within six months to one year amounted to 78,408. When one adds those together It comes to 131,260 out of a total of 164,668 divorces. That means that 79.7 per cent.—or around 80 per cent. of divorces in round figures—were obtained within a year or less. The Bill, in proposing a minimum period of one year, is a considerable change in the divorce legislation in that respect.
We must bear in mind a second point when considering the amendments. The Bill proposes another fundamental change in the divorce law arrangements; namely, that the arrangements for children and property are, with a few exceptions in the relevant schedule, to be made generally speaking before the divorce is granted. That means that the year is a minimum because, depending on the circumstances, the arrangements may take longer than a year to finalise.
That led my noble and learned friend Lord Ackner to say that, in practice, this amendment may not make much difference. He anticipates that the arrangements for children particularly would take longer than a year in any event and therefore that the amendment does not lengthen the period unduly. My point is a point of principle. Where the arrangements require longer than a year to make, it is right that the divorce should be postponed until those arrangements are in place. That is the appropriate difference between a marriage where there are children and a marriage where there are no children. The arrangements may take longer; it is appropriate that those arrangements should be made and therefore the Bill, as presently drafted, takes account of that.
My second point is that, as a result of amendments made in respect of the hardship bar, hardship to children of the marriage is a relevant consideration in that 644 connection. That is another reason that the court, in consideration of specific circumstances, might consider it right to postpone the divorce order. Those are geared to the needs of the specific family.
The third point relates to the question of whether the court wishes to invoke powers under the Children Act. If the court considers that the divorce should be postponed on that account, then it can do so. Therefore the Bill, as presently drafted and without the amendment, contains clear provisions which enable the court, in appropriate circumstances, to lengthen the period required for divorce to take account of the fact that there are children. The amendment seeks, irrespective of the circumstances, to lengthen the minimum period in all cases, whatever the circumstances may be, to a minimum of 18 months.
Reference was made to the article in the Tablet by Cardinal Hume. Your Lordships will remember that one of the considerations that he mentioned specifically, as a factor tending to reduce the length of the period, arose where he was talking about considering whether the period should be extended. He said,Here again there are a number of factors to be considered, not least the effect of prolonged uncertainty on children".That was an important factor in the Cardinal's approach to this matter. I have given effect to certain of his views in relation particularly to the hardship bar when I proposed to your Lordships, and your Lordships passed on Report, considerable relaxation in that respect.
This is a difficult issue. However, your Lordships are not wise, as a matter of principle and judgment, to distinguish—from the point of view of irretrievable breakdown—between marriages involving children and marriages that do not involve children so long as there are appropriate arrangements for taking account of the existence of children and seeing that they are properly regarded before the divorce is granted in any event.
We have had a full debate on these matters. I want simply to refer your Lordships to two letters that I received recently. One is from the National Society for the Prevention of Cruelty to Children. That is a society with considerable experience, recognised in public general statutes, in this area. The letter is dated 11th March and is from the director and chief executive of the National Society for the Prevention of Cruelty to Children. I think it only fair to read it to your Lordships. It states:I am writing to express the NSPCC's concern that amendments to the Family Law Bill may result in the lengthening of the period for reflection between initial application and the granting of a divorce from twelve to eighteen months. The NSPCC welcomes the legislation's intention of reducing family breakdown and saving marriages. The Bill will provide an invaluable opportunity to couples to consider their difficulties and of saving their relationship. This can only be good for the children. We recognise that all families are different and that decisions about how long a period of reflection should be allowed is always going to be controversial and difficult. We do however take the view that on balance a twelve month period is appropriate.We believe that twelve months should be sufficient for a couple to decide whether or not the marriage can be saved. We know that the disruption caused by divorce can severely limit the parents capacity to parent their children".645 That is an important issue. The distraction from the responsibility of parenting is a point to which the NSPCC draws attention. The letter continues:In our view a longer period than twelve months would unnecessarily extend the period of uncertainty and insecurity for the child. A year is a very long time in the life of a child both developmentally and psychologically.We would therefore strongly urge you"—it is a letter to me—to retain the twelve month period for reflection and consideration before a divorce is granted.I have also received a letter on the notepaper of the Children's Society, which is a voluntary society of the Church of England and the Church in Wales. It is signed by the senior director of Barnados, the chief executive of the Children's Society and the chief executive of NCH Action for Children. I should say that my wife happens to be a member of the Council of Barnados, but so far as I know she had no part whatever in the letter which will probably come as much of a surprise to her as it did to me. The letter states:Dear Lord ChancellorWe write to express our concern at the possibility of lengthening the Family Law Bill's twelve month 'period for reflection and consideration' between initial application and the granting of a divorce. We understand that an amendment to this effect will be debated in the House of Lords today: we believe that it would run counter to the interests of children if agreed.Clearly, for a young child, a period of twelve months is a very substantial proportion of his or her life. In the circumstances of divorce, this will be a time of continuing and fundamental insecurity. We hope that those debating this issue will consider this point very seriously and not take steps to lengthen the period. The welfare of children will not be well served if the Bill is changed in this way.The Children Act already draws attention to the damaging effect of delay in reaching decisions about children's upbringing and care. The same principle must apply in the context of separation and divorce".I do not think I can add to the force of those views, which come from groups with tremendous experience in relation to children.
I want to make two other points. I should like to revert to what my noble and learned friend Lord Ackner said about the "Panorama" programme because it draws attention to a very important area of possible family breakdown. That occurs before there is any question of divorce arising. The desire for divorce may come out of that, but it arises at an early stage. I believe that the clause that has been put into the Bill to provide for research into these matters and for grants in respect of marriage support services will do a great deal to try to deal with these matters.
It often happens that the young couple at that stage do not realise their need for help. The sooner help comes, the more likely it is to be effective. One does not want matters to fester on to a divorce if it is possible to avoid that. I should like to emphasise that the Bill seeks to put that matter at the very heart of the consideration of family law in this circumstance—that support should not be related only to divorce hut should be much more generally available. Your 646 Lordships have had figures of comparison. I believe those figures are important, and possibly over the years the balance will be changed.
The second point I want to make is that I am firmly of the view that marriage is at the very heart of our society. I believe that the Bill has an important part to play in protecting that position and in increasing the beneficial effect of the precious ordinance of marriage in our nation. I believe that the Bill is important for that reason.
The precise matter that has been focused on very much in the Bill in relation to children is the point about relations with both parents following on divorce. Your Lordships will have to consider very carefully whether prolonging the period of uncertainty, when the parents may well be in positions in which they are seeking to advance their own particular situation, one against the other, is likely to increase the chance of that all-important relationship. This is a difficult issue. My own fundamental idea is always to try to seek as much consensus as possible but I believe that seeking to attain consensus by accepting the amendment would be, from my point of view anyway, a betrayal of the interests which have been brought to my attention as fundamental for those children who are affected by the sad phenomenon of marital breakdown. Therefore, I invite your Lordships not to support the amendments, much as I admire and share the objectives with which they have been moved by my noble friend Lady Young and those who have supported her.
§ Baroness Young
My Lords, after two hours of debate, it is very difficult to do justice in replying to it. But I should like to start by thanking all those who have supported me. I am particularly grateful to my noble friend Lady Elles, the noble Lords, Lord Stoddart and Lord Stallard, the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Jakobovits, who have walked this very long path together since Second Reading and throughout all the stages of the Bill.
There are others, too, to whom I am most grateful. If I do not reply to every point that has been made, I think your Lordships will be grateful because I am sure we do not want to stay here for much longer. I should also like to thank the noble Earl, Lord Russell. Kind remarks from those who do not agree with what you have to say are all the more sincere. I very much respect his point of view, as I know he respects mine. I thank him for what he has said. I am also particularly grateful to the right reverend Prelate the Bishop of Ripon, and to the noble and learned Lord, Lord Ackner, both of whom have entered into the debate for the first time and have given me their support.
I am deeply disappointed that my noble and learned friend the Lord Chancellor feels unable to accept this amendment which was offered in the spirit of compromise. In replying to his remarks, I start by thanking him for the many amendments he has made to the Bill for which I am deeply appreciative—I know many others are as well. Those are 647 amendments covering children and the hardship bar and there are other amendments with which we shall be dealing later this evening. I shall be glad to comment on them in due course. But perhaps I may deal with the arguments he has put up against the acceptance of Amendments Nos. 3 and 5.
First, he said that he had consulted widely. He has done so. He has consulted a great many people. I recognise that the Bill is based on the work of the Law Commission. A White Paper has been produced, and we have had the views of lawyers and a great many experts in the field. We all have our own experiences, but I can only say to the House that in my entire political experience, which now, I regret to say, extends almost 50 years, since I was a Young Conservative—that is a long time ago—I have never had such support for anything as I have had for the stand I have taken in this case. It has been quite extraordinary, extending from people stopping me in the street to people in shops where I normally shop coming up to me and saying, "We have seen you on television and we so agree with what you have had to say". I have been astonished. I believe that by raising the issues we have raised in the House, we have tapped into a very deep feeling of great anxiety in society that marriage is breaking down and we must do more to buttress it.
I know that every statistician will say that personal example does not prove anything at all. Before someone says so, I shall accept their argument. But all of us in public life know when something we are doing is popular; we know even more rapidly when something we are doing is not popular. The experience that I have had has been quite extraordinary.
The noble and learned Lord quoted statistics about divorce, which I wrote down at the time. He said that 80 per cent. of divorces take place within a year or less. I do not see how that can be the same. I am looking at the table from which the noble and learned Lord quoted. As, in fact, 26 per cent. of divorces take between two and five years, I do not see how 80 per cent. can take less than a year. No doubt we can argue about these figures afterwards.
§ The Lord Chancellor
My Lords, there may be confusion about the time before the divorce process starts, which in the two to five year period is the same, and the actual period of time that the process itself takes.
§ Baroness Young
My Lords, I know that it is a very dangerous thing to start arguing about figures with a mathematician. Were my husband here he would tell me to stop at once, and that advice is probably very sound. We might discuss this matter afterwards. The fact is that I am not entirely satisfied that the figures are quite as stated.
The noble and learned Lord said that there are many opportunities in the Bill for the postponement of the actual divorce itself, and those are greatly to he welcomed. I do not in any way wish to cast doubt on them or to say that I am anything but very grateful to my noble and learned friend for introducing these 648 amendments into the Bill. The fact is that we depend on the courts. One has some slight hesitation—I realise that it is very difficult to know exactly what to say—in putting much faith in how the courts determine these matters because, as we all know, different courts have different views.
My noble and learned friend concluded by reading out two letters, one from the NSPCC and the other from the Children's Society. I accept what they have to say and their sincerity. What I find most extraordinary about the letters from the societies is that in Scotland, where 60 per cent. of divorces take at least two years, and in Northern Ireland, where 73 per cent. of divorces take two years or more, we have no outcry about the damage being done to children. There is no move to shorten the length of time. If we look further afield into Europe we find that there is a much longer period before couples with children can get a divorce and where one spouse does not consent. Those countries are always being held up to us as having fewer divorces. We do not hear about damage to children.
This debate has turned on the issue of damage to the children. In public life one of the first questions one asks about any change in practice is whether we have any examples where that has happened, either in this country or abroad. One of the most extraordinary features of this debate has been the refusal to look at the facts of other countries where these matters are now happening. In the whole of the argument about fault, the evidence is overwhelming in the United States that it increases the number of divorces.
I return to the issue of children. The evidence is perfectly clear. In countries where there are lower divorce rates—something which I believe we all want—there is a longer period of time. I do not believe that there is any evidence that the children suffer more there. They are going to suffer wherever it is. They are the innocent victims in all of these matters. I ask your Lordships to look at the evidence of other countries and to ask: if it works there, why would it not work here?
As the noble and learned Lord, Lord Ackner, rightly said, this is not an enormous amendment. It is a compromise and an opportunity for people to think again. I met someone over the weekend who said that they had been separated for four years, but before the divorce had come through they had got together again. Is that not the sort of thing that we want to encourage? I appreciate the sadness and tragedy of which the noble Lord, Lord Marsh, spoke and I try to understand his feelings. But surely for all of us we must try to do all we can to encourage reconciliation, to buttress marriage, to support the fabric of society and to help the children who are the innocent victims of divorce.
I ask your Lordships to support me in this amendment, which will extend from one year to 18 months the period where a couple with children, or where one spouse does not want a divorce, have to wait and to leave the period at a year for couples without children where both are agreed. I wish to test the opinion of the House on this matter.
§ 5.15 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided* Contents, 109; Not-Contents, 157.651
|Division No. 1|
|Ackner, L.||Laing of Dunphail, L.|
|Ailesbury, M.||Lauderdale, E.|
|Archer of Weston-Super-Mare, L.||Longford, E.|
|Ashbourne, L.||McFarlane of Llandaff, B.|
|Bauer, L.||Marlesford, L.|
|Belhaven and Stenton, L.||Mason of Barnsley, L.|
|Blake, L.||Massereene and Ferrard, V.|
|Blaker, L.||Mersey, V.|
|Boardman, L.||Milner of Leeds, L.|
|Boyd-Carpenter, L.||Monckton of Brenchley, V.|
|Broadbridge, L.||Monk Bretton, L.|
|Brookes, L.||Monson, L.|
|Brougham and Vaux, L.||Monteagle of Brandon, L.|
|Carlisle of Bucklow, L.||Moore of Wolvercote, L.|
|Carnock, L.||Moran, L.|
|Clanwilliam, E.||Mowbray and Stourton, L.|
|Clark of Kempston, L.||Northbourne, L.|
|Cledwyn of Penrhos, L.||Norton, L.|
|Clifford of Chudleigh, L.||O'Cathain, B.|
|Coleraine, L.||Ogmore, L.|
|Craig of Radley, L.||Oliver of Aylmerton, L.|
|De Freyne, L.||Orr-Ewing, L.|
|Donaldson of Kingsbridge, L.||Pender, L.|
|Donegall, M.||Perth, E.|
|Drogheda, E.||Pike, B.|
|Dundee, E.||Pilkington of Oxenford, L.|
|Ellenborough, L.||Platt of Writtle, B.|
|Elles, B.||Plummer of St. Marylebone, L|
|Erroll, E||Porter of Luddenham, L.|
|Fill, L.||Prys-Davies, L.|
|Fraser of Kilmorack, L.||Reading, M.|
|Gage, V.||Rees, L.|
|Gainsborough, E.||Rees-Mogg, L.|
|Gardner of Parkes, B.||Ripon, Bp.|
|Greenhill of Harrow, L.||Rippon of Hexham, L.|
|Griffiths of Fforestfach, L.||Robertson of Oakridge, L.|
|Halifax, E.||Ryder of Warsaw, B.|
|Halsbury, E.||St. Davids, V.|
|Hamilton of Dalzell, L.||Saint Oswald, L.|
|Hanworth, V.||Saltoun of Abernethy, Ly.|
|Harding of Petherton, L.||Simon of Glaisdale, L.|
|Harris of High Cross, L.||Stallard,L. [Teller]|
|Harvington, L.||Stewartby, L.|
|Haslam, L.||Stoddart of Swindon, L.|
|Hayhoe, L.||Strange, B.|
|Hayter, L.||Swinfen, L.|
|Hemphill, L.||Tebbit, L.|
|Holderness, L.||Tollemache, L.|
|Hooper, B.||Trefgarne, L.|
|Howell, L.||Walton of Detchant, L.|
|Iddesleigh, E.||Wilberforce, L.|
|Jakobovits, L.||Williams of Crosby, B.|
|Kinloss, Ly.||Young, B. [Teller.]|
|Aberdare, L.||Ampthill, L.|
|Acton, L.||Astor of Hever, L.|
|Addington, L.||Barnett, L.|
|Addison, V.||Beaumont of Whitley, L.|
|Ailsa, M.||Beloff, L.|
|Alexander of Tunis, E.||Blyth, L.|
|Borrie, L.||Lyell, L.|
|Brabazon of Tara, L.||McConnell, L.|
|Brentford, V.||McIntosh of Haringey, L.|
|Bridge of Harwich, L.|
|Brightman, L.||Mackay of Ardbrecknish, L.|
|Brigstocke, B.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Burnham,L.||Mackay of Drumadoon, L.|
|Butterworth, L.||Mackie of Benshie, L.|
|Cadman, L.||Mar and Kellie, E|
|Campbell of Alloway, L.||Marsh, L.|
|Campbell of Croy, L.||Merrivale, L.|
|Carmichael of Kelvingrove, L.||Meston, L.|
|Carnegy of Lour, B.||Miller of Hendon, B.|
|Chalker of Wallasey, B.|
|Charteris of Amisfield, L||Milverton, L.|
|Chelmer, L.||Monkswell, L.|
|Chelmsford, V.||Mottistone, L.|
|Cockfield, L.||Munster, E|
|Courtown, E.||Murray of Epping Forest, L.|
|Craigavon, V.||Murton of Lindisfarne, L.|
|Cranborne, V. [Lord Privy Seal.]||Nelson, E|
|Crickhowell, L.||Noel-Buxton, L.|
|Cuckney, L.||Northesk, E.|
|Cumberlege, B.||Oppenheim-Barnes, B.|
|Darcy (de Knayth), B.|
|David, B.||Oxford, Bp.|
|Dean of Harptree, L.||Park of Monmouth, B.|
|Derwent, L.||Peyton of Yeovil, L.|
|Desai, L.||Phillimore, L.|
|Donoughue, L.||Rawlings, B.|
|Dormand of Easington, L.||Rea, L.|
|Eden of Winton, L.||Reay, L.|
|Elliott of Morpeth, L.||Redesdale, L.|
|Elton, L.||Renton, L.|
|Ewing of Kirkford, L.|
|Faithfull, B.||Renwick, L.|
|Falkland, V.||Richard, L.|
|Farrington of Ribbleton, B.||Rodgers of Quarry Bank, L.|
|Ferrers, E.||Runcie, L.|
|Freyberg, L.||Russell, E|
|Graham of Edmonton, L.||Samuel, V.|
|Gray of Contin, L.||Seear, B.|
|Habgood, L.||Selborne, E.|
|Hacking, L.||Sharples, B.|
|Harmar-Nicholls, L||Shaughnessy, L.|
|Harris of Greenwich, L.||Shaw of Northstead, L.|
|Harrowby, E.||Shepherd, L.|
|Haskel, L.||Skelmersdale, L.|
|Healey, L.||Slim, V.|
|Hilton of Eggardon, B.||Smith of Gilmorehill, B.|
|Hoffmann, L.||Stedman, B.|
|HolmPatrick, L.||Strathclyde, L. [Teller.]|
|Howe, E.||Strathcona and Mount Royal, L|
|Hylton, L.||Sudeley, L.|
|Ilchester, E.||Taylor of Blackburn, L.|
|Irvine of Lairg, L.||Teviot, L.|
|Jenkin of Roding, L.||Thomas of Gwydir, L.|
|Jenkins of Hillhead, L.||Thurlow, L.|
|Jenkins of Putney, L.||Tope, L.|
|Johnston of Rockport, L.|
|Kimball, L.||Tordoff, L.|
|Kinnoull, E.||Trumpington, B.|
|Knollys, V.||Turner of Camden, B.|
|Lawrence, L.||Ullswater, V.|
|Leigh, L.||Vinson, L.|
|Long, V. [Teller.]||Vivian, L.|
|Lucas, L.||Wallace of Saltaire, L.|
|Weatherill, L.||Wise, L.|
|Wilcox, B.||Wolfson, L.|
|Winston, L.||Wynford, L|
§ *Listed names: Contents 108;
§ Not-Contents, 156. A Lord voted in both lobbies and is counted in the recorded figures.
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.25 p.m.
§ Clause 7 [Period for reflection and consideration]:
The Lord Chancellor moved Amendment No. 4:
Page 4, line 19, after ("saved") insert ("and to have an opportunity to effect a reconciliation").
§ The noble and learned Lord said: My Lords, in Committee the noble and learned Lord, Lord Simon of Glaisdale, tabled a number of amendments which sought to change the name of the period for reflection and consideration to the period for reconciliation, reflection and consideration. I indicated at the time that I supported the spirit in which these amendments were tabled, but foresaw some problems in accepting them and said that I would consider them further.
§ I have reached the conclusion that it would be inadvisable to rename the period in the way suggested. As I said in debate, reconciliation is an outcome, not a process, and the period of reflection and consideration a means of reaching that outcome.
§ I understand, however, my noble and learned friend's concerns that, as he said at Report stage, the year period should be used for opportunities of reconciliation. It is for that reason that I have tabled this amendment, the effect of which is to place an additional statement of purpose into Clause 7(1), which provides that the period which must pass before an application for a divorce or separation order can be made is for the parties to have the opportunity to effect a reconciliation. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 5 not moved.]
§ The Lord Chancellor
My Lords, before I call Amendment No. 6, I should point out that if that amendment is agreed to, an effect will be had on Amendment No. 7.
Lord Irvine of Lairg moved Amendment No. 6:
Page 4, line 27, at end insert ("except where subsection (10) applies").
§ The noble Lord said: My Lords, in moving Amendment No. 6, I should like to speak also to Amendment No. 8. These amendments are intended to be a narrower substitute for the amendments numbered 31 and 43 which my noble friend Lady David was good enough to move on my behalf on 11th March, the third day of Report stage.
§ I support, in principle, Amendments Nos. 7 and 9 which stand in the names of the noble Earl, Lord Russell, and the noble Baroness, Lady Elles. The reason for my preference for Amendments Nos. 6 and 8, which stand in my name and that of my noble friend Lady David, is that because they are narrower and are 652 focused exclusively on the interests of the children of the marriage they are most likely to attract the support of your Lordships' House.
Amendment No. 8 is the substantive amendment, which seeks to insert a new subsection at page 5, line 11, which would read:
On application by a person authorised by order of the Lord Chancellor the court shall have the power to abridge the period for reflection and consideration if (but only if) the requirements of section 2(1)"—
that should read "section 3(1)"; I am grateful to the noble Lord, Lord Robertson of Oakridge, for pointing that out to me—
are satisfied and the court is satisfied that it is necessary in the interests of any relevant children of the marriage, having regard to section 1(2) of the Children Act 1989, to dissolve the marriage before such period has elapsed.
(11) Where the court decides to exercise its powers under subsection (10), it shall specify when the marriage is to be dissolved".
That amendment is narrower because, if carried, the earlier Amendment No. 43 would have given the court the power to abridge the period for reflection and consideration if the court was satisfied that it was necessary either in the interests of the parties or of any relevant children to dissolve the marriage before expiry of the year.
§ Amendment No. 8 gives the court a discretion to dissolve a marriage before expiry of a year, if, and only if, the court is satisfied that it is in the interests of any relevant children of the marriage to do so. No such discretion is given under the amendment to dissolve a marriage before the expiry of the year in the interests of the parties.
§ The amendment therefore puts the interests of the children centre stage, and gives the court an exceptional jurisdiction to dissolve a marriage prior to the expiry of the year where that is necessary in the interests of the children of the marriage.
§ I know that the noble and learned Lord has before expressed the opinion that a year for reflection and consideration is the minimum period necessary to demonstrate that a marriage has irretrievably broken down. I accept that as a general principle, but it should be capable of exception. I agree with the noble Earl, Lord Russell, when he said on 4th March that there are limits to the extent to which one single legal principle may fit every individual case.
I agree with the noble Earl too that there are cases in which it is vital in the interests of the children for the marriage to be dissolved before the expiry of the year. I was heartened to read the qualified support that the noble Baroness, Lady Young, who sadly is not in her place for the amendment, felt able to give my noble friend Lady David on Report when she said:
I can just see that there may be very limited cases where that might be necessary".—[Official Report, 4/3/96; col. 15.]
§ I appreciate that, on that occasion, the noble Baroness expressed her concern that any exception to the requirement of one year might open what she feared might be a floodgate. It is in recognition of her concern that I have drafted the amendment so narrowly.653
§ First, the power to be vested in the court would not be exercised on the application of either of the parties to the marriage. An application could be made only by a person authorised by order of the Lord Chancellor. I have in mind court welfare officers or perhaps a guardian ad litem. Such a person would apply only where he or she thought that a court should be given the opportunity to decide whether an earlier dissolution was necessary in the interests of any relevant children of the marriage.
§ The noble and learned Lord the Lord Chancellor will, I imagine, confirm that the word "necessary" signifies a very high threshold that would have to be surmounted before the subsection could be invoked. "Necessary" means that which is indispensable; that which cannot be done without. It is the toughest of tests to satisfy. I know that the noble and learned Lord is of the opinion that the law should send out a clear signal that marriage is an important relationship and a year is required before it can be dissolved once one or both of the parties has initiated the necessary procedure.
§ I do not, however, believe that the amendment conflicts with that principle, because application may be made only by a person authorised by order of the Lord Chancellor, and not the parties, and because the discretion is so narrow. When we have regard to the paramount interest of the welfare of the children of a marriage, to which the noble Baroness, Lady Young, called attention in moving her previous amendments, I do not see why the court should be deprived of a discretion to dissolve a marriage prior to the expiry of the year where the court is satisfied that early dissolution is necessary in the interests of the children.
§ The amendment is designed to put children first, and it is the children who are so often the casualties of marital breakdown. I beg to move.
§ The Lord Chancellor
My Lords, since the noble Lord has referred to Amendment No. 8, I would draw attention not merely to the correction that he made expressly, but also point out that he read the amendment as if it said:relevant children of the marriage".There is a misprint in the amendment as printed. What the noble Lord read out is what the amendment should be. I did not mention that earlier, because Amendment No. 8 has not been called formally, but as it forms part of the argument it is right that I should do so now.
§ Earl Russell
My Lords, I give my support to the amendment moved by the noble Lord, Lord Irvine of Lairg. I agree with pretty well everything that he said. This is a tightly drafted pair of amendments. They deal with cases which are, truly, in anyone's view, exceptional. I would like to speak also to Amendments Nos. 7 and 9 which are in my name and that of the noble Baroness, Lady Elles.
We had a particularly good debate on these issues on Report. The two amendments to which I wish to speak arise from that debate and are designed, so far as I can, to meet it. There was a general agreement in the House 654 on Report that we wanted there to be some cases where it was necessary, for reasons of physical safety, for there to be an abridgement of the one-year period. But the view was also strongly expressed—I listened to it—that that should not be drafted in any way which would open the floodgates to a much more general use of a limited period; that this was to be, it was felt, a provision simply for safety—a safety valve in the most literal sense of the phrase.
The amendments in my name and that of the noble Baroness, Lady Elles, are designed to achieve precisely that objective. First, they are confined to allowing the court to abridge the one-year period in cases of domestic violence only. Those situations are—thank God!—exceptional, but they can be very acute. But that is not the only restriction.
The second restriction in Amendment No. 9 is that the abridgement is possible only in cases involving the fear of significant physical harm to one of the parties or any relevant child. There is no loophole here for mental harm. That can be acute, but it is something which is very much harder to define than physical harm. So the restriction to physical harm is meant to meet the requirement that the amendment should be tight. I believe that it does so.
The next restriction is that it should apply only to cases where it appears to the court that the provisions of Part IV—that is what was once the Family Homes and Domestic Violence Bill—will not guarantee sufficient protection or access to safe accommodation.
The insertion of that provision is not meant in the least degree to diminish my gratitude to the noble and learned Lord the Lord Chancellor for all he has done in promoting Part IV. It is truly a valuable measure, but there are some men who are so ruthlessly determined to reclaim their property that practically none of these provisions seems to stand up against them. We have had murders committed by former partners inside women's refuges. If those are not safe, I do not know what on earth is.
In those cases usually the only way a women can achieve safety is by living in some different part of the country, changing her name, and probably changing her hairstyle as well. In those circumstances, there may be safety, but the ability to conceal completely what her whereabouts may be cannot be achieved while negotiations for divorce are still in progress. Where there are negotiations for a divorce, there must be correspondence with lawyers. It is not understood as widely as it should be, but in cases involving acute domestic violence, the withholding of information from the threatening party can be absolutely vital. I have known such information obtained in the most devious of ways from the most unsuspecting, innocent, and public spirited people. For that reason I believe that it is essential that in cases where life may he at stake it is better to allow an abridgement of the period of reflection and consideration than it is to force the noble and learned Lord, Lord Taylor of Gosforth, to further careful consideration of the law of provocation, no doubt at great expense to the Legal Aid Fund however well he would undoubtedly do it.
655 I hope that the amendments will meet with the approval of the House. I am extremely happy with the amendments moved by the noble Lord, Lord Irvine of Lairg. I shall listen most carefully to the noble and learned Lord on the Woolsack to see whether there is a different way in which the objective can be achieved. I hope that one way or another some safety valve will be left.
§ Baroness Elles
My Lords, I support the amendment tabled by the noble Earl, Lord Russell, as a consequence of a debate during the Report stage. I appreciate the rigidity with which my noble and learned friend sticks to a minimum of a year. However, there must be a slight dent in that as regards exceptional cases. The noble Earl convinced me that there may he a case in which the court, without the amendment, will be deprived of taking action where a child or the other party to the marriage could be seriously harmed or murdered.
Reference has been made to such cases. My noble and learned friend will remember the debates that we had in relation to the Child Support Act. Many noble Lords from all sides were concerned that the party to the marriage who was due to pay maintenance would seek out and threaten violence to the other party or to the child. Therefore, the phenomenon is well-known and has not been fished out of the minds of noble Lords. I hope that my noble and learned friend will take seriously Amendment No. 9. It is most tightly drafted and can he used only in a limited number of cases.
§ Lord Robertson of Oakridge
My Lords, I appreciate the objectives behind the amendments, but I would caution your Lordships about agreeing to any exceptions to the basic rule. If we do so, we may see defences that are holed before they start. We should view the amendments with great caution.
§ 5.45 p.m.
§ The Lord Chancellor
My Lords, I appreciate the spirit behind these amendments and the fact that they have been tightly drawn. I agree that the word "necessary" used in Amendment No. 8 is a strong requirement. Indeed, it is difficult to imagine what stronger requirement could be placed upon it. I also understand that the application is to be made by a person authorised by order of the Lord Chancellor. However, I urge your Lordships to be careful about reducing the period of one year. That is the period required between the date on which the statement becomes effective and the date on which an order of divorce can first be granted.
As your Lordships will know—I and one or two others have said so often enough—the purpose of that is to provide convincing proof that the breakdown of the marriage is irretrievable. The period is intended to provide a realistic time for the parties to decide whether they can he reconciled and their marriage saved and, if not, to resolve the practical problems relating to marital breakdown.
The amendments would have the effect of introducing powers of abridgement to the period where a court was satisfied that to do so would he necessary in the interests 656 of any children involved or that failure to do so would result in physical harm. I appreciate the narrowness with which the amendment is drawn, signified by the fact that, as the noble Earl mentioned, it is restricted to "significant physical harm". That is a tight description.
However, the other provisions of the Bill, in particular those in Part IV, are designed to deal with such a situation. I feel strongly that if one has a period required to demonstrate the irretrievable breakdown of the marriage, in principle that period should not be capable of abridgement. Unless and until the marriage has irretrievably broken down, it cannot be right to grant a decree of divorce, whatever else one may do by way of protective orders and so forth.
I shall be happy to see whether we can make improvements to the protective orders. However, as was pointed out by my noble friend Lady Elles, even after divorce there may well be obligations of maintenance. Merely granting a decree of divorce does not necessarily end the need for some kind of correspondence or exchange between, say, the father and someone representing the mother. Even divorce does not undercut that completely in every case. Therefore, while I appreciate the reason behind the proposal, I do not see that it is an effective way of providing a particular type of relief. To overcome the difficulty of, for example, the inadvertent disclosure of addresses and so forth, we have to take steps to prevent that happening and to tighten up the arrangements and so forth.
§ Earl Russell
My Lords, before relying on measures to discourage the disclosure of addresses, would the noble and learned Lord take the advice of his honourable friends Mr. Burt and Mr. Mitchell who have done their level best to achieve this?
§ The Lord Chancellor
My Lords, I am happy to receive advice on this matter from whatever quarter, especially if it happens to be helpful. I understand the difficulty, but the noble Earl is saying that granting a decree of divorce early is not likely to effect what has eluded Mr. Burt and Mr. Mitchell. The noble Earl is, in effect, claiming for this order that the labours of Mr. Burt and Mr. Mitchell are suddenly to come to a good end because we have discovered that a way of handling the whole situation is to grant a divorce early. The problem is that these matters do and can subsist after the granting of a divorce. I am anxious to provide in law as good a protection for the parties and the children as is possible but, for the reasons that I have explained, I am not at all keen to do that to the damage of the effective need for a period of a year to demonstrate that the marriage has irretrievably broken down. All the protection of Part IV is available whether or not a divorce proceeding is in place. Of course, it continues to be available when a divorce proceeding is in place and after a divorce order is granted. There is nothing in the present Bill which will prevent courts making any of these orders in respect of children under the Children Act during the period for reflection. As your Lordships know, the Bill gives an extra power in that respect in the removal of the abuser from the home in some circumstances.
657 I submit that a power to abridge is inconsistent with the principal aim of the one-year period, which is to establish beyond doubt that the breakdown of the marriage is irretrievable. In my submission, it is an unabridgeable period, making a clear and absolute statement about the importance of marriage and its obligations and of parenthood. It is on that basis that I sought to deal with the earlier amendments.
I believe that introducing extensions of any kind to that rule will weaken the way in which the period is perceived. After all, where one party is anxious for a quick divorce, such a provision could well lead to allegations being made against the other party in order to show that a quick divorce would be fair and just and there may be a consequent increase in hostility, bitterness and trauma for the children.
§ Baroness Elles
My Lords, my noble and learned friend spoke about the protection of children. Will he assure me that, for example, a mother who wishes to take her child out of the jurisdiction will be free to do so in order to escape the activities of her partner?
The Lord Chancellor: My Lords, it would be within the power of the court in some circumstances to allow that to happen. It would be a matter for the court to decide. I have the provisions of the Children Act reasonably well in mind and my impression is that where it is necessary and the court is prepared to grant such an order, then that will be possible. Of course, very strong undertakings are required in relation to the jurisdiction of the court because, as my noble friend knows only too well, once the child is out of the jurisdiction of the court in some situations the court loses all control. That may not always be for the benefit of the child. Therefore, it would have to be a very extreme case, but it would be possible.
I mentioned previously—and it was referred to again—that hard cases make bad law. I stand by that remark and remain firmly of the opinion that we need a principle which emphasises the importance of a year as a test of whether a ground for dissolution exists. I remain unconvinced that the existence of particularly difficult circumstances should alter our adherence to that principle. I do not wish to make any exceptions to the requirement that parties may apply for a divorce only after a 12-month period for reflection and consideration and, indeed, when the parties have been married for at least two years.
The Government wish to have a definite period which is clear and unequivocal for everyone, without any exceptions. If it were impossible to meet the problems raised except in this way, I should think the matter worthy of consideration. But the explanations of the noble Lord and the intervention of the noble Earl, Lord Russell, show that such problems may well subsist even where an order of divorce has been granted. I am anxious to protect children but I do not feel that this is the wisest way in which to do so in the context of this Bill.
§ Lord Irvine of Lairg
My Lords, I do not believe that the law should be so rigid as to deny the courts that 658 exceptional jurisdiction which, in the case of Amendments Nos. 6 and 8, would be exercised solely in the interests of the children.
With respect to the noble and learned Lord on the Woolsack, his last argument, that the amendments could lead to abuse by the parties, ignores the fact that the amendments provide that only an independent person authorised by him may apply to the court in the interests of the children. Therefore, I desire to test the opinion of the House.
§ 5.54 p.m.
§ On Question, Whether the said amendment (No. 6) shall be agreed to?
§ Their Lordships divided: Contents, 40; Not-Contents, 128.659
|Division No. 2|
|Holme of Cheltenham, L.|
|Addington, L.||Irvine of Lairg, L.|
|Barnett, L.||McIntosh of Haringey, L.|
|Borrie, L.||Mackie of Benshie, L.|
|Carmichael of Kelvingrove, L.||McNally, L.|
|Darcy (de Knayth), B.||Mar and Kellie, E|
|David, B.||Meston, L.|
|Donoughue, L.||Mishcon, L.|
|Dormand of Easington, L.||Monkswell, L.|
|Ewing of Kirkford, L.||Ogmore, L.|
|Falkland, V.||Rea, L.|
|Farrington of Ribbleton, B.||Richard, L.|
|Russell, E [Teller.]|
|Fitt, L.||Seear, B.|
|Gladwin of Clee, L.||Strabolgi, L.|
|Graham of Edmonton, L. [Teller.]||Taylor of Blackburn, L.|
|Halsbury, E||Tope, L.|
|Hamwee, B.||Turner of Camden, B.|
|Harris of Greenwich, L.||Wallace of Saltaire, L.|
|Haskel, L.||Williams of Elvel, L.|
|Hilton of Eggardon, B.||Winston, L.|
|Addison, V.||Courtown, E.|
|Ailsa, M.||Craig of Radley, L.|
|Archer of Weston-Super-Mare, L.||Cranborne, V. [Lord Privy Seal.]|
|Astor of Hever, L.||Crickhowell, L.|
|Belhaven and Stenton, L.||Cuckney, L.|
|Blaker, L.||Cumberlege, B.|
|Blatch, B.||Dean of Harptree, L.|
|Boardman, L.||Dixon-Smith, L.|
|Boyd-Carpenter, L.||Donegall, M.|
|Brabazon of Tara, L.||Eden of Winton, L|
|Brentford, V.||Ellenborough, L.|
|Brookes, L.||Elton, L.|
|Brougham and Vaux, L.||Faithfull, B.|
|Burnham, L.||Ferrers, E.|
|Cadman, L.||Finsberg, L.|
|Caithness, E||Gardner of Parkes, B.|
|Carlisle of Bucklow, L.||Gray of Contin, L.|
|Carnegy of Lour, B.||Habgood, L.|
|Carnock, L.||Hacking, L.|
|Chalker of Wallasey, B.||Harding of Petherton, L.|
|Charteris of Amisfield, L.||Harmar-Nicholls, L.|
|Chelmsford, V.||Harrowby, E.|
|Clark of Kempston, L.||Haslam, L.|
|Cocks of Hartcliffe, L.||Hayhoe, L.|
|Coleraine, L.||Henley, L.|
|Coleridge, L.||Holderness, L.|
|HolmPatrick, L.||Orkney, E.|
|Hooper, B.||Orr-Ewing, L.|
|Howe, E.||Oxford, Bp.|
|Hylton, L.||Park of Monmouth, B.|
|Hylton-Foster, B.||Parkinson, L.|
|Jeffreys, L.||Perth, E.|
|Kimball, L.||Peyton of Yeovil, L.|
|Kinloss, Ly.||Pilkington of Oxenford, L.|
|Kinnoull, E.||Platt of Writtle, B.|
|Lauderdale, E.||Plummer of St. Marylebone, L.|
|Layton, L.||Rankeillour, L.|
|Leigh, L.||Rawlings, B.|
|Lindsay, E.||Reay, L.|
|Liverpool, E.||Rees, L.|
|Long, V. [Teller.]||Renton, L.|
|Lucas, L. [Teller.]||Renwick, L.|
|Lyell, L.||Robertson of Oakridge, L.|
|Mackay of Ardbrecknish, L||St. Davids, V.|
|Mackay of Clashfern, L.||Saltoun of Abernethy, Ly.|
|(Lord Chancellor)||Shaw of Northstead, L.|
|Mackay of Drumadoon, L.||Shrewsbury, E.|
|Marlesford, L.||Simon of Glaisdale, L.|
|Marsh, L.||Skelmersdale, L.|
|Merrivale, L.||Stewartby, L.|
|Mersey, V.||Strange, B.|
|Miller of Hendon, B.||Strathclyde, L.|
|Milverton, L.||Strathcona and Mount Royal, L|
|Monteagle of Brandon, L.||Sudeley, L.|
|Moran, L.||Swinfen, L.|
|Mottistone, L.||Thomas of Gwydir, L.|
|Mowbray and Stourton, L.||Trefgarne, L.|
|Munster, E.||Trumpington, B.|
|Murton of Lindisfarne, L.||Ullswater, V.|
|Nelson, E.||Vinson, L.|
|Northbourne, L.||Vivian, L.|
|Northesk, E.||Wilcox, B.|
|O'Cathain, B.||Wyatt of Weeford, L.|
|Oppenheim-Barnes, B.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.2 p.m.
§ [Amendments Nos. 7 to 9 not moved.]
§ Clause 8 [Attendance at information meetings]:
The Lord Chancellor moved Amendment No. 10:
Page 5, line 35, at end insert—
("( ) Regulations made under subsection (5) must, in particular, make provision with respect to the giving of information about—
( ) Before making any regulations under subsection (5), the Lord Chancellor must consult such persons concerned with the provision of relevant information as he considers appropriate.").
§ The noble and learned Lord said: My Lords, the above amendment arises out of the earlier debates in which a number of your Lordships queried what kind of information the information meeting is designed to include. I have explained that it would not be wise to be too prescriptive on the face of the Bill regarding the content of the information meeting as this is a matter we wish to pilot extensively to ensure that we find a format and content which best meets the needs of couples at a very difficult and distressing time in their lives.
§ However, in the light of the debates that we have had, I have felt it right to bring forward such an amendment in which I have sought to achieve a balance between maintaining the flexibility that we need to ensure that the system works effectively into the future and giving your Lordships a clear indication as to the type of information which we intend to include and which, if I have understood noble Lords correctly, they most wish to see given. The list of information to be included is not intended to be exhaustive and the regulations could provide for other information if that was thought necessary following the pilot.
§ I intend to review the regulation-making power to ensure that regulations will be able to address the issue of those organisations and services about which it would be appropriate to provide information as a number of your Lordships have expressed concern that there should not be an obligation to provide information about any service regardless of its motives or standards of service. That is a sentiment with which I fully agree. I have also, in response to an amendment from the right reverend Prelate the Bishop of Oxford, specified on the face of the Bill that there will be consultation in framing the regulations which will support the information meetings.
§ I hope that my noble and learned friend Lord Simon of Glaisdale, whom I believe would prefer that such a commitment to consultation was not given on the face of the statute, will be able to accept that part of the amendment because of the pressure for it from some others. My noble and learned friend's point of view is that I would, in any case, certainly do it; but I believe it is comforting to have it on the face of the statute.
§ In formulating regulations which are likely to rely extensively on a practical testing of a number of models of information giving, I believe it is right to make clear that this is an exercise in which the expertise of those involved in the field will be sought. I believe that noble Lords know from what I said earlier that I attach a great deal of importance to the information meeting, not only as regards its content but also as regards ensuring that such information is given effectively so that people know what is available to them in the way of assistance.
§ I have also emphasised that I should wish for assistance to be available earlier than that in those areas where it seems to be wise to have it—indeed, we have already discussed that aspect—but these are 661 the regulations intended to deal with the situation where people first come into contact with a process of a legal kind to seek dissolution of a marriage. I beg to move.
§ The Lord Bishop of Oxford
My Lords, I thank the noble and learned Lord the Lord Chancellor for bringing forward the amendment. I know that a wide range of marriage support organisations will be most grateful for the fact that the regulations will now include a reference to,marriage counselling and other marriage support services",and also for the fact that there is now a requirement for the Lord Chancellor to consult. I believe that that is a way in which the services offered can be kept properly under review and also ensure that only properly authorised and trained people from properly authorised organisations will be able to offer their services. I am most grateful to the noble and learned Lord.
§ Baroness David
My Lords, I, too, should like to thank the noble and learned Lord for introducing the amendment, which I believe is partly in response to Amendment No. 75 which I tabled on Report. On that occasion the noble and learned Lord said that he would bring forward an amendment on Third Reading. I am very pleased to see the paragraph which incorporates,the importance to be attached the welfare, wishes and feelings of children",in the amendment. I know that the children's organisations will also be very pleased to see the amendment.
§ Baroness Elles
My Lords, I should like to join the noble Baroness, Lady David, in welcoming the amendment. I also thank my noble and learned friend for paragraph (b) as regards the,welfare, wishes and feelings of children".That issue was debated during earlier stages of the Bill. We are most grateful for the fact that my noble and learned friend has recognised the importance of that particular aspect of the problem.
§ The Earl of Perth
My Lords, I, too, thank the noble and learned Lord for tabling the amendment. I do so especially because I see that,marriage counselling and other marriage support services",arc set out in paragraph (a) in the list of requirements.
§ Lord Elton
My Lords, I should like to join in the chorus of welcome for the amendment. However, can my noble and learned friend the Lord Chancellor give me reassurance in one particular? Whenever we introduce a catalogue or criteria or contents into a subsection of a Bill, we are reminded of the legal dictum, expressio unius est exclusion alterius— the inference being that paragraphs (a) to (g) are really very important and that nothing else much matters. That is advanced if one puts forward a package amendment, given that the words "in particular" are 662 mentioned in the prolegomenon, if that is what it is, of the subsection. I merely ask my noble and learned friend whether, on reflection, he feels that this shuts the door on anything else. Might he, perhaps, put in something a little stronger than "in particular" in case changing circumstances make it desirable for a further item—for example, under paragraph (h)—to be included?
§ Baroness Seear
My Lords, the fact that we have nothing to say from these Benches does not mean that we do not entirely agree with it; because we do.
§ Lord Stoddart of Swindon
My Lords, the amendment refers to "Regulations". I am not quite sure whether those regulations will be brought forward by negative or affirmative orders. Can the noble and learned Lord clarify the situation?
§ The Lord Chancellor
My Lords, I believe that I am right in saying that the Delegated Powers Scrutiny Committee suggested only one change in connection with the period where it was thought that an affirmative resolution procedure was appropriate. My noble and learned friend Lord Simon of Glaisdale took up the matter and I have given effect to that, but, obviously, I would want to consult pretty widely. I hope that your Lordships will have no reason to invoke any kind of procedure against regulations that I would make under that head.
I am extremely grateful for the support this measure has received. I do not think I have taken the point against a Back Bench amendment to which my noble friend Lord Elton referred. In the context of an amendment such as this, I do not think that would be a good point. Therefore, I hope I would not take it. This amendment seems to me to be perfectly adequate to allow for measures other than those listed here. The phrase,the importance to be attached to the welfare, wishes and feelings of children",strikes me as an extremely effective way of raising these issues. We have considered various amendments during the period that the Bill has been before us. I am glad that the noble Baroness, Lady David, and my noble friends Lady Elles and Lady Faithful] and many others who have taken an interest in this aspect of the matter feel that this measure is effective.
I believe that we can make available effective information and that may be better than instituting formal legal requirements in the context of the Bill. I am also glad that marriage counselling and other marriage support services head this list of measures. My noble friend Lady Young has previously expressed concern about precisely what is covered. The fact that we have referred to marriage counselling and marriage support services at the head of the list of measures should underline the fact that they are covered. I am grateful to your Lordships for the support which has been given to this amendment.
On Question, amendment agreed to.
§ Clause 9 [Arrangements for the future]:663
§ 6.15 p.m.
Lord Meston moved Amendment No. 11:
Page 6, line 10, at end insert—
("(2A) If the parties—
(2B) A direction under subsection (2A)—
§ The noble Lord said: My Lords, the purpose of this amendment is to provide a mechanism whereby those who were married in accordance with the usages of a kind mentioned in Section 26 of the Marriage Act 1949, and who are required to co-operate in accordance with such usages in obtaining a divorce, can apply for a direction that they should have a declaration that they have taken all necessary steps to dissolve the marriage according to those usages. This is designed to meet the particular problem raised at earlier stages of the Bill of the marriage which, although capable of being dissolved in civil law, cannot be dissolved under the system of religious law under which the parties married because that religious divorce depends on the co-operation of the parties which may not be forthcoming.
§ It is a particular problem in the case of Jewish marriages for which the bill of divorcement, known as a get, is a consensual procedure, but one which has to he instigated by the husband. A stubborn husband can use his power to effect a religious divorce as an improper bargaining tool in negotiations relating to financial matters or to the children. Or, out of mere spite, he can withhold the religious divorce altogether so preventing the observant wife from remarrying according to her religion, causing the original marriage to limp on, dissolved in civil law but without a religious dissolution. This has long been recognised as a significant injustice and one which various other jurisdictions have already addressed by legislation.
§ Earlier in the course of debates on the Bill, it was thought that this matter could be dealt with under the hardship bar, although to do so would have depended on rather artificially deeming the situation described as a hardship deriving from the divorce. It seems better to allow the parties and the court to deal with the question at the stage when they are to satisfy the court that they have made appropriate arrangements for their future—that is, under Clause 9 as it now stands. It is to be hoped that the proposed procedure will, by its very presence in the legislation, limit the need for it to be invoked in all hut a few cases. It will be a procedure which requires an application to the court, and a direction by the court if the court is satisfied that it is just and reasonable. It also provides for a power of revocation in the court. 664 There can in practice be even fewer cases in which the power of revocation might be invoked, but it is a safeguard.
§ I should add that the policy behind this amendment is not in any way the secular enforcement of a religious procedure, even though English law expressly provides recognition of Jewish and other religious divorces, but rather the prevention of abuse of the contractual release required particularly under Jewish law. Such abuse can affect the negotiating position of the wife, as well as her right to remarry. The policy which I have mentioned is consistent with other policies in civil law which try to end limping marriages and try to facilitate a clean break where practicable. It is also consistent with the requirement of Section 49 of the Supreme Court Act 1981 to secure, so far as possible, that all matters in dispute between the parties are completely determined. Finally, I suggest that it will facilitate remarriage and the recognition within the community concerned of any second family.
§ I am grateful for the assistance of those advising the noble and learned Lord the Lord Chancellor in the drafting of this amendment and I am grateful to the noble and learned Lord himself for pointing out the various pitfalls and problems in earlier amendments. Despite that help, I should emphasise that in no sense is this a government amendment, but nevertheless I hope that it is an amendment which will find support from all parts of the House. I beg to move.
§ Lord Jakobovits
My Lords, there is no need to rehearse once again the considerations leading to the presentation of this amendment which was so splendidly put before us by the noble Lord, Lord Meston. I would merely want to add two remarks on the significance of this amendment, which I hope will be accepted.
First, I dare say that of all the new clauses and new amendments now introduced into this Bill none will have more immediate significance as a source of relief to those affected than this particular amendment. It would mean, possibly, that they would not have to remain in a state of suspension, neither married under the previous marriage which has ended in a civil divorce, nor being able to contract a new one because of the commitments entered into at the time of the original bond between them. Therefore the amendment will come as an enormous relief to those in our community, and far beyond. In many foreign countries people have constantly watched the progress of this amendment with a view, possibly, to adopting it to resolve what has proved to be an agonising problem caused by the exploitation of one party. Usually it is the wife who is held to ransom by the husband but this can occur the opposite way around. I hail with profound appreciation on behalf of a grateful community all those who have contributed to this historic amendment. I hope that it will be passed and will be confirmed in another place.
Secondly, on most matters of policy there are deep divisions within the Jewish community. This is the one item on which all sections of our community are united, whether they be reform, liberal, orthodox or conservative. They are all united in supporting this 665 measure. If there has been a degree of opposition or questioning, it was solely by individuals who spoke for themselves—and said so—and who were concerned partly with matters of principle to them, but in greater measure with presentation of the problem which did not always reflect the complete realities of the situation.
Therefore, I join the noble Lord, Lord Meston, in expressing profound and abiding appreciation, above all to the noble and learned Lord the Lord Chancellor for his immense help and counsel in making the presentation of the amendment possible, and to the noble Lord, Lord Mishcon, who has been uniquely helpful. To use the Hebrew phrase, last but not least, I should like to thank the presenter of the amendment, the noble Lord, Lord Meston.
§ The Lord Chancellor
My Lords, your Lordships have heard a full explanation of the amendment. I have nothing to add to it. It is for your Lordships to decide whether the amendment should be passed. As the noble Lord, Lord Meston, explained, it is a matter that concerns primarily the problem to which he addressed himself. The technicalities have been dealt with fully in the amendment.
On Question, amendment agreed to.
§ Clause 10 [Hardship: orders preventing divorce]:
Baroness Young moved Amendment No. 12:
Page 6, line 27, leave out subsection (2) and insert—
("(2) Such an order (an "order preventing divorce") may be made if the court is satisfied that to grant a divorce order would be—
§ The noble Baroness said: My Lords, the amendment concerns what is known as the hardship bar. I appreciate that the situation under the Bill as presently drafted is a great improvement on the present situation. At present the hardship bar applies only in the case of a five-year separation without consent and would prevent a divorce application where there would be grave financial or other hardship. As only 6 per cent. of divorces at present are on the basis of a five-year separation, in 25 years the hardship bar has been accepted only once, based on grave hardship.
§ Therefore, it is a great improvement that the Bill extends the hardship bar to all divorces and that my noble and learned friend the Lord Chancellor has amended the wording to "substantial financial or other hardship"; the hardship bar is also extended to include consideration of the children as well as the spouse who does not want a divorce. At the beginning of my remarks I should like to acknowledge that fact. Those are welcome improvements to the hardship bar.
§ However, when we debated the matter previously I expressed my anxiety that the hardship bar, even with those changes, might not be used in the future. Therefore, even if it is improved, if it is not used it will have little effect. I have been further advised that the amendments, valuable though they are, will not make much difference in practice to the operation of the 666 hardship bar. Many of the people who have advised me have said that the changes are simply cosmetic and that the definition of hardship is not strong enough.
§ It is important to bear in mind the inherent problems with the hardship bar. The hardship bar only prevents the present application going through. Under Clause 10(5) it is possible for the court to impose conditions which must be satisfied before the bar on divorce is lifted. At the end of the day, the hardship bar is essentially a temporary bar. The previous bar failed because of the interpretation of the word "grave" by judges. Unless the hardship bar is absolutely clear—whether the word is "grave" or "substantial"—the same will happen again.
§ As we have said, divorce can lead to severe hardship for one spouse. No-fault divorce—which we now have—will mean that it will be impossible to defend or prevent a divorce. Divorce normally has serious economic and health consequences for both parties. We know that the existing bar is completely ineffective. I am therefore very anxious to see a strengthened hardship bar which will force people to face their responsibilities, both to their spouse and to their children. After all, a wife may have given up her entire career for the sake of bringing up children, and a financial settlement following a divorce would not be adequate compensation.
§ I put down the amendment because I am advised that it would strengthen the hardship bar. I do not in any way wish to undermine it. Far from it. When we have discussed the matter all of your Lordships have seen the value of the bar. Clause 10 is entitled "Hardship: orders preventing divorce". I understand that it is to be seen as a longstop, which is very valuable. However, it is of no value to anybody if it does not work. I have been advised that, valuable though the changes are, if they will not work, they are not of value. Many lawyers feel that the clause as it stands will suffer the same fate as the clause in the 1969 Act. The amendment is designed to strengthen the hardship bar. I beg to move.
§ Lord Ashbourne
My Lords, I rise to support my noble friend Lady Young, who moved the amendment so effectively.
The problem that the amendment addresses is that the press have unhelpfully characterised the amendments of the noble and learned Lord on the Woolsack as giving children a veto over their parents' divorce. In fact, far from doing that, the noble and learned Lord's amendments are likely to make little difference in practice. A number of lawyers have described the changes as cosmetic, as my noble friend said. The definition of hardship is neither strong enough nor precise enough.
It is important to bear in mind the inherent problems with the hardship bar; namely, that it only prevents the present application going through. Under Clause 10(5) it is possible for the court to impose conditions which must be satisfied before the bar on divorce is lifted. But the hardship bar is essentially temporary in nature, and under the present law it has failed because of the interpretations judges have given to the word "grave". Unless the hardship bar is crystal clear and quite unambiguous the same will happen again with this Bill. 667 It is therefore important that the hardship bar is strengthened as the introduction of no-fault, or no-reason, divorce will mean that it will be impossible to defend or prevent a divorce.
Furthermore, divorce can lead to severe hardship for one spouse, and normally has serious economic and health consequences for both parties. The existing bar has proved completely ineffective, and a strengthened hardship bar will force couples to face their responsibilities both to their spouse and to their children.
For all those reasons I urge the House to support the amendment.
§ Lord Meston
My Lords, I have considerable concerns about the amendment. I understand the point of view that the hardship bar, even in its modified form following earlier amendments to the Bill, may not be strong enough. However, I have little doubt that the amendment, if enacted, would open up the floodgates, to the benefit of the lawyers and to no great benefit to the parties to the marriage.
At an earlier stage in the Bill, the noble and learned Lord, Lord Simon of Glaisdale, questioned the justiciability of the concept of the irretrievable breakdown of marriage. In the context of the amendment, I would question the justiciability of the various concepts which a court would be required to consider in any litigation under the amendment: as regards whether a marriage had irretrievably broken down and whether it was unjust to grant a divorce or contrary to the interests of any child of the marriage.
As the clause stands, unamended, substantial hardship is an issue with which the court could grapple. But I question whether it is necessary or desirable to allow in considerations of fault by the back door. It will greatly increase acrimony between the parties. Consideration of the interests of the children is of course important. But as has been said several times in debates on the Bill, the disservice which the parties do to their children is in separating not necessarily in divorcing. It is difficult to see how a court can consider objectively whether or not it is contrary to the interests of the child to allow a divorce to go forward. As was said in the earlier debate, I can see the temptation to pray in aid the interests of children in an improper way.
The main point I wish to emphasise is that litigation will undoubtedly be generated. That litigation will almost certainly emphasise beyond any doubt that the marriage has irretrievably broken down. I doubt whether an amendment along these lines could save any marriage in reality, although in certain circumstances it might preserve for an indefinite period the legal status of marriage. An application under this amendment may fail, in which case it will be costly both emotionally and financially to the parties, or it will succeed. It is hard to decide which is worse. If it succeeds, it will create immense bitterness, preserving the status of marriage and storing up further litigation for the future because the frustrated party will be tempted to apply under the provisions of the Bill to cancel the order in due course. Meanwhile, the marriage will limp on indefinitely.
668 There may be a few cases where the compensation (to use that phrase perhaps inappropriately) awarded to a wife under the financial and property adjustment provisions of the legislation may not be adequate. But that in itself is not always a reason for preventing the divorce and for not recognising the reality of the position which the parties have reached. I therefore advise your Lordships to be very careful about the amendment, at least in this form.
§ 6.30 p.m.
§ Lord Renton
My Lords, quite frankly, I do not see the need for Amendments Nos. 13 and 14. I agree with the noble Lord, Lord Meston, in the reasons that he has given against them. As it stands, Clause 10 ensures that the interests of the children of the marriage are well cared for.
However, I wish to say a few words about Amendment No. 15. It proposes to leave out subsection (6) which states:In this section 'hardship' includes the loss of a chance to obtain a future benefit (as well as the loss of an existing benefit)".I cannot see the need for leaving that out. I believe that it would be best to let it stand. However, the proposed subsection (6) on the burden of proof requires serious consideration. I should be grateful if, when my noble and learned friend the Lord Chancellor replies, he could either say that new subsection (6) in Amendment No. 15 is necessary and acceptable to him or that it is unnecessary because the burden of proof is dealt with satisfactorily.
§ Lord Clifford of Chudleigh
My Lords, I support the whole argument put forward by the noble Baroness. I specifically wish to bring to mind paragraph (d) of Amendment No. 13. It refers to,the social, cultural and ethnic background of the parties, and their religious beliefs if any".I am a little surprised at the noble Lord, Lord Meston. I was going to speak in support of the most recently approved amendment, Amendment No. 11, which is closely associated with the wording that I have just read. In England—the argument does not apply only in Israel and in other countries—we have religious beliefs. We have the Roman Catholic Church. Often the senior member of the family is the father. The family are baptised as Roman Catholics. The mother divorces the father. Noble Lords can probably understand—and, if not, allow me to educate your Lordships—that the Roman Catholic Church then has the Catholic father on trial. I am assuming that the female spouse, the wife, is not a Roman Catholic. Those trials are not just civil trials; they are also Church trials, and they can go on and on.
The most important point to remember is that we are talking about the children. If they are brought up initially as Roman Catholics, they cannot understand why their father is not receiving that most holy Sacrament, the Body of Christ. They ask dad, "Why are you not going to communion when you have had me brought up as a Catholic, and I can take communion? What is the trouble?".
669 I do not believe that enough consideration has been given by the noble Lord, Lord Meston. The provision is closely associated with Amendment No. 11, to which all noble Lords agreed. I request that your Lordships consider the provision seriously.
§ Lord Elton
My Lords, while the noble Lord, Lord Meston, is considering his answer, perhaps I may seek to reassure my noble friend Lord Ashbourne, on one small point. He stated that the hardship bar, in such form as it previously existed, had foundered on the term "grave". We have changed that. The word is now "substantial". It has been changed for the very reason that he adduced. Therefore one of the four or five reasons that he advanced has been dealt with.
On the remainder, I do not wish to recapitulate what I said on an earlier amendment about the protections which already exist for a child as a result of Amendment No. 1, with Clause 3 bringing in Clause 9 and hence Section 41 of the Matrimonial Causes Act, and paragraph 23 of Schedule 8 strengthening that clause. I believe that those are sufficient reassurances as regards children even if the Children Act which overarches them were not.
I had hoped that the noble Lord, Lord Clifford of Chudleigh, would illuminate me on paragraph (d) of Amendment No. 13. I am not entirely sure that he has done so. In any case, he has addressed himself only to religious beliefs. I find it difficult to understand how ethnic background can contribute to the situation. I begin to wonder whether the Bill is trying to embrace the Mormon or Moslem faiths, where it is perfectly proper to have what in British statute law is a bigamous marriage. We have to be careful about the interrelationship between statute and religious law. Where a religious divorce is required, that is a matter for the officials of the religious faith. I can see the noble Lord teetering on the edge of his seat. Perhaps I might conclude by saying that I believe that as much as needs to be done in that direction was done by Amendment No. 11 and therefore, while I am not passionately against this amendment, I am certainly not enthusiastically for it.
§ Lord Clifford of Chudleigh
My Lords, if Amendment No. 11 will cover that particular part of the clause, I totally agree, and there is no need for it to be included in Amendment No. 13 as paragraph (d). As long as it is included somewhere, that is fine. I was trying to emphasise the interests of children.
§ Lord Burnham
My Lords, the hardships we are considering under this group of amendments relate both to the children of the marriage and to the other party. As far as the children are concerned, is this not yet another case where an amendment is totally unnecessary by reason of the provisions of the Children Act? The court has discretion to apply the whole panoply of the powers of that Act to cure any problems which may arise on behalf of the children.
670 With regard to the other party, there are so many conditions which apply before a divorce can be granted that it is surely not necessary on this rather smaller point to apply the hardship bar in this case.
I assume my noble friend Lady Young was speaking to this whole group of Amendments Nos. 12 to 15. Is not the provision that,the burden of showing that dissolution of the marriage will not adversely affect the interests of any child of the family shall rest on the party seeking the divorcea little unjust to the other party, who has a very considerable interest in the matter?
As a final point I note that that amendment proposes that subsection (6) should be omitted. That subsection provides:In this section 'hardship' includes the loss of a chance to obtain a future benefit (as well as the loss of an existing benefit)".Am I right in thinking that my noble friend Lady Young has dropped any claim that on divorce a future pension should be shared between the two parties to a marriage?
§ Viscount Brentford
My Lords, I too was slightly disappointed that my noble friend Lady Young did not explain more clearly the differences between her amendment and the existing Bill. For instance, in Amendment No. 13 reference to health is imported in subsection (b), which I should have thought was probably covered by the interests of children. I wonder why she has specifically incorporated that.
I should also have liked my noble friend to explain the significance of subsection (d), which the noble Lord, Lord Clifford of Chudleigh, asked about, and what it is meant to cover that is not covered by the Bill at present.
In addition, I cannot see why in this group of amendments she has removed part of the existing subsection (2) and put it into the new subsection. It seems to me not to make an enormous difference overall except for these new additions. I question whether it is worth making Clause 10 this much more cumbersome and complicated. I am not clear where it is leading us. I am very happy with the revised Clause 10 as it now stands in the Bill after the amendments which have already been agreed. It seems to me to be clear.
I have too many questions as to what this amendment means. I believe it is important that we should be satisfied that Clause 10 is clear in what it says so that the courts can interpret it as clearly as possible. I should certainly need a lot more explanation before I was happy with this amendment.
§ 6.45 p.m.
§ Lord Hylton
My Lords, I do not know whether my noble friend Lord Clifford of Chudleigh was referring to the Roman Catholic system for annulling marriages. That system starts from totally different premises from divorce law and I think it would be a great mistake to try to import it into this Bill. Nor do I think that parties should be allowed to plead their religious beliefs as a way of preventing a divorce from taking place.
§ Lord Irvine of Lairg
My Lords, I have to confess that I am somewhat puzzled and I should welcome an 671 explanation from the noble Baroness, Lady Young, as to why she considers it right to drop the existing subsection (6) of Clause 10. However, the purpose of my rising to my feet is to demonstrate my even-handedness and to support the suggestion which she makes in Amendment No. 15, essentially for the reason given by the noble Lord, Lord Renton. From a reading of Clause 10, it appears to me that a burden would be imposed on the other party—that is, the party other than the applicant for a divorce—to satisfy the court that the marriage should not be dissolved on one of the hardship grounds. That is how it appears to me, as I think it appears to the noble Lord, Lord Renton. If that is so, I think there is much merit in making it express that the burden of showing that dissolution of the marriage will not adversely affect the interests of any child of the family should rest upon the party seeking the divorce and not upon the other party.
§ Baroness Seear
My Lords, to my great surprise, I find that on this occasion I do not agree with the noble Lord, Lord Irvine of Lairg. On this Bill I have so far agreed with everything he has said. Only on this Bill!
When it comes to proving that divorce does not affect the interests of a child, I should have thought one could show that any divorce would adversely affect the interests of the child. We have agreed all the way through that the main sufferers are the children. If this were taken literally, I should have thought a great many divorces could have been stopped. However, we accept that, regrettably, the interests of children are damaged by divorce. That is why we have been so careful to highlight the position of children all the way through. This seems to me to be negating what we have supported all along.
§ The Lord Chancellor
My Lords, I think I am right in saying that in proposing these amendments both my noble friend Lady Young and my noble friend Lord Ashbourne indicated that in their view hardship could be caused to the spouse or children by a dissolution of marriage. That is recognised in Clause 10 of the Bill, where the focus is on hardship.
I am grateful to my noble friend Lady Young for pointing out that the hardship bar has been extended under this Bill to all divorces whereas previously it applied only to five-year separation cases. That is a very considerable extension of the scope of the hardship bar.
In the amendments which were introduced with your Lordships' concurrence on Report the word "grave", which both my noble friends referred to as the foundation of the judicial interpretation that they found difficult or unacceptable, has been taken out and I have put in place the word "substantial", which, as my noble and learned friend Lord Simon of Glaisdale pointed out at Report stage, would in any event be understood to be there. Of course, the courts would only take account of substantial hardship.
My noble friends went on to say that they had been advised that my amendments were cosmetic. I am not absolutely certain that I know exactly what that means in the context of this particular Bill. I intend them to be effective in reducing the burden that is required to be 672 proved from "grave" to "substantial". I believe that that is quite a considerable change. Noble Lords' basic concerns are with hardship, as they said in moving the amendments. Surely it is right to keep an anchor on what one seeks to aim at. If we become involved in justice and injustice, we are into litigation in a big way.
I do not believe that the institution of marriage or actual marriages will be helped in this country by tremendous litigation in connection with divorce. As I explained earlier to your Lordships, in my former career I had experience of both undefended divorces and defended divorces. At least one of the defended divorces attained great national notoriety which did nothing for the marriage, although it did a good deal for the deprivation of resources of those who were involved as parties to the litigation. It would be much better for such resources as are available to be concentrated on trying to help people at the stage where they get into difficulties.
I would be in favour of a reasonably precise hardship bar which is, nevertheless, effective to deal with the problems that my noble friend enunciated. That is the hardship to the person who does not want the divorce. Having carefully considered the arguments put forward in Committee and at Report stage, I have reached the conclusion that that is the way to handle the problem of the person who is disturbed by the fact that the marriage has irretrievably broken down and who wants it to continue because he or she does not accept the position. I do not believe that it is possible to do that in a more practical way than by basing it on hardship. That is what we have done.
The group of amendments would lead us into considerable litigation and the opportunity for malicious delay by a party who would seek to use the children as pawns in the fight. The amendments would significantly change the current hardship bar under Section 5 of the Matrimonial Causes Act 1973 and under the current draft of Clause 10. The hardship which is properly to be dealt with is hardship which has resulted or is thought to be likely to result from the dissolution of the marriage. That is the important focus of Clause 10. I venture to think that it is lost in the amendment.
It has been said more than once that I seek to introduce a no-fault divorce. Any telegraphic description of such a Bill is likely to be misleading. That description is particularly so. From the beginning I have understood that where conduct is important it should be taken into account. I have made that clear. What I disagree with is the idea that fault should be used as a basis for a dissolution order itself in some circumstance which enables it to be obtained more quickly because of the had behaviour on which it is based than if there were no such behaviour. That is what I have been talking about. I am not and I do not think anyone who has taken part in the debates should be under any illusion that conduct in relation to the children and conduct in relation to the property are matters which the court can take into account where it is equitable and proper to do so.
I understand well the reason the amendments have been put forward, but they do not take adequately into account the point which I have sought to make. The amendments which I proposed to Clause 10 which were 673 accepted by your Lordships deal with the hardship which may be caused, to which my noble friends referred. I have no doubt that the courts will direct attention to the new clause, if and when it becomes law and in force, in a way that will recognise that the clause is different from what it was before. The courts will recognise that "grave" has been dropped and instead "substantial" has been used. I would therefore expect them to give effect to what the House has so far decided in their consideration of any future case.
I do not see why subsection (6) in Clause 10 should disappear. It strikes me as important. All the problems of pensions may some day be solved, but I would not guarantee it at the moment. It seems to me right to keep subsection (6) in place. I would not wish to alter the onus of proof without a good deal of further consideration. The whole purpose of the arrangements is to do everything possible to minimise the effect of what has happened on children. Dissolution of the marriage is something which one would wish to prevent. But I agree with those who take the view that the greatest damage is done by the breakdown of the relationship of marriage which leads to its dissolution. One has only to see the practical circumstances of people to realise that.
I hope that my noble friends will feel that Clause 10, as amended on Report by the. House, deals sufficiently with their concerns. The amendments would introduce an area which is completely uncharted and likely to lead to substantial litigation, with no or very little, likelihood of benefit to the parties to the litigation.
§ Lord Renton
My Lords, before my noble and learned friend sits down, would he clarify further the question of the burden of proof to which the noble Lord, Lord Irvine, and I referred? Listening to my noble and learned friend carefully, I assume that he takes the view that, under Clause 10 as it stands, whoever is the petitioner will, as at present in the courts, have the burden of proof placed upon him. Therefore, there is no need to add anything else in the way that Amendment No. 15 does. Is that the position?
§ The Lord Chancellor
Yes, my Lords. I also take the view that the hardship to the children will be pretty easy to recognise once it is brought to the court's attention. Therefore, it is not an issue on which the precise onus of proof has much effect. My noble friend will remember that the courts have often said that the question of which way the onus goes is seldom of real importance. Normally the facts are capable of being ascertained. That is true in relation to hardship, particularly to children. Therefore, I see no reason to alter the ordinary rules. All it would do, if one tried to alter the rules, would be to introduce unnecessary and impractical complexity.
§ Baroness Young
My Lords, I start by thanking my noble and learned friend for the further explanation about Clause 10 and the operation of the hardship bar. It comes into operation on the dissolution of marriage and particularly concerns the spouse who does not want the dissolution of the marriage at all.
674 I was slightly surprised to hear the noble Lord, Lord Meston, say, if I heard him correctly, that there are few cases where compensation may not be adequate. He said that in any case that is not always a reason for preventing divorce. The kind of case one has in mind is women who have devoted the whole of their lives to bringing up children, who have never done a job but who find themselves dumped at the end of their days for someone else. They may feel strongly that the hardship they suffer is not properly compensated for. That is a real case which one should not overlook; nor should one write it off as of no account. We have had enough debate on the matter to know that it is not an altogether uncommon experience.
I was particularly pleased to hear my noble and learned friend say that the hardship bar was intended to be effective. No doubt that is exactly what was said in 1969. Let us hope that this time it is effective. Changing the word "grave" to "substantial" will presumably lead to less litigation and will be effective in what it says. It is always very difficult when one is not a lawyer to know quite how such matters will operate. The amendments of my noble and learned friend, though welcome, will certainly do no good at all unless Clause 10 proves effective. That of course we do not know.
Perhaps I might answer a number of smaller points that were raised. The noble Viscount, Lord Brentford, asked why we should introduce the health of the parties. Quite often, on divorce, one of the parties, if not both, suffers considerable ill-health. That is often so in the case of the spouse who does not want the divorce and in the particular circumstances I described. It is a consideration that ought to be taken into account. There is all this talk about the children, and so on. We might take into account the wife (who is almost certain to be the person in question) who has looked after the children and who is perhaps being divorced against her will.
I realise that my next point may be contentious. However, since I have raised many contentious points before and have not been afraid to say so, I shall risk putting my head over the parapet once again. Religious beliefs do come into this consideration. Some people actually believe what they say they believe, and carry it out—odd as it may seem in this House—and they think that it should be carried out in marriage as well as at any other time. I make no apology for including this idea. It is very desirable that the matter should at least be raised and that some of us believe it matters. I do not see any need at all to apologise for it or to explain it further.
I listened very carefully to the remarks of the noble Baroness, Lady Seear. Knowing her concern for the position of women, I was surprised that she was not more sympathetic to this amendment. I shall read her remarks about children very carefully in Hansard. The debate that we have just had about extending the one-year period to 18 months hinged on the fact that it was better for children to have a divorce. It is not a view to which I personally subscribe. I think it is wrong. But I do not see why we should turn this matter round. I am completely consistent in all this. I believe the interests of the child should be taken into account. There are still a lot of unanswered questions in relation to this Bill. 675 However, I shall read the remarks of my noble and learned friend; and the Bill will go to another place, where no doubt these matters will be taken up. At this time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness Trumpington
My Lords, as this seems a convenient moment, I beg to move that the further proceedings after Third Reading be now adjourned until five past eight.
Moved accordingly, and, on Question, Motion agreed to.