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The Chairman of Committees: My Lords, perhaps I should just indicate to your Lordships that although the noble Baroness, Lady Young, has perfectly properly spoken to her amendment—it is grouped with Amendment No. 174—and to the amendment to her amendment, I shall call it in the order in which it appears on the Marshalled List. I thought I should make that clear to the noble Baroness so that she would not feel it was being overlooked. It will be called.

Baroness Seear: My Lords, first, I wish to say from these Benches how glad we are that the Government have agreed to go some distance at any rate in redressing the genuine grievances of many divorced women. In the debate on Second Reading there was no doubt that throughout your Lordships' House there was a determination that something had to be done to relieve the real hardship and unfairness of the present system. Therefore, whatever happens as a result of today's debate, we shall at least be a step forward. That is something for which we shall all be grateful. It will have made the turmoil of the debate on this very long Bill well worth while even if nothing else were to come out of it, although we still live in hope that more will come out of it.

There have been two different approaches to the question today. I have put my name down to the amendment which was explained so fully and expertly by the noble Baroness, Lady Hollis. I do not intend to repeat

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the arguments she deployed. However, I should like to raise one or two major points and to emphasise some others.

The amendment in the name of the noble Baroness, Lady Young, lays down that the courts must take into account certain matters. Here I ask for clarification. It has been put to me that requiring the courts to take into account certain factors does not guarantee the extent to which the divorced wife may benefit. The court may take such matters into account but that does not tell us what the divorced wife can reasonably expect. I believe that rather stronger wording is required if there is to be any guarantee that the divorced wife will get a fair deal in old age. I am sure that when the Minister comments on the amendments, he will be able to clarify that point for us.

The other point that I want to stress is my agreement with what the noble Baroness, Lady Hollis, said about the desirability that the courts should have the maximum flexibility in deciding how the resources are to be allocated to the divorced parties. No two cases are alike. It is extremely difficult to lay down any hard and fast rules as to how a settlement should be arrived at or what the final decision should be. Surely it is for the courts, in their knowledge and their ability to establish the details of particular cases, to come to a decision as to what is the fairest and most appropriate way in which a settlement can be reached.

Therefore, I hope that your Lordships' House, having listened to the powerful arguments put forward by the noble Baroness, Lady Young, and the noble Baroness, Lady Hollis, will bear in mind the great variety of cases that will be dealt with, the experience that the courts build up in these matters and the wisdom that they have acquired and continue to acquire as more and more of these sad cases come forward. I hope that your Lordships will want to leave the maximum amount of decision making to the courts rather than laying down rules in advance.

The third point that I want to stress in emphasising what the noble Baroness, Lady Hollis, said, is the extreme desirability that the position of the divorced wife in relation to the pension should be independent of what she can screw out of her former husband. We hope that the law will lay down what she will receive. But if it is left for her to make sure that her former husband pays and the payment to her comes through her ex spouse, then I can foresee endless difficulties arising and endless confusion, quarrels and bad blood. That is the very thing that we all want to avoid. We are all agreed on the importance of the concept of the clean break. If divorce has to happen—and it happens all the time—one hopes that after the divorce is over the two parties can lead satisfactory lives and can have a civilized relationship with each other afterwards. But if there is always the potential for continuing wrangling over money the possibility of that happening is greatly reduced.

Surely it is not beyond the wit of the legislators and of the courts to arrange matters in such a way that the flow of income from the pension to the divorced wife goes directly from the pension fund itself and not through the spouse. It takes very little imagination to envisage the troubles that will be caused if it has to go through the ex spouse.

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I know that it will be said that under the law of the land it is not possible to split a pension and that the law would have to be changed. We have changed laws before. We are changing laws all the time. What else do we do in this House except change laws or invent new ones which subsequently have to be changed? Why should we jib at changing this particular law when so much hangs on getting it right? It must be apparent to all Members of your Lordships' House that it is far more satisfactory both for the divorced wife and the divorced husband if he does not have to deal with his former wife. He also has to deal with his existing wife, because I have no doubt that she will also have views on the matter. I have no knowledge of these things myself. More and more I think how sensible I am!

Surely it is obvious that the matter should be clear cut, in the hands of the courts, with payments made direct from the pension fund to the divorced wife and no further need for dealings between former spouses. In my observation of these matters, nothing brings out the worst in people more than divorce. We want to get the whole question dealt with and out of the way and make sure that the money is made available when the time comes and is paid directly, as of right, to the ex wife. I very much hope that your Lordships will support the amendment.

3.45 p.m.

Lord Mishcon: My Lords, if there is one thing that this House treasures it is an atmosphere in which your Lordships do not have to decide an issue on political lines but can decide on grounds of common sense and humanity. This is such an opportunity.

I was very interested by the speech of the noble Baroness, Lady Young. She pointed out that two main problems have been experienced in regard to the Child Support Agency. Perhaps I may remind her, if she does not remember, because she played an important part in the debate on the Bill that set up the agency, that both those weaknesses were pointed out in your Lordships' House before that Bill became law. I am very anxious, as I believe your Lordships will be, to ensure that we do not make the error of neglecting the arguments that have been advanced in your Lordships' House previously in regard to matrimonial matters.

Before the Matrimonial and Family Proceedings Act 1984 was passed there was much discussion about how we could handle divorce proceedings with humanity in order to ensure that the parties to divorce could live fresh lives. We thought also, as we should always think, of the children in a divorce. Therefore, that Act asked the courts to take into account the advantages of a clean break. Speaking as a practitioner, I can say that the courts have welcomed that opportunity. Experience has shown that the clean break provisions of that Act have led to amity where there might otherwise have been continued litigation and hostility.

When considering the amendments, and in particular the defect in the amendment to be moved by the noble Baroness, Lady Young, and to which she has spoken, we should remember this point. The noble Baroness, Lady Seear, has already referred to the matter. Can your

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Lordships imagine in practical human terms the atmosphere in the average second marriage, which may be newly-created, where this question of the portion of the pension is dealt with every month in the new matrimonial home? Every month the new wife sees the husband having to send off a remittance to the former wife. There would be no question of a sentimental attachment, which might be useful, just a continuous financial attachment.

Can your Lordships imagine the embarrassment of the husband in this continuing obligation? Can your Lordships imagine the litigation that follows when the husband is persuaded by the new wife, or however it may be, not to send off a remittance? A solicitor's letter arrives on behalf of the former wife stating, "Unless this is paid within the next seven days, an application will be made to the court". Take it for granted, my Lords, that an application is made immediately to the court on behalf of the wife for legal aid, as my noble friend Lady Hollis pointed out.

I should have thought that the Lord Chancellor might have a view on this, especially because he has had to bring before this House, in terms that we understood, this growing mass of funds which have to be supplied for legal aid. Many of us, including the noble and learned Lord the Lord Chancellor, have brought to this House the need of other people so deserving of legal aid who do not now receive it. Equality of justice hardly exists in this land. It exists for the very rich and for the very poor, but the people in the middle who cannot obtain legal aid do not find it easy to obtain justice, however much we value the phrase "equality of justice". Another group of people will be added to the applicants for legal aid.

I thought that what my noble friend and the noble Baroness, Lady Seear, said was quite right. Bravo Government for having conceded what you have conceded, having heard this House debate the matter; and bravo the noble Baroness, Lady Young, for her arduous work in pursuing this very proper clause. But do not let us walk into another error on a matter which is not in the slightest a political issue but a human, common sense matter. Please let us arrange for this portion of the pension to be paid directly by a third party, the pension fund; and do not let us add to the miseries of divorce—it is miserable enough—by passing the amendment of the noble Baroness, Lady Young, without passing the amendment moved by my noble friend Lady Hollis. Let us see which is the most humane way of dealing with the matter. I believe that the most humane way undoubtedly is to support the amendment in the name of my noble friend Lady Hollis.


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