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Lord Meston: I am content to speak to my Amendment No. 15, grouped with this amendment. I find myself a little bemused by the amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale. But the matter does not end there, because the noble and learned Lord raises an interesting point about the types of order proposed under this Bill.

As the law stands, there is a clear and well understood distinction between a decree of divorce and a decree of judicial separation. As it is, for judicial separation the irretrievable breakdown of a marriage does not have to be alleged or established. It is a remedy quite often sought by those whose marriage has broken down, whether irretrievably or not, but who prefer not to be divorced for religious or other reasons. A judicial separation provides a status and consequences which are well established in law, including consequences for inheritance after death and on the obligation to cohabit.

At first sight, Clause 1 of the Bill reproduces the existing law with simple changes of title for the type of order. But it is regrettable that there is not a definition of the status created by the two new orders as there was in Clause 1 of the Bill as annexed to the Law Commission report. In that report the Bill started with Clause 1, which stated that the court might make an order known as an order of divorce dissolving the marriage, or an order known as a separation order removing, for so long as it is in force, from the parties to the marriage any obligation to cohabit, and having the effect relating to inheritance which the Bill went on to describe. For some reason that is not reproduced in this Bill. When in due course we come to Amendment No. 5, I shall seek to restore the different bases for the two types of order.

Amendment No. 15 seeks to amend Clause 2(3) of the Bill as it is presently drafted. Under Clause 2(3):


unless certain conditions apply. In other words, the court's hands are tied by mandatory obligation provided in the Bill as drafted. Amendment No.15 seeks to question that provision and would give the court more discretion to consider which application is the more appropriate to grant in all the circumstances of the case.

I question the thinking behind Clause 2(3). Indeed, I question it in the context of the philosophy underlying the Bill. It seems wrong in principle to remove from the court any discretion to consider whether a separation

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order is more appropriate than a divorce order. Surely the court should consider both, on their merits and on the basis of any evidence or argument which is then put before the court. It is hard to see how Clause 2(3) in its present form assists the Government's objectives.

With respect, I invite the noble and learned Lord the Lord Chancellor to indicate to the Committee the thinking behind Clause 2(3).

Lord Irvine of Lairg: I normally find the noble and learned Lord, Lord Simon of Glaisdale, both learned and clear. Therefore I acknowledge that it is my own fault that I did not clearly understand from him why, in his proposed amendment, Amendment No. 2, the availability of a judicial separation order should be removed from the battery of powers that are available to the court.

Lord Simon of Glaisdale: It was the only way that I could think of in order to probe what lay behind the matter. There probably may be some other ways, but I could not think of them.

The Lord Chancellor: That was my understanding of what the noble and learned Lord, Lord Simon of Glaisdale, wanted: just that I should explain. I do not think he was suggesting that this was a substantive proposal. The Law Commission considered whether or not a judicial separation order should be continued at all in the new situation that was envisaged. After considering the matter, it came to the conclusion that it was right for it to be retained. In the consultation that I undertook, nobody suggested any other course. So that is as it is in the Bill.

The conditions for grant would be the same as for an order of divorce, except that that kind of order, as my noble and learned friend Lord Simon of Glaisdale indicated, can be obtained in the first year of marriage. There is no bar in that respect. Drastic circumstances such as he envisaged could occur there. The purpose of the provision is to leave that possibility open.

Secondly, apart from that altogether and, as my noble and learned friend said, for religious or conscientious objections some people would not wish to have a divorce. I wish to keep open every possibility of accommodating every form of religious belief that exists in relation to this matter. Therefore, I think it is right that the judicial separation order should be allowed to continue. So religious or conscientious objections to divorce comprise another reason.

The third possibility is that, notwithstanding that the relationship had broken down irretrievably, and was seen as such at the time, living apart in the conditions that had been arranged might demonstrate to the parties that they were better off than they were before. Having a separation order would preclude their entering into any other marriage relationship--they might have other relationships but not marriage. Therefore, it was thought possible that people in that situation might well be able to be reconciled after a while. That is another reason.

There is also a possibility in relation to pension rights. Obviously, some of these matters are subject to consideration. However, that was another reason why

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some people did not want to divorce. They wanted to keep open the possibility of access to a pension under the arrangements for marriage.

In answer to the question of the noble Lord, Lord Meston, the view on which this provision proceeds is that the parties should be able to choose which remedy they wanted, the conditions being the same for obtaining the order, apart from the first year bar. It would be up to the parties to decide what they wanted to do. That is the thinking behind the way in which that matter was put.

I should have mentioned before that I was particularly grateful to my noble and learned friend Lord Simon of Glaisdale, who in these matters is an eminent critic, when he said that this Bill, although he dislikes it in policy, is well drafted. I was very anxious that it should be so and that it would be as clear as possible to all those who might be affected by it. That may be quite a large number of citizens, who, as the noble Lord, Lord Stallard, said, would not all be lawyers, fortunately.

6.15 p.m.

Lord Meston: Before the noble and learned Lord sits down, perhaps I may refer to his comment about the drafting being clear. I wonder whether it would be clearer if the first clause in the Law Commission's proposed Bill which spelt out the status confirmed by the two types of order was somehow restored in an early part of this Bill. I wonder why it was left out.

The Lord Chancellor: I understand that for the purposes of simplicity it was easier simply to describe the separation order as an order providing for the separation of the parties to a marriage without a separate clause to that effect. Of course, the consequences of such an order remain.

Lord Simon of Glaisdale: I am most grateful to my noble and learned friend for his explanation. As for the Bill being well drafted--I think that it is an exceptionally well drafted Bill--there is a lesson to be drawn. This Bill has been matured over a period of four or five years. It shows the advantage of the draftsman not being hurried, as most of them are. That is one of the causes for so much of our legislation being ill drafted.

My noble and learned friend confirmed that I was right in both my surmises as to why the separation order subsists. I say only--it was emphasised by the amendment of the noble Lord, Lord Meston--that there is a bias throughout the Bill, particularly in Clause 2(3), in favour of divorce as against separation. It is to adopt a phrase that was used to the Royal Commission on Marriage and Divorce: it is a divorce minded Bill.

My noble and learned friend said, and it is a comfort to know, that the circumstance in which the separation order may be valuable is where there is a conscientious objection to divorce and particularly one that is founded ultimately on a hope of reconciliation. That being so, it is a great pity--to put it mildly--that, notwithstanding the conscientious objection of one spouse, nevertheless the separation order can be converted into a divorce order at the instance of the other spouse.

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As Members of the Committee know well, the difference between separation and divorce is simply this. A separation order gives a party leave in law to live separate and apart. A divorce order does something more; it couples that with a licence to remarry. Once there is remarriage, there is virtually no hope of a reconciliation. Therefore, the party who conscientiously preferred a separation order in the hope of reconciliation nevertheless finds it dashed from their lips because the law says that there can be an immediate conversion.

Having explored the matter, and again thanking my noble and learned friend, the noble Lord, Lord Meston, and the noble Lord, Lord Irvine--in spite of his slight animadversion on my obscurities--I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Circumstances in which orders are made]:


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