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The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I should point out to the Committee that if Amendment No. 3 is agreed to, I shall not be able to call Amendments Nos. 4 and 5 owing to pre-emption.

Baroness Young moved Amendment No. 3:

Page 2, leave out line 1.

The noble Baroness said: As Amendment No. 3 is the first of a number of amendments I have tabled, I begin by saying to my noble and learned friend the Lord Chancellor that I am heartened by what he said at Second Reading and repeated today in reply to the first amendment; that is, that he wishes to look carefully at the amendments and consider them. I can assure him that it is not my intention to divide the Chamber at Committee stage on any of the amendments tabled in my name.

I am conscious--before someone else picks up the point--that a number of my amendments cover the same point. That is deliberate. A number of serious issues arise and the idea is that we provide a variety of ways from which an answer may be found. I mean them to stand as they are without necessarily saying that one is preferable to another.

Perhaps I may take up something said by the noble Lord, Lord Irvine, in his charming Second Reading speech on the first amendment. I am not sure that I was being referred to--it is quite a compliment to be picked out in that way--but in case I was, I took down his exact remarks in regard to people who stand on "spurious, moral high ground". I do not see myself in those terms. I am not a clever lawyer like him and I cannot make that sort of speech. However, I am perfectly entitled to my point of view about the Bill and entitled to argue my case, which I am prepared to do. Perhaps I may say to him right at the start of these proceedings that we shall all get on a lot better if we respect one another's point of view rather than make remarks that are singularly unhelpful.

I shall not continue in this vein. I have had my say and I now turn to the amendment before us. I am slightly surprised that it was not grouped because, in a sense, it

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is a paving amendment. Its purpose is perfectly clear; it permits divorce only on the grounds of fault or behaviour that is destructive to the continuance of the marriage. In a way, the amendment is required for amendments that follow on from it.

As I indicated, I do not wish to press the amendment. Amendment No. 4 is the major amendment dealing with the whole issue of fault. I prefer to raise the issue on that amendment rather than on Amendment No. 3 which, though free-standing, should have been grouped.

I am always pleased to hear the noble and learned Lord, Lord Simon of Glaisdale. I am glad that he attaches his name to the amendment. In case he or anyone else wishes to say something at this stage, I beg to move.

6.30 p.m.

Lord Simon of Glaisdale: I am obliged to the noble Baroness. I would not wish her to refrain from withdrawing the amendment at the end of the debate because, as I indicated, all my amendments are exploratory. However, it is extremely valuable to debate at the outset the concept of irretrievable breakdown; it is at the heart of the measure.

It is because of that concept that one finds an inbuilt injustice. The only way of testing irretrievable breakdown is by finding facts to support it. That was where the committee of the Bishop of Exeter, in Putting Asunder, made its fundamental error. It thought that irretrievable breakdown was a triable issue and recommended that it should be the only basis for divorce. Fault should not be considered at all but every marriage should be tried separately to see whether it had in truth broken down. It was rapidly pointed out not only that irretrievable breakdown is an unjusticiable issue but that it is practically impossible to investigate every marriage to see whether it has in fact irretrievably broken down. That was pointed out both by the Law Commission and by the Lord Chancellor's department.

In the result, the Bishop of Exeter agreed to the composite measure of 1969, so justly denounced in the White Paper, in chapter 2, and by the noble Lord, Lord Irvine of Lairg, in what I am afraid we will continue to call his Second Reading speech today. That was a perfectly just denunciation. Nevertheless, we had the odd circumstance that the Bishop of Exeter was actually a teller in your Lordships' Chamber in favour of the 1969 Bill at Second Reading notwithstanding that it contradicted fundamentally what his committee recommended. Another right reverend Prelate, who is happily still with us, was on the other side and voted against the Bill. Is it any wonder that the Church of England appears now to be speaking in disparate voices on this measure which takes us further down the same road.

A second point I should like to make is that irretrievable breakdown, as a ground for divorce, is a recent intellectual fashion; really an intellectual fad. One gets these sudden gusts of intellectual opinion sweeping through society. The most notable in my time was undoubtedly the movement for pacifism at the end of the 1920s and at the beginning of the 1930s, starting

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with the anti-war novels and plays and ending up with the politically momentous Peace Pledge Union. The intelligentsia who had put forward that view, speaking of passive resistance as the proper method of standing up against evil, rapidly changed their opinion in the face of fascism, and instead of passive resistance and non-violence one had the idea of co-operation against fascism. But that is a good example of how a temporary fashion runs through society and carries all before it.

Perhaps even closer to this Bill and the 1969 Act was the movement of bimetallism at the end of the last century. It was a tremendous fashion, so much so that an American presidential election was carried on it, with William Brown momentously referring to mankind being crucified on a cross of gold. It all sounds so remote and so ridiculous; but at that time it carried all before it. No one thinks of it now.

Irretrievable breakdown is very much the same. Nothing had been heard of it by the time the Royal Commission sat in the early 1950s. The Royal Commission was appointed because the noble Baroness, Lady White, had introduced a Bill providing for divorce after seven years' separation. Nothing was heard of irretrievable breakdown as such in the evidence given to the Royal Commission by Archbishop Fisher, which seems now to be largely forgotten, although his objections to the seven years' separation for divorce would certainly apply much more strongly to the ground of irretrievable breakdown.

As I said, it is a recent fashion and one hopes that it will disappear with this Bill. And not only that--it is not a justiciable issue at all. The White Paper admits that. The 1969 Act set out what were called five facts. Each one was a conclusive proof of irretrievable breakdown and all five were exclusively proof. In other words, the irretrievable breakdown was, as is now accepted, the merest humbug. So, too, in this Bill. The irretrievable breakdown cannot be proved as such. It can only be shown--and in this Bill it is to be shown--by one party to the marriage saying that the marriage has irretrievably broken down. That amounts in fact to unilateral repudiation of the other spouse. The sooner we grasp that and face it, the more honest we shall be with this Bill.

The irretrievable breakdown proved by unilateral repudiation is bound to be liable to cause injustice and is likely to cause the most severe injustice to married women. I want to quote a passage from a book written by David Morris, who was the most experienced litigation solicitor in London at the time and was particularly strong on divorce. The foreword of the book was written by my noble and learned friend Lord Hailsham. In the foreword my noble and learned friend picked out two passages especially. David Morris had written:

    "It all sounds so wonderful"--

    the improvement in the wife's legal position--

    "until you face the position of the middle-aged woman with young children abandoned by her husband for a younger woman after ten or fifteen years of marriage. Then by a paradox many of those

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    improvements, to which in all fairness women were clearly entitled, seem to have contributed to a weakening of women's position in marriage as a whole".

In moving this amendment the noble Baroness has given us an opportunity to face that situation, a matter of elemental justice.

The other passage cited by my noble and learned friend is as follows:

    "I agree that there are often faults on both sides, but I believe that in many cases if all the facts were known most people would say that far more of the fault was on one side than the other".

My noble and learned friend added:

    "That, too, has been my experience".

Perhaps I may add that that, too, has been my own experience as a matrimonial judge.

The final thing I would say concerns the pretence of abandoning fault because it exacerbates the relationship. Nevertheless, fault creeps back at a later stage, as it is bound to. The divorce itself is demoralised, fault is not investigated, the ipse dixit of one spouse is sufficient to set it in motion. Once the motion starts, once the mediation sets in, the parties are enjoined--enjoined in the White Paper itself--to face their faults on how far they have been responsible. Indeed, the Bill itself and Section 25 of the 1973 Act expressly enjoin the court to have regard to the conduct of the parties. So although one demoralises divorce, one does not get rid of fault. One may expel it from the front door with a hay fork but one will find that it slips in through the back door and is in the parlour.

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