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Lord Elton: I do not follow the noble and learned Lord on the question of irretrievable breakdown per se, but I hope that my noble and learned friend the Lord Chancellor can say something about irretrievable breakdown as evidenced by a unilateral declaration--something which I find rather difficult. That may be to anticipate Amendment No. 18A in the name of my noble friend Lord Ashbourne, in which case my noble friend may wish to postpone it; but it seems an integral part of this debate. Irretrievable breakdown resting on the claim of one party and the silence of the other is fraught with dangers of injustice.

Lord Coleraine: I would like to associate myself with the scorn which the noble and learned Lord, Lord Simon of Glaisdale, has cast on the use of the words, "irretrievable breakdown" both in this Bill and in the 1969 legislation. I am probably making the same type of point as my noble friend Lord Elton. The 1969 Act says that the sole ground for divorce is irretrievable breakdown. It goes on to say that there are only five ways in which one can prove that. The 1969 Act was creating as best it could a system of divorce based on the grounds that--I am looking at the line which the amendment of my noble friend Lady Young seeks to omit from the Bill--


Clause 2(1) states,


    "the court shall make the order applied for if (but only if)-- (a) the marriage has broken down irretrievably".

Of course, the question of irretrievable breakdown is not justiciable. If we look ahead to Clause 4(1) we see,

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    "A marriage is to be taken to have broken down irretrievably if (but only if)--"

and then there is a long list of matters which have to be satisfied. The line in the Bill which my noble friend seeks to omit could be made both more neutral in terms which might appeal to my noble and learned friend the Lord Chancellor and more explanatory of what is the actual situation, if that line read, "The marriage is taken to have broken down irretrievably". That would describe the full situation.

Baroness Elles: I support the comments made by the noble and learned Lord, Lord Simon of Glaisdale. I find the removal of fault in this Bill extremely worrying. I am somewhat surprised that, as far as I can see, the Government's White Paper Looking to the future, makes no reference at all to any of the research done in those countries where no-fault divorce has been introduced.

Considerable research has been done in the United States since the introduction of no-fault divorce in California in 1970 and, I understand, in at least 38 states, now. Of course, as research shows, it is always very difficult to apply direct cause to some effect, but there is no doubt that, from the evidence which has been obtained, the idea of no-fault divorce has increased the number of divorces between 20 per cent. and 25 per cent. over the past 15 to 20 years. Therefore, I am surprised that, with the fairness and intellectual rigour of my noble and learned friend the Lord Chancellor, no reference has been made to that, as far as I can see, when presenting the case for no-fault divorce. That should certainly be looked at.

The other point which the noble and learned Lord, Lord Simon of Glaisdale, strongly emphasised was that of justice. Many of us will have friends of all conditions, backgrounds and homes, where one of the partners has deserted the home--and even our Bishops might agree that they were behaving badly--and where the other party might have been innocent. They would find great unfairness in the allocation of the matrimonial property and the financial arrangements. I very much hope that my noble and learned friend the Lord Chancellor will be able to calm my concerns where there is some disagreement as to the allocation of the matrimonial property, which, after all, was a matter which was very largely resolved in this House very many years ago by the noble and learned Lord, Lord Denning, in his so-called "palm tree" judgments, which brought some justice to women who had contributed to the home without possibly making any financial contribution. That should not be totally overridden by this Bill. With the unilateral demand for divorce, the power goes to the person who wants the divorce, who wants to marry again because he or she has gone off with someone else, and there is no protection for the apparently innocent party in those cases. I hope that my noble and learned friend will give us some support and alleviation as regards the concern on these matters.

6.45 p.m.

Lord Irvine of Lairg: Perhaps I may reassure the noble Baroness, Lady Young, in whose name this amendment stands, that I thoroughly enjoyed her

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contribution at Second Reading as much as I vigorously disagreed with it. I entirely accept that she is entitled to her view and I enjoyed her expression of it. Equally, I dare say, she will accept that I am entitled to my views about her views.

I well appreciate that this is a paving amendment designed to remove irretrievable breakdown as a ground for divorce. It is better to postpone our detailed discussion on that matter until the suggestion of fault provisions is directly before us. I should make it clear, however, that in my view irretrievable breakdown should be the ground for divorce. It is made so by Clause 2(1)(a).

As regards the contribution of the noble Lord, Lord Coleraine, the noble and learned Lord will no doubt wish to confirm whether he agrees with that interpretation. I understand Clause 2(1)(a) to require that the court be positively satisfied that the marriage has broken down irretrievably. But then Clause 4(1) operates, as it were, as a bar to that satisfaction. The court is not to be satisfied because the marriage is not to be taken as having broken down irretrievably unless these various precautions, as it were, have been fulfilled. That is as I understand it.

I submit that irretrievable breakdown should be the ground for divorce. So far from irretrievable breakdown not being justiciable, I submit that it is fault which is not sensibly justiciable in this area. Perhaps I may recall the wise--

Lord Simon of Glaisdale: Was not fault justiciable in this area from the time of the Norman Conquest until 1857 in the ecclesiastical courts and after that in the lay courts until 1969 and beyond?

Lord Irvine of Lairg: I am not bowled over by ancestor worship. I was seeking to call attention to the wise words at Second Reading of the right reverend Prelate, the Bishop of Birmingham, when he said,


    "To say that irretrievable breakdown should be the sole ground for divorce is not to deny personal responsibility for the breakdown of a relationship".

I entirely agree. He continued,


    "It is not to deny the place of human fault and sin in the process of matrimonial breakdown".

I entirely agree. He went on,


    "It is to say that a human court of justice is too blunt an instrument for apportioning blame in so complex an area of human behaviour, especially if the processes one has invite one to say that it is all the fault of one side or the other. Anyway, what is the point of apportioning blame?"--[Official Report, 30/11/95; col. 753.]

That is to run ahead into the argument as to whether there should be fault-based divorce, but I entirely agree.

I was entirely in agreement with what the right reverend Prelate the Bishop of St. Edmundsbury and Ipswich was saying in his brief speech to similar effect when it was subject to an intervention from the noble Baroness, Lady Gardner of Parkes, who is not in her place at present, inviting him to abbreviate it to which, sadly, he responded. The noble Baroness asserted that the right reverend Prelate was making a Second Reading speech, as it has been asserted that I made a Second Reading speech on Amendment No. 1, a position

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adopted by the noble Baroness, Lady Young, and taken up by the noble and learned Lord, Lord Simon of Glaisdale. I do not begin to accept that.

What was before us on Amendment No. 1 was a general objectives clause. The noble and learned Lord has recognised that there are special legislative problems associated with general objectives clauses although I believe him to have expressed a strong measure of sympathy, subject to supplementing it, for this one. The point is that when a general objectives clause is before your Lordships for consideration, the major question which has to be addressed is whether that general objectives clause chimes with the particular provisions of the Bill that follow the general objectives clause, if it is accepted. How you do justice to an argument that a Bill should embrace at its commencement a general objectives clause without addressing whether it is in accordance with all the particular provisions of the Bill escapes me, but no doubt at a later stage in this debate the noble and learned Lord and the noble Baroness will explain. Meanwhile, I leave the substance of this interesting argument until a debate on the fault or no fault amendments.

Lord Meston: Confining myself to this amendment, I cannot agree with the proposition that the irretrievable breakdown of a marriage is not a justiciable matter. I have known divorces which have been successfully defended and, indeed, undefended divorces which have been refused by a court on the basis of a decision by the judge that the breakdown of the marriage had not been shown to be irretrievable, because for example, there was a reasonable prospect of reconciliation. Therefore, I suggest that your Lordships should not be put off by the proposition that a court cannot decide that a marriage has broken down irretrievably.


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