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The Lord Chancellor: I think that there is a great deal of merit in taking this amendment with the later amendments, as my noble friend Lady Young suggested. However, we have now been treated by my noble and learned friend Lord Simon of Glaisdale to a somewhat more detailed defence of the amendment than was given by my noble friend herself. Therefore, I think that I owe it to my noble and learned friend and to other noble Lords who have spoken to say just a word or two about this matter.
The purpose of the clause is to base the ground of divorce on the irretrievable breakdown of the marriage. As the reference to the prayer book from my noble friend Lord Onslow made clear, the obligations of marriage do not stop with the obligation not to commit adultery--I believe that there is a good deal more to the marriage relationship than that--nor do those obligations stop at the obligation not to be guilty of unreasonable conduct. I believe that the obligations of marriage, as set out in the Book of Common Prayer and in the scriptures on which I believe that that book is soundly based, are much more far reaching and intimate. I believe, as I have said before in another context but perhaps not to your Lordships, that a good marriage relationship is the most satisfying of all human relationships. It cannot be reduced to a list of contractual
When that relationship breaks down, something requires to happen. Following extensive consultation, I have sought in this Bill to make irretrievable breakdown justiciable by precisely defining its contents. The process is initiated by one or both parties stating that the marriage has broken down. There is then a year (as a minimum) for the purpose of trying to see whether the relationship can be retrieved and whether the marriage can proceed--
The Lord Chancellor: Obviously, we shall have to look at it in a little more detail later, but at the moment that is the purpose. The year should be for consideration and reflection. Machinery is provided for carrying that out.
One of the purposes plainly recognised in the Bill is the need to consider arrangements for the future after the divorce. The noble Lord, Lord Stoddart of Swindon, referred earlier to what the future holds. I believe that that is one of the most important things to be faced in connection with a contemplated divorce. The question of what the future will be like must be considered. As long as final positions have not been adopted, taking a look into the future and at what the situation will be as the family splits up, with the father possibly leaving home and not able to see the children very often--what so often happens, sadly, is that he gradually sees the children less, which is very bad for the children--is a vital part of that year of contemplation. That is why I have required in the Bill that those arrangements be finalised (generally speaking and subject to some exceptions) before the divorce is granted. That will ensure that before a divorce is granted the parties have to face up to the whole range of responsibilities that they have undertaken in their marriage. That is the purpose of the provisions.
In my view, it is not an intellectual fad but a proper analysis of what really happens when there is an irretrievable breakdown of a relationship--a complicated, intimate, valuable, and divinely appointed relationship. That is what is in question. I believe the provisions to be a sound basis for a reasonably civilised divorce law. I trust that that answers the question raised by my noble friend Lord Coleraine. In effect, I have defined in Clause 4 the conditions under which "irretrievable breakdown" will be satisfied.
Perhaps I may turn to the questions asked by my noble friend Lady Elles. First, analyses of what happens after a particular change in the law has been made are extremely difficult to put on a proper basis. As everybody has recognised, it is not only the law that causes divorces. Much more complicated issues than that are involved. We would really need to know what the rate of divorce would have been if the law had not been changed--and, in the nature of things, we cannot know that. So, in my view, there is only a limited value to be obtained from such analyses. One has to proceed on the basis of principle and take a rational approach to the problems. That was the approach set out in the
On the second point about justice and the division of property, nothing in the Bill in any way damages the present rules in regard to the allocation of property. In particular, the rule is preserved that where it is inequitable to disregard it, the conduct of the parties will be taken into account in the allocation of the parties' property and so on.
Some people have talked about no-fault divorce. The noble Lord, Lord Habgood, wrote about that recently, pointing out that there is no suggestion that there is no fault. The suggestion is that it is not a sound basis upon which to found a divorce law. Of course people are at fault. There are few marriages which survive for long in which there has not been fault on one side or the other, and usually on both. A degree of tolerance and understanding is required. Mutual agreement is required. Parties require to be able to agree upon a course of conduct where there are choices. That is the nature of a successful marriage. Conduct has to be taken into account in a broad and just way. I believe that that is what the present law provides on this aspect, and the Bill in no way changes that.
Lord Stoddart of Swindon: Before the noble Baroness replies, I am sorry if I interrupted the noble and learned Lord from a sedentary position, but I reacted to what he said about a period for reflection and consideration. The problem is that we are in a situation where one party--not both parties--has said that the marriage has broken down irretrievably. So there will be only one party who will reflect. The other party who has been told, although he or she may not agree with it, that the marriage has broken down irretrievably, whether he or she likes it or not, may feel that after that he or she does not want to reflect because the other party has made it clear that the marriage has broken down. That is one-sided. That is why I reacted as I did.
The Lord Chancellor: I understood that the noble Lord reacted in that way. I did not take it in any way other than an informative reaction, which I was able to answer, as I thought, at the time. The reality is that one cannot force the parties. If someone is determined that his or her marriage has broken down and is not prepared to co-operate with anyone to do anything about it, there is nothing that the law can do. One has to face that sad fact. I am trying to put forward every possible persuasion on people to get together in the period set down. The period is provided for in Clause 7. The initiation is by one party, but the irretrievable breakdown is demonstrated only once the period for reflection and consideration has taken place.
Lord Elton: If the object is to put pressure on the silent party to become a party to the agreement, as it were, why is it that a statement that a marriage has broken down irretrievably made by one person is treated in the same way as one made by two? Is there not an opportunity there to exert some pressure?
The Lord Chancellor: The point is that it is the year passing that is required. That is an absolute and objective fact. Unless the relationship has been brought together, healed or restored in that time, the Bill proposes that there should then be a basis for saying that the marriage has broken down irretrievably. That is not the whole story. There is a hardship bar in Clause 10, to which amendments have been tabled, which is important. As a practical matter, if the parties have been unable to be reconciled and so get on with their marriage after a year, in my view the practical inference is that the marriage has broken down irretrievably. That is what I take from the results of the consultation. If the parties are agreed about it all, so much the better, but, sadly, when a relationship breaks down one of the great difficulties is to achieve any kind of agreement.
Lord Hamilton of Dalzell: Perhaps my noble and learned friend will elucidate further on the matter of justice. The noble and learned Lord, Lord Simon of Glaisdale, said that if one took fault out through the front door, in it would come through the back. What seems to me to be in prospect if a statement is made by one of the parties that the maker of the statement, or each of them, believes that the marriage has broken down is that it will enable someone to walk out of the marriage, possibly at considerable financial gain to himself or herself.
The Lord Chancellor: Under the Bill, one party to a marriage may make a statement--a neutral statement--that in his or her opinion the marriage has broken down. It is intended that that statement should not contain allegations, and so on, against the other party to the marriage, because that is not likely to be conducive to healing the relationship. There then follows a period of a year, provided by Clause 7, for reflection and consideration. The hope is that during that year the parties will address their problems. Mediation is intended to help them to address those problems by communication one with the other rather than through representatives.
Assuming that the year has now begun, the process I then envisage in the Bill is that there should be discussion between the parties, helped by a mediator, of what the future arrangements should be--all the arrangements relating to the children, property, and any other matter that may be affected by the possible dissolution of the marriage. The year is intended for that purpose. It may take longer. The Bill requires that, except in special circumstances provided for in Schedule 1, the arrangements should be completed before a divorce is granted. There will be no question of anyone walking out in the way that my noble friend suggested unless and until the arrangements and terms upon which that is to happen have been settled between the parties.
There are of course possibilities of disagreement in that connection, but that is the scheme. Therefore justice is secured, so far as it can be, in relation to the allocation of property and the other matters that have to be dealt with. That is where justice in the whole arrangement has to come into play.
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