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The Lord Bishop of Oxford: I am particularly sorry to find myself in disagreement with the noble Baroness,

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Lady Young. I say most sincerely that I respect the deep conviction and passion with which she speaks and share with her the sense of the sanctity of marriage.

I go further than that. She is right to emphasise the fact that when a marriage breaks down it is certainly possible, in a fair number of instances, to say--so far as we can say in this life--that one partner is more to blame than another. I agree with the noble Baroness. We can say that one person seems to be more at fault. But the point is that an indication of that fault, however grievous, is not necessarily an indication of an irretrievable breakdown of the marriage. We all know of people, friends of ours, where there has been an illicit relationship in the marriage but the marriage has nevertheless recovered and gone on. The fact that adultery has taken place has not been of itself an indication that the marriage has irretrievably broken down.

The noble Baroness gave a shocking example of a man who left his wife just when she had given birth to her second child. That is a grievous fault. But even in that extreme instance it is not necessarily certain evidence that the marriage has irretrievably broken down. Even in those dire circumstances that marriage could recover.

So the question at issue before the Committee is quite simply: what is the best evidence that the marriage has irretrievably broken down? The present divorce law has its basis in irretrievable breakdown and what is brought forward in the way of mental cruelty or physical cruelty is evidence that it has broken down. The question is: what is the best evidence that the marriage has irretrievably broken down?

It is the conviction of the majority of the Bishops on this Bench that better evidence than is provided by the present divorce law is a year's serious consideration and reflection, with the opportunity of marriage counselling for those willing to avail themselves of it, the opportunity of mediation, and the possibility, as the noble and learned Lord the Lord Chancellor so well put it, of real communication taking place between the two partners, perhaps for the first time for months and years. It is our equally sincere conviction that, if we are looking for evidence of an irretrievable breakdown, better than the evidence put forward by the Bill is a year's serious consideration and reflection with every opportunity being given to mend the marriage and to make arrangements which are the least acrimonious possible.

The noble Baroness stressed that some people are at fault. The word "fault" brings to mind the idea of punishment. If we break the law, we are punished. But one of the problems with the present divorce law is that a person can commit adultery and commit a fault against the marriage contract and be rewarded for it in their own eyes by being able to engage in another marriage. In this area there is not a simple happy relationship between fault and punishment. Sometimes it works in a perverse way: the person who is most at fault, the person who is most at blame, might get what he or she wants.

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It is our sincere conviction that the proposals of the noble and learned Lord the Lord Chancellor provide better evidence that the marriage has been tested to the limit and that it has irretrievably broken down. Although Melanie Phillips puts forward the evocative phrase, "No pain, no blame, no shame", if we examine the marriages of our friends, the marriages that we know have broken down, I can envisage few marriages which break down where there is no pain, no blame or no shame. As has been said once or twice before in the Chamber, when marriages break down there is always pain and there is probably a great sense of failure. So, striking and rhetorical though that phrase is, I do not think we should be beguiled by it into trying to think that breakdown, under whatever circumstances, is less than painful.

The noble Baroness rightly raised the question of what message will be going out from this place if the Bill is finally approved by Parliament as a whole. That is a very serious question. We do not want to send out the wrong message. But if we include within the Bill the basic objectives debated at the beginning of the day on the amendment of the noble Lord, Lord Stallard, it will be clear that it is a Bill designed to strengthen marriage so far as it can be strengthened by the law. I shall not speak about these matters now, but if we support one or two other amendments on marriage counselling and proper mediation I believe that we can not only have a divorce law which is effective and humane but we shall have done what we can to strengthen the institution of marriage.

8.45 p.m.

Lord Elton: As my noble friend is not rising to deal with that point, I should like to deal with one narrower, but I think germane, issue with her. She gave an extreme example of a divorce in which one party would seem to be not only innocent but grievously injured. What paths would her amendments leave open to that person, or someone in a similar position, who did not wish to put the other partner--their spouse--in the dock as the guilty party? As the right reverend Prelate said, the concept of fault is automatically followed by the concept of punishment. Since we have been quoting from the Scriptures fairly freely this evening, I would remind my noble friend that "Vengeance is mine, sayeth the Lord. I will repay". What of the "innocent" party who, for purely charitable reasons, does not wish to embark on the kind of battle or the kind of accusation which her amendments appear to leave as the only course open?

Lord Moran: I wish to take up briefly the point made by the right reverend Prelate about the message going out to the country from our debates and from our consideration of the Bill. That is very relevant to this series of amendments.

The matter is bound to be seen in simple terms and the fact is that the Bill will be seen as bringing in no-fault divorce on demand. That will inevitably appear to everyone as very much simpler. No one will be to blame. No one will be guilty of anything. One partner will be able to say that he or she wants the marriage dissolved, and that is it. The noble Baroness, Lady

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Young, put, with great passion and conviction, the case against the abolition of fault. I found what she said thoroughly persuasive.

I am concerned, too, about the position of what one is still just allowed to call the innocent party. There will not be any innocent parties if the Bill goes through because no one will be to blame. But we all know that there are many cases in which one partner or other behaves badly or goes off with someone else and the other party who has done nothing to deserve it is abandoned.

At the moment--it will be even more the case if the Bill goes through--decisions on the custody of the children and the division of the assets of the partnership may be made in such a way that the innocent party feels a sense of gross injustice. For example, if a woman goes off with another man, leaving her husband, and if she is then allotted the home, or half of it, and custody of the children, he will feel that that is grossly unjust because she has been at fault and he has not. I realise that there are many cases in which no one party is to blame, but there are many others known to us all in which quite obviously one partner is principally to blame. It seems to me that that should affect decisions about the custody of the children and the matrimonial home.

Therefore, I would like to support very strongly what the noble Baroness has said. It seems to me that this matter is one of the central pillars of the Bill. I find the proposition wholly inconsistent with the objectives contained in the first amendment moved by the noble Lord, Lord Stallard, which, as I understood it, were welcomed by the noble and learned Lord the Lord Chancellor. I cannot see that, if those are the objectives which, I believe, we all agree on, reducing the process of divorce simply to having it on demand is consistent with them.

Baroness Elles: I support very strongly what my noble friend Lady Young has said about the disturbance caused by the kind of message that goes out from this House. It is extremely valuable that we are able to have this broad discussion on this series of amendments so that we might at some stage of the Bill find a point at which we can meet. So far I have not come across any point which has been raised by my noble friend Lady Young and, if I may call them, her supporters and our Front Bench and those who support the Bill, which has been met.

My noble friend Lord Elton asked what would happen if someone did not want to attack his or her partner for fault, but wanted to have a divorce. At the moment they can have it after two years' separation and consent and there is no problem about that at all. What concerns me specifically is the amendment of my noble friend Lady Young as regards Clause 4(1)(a) where all that one needs is a statement by one or both of the parties that the maker of the statement believes that the marriage has broken down. How does one prove what the word "believes" means in that particular case? How does that show that this House supports the institution of marriage unless one is thinking of consecutive or serial polygamy? It is no support for marriage to think that someone can go along and make a statement saying, "I

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believe that the marriage has irretrievably broken down. We now have one year in which possibly to mediate or not, because it is voluntary. We have one year in which to discuss the problems such as the children, financial support, property and so on". They are all lumped together in a rather indigestible mess. In that situation one expects the poor woman or man who is left at home to agree within the year.

I wonder if anyone in this House really knows how people live in their homes. Can one believe that for one year they are going to sit at the kitchen table with a cup of tea wondering how they are going to reflect and consider their future at the end of one year of marriage? It is totally unrealistic. I simply do not see how people living in the real world can go through this appalling performance, with the person who has just left or who possibly is still living in the house or the flat, saying, "By the way, last week I signed a statement to say that I thought that our marriage had broken down". The other spouse is left sitting there reflecting and considering what the hell they are going to do in order to get out of it because they want to carry on with the marriage and the home. They want to keep the children at home and lead a decent marital life.

I do not know what the right solution is to this problem. But I am absolutely convinced that the clauses in this Bill that we have discussed so far are totally unrealistic. They do not support the institution of marriage in the way that I regard marriage and, as, I believe, many of my noble friends do. If we do not accept the amendment of my noble friend Lady Young I very much hope that my noble and learned friend the Lord Chancellor will consider discussing with us suitable amendments, which will support the kinds of ideas that a vast number of people in this House believe in.


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