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Lord Phillimore: Perhaps I may add a few observations as a practising barrister, practising in the field of family law like the noble Lord, Lord Meston. In the context of the Bill it is important to remember, first, that it is a divorce reform Bill and, secondly, the reality of the law and practice at present. As has already been observed, 75 per cent. of divorces are based on behaviour.

The statistic of 32 per cent. was referred to but perhaps that does not reflect the practice that the decree absolute is often delayed until after completion of the financial relief proceedings. Be that as it may, the vast majority of divorces are on the basis of behaviour and adultery. Only a handful of defended divorces take place and very few of those are successfully defended. It is a sterile exercise. As was said by my noble friend Lady Faithfull, it is a traumatic experience for the children.

The present existence of fault in the law does not make it more difficult in practice to obtain a divorce. It exists on paper but in practice it serves little effect to restrain a divorce. As the noble Lord, Lord Irvine of Lairg, said at the beginning of the debate, given a fair wind an undefended divorce can take place within three to four months. The fact that it does not is because the decree absolute is often delayed, as I said earlier.

Therefore, the fault serves only to increase bitterness and acrimony. I understand that the purpose of the Bill is to reduce that and to make the position easier in

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particular for the benefit of the children and therefore of society as a whole. In addition, the purpose of the Bill is to give time for reflection. That may save some divorces but it is putting the matter upside down to suggest that a divorce reform Bill could possibly improve the chances of marriages being saved, other than in some cases.

Another consequence of a defended divorce under the present law is the increased expense to the considerable detriment of the family and children. I suggest that the message of the Bill is to give an opportunity for reflection, a greater ease of resolution of all the difficulties which couples face on divorce, which may lead to some marriages being saved, and, above all, less trauma for the children.

9.15 p.m.

Lord Irvine of Lairg: When I listened to the noble Baroness, Lady Young, on her strictures on the clever, I was reminded of the late distinguished Iain Macleod, who is remembered by Members in all parts of the Chamber and Parliament. The most severe criticism that could be made of him was that he was too clever by half. As I understood the noble Baroness, that was directed at the noble and learned Lord in putting forward a Bill to which she can find no good answers but she doubts is right. I accept that there is in this area no perfect system. One must look to do the best that one can in an imperfect world. It would be nice if everyone took correct decisions and prevented bad things happening, but that is not the way of the world.

I found a central difficulty in following the noble Baroness when she maintained that divorce should be exclusively fault-based. I found the contribution of the right reverend Prelate the Bishop of Oxford compelling. Does that mean that there is to be a right to divorce for fault, for adultery, for unreasonable behaviour, regardless of whether there has been irretrievable breakdown? Does that mean that if fault is established there is a right to a divorce without any need for a year's reflection and consideration without any need for mediation? The noble Lord, Lord Ashbourne, said, "No fault, no divorce". I ask, to what sensible purpose if the marriage has truly broken down?

I can express myself on this important issue very briefly. When a marriage breaks down, the courts should recognise that fact and deal with the consequences in a way which minimises acrimony in the interests of the parties and of any children. It can make no sense at all to compel parties to remain married if the marriage is dead because, first, that cannot be done in a free society. The disgruntled partner will simply up and leave, start a new relationship and have more children who are innocent and just as entitled to be brought up by married parents as are the children of the first marriage.

Even if people who are determined to part could be compelled to remain together--in fact, it is not possible--it would harm the children because they would be brought up in a loveless home and be denied the advantage of any happy parent. I daresay that I could agree with the right reverend Prelate the Bishop of

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Oxford who said that there are some cases where, no doubt, it could be demonstrated that fault is all one way, but I should have thought that that would be a very rare case. I believe fault to be a very clumsy instrument with which to dissect a failed marriage. It must be in the rarest case that the breakdown is the exclusive responsibility of one party.

Let us take, for example, adultery. The wife refuses sexual intercourse and the husband goes elsewhere. I am not sanctioning adultery. But can it be said that the husband is exclusively to blame? Further, let us take violence. The husband hits the wife. I do not sanction violence, but the husband does so because the wife who is more articulate taunts and humiliates him. No one is exclusively to blame.

I was much impressed by the points made by the noble Baroness, Lady Faithfull. A fault-based system leads to protracted litigation. It is the adversarial system which, apart from being expensive in terms of public funds and in court time, will also increase acrimony to the detriment of the children. The children may feel compelled to take one side or the other. I could not agree more with the noble Baroness, Lady Faithfull, that to eliminate a fault-based system of divorce would lead to a much better prospect of the children at the end of the day having a good relationship with both parents.

If divorce is made more difficult, the consequences will be that the rate of illegitimacy will rise. In my view--and, I believe, in the view of the overwhelming majority of my colleagues--the Bill, on the whole, subject to some improvements that can be made to it by way of amendment, gets the balance right.

Lord Meston: I agree with everything just said by the noble Lord, Lord Irvine. Members of the Committee should think long and hard before introducing fault into the Bill. Perhaps those who should think most about it are those who were inclined to support the first amendment moved today by the noble Lord, Lord Stallard, which sought to introduce into the Bill a provision,


    "to minimise the bitterness and hostility between the parties and reduce the trauma for the children".

There is no doubt that, in practice, allegations of fault at the time of divorce can and do raise the temperature between the estranged couple and inevitably make the prospects of reconciliation, and of their future co-operation, that much more difficult and unlikely. It seems to me that the Bill has the great merit of removing that particular source of heat, replacing it with sources of light--harsh light under which the parties are required to face the realities of what they are doing and what they may face in the future.

I understand and respect the arguments put forward by the noble Baroness, Lady Young, although I do not agree with them. Under the existing law, three of the five factual bases upon which a divorce can be granted are dependent upon allegations of fault. The existing law teaches us what those who support the noble Baroness must consider; namely, that there are problems of proof. For example, how in practice does one prove fault?

I am a nuts and bolts lawyer like the noble Lord, Lord Phillimore. We see divorce cases day in, day out

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and the vast majority of those are undefended divorces, as indeed will be divorces under the present Bill before the Committee. They will depend upon documentary proof. Under the existing system that involves a petition supported later by an affidavit by the petitioner confirming the allegations made. As the Law Commission accurately stated, the system still allows, even encourages the parties to lie, or at least to exaggerate in order to get what they want. The bogus adultery cases of the past may have all but disappeared but their modern equivalents are the flimsy behaviour petition, or the pretence that the parties have been living apart for a full two years.

In considering whether it is desirable to continue to have fault-based grounds for divorce, the Committee must consider whether, and if so how, the defects of the existing system can be improved. I suggest it is highly unlikely that better ways of establishing fault to the true satisfaction of a court can be devolved except at great expense. As the noble Lords, Lord Phillimore and Lord Irvine of Lairg, said, if the law is to continue to allow allegations of fault to be made, in fairness the law has to allow allegations of fault to be disputed and to be defended in court at the expense of the parties or at the expense of the taxpayer, and, as the noble Lord, Lord Phillimore, and the noble Baroness, Lady Faithfull, said, to the detriment of the parties' funds and to the detriment of their children.

One other matter perhaps needs to be emphasised and it arises out of a point made by the noble Lord, Lord Moran. In removing fault as a basis of divorce one is not removing the possibility of introducing allegations of misconduct as relevant consideration when the finances come to be considered. As the noble and learned Lord the Lord Chancellor stated at an earlier stage in our debate this afternoon, the Bill does not disturb the existing guidelines in the Matrimonial Causes Act for consideration of financial matters. One of those guidelines involves consideration by the court of conduct by one of the parties if it is inequitable to disregard it. In practice of course it is only in fairly extreme cases that conduct is considered relevant in financial matters. It is difficult for the court to quantify misconduct. For that perfectly sensible and pragmatic reason, in the vast majority of cases the court does not attempt to do so. I repeat that the Committee should think hard about the practical consequences of introducing fault into the Bill as it is presently framed.


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