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The Lord Chancellor: It seems some little time since my noble friend moved her amendment. We have had a fairly wide-ranging debate and it is not for me to go over all the ground that has been covered.

I should like to put some matters to my noble friend about how she anticipates that the system that she proposes will work. I understand from Amendment No. 4 that the process is to be initiated by whoever is initiating the process, the wife or the husband, already committing themselves to the view that the behaviour of one or both parties is destructive of their marriage and that they are irreconcilable. That seems to be taken a little further with Amendment No. 18 to Clause 4.

There is then Amendment No. 23 which inserts into Clause 4 a new subsection (1A). The requirements there proposed are that:



    that has to be proved at the end of some period--and,


    "(b) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or


    "(c) the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the statement".

That last paragraph (c) is not based on conduct of any kind except a separation. So that is not a proposal for a fault-based divorce. A mixed proposal is being put forward.

My noble friend said that she agreed with the abolition of the "quickie divorce". I do not feel that "quickie divorce" is a precise term of art. What I mean by "quickie divorce" is a divorce which proceeds more quickly than it would if it were based other than on fault. I am not clear what my noble friend is proposing in that connection. If the system proposed in the three

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amendments is to operate, the result will be that one can obtain a divorce more quickly by reference to fault than one can without it. That is the essential of the quickie divorce.

I shall answer the questions raised by my noble friend Lord Ashbourne in a moment. The essential point that makes it more difficult to say that fault in some way supports marriage is if one has a divorce that operates more quickly where there is fault and gives the benefit of the right to remarry to the so-called guilty party more quickly than would happen in the event of there being no fault. I do not understand--no doubt somebody will explain to me--how that helps in showing that fault is something blameworthy.

Next I want to turn to what fault is. My noble and learned friend Lord Simon of Glaisdale spoke of 1,100 years of justiciability of fault in the ecclesiastical and civil courts. But conduct has enlarged somewhat over that 1,100 years; it did not stand still. My experience, which is now becoming somewhat outdated but nevertheless is very much in my mind, is that it was much easier to make allegations of unreasonable conduct in recent times than it was to make allegations of cruelty in times past. Those who practise in the present day in this area of the law recognise, as I have seen recognised in articles, that the present fault law, including as it does unreasonable conduct, is a way of permitting the obtaining of divorce by consent in less than two years.

Some people will say, and I have read articles stating it, that hypocrisy of that kind must be accommodated. I may be wrong, but I do not believe that hypocrisy in legislation and the way it operates is a good message for young people. The law should be straightforward in this area and as clear and consistent as possible.

Much has been said about the increase in the number of divorces over the years since 1969. If one looks, one will find that the increase in the number of fault-based divorces has been at least as great as other based divorces. There is no evidence in the figures--I am subject to correction by anyone who is able to bring it forward--that relying on fault is in some way a restraining factor on the incidence of divorce.

I shall now face the challenge put before me by the noble Lord, Lord Moran, to test the amendment by reference to the opening amendment moved by the noble Lord, Lord Stallard. Before I do so, perhaps I can give the figures in relation to quickie divorces. The figures for 1993, which I have had analysed, show that around one-third (52,000) take under six months and around 78,000 take between six months and one year. Three-quarters take less than one year. I understand that the median period is six months.

I come to testing the amendments by reference to the first amendment and agree that that is a good way of looking at it. Paragraph (a) states:


    "to support the institution of marriage".

The amendments do not have any specific claim to do that. It was made plain, and I entirely support that point of view, that marriage involves a continuing commitment by two parties, the one to the other, based

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on mutual love and respect. In its very nature it cannot continue to operate as a true marriage except for so long as that commitment continues. The matrimonial vow, as I understand it-- I shall be corrected by those who know more about this than I--is essentially to continue that commitment for so long as both live. It is a breach of that commitment by either to discontinue the commitment. But the commitment to marriage essentially must be a joint commitment of two parties. You cannot have a continuing marriage in which one party only retains the commitment. The marriage is then dead. However sad that is, it is a fact. One has to take that point into account. I do not believe for a minute that it supports the institution of marriage to seek to keep in place a marriage which is no longer a marriage.

Paragraph (b) states:


    "to ensure that all practicable steps with a view to preventing the irretrievable breakdown of marriage are taken".

One of my fundamental points about the kind of approach that is involved in the amendments of my noble friend Lady Young is that the allegation about the irretrievable breakdown of a marriage or the irreconcilable nature of the conduct of the parties is made at the beginning of the process and therefore the opportunity for steps to be taken at that stage to prevent irretrievable breakdown of the marriage has gone. You have already come to the conclusion, as an essential step for the starting of the procedure, that the marriage has already broken down.

One of the most important aspects of this Bill, and one which I believe is very much a matter of consequence, is the opportunity, even at the late stage when someone is contemplating divorce, of a period, a genuine period--I think a year--of consideration and reflection. You cannot have such a genuine period if the parties are already committed to a situation in which it is said, "This marriage has already irretrievably broken down". I cannot see--I have thought about this once or twice, as the Committee can imagine--how a fault-based divorce system can accommodate that in any realistic sense. If you are already committed to the view that your marriage has broken down there is no point in waiting a year to see whether it has or of having any procedure in place to help you find out.

Paragraph (c) states:


    "to ensure that the parties understand the practical consequences of divorce before taking any irreversible decision".

Exactly the same point applies to that. Fault-based divorce requires that you come to a decision before you start that there has been a fault which is destructive of the marriage. So it is a little late to be told about the consequences after that. I agree that by the time someone is thinking about divorce it is already very late. That is what is behind my idea that we must try to give help earlier if we can. But I do not want to despair or to lose hope, even at that stage, where the court is formally involved. You cannot force people to come for help earlier. But if they have to come to court for some kind of order then at least you have an opportunity, which is an important opportunity and should be taken, for reflection to heal the relationship.

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Paragraph (d), which is perhaps the most important paragraph of all, states:


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

My noble friend Lady Faithfull, with all her experience of these matters, spoke movingly about the effect of divorce on children. Surely--as I explained earlier, this is my motivating reason for bringing this Bill before Parliament--the unnecessary trauma for children in the present system is clear and we should do everything that we possibly can to eliminate it.

I have never suggested, although it has been frequently said that I have--it always makes me wonder if people have to misrepresent one's position in order to knock it down because they are short of arguments for knocking down one's true position--that it is possible to take the pain, shame or blame out of divorce. I do not believe that it is. But what I do believe is that it is possible to avoid introducing unnecessary pain, hostility and trauma into the sad fact of a marriage breakdown. I believe that a system in which one makes allegations, particularly of conduct against the other, is exactly of that character and introduces unnecessary trauma into the situation.

It is for those reasons that I have not found it possible to go down that road. I know and well understand my noble friend Lady Young and her attitude to these matters. I respect her point of view. Indeed, our agreement as regards the first amendment shows that we share the same aims. I should like to know how this system that she proposes will meet the set of requirements that I have suggested.


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