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Lord Simon of Glaisdale: I am most grateful to those Members of the Committee who have taken part in the
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debate. Naturally, I am particularly grateful to the noble Lord, Lord McGregor of Durris, for bringing us his experience as an academic sociologist, well used to handling statistics, and his knowledge of the need for a control group. After all, not only was he a member of two important committees and not only does he have an academic background but he was one of the three people who carried through the very important statistical survey on separated partners.

I am grateful also to my noble and learned friend the Lord Chancellor for giving the figures in relation to age of responsibility for the laws concerned with the welfare of children. He did not deal with all the details. He gave sufficient to enable us to make up our minds but, with his consent, I shall place his letter to me in the Library.

Considering the argument on age, it seems preferable to plump for 18, as suggested by the noble Baroness, Lady Elles. I took the age of 16 largely because that is the age that appears in most of the statistics and because it is the age of consent to marriage and the age of leaving school. But in these days of further and higher education, one wants to look further, as indeed the law does in some circumstances, as my noble and learned friend suggested.

My noble and learned friend was noticeably cautious in reply to the crucial question put by the noble Lord, Lord Stoddart of Swindon; namely, whether this measure will lead to more divorce, about the same number, or less. If there are more divorces, more children will be placed at risk.

Although he was cautious, on the whole my noble and learned friend's argument was optimistic; that is, that it is best for children to have a happy relationship with both parents after divorce. The Committee was perhaps reminded of the highly optimistic speeches that were made in 1969. Lord Stow Hill declared himself enthusiastic for the Bill, whereas we now have it denounced by its very author—the Lord Chancellor's Department. Not only is there that background, but also is it reasonable to be optimistic when we have seen the fall-out from the Child Support Act?

The only other point I wish to deal with was adverted to by my noble and learned friend, but put with characteristic clarity by the noble Lord, Lord Irvine of Lairg. He asked how the law can help if a marriage is dead. The central argument in this debate is that, if there is a child, it is impossible to say that the marriage is dead; it is living in the child; it is living in the responsibility of the parents to the child.

I said that this was an exploratory amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 7 and 8 not moved.]

5 p.m.

Lord Simon of Glaisdale moved Amendment No. 9:

Page 2, line 1, at end insert—
("( ) there is subsisting no relevant agreement in affirmation of marriage under section (Affirmation of marriage);").

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The noble and learned Lord said: Amendment No. 9 is different. It gives the parties to a marriage the right to enter into a binding agreement that the marriage,

"shall be indissoluble except by death",


"indissoluble except by death so long as there is any child of the family".

The crucial amendment in this group is Amendment No. 96 which states:

"The parties to a marriage may at any time before, at or after their marriage agree in writing that their marriage shall be indissoluble except by death".

That is a general agreement in affirmation of marriage. The second alternative is that:

"The parties to a marriage may at any time before, at or after their marriage agree in writing that their marriage shall be indissoluble except by death so long as there is any child of the family under the age of 16 years".

As a result of the last debate, we should perhaps raise the age to 18. The rest of the new clause is mainly consequential. It provides that:

"A general agreement in affirmation of marriage may be discharged by an agreement in writing to that effect by the parties to the marriage".

In other words, the provision treats marriage like any other contract. What is strange about the Bill is that it does not treat the agreement to marry like any other contract which can be discharged by consent; it treats it as the type of contract that can be discharged by unilateral repudiation by one of the parties. I have read most of the subsection. But it continues that the agreement may not be discharged even by consent where there is a child under the age of 16, or 18—that turns on the arguments canvassed in relation to the last amendment.

It should not be necessary to provide that the parties can enter into that sort of contract. On the face of it, whether at a registry office or in some religious ceremony, the parties have already promised. However, the law regards such promises, made even in such solemn circumstances, as being able to be cast off not only by consent but also by the wish of only one of the parties, however much to the detriment of the other, however oblivious to the welfare of the children. It is only because we have got into that situation in the law and are getting into it further with this Bill that the Committee may wish to consider this amendment. I beg to move.

Baroness Trumpington: Perhaps I may be a bore once again and ask the noble and learned Lord whether he is also speaking to Amendments Nos. 17, 34 and 96, which are grouped with Amendment No. 9.

Lord Simon of Glaisdale: Once again, I am grateful to the noble Baroness. Those amendments are all ancillary. I shall not speak to them specifically and shall not move them in due course if I withdraw Amendment No. 9. Does that satisfy the noble Baroness? Evidently it does; so my day is made.

The Lord Chancellor: My noble and learned friend explained the effect of these amendments, the principal one of which is Amendment No. 96. In the past, in the majority of marriages both parties entered the
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marriage with the view that they wished it to continue for as long as their joint lives. The circumstances which give rise to divorce are supervening circumstances which are not envisaged by the parties at the time they enter into the marriage.

As I said earlier, preparation for marriage is an important matter and we should consider the nature of available help in that area. Subject to that, creating a second tier, a new arrangement under which there is one type of marriage which is more easily dissoluble than another, would not be very satisfactory.

Since divorce has been available under our law, the possibility has existed that the marriage will come to an end in law before the death of either party. To try to make some new arrangement for one type of marriage where that could happen and another where it can happen only by agreement would not be a desirable development. I believe that what we want to concentrate on is the institution of marriage which we have and we hope that it will be as effective as possible in providing a satisfying life-long relationship between the parties. I would not myself be in favour of supporting this group of amendments.

The Lord Bishop of Liverpool: I rise briefly to support what the noble and learned Lord the Lord Chancellor has said. In considering divorce, there have been times when Christians have been tempted to suggest that civil marriages are somehow less than religious marriages. It is a profoundly unhelpful notion that there are two layers of marriage. It would damagingly and seriously weaken what we mean by marriage, which is when two persons willingly in public make their vows to each other. There is one marriage and it is a true marriage.

Lord Irvine of Lairg: I respectfully agree with the noble and learned Lord and with the right reverend Prelate the Bishop of Liverpool. It is the marriage ceremony itself which affirms the marriage. To accept these amendments would be to devalue the solemnity of marriage, whether celebrated in church or in a registry office. I agree that there should not be two tiers of marriage and I associate myself with the noble and learned Lord's desire to strengthen the one institution of marriage that we have. I therefore oppose these amendments.

Lord Stallard: I wish to support the noble and learned Lord's amendments. I agree with what the right reverend Prelate said. We accept civil marriage. There is an arrangement and agreement. The point which the noble and learned Lord, Lord Simon of Glaisdale, makes that influences me is that the Bill sets up a new structure where one party to the marriage can say, "It's over and all we have to do now is wait 12 months". That is what makes the arrangement different from what the original marriage agreement was.

One is undermining the marriage agreement by saying that that is the agreement but that it is all right if one of the parties says to the other one, "I'm fed up with this. Let's wait 12 months and get out of it". We have set up this new agreement and many people will
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take advantage of it. That is why we are concerned that the Bill diminishes the sanctity of marriage. That is why the amendment needs a little more consideration than it has been given.

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