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Baroness Young: The grouping contains at least three amendments to which my name is attached. It may be helpful to address them now. However, if my noble and learned friend would rather reply to the amendment of the noble Lord, Lord Meston, first, I am happy to speak later. I understand he is happy for me to continue. I believe that Amendment No. 92 should not be included in this group of amendments. I would prefer to speak to it separately. It may be helpful, however, if I speak to Amendments Nos. 93 and 190.
Although the amendments are grouped together, my amendments have quite the opposite effect of those proposed by the noble Lord, Lord Meston, which widen the provisions whereby a divorce can be granted against the wishes of one of the parties. As this seems to me in principle undesirable, my amendments operate in exactly the opposite direction. I may have misunderstood the noble Lord's proposals but as far as I can see he is not only extending the scope of Schedule 1 but adding another provision under that schedule which makes a further exemption regarding children who areI believe he said thissubject to care proceedings. That simply widens the number of
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exemptions in which the Bill gives power to the court to make a divorce order at the request of one party even if no financial agreement has been reached at the end of the one-year waiting period.
I am unhappy about Schedule 1. The purpose of Amendment No. 93 is to prevent the court making a divorce order under this provision in the case of hardship as defined in Clause 10. A further amendment in my name, Amendment No. 115, seeks to insert a new subsection which substantially widens the definition of hardship. Cardinal Hume contributed a remarkable article to The Tablet last week. The cardinal made a point about hardship and stated that safeguards to prevent it should be strengthened. I have amendments down to that part of the Bill. However, in the part of the Bill we are now discussing I feel it important to recognise that the Bill contains powers for the courts to impose a divorce against the wishes of one party to the marriage. I recognise, of course, that there can be vexatious and difficult people. Sometimes people who are being divorced against their will and who have the misfortune still to be in love with their partner do become unreasonable and do not want the divorce to happen. It seems to me that their needs might at least be considered. We need to think of that kind of case.
As I understand the BillI am not a lawyer and I may not be correctthere are no effective powers for the court to bar a divorce. I believe that we shall discuss the hardship question later. I shall be interested to hear what my noble and learned friend has to say. It seems to me there are various dangers. It will be possible for one party to be divorced against the wishes of the other where the discussion on financial matters can effectively be guillotined. That could lead to hasty and unfair arrangements and could allow arrangements to be made in the absence of one spouse. There are further difficulties under Schedule 2 which, on my reading of it, is in parts loosely worded. For example, paragraph 23B(1)(b) states:
The term "special circumstances" seems rather loose. I do not know what it means; perhaps we shall have that explained to us as the Bill proceeds. As I indicated, these are not amendments which I wish to press today but they open up a whole area where we need more clarification and debate as regards what we are proposing under the Bill for a divorce where one party to it is unwilling.
Lord Meston: I hesitate to interrupt but the noble Baroness is perhaps wrong on one, or possibly two, points. However, we are not as far apart as she may have suggested. The exemption I seek to introduce in Amendment No. 196 would only operate if both parties decided that there was a good reason to proceed to a divorce without having finalised their financial arrangements. In other words, it is an agreement of both parties which does not, and indeed could not, depend upon a unilateral action. Amendment No. 85 is designed to remove the possibility of one party proceeding by a unilateral
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declaration that there are no significant assets and persuading the court to provide a divorce on that basis. It requires that both parties are agreed that that is the situation, so that there is no abuse of the provision unilaterally.
The Lord Chancellor: I shall deal with the amendments of the noble Lord, Lord Meston, first. I accept the view that it is necessary for the view of the other party to be taken into account in connection with the suggestion that there are no assets and the like. The noble Lord does not care for my amendment. I am perfectly content to review that in the light of his amendment because I think we are agreed. As regards the amendments which introduce new exemptions, I have more difficulty.
As regards the new fourth exemption, I believe that the court, when considering whether the requirements of Section 41 of the 1973 Act have been met, will consider if the child is in care, and, if so, will not bar a divorce simply for that reason, assuming that no order or no further order is needed under the Children Act. Therefore I do not think that another exemption is required because that is a situation with which the court could deal.
The new fifth exemption deals with the possibility of change. I believe I picked up the examples of expected inheritance and possibly the opposite of an expected inheritancethe quantification of a particular type of loss. I should have thought that it would not necessarily be wise to postpone the arrangements completely on that basis. It should be possible to deal with the arrangements. If an expected inheritance is to be taken into account, who knows how long that might affect the situation? I find it difficult to accept that we should regard that as a reason for not making arrangements so far as they can be made. There may be aspects of the arrangements which cannot be fully finalised, but that is taken care of. I do not believe that it is satisfactory to say that that should be an exemption from making the arrangements as a precondition of obtaining a divorce.
As regards the amendments of my noble friend Lady Young, I am concerned that the arrangements should be as tight as possible. I believe that the arrangements contained in the schedule are as tight as is reasonable. Amendment No. 92 seems to go in the opposite direction, and I would find it difficult to accept it.
My noble friend explained Amendment No. 93 as a matter which will arise in connection with the hardship bar. I entirely agree with her that the hardship bar is a very important aspect of the proposals. Obviously the precise terms in which it is expressed require consideration. My noble friend referred to Cardinal Hume's article in The Tablet, which was also published in an edited version in The Times on Saturday. I found it extremely helpful. It focuses on the hardship bar as a matter which requires further consideration. I believe that that is right, particularly in relation to children, but there are also other aspects which are brought forward in later amendments.
I believe that the arrangements requiring people to face up to their responsibilities are as tight as they reasonably can be. I believe that they are correct in
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principle. I believe that my noble friend agrees that there should be a requirement for those responsibilities to be faced before a divorce is granted. So far I have not been persuaded that we need to enlarge the exemptions, which are dictated only by the practicalities of the situation.
Baroness Young: Before my noble and learned friend sits down, perhaps I may ask him a question for clarification. My concern about this particular group of amendments and this part of the Bill is how far the court can go against the wishes of the spouse who does not wish to have a divorce. If I understand correctly what my noble and learned friend said, he feels that he cannot go further than what he has already said. However, there could be circumstances in which it could be unjust for someone to face a divorce before they are convinced about the financial and other circumstances being settled necessarily within the year.
The Lord Chancellor: It is a misunderstanding of the provisions of the Bill to suggest that the settlement of the financial matters could in any way reduce the period for consideration and reflection. Under the terms of the Bill, the year is a minimum. The need to settle financial matters may well extend that period. That is why I say that a year is the minimum. The need to settle financial matters and other matters, including most importantly of all the arrangements for the children, is a requirement which may well mean that the divorce is postponed for longer than a year, depending on how the arrangements are made. Therefore, the mere fact that a settlement has taken place, if it takes place, in the sense of agreeing what the future should hold, within a year does not mean that the divorce will be granted within a year.
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