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Baroness Elles: I support my noble friend Lady Young, especially on Amendment No. 18A which she introduced on behalf of our noble friend Lord Ashbourne. There is enormous concern about the way the Bill is drafted. Perhaps my noble and learned friend the Lord Chancellor will explain and elaborate on the issue. At the moment it is a unilateral demand for divorce. Where just one person makes a statement of irretrievable breakdown of the marriage, or believes that the marriage has failed, the other party has no say in the matter. As I understand it, under the Billperhaps my noble and learned friend will elaboratethere is no obligation on the other party to go through the process of mediation. Only under a later clauseperhaps Clause 10could the non-agreeing party claim a hardship of one kind or another and try to stop the divorce.
As my noble and learned friend, as a great connoisseur of human nature will know, and as most Members of the Committee will know, there are cases where people have a quarrel and think they are going to divorce. Time then somehow heals the situation and people change their minds. In the way the Bill is conceived, if someone says, "The marriage has broken down. I have made a statement," the other party will have great difficulty in ever trying to restore the situation. Where both agree, that is one situation which is being proposed. But it does not cure the defect in the case of one party who wants a divorce against another party who does not. That does not solve the issue; it creates a new situation where both parties want a divorce. That happens and it is understandable. It would be a reasonable amendment in that particular
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case but other amendments would be required to deal with the other situation. Where both partners for various reasons want a divorce, and where there are no children and no problems about the division of assets, the Bill is in a reasonable state. However, it does not solve the case in which one partner wants to stay married.
There is no amendment covering the situation in which the person making a statement must have undertaken some form of reconciliation with both parties present. I do not know whether my noble and learned friend can answer my concern about the form of obligation on the person who makes the statement to notify the other party that the statement has been made. I do not know whether my noble and learned friend will be issuing regulations on the way in which the procedure is carried out. There is nothing in the Bill to enable one to say that, if X goes to a court or to a registry office and makes a statement, the other party will know even if he or she is abroad, or ill or looking after children or a member of the family somewhere else. That is a minor point but it is of considerable concern to people in that situation. I should be glad if, in answering my noble friend Lady Young, my noble and learned friend could address those points.
Baroness Faithfull: The noble Lord, Lord Northbourne, is in India and was unable to table his amendments. He asked me to table amendments for him in my name. I am speaking to Amendment No. 25. The noble Lord, Lord Northbourne, wanted both partners to sign the statement. My noble and learned friend the Lord Chancellor kindly saw me and explained why that was not possible. Perhaps I may raise the matter now because it refers to a point made by the noble Baroness.
Lord Coleraine: We have a mixed bag of amendments and I am speaking to Amendment No. 20 standing in my name, which provides that the statement being made will be a statement that the maker believes that the marriage may have broken down and not that the marriage has broken down. That is in line with Amendment No. 19, to which my noble friend Lady Young has spoken.
What I wish to know from my noble and learned friend is the same as was requested by my noble friend Lady Elles. What will happen to the statement when it gets to court? Will it be seen by the other side, the spouse who is to be divorced, assuming that the statement is made by only one spouse? Whether or not it is seen by the other side, the other side will know that the spouse who has made the statement has stated that the marriage has broken down and the spouse making the statement knows that he is making a statement that the marriage has broken down. In my view, it would be less confrontational and more liable to keep the peace between the parties if the statement were not made in the form in the Bill but in the form of my amendment.
Lord Simon of Glaisdale: Perhaps I may make two points. First, we are suffering from over-generous
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grouping. In respect of an earlier amendment tabled by the noble Lord, Lord Meston, to which I listened platonically, I found it extraordinarily difficult to follow all the various points. They seemed to be disparate amendments that were grouped together. That was again the case in respect of the amendment moved by the noble Baroness, Lady Young.
Secondly, I wish to comment on the noble Baroness's Amendment No. 29. For the reasons that I explained earlier, I do not like the word "irretrievable". The noble Baroness indicated that her amendments were exploratory. I agree that the point is more than a semantic one in this sensitive area. I wish to suggest for her consideration and that of my noble and learned friend that the better word is "crisis". It can be stated that the marriage has come to a crisis. It has not necessarily failed nor necessarily broken down and certainly it may not be irretrievable. The hope of my noble and learned friend's arguments today is that the marriage may be retrieved in the course of mediation, conciliation and reconciliation at an early or late stage. Under those circumstances, it would be a better message, indeed a better test, to say that the marriage has come to a crisis.
Irretrievable breakdown is a recent intellectual phrase. Practically nothing was heard of it until the Royal Commission on marriage and divorce reported in the mid-1950s. Then only one of the 20 members, Sheriff Walker, suggested that irretrievable breakdown was preferable to the views of both majorities which were divided, I believe, 10 and nine. Once he had suggested irretrievable breakdown it was taken up enthusiastically by the extreme divorce reformers, who had little love for family and marriage. The whole issue of the modern law review was devoted to advocating Sheriff Walker's view. That was where the phrase came from.
The then Lord Bishop of Exeter, in Putting Asunder, took up the phrase and, following Sheriff Walker's recommendation, provided that it should not be mixed up with allegations of fault. Everybody told him immediately that it was quite impossible to investigate irretrievable breakdown judicially without having regard to evidence supporting it. He then rapidly agreed with the Law Commission the mixed test that was in the 1969 Act.
Even though it contradicted what his committee had recommended in Putting Asunder, he nevertheless was one of the Tellers in your Lordships' House in favour of the 1969 Bill. Another right reverend Prelate voted against the Bill and a leading matrimonial lawyer, Lord Hodson, and a leading proponent of women's rightsin particular married women's interests Lady Summerskill, were the Tellers against the Bill. That was the line-up. With the prelacy divided and the Lord Bishop of Exeter telling in favour of a Bill which contradicted his committee, no wonder we are in a state of confusion at the moment.
The Lord Bishop of Liverpool: We are talking about a bunch of quite different amendments. I wish to pick out one or two pieces of language used by the noble Lord, Lord Coleraine, as regards Amendment No. 20. It strikes me that if somebody says, "My marriage may
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have broken down", that is the right moment at which to go to a marriage guidance counsellor. That is not the right moment to be talking about divorce. I would hope that if that is what somebody feels is true about his marriage, he would always be encouraged or advised to go to a counsellor. The same applies to a marriage in crisis. The noble Baroness, Lady Young, spoke of Christians believing that there can be redemption. Thank God. I know story after story of marriages in crisis but the faults have been faced. The people involved have gone for help and have strengthened and rebuilt their marriage.
But alas, the law must deal with the occasions when the marriage has broken down. I pick out the word "failure" in Amendments Nos. 19 and 29. Yes, of course, there is an immense sense of failure in the people I know who have been through the pain of divorce. They feel a failure of the central commitment of marriage which is to build, cherish and sustain a trusting and loving partnership. That failure or fault is at the heart of what is meant by a broken marriage.
But how would it help us to use that failure? My experience of those going into a second marriage is that they often have an over-pronounced sense of failure and an acute nervousness as regards not being able to build where they have failed before. I feel that it would be breaking the bruised reed if we rub in that failure.
The word "fault" has almost inevitably come back into matters. I want to say very little about that. Those great faults of unfaithfulness and cruelty are very serious matters but they do not of themselves break a marriage. As I said, thank God there are wonderful stories of people being forgiven and healed and of marriages being rebuilt. But it is the arriving at a decision that a marriage has irretrievably broken down which brings the marriage to an end. There are many difficulties and I have total sympathy with the wish to protect the partner who does not wish the marriage to come to an end. Marriage is a union of consenting partners. If one partner firmly and irrevocably withdraws that consent, the marriage will not go forward from that place. There can be bitter motives on both sides. There can be bitter motives in the one who leaves; there can be bitter punitive motives in the one who has, with the law as it is, refused to give someone their freedom, as they say, until five years have passed.
Does waiting for that period of five years really help? We all know that fault and faults are part of the story. The question about law is whether law can correctly unearth and apportion fault. Surely the experience of us all is that the law has proved an exceedingly clumsy instrument which has frequently apportioned fault unequally and unjustly.
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