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Baroness Hamwee: With other Members of the Committee, my noble friend Lord Meston has proposed amendments within this group. They are Amendments Nos. 54, 56, 58 and 60, which arise from the anxiety expressed in large part by the noble Lord, Lord Irvine, as to the precise meaning of Clause 7.
I turn to Amendment No. 56 which proposes to replace the expression "is to be disregarded" with the words "shall not count" as to that period. Presumably the noble and learned Lord the Lord Chancellor will confirm this, but my noble friend is worried about what is meant by the suggestion that the time between the two notices should not count. The wording could mean that the time between the two notices is not to affect or interrupt the 12-month period. My noble friend had difficulty in interpreting that phrase and I share his problems with exactly what is meant by "is to be disregarded". I understand that the words "shall not count" have been borrowed by my noble friend from Section 2(5) of the Matrimonial Causes Act 1973.
Finally, Amendments Nos. 58 and 60 have been proposed in order to question the period of 18 months. Perhaps the noble and learned Lord could say why that is thought to be the appropriate period. If 12 months is a sufficient period in which to establish that the marriage has irretrievably broken down, why is it not equally sufficient to require the parties to re-start the process if they want a divorce?
Viscount Brentford: I believe that Clause 7 strikes a fair balance between the conflicting interests of mediation and reconciliation. I do not favour Amendment No. 40 in itself and perhaps the noble Lord, Lord Irvine, will not press it. However, I am quite attracted to the strength of reminding the mediator of the possibility of reconciliation. I accept that he is not there to carry out reconciliation.
I was most impressed by what my noble and learned friend the Lord Chancellor said yesterday. He said that at any time mediation might throw up a desire for reconciliation when the future was looked at by the couple in conflict. It is important that the mediator bears that point in mind. I do not believe that he has a statutory duty in that respect. It may well be that an amendment can be written in to remind him that he should have that duty at any time if reconciliation seems to be on the cards.
The formality of serving notice appears to me to be important if the clock is to stop for that period. During the year of mediation undoubtedly there will be times when the couple will want to have a go at reconciliation. They may take a week or two and will not bother with formal notice, but the mediator will bear in mind the legal niceties in discussion with them. On the whole, I believe that Clause 7 strikes the right balance and I commend it as drafted, except for possibly writing in at some stage the legal requirement for the mediator to bear reconciliation in mind, although he is not himself the reconciliator.
Lord Irvine of Lairg: Perhaps I should say the following in response to the noble Lord, Lord Coleraine. I would be the first to be relieved if I were worrying about nothing, but I do not think I am. I worry about the undoubted fact that on its face the Bill does not address the situation where during the year for reflection and consideration an attempt at reconciliation is made without any notice being given to the court.
I suggested on my feet that a way of dealing with it might be to add to Clause 7(2) the words, "and may include any period within that period during which the parties attempt reconciliation". My reason for doing so was to make clear that in such a circumstance the clock governing the year for reflection and consideration would continue to run. If it did not run and an attempt at reconciliation without notice to the court--I venture to suggest that that will happen much more than where notice is given--did not count towards the mandatory year before a party could apply for a divorce, it would delay the availability of divorce and operate as a disincentive to an attempted reconciliation. That would be contrary to all of our intentions. I hope with that explanation the noble Lord, Lord Coleraine, will understand why I am concerned about this matter. It may be that my concern is about to be relieved by the noble and learned Lord, who did not intervene in my observations to say that I was right on this particular point. Perhaps I am worrying about nothing and that attempts at reconciliation not notified to the court do not prevent the year from running, and if they fail after the expiry of the year an application for a divorce may be made, just as it can be if an attempt at reconciliation has not been made.
The Lord Chancellor: The intention of Clause 7 is that the parties should reflect on whether or not the marriage can be saved. That is the keynote of the clause. The purpose of that is to enable them to consider in every possible way, including attempts at reconciliation, what can be done. As to the second part of the point raised by the noble Lord, Lord Irvine, the intention is that whatever consideration is given to these matters does not stop the clock running, except in the situation where subsections (5) and (6) apply. Put another way, if the parties agree to make a real attempt at reconciliation they can stop the clock running. If everything works the whole business is finished and they go on living together happily as a married couple would like to do. On the other hand, if they have been working at it for three
The current law has a somewhat different effect on attempts at reconciliation. Under the present law, if the reconciliation is for an aggregate period of six months or more after the discovery of the adultery complained of, or the final act of behaviour alleged takes place, there is prejudice to the parties in going ahead with a divorce based on that adultery or conduct. We want to do everything possible to facilitate and encourage reconciliation.
Earlier in these debates the Bill was described by an expert on these matters as being clearly drafted. I believe that this is reasonably clear. The noble Lord, Lord Meston, believes that the words "is to be disregarded" may be better replaced by the words "shall not count" or "does not count". I shall certainly take the advice of Parliamentary counsel on that point. When one knows what one wants and reads something it sounds plain, but sometimes when one tries to find out the meaning by reading the words it is not so plain. Therefore, I am at a slight disadvantage in judging the clarity of these provisions. However, I believe that they are reasonably plain on a full reading.
It is important to give consideration to the matter of encouraging the mediator. I believe that the best thing we can do is to see whether or not we can build on a later amendment about codes of practice for mediators. One of the problems to be borne in mind in this connection is that which is brought to me by those who practise in this area, particularly lawyers. The client arrives in the lawyer's office. The first thing the lawyer says, having learned a little bit about the problem, is that the client must think about reconciliation. Having been told what a terrible life the client has had, how awful the whole thing is and how he or she wants to get rid of it as quickly as possible, if the lawyer's first response is that reconciliation must be attempted the client will probably say, "I will have to go to another lawyer because you are not on my side". I am sure that others with experience of these matters will know about that. If the mediator begins by trying to press people to become reconciled a question may be raised as to just where he or she stands on the matter.
On the other hand, a wise mediator--I hope that they will all be wise--will know when there seems to be a crack or a hope. It is that kind of position that I have in mind. It is easier to be anecdotal about these matters and I have heard it said that where a person who has run away from his wife and set up with someone else goes to a lawyer and gets a description of what things will be like after a divorce, particularly financially, he starts to wonder whether he wants to go ahead with the divorce; if he is on his own, the chances are good, but if the other party of the illicit arrangement is there, perhaps the chances are not so good.
Those are just aspects of human nature. That is the sort of opportunity that a skilled mediator would seize to say, "Yes, it is true; it will be bad. Why not think about what you have already? Wouldn't it be better to try again? Your wife is willing to have you back, to forgive you for what has happened and to start again. Wouldn't that be right?" These are quite delicate matters. I believe that they are best covered in a code of conduct that brings them to the attention of mediators but, ultimately, leaves them as matters for professional judgment.
Amendment No. 54 was mentioned by the noble Baroness, Lady Hamwee. It is supported by my noble friend Lady Young and the noble Lord, Lord Jakobovits. The principle behind it is very much the same as the principle behind subsections (5) and (6); namely, that if the couple can get together again, the clock should stop. There are problems about what "living together" means in this context. As we know, the law has developed to allow people to be separate even when they live under the same roof. So some clarification may be required in that connection. But the principle behind the amendment is the same principle behind what I sought to provide. If the parties are attempting to make a go of it together, then that should be intimated to the court and the clock should be stopped until that attempt has been thoroughly tried out.
I have tried to be practical about the period suggested in Amendments Nos. 58 and 60. We do not want at all to discourage reconciliation, but we do not want to use an original statement for too long. The original statement that initiates the procedure should not be allowed to function for too long. That is why I believe that we should give a reasonable time to encourage reconciliation but not allow the original statement to continue to be effective as a start to this matter for too long. I thought that 18 months was about right. To make the period as short as 12 months very much constrains the possible attempt at reconciliation. I shall certainly take advice on the drafting and look again at that matter.
With regard to encouraging mediators to keep reconciliation in mind, I feel that the best place to deal with that will be during consideration of the amendments about a code of conduct for mediators or something of that kind, to which we shall come later. I believe that the principles behind what we are discussing at this stage are reasonably clear and agreed among those who have spoken.
Baroness Elles: Before the noble and learned Lord sits down, I wonder whether he will take into account a question which I adumbrated yesterday, concerning notification of the statement to the other party. At the moment the year starts from the day that the statement is made before the court. Clearly, there could be quite considerable delay in the notice reaching the other party.
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