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The Lord Chancellor: Certainly I should wish to bear that in mind when considering the regulations to make. Obviously, it is desirable that such a notice should be served as soon as possible, but there could be circumstances in which that is not possible for a number of reasons. Certainly, I should want to take those into account. I shall certainly have in mind for the regulations the point made by my noble friend and, if clarification is required, for the Bill itself. I shall need to consider that point.

The Earl of Onslow: I am sorry to have to ask the noble and learned Lord again to address his mind to this point. If there is a situation in which the clock is stopped and the reconciliation does not work, then by extending the period, I suggest, it has been made more likely, in an obtuse way, that the divorce cannot be achieved as early as would possibly be in everyone's interest. A failed reconciliation is probably more likely to end in greater bitterness than even a non-reconciliation scenario.

The noble and learned Lord referred to 15 months with three months out and an extension of three months at the end. If, in that three months, the reconciliation fails and one's old friends Mr. and Mrs. Bloggins are at each other's throats even more than they were before, it seems rather silly to extend the period by another three months. Am I perhaps being difficult?

The Lord Chancellor: No, certainly not. No Member of the Committee is being difficult. It is a matter of balance. There are all kinds of circumstances. Trying to legislate for human nature with great precision is difficult. The point is that both parties have to agree to stop the clock. That is the crux of the matter. There can be attempts at reconciliation, as the noble Lord, Lord Irvine of Lairg, supposed to be meant--I certainly do mean that--without the parties agreeing to stop the clock. But if the parties agree to stop the clock, I feel that there is a reasonable prospect of the reconciliation proceeding. I want to avoid the notion that by going into a genuine period of reconciliation, where both parties are agreed to have a good go at it, the party who has served the notice will feel that he has to start all over again. What we need to encourage is that people should try to get together and stop that period running.

The other side of the matter is that the purpose of the period is to demonstrate that the marriage has irretrievably broken down. It seems to me to be perfectly satisfactory that a period during which the parties agree that they are making an attempt at reconciliation which has reasonable prospects should not count to proof of that. If the attempt breaks down, I accept that there may be additional bitterness. It is one of the risks. I hope that the risk is well worth running in most cases. But if the attempt breaks down, there is a further cooling-off

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period. In fact, it may be all the more important to have a further cooling-off period, if there has been a certain rush of blood to the head as the reconciliation attempt broke down. The importance of a further cooling-off period may be even greater because cooling off is, perhaps, the best remedy that we can devise for sudden rancour.

Lord Stallard: Before the noble and learned Lord sits down, may I thank him for his long statement and explanation. However, there is a little doubt left in my mind. This matter has been argued from both sides and all round. It has been like going around in a circle. I am particularly pleased that we are beginning to reach some decision about the difference between mediation and reconciliation. We are not quite there yet but we are getting there.

I should like to direct the Committee's attention to the parliamentary brief from the Law Society, which is quite specific about the role of the mediator. A mediator does not provide marriage guidance counselling; a mediator will not offer legal advice; a mediator does not comment on whether an agreed solution is fair to both parties and properly protects their interests; and a mediator does not advise the parties independently. That is not exactly in line with what the noble and learned Lord said; but that is from the Law Society. I am not a member of the Law Society, but it seems sensible to me.

I am a little disturbed that we have indicated a definite "must" for mediation. If one party says the marriage is over, then they must go to mediation. However, we have not been so definite in regard to reconciliation, apart from in Amendment No. 35B where the noble Baroness, Lady Young, tabled something more definite. In that amendment a period is laid down for reconciliation in the same way as a period is laid down in the Bill for mediation.

The noble and learned Lord seems to be saying, "If the parties agree"; "If this"; "If that". There are too many "ifs" in relation to reconciliation. I should like that to be strengthened and for the Bill to be specific about the need for reconciliation before we go into the role of the mediator as laid down in the Law Society brief.

The Lord Chancellor: The noble Lord is speaking to an amendment that was discussed yesterday. Perhaps I have been too long in my explanations. That is the last thing I want to be; I want to make progress and I am trying to answer the questions posed.

In relation to the noble Lord's point, no period for mediation is stated in the Bill; the period is for "reflection and consideration". As I read out, the first branch is to reflect on whether the marriage can be saved. The period is for reflection and consideration and its first purpose is for reflection on whether the marriage can be saved.

I do not specify a period for mediation because it is possible that there will not be any mediation. If neither party wants it, as I said yesterday, we cannot enforce it. The Bill is drafted to permit a period of mediation, but it is not drafted as a period for mediation in the way that the noble Lord said. Most Members of the Committee

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distinguish between mediation on the one hand and reconciliation on the other, and marriage guidance is more appropriate to the second than to the first.

Lord Irvine of Lairg: I understand the noble and learned Lord to have given me a clear assurance that where there is an attempt at reconciliation not the subject of a notice to the court it will take place concurrently with the year for reflection and consideration. Therefore, if the attempt fails, an application for divorce may be made and the attempt will not operate as any kind of disincentive against attempting reconciliation.

Speaking for myself and being a firm believer in the proposition that Bills should be written in plain English and be readily comprehensible by those whose lives they affect, I invite the noble and learned Lord to consider this. Would it make for a clearer and more comprehensible Bill for all those affected if it were made plain that attempts at reconciliation not notified to the court can be attempted by the parties without prejudice to any of their rights under the Act? The noble and learned Lord may express that notion in whatever way he thinks right.

I note that the noble and learned Lord is of the view that a duty on the mediator to inform the parties that the option of reconciliation remains available is more appropriate to a code of practice than on the face of the Bill. But I invite him also to consider whether that is correct. To impose such a duty on the mediator would signal clearly the value Parliament attaches to encouraging reconciliation. To include it on the face of the Bill would accord with many of the sentiments expressed from a number of quarters in your Lordships' Chamber in regard to attempting reconciliation. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Young moved Amendment No. 41:

Page 4, line 15, leave out subsection (3) and insert--
("(3) Where an application for a divorce order under section 2 has been made by both parties to a marriage, the period for reflection and consideration is two years, beginning with the day on which the statement is received by the court.
(3A) Where an application for a divorce order under section 2 has been made by one of the parties to a marriage, the period for reflection and consideration is five years beginning with the day on which the statement is received by the court.").

The noble Baroness said: In moving Amendment No. 41, I shall speak also to Amendments Nos. 43 and 44. This is a completely different issue from the one we have just debated, but it is one about which great concern has been expressed at all stages of our discussions and from all parts of the Chamber. It relates to the period of one year for, as my noble and learned friend explained, "reflection and consideration". It is at the end of that year that a divorce can be granted and it may be granted against the wishes of one unwilling spouse. It is a short period of time. Furthermore, no reason needs to be given except the irretrievable breakdown of the marriage.

Many of us feel that that is exactly what sends the wrong message to everybody about the Bill. My amendment is designed to extend that period. It will be

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readily apparent on Amendment No. 41 that the period for reflection and consideration is extended to two years where both parties consent to divorce or five years where only one party seeks a divorce. That is what happens in the present law and I do not fully understand why we cannot stay with that even if we include the other provisions in the Bill.

Amendment No. 43 extends the one year to two years and Amendment No. 44, to which the noble Earl, Lord Perth, attaches his name, extends it to 18 months. I am conscious that these are three variations on the same point. I tabled them purposely because I want to use the Committee stage as a time for considering how the Bill may best be amended. I hope that my noble and learned friend will be able to do something to extend the time period, which many people--far more expert than I am--consider to be too short, particularly in the case of the unwilling spouse.

I am sure that others taking part will have been deluged, as I have, with correspondence. That situation is particularly tragic for older women who, I regret to say, are frequently "traded in" for a new and younger model, which is no longer regarded as a fault--I do not agree with that but that is what we are told.

Many people will argue (and I have heard it argued in Committee) that once everybody has made up their minds to go ahead, it is terrible to keep people waiting for longer than one year. But curiously, when one looks at the statistics, it is clear that in Scotland, where over 50 per cent. of divorces take between two and five years--and in Northern Ireland over 70 per cent. take that time--there has been no public outcry. It seems to work perfectly satisfactorily. I do not understand therefore why it is thought that there may be a public outcry in England and Wales.

The reason why the statistics in Northern Ireland are so different is that the special procedure does not apply. As we know, the special procedure was introduced in 1973 as a statutory instrument and was not a decision by Parliament in quite the same sense. I believe that this is a matter which is very much at the heart of this Bill and which a great many people believe is quite wrong; namely, that at the end of a year it should be possible for one spouse to divorce the other against the wishes of the partner and in such a short period of time. Although I am quite happy to agree that none of these amendments may be correctly drafted or precisely meets what my noble and learned friend believes to be right, I hope that he will accept them in principle and will be able to come forward at Report stage with an amendment of his own. That would immensely strengthen the Bill and help those of us who are deeply unhappy about the provision.

I did not intervene in the last debate because I had already spoken on the subject of reconciliation, which is so important. The faith that one is going to pin on the mediator! He is this all-wise man or woman who will divide up the assets, deal with the acrimony and who will know the very moment at which to say to the couples, "You should seek reconciliation". Some of them are going to be splendid people, but life is not going to produce perfect mediators from one end of the

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country to the other. Life is not like that. If we are basing this legislation on that assumption, we are deluding ourselves as to what is going to happen. When we come to debate mediation, I shall raise more points on it.

The danger in this Bill is that we are giving many arguments to people who are divorcing and who know the damage it is causing, particularly to their children, quite apart from anything else, in order to make them feel a little more comfortable about divorcing by having all these different processes to go through. Of course, it is desirable if, in these unhappy circumstances, one can do all these things without acrimony. But in my experience of life people on the point of divorce feel acrimony towards one another most of the time and we cannot legislate to abolish that whatever else we may or may not be doing. But what we can do somehow, in the course of balancing the provisions within the Bill, is to help particularly the spouse who is being divorced against his or her wishes. I beg to move.

5 p.m.

Lord Irvine of Lairg: I take the view that in their proposals, Looking to the future, the Government get the balance on this subject right. Paragraph 4.12 states,

    "A period of twelve months will provide sufficient time to establish that the breakdown of the marriage is irretrievable, and for couples who make acceptable arrangements for living apart".

Then in paragraph 4.13 the proposals address the very point which the noble Baroness, Lady Young, addresses through these amendments. It says,

    "A shorter period will do neither of these, and a divorce could be granted without any adequate reflection and consideration. A longer period would offer no incentive for couples to deal with the past. Not only would it increase distress but it would act as an encouragement to walk out of the marriage, form a new relationship, and take on new family responsibilities before fulfilling the obligations and responsibilities towards the previous marriage and children. A longer period would also result in greater distress to the children, and increase their insecurity about arrangements for their future".

That I believed at the time, and still believe, represents sound judgment. What must be explored in the debate on this amendment is the purpose of the longer periods proposed because it is incumbent on the mover of the amendment to put his or her cards clearly on the table. I have to ask this: are these amendments put forward on the basis that divorce should be made more difficult to get and that people should be kept out of a divorce for longer as a matter of principle or, on the contrary, are they put forward on the basis that if both parties want divorce then they really need two years and one is not sufficient for reflection and consideration but if only one person wants a divorce, against the wishes of the other, then he or she actually requires five years for reflection and consideration?

The contrast between the periods proposed--two years for both parties, but five years for a single party seeking to divorce against the wishes of the other--suggests to me that the intention lying behind these amendments may be somewhat penal in nature and not that these longer periods are truly required for the statutory purpose, which is a sufficient period for

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reflection and consideration. Because I cannot discern a sufficient purpose for these proposed longer periods, I oppose the amendments.

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