Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Elton: I find this the most difficult area of the whole Bill. I am much attracted by what the noble Lord, Lord Marsh, said, although I would not have put it so forcefully. I see the persuasion of the remarks of the right reverend Prelate, but it cannot necessarily be right to treat marriages in which there are two parties who

23 Jan 1996 : Column 939

wish the marriage to end, and marriages where there is only one party who wishes it to end in the same way. I hope that my noble and learned friend will be able to point out the differences in what is in the Bill. If they are to be treated differently, then the question is: what is the purpose of treating them differently? Is it a penalty or is it a means of exploiting a different situation?

The noble Lord, Lord Marsh, suggested that the proposal was purely punitive, and, I think rightly, felt that many people support the amendment because they feel that the whole venture of divorce should be stopped at any price. I cannot number myself among them. However, a period of reflection may have a greater chance of producing positive fruit where one of the parties starts out thinking that there may be a chance of saving the marriage than it would when both parties are determined that the marriage should end. I hope that my noble and learned friend will address himself to that point, because that is the little place where, so far as concerns me, the door is ajar for the amendment which otherwise I would not be able to support.

Lord Monson: Before the noble Lord sits down, does he agree that Amendment No. 42 and the consequential amendments in the name of his noble friend Lord Coleraine address the problem that he poses, and in my view do so in a rather satisfactory way?

Lord Elton: I was slavishly following the grouping by not mentioning that that had occurred to me. My noble friend may yet put his toe into the waters of this debate.

Baroness Lockwood: I understand the motives behind the amendments, and I sympathise with those motives to a great extent. If one party is opposed to the divorce then obviously the situation is difficult. In those circumstances, as the noble Baroness, Lady Platt, said, in the majority of cases it is likely to be the woman who is the party offended against. In such cases, particularly with older women, real financial problems arise, because older women tend not to be as financially independent as younger women.

There are some serious problems to be tackled, but I am not convinced that the proposed amendments are the answers to the problems. The first amendment, for example, envisages a period of five years when one party is opposed to the divorce. Perhaps I may remind the noble Baroness that she said that we must take account of the fact that there is often a great deal of bitterness in divorce. If there is to be five years of bitterness, what kind of life would there be for either of the parties? What kind of life would the family have? Like the right reverend Prelate, I feel that extending the time period laid down in the Bill is not the solution.

The noble and learned Lord the Lord Chancellor advised us yesterday that one year is the minimum period, and that it can be extended where mediation or reconciliation is taking place. The matter does not necessarily have to be settled within a year. I would ask the noble and learned Lord the Lord Chancellor to elaborate on the effect Clause 10 would have in those circumstances. Clause 10 relates to orders preventing divorce in cases of hardship. As I read the clause, a

23 Jan 1996 : Column 940

divorce could be prevented if adequate arrangements had not been made. That would give the spouse being divorced against his or her will an opportunity to ensure that his or her financial well being was taken care of.

There is another amendment to which we shall come later which relates to the division of pensions in a divorce. Financial considerations will be terribly important in a divorce. So while I sympathise with the motives behind the amendments, I am opposed to them because I do not believe that they would prevent a divorce but that they would create greater unhappiness for longer.

The Earl of Perth: My name, together with that of the noble Baroness, Lady Young, is down to Amendment No. 44, which is grouped with Amendment No. 41. I have listened to the debate with great interest. My amendment mentions 18 months. If I had seen two years mentioned I might have put my name to that amendment as well.

The real issue emerged in the speech of the noble Lord, Lord Irvine, when he asked whether I supported the amendment because it had some sort of penal effect. The amendment would make divorce more difficult. I do not think of the amendment as a penal one, and I suspect that goes for the noble Baroness, Lady Young, as well. The amendment does two things, and that is important. First, it makes a couple contemplating marriage think about it more seriously. We have all seen the disastrous effects of divorce over the past years. I believe that the previous divorce Bill made divorce too easy. I hope the proposal will have the effect of making the couple contemplating marriage--this is the key--take it more seriously.

Secondly--here I find the remarks of the right reverend Prelate most disturbing--I believe that where there is a longer period the breakdown may be less likely, although I am aware that it must be a matter of opinion. With the longer period the couple will say that they have to try to make a go of it because they have another year, 18 months, or whatever it may be, to go. The longer period may have two consequences. First, it may make those contemplating marriage take it more seriously. Secondly, if the marriage goes wrong, a reconciliation is more likely.

5.30 p.m.

Lord Mishcon: I have three concerns that I wish to share with the Committee and they arise out of much of what has been discussed. My first concern is that under the Bill the procedure differs in a material respect, procedurally, from what happens now. Under the Bill, divorce proceedings commence with a bare statement upon which no advice is required. At present, when a person is contemplating a divorce he or she goes to a solicitor who, if he honours the ethics of his profession as I hope the majority of my colleagues do, makes it his first task to ask, "Why do you want a divorce? What are your grounds? Do you realise what you are up against?". When one is advising a woman in particular one asks, "Do you realise the loneliness of it all, quite apart from the financial aspects? Do you realise what is happening to the children if you go ahead with this?". I can tell the

23 Jan 1996 : Column 941

Committee that in a number of cases throughout a very lengthy life I have had the joy of seeing my client going out having changed his or her mind. That is not a possibility under the present procedure.

My second point is relevant to the amendment that we are discussing. The advice that would normally be given under this altered procedure is this. If the length of time is two years in respect of a "consent divorce" or five years where one of the parties does not consent the advice that anyone would give--and one does not have to be a lawyer to do it--is, "If you have the slightest doubt about filing that statement for heaven's sake put it in because there will be a long delay of two years or five years if you do not. Don't think too hastily but nevertheless buck up with your ideas and put that statement in". I do not believe that that is what we want.

I turn to an issue that worries all Members of the Committee; those who have spoken for the amendment and those who have spoken against it. It is the plight of the party to the marriage who wants it to go on. We have a procedure under the Bill and I wonder with Members of the Committee whether we can improve upon it. It is the procedure under Clause 10. I know that I shall be forgiven if I jump from one clause to another. Clause 10 provides:

    "If an application for a divorce order has been made by one of the parties to a marriage, the court may, on the application of the other party, order that the marriage is not to be dissolved".

Subsection (2) provides that:

    "Such an order...may be made only if the court is satisfied"--

and I look at paragraph (b)--

    "that it would be wrong, in all the circumstances (including the conduct of the parties), for the marriage to be dissolved".

Will the noble and learned Lord in his ingenuity--and most of us credit him with that in addition to other qualities--reflect upon the procedure under Clause 10 when dealing with the problem that we are now meeting? Taking the partner concerned to be the wife, can he see whether at an early stage under some informal procedure she can say, "Please, court, I do not want this divorce. He has been carried away by this little floozie"--the Committee will forgive me using that word--"and she is young, she is pretty, and it is all a nonsense. He is a silly idiot. He is trying to pretend that he is 30 again but he's really 50 and he had better realise it."? Is there a way in which, informally, somehow or another, the matter can go before an intelligent registrar, judge, or whoever, at an early stage so that the party who does not want the divorce can be heard? The wise registrar, whoever he may be, will then have the ability to talk to the husband and say to him, "I have listened. Is it sensible? Do you really want to go ahead? You know that if I believe there is a hardship under Clause 10 I have the power not to give you a divorce order. Can't both of you go to see a marriage counsellor?".

What worries me about the Bill--and there is so much that I agree with--is that it looks like a cold, set procedure. I know all about mediation and that people rightly say that mediation is not conciliation. I am really fearful that under the procedure we have at the moment

23 Jan 1996 : Column 942

little people will be thrown into a pit when, if we thought out our family procedure relying on Clause 10 and making it more simple and humble, we could rescue them from the pit.

Next Section Back to Table of Contents Lords Hansard Home Page