Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Elton: We went over this ground, or ground very much like it, at great length earlier. Therefore I shall be very brief. I regret that my noble friend did not join these amendments with the others in the last group. These amendments are addressed to the particular case where one party to a marriage suddenly decides to rush off. We have had some wonderful illustrations of how this may happen. Suddenly one party is smitten by another attractive party and wishes to leave the marriage in a hurry with the other party left behind grieving over the marriage and not accepting that it was over. My noble friend's amendment would make an opportunity for the unwilling partner to force a slowing down of the period, during which the departing party might be persuaded to have a change of mind.

As I understood my noble and learned friend, he argued against that principally because it was against the interests of the child to protract the process. I did not hear him address the question of whether the interests of the child nevertheless might be greatly served if the extended period resulted in a reconciliation. I believe that his argument was merely that if it had not worked in one year one could not tell that it would work in two. I feel sure that I must have misrepresented him and wonder whether he could just elucidate that point.

The Lord Chancellor: I am not aware of any body of opinion expert in this area which suggests that after a year has passed the probability of anything in the way of a reconciliation would arise. In other words, it is not in any way established that lengthening the period beyond a year is likely to increase the chances of a reconciliation. As I said, it is a matter of judgment. That is why I feel that there may be special circumstances in a particular case to which the court should have regard. But I do not believe that as a general rule it follows that reconciliation is likely to be assisted by going along

23 Jan 1996 : Column 959

with a period of more than a year. I do not see that the question of whether or not the parties are consenting or in any kind of agreement affects that.

Lord Coleraine: I am grateful to all those who have spoken in this short debate. I did not feel that the answer given by my noble and learned friend to my noble friend Lord Elton was persuasive. I introduced the amendment as a focus for discussion. I do not propose to go over the ground again. I just wish to thank my noble and learned friend for his answer to the question that I raised yesterday and again today; namely, what is the recent authority for the proposition that, in general, conflict affects the children much worse than divorce and separation?

He has now told us that the authority is the Exeter Family Study. I found that surprising but I shall read all the extracts from the study that he quoted to us. Indeed, I shall read certain parts of the study which he did not quote. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 and 44 not moved.]

The Deputy Chairman of Committees (Baroness Serota): I must tell the Committee, in calling the next amendment, Amendment No. 44A, that if the amendment is agreed to, I cannot call Amendment No. 45.

[Amendment No. 44A not moved.]

Lord Coleraine moved Amendment No. 45:


Page 4, line 16, leave out ("is received by the court") and insert--
("(a) is received by the court, where both parties have made the statement, or
(b) is served (in accordance with rules of court) on the other party, where only one party has made the statement.").

The noble Lord said: This is a very simple amendment. We learned yesterday that the statement which has to be made will be served on the other party. At present, the Bill provides that when the statement is put into the court the period for reflection and consideration then commences. It seems to me, as a matter of common sense as well as practicality, that the period for reflection and consideration should be a full 12 months. That is obviously achieved when the statement is made by both parties; but when it is made by only one party it cannot be achieved unless the period starts when the other party receives the statement from the court or whoever is charged with serving the statement. I beg to move.

Lord Meston: I speak briefly in support of the amendment. It seems to me that the noble Lord, Lord Coleraine, has an important point. If time is to run from when the statement is simply lodged with the court, rather than when it is received by the other party, it may mean that the period of 12 months is abbreviated for the other party if the process of service, for whatever reason, takes longer than would normally be expected. Therefore, I hope that the noble and learned Lord the Lord Chancellor will consider this amendment or one like it.

The Lord Chancellor: This point was raised in somewhat the same form this afternoon by my noble

23 Jan 1996 : Column 960

friend Lady Elles. I certainly indicated then, and I am happy to do so in answer to my noble friend's amendment, that this is a matter that I should wish to consider. The rules will certainly provide for service and it may well be that in some circumstances at least there should be an adjustment in respect of the nature of the service. I should want to consider those two matters together. I am grateful to my noble friend for raising this issue.

Lord Coleraine: I am grateful to my noble and learned friend for his comments. I understand him to say that whatever is done with respect to the point that I raised will be on the face of the Bill. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Lord Irvine of Lairg: Perhaps I may ask the noble Baroness, Lady Trumpington, whether it is wise to embark upon the discussion that we shall have on the next amendment, Amendment No. 47, with the extent of discussion that I anticipate going into the dinner hour. I am well able to move it and I am in the Committee's hands.

Baroness Trumpington: On Tuesdays, the dinner hour starts at half-past seven, if possible. If the noble Lord feels that he can deal with the amendment in just over half an hour, that would be great.

7 p.m.

Lord Irvine of Lairg moved Amendment No. 47:


Page 4, line 16, at end insert ("except where subsection (8) applies").

The noble Lord said: I can deal with this amendment in a few minutes. What I had in mind was the interest which my observations might attract elsewhere in the Committee rather than my own efforts in delaying the proceedings. In moving this amendment I shall speak at the same time to Amendment No. 61. Amendment No. 61 is the important amendment, under which it is proposed that,


    "The court shall have the power to abridge the period for reflection and consideration ... [provided that] the requirements of Clause 2(1) are satisfied and the court is satisfied that it is necessary in the interests of the parties or of any relevant children to dissolve the marriage before such period [of one year] has elapsed."

I make the observation that there is great merit in a year for reflection and consideration. As I have said before in Committee, marriage should not lightly be undertaken nor should it lightly be set aside. Before I put the argument as to why there should be a discretion for the period of a year to be abridged it is worth observing, contrary to what has frequently been said in this Committee--namely, that this Bill will make divorce easier--that this Bill will make divorce harder to obtain in the great majority of cases in the sense that it will require a mandatory period of a year for reflection and consideration before a divorce application can be entertained.

On the first day of Committee I described how 75 per cent. of divorces are "quickie" divorces, granted within a few months of the divorce petition. I argued

23 Jan 1996 : Column 961

that a mandatory year for reflection and consideration during which mediation takes place is much more seemly than the conveyor-belt process of the current divorce law which the Bill replaces.

I echo the observation of the noble and learned Lord that fault-based divorce or an excessive period for reflection and consideration beyond what is reasonably required for that purpose is productive of stress and trauma; it is damaging to both parents and children and serves no sensible purpose. It is said that if a longer period were stipulated, people would take their obligations more seriously. That is not a proposition which appeals either to reason or common sense. As the noble Lord, Lord Elton, said on a previous occasion, we must address the world as it is and not as it ought to be.

The corollary of arguments of that kind is that the more difficult we make divorce to obtain, the stronger will the institution of marriage become, with the logical conclusion--which only needs to be stated to be rejected--that if we make divorce impossible, then marriage will become stronger than it could be in any other circumstances.

It would be a pity if the vast improvement which the Bill signals--that is to say, a mandatory year for reflection and consideration--were made unusually restrictive by robbing the judges of any discretion to do justice in the rare cases where a divorce should be granted before the expiry of the 12-month period. At the risk of wearying the Committee, I shall repeat the example I gave on Second Reading because it is a telling one.

A man who was separated from his wife more than 10 years ago was diagnosed in February of last year as dying from cancer. He and his wife had not divorced; neither of them had seen any need to do so. He was living with his new partner. She became pregnant. He wanted, so far as he could, to provide for her and their child after his death. His lawful wife was entirely supportive. She too was living with a new partner.

The lawful husband had substantial pension policies. Within a few months he was able to obtain a divorce from his wife with her full agreement and of course the co-operation of the courts. The divorce was finalised in June of that year; he died in September. His new wife now has the benefit of a widow's pension under his occupational scheme, to the great benefit of not only herself, but also of their child. Happily, the child was born last summer.

I observed on Second Reading and repeat, that I shall be more than surprised if the noble and learned Lord thinks other than that the courts should be given flexibility to grant divorces in less than one year in genuinely unusual and special cases. I hope Members of the Committee will find that to be a compelling example. It could be said that the couple should have divorced earlier and in a sense therefore they were the authors of their own misfortune. No doubt that is true; but they did not. I say it would be extraordinarily harsh to say that they have only themselves to blame. I say that no court should be prevented from doing justice in such an exceptional situation.

23 Jan 1996 : Column 962

I hold to the view to which not all those who are presently Ministers of the Crown subscribe; that is, our judges are to be trusted to do justice in exceptional cases where it is necessary in the interests of the parties or the children so to do. The noble Lord, Lord Meston, who knows much more about this in practice than I do, will confirm that the whole ethos of the family judges is overwhelmingly child-centred. Over the past 20 years they have developed a sensible and highly sophisticated approach to the repercussions of failed marriages. They should be trusted with the discretion which the amendment would give them.

My Amendment No. 102 is not grouped with Amendments Nos. 47 and 61; it is to be found tucked away in another over-heavy and unhelpful grouping with Amendments Nos. 97 to 117. I mention it because I accept the corollary of the amendment which I am presently moving. Amendment No. 102 is intended to be the converse of Amendment No. 47. Just as the courts should have discretion in exceptional cases to abridge the year for reflection and consideration in the interests of justice, so also, I accept, they should have the same discretion to extend the period where justice so requires. I do not shrink from the proposition--I do not believe that the noble and learned Lord does; on the contrary--that divorce should be made harder to obtain; that it should take longer than one year where justice so requires.

The noble and learned Lord, in responding to a number of amendments tabled by the noble Baroness, Lady Young, indicated that, whereas in his opinion one year is right in the generality of cases, special cases where a year may be too short should properly be dealt with under the vehicle of Clause 10. I agree with that. We have not yet come to Clause 10. By parity of reason, I believe that the law should be flexible enough to allow for unusual special cases where one year is too long.

Why is a year always right as a minimum? Why may it properly be lengthened under Clause 10 but, if the amendment is to be opposed, never abridged in special and unusual cases? I believe that there should be flexibility both ways and that judges should be trusted to identify those unusual and special cases where one year is either too long or too short. I beg to move.


Next Section Back to Table of Contents Lords Hansard Home Page