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Baroness Elles: I am grateful to my noble and learned friend for his reply. I should like to study it closely in Hansard.

I thank all noble Lords who have taken part in discussions on the amendment. I agree with the noble and learned Lord, Lord Wilberforce, that the Bill would benefit from having the provisions in Amendment No. 158A on the face of the Bill. I accept from my noble and learned friend that many of them are included in the Children Act. While I hate to disagree with him, I suggest that not all the elements set out in the amendment are spelt out in the Children Act. The checklist that courts are required to go through does not enumerate all those issues. Clause 9 of the Bill requires only that the court consider whether there are children and, if there are, the arrangements to be made for them, I believe under Section 41 of the Matrimonial Causes Act 1973.

Although I accept that the Children Act contains certain provisions, they do not cover every element spelt out in Amendment No. 158A. Even if the provisions are included in various parts of the Act, we owe a duty to the children who, I believe, will suffer as a result of the Bill. I know that the noble and learned Lord probably does not think that they will suffer, but the fact is that many children will suffer as a result of the Bill and it is our duty to ensure that they are fully protected under the Bill and that it is not left to the interpretation or discretion of a court to decide whether or not to include certain provisions on a checklist.

I shall not press the amendment to a Division. However, I very much hope that the issue can be considered again with my noble and learned friend between now and Report stage. There is the specific

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provision as regards risk arising where there is a cohabitee. That is a useful addition to the Bill. I accept that the drafting of the amendment is loose, and that it could be better worded. However, paragraph (b) of Amendment No. 158A specifically states:

    "in the absence of clear evidence to the contrary".

I accept what my noble friend Lady Faithfull said. Access is a difficult issue. However, I hope that my noble and learned friend will consider stating that principle.

As regards Amendment No. 158B, I know that the court welfare officer has a duty under the Children Act. However, I am informed--I may be wrongly informed--that the court welfare does not always have either the time or the opportunity to ensure that his report to the court contains the full details which may be necessary for a court to decide on the welfare of the children. I understand that judges tend to follow the court welfare officer's report. That is understandable. I believe that no stone should be left unturned to ensure that the position of children is protected in so far as is humanly possible.

The Earl of Onslow: Before my noble friend withdraws the amendment, perhaps I may ask my noble and learned friend the Lord Chancellor one question to clear my mind. Am I right in saying that the Children Act applies absolutely to any divorce proceedings that will take place if the Bill goes through? If that is the case, surely it is unnecessary to put any extra provision into the Bill. If what my noble friend Lady Elles wants does happen--as, I am sure, we all hope--it is surely not necessary to put the provision down twice.

The Lord Chancellor: The Children Act applies where a court has to consider questions of residence or contact in respect of children. This is the sort of situation in which those questions arise. The Bill will require the court to consider the arrangements for the children. If the court then considers that an order under the Children Act should be made it has power to enable that to happen and then the principles of the Children Act will apply.

Baroness Elles: Perhaps I may conclude. It is correct to say that contact and residence provisions are contained in the Children Act. The proposed amendment does not include only residence and contact, but other matters as well.

In the circumstances, I beg leave to withdraw the amendment. Perhaps we can consider the issue between now and Report stage.

Amendment, by leave, withdrawn.

[Amendment No. 158B not moved.]

Clause 17 [Time when proceedings for divorce or separation begin]:

[Amendment No. 159 not moved.]

The Lord Chancellor moved Amendment No. 160:

Page 9, line 27, leave out ("or").

The noble and learned Lord said: I beg to move Amendment No. 160 and speak to Amendment No. 161.

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These are drafting amendments. The word "or" at the end of Clause 17(3)(a) should not be there. A provision to the effect that marital proceedings are both divorce proceedings and separation proceedings at a time when no application for an order has been made was erroneously omitted from the final print of the Bill.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 161:

Page 9, line 29, at end insert--
("( ) Marital proceedings are to be treated as being both divorce proceedings and separation proceedings at any time before an application for a divorce order or for a separation order is made by reference to the statement.").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Intestacy: effect of separation]:

On Question, Whether Clause 18 shall stand part of the Bill?

Lord Simon of Glaisdale: I have a Motion that Clause 18 shall not stand part of the Bill, and for more than one reason I am glad to be associated in this with the noble and learned Lord, Lord Archer.

Clause 18 disapplies part of the ordinary law of intestacy in the case of a separation order. By the normal law of intestacy, going back a long way, a widow enjoys a substantial right; in other words, there is a bias of the law in favour of marriage. Under this provision that right is no longer to be enjoyed after a separation order, notwithstanding that the parties remain married.

When we discussed separation orders on Amendment No. 2, my noble and learned friend confirmed that part of the purpose was to allow a spouse who had a conscientious objection to divorce to seek a separation order instead, in order to keep the marriage alive, if only because while the marriage is alive there is still a chance of a reconciliation. However, after a divorce there is little chance of it.

What the Bill does repeatedly, as it does here, is nevertheless to show a bias in favour of divorce and against separation. The noble Lord, Lord Mishcon, identified the first bias that we examined in Amendment No. 5 and there have been several instances since then. However, this is the most glaring. Why should a spouse who conscientiously prefers a separation order be penalised as to intestacy? The Bill is really saying: "You may take a certain course from conscience, but you must not think that you will enjoy the ordinary financial advantages accruing from that. We will larn you to be a toad".

As I understand it, the provision reproduces the effect of Section 18(2) of the 1973 Act. Perhaps, when he replies, my noble and learned friend will say whether that is right. The provision in the 1973 Act is repealed in the repeals schedule, Schedule 10 to the Bill. That is presumably why we have Clause 18. However, the 1973 Act itself replaced Section 40(1) of the Matrimonial Proceedings and Property Act 1970, which itself replaced Section 20(3) of the Matrimonial Causes Act

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1965. I shall be corrected if I am wrong, but in other words the provision goes back no further than the 1965 Act.

I see no reason why we should attach any particular value to a statutory provision in a matrimonial statute of the swinging 1960s, particularly when it is contrary to the ordinary law of intestacy. By that law, if a marriage subsists the surviving spouse enjoys special rights on the intestacy. I oppose Clause 18.

6.30 p.m.

Lord Archer of Sandwell: In the course of our debates on the Bill, to my regret I have not invariably found myself in agreement with the noble and learned Lord, Lord Simon. On this occasion I can intervene with a confidence born of the fact that he and I are indeed in agreement. It would be presumptuous on my part to seek to clarify or embellish the case which he expressed so clearly and with such erudition.

In the course of one of our earlier debates there was a question as to what were the effects of a judicial separation. Clearly one such effect is that the marriage remains in existence. One of the reasons for retaining that option may be that one of the partners at least wishes to retain the rights and claims which are normally associated with marriage. If one partner enters into a new relationship and wishes to provide for the new partner or the children of the new relationship, he or she--and normally it will be he--can do so by making a will. If he neglects to do so, then a simple respect for the institution of marriage would seem to indicate that the normal consequences would follow. Certainly there is no obvious reason why the other partner should lose his or her rights under the marriage.

I simply add that this anxiety is, to my knowledge, shared by the Law Society. No doubt the noble and learned Lord will tell us the reasoning behind the clause, but I am bound to say that it is not self-evident.

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