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Lord Coleraine: I understand that my noble and learned friend intends his reply to the noble and learned Lord, Lord Archer of Sandwell, to apply to the whole project and not just to the information-providing session. I am grateful to my noble and learned friend for the clarity with which he has answered my amendment and to other noble Lords who have spoken. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 60 shall stand part of the Bill?

Lord Simon of Glaisdale: I wanted to ask my noble and learned friend to say a word about the relationship of this Bill to Scotland. As I read it, the Bill applies to Scotland only in a very minor respect. In effect, therefore, unless Scottish law is altered to bring it into line with this Bill, there will be great differences in the jurisdictions. That sort of difference of matrimonial jurisdiction can be highly inconvenient, particularly when there is only a border separating the two legal systems. It leads immediately to forum shopping--in other words, to trying to acquire the best jurisdiction and the best form of suit for one's case. That is particularly a danger with this Bill because Clause 16(2)(b) allows one party, who will almost always be the party seeking the divorce, to acquire a jurisdiction for the purpose of this Bill by one year's habitual residence in England or Wales before the statement is filed. Therefore, nothing is easier than forum shopping under this Bill in relation to Scotland.

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The 1969 Bill was not extended to Scotland because the then Secretary of State for Scotland, Mr. William Ross, who later became a Member of your Lordships' House, would not have it at any price. He was in a minority in his Cabinet in being far from enamoured of the permissive society. That is why the Bill was not extended to Scotland. The 1969 Act was in effect extended subsequently, during the 1970s, by a Private Member's Bill, so it is now the law in Scotland as it is in England--and a highly unsatisfactory law it is, as the White Paper has shown.

Apart from that background, with which I should be grateful if my noble and learned friend could deal, I wonder whether he can specifically answer whether a system of quickie divorce obtains in Scotland. In this country it was the creation of the Lord Chancellor's Department and if that system obtains in Scotland, I imagine that it is by rules of court. If I am wrong, perhaps my noble and learned friend, with his vast knowledge, will correct me.

Apart from the question of the quickie divorce, which would be a reason, I suppose, for extending the Bill to Scotland as rapidly as possible along with all the other defects of the 1969 jurisdiction as set out in Chapter 2 of the White Paper, I should have thought that there is every reason why this Bill should extend to Scotland or why there should alternatively be a Scottish counterpart.

10.15 p.m.

The Lord Chancellor: As my noble and learned friend has explained, the Scottish divorce law has in recent times depended upon different provisions from those in England, although at present the statutory provisions are very similar. The history of the divorce law of Scotland and that of England and Wales has not been the same over the centuries. The way in which the law is used in Scotland is different; for example, a much smaller proportion of cases is based upon fault Scotland than in England and Wales.

Procedures in Scotland are somewhat different from those in England and Wales, but the essential difference between a fault-based divorce and a divorce that is not based on fault in relation to the times that one has to wait is reflected in the law of Scotland. The Bill is brought forward on the basis of consultation in the English jurisdiction. It is true of course that there are provisions for jurisdiction in Clause 16, which are the normal ones for this type of statute.

It may well be that in due course the Scottish people will wish to have a law along these lines or a different law. The two have not, as I said, marched together. I have no proposal to extend the Bill to Scotland. My responsibilities at the moment, as it happens, are in relation to England and Wales. There were minor matters with which my noble and learned friend was not concerned, but on the main subject matter it is not proposed to extend the Bill to Scotland. It will be for

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those concerned with the Scottish jurisdiction to consider in due course whether they want to follow along these lines.

Lord Simon of Glaisdale: I am much obliged to my noble and learned friend. Would he care to say something about the quickie divorce in Scotland?

The Lord Chancellor: I have sought to say that fault-based divorce is not used in Scotland in anything like the proportions in which it is used here. The procedures are somewhat different in Scotland, but they admit of a divorce being granted earlier on the fault base than on the non-fault base.

Clause 60 agreed to.

Schedule 1 [Arrangements for the Future]:

[Amendment No. 190 not moved.]

Lord Meston moved Amendment No. 191:


Page 38, line 16, leave out ("obtaining the information which it requires to determine") and insert ("making an order in respect of").

The noble Lord said: Schedule 1 contains the exemptions to the requirements in Clause 9 to have finalised the financial arrangements before a divorce order or a separation order. The first exemption depends upon a number of conditions being met. Under paragraph 1(b) the applicant must show that he or she has:


    "taken such steps as are reasonably practicable to try to reach agreement about the parties' financial arrangements".

Questions have been raised as to whether that will require disclosure of privileged correspondence to the court, which may preclude the same judge from dealing with the final financial hearing, if there is to be one.

Under paragraph 1(c)(i) the applicant must also show that the other party has been obstructive, or under paragraph 1(c)(ii):


    "for reasons which are beyond the control of the applicant, or of the other party, the court has been prevented from obtaining the information which it requires to determine the financial position of the parties".

It is not clear what paragraph 1(c)(ii) is aiming at. It seems to envisage a situation when neither party is at fault, but somehow the court has been prevented from obtaining necessary information. One can imagine situations where the applicant, or indeed the respondent, is prevented from obtaining information by the other spouse or by some uncooperative third party, but it is less easy to see what might prevent the court. I also question why the exemption is limited to the obtaining of information. Would it not be better to provide for any circumstance which would prevent the court from making an order? I give as an example lack of available court time to deal with the case within the period of one year provided under the Bill.

These provisions are potentially of considerable importance. The noble and learned Lord, Lord Simon, referred to forum shopping as between England and Scotland. Questions of broader international forum shopping need to be considered. Upon the progress of the divorce may well hinge the power to make financial provision. If a spouse is able to obtain a quicker divorce abroad, while under the English procedure at least one

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year must elapse, the inevitable consequence will be that without some amendment the English court will be disabled from dealing with the financial ramifications of the marriage breakdown. Other jurisdictions may be less willing to grant the equivalent of a stay if they learn that divorce in this country will take at least one year.

I do not seek to expedite the procedure whereby a year is required but it seems to me that these questions need to be addressed. Meanwhile, the purpose of this amendment is to probe a little further the thinking behind the first exemption in Schedule 1. I beg to move.

Earl Russell: In addition to supporting the amendment tabled by my noble friend Lord Meston, I wish to speak to Amendment No. 193 which stands in my name and is grouped with his amendment. It adds one more to the list of exemptions to the requirements under Clause 9. It adds the exemption:


    "where there is continuing violence, to the applicant, other party or child of the family".

Those are circumstances in which continued negotiation may be extremely difficult and sometimes unsafe. It is a principle on which I have already touched, that the physical safety of the parties should come first. I am sure that the noble and learned Lord will understand that sometimes it is crucial that women who are escaping continuing domestic violence should be in a place where their former partners cannot find them. Of course, if one is continually corresponding through a lawyer it is very difficult to keep one's whereabouts literally and strictly secret. If the exemption were not granted there could be a threat to the safety of the parties as a result.

Some time ago the noble and learned Lord kindly gave me a meeting on these issues. I hope that I shall receive a sympathetic response tonight. If he indicates that the amendment is not the most appropriate way of pursuing the matter, that is something to which I would listen. In the meantime, I do not beg to move any more than did the noble and learned Lord, Lord Simon, but I hope that the amendment will be considered with this group.


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