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The Lord Chancellor: Perhaps I may speak to the amendment tabled by the noble Lord, Lord Meston. It deals with the situation in which an application has been made to the court under Schedule 1(c), which is where the amendment takes effect. The paragraph reads:


the court is unable to make the order for lack of information.

The effect of the amendment would be to widen the scope of the exemption so that it will apply in all cases where a court is prevented from making an order in respect of the financial position of the parties for reasons beyond the control of the applicant, not simply where information is not available to the court. That part of Schedule 1 was intended to provide for specific circumstances whereby a party was unable to put before the court sufficient information to enable a decision to be made about financial matters. For example, that may occur where there is outstanding separate litigation

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relating to the ownership of land or, indeed, to personal injury damages. The total amount of the asset in question might be difficult to assess. Such matters would affect the assessment of the total value of the parties' assets, so a final decision for a division of assets may take some years.

I am very wary of extending the scope of the exemption provisions of Schedule 1 because, as I tried to explain earlier, they are fairly fundamental to my view that it is essential that parties face up to the responsibilities of the marriage before a divorce is granted. That is the explanation for the provisions. I do not believe that it is necessary to make such provision wider in the way suggested by the noble Lord.

So far as concerns forum shopping, one cannot completely obliterate that unless one makes provisions in this Bill which are the same as those in every other jurisdiction; but, as they are not all the same, it would be quite difficult to do so. Therefore, some element of forum shopping cannot be completely ruled out. Nevertheless, I believe that we have a reasonable provision in the way that we have approached the matter with the jurisdictional requirements of Clause 16.

I turn now to Amendment No. 193. I can tell the noble Earl that, again, I am reluctant to widen the scope of the second exemption under Schedule 1 so that it could be used in cases where the applicant has been unable to reach agreement due to,


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

If I have understood the amendment correctly, I believe that it would allow for the applicant to take advantage of the exemption, even where he or she was the perpetrator of the violence, because of the reference to the "other party". However, I am not sure whether that is necessarily what was in mind.

In any case, I do not believe that the scope of the exemptions under Schedule 1 should be widened. Making financial arrangements does not, by definition, imply or require mediation or any other face-to-face negotiation. Parties can be separately represented and make their arrangements through their legal representatives; that is, through arm's length negotiation for which purposes legal aid would be available to those who qualified. As I mentioned earlier in relation to mediation, where questions of violence are likely to arise as between the parties, mediation would hardly be a suitable forum.

Obviously, where a party suffered injury or ill-health as a result of domestic violence which prevented him or her from making arrangements, the second exemption under Schedule 1 would apply. I am relying on Part III to deal with situations of domestic violence. Indeed, we have made provision in that part for dealing with domestic violence during the currency of the divorce, as well as at other times. In that situation, I am not very willing to extend the exemption further. One of the reasons why it is so necessary to have Part III before

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one can go forward to a satisfactory divorce law of this kind is precisely the sort of situation mentioned by the noble Earl.

Lord Meston: I am grateful to the noble and learned Lord the Lord Chancellor for the clarification that he has provided on the first exemption in Schedule 1. It is correct to say that my amendment would have somewhat widened the scope of the exemption, but, I would suggest, not unduly so. However, I understand the anxiety of the noble and learned Lord not to widen the scope of the exemptions much beyond those contained in the Bill.

I certainly would not wish to interfere in any way with the jurisdictional provisions of the Bill which preserve the existing law. Indeed, in no sense would I have sought to do so by way of this amendment or by any other means. My anxiety in that regard is that the provisions of this Bill, when they become law, may mean that other countries would be tempted to accept jurisdiction in divorce cases which they otherwise would not have accepted. My anxiety as a practitioner is that parties should not be tempted, as it were, to shop outside this country. I should prefer them to shop in this country--a shop in which I am an assistant. However, I recognise that this amendment is perhaps an inadequate peg for the various comments I sought to make about the first exemption. It is something to be looked at closer at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

The Lord Chancellor moved Amendment No. 192:


Page 38, line 27, leave out first ("or").

The noble and learned Lord said: In moving Amendment No. 192, I wish to speak also to Amendment No. 194. These are drafting amendments to correct and clarify the parts of the clauses to which they refer. I beg to move.

On Question, amendment agreed to.

[Amendment No. 193 not moved.]

The Lord Chancellor moved Amendment No. 194:


Page 38, line 30, after ("agreement") insert ("with the other party").

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

On Question, amendment agreed to.

[Amendments Nos. 195 and 196 not moved.]

Schedule 1, as amended, agreed to.

Schedule 2 [Financial provision]:

The Lord Chancellor moved Amendment No. 197:


Page 40, leave out lines 41 to 43.

The noble and learned Lord said: In moving Amendment No. 197, I wish to speak also to Amendments Nos. 198, 200, 201, 202, 203, 204 and 205. These amendments are largely technical and are inserted by way of clarification. The intention is that

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the current law relating to financial provision on divorce should be amended by Schedule 2 only to the extent that is necessary as a result of the changes in the Bill to the law relating to divorce and judicial separation and no more. Amendments Nos. 197, 198, 200 and 202 clarify that there is no change in the existing law in relation to the number of periodical payments orders and lump sum orders which may be made in favour of each spouse. Amendment No. 202 clarifies that only one property adjustment order of the same type may be made in relation to the same spouse. Where a term in a financial provision order in favour of a spouse or child of the family is to begin earlier than the time when the order was made, Amendments Nos. 204 and 205 alter the earliest time by which the term can begin from the date when the statement of marital breakdown was made to the date when the statement was received by the court. This is in the interests of certainty and should avoid disputes as to the date when the statement was actually made. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 197A and 197B not moved.]

The Lord Chancellor moved Amendment No. 198:


Page 41, line 15, at end insert ("but may not make more than one periodical payments order, or more than one order for payment of a lump sum, in favour of the same party.").

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

On Question, amendment agreed to.

Lord Meston moved Amendment No. 199:


Page 41, line 18, after ("payments") insert ("or lump sum").

The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 206. Amendment No. 199 is designed to empower the court to order an interim lump sum at an interlocutory stage. I should tell the Committee that this is an amendment proposed by the Family Law Bar Association to address a gap in the existing jurisdiction. If the litigation or negotiations become protracted, parties may need more than just interim maintenance as the present law provides. They may need capital to continue to fund their lawyers or expert witnesses. They may require capital to purchase a house, or to put down a deposit. Some other need may unexpectedly arise for which they are unwilling or unable to borrow.

If the power is to be given to the court, it is clearly a power to be exercised with some caution in case it distorts the ability of the court to deal fairly with matters at a final disposal of the case. Nevertheless, it is a useful power, and I hope that the opportunity will be taken to add it to the legislative armoury.

Amendment No. 206 seeks to introduce two recommendations of the original Law Commission report which were omitted from the Bill. The first limb of the amendment provides for variation of settlement of property orders. Paragraph 6.3 of the Law Commission report includes the following passage:


    "Experience has shown that settlement of property orders are usually made at a time in the lives of spouses and their children when it is extremely difficult to predict events which may occur and needs which may arise some ten to fifteen years ahead. This has

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    been particularly so with the 'Mesher' type order, where the house is settled upon the parties in fixed shares, but not to be sold until, for example, the youngest child reaches a certain age or the mother re-marries. Such an order cannot be varied even though the shares were fixed on the assumption that, for example, one party would continue to pay mortgage instalments or make periodical payments, which in fact he or she has not done".

Amendment No. 206 is borrowed with gratitude, but with some modification, from the Law Commission. It provides for the power to be exercised in closely defined circumstances which appear on the face of the amendment. It provides that the power of the court shall be exercised if it appears that,


    "a fundamental assumption underlying the making of the original order has become falsified due to supervening circumstances outside the control of the parties; or ... one of the parties has failed to comply with his or her obligations under the order and in consequence it is unjust for the order to remain in effect; or ... the order was made on the basis that any children of the family would reside with one party to the marriage and some or all of them are in fact residing with the other or elsewhere or have died".

The other limitation on the face of the amendment is that the court shall not exercise its power unless it appears that the interest of a third party will not be prejudiced.

Secondly, the amendment provides for there to be a power to commute an existing maintenance order by means of a capital order even if there has already been a previous capital adjustment. Considering the powers of the court when varying financial provision orders, the Law Commission stated at paragraph 6.9 that,


    "it could not escape our attention that the exercise of the court's power to substitute a 'clean break' for a continuing maintenance obligation was unduly hampered by the fact that the court cannot make a property transfer or a lump sum order at that stage".

The report described the particular difficulties which were manifested in one reported case, where the court was unable directly to order the husband to pay a sufficient lump sum to compensate the wife for loss of future periodical payments even though he could well have afforded it. The problem is that, although an arrangement can be brought about by an agreement between the parties, if the payer will not agree, the court cannot order it. That is another gap in the law which is well known to practitioners and which hampers the clean break and limits the flexibility of the court. The wording of this part of the amendment is again borrowed from the Law Commission proposals. I beg to move.


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