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Lord Archer of Sandwell: My Lords--

Lord Elton: My Lords, perhaps I might have a four penn'orth run. The noble Lord, Lord Robertson of Oakridge--

Lord Stoddart of Swindon: My Lords, if the spokesman on the Front Bench is to conclude, it is probably the turn of our side of the House to speak, is it not? Someone from the noble Lord's side spoke last.

Lord Elton: My Lords, as the noble Lord is accustomed to being on his feet, I shall leave him there.

Lord Stoddart of Swindon: My Lords, I only wish to speak briefly. I wish to support the amendment put down by the noble and learned Lord the Lord Chancellor in response to that of my noble friend Lord Stallard tabled at Committee stage. I support the noble and learned Lord's amendment because it makes absolutely clear that,


That is an important sentence. It will establish that all of us here--if we pass the amendment--support the institution of marriage. That means that we want it to be continued and strengthened in so far as that is possible.

The measure also, in my view, strengthens the position in relation to children. In my view, in the original Bill the position of children was forgotten. They were the forgotten part of marriage and the forgotten part of divorce. This amendment is important. It establishes the principles upon which we shall continue our discussions. I can only hope that the message that will go out from this House--we talked about messages at Committee stage--will be that we support marriage per se. I hope, in the light of this amendment, that as we go through the Bill the sentiments expressed in it will not be negated by the refusal of the noble and learned Lord the Lord Chancellor and others to accept what some of us consider extremely good and reasonable amendments which will improve the Bill no end, and strengthen the message we are sending out in Amendment No. 1.

Lord Elton: My Lords, the noble Lord, Lord Robertson, raised an issue--that was also raised by my noble friend Lord Coleraine--relating to children. The noble Lord, Lord Robertson, rightly said that the damage which is done to children by divorce is cumulative, but that arrangements can be made before the divorce to minimise that. It is relevant to this amendment and to later amendments to recall that Clause 2(1)(c) contains a requirement that an order may not be made unless,


    "the requirements of section 8 about the parties' arrangements for the future are satisfied".
Section 8(3)--or rather Clause 8(3), as it now is--contains a requirement that,


    "The requirements of section 41 of the 1973 Act ... must have been satisfied".

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These place a duty on the court to consider whether there are children of the family and, if there are, the arrangements to be made for them. Nothing can happen until those arrangements have been made and the court has been satisfied. The court will remain bound by the requirements of Section 1 of the Children Act 1989, referred to by my noble friend Lord Coleraine, that when a court determines any question with respect to the upbringing of a child, or the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration. It seems to me that that paramountcy is already in the Bill and that many of your Lordships' concerns can be laid to rest.

Lord Archer of Sandwell: My Lords, I certainly would not presume to conclude any matter in your Lordships' House. Least of all would it ever be my wish to exclude the noble Lord, Lord Elton. I hope that he will forgive me if I do not follow him in the matters to which he has just adverted. I believe that the principle of Amendment No. 5 is something that your Lordships may wish to debate in rather more detail at a later stage. But what he said is something that I for one will then wish to address.

It is not every Bill that benefits from a general objects clause. I should like to see such a device used sparingly. But there are Bills that benefit in that way. As the noble and learned Lord, Lord Simon, reminded us, there are precedents for them. I believe that my noble friend Lord Irvine said at Committee stage that such a Bill had been introduced by the noble and learned Lord the Lord Chancellor himself, which became the Legal Aid Act 1988. I believe that this is such a Bill.

I am fortified in finding myself in respectful agreement with the noble and learned Lord, Lord Simon, and the noble Lord, Lord Renton. In addition to the guidance that those who have to implement these measures will find in this clause, there are two advantages that I regard as a bonus. First, it may help to dispel misunderstandings that have been disseminated about this Bill, sometimes somewhat irresponsibly, I suspect. It is common ground in your Lordships' House that we are anxious to support the family as an institution and to support marriage as an essential factor in that. We may differ as to whether particular policies are best calculated to bring that about. For example, I believe that the number of homeless people who can be seen on London's streets bear witness to some policies of the present Government which are less than supportive of the family, but we can agree that the support of marriage is an important objective of this Bill.

The second advantage was referred to in Committee by my noble friend Lord Stallard. I believe that we should emphasise in the statute the need for reconciliation procedures for those who are considering embarking on the divorce process. Here we have authority for the proposition that that is at least one of the objectives of the Bill, though I hope there will be more specific amendments that we may be able to debate at a later stage.

Referring to the amendments of the noble and learned Lord, Lord Simon, I hope he will forgive me for saying that, most unusually, I have the misfortune to differ

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from him. The reasons for that have already been ventilated by the noble Earl, Lord Russell, and other noble Lords. I will not presume to repeat them.

I should like to say one word about the comments of the noble Earl, Lord Coleraine.

Lord Hailsham of Saint Marylebone: My Lords, I believe the noble Lord is referring to my noble friend Lord Coleraine, not the noble Earl, Lord Coleraine.

Lord Archer of Sandwell: My Lords, far be it from me to question the authority of the noble and learned Lord on the procedures of your Lordships' House. Slips of the tongue fall from all of us sometimes but perhaps are not so readily picked up.

I welcome the noble Lord's reference to the purpose of minimising the cost of divorce proceedings. It does not mean that that should be the overall consideration. I believe that there are better uses for the money in upholding marriages before they reach the stage of divorce than in spending a great deal of money at the divorce stage. I am sure that the noble Lord will go some way to agree with that.

I am personally grateful to the noble and learned Lord the Lord Chancellor for showing that he listens to our debates and that, having listened, he reflects. As I understand it, that is the purpose of our procedures. I hope that some of his colleagues in government will seek to emulate him from time to time. It is even possible that when they do they will find that they enjoy it.

The Lord Chancellor: My Lords, I am grateful for the general welcome that my amendment has been given. I should like to address one or two of the issues that have been raised in connection with the amendments of my noble and learned friend Lord Simon of Glaisdale, and refer also to the remarks of the noble Lord, Lord Robertson, and my noble friend Lord Coleraine. I believe that we will come to the children aspect when Amendment No. 5 is moved by my noble and learned friend Lord Simon of Glaisdale.

Parliament, with great deliberation and care, put in place the Children Act 1989 to deal with disputes, and the like, connected with children, as well as intervention by local authorities, and so on, in families to help with the care of children. That was a very strong and clear statute which was put into effect after two years of careful preparation. I speak subject to the correction of those who day in, day out, work in these courts. From what I know of the matter--I have sought to take a close personal interest in it--my impression is that the Act has worked extremely well in providing a framework for deciding matters connected with the welfare and upbringing of children. Your Lordships will have in mind that it is under that framework that any disputes or matters connected with the welfare of children will ultimately be decided. I do not wish to damage that framework that has been carefully put in place by making changes which will apply only in respect of parties in a divorce situation. Of course, many of these considerations apply whether the parties are in a divorce

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situation or in a later or earlier situation. I will return to that in more detail when my noble and learned friend moves Amendment No. 5.

Amendment No. 2 is intended to spread the clause to the whole of the Bill. This is deliberate on my part. I am strongly of the view that Part III of the Bill deals with a somewhat different subject matter. For example, the importance of marriage is emphasised in that part. We have put into that part, which has been the subject of some consideration and doubt in some quarters, Clause 36. This clause ensures that courts will consider the situation as between married and unmarried people when they make use of powers under that particular part of the Bill.

If one looks at the provision in my clause with regard to saving marriages, I think it would be quite difficult to apply that appropriately in the case, for example, of violence between spouses in the matrimonial home. In that case, although the objective of saving the marriage is important, the immediate objective so far as concerns Part III of the Bill is to provide protection for the parties from that violence. I believe that these might be seen to be in conflict.

Amendments Nos. 3 and 4 are primarily drafting amendments. On Amendment No. 3 I prefer the phrase "may have broken down" to "is in crisis" because it fits in with the logic of the Bill that people only come to the court if their marriage has reached a stage that can reasonably be described as having broken down. There is then the progression--trying to save the marriage; seeing whether the marriage can be saved; and, if it cannot, the breakdown is irretrievable. That seems to me a logical, clear and intellectually satisfactory framework.

Amendment No. 4 inserts "is being dissolved". I have been provided with the draft on the basis of bringing the marriage to an end, it having irretrievably broken down. I think that that is a satisfactory draft.

I accept that after the breakdown of a marriage there are problems of the kind mentioned by the noble Lord, Lord Robertson, and others. However, paragraph (c)(i) makes the point that everything possible should be done to minimise the distress occasioned. Obviously, if one starts by some procedure which does not minimise but tends to exacerbate the distress, one is apt to do even more damage by reason of the resulting situation when one takes account of the factors to which the noble Lord referred. Therefore, this is a worthy objective. I believe that to some extent it is an attainable objective and should go in.

My noble friend Lord Coleraine mentioned cost. I respectfully suggest that the point made by the noble and learned Lord, Lord Archer of Sandwell, is good. It is often wasteful of money, particularly when costs are incurred unreasonably in connection with proceedings on the irretrievable breakdown of a marriage. I am sure that a number of your Lordships will have heard how difficult it is in the courts for judges sometimes to restrain the willingness of parties to litigate on matters which are almost beyond doubt, occasionally very much

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at their own expense. Often people seem to get into hot and costly disputes when ultimate payment is being made out of the resources available for the family.

My amendment proposes a worthy objective in itself. I hope that your Lordships will approve it as it stands and will not support Amendment No. 2 which we are presently discussing.

4.15 p.m.

Lord Simon of Glaisdale: My Lords, I am most grateful to all noble Lords who have contributed to the debate and to my noble and learned friend for giving advance notice of his thinking on Amendment No. 5. I have already expressed my thanks to the noble Lord, Lord Renton.

Some points have not been answered; I shall come to those in a moment. First, perhaps I may say that I agree entirely with the noble and learned Lord, Lord Archer, that anything in the way of minimising the cost and traumata of divorce is to be welcomed. It was no aim of any part of my amendment to deal with that part of the amendment of my noble and learned friend.

The main point which has not been referred to is the significance of the omission of any reference to Part III. Anyone reading the Act with this preliminary is bound to ask why those admirable principles are only applicable to Parts I and II.

Is not the institution of marriage intimately bound up with considerations as to domestic violence? Is an act of domestic violence, however necessary the intervention of the law, necessarily the end of a marriage? If the answer is no and there is a chance of repentance and reconciliation, then the omission of a reference to Part III can only be deplored.

The noble Lord, Lord Renton, says that the reference to marriage is irrelevant to Part III because it does not deal with divorce as do Parts I and II. But is the institution of marriage wholly bound up with the procedures for divorce? No doubt a lax divorce law, an unjust divorce law, can gravely damage the institution of marriage, as we have seen and has been admitted by the authors of the 1969 Act in the current White Paper.

I pass from that to the question of irretrievable breakdown. If we write in "irretrievable breakdown" at this stage we are anticipating the result of important amendments to be moved shortly by the noble Baroness, Lady Young, and others. Moreover, I do not for a moment admit that a marriage can be said to have irretrievably broken down when there is a young child. Important responsibilities still remain outstanding. Still less can I endorse a phrase that the noble Earl, Lord Russell, used in Committee--of the parties being locked in a loveless marriage. There can be very few marriages where there is a young child which can properly be described as loveless. I should have thought that there were practically none. Therefore it seems to me preferable at this stage to use the neutral terminology that I have suggested.

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However, your Lordships undoubtedly would not wish to come to a decision at this time. Before Third Reading, I should like to consider what has been said. In the meantime I beg leave to withdraw the amendment.

Amendment to Amendment No. 1, by leave, withdrawn.

4.20 p.m.


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