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Noble Lords: Which amendments?

Baroness Young: My Lords, I speak also to Amendments Nos. 12 and 13. We are not in favour of a quickie divorce. The amendment does not suggest that. Indeed, were it to be incorporated into the Bill, the one-year period would still remain, and therefore the question of the quickie divorce would not arise. Like all the amendments which we have tabled, this amendment is intended to buttress marriage. It is with dismay that I feel that I have to raise this point in your Lordships' House. The amendment is intended to buttress marriage by keeping, and not undermining, something which I regard as extremely important; namely, the moral basis of the law.

I believe that the concept of no fault divorce sends out a bad signal to the young. It is my personal belief--strengthened by literally hundreds of letters and phone calls I have received--that there are many people today who are looking for ideals. We know about ideals. Speaking for myself, I have them but I fail to live up to them. We all do that. However, not to have an ideal at all means that there is no light on the hill; there is nothing to look up to; and we are taking a completely pragmatic approach to difficulties. I, for one, am not prepared to settle for what I regard as very much a second best option. I hope, therefore, that the House will feel able to support me in what I regard as one of the most important issues arising from this Bill. I beg to move.

Lord Stoddart of Swindon: My Lords, in supporting the amendments I should like to express my appreciation of the part played by the noble Baroness, Lady Young,

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in relation to the Bill. Her commitment throughout to stable marriage has been a wonderful beacon for us to follow. Her leadership during the passage of the Bill so far has been superb. She has spent a great deal of time on it, and I should like to thank her for that leadership.

I have said before, and I repeat, that no-fault divorce is the wrong message to send. There is no question in my mind that it will undermine marriage. It undermines the marriage contract and will encourage cheating, disloyalty and bad behaviour in marriage. There is no doubt about that. I feel quite sure that noble Lords will understand that. Furthermore, the institution of marriage itself will be devalued. It will become meaningless, because there will be no responsibility attached to it. Under this Bill that marriage can be terminated by one party with no reason being given and with no sanction for breaking the marriage contract.

No-fault divorce is bound to increase the divorce rate. We are sliding towards disaster, as we have done so many times with other Bills. We do not seem to understand exactly what will be the result of what is proposed in this Bill. In this country we have a divorce rate which is already the highest in Europe. We were told that the 1969 Act would lead to a slowing down in divorce. Instead, it led to a galloping divorce rate. I fear that this Bill will exacerbate that position further.

The noble Baroness, Lady Young, mentioned the position in the United States, where they abolished no-fault divorce. Apparently, in 1969 there was a Happy Divorce Movement. Whoever could have believed that divorce was ever happy? In 1969 that Happy Divorce Movement in California claimed that no-fault divorce would save marriages, exactly as is being claimed now. Instead, as the noble Baroness pointed out, in the United States there is divorce on demand. That has particularly hurt the interests of women, particularly those who gave priority to a home-making and child-rearing role and to the children themselves.

As the noble Baroness also pointed out--but it bears repeating--the United States is now reversing no-fault divorce because it has been a social disaster. Having experienced it for a period of 30 years the Americans are moving in the opposite direction from ourselves. As we have heard, nine states are already legislating or proposing legislation to bring back fault. It is crazy that at a time when the United States, which has experienced no-fault divorce, is going back to the principle of fault we should now embark on an experiment which has failed there. It is absurd.

I was a great admirer of Aneurin Bevan. He had many good and apt phrases. One was that you do not have to look into the crystal ball when you can read the open book. The book is there for us to read--in the experience of the United States and Australia. I hope that this House will heed the message from the United States that no-fault divorce has failed. The Americans want to go backwards. We are told we must go forwards to no-fault divorce. Let us not go forward, those of us who are in favour of marriage.

I appeal to my noble friends, because this is such an important issue. It touches on so many social issues as well as on personal relationships and marriage itself.

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I understand from a reading of the press that my noble friends on the Front Bench made a pact with the Government to help push the Bill through. I hope that that is not the case. I believe that it is a mistaken policy. I remind my noble friends that they gave the same green light to the Child Support Bill, which some of us spent day after day, night after night, opposing in this House because we knew that it was not the right Bill for the circumstances which were supposed to be resolved by the Bill. The noble Earl, Lord Russell, was one of those who, in the watches of the night, tried to warn the Government that that was yet another poll tax disaster. And so it proved.

5.45 p.m.

Earl Russell: My Lords, I am most grateful to the noble Lord for those remarks. However, I speak and vote for what I believe in.

Lord Graham of Edmonton: My Lords, I take this opportunity to rise and say that there is no foundation whatever in the insinuation made by my noble friend. The fact that the allegations appeared in the press may have given some credence to them. He said that he understood that a pact had been reached between the Government and the Opposition in order to get the Bill through. That is not the case.

Baroness Trumpington: My Lords, I understand that on this amendment there is a free vote on the basis of conscience.

Lord Stoddart of Swindon: My Lords, I thank my noble friend Lord Graham for that assurance. I am sincere about that. I am very glad that no pact has been agreed between the Front Benches on this issue and that there will be a free vote on both sides of the House. I am most obliged for that.

Therefore, in conclusion I hope that noble Lords will vote according to their consciences. I believe that if they do so, the amendment will be passed.

Lord Ashbourne: My Lords, the purpose of the amendments is to introduce fault into the Bill, as my noble friend Lady Young argued so cogently. The amendments would ensure that one could not get divorced without fault--or without reason, as I prefer to call it. "No reason" seems to be more explicit and accurate than the "no-fault" label that we seem to be using.

Thus the amendments would ensure that one could not get divorced without reason. As marriage involves the most important and solemn contract a man or woman ever enters into, does it not seem surprising that it can be abrogated for no reason? As the Bill stands, unilateral divorce on demand is available after one year, and the innocent party has no protection whatsoever, which can only lead to more injustice in divorce settlements. Notions of right or wrong are already rarely considered where a court decides the division of property and the custody, or residence (as it is now called), of the children. Abolishing fault or reason simply affirms that practice and denies marital responsibility. No fault, or no reason, divorce sends out

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a series of signals; namely, that marriage is only a temporary relationship and that fidelity in marriage is of no consequence. It signals that adultery does not matter; and I remind the House that that is the only scriptural reason for divorce. It signals that behaviour does not matter. It signals that desertion does not matter. In short, no one is responsible and no one is accountable.

The noble and learned Lord on the Woolsack reminded us at Second Reading that marriage is a divine institution, but Christian ethos and doctrine teach us that we are responsible for our behaviour and we are accountable for our actions both to our creator and to our fellow human beings.

These are reasonable and just amendments, and I commend them to the House.

Lord Habgood: My Lords, I entirely sympathise with those who have spoken hitherto about their desire to stem the tide of divorce. I cannot imagine that there is anyone in this House who does not have that aim. I also accept that there is an element of injustice in someone being divorced against their will; and I take that as the main point underlying the amendment.

However, I firmly believe that if the amendment were passed, it would create equally great injustices and cannot achieve its main aim; namely, of decreasing the number of divorces. But because the issues raised by it are fundamental to the Bill, I hope that I may be allowed to take the discussion back a little to first principles. I speak as an individual, although I speak from the position that was very firmly and fully agreed by the Church of England. Although the noble Baroness in her opening speech quoted the right reverend Prelate the Bishop of Chester, he was speaking as an individual; he was not speaking for the Church of England.

I much regret having missed the Committee stage when I was convalescing from an operation. However, during my convalescence I read the whole account of the Committee stage and was much revived by it. I was impressed by the depth and quality of the discussion in your Lordships' House. But I noted that throughout that immensely long discussion there was scarcely any mention of why marriages break down. There was the frequently expressed anxiety that any change would simply increase the divorce rate. That point has been made very firmly by two speakers this afternoon.

It is perfectly true that any change in the divorce law may release a backlog of those who have not been eligible for divorce because of the technicalities of the existing law. But if one looks at the underlying graph of the rise in the number of divorces, it is difficult to tell where specific legislation was passed because the curve is a smooth one. It is quite clear that the rise in divorce has been due more to social and cultural factors than to particular pieces of legislation.

There was a high rate of divorce after both world wars for the obvious reasons that many people at those stages entered into unwise and hurried marriages. The start of the present steep rise in numbers began before the 1969 Act and continued smoothly up through it. There was a blip upwards for a short time at that point because 40

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per cent. of the new divorces in the years immediately following the 1969 Act were those who had been separated for five years or more, with 24 per cent. being those who had been separated for only two years.

The rise after the 1937 Act was largely among those whose marriages were long standing. That is because at that stage the new cause of desertion came in, and one was dealing with couples who were separated anyway. The separation was now legalised through divorce.

I was reading some statistics this morning of the effect of no-fault divorce law in Australia, New Zealand and America. I do not recognise what has been said in the debate so far from what I read this morning. I know that one can prove anything from statistics--and clearly people are trying to prove anything from statistics. However, from what I read--and those involved spoke from positions of responsibility and knowledge in those countries--although the introduction of no-fault divorce law had created a blip, the numbers have since fallen. Since the introduction of the new law, the divorce rates have remained steady and in some cases were falling. I would wish to know what had been happening in those states in the USA to which the noble Lord, Lord Stoddart, referred. They may have a quite different form of divorce. They may have a year's gap or mediation. If we are going to argue from statistics, we need to know a good deal more about them.

Why has there been this underlying rise? I wish to suggest three perfectly familiar reasons. One is the increasing financial independence of women. That first became obvious after the 1923 Act when the proportion of divorces initiated by women rose to some 50 per cent. or 60 per cent. That high rate of women petitioners has continued to this day. The fact of independence makes the thought of divorce easier. It also diminishes the scope for passing restrictive legislation. If we insist on legislation which requires couples to stay together for, say, a minimum of five years, what will happen is that they will separate anyway. The vast majority of those divorces are through desertion. Couples have separated and consider divorce after the fact of separation. But if they are simply kept waiting for five years without the benefit of the kind of help which this Bill could bring them, then none of the issues will be resolved.

The amendment would not stop that desertion. It would not stop couples separating. But it could encourage a long period of conflict, frustration and recrimination. It could encourage vindictiveness in those who felt that they had been wronged and were jolly well going to punish those who had deserted them.

A second underlying factor for the rise in divorce has been the massive cultural change in our society during this century. I shall refer to just one aspect, which I call the culture of immediacy. I refer to the shrinkage of space and time: what people want they want, immediately. We are all under pressure to make quick decisions. We know what is happening now, and in any part of the world; it is immediately in front of us. We are constantly oppressed by the importance of the present moment, the immediate desire, the ephemeral experience. That is not totally new. Carpe diem--seize the moment--goes back a long time. But what our

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culture has given us is fresh opportunities for seizing that moment and gratifying that desire. The moment seems to be everything.

Coupled with that are high expectations about personal gratification. We are developing a throw-away society in which people all too easily throw away ideas, values, responsibilities and commitments--and in which they throw away people. We are, alas, in a period of religious decline, when increasing religious burdens are placed on religion substitutes, not least on marriage, and the kind of intense personal relationships that popular culture would have us believe go with marriage and the emotional satisfactions that marriage should bring. Many marriages are simply not able to carry the emotional burden placed upon them.

How do we counter those pressures? Surely the Bill strikes at the right point by giving legal significance to the passage of time. It says, "Slow down. What is wrong is precisely that you do want everything immediately. Time itself is important". And time is important not just for what can be done in it--reflection, negotiation, mediation and all those things, although they are important. Time is important also as a public assertion that marriages are not easily undone. I am afraid that those who talk about this as though anyone could just walk into a shop and get a divorce immediately misrepresent the whole basis of the Bill, which was properly described by the Law Commission as "a process in time". To take time over something is to take a measure of responsibility. I liked the graffiti which said: "Time is God's way of keeping things from happening all at once". In a society that wants things all at once, to say to people that they can divorce only through time seems exactly right.

That is why, in relation to later amendments, I want to resist the notion of a shorter time for couples without children. That would undermine the main principle; namely, that the undoing of marriage itself, quite apart from children--although children are vitally important--is a serious business which takes time and reflection and requires the acceptance of responsibility for what is done.

The hardship bar is an important safeguard to try to ensure that time is used significantly. In particular, as I said at Second Reading, it provides an opportunity for couples to come to terms with fault where there has been clear injustice. It allows fault to take a proper place in the terms of any settlement.

But fault is also something with which a couple must come to terms between themselves. It is not so much a question of society at large pronouncing judgment on a couple, but of a couple coming to terms with what they have done to each other and what they might do to their children. That is precisely what can happen in mediation. Indeed, one intention in the mediation process is to give a controlled opportunity by which people can express their feelings about each other outside the context of solicitors' letters and court appearances, outside a judgmental, external context, by which to face each other, and so reach more considered decisions. It is far better that couples should be offered a context in which they can blame each other in the

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presence of someone who can help them to move beyond that than that they are locked into a period of five years of conflict and recrimination.

The Bill gives a couple the gift of time, and the help to use it. It gives them an opportunity to relate outside the pressures of having to maintain a marriage or prove that it has failed. It does not impose a single solution on different individuals, but enables them to discover the best solution for themselves in an unforced relationship. I cannot go along with those who dismiss that as an un-Christian betrayal of the ideals of marriage. It seems to me to express Christian ideals very precisely and properly.

I am conscious that I have taken up a lot of your Lordships' time. Very briefly, there is the issue of "divorce-mindedness". It is true that familiarity breeds acceptability. Divorce breeds divorce. Therefore in a society where there is a lot of divorce, one would expect a kind of exponential growth. All that is fed by the media and by soaps in the media. Will it be fed by the law?

What is vital is the way in which this Bill is presented or misrepresented. We are right to worry about how the Bill is perceived, and we need to be careful in our language when we describe it. The way in which it is handled by the courts when it comes into law will be crucial to public perceptions of it. I suggest that a few well-publicised applications of the hardship bar could work wonders on subsequent MORI polls.

The length of the process is also significant. I vigorously oppose any period of less than a year. I am sure that five years, as proposed in this amendment for some, is far too long. I hope therefore that the House will firmly reject these amendments.

6 p.m.

Lord Burnham: My Lords, I am very glad that my noble friend Lord Ashbourne used the word "reason" in relation to divorce. The word "fault" has become an emotional buzzword used, sadly, almost invariably to describe what is envisaged in the Bill and this amendment. There is always fault when a marriage fails. When a couple come down the aisle, having taken their vows one to the other, they will almost invariably be happy and looking forward to living together and making a success of their marriage. If that marriage fails there is fault on the part of one or the other, or both. It is always there. Therefore, to use the word "fault" in the context in which we use it today is entirely wrong. Within this House and so frequently within the media, it merely misleads.

The Bill does not use the word, and there are a number of reasons why this amendment should be rejected. Is it better to be married unhappily or divorce amicably after 12 months--particularly when there are children whose lives will be affected by the squabbling and disagreements between their parents? The noble Lord, Lord Stoddart, used the phrase, "happy divorce". It is indeed a grotesque concept. But is it not better to have a happy divorce than to have an unhappy marriage?

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This is not a no fault Bill. The Bill allows, and only allows, a couple to get divorced for what is described as--I am afraid I must use the phrase myself--no fault. But the guilty party, if guilty party there is (I am still using these wrong words) will suffer as a result of the property settlement that will take place under the Matrimonial Causes Act and to which reference will be made in the courts if the matter has to go to them for settlement. The party who has misbehaved--if that is the word--will come off the worse of the two.

But in this amendment, most importantly, there is a strong inducement to behave badly. If one is good one has to wait five years; if one misbehaves, one can get out of the marriage within a year. That looks to me like a return to the bad old days when there was the arranged adultery. The respondent was placed in a bedroom with a tart; from stories that I have heard no misbehaviour ever took place, but the plaintiff's detectives would burst in and find them in bed together and give evidence that adultery had taken place--or at least appeared to have taken place. Surely that cannot be what the proposers of the amendment wish. However, it looks to me as though that will happen if their amendment is accepted. Let us be realistic.


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