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Lord Meston: My Lords, I do not pretend to know whether the retention of fault as a basis for divorce will provide any effective control over the increase in divorce. I do not believe that these amendments will strengthen marriage. I do not believe that this Bill will make divorce easy. The great advantage of the procedures under this Bill is that the parties are to be formally confronted with the practical and emotional realities of what they are thinking of doing.

The noble Baroness, Lady Young, did not tell us what she wanted to happen in practice. Her amendment properly requires the court to be satisfied of the relevant fault or faults, but to what standard is the fault to be proved? The amendment simply says that the party making the statement should satisfy the court of the particular fault. Fault-based divorce, as it presently operates and as it operated under the modern legislation before the special procedure, requires a fairly minimal standard of proof.

If I were truly supporting the pecuniary interest of my profession I would have supported the noble Baroness in her disapproval of the special procedure. When work

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was thin, there was nothing better than going off to court with an armful of briefs for undefended divorces. It was a serious blow in 1977, not just to my pocket, when the special procedure was introduced, but that did not make the procedure that operated before any more dignified than the present procedure. The fact is that fault-based divorce, undefended by the other party, is largely untested by the court. Corroboration is not required, and it is only defective or weak divorce petitions which are held up or rejected.

So what procedure is going to be required? Reference has been made by the noble Lord, Lord Burnham, to the old days of hotel evidence which supplemented the income of private detectives and hotel chambermaids. I do not know what is envisaged, but I suggest that it is important that we should understand what procedures are going to be in place; otherwise we do not improve in any way on the present procedure.

One also has to bear in mind that what is proposed in this amendment is an alternative to consensual divorce. These are not going to be divorces in which the other party has agreed that the marriage has come to an end or agreed to a divorce after one year. So it may well be defended. There is nothing more inflammatory or acrimonious than a defended divorce, but facilities there will have to be for the recipient of a divorce petition to defend, which may involve legal aid and certainly will involve valuable court time. Under the present regime legal aid is seldom granted when it is not in issue that the marriage has irretrievably broken down.

I say to the noble Lord, Lord Ashbourne, that it is wrong to suggest that under this Bill we are introducing "no reason" divorce. The reason for divorce under this Bill, as under the present law, is that the marriage has broken down and that that breakdown is established to have been irretrievable.

I suggest that fault-based divorce, even under the present law, generates a great deal of heat (or it can do) but not a lot of light. It seldom illuminates the true cause of the breakdown of the marriage. Even adultery, which is so seldom the sole cause of the end of a marriage, is accurately reflected in this way. As one judge very wisely observed a long time ago, it takes three to commit adultery.

The right reverend Prelate the Bishop of Oxford referred to the realities of the modern behaviour petition. It is a trick of the trade, if I may so describe it, to plead a behaviour petition in such a way that it says just enough to get past the eye of the judge but not so much that it provokes the other party into defending. I cannot help thinking that that practice may continue.

Finally, perhaps I may reinforce very strongly the observations of the noble Lord, Lord Habgood, about the five-year requirement, which is to be preserved under this amendment. As I ventured to say at, I believe, Committee stage, there is perhaps nothing more unhappy than a five-year separation-based divorce. It causes enormous resentment and unhappiness if the parties are required to put their personal lives, and often their financial lives, on hold for five years, and the children truly suffer. Therefore, I ask your Lordships

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to think hard about the practical consequences of these amendments which, I suggest, need to be addressed. In the circumstances I would not support these amendments.

6.45 p.m.

Baroness Elles: My Lords, I was very moved by much of what the noble Lord, Lord Habgood, said and I agree with much of it. I would just like to question the problem that he raised as regards statistics. The Australian, Canadian and American statistics show where no-fault divorce was brought in that there was a slight increase in the number of divorces because of the backlog. That is understandable. I believe that the noble Lord and the House know how dangerous statistics are. What he did not reveal is this.

In the graph that I saw the number of divorces went up by a certain amount but what collapsed was the number of marriages. The graph came straight down. That can certainly be ascribed to the way in which people will view marriage when there is no-fault divorce. I know that we are using the phrase "no-fault divorce", but it is the fact of making divorce easier. It is not a question of what one is putting into the Bill at the moment; it is whether one is making it easier for people who do not want to stay with each other any more or even as regards one of the parties. That is one of the fundamental faults of the Bill. My noble and learned friend knows my views, so I am not expressing anything new to him.

First, the fact is that, whereas the weight shifted from the wife to the husband if the husband had gone away, it is now the other way round. The person who is left at home is in the weaker position. I speak as a woman in this case. It is usually the woman who is left, often literally holding the baby, at home while the man goes off to have his affairs. There is no way in which she can defend herself under the Bill because although he or she may go to an information meeting and make a statement, there is no obligation on either party to go to mediation and, as the Bill stands, at the end of the year the husband can apply for his divorce.

I know about the provisions of Clause 9 and the new amendment which my noble and learned friend has tabled, but, as the Bill stands, it has shifted the weight of responsibility for keeping the marriage together from the person who wants to stay in the home and in the marriage to someone who wants to be completely free to do as he likes. I accept that that party could be the woman. In the case outlined by the right reverend Prelate the Bishop of Oxford, it was the wife who wanted the divorce. This Bill allows the weight of responsibility for the marriage tie to be shifted.

Secondly, those who think that the Bill will remove acrimony are, frankly, living in a fool's paradise. Anybody who knows a couple who have divorced--whether or not there are children of the marriage--knows that the acrimony goes on and on and on. I know that there are many solid arguments for removing the concept of fault because of the case going through the courts, but feeling that one can discuss fault releases

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certain of the pressures of human life. We are talking about relationships between human beings, not about the effect of the law on individuals.

Thirdly and finally, although I know that making divorce easier is not the wish or the objective of my noble and learned friend, the fact is that in the minds of the public the Bill makes divorce both easier and quicker to obtain than is the case with the courts at the moment. That brings an insecurity to the status of marriage, and, as has happened in other countries which have introduced no-fault divorces, that will undoubtedly increase not necessarily the number of divorces, but the number of cohabitations and of illegitimate children because marriage will no longer be respected and afforded a fundamental status in our society.

Lord Jakobovits: My Lords, I should like to salute and to express my admiration for the noble Baroness, Lady Young, for what I can only term her moral leadership in this debate. As she has said, the signal that she wishes to send out is nowhere more clear than in this amendment. I beg humbly to support it.

I have just returned from a three-week lecture tour of the United States, travelling from coast to coast and visiting some half-dozen communities. Although I had very little time to spare for browsing through the newspapers, I saw enough, east and west, to give substance to the comment made here that many states in the United States are now searching for ways to repeal their earlier shift towards the abolition of the fault clauses and are seeking to reintroduce them. I saw that both in reports and in leading articles in a number of newspapers. I can testify to that evidence from the United States as of the day before yesterday when I was still there.

I find myself in the somewhat invidious position, having listened especially to my dear friends both the right reverend Prelate the Bishop of Oxford, and to the former Archbishop, in being on the other side in a peculiar way. After all, they belong to a tradition which until not so very recently objected to divorce altogether on the New Testament grounds,

    "Those whom God hath joined together let no man put asunder".

That is a conviction which we Jews have never shared. For us, in a way divorce was the easiest thing in the world. If the two parties agreed that the marriage was incompatible, they could easily be divorced, yet divorces were exceedingly rare in Jewish society. What made them rare? Above all, it was the stigma attaching to them. Divorce was unsocial. It went against the current and against the grain for people to get divorced and to expose their children to all the consequences of divorce; hence until very recent times, divorces virtually did not happen.

I have listened to the debate with intense interest and have heard noble Lords searching for the reasons that have caused the divorce rate to rise so spectacularly to its present alarming proportions. I think that the simple and primary reason is the abolition of every form of stigma. There is no sense of shame. There is no sense of reserve. A society cannot maintain values without attaching some form of stigma to their violation. Therefore, I think that the amendment, even if only

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symbolically, restores a sense of stigma by introducing into divorce a concept of fault which might well go a long way towards at least stopping the present rise in divorce, especially at the moment when it affects both the highest and the ordinary. Divorce has become so commonplace that we no longer even feel the damage that is done to ourselves, to our children and to society in general.

Therefore, I think that this amendment--there are others, but notably this amendment--may help to restore that sense of shudder before one enters into a divorce. People should think twice and feel that they owe something, if not to themselves or their partner, at least to their children, to society and perhaps even to the moral law. One should not easily enter into the breaking of the most solemn commitment that one can ever expect to enter in one's lifetime.

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