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Earl Russell: My Lords, the noble Lord, Lord Aldington, is a seasoned debater and recalled us to the real point at issue. What we are discussing is a situation where one party wants to be divorced and the other party does not. We have heard a great deal so far about the hardship and the suffering of being the party who is forced to divorce against their will. I do not disagree with any of that, but let us consider the alternative. The alternative is that the other party should be forced to be married against their will. To me, that appears not merely a hardship, but actually a contradiction in terms.

I have listened carefully to the noble Baroness, Lady Young, and to those who have spoken with her. They have relied heavily on the concept of marriage as a contract in which one may require performance. The noble Lord, Lord Moran, took the parallel of a car hire agreement. You can require strict performance of a car hire agreement because it does not matter in what spirit the job is done. If I owe a car hire firm £400 and I am thoroughly fed up about it and my lawyer says that I do not have a case, it does not matter whether I pay with a good will or a bad will. I can still pay.

However, marriage is not like that. It is something a great deal more than that. Marriage is an agreement to love and to cherish. You cannot do that simply in response to a legal requirement. If you are forced to be married where you cannot love or cherish, you have something which is very different indeed. It is recorded that a 17th century couple were so unhappily married that nothing but the power of religion could force them to live as man and wife. I do not think that that is what the right reverend Prelate the Bishop of Oxford means by "the power of religion", and it is not what I mean. Indeed in a more comfortable case, King James VI of Scotland, who was also King James I of England, and his queen were said to live as well together as a couple who do not converse can do.

I just do not see the point of preserving that sort of union. That is not for the preservation of marriage. I asked the noble Baroness, Lady Young, in Committee--I have not yet had an answer--whether the object of her amendment is to prevent divorce or to prevent separation. I do not see how we can prevent separation in unhappy marriages unless we attach a power of arrest to the marriage contract. But if we are

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to allow separation and not divorce, then we will have a steady increase in the number of people who are married to one person but living with another. I do not understand what that contributes to the preservation of marriage.

7 p.m.

Lord Simon of Glaisdale: My Lords,--

Lord Elton: My Lords,--

Lord Strathclyde: My Lords,--

Lord Simon of Glaisdale: My Lords,--

Noble Lords: Order, order!

Lord Strathclyde: My Lords, I know that the debate has run for one hour 35 minutes, and I know that a number of speakers still want to contribute. I wonder whether it might be in order for me to hope that their contributions will be relatively brief. I saw that the noble and learned Lord, Lord Simon of Glaisdale, was on his feet. Perhaps he should speak, then one of my Back-Benchers, then a noble Lord from the Cross-Benches and then I rather hope that the noble and learned Lord the Lord Chancellor will have a chance to wind up the debate.

Lord Harvington: My Lords, I believe that I am the only Member who has confessed that at 88 he is the child of a broken marriage. No one can help marriages breaking down, certainly not a babe as I was. I never saw my father. My mother and my aunt brought me up. I have missed so much in life through not having a father, so whenever I hear of anyone getting married I look to see whether the man will make a good father, and that there is a decent age gap between them. There was only two years between my wife and myself. We had the usual problems through doing things rather quickly.

The faith we have in the vow we took has always stood us in good stead. What we in the House should be trying to do, more than we are doing today, is to bring it home to everyone that it is the vow that counts. We make the vow, and we mean to keep it. People nowadays take vows, but they do not know what they are doing. We should be addressing ourselves to the philosophy and theology of marriage to make people realise that when they make a solemn vow before almighty God they will stay together:


    "for better for worse, for richer for poorer, in sickness and in health ... till death us do part",

they should try their best to keep that vow.

No one wishes to be downright cruel to anyone. The law is not beyond being able to devise some way to make things fair for any children and for each one of the partners. We stress too much the break-up of a marriage, and the Bill will tend to make marriages even shorter. It grieves me greatly that I should find myself to be not in accord with my noble and learned friend the

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Lord Chancellor, whom no one admires more than I do from my humble position as a once briefed, once called barrister of about 50 years.

Lord Simon of Glaisdale: My Lords, I apologise if I caused some confusion by rising to ask the noble Earl a question before he sat down. I caused confusion because other noble Lords were rising to speak at that moment, and I apologise to them. The noble Earl said that if we, in effect, deny divorce to someone who wants to be divorced, the parties will merely live separately, with the undesirable result that they will be living in an irregular union and possibly producing illegitimate children. That is precisely what has happened.

As we have loosened the ties of marriage and made divorce easier and easier, we have not reduced illegitimacy. As the rate of divorce has gone up, so the rate of marriage has gone down, so the rate of single parentage has gone up, so the rate of illegitimacy has gone up. For good measure, what has gone down is church-going in the established Churches. That is the first point I was going to put to the noble Earl.

The second relates to the argument about fault on both sides. In any break-up of a marriage, indeed in any subsistence of a marriage, there is likely to be fault on both sides, because on both sides there are human beings and not saints. However, it does not follow from that that it is a case of six of one and half a dozen of the other. My experience as a matrimonial judge is that in the overwhelming majority of cases there was a preponderance of fault on one side even if the other side was not completely blameless.

I have one final point. It has been put starkly that a good divorce is better than a bad marriage. Once again, that is looking at the problem as if the only two people concerned are husband and wife. It leaves out of account the children to whom the parents should have a sense of responsibility. If they do, the flame of passion of the early years of marriage may subside to form a warm glow of companionship and a sense of responsibility in the parents one to the other and both to their children.

As I have drawn upon personal experience, perhaps I may recall one of the things that made my parliamentary career delightful. It was in the small industrial town of Thornaby-on-Tees. An active supporter of mine was a widow in modest circumstances. She said to me, "Of course my husband and I used to quarrel from time to time like most married people, but we never went to sleep without having made it up".

We discussed the sense of responsibility of the husband and wife to each other and to the promises that they made much too readily. The truth is that she was sustained partly by what she felt to be right, partly by the fact that she had made promises which she ought to keep and mostly because the focal atmosphere in that place, which was predominantly but not exclusively that of the dissenting Churches, was strongly in favour of the maintenance of marriage and against its facile divorce at the first sign of real trouble in the marriage.

For those three reasons there is a great deal to be said for the noble Baroness's proposal. Some of the arguments that we have heard against it have been all

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too reminiscent of the facile optimism that we had during the 1969 debate. Happily, in respect of this Bill, nobody has committed the vulgarism that was then committed, of saying that it was a kiss-and-make-up Bill. But short of that, many of the speeches against the amendment tonight have given that impression.

Lord Elton: My Lords, I hope--

Noble Lords: The Lord Chancellor!

Lord Strathclyde: My Lords, I feel that I am interrupting this debate rather more than I should. I wonder whether my noble friend Lord Elton could speak and then the noble Lord, Lord Clifford of Chudleigh.

7.15 p.m.

Lord Elton: My Lords, in the light of that reception I shall be exceedingly brief. My noble friend Baroness Young said that law affects behaviour. The noble Lord, Lord Jakobovitz, nicely demonstrated that it is not secular but religious law which affects behaviour. If your Lordships believe that you will preserve real marriage by legislation you are mistaken. You may preserve marriages in which there is conflict.

In Committee and on Second Reading much was made about the Exeter Report, which stated that beyond doubt it was better to be in a bad marriage than a good divorce. That report was based on a survey of 476 children. However, the report of Amato and Keith, published in 1991, dealt with 13,000 children and came to precisely the opposite conclusion. I hope that your Lordships will bear that in mind. I have the quotations in front of me but I shall not delay the House by quoting them.

Five years is half the life experience of a 10 year-old child. I invite my noble friend Lady Young to consider half of her life and imagine how it must be for a child who is doing the same. A fortiori the noble and learned Lord, Lord Simon of Glaisdale, it must seem almost centuries for a child. It follows that the process of divorce, which is painful, should not be extended and that children should not be drawn into conflict. My noble friend's amendment is a recipe for promoting conflict by having fault proved in court. The children will become involved in that and will be damaged.

I dislike taking part in such debates, having myself suffered a divorce. I have always said that there is no such thing as an "unguilty" party in a divorce but that there are measures of guilt. I am pleased to say that that is reflected in the amendment to Section 25 of the previous Act. I hope that when voting your Lordships will remember the children, because you have an opportunity either to extend or to reduce their suffering.


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