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Lord Clifford of Chudleigh: My Lords, I see the time and I shall be as brief as possible. The noble Baroness, Lady Young, has argued in favour of the retention of fault in divorce proceedings in its present form. I believe that she has raised an important point which Parliament has not hitherto debated in full.

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We have heard what those in the Church have had to say and we know what many of us who were married in church said in front of God. In the civil register office the words are repeated, "I do solemnly declare". As that declaration is made civilly, I wonder how solemnly the parties make that oath in their own eyes and in the eyes of the law, and how binding and long term is that commitment, that contract. Are these commitments to be regarded as genuinely and sincerely entered into, or are they to be regarded as empty phrases uttered without sincerity or honesty? A breach of these undertakings can be regarded as a serious matter or as a matter of little importance.

If we wish to avoid the charge of encouraging dishonesty on the part of those who enter into the commitment of marriage we cannot but retain at least some notion of disapproval if these commitments are flagrantly dishonoured. That is the concept of fault, in effect. We have a responsibility to future generations. We must set an example. We will not achieve that by saying that the easiest way is the best. It is easy for us, most of whom enjoyed the benefit of having two married natural parents, to deny that to the next generation in a cavalier fashion by jettisoning any concepts of fault and responsibility.

No-fault divorce has led to a rise in the divorce rate. In many cases it has resulted in the alienation of one of the parents from the children. It has led to greater post-divorce poverty for one party, often for both. It has led to greater litigation on financial matters. Tragically, it has been linked with an increase in teenage suicides and teenage psychiatric admissions. Those are not the observations of some jaundiced Jeremiah. That information comes from a leading feminist writer, Mrs. Weitzman, in her book The Divorce Revolution, published in 1985. We have also heard similar sentiments expressed by Mrs. Hilary Clinton.

What is more, in Northern Ireland the same law applies as in England and Wales. Yet there is only one-quarter of the divorce rate. A court appearance is still required and there is no special procedure. Fault-based divorce can be and is being made to work in the Province and there is no clamour for change. A well-known commentator, Janet Daley, stated recently in the Daily Telegraph:


    "The reason that the State can require you to account for yourself when breaking up a marriage is precisely because you have made an undertaking not just to each other but to the rest of us as well".

She also stated that those who defend no fault say:


    "It will help to reduce recrimination and unpleasantness in the dissolving of marriages, as if recrimination--the casting of blame--was always a bad thing".

Your Lordships have heard many facts and statistics and therefore I shall complete what I have to say as quickly as possible--

Noble Lords: Hear, hear!

Lord Clifford of Chudleigh: My Lords, children are damaged by marital conflict, as no one would deny. The Exeter Family Study showed that and clearly stated that children are damaged by the splitting up of the family home rather than by people being unpleasant to one

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another while staying in one particular place. Abolishing fault denies the existence of marital responsibility. It empties the marital promises of any value. It demolishes justice by saying, in effect, "We don't care that you have gone back on your obligations". We do not wish to do that in any other area of the law, and we should not do so in our divorce law.

It is not the concept of fault which results in quickie divorces. It is the short time period in which they can be obtained. If we wish to eliminate quickie divorces, we should get rid of the quickie element. That is a matter of common logic. The introduction of a sacrosanct 12-month or 18-month period eliminates the danger of quickie divorces. The elimination of fault is irrelevant to the ending of quickie divorces. Fast infidelity is a quickie divorce. Infidelity to truth destroys dignity and destroys the divinity of marriage. I support the noble Baroness's amendment.

Lord Coleraine: My Lords--

Noble Lords: The Lord Chancellor.

Lord Coleraine: My Lords, I am in the hands of the House.

Noble Lords: The Lord Chancellor.

The Lord Chancellor: My Lords, we have had a full debate on these extremely important amendments which were moved so ably by my noble friend Lady Young. It is right for me to begin by saying that I believe that we share exactly the same objectives in relation to marriage. If we had our way, there would be no divorce at all, or no separations, because we must remember that there are separations and divorces. It is really when the household separates and the father and mother go their separate ways that damage is generally done to the children.

I started life at the Bar at a time in Scotland when divorce was based entirely on fault. I must say that those divorces based entirely on fault did absolutely nothing for the institution of marriage. I must make the point also that from time to time the Bill has been described as a no-fault Bill. That does no justice to these proposals.

I recognise--and I am sure everyone recognises--that there are situations in which the conduct of married people has relevance. That is particularly so in relation to the consequences of breakdown. The two principal areas where those matters are relevant are in relation to the distribution of property and the arrangements for children. I am grateful to the noble Lord, Lord Moran, for pointing out that I have made explicit the reference to conduct in relation to children as a result of your Lordships' discussions in Committee. But fundamental also to the distribution of property on divorce is the law that requires the court to take account of the conduct of the parties when it would be inequitable to disregard it.

When there is a divorce, those elements are affected by the conduct of the parties. There is no question of seeking to eliminate those elements from the provisions. But those are situations in which it is necessary to have regard to conduct for the purpose of doing justice between the parties.

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Here we are dealing with a question of what the ground should be on which the divorce order itself is made. There is no connection whatever between the grounds on which the order is made and whether or not conduct may be relevant to questions in connection with children or the distribution of property. A person may be divorced on the ground of unreasonable behaviour and that unreasonable behaviour may be of no significance at all in the context of property distribution. Equally, persons may be divorced on the ground of a five-year separation but conduct may still be relevant in relation to the distribution of their property.

In that connection, I wish to mention something that has been said about facing up to what has taken place in the marriage. I agree entirely that that is absolutely appropriate. Therefore, I was particularly interested in a joint statement issued this month by National Family Mediation and the Family Mediators Association which stated:


    "Mediation offers couples an opportunity to communicate face-to-face at a time of stress and discontinuity in their personal relationship. Mediators are accustomed to meeting couples at the most bitter point in the divorce process. It is rare that both partners agree to the marriage being ended, and they often disagree about the circumstances leading to the breakdown. As a result they feel highly, and often justifiably, resentful and critical of each other.


    The focus in mediation is on the future, and thus disputes are explored with the aim of reaching consensual agreements. Nevertheless, mediators recognise that these disputes are likely to be influenced and shaped by the past: hurts, wrongs and 'faults' often need to be addressed. A parting couple can rarely move on to reach carefully considered decisions without doing so. Mediation is unique in giving the partners a controlled opportunity to state the underlying issues of fault and blame to each other".

I believe that the words "to each other" are quite important. It goes on:


    "During mediation each partner can gain an understanding and appreciation of the other's feelings, anxieties and expectations".

The important matter that I wish to draw to your Lordships' attention is that under this amendment, fault, conduct, will be relevant for one purpose and one purpose only; that is, the length of time that must expire before the divorce is granted. If there is no fault and people have been living apart for five years with no allegations made against their conduct, they must wait for five years. They cannot remarry for five years if there is no fault. On the other hand, if you are at fault, you can remarry immediately. There is of course a year, but there is a year for everybody. But if the divorce is on the ground of separation, that involves a wait of one year plus five years, thus making six years.

What kind of message does that send? What kind of stigma does that attach to fault? It says that a person in fault can remarry immediately whereas the person who is without fault and has had to wait for five years cannot marry until that period has expired. If there is a way of devaluing fault and destroying the stigma which might attach to it, I cannot think of a better way than that.

It has been suggested that fault in some way has a restraining influence on the rise in divorce. We do not need to go to the United States or to propaganda issued on behalf of various groups within the United States because we can see what has happened here at home. Since 1972, the number of divorces relying on the

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grounds of two or five-year separations has remained fairly constant. In fact, it has fallen from over 47,000 in 1972 to under 44,000 in 1993. As we all know, the number of divorces has risen considerably in that period and the rise has come almost totally in cases where either adultery or behaviour is relied upon in order to obtain a speedy divorce. That is preserved by this amendment because one must wait five years unless there is fault.

Allegations of fault which are exaggerated and generally uncorroborated lead to bitterness and resentment. The right reverend Prelate the Bishop of Oxford gave us a moving example of that. A missive of that kind coming to a husband is likely to destroy every vestige of the possibility of reconciliation or good feeling. I cannot think of a better way of annihilating completely the opportunity for reconciliation.

As I said, every breakdown of marriage is sad and damaging. Everything that we can possibly do to prevent that should be done. I believe that in taking solemn vows the parties have that responsibility and nothing proposed in this Bill in any way undermines that.

However, what I do say is that when a marriage has broken down and when it is to be determined by divorce it is of the utmost importance that everything we can do should be done to preserve the relationships between both parents and their children. My noble friend Lady Elles very movingly at the last day of the previous stage pointed out the experience that had been found in Newcastle where so many children had completely lost contact with their fathers as a result of divorce.

The evidence is that that is more likely to happen where a divorce is founded on unreasonable behaviour than on any other ground. If we are anxious for our children and for the children who may be the victims of a divorce, we should do our best to eliminate unnecessary allegations one against the other, when the only purpose of the allegations is to get the divorce more quickly than otherwise would be the case.

Noble Lords have referred to "quickie divorce", whatever that expression means; but in the context of this amendment it means that you can get a divorce in considerably less than five years if you allege fault. We have had a very full debate, and I believe the issues are very clearly before your Lordships.

I should just mention, because it was mentioned by my noble friend in opening, the findings of the MORI poll which we conducted. It was of course referred to in the White Paper which I published in connection with the Second Reading of the Bill. One of the findings of the poll was of considerable importance to me: that 69 per cent. of the general public and 66 per cent. of the divorced public were in favour of a change in the law so that divorce could be obtained only on the basis of a period of time. Therefore, by definition, this cannot be regarded as being divorce on demand. I believe that when divorce on demand was referred to they were thinking of a consensual divorce which did not have any period laid down in it at all.

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These are difficult and important issues. They are issues which your Lordships have had laid fully before you. Conduct is relevant in divorce but it should not be relevant, in my submission, to obtaining the order. In this amendment, conduct is glorified by allowing divorce more quickly on those grounds. As I have said, in that sense a quickie divorce is enshrined in this amendment. The number of divorce proceedings have increased in recent years where they relate to conduct; in other words, the increase in divorce in recent years has been on the basis of fault and not on any other basis. Once allegations are forced to be made, as under this amendment, which would otherwise be unnecessary, in my submission any hope of salvaging the marriage is destroyed. Fault in divorce is not a restraining influence on misconduct, and certainly is not of benefit to the children.

This is an entirely free vote. It is clearly a matter of conscience and I hope that your Lordships will feel, in the light of your individual consciences, that this amendment should not be supported.


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