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Baroness Elles: My Lords, the noble Earl, Lord Russell, has put forward cogent reasons why there must be exceptional cases where exemption must be granted. I am a little concerned that Amendments Nos. 35 and 43 are not parallel.

Amendment No. 35 mentions an,


which means that the cases are clearly limited. Amendment No. 43 states:


    "it is necessary in the interests of the parties or of any relevant children".
Amendment No. 35 refers only to the,


    "best interests of any child of the marriage".
Therefore, if my noble and learned friend is going to consider having this specific principle of exemption in very dire cases, it should be under the authority of somebody nominated by the Lord Chancellor himself or herself. It should also cover both the parties as well as any children of the marriage.

Baroness Young: My Lords, I support the point that my noble friend Lady Elles has made. It will not surprise the House to recognise that I am very concerned about shortening the period of a year, which I would prefer to see extended. I can just see that there may be very limited cases where that might be necessary.

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I listened to the noble Baroness, Lady David, whose sincerity in all this I greatly respect. I felt that the longer she spoke the more cases she adduced that might be covered by this amendment. Therefore, one has to recognise that once one widens the number of cases which can be shortened, one is going to get into a similar position to that which occurred under the 1969 Act when everything was speeded up by the special procedure a few years later. Once again, I believe that we have to be very careful about the signal we are sending out.

The same applies to the point made by the noble Earl, Lord Russell. I believe he said at the beginning of his remarks that he wanted the amendment to cover "significant physical and mental harm", which was undefined. That was a very sweeping statement. There may be very exceptional cases--the noble Earl quoted one--which I can just see. I shall be very unhappy if this measure is widened and we find that the year is being shortened--it could easily be shortened--by an increasing number of, as yet, undefined specific cases.

Lord Elton: My Lords, if my noble and learned friend is disposed to look kindly on this amendment, which I rather doubt, I hope that, following the remarks of my noble friend Lady Young, he will look at it only under the most straitened circumstances. It could easily be the beginning of the opening of the floodgate which removes the one-year minimum which is an essential feature of the Bill.

As the amendment addresses the question of changing the minimum time, I hope that in replying to the debate the noble Baroness will explain why she is considering changing it in one direction only. There must be cases where an extension is appropriate, as, for instance, when one of the parties is on a foreign posting and the spouse cannot accompany. In that case, no prospect of reconciliation will exist until the spouse returns to this country, which might be, let us say, in nine months' time.

As regards the compellingly unpleasant case quoted by the noble Earl, Lord Russell, I would have thought--I am not a lawyer and I realise that I may be mistaken--that the protection required may be that of a court order and not necessarily the acceleration of the separation of the parties by divorce proceedings. That said, I believe that we should go very carefully indeed before we reduce what many of us regard as an already irreducible minimum.

Lord Habgood: My Lords, it gives me great pleasure to agree with what the noble Baroness, Lady Young, has said on this occasion. Like her, I listened with growing alarm to the number of cases adduced by those putting forward these amendments, particularly when one bears in mind the report from the family mediators. I believe that in about one-third of the cases that come for mediation, some element of violence is discerned within the marriage. If that is the kind of proportion that we are talking about, it seems to me that we are opening a very wide door indeed.

The Lord Chancellor: My Lords, the principle on which this Bill rests is that the irretrievable breakdown

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of a marriage shall be arrived at in the situation where the relationship has broken down and has remained so for at least a year, notwithstanding any efforts that the parties could put forward to heal the relationship. That appears to me to be a general principle. Therefore I am extremely slow to make any exception to it at all, because the kinds of hardships which have been mentioned in the examples given by the noble Baroness and the noble Earl are examples which can be dealt with, at least for the most part, by the protection which is available under the provisions dealing with domestic violence. As regards the case to which the noble Earl, Lord Russell, referred, I would certainly think that that was possible.

The noble Earl said that as long as lawyers are in contact there is always the chance of a leak about the address of the other party. I expect that is true, but there are other sources of leaks as well as lawyers' offices. It does not appear to me that that is a good reason for allowing a divorce to take place more quickly. It seems to me that the dissolution of the marriage is distinct from the protection of parties and children during the marriage. The purpose of Part III is to ensure that there are effective means of protection of parties and children from violence during the marriage.

The case which the noble Lord, Lord Irvine of Lairg, mentioned previously, and which the noble Baroness mentioned today, is a very special circumstance. However, that occurred under the existing law. The fact is that, if the law is changed, in the future people will have to take account of what that new law is. There is an adage which suggests that bad law can arise from too much consideration of particularly hard cases. We need a principle in this matter which emphasises the importance of the year as the test of whether a ground for divorce exists. I cannot see that the mere existence of circumstances such as have been mentioned in any way shows that that was not so. Of course, I agree that, where there is cruelty and the like, the prospects for reconciliation are not good. On the other hand, even in that situation there are the elements of protection to which I have referred. For my part, therefore, I am not at all anxious to make any exceptions in this area. That is one reason why I think that it is equally difficult to extend the period. One wants a definite period which is clear, about which everyone knows, and in respect of which there are no exceptions. That is the way in which I invite your Lordships to deal with the matter.

This appears to me to be an important matter of principle in the Bill and I suggest that your Lordships deal with it in that way. I had assumed that the principle of the Bill was so strong that a free vote would not be required on this matter, which is more incidental than other matters relating to the grounds for divorce.

3.30 p.m.

Earl Russell: My Lords, before the noble and learned Lord sits down, although I am extremely grateful for what he said about court orders, does he understand that there are some cases in which the woman's life can be made safe only by concealment of her whereabouts?

The Lord Chancellor: My Lords, yes, I do. That is an important factor in proper safety. However, I cannot

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link that inevitably with the question of an order of divorce. It seems to me that adequate steps to protect the location of the woman can be taken quite apart from an order for the dissolution of the marriage. To me, they seem distinguishable and distinct.

Baroness David: My Lords, this has been a useful discussion and I am grateful to all who have taken part in it. I appreciate, of course, that my noble friend's amendment and mine are slightly different. Points have been made about that. Obviously, that needs to be discussed, but I have been impressed that there has been a certain amount of support for the fact that there could be the exceptional case which needs exceptional treatment. I am glad to have the powerful support of the noble Earl, Lord Russell. Both the noble Baronesses, Lady Elles and Lady Young, agreed that there could possibly be special cases. I am heartened by that.

I realise that the amendments have probably been drawn too wide and need to be tightened up. I must admit that the noble and learned Lord's response was rather as I had expected, but I am surprised that he does not see that there could be some special case which needs a special provision. I should like to take the two amendments away and to discuss them with my noble friend in the light of the discussions that we have had today. I think that it is pretty well inevitable that we shall come forward with one amendment at the next stage of the Bill, but for today I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 32:


Page 4, line 6, at end insert--
("(3A) Where--
(a) the statement has been made by one party,
(b) rules made under section 10 require the court to serve a copy of the statement on the other party, and
(c) failure to comply with the rules causes inordinate delay in service,
the court may, on the application of that other party, extend the period for reflection and consideration.
(3B) An extension under subsection (3A) may be for any period not exceeding the time between--
(a) the beginning of the period for reflection and consideration; and
(b) the time when service is effected.").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 30. I beg to move.

[Amendments Nos. 33 and 34, as amendments to Amendment No. 32, not moved.]

On Question, Amendment No. 32 agreed to.

[Amendment No. 35 not moved.]


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