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The Lord Chancellor: My Lords, there are two sets of provisions which we must bear in mind. The first provisions are from the Children Act, to which the noble Lord, Lord Northbourne, has just referred. As he rightly said, the Act contains provisions for a local authority to consider what should be done in relation to children in need. The second set of provisions, those in this Bill, are concerned primarily with divorce. There is a link between them which is elaborated in Section 41 which I seek to amend later.

In the normal case, it would be a complete waste of resources for a court to inquire into the detail of arrangements which are entirely satisfactory, made by parents about their children, where sadly their own relationship has broken down. One of the prime purposes of the Bill is to do our best to avoid any unnecessary trauma to the children in that respect. However, there will be some cases where the intervention of the court is desirable. The powers that the court has to intervene will depend on the Children Act arrangements and what should be done under that Act. We need to link the two and I have provided for that in my later amendment.

We have had discussions with children's organisations about how that can be done most effectively. We need to have information before the court about the children which will highlight the situation in which further concern is properly taken in the matters by the court. That depends on the detail of the statements required from the parties about the children. That is what I propose. I believe that that is the most effective and practical way to bring the proposals forward. It should be done by reference to rules rather than putting it on the face of the Bill. I should not be at all surprised if experience were to show that what one did first could subsequently be further improved with judicial experience of the way in which matters work.

In regard to this amendment, on the last occasion I read out the standards of practice for welfare officers as contained in the national standards. I believe they deal adequately with the problem raised in this amendment.

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With this amendment are grouped Amendments Nos. 134 to 137 in my name, and Amendment No. 144 in the name of my noble friend Lady Elles. Perhaps I might just explain how Amendments Nos. 134 to 137 are supposed to play a part. They were inspired by the amendment tabled in Committee by my noble friend Lady Elles and supported by my noble and learned friend Lord Wilberforce. I recollect his suggestion that it was highly probable that these sentiments would in any event guide the court in its consideration of these matters, but no harm would be done--and indeed some good might be done--by putting them on the face of the Bill. I paraphrase rather inelegantly the words spoken much more eloquently by my noble and learned friend.

In my view it is wise to try to take this idea forward. I considered that the amendment proposed by my noble friend identified those areas which are most likely to indicate to a court that the circumstances of a case are such as to require it to take further action. These are: how the parents have conducted themselves in bringing up the child--for example, if the child has been very well brought up and looked after in every possible way by both parents, that must be a pretty good indication that the interest in the children is likely to continue; the principle that, unless there is evidence to the contrary, it will be in a child's best interest to have regular and reasonable contact with both parents--that will be shown on the statement about what the arrangements are; if it is seen, for example, that the arrangements are that the father will have no further contact with a child, that would raise the court's interest and cause it to look into the matter further; and the risk a child may be at, either because of where a parent with residence has chosen to live or because of the person with whom that parent has chosen to live. The amendment identifies very clearly circumstances which might give rise to concern.

I suggest therefore that the most appropriate time for the court to consider these matters is when it has before it the proposed arrangements for the child's future. That will not interfere with the responsibility of parents to decide the arrangements for their children, and arrangements reached by agreement are less likely to break down than arrangements that are imposed. All noble Lords who have the experience of trying to impose arrangements on unwilling parents will have a good idea of how difficult it is to enforce such arrangements. Agreement is by far the best way forward where it is possible.

By including these factors on the face of the statute, the court will have in its mind what are the issues which, prima facie, might suggest that the circumstances are such that the arrangements should be further examined. If necessary, it will then be able to ask for welfare reports and any other information that is considered necessary in assisting the court to decide whether or not an order under the Children Act is required. That would be a supplement to what is in the statements before the court.

I now turn to Amendment No. 144, grouped with this one. The suggestion of the noble Lord, Lord Northbourne, may well be the right answer. In due course I shall move Amendments Nos. 134 to 137.

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I have sought to explain them in a little detail at this stage because they are grouped with this amendment, and also because this gives the background to a proper relationship between the divorce provisions of this Bill and the provisions in the Children Act which are designed to secure the welfare of the children in all possible circumstances in so far as the state can do so.

Baroness Elles: My Lords, I thank my noble and learned friend for his remarks, and particularly for his introduction to Amendment No. 137. There has been concern on the part of quite a lot of Members of this House as to the direct legal connection between the Children Act and this Bill, and how the interests of the child in particular will be protected by the provisions of the Children Act in relation to divorce proceedings. I am very grateful for that.

I quite understand that there will be problems over Amendment No. 88. However, I hope that my noble and learned friend heard the remarks of the noble and learned Lord, Lord Simon of Glaisdale in relation to considering in the next period who are the best people to look after the interests of the child, to speak on behalf of the child or to be available to look after the interests of the child at any particular point during the course of the proceedings. We are already grateful for the amendment to Clause 9. I think we can say happily that the position of the child in relation to the position of the parties--i.e. the parents--in this Bill has been very much strengthened by the provisions introduced by my noble and learned friend. For that I am grateful. I therefore beg leave to withdraw Amendment No. 88.

Amendment, by leave, withdrawn.

Clause 16 [Time when proceedings for divorce or separation begin]:

The Lord Chancellor moved Amendment No. 89:


Page 9, line 17, at end insert ("and not withdrawn").

The noble and learned Lord said: My Lords, in moving this amendment, I speak also to Amendments Nos. 90 and 91.

These amendments deal with the time at which marital proceedings come to an end. The Bill as currently drafted provides that such proceedings come to an end on the withdrawal of an application which has been made under Clause 2. However, it is possible for there to be both an application for a separation order and an application for a divorce order before the court at the same time. The amendment provides that in this case marital proceedings will end only if all applications that have been made under Clause 2 are withdrawn. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 90 and 91:


Page 9, line 19, at end insert ("and not withdrawn").
Page 9, line 30, after ("application") insert ("or all applications").

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The noble and learned Lord said: My Lords, I have already spoken to these amendments. With the leave of the House, I beg to move them en bloc.

On Question, amendments agreed to.

Clause 17 [Intestacy: effect of separation]:

Lord Simon of Glaisdale moved Amendment No. 92:


Leave out Clause 17.

The noble and learned Lord said: My Lords, this amendment deals with intestacy when there is a separation order. It was moved in Committee, when it was also supported by the noble and learned Lord, Lord Archer of Sandwell. I am very glad that he has put his name to the amendment again at this stage.

The law discriminates in favour of marriage in the devolution of property on death. In English law that is only on intestacy. If a testator or testatrix dies without making a will (if the deceased has died without making a will) then the surviving spouse has substantial property advantages over outsiders.

The law of Scotland, as I understand it, discriminates in favour of marriage, also in the law on testacy. I tried to table an amendment to assimilate our law more to the law of Scotland, but it was held by the Public Bill Office to fall outside the ambit of the Bill. So we have to deal only with the English law, which discriminates in favour of marriage where a deceased has died without making a will.

Where there is a divorce, there is no surviving spouse who is relevant, although there may be a new one. But where there is a separation order, the marriage subsists and (except for the intervention of Clause 17, which reproduces the law as it existed, was laid down in 1965 and re-enacted) where there is an intestacy, Clause 17 provides that the surviving spouse shall not enjoy any benefit. The property is to devolve as if she had died.

At the very outset of the Committee stage of the Bill, my noble and learned friend the Lord Chancellor assured noble Lords that there was provision for a separation order, among other circumstances to accommodate a spouse who objected on conscientious grounds to divorce. However, that clause penalises a spouse who on conscientious grounds prefers a separation order to a divorce order. It states that she will not enjoy the benefit that normally accrues to a surviving spouse.

The amendment seeks to eliminate that provision because it takes away one of the advantages which perfectly properly accrue to a spouse who has a conscientious objection to divorce or who may even quite legitimately have an idea on the property advantages. When the matter was raised in Committee, it seemed that my noble and learned friend was reasonably susceptible to the arguments that had been put forward. However, I have since had a letter from him, as has also the noble and learned Lord, Lord Archer, in which he shows himself adamant.

The amendment is very much a matter of the impression that the Bill gives to the public. It is always open to a spouse who is the subject of a separation order to make a will cutting out the other spouse who has

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obtained the order, or indeed the spouse who would benefit if this clause were eliminated may still get benefit under the inheritance, family provision legislation, although there to some extent it is discretionary. But it is a matter partly of the impression that the Bill will give to the public. It is discriminatory in favour of divorce and against separation, where there is always a chance of reconstituting the marriage. It is discriminatory against the separation order. This is one of the most blatant examples.

I said that I had a letter from my noble and learned friend. None of us has had any doubt of my noble and learned friend's genuine adherence to the concept of marriage as a lifelong institution: a lifelong relationship divinely instituted. But I confess that I cannot feel the same confidence as to everyone whose hand has been in the Bill. By their fruits shall ye know them and one bad apple can contaminate a whole barrel. In the light of that, I read what my noble and learned friend wrote:


    "Separation does not have the finality of divorce".

So far, so good!


    "It does, nevertheless, seem that spouses who are judicially separated are generally unlikely to wish the other spouse to benefit from the will".

That is an utter misconception. There is no question of a will at all. We are dealing with intestacy and not testacy. The letter continues:


    "It therefore appears to be inappropriate to remove Clause 17, when to do so could result in an estranged spouse benefiting from the estate against a testator's wishes".

That merely reiterates the error. There is no question of a testator at all. This is a matter of intestacy. It is just a matter of saying that the normal law of intestacy shall prevail and that there shall not be discrimination against somebody who has chosen to have a separation order rather than a divorce order. I beg to move.

5.30 p.m.

Lord Meston: My Lords, the noble and learned Lord, Lord Simon, raised this important matter at Committee stage. He suggested that this provision, which in fact originated in the legislation of 1965, was somehow the product of the "Swinging Sixties", although it is perhaps not the most obvious manifestation of that particular decade of which most of us would have thought.

I suspect that the rationale for the provision that is now to be re-enacted in Clause 17, unless your Lordships agree to the amendment, was that it is supposed that by the time the death has occurred, the estranged spouse has taken advantage of the financial powers of the court in the existing legislation and under the Bill to have claimed and received whatever his or her entitlement might be to a suitable financial settlement. In those circumstances, presumably it is taken into consideration that, in awarding him or her the entitlement, he or she will no longer benefit on the intestacy of the estranged spouse.

The other factor which the court can take into consideration is that a spouse in that situation--one is now talking about a wife--by virtue of electing separation rather than divorce, will probably have

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preserved her entitlement to a widow's pension. Furthermore, if that creates some hardship, despite the provision already awarded by the court under its existing powers, as the noble and learned Lord said, following the death, the spouse concerned has the benefit of the inheritance provision for family and dependants legislation.

I question whether it is appropriate to equate a long estranged legally separated spouse, who may well have received her entitlement under the matrimonial, property and financial legislation, with a wife who is party to a truly subsisting marriage. Having thought about it, I can see the rationale for Clause 17. I suspect that it was the rationale for the original legislation in 1965.


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