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Lord Simon of Glaisdale moved Amendment No. 95:

After Clause 18, insert the following new clause--

Transitional provisions

(".--(1) The "special procedure" (whereby petitions for divorce based on section 1(2)(a), (b) or (c) of the 1973 Act have accelerated and informal consideration) is hereby abolished.
(2) No decree of divorce shall be pronounced in respect of any petition based on section 1(2)(a), (b) or (c) of the 1973 Act until a period of twelve months for reconciliation, reflection and consideration has elapsed since the date on which the court received the petition.").

The noble and learned Lord said: My Lords, this, I venture to say, is an important amendment. It gets rid of the roundly denounced, universally denounced, so-called quickie divorce.

Subsection (1) of the new clause gets rid of it procedurally, and subsection (2) of the substance. I am speaking also to Amendment No. 116, which is the effective implementation.

The necessity for this new clause rose late on the last day in Committee, in fact after eleven o'clock. The noble Lord, Lord Coleraine, told me when this legislation would be brought into effect, and my noble and learned friend the Lord Chancellor said he thought it would be two years after Royal Assent. I do not quarrel with that. It is eminently sensible to make sure that the administrative substructure is in place first. We have the care that was taken over the Children Act on the one hand, which has been a success, and, on the other hand, the disaster that followed the Child Support Act. The necessity, therefore, is to make sure that the quickie divorce disappears as rapidly as possible and does not have to wait two years until my noble and learned friend is ready to bring the rest of the measure into effect.

I do not need to expatiate on the disadvantages of the so-called quickie divorce. They were in the forefront of the propaganda in favour of this Bill, which was heavily promoted by the Lord Chancellor's Department. The noble Lord, Lord Irvine of Lairg, gave a description of how it worked procedurally, and it certainly reflected no

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credit on the law. It was a patent step towards what has always been the ultimate aim of the extreme permissive divorce reformers; namely, the simple registration of a divorce--as simple as the registration of a marriage, or even simpler.

One has to go back, as subsection (2) shows, to the 1969 Act, although I have cited it in its re-enactment in 1973. As your Lordships now well know, the Divorce Reform Act pretended to be based on irretrievable breakdown of marriage but in fact depended on the so-called five facts which, together, were the exclusive grounds of breakdown that could be alleged, and any one of them was a conclusive ground.

The first, as your Lordships know well, and is referred to in Section 2, is on the ground of adultery. But it was divorce in a new form. It was divorce stripped of anything which might impede it; for example, an agreement to produce the evidence of a divorce or even plotting that a divorce should take place--even one party plotting that the other should commit adultery because connivance and collusion disappeared.

The second ground was unreasonable behaviour. The third ground was desertion for two years, reduced from three years. The third introduced into our law for the first time divorce by consent after two years' separation. Both Church and state stood against divorce by consent over the centuries because the Church said that it is inconsistent with the vows that have been made, not just privately but in the face of the congregation. The state said that the institution of marriage was more than the concern of the spouses themselves; it was a fundamental institution of society.

The last ground was unilateral separation after five years. In fact, that was the only ground that was before the Royal Commission because irretrievable breakdown was very much an afterthought. But the ground of unilateral repudiation was rejected by Archbishop Fisher giving evidence on behalf of the Church of England to the Royal Commission on marriage and divorce. Notwithstanding that, that measure was handed over by the Lord Chancellor's Department and negotiated by the Law Commission with a Private Member. It was supported by the Bishop of Exeter in your Lordships' House who volunteered to act as a Teller.

As early as February 1970, before that measure had ever come into force, it was pointed out in a lecture to the Institute of Legal Executives at the annual Riddell lecture that the earlier provision could be used for divorce by consent. The promoters of the Bill in both Houses had assured Parliament that although the measure introduced divorce by consent, it was only after two years separation. But it was pointed out that adultery, without the bars of collusion or connivance, could be used to achieve an immediate divorce.

Nevertheless, the Law Commission and the Lord Chancellor's Department proceeded to consolidate the 1969 Act into the 1973 Act where we now have it. But they did not stop there because they brought in subsequently the procedural provision of the quickie divorce. One could immediately obtain a divorce by consent with a put-up case of adultery. That could then

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be rushed through the courts informally, rapidly and disgracefully, in the way that was described by the noble Lord, Lord Irvine of Lairg.

That is the position that we have--a thoroughly discreditable provision of the law which is relied on as the principal ground for this measure. It is abrogation strongly relied upon. Talking to Members of your Lordships' House, I have found that even those who are deeply disturbed about the thrust of the Bill before us say that at present one can obtain a divorce in an average of six months and at least this Bill stipulates a 12-month lapse. Therefore, is it not plain after that which the noble Lord, Lord Coleraine, ascertained, that there is urgent need not to wait for two years and possibly more but to get rid of that disgraceful provision immediately? That deals with that subsection.

Amendment No. 116 amends the Bill to the effect that the provisions can be brought into force, and stipulates that this particular provision shall come into force on the passing of the Act. I beg to move.

6.45 p.m.

Lord Moran: My Lords, I have put my name to this amendment and I strongly support it. It seems to me to be very important that we should remove the special procedure at the earliest possible moment. I too listened to the noble Lord, Lord Irvine of Lairg, at an earlier stage when he described this procedure. What he said was quite new to me and I did not realise that such a high proportion of today's divorces go through simply by post. They arrive at the court and are dealt with, so to speak, on the nod with minimum consideration. That seems to me to be profoundly unsatisfactory and I am quite sure that we should try to remove that procedure, as my noble and learned friend Lord Simon of Glaisdale has suggested, at the earliest possible moment and not wait for two years.

Lord Coleraine: My Lords, I support the amendment moved by the noble and learned Lord, Lord Simon of Glaisdale, because I believe that it is necessary to provide some form of interim law to cover the period of at least two years before this Bill is brought into effect.

I should like to add that it seems to me that one should go further than is proposed by the noble and learned Lord's amendment because the effects of a quickie divorce are as much ill thought out in the ground that must be proved as in the speed at which the divorce can be achieved. I am talking about the behaviour ground.

It is well known and referred to at paragraph 2.5 of the White Paper that it is almost impossible to defend the behaviour ground in a divorce. The White Paper states:

    "The details pleaded in divorce petitions in support of, for example, the fact of intolerable behaviour, do not need to be corroborated and are irrebutable. Such allegations are therefore easy to make and easy to establish".

Experience shows that they are almost impossible to defend.

In our debate on Thursday last on the debate on Amendments Nos. 11, 12 and 13 in the name of my noble friend Lady Young, which would have

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re-introduced fault into the divorce law, the right reverend Prelate the Bishop of Oxford described the case of a friend of his who had written to him to explain what had happened in his divorce. The letter read:

    "The solicitor advised her,"

that is the wife,

    "that she could get a quick divorce if she went for unreasonable behaviour. This did not include adultery or violence. It did include her view of my failings vastly exaggerated by the solicitor for the purpose of proving that the marriage had irretrievably broken down".

The letter went on to say:

    "The 'faults' did not seem legally serious enough for divorce".

The right reverend Prelate observed correctly:

    "The present law is very flawed, as we have heard from that moving testimony".--[Official Report, 29/2/96; col. 1652.]

Had I been able to speak in that debate, I would have drawn the attention of the House to the fact that the amendment moved by my noble friend was drafted in terms to improve the fault ground of behaviour. Under Section 1(2)(b) of the Matrimonial Causes Act 1973, what has to be shown is,

    "that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent."

On a true construction of those words, I understand that "petitioner" means the particular petitioner in the case under consideration and not the ordinary,

    "reasonable spouse considered as petitioner."

Therefore, the test of behaviour is subjective, not objective. It means that, in determining whether a particular petitioner can or cannot reasonably be expected to live with a particular respondent, the court has to take into account the character and personality, disposition and behaviour of the petitioner as well as the behaviour of the respondent as alleged.

The amendment to which my noble friend spoke last week, Amendment No. 12, would have changed the grounds so that it would have to be proved that,

    "the respondent has behaved in such a way that a reasonable spouse, considered as petitioner, could not be expected to live with the respondent".

If that had been appreciated, I believe that the right reverend Prelate the Bishop of Oxford would have realised that it will not be so easy in the future to get away with a behaviour ground merely by saying, for example, "My husband was very messy in the bathroom, he would leave his pyjamas on the floor. I, being the person that I am, found it intolerable to live with him". In fact, an objective ground for divorce would have been introduced. That was one of the points which the noble Lord, Lord Meston, addressed when he dealt with and commented upon the points raised by the right reverend Prelate.

If the noble and learned Lord, Lord Simon of Glaisdale, wishes to produce an amendment which would really get rid of all the bad effects of the quickie divorce, I believe that he ought also to look at the behaviour grounds in the 1973 Act, and incorporate the

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words proposed by my noble friend Lady Young, or other words. That way he would ensure the introduction of an objective definition of the behaviour ground.

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