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Lord Meston: My Lords, I should, first, declare an interest in that no one present in the Chamber would be more pleased than myself--with the possible exception of the noble Lord, Lord Phillimore--if the so-called "special procedure" were abolished. Its introduction was a fairly serious financial blow to the junior Bar and was undoubtedly intended to effect a considerable saving to the legal aid fund. Indeed, I am quite sure that it had that effect.
At the time, I remember we all grumbled that one still needed a hearing in open court to wind-up a company but not to wind-up a marriage. Before the introduction of the special procedure, the petitioner had to go to court with his or her lawyers and give oral evidence to a judge of the breakdown of the marriage and evidence of the supporting facts which were relied upon. The procedure introduced in the 1970s converted that into a largely paper exercise.
However, I question the phraseology in the amendment. In particular, I question whether the "special procedure" can now be described as an "accelerated" procedure. The special procedure involves a number of stages. The petitioner has to apply for the petition to be considered by the court and swear an affidavit, or make an affirmation in support. The district judge has to certify that he is satisfied that the petitioner has made good his or her case and is entitled to a decree. He then has to fix a date for the announcement of that decree.
I seriously question whether that practice is any quicker than the machinery which existed before the introduction of the special procedure, whereby the petitioner simply applied for a hearing date and the petition, if undefended, was set down in a list of cases for hearing by the court on a particular day. If the process was any slower before the introduction of the special procedure, it can only have made a difference of weeks and certainly not of months. Therefore, I invite noble Lords to consider whether they are in fact, by way of the amendment, doing away with the so-called "quickie divorce".
I also question the use of the word "informal". It is certainly true that under the special procedure, the petitioner does not have to give evidence in open court, but he or she still has to swear an affidavit or make an affirmation in support of the matters set out in the petition. That is treated sufficiently seriously in that, if a false affidavit is sworn and discovered, the Queen's Proctor can intervene in the normal way.
With respect, I should point out that the noble Lord, Lord Coleraine, made a separate point about defended divorces. We are in fact talking about the special procedure, which applies only to undefended divorces. However, the noble Lord is perfectly right to say that it is not altogether easy under the present regime to defend a divorce, especially if behaviour is alleged. But the Legal Aid Board takes the view that it is common ground that the marriage has irretrievably broken down. There are certainly considerable procedural pressures
Baroness Elles: My Lords, I should like to express my support for the principle set out in the amendment proposed by the noble and learned Lord, Lord Simon of Glaisdale. The noble Lord, Lord Meston, pointed out that there may be technical difficulties in so far as we are talking about undefended divorces. He also wondered whether the amendment would have the desired effect which lies behind the noble and learned Lord's proposals.
As I understand it, those proposals entirely support what my noble and learned friend the Lord Chancellor has been saying right through the proceedings on the Bill; namely, that one of the main purposes of the legislation is to abolish quickie divorces. He could not see why someone who was at fault should be able to get a quick divorce and be able to remarry, whereas in other cases, if one had to wait for consent for two years or five years, the innocent party may be prevented from remarrying. I understand that to be one of the principles involved.
The other principle stressed by my noble and learned friend this afternoon is in sticking firmly to his view that, under the Bill, the minimum time from the date of the statement should be a year. That will give couples time for reconciliation, reflection and consideration. Regardless of the actual wording of the amendment, it is quite clear that the noble and learned Lord, Lord Simon, has the objective of introducing a system whereby the quickie divorce is stopped and no divorce granted until after one year from the time when the petition is presented to the court.
I suggest that the principle underlying Amendment No. 95 and the implementing amendment, Amendment No. 116, should be looked at again and, possibly, retabled on Third Reading. I hope that my noble and learned friend will agree that the principle is one that he can support. That redrafting should also take into account one problem not addressed by the current amendment; namely, the question of those divorces which are, so to speak, on track at present.
I think it would be very difficult to introduce with this Bill at Royal Assent that this particular amendment or principle should be adopted straight away but then only start the new system as from the date of the Act coming into force which would not be made retrospective.
Lord Stoddart of Swindon: My Lords, since I have signed the amendment I would like briefly to support what has already been said by the noble and learned Lord, Lord Simon, and others. I believe that the case that has been put is entirely logical and one which I hope the noble and learned Lord the Lord Chancellor
Baroness Young: My Lords, I want to support everything the noble and learned Lord, Lord Simon of Glaisdale, has said on this. This is entirely in line with what the noble and learned Lord the Lord Chancellor wishes: that is, to get rid of the so-called quickie divorce and to keep, as my noble friend Lady Elles said, the month. As I understand it, the special procedure fixes the time between the decree nisi and the decree absolute at six weeks at least, which by any measure is a very short time. The original statute suggested six months. What we would be doing by this would be having a year. This is a very important principle. If we believe in it we should stand by it.
The Lord Chancellor: My Lords, the principle of the quickie divorce is that you get divorced more quickly if you allege fault than if you do not. That is my understanding of the principle behind it and that is enshrined in the present law. This amendment is not intended to take effect to change that while the matter is in transition. I am certainly very much in favour of doing away with that principle because I think that it is inimical to any kind of signal that fault is something of which Parliament disapproves and to which a stigma is attached.
This amendment does not attempt to do that. What it seeks to do is to produce on the existing law some part of what we are proposing: the one-year period of reflection and consideration. As I understand it, this transition will allow--indeed, require--allegations of fault to be made in the petition. The amendment refers, as your Lordships have it, to grounds 1(2)(a), (b) or (c) of the 1973 Act; that is to say, grounds which require the allegations there referred to to be made. If I thought that that was a reasonable way forward I would certainly have considered that for the main provisions, but the point is that that destroys the idea of reconciliation. If you have to start off your petition by making allegations of fault you destroy the whole basis--
Lord Simon of Glaisdale: No, my Lords. What it does is to accept what my noble and learned friend proposes, namely, that for the next two years there will be a petition based on adultery or on unreasonable behaviour. It does no more than accept what he proposes.
The Lord Chancellor: My Lords, it does a good deal more than that because it seeks to impress upon that a period of reconciliation, reflection and consideration. What is more inimical to reconciliation and reflection with the purpose of restoring the marriage than to require that the process starts with allegations of fault? I would have thought, with great respect to your
Lord Coleraine: My Lords, is the noble and learned Lord, Lord Simon, saying that the period for reflection and conciliation is going to come into effect from the beginning of the Bill, from when the Bill receives Royal Assent, or shortly afterwards, because it seems to me that what the noble and learned Lord, Lord Simon, is saying is that this amendment is to take place before the provisions of the Bill come into effect, which would introduce this period of reflection and consideration.
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