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Baroness Young: My Lords, I am bound to say to my noble and learned friend that I found it quite difficult to follow all the detail that we were given. Clearly, I shall have to read it. The amendments moved by my noble friend Lord Coleraine are, we believe, extremely important. I am not absolutely clear. I regret that that is entirely my own fault; however, it is quite late and the argument was rather complicated.

Perhaps I might extract two points on which I should like particular clarification. The first refers to our Amendments Nos. 120 and 126. I should like to know whether or not the court should have jurisdiction to make an order for financial provision or property adjustment other than interim maintenance at any time in the first six months.

This is, after all, a very important issue. As I understand it, if the court has the power to do that, it as it were indicates that the divorce is to take place at a time when I thought one of the principal points of this Bill was that the time of the operation at the beginning of the year would be a time for reflection, consideration and all of that. It is hardly likely to take place if the court is settling all the differences over property, which gives a finality to the situation which did not exist before.

It is probably entirely due to my failure to understand what my noble and learned friend said, but I should like to know whether his amendments put in a different way his very real point as to whether or not one can start the property settlements, as it were, virtually on day one. If that is the case, it negates a great deal of the whole idea of reconciliation, reflection, consideration and so forth.

The second point which I do not quite understand--again, it is probably entirely my own fault--concerns the question of whether a financial order other than an interim order should come into effect before the divorce or separation order on the just and reasonable test, which is the one to which my noble and learned friend referred, or only on the proof of special circumstances, which has been quite narrowly defined and included in Amendments Nos. 119 and 129 spoken to by my noble friend Lord Coleraine.

The point of my concern is that the just and reasonable test is not very tight. It implies that 12 months is not an absolute waiting period under the Bill but one which may be abrogated in certain circumstances. It is partnered with an earlier amendment. I should like to know how the courts would regard the just and reasonable test. For instance, would it be a fact that at the beginning they would confine it so that it has a limited effect? Over the passage of time would pressure from litigants and advocates be brought into effect to weaken the standard, so that it becomes a

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rule rather than the exception for orders to come into effect before the expiry of the 12 months? Then the 12-month period would become an empty formality with mounting proposals for abolition. That may be a very gloomy prospect for the future, but it seems to me central to all the provisions of the Bill that the 12-month period should stand as it is for a period of reflection and consideration.

I do not want to waste the time of the House at this late hour, but these are very important issues and I am not at all clear, from what my noble and learned friend said, whether his amendments, which cover very much the same ground about which we are all talking, satisfy my anxieties and those expressed by my noble friend Lord Coleraine on these matters.

The Lord Chancellor: My Lords, with the leave of the House, perhaps I could answer those two specific matters. I think I referred to them but I missed many other matters and I can bring them out now.

No order in this category will have effect before the divorce or separation takes place, unless it is just and reasonable in the opinion of the court that it should do so. The advice that I have been given by the Advisory Group on Ancillary Relief, constituted as I said, is that the phrase "special circumstances" will not be anything much in way of a protection. Almost any circumstances are special to the particular case and therefore that will not be much of a protection.

Noble Lords will have noticed that my noble friend Lord Coleraine, in Amendment No. 119, also states that:

    "'special circumstances' may include the fact (if it be the case)",

and so on; and those are listed.

The advice that I received was that listing those would in fact promote the possibility that the court would have to give effect to an order before the divorce or separation order took effect if one of those circumstances applied, whereas the court might think that it was not in the interests of being just and reasonable that it should do so. The advice I have is that the amendment which I tabled would be more effective in achieving the purpose that my noble friend has in mind of keeping the general rule in favour of the orders taking effect only on divorce or separation rather than any alternative version which has so far been produced.

Perhaps I may say that, looking at that example, it can be seen how it would happen. The amendment says that:

    "'special circumstances' may include the fact (if it be the case) that ... both parties are agreed on the terms of the proposed order".

    If that is a special circumstance, the court might find it very difficult to refuse to have the order made effective before the divorce or separation, if it had been agreed, whereas if the court can make it have this early effect only if it is just and reasonable to do so, even if the parties are agreed, it might not think that it was wise to do so in all the circumstances.

As regards the first six months, my proposal does not give effect to that. One of my most important points is that consideration of what will be the future terms on which the parties' property will be held can be a most important factor in deciding them to go back and try to make a go of the marriage. Therefore, while to have a

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sort of frozen period at the beginning has some attraction, I do not believe that that is in the ultimate interest of reconciliation in some cases. The truth is that some parties, when they get to this stage, are so much at loggerheads that there is really no prospect of them talking about anything which has to do with their present situation, but they might have to talk about the future and, in doing that, they might well come to talk again about their present relationship.

That is the effect of the amendments that I propose. The six months would not be sacrosanct. It would not be possible to have orders, apart from the interim orders, taking effect before the divorce or separation order was pronounced, except where it was just and reasonable to do so.

12.15 a.m.

Lord Meston: My Lords, perhaps I may briefly thank the noble and learned Lord for the very full and speedy way in which both he and the advisory group have responded to these amendments, and particularly to the amendments which, motivated by the Family Law Bar Association, I moved at Committee stage. I believe that I scored two out of three, which is not bad. As regards the amendments of my noble friend Lady Hamwee, I am not sure why it is that nullity proceedings are somehow discriminated against in connection with interim lump sum orders. I do not seek to explore that point at this late hour.

The only other matter I wish to comment on and welcome is the noble and learned Lord's indication about interest payments on lump sums. It seems appropriate to preserve the discretion of the court to set a rate. The disadvantage of linking interest to bank rate, for example, is that one might find oneself in the position whereby it was cheaper for the paying party to withhold payment of the lump sum than to borrow the necessary money at the usually friendly rate charged by banks, which is several percentage points above bank rate.

Lord Clifford of Chudleigh: My Lords, I wish to thank the noble and learned Lord for his summary and also for the letter he sent me today with advice from his advisory group. I shall certainly look at that with my legal advisers too before Third Reading. Before I sit down, I should like to accept the apology of the noble Baroness, Lady Trumpington. I believe that she was probably encouraged to make that slight error by the extraordinary reaction of another party in the House. I hope that that particular party will be noble enough to deliver the same form of apology.

Lord Coleraine: My Lords, I can probably speak for the whole House in saying how grateful we are that my noble and learned friend did take the trouble to put these matters to his advisory group and explain its advice to us in dense but, I believe, very important prose. There is a lot that he said that needs to be carefully considered.

As regards the amendments in the names of my noble friend Lady Young and myself, I feel sure that we shall want to consider carefully whether "reasonable and just"

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is a better way of expressing the matter than "in all the circumstances" or whatever the existing phrase is. Certainly, what my noble and learned friend said seemed to be correct.

On the question of proceedings in the first six months of the period, I am afraid that I cannot accept my noble and learned friend's idea that that is a frozen period. It is a period in which the parties can attempt reconciliation or mediation or attempt to reach agreement in some other way secure in the knowledge that if they do not reach agreement, if the mediation seems to be failing and if either party wishes to go to court, he or she may do so at the end of the period and get a court-ordered provision made. My noble friend Lady Young and I will want to reconsider this matter with a view to returning to it on Third Reading. In the meantime, I beg leave to withdraw Amendment No. 118.

Amendment, by leave, withdrawn.

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