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Page 6, line 10, at end insert--
("(2A) If the parties--
(a) were married to each other in accordance with usages of a kind mentioned in section 26(1) of the Marriage Act 1949 (marriages which may be solemnized on authority of superintendent registrar's certificate), and
(b) are required to co-operate if the marriage is to be dissolved in accordance with those usages,
the court may, on the application of either party, direct that there must also be produced to the court a declaration by both parties that they have taken such steps as are required to dissolve the marriage in accordance with those usages.
(2B) A direction under subsection (2A)--
(a) may be given only if the court is satisfied that in all the circumstances of the case it is just and reasonable to give it; and
(b) may be revoked by the court at any time.").

The noble Lord said: My Lords, the purpose of this amendment is to provide a mechanism whereby those who were married in accordance with the usages of a kind mentioned in Section 26 of the Marriage Act 1949, and who are required to co-operate in accordance with such usages in obtaining a divorce, can apply for a direction that they should have a declaration that they have taken all necessary steps to dissolve the marriage according to those usages. This is designed to meet the particular problem raised at earlier stages of the Bill of the marriage which, although capable of being dissolved in civil law, cannot be dissolved under the system of religious law under which the parties married because that religious divorce depends on the co-operation of the parties which may not be forthcoming.

It is a particular problem in the case of Jewish marriages for which the bill of divorcement, known as a get, is a consensual procedure, but one which has to be instigated by the husband. A stubborn husband can use his power to effect a religious divorce as an improper bargaining tool in negotiations relating to financial matters or to the children. Or, out of mere spite, he can withhold the religious divorce altogether so preventing the observant wife from remarrying according to her religion, causing the original marriage to limp on, dissolved in civil law but without a religious dissolution. This has long been recognised as a significant injustice and one which various other jurisdictions have already addressed by legislation.

Earlier in the course of debates on the Bill, it was thought that this matter could be dealt with under the hardship bar, although to do so would have depended on rather artificially deeming the situation described as a hardship deriving from the divorce. It seems better to allow the parties and the court to deal with the question at the stage when they are to satisfy the court that they have made appropriate arrangements for their future--that is, under Clause 9 as it now stands. It is to be hoped that the proposed procedure will, by its very presence in the legislation, limit the need for it to be invoked in all but a few cases. It will be a procedure which requires an application to the court, and a direction by the court if the court is satisfied that it is just and reasonable. It also provides for a power of revocation in the court.

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There can in practice be even fewer cases in which the power of revocation might be invoked, but it is a safeguard.

I should add that the policy behind this amendment is not in any way the secular enforcement of a religious procedure, even though English law expressly provides recognition of Jewish and other religious divorces, but rather the prevention of abuse of the contractual release required particularly under Jewish law. Such abuse can affect the negotiating position of the wife, as well as her right to remarry. The policy which I have mentioned is consistent with other policies in civil law which try to end limping marriages and try to facilitate a clean break where practicable. It is also consistent with the requirement of Section 49 of the Supreme Court Act 1981 to secure, so far as possible, that all matters in dispute between the parties are completely determined. Finally, I suggest that it will facilitate remarriage and the recognition within the community concerned of any second family.

I am grateful for the assistance of those advising the noble and learned Lord the Lord Chancellor in the drafting of this amendment and I am grateful to the noble and learned Lord himself for pointing out the various pitfalls and problems in earlier amendments. Despite that help, I should emphasise that in no sense is this a government amendment, but nevertheless I hope that it is an amendment which will find support from all parts of the House. I beg to move.

Lord Jakobovits: My Lords, there is no need to rehearse once again the considerations leading to the presentation of this amendment which was so splendidly put before us by the noble Lord, Lord Meston. I would merely want to add two remarks on the significance of this amendment, which I hope will be accepted.

First, I dare say that of all the new clauses and new amendments now introduced into this Bill none will have more immediate significance as a source of relief to those affected than this particular amendment. It would mean, possibly, that they would not have to remain in a state of suspension, neither married under the previous marriage which has ended in a civil divorce, nor being able to contract a new one because of the commitments entered into at the time of the original bond between them. Therefore the amendment will come as an enormous relief to those in our community, and far beyond. In many foreign countries people have constantly watched the progress of this amendment with a view, possibly, to adopting it to resolve what has proved to be an agonising problem caused by the exploitation of one party. Usually it is the wife who is held to ransom by the husband but this can occur the opposite way around. I hail with profound appreciation on behalf of a grateful community all those who have contributed to this historic amendment. I hope that it will be passed and will be confirmed in another place.

Secondly, on most matters of policy there are deep divisions within the Jewish community. This is the one item on which all sections of our community are united, whether they be reform, liberal, orthodox or conservative. They are all united in supporting this

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measure. If there has been a degree of opposition or questioning, it was solely by individuals who spoke for themselves--and said so--and who were concerned partly with matters of principle to them, but in greater measure with presentation of the problem which did not always reflect the complete realities of the situation.

Therefore, I join the noble Lord, Lord Meston, in expressing profound and abiding appreciation, above all to the noble and learned Lord the Lord Chancellor for his immense help and counsel in making the presentation of the amendment possible, and to the noble Lord, Lord Mishcon, who has been uniquely helpful. To use the Hebrew phrase, last but not least, I should like to thank the presenter of the amendment, the noble Lord, Lord Meston.

The Lord Chancellor: My Lords, your Lordships have heard a full explanation of the amendment. I have nothing to add to it. It is for your Lordships to decide whether the amendment should be passed. As the noble Lord, Lord Meston, explained, it is a matter that concerns primarily the problem to which he addressed himself. The technicalities have been dealt with fully in the amendment.

On Question, amendment agreed to.

Clause 10 [Hardship: orders preventing divorce]:

Baroness Young moved Amendment No. 12:


Page 6, line 27, leave out subsection (2) and insert--
("(2) Such an order (an "order preventing divorce") may be made if the court is satisfied that to grant a divorce order would be--
(a) unjust to the other party; or
(b) contrary to the interests of any child of the family.").

The noble Baroness said: My Lords, the amendment concerns what is known as the hardship bar. I appreciate that the situation under the Bill as presently drafted is a great improvement on the present situation. At present the hardship bar applies only in the case of a five-year separation without consent and would prevent a divorce application where there would be grave financial or other hardship. As only 6 per cent. of divorces at present are on the basis of a five-year separation, in 25 years the hardship bar has been accepted only once, based on grave hardship.

Therefore, it is a great improvement that the Bill extends the hardship bar to all divorces and that my noble and learned friend the Lord Chancellor has amended the wording to "substantial financial or other hardship"; the hardship bar is also extended to include consideration of the children as well as the spouse who does not want a divorce. At the beginning of my remarks I should like to acknowledge that fact. Those are welcome improvements to the hardship bar.

However, when we debated the matter previously I expressed my anxiety that the hardship bar, even with those changes, might not be used in the future. Therefore, even if it is improved, if it is not used it will have little effect. I have been further advised that the amendments, valuable though they are, will not make much difference in practice to the operation of the

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hardship bar. Many of the people who have advised me have said that the changes are simply cosmetic and that the definition of hardship is not strong enough.

It is important to bear in mind the inherent problems with the hardship bar. The hardship bar only prevents the present application going through. Under Clause 10(5) it is possible for the court to impose conditions which must be satisfied before the bar on divorce is lifted. At the end of the day, the hardship bar is essentially a temporary bar. The previous bar failed because of the interpretation of the word "grave" by judges. Unless the hardship bar is absolutely clear--whether the word is "grave" or "substantial"--the same will happen again.

As we have said, divorce can lead to severe hardship for one spouse. No-fault divorce--which we now have--will mean that it will be impossible to defend or prevent a divorce. Divorce normally has serious economic and health consequences for both parties. We know that the existing bar is completely ineffective. I am therefore very anxious to see a strengthened hardship bar which will force people to face their responsibilities, both to their spouse and to their children. After all, a wife may have given up her entire career for the sake of bringing up children, and a financial settlement following a divorce would not be adequate compensation.

I put down the amendment because I am advised that it would strengthen the hardship bar. I do not in any way wish to undermine it. Far from it. When we have discussed the matter all of your Lordships have seen the value of the bar. Clause 10 is entitled "Hardship: orders preventing divorce". I understand that it is to be seen as a longstop, which is very valuable. However, it is of no value to anybody if it does not work. I have been advised that, valuable though the changes are, if they will not work, they are not of value. Many lawyers feel that the clause as it stands will suffer the same fate as the clause in the 1969 Act. The amendment is designed to strengthen the hardship bar. I beg to move.


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