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Lord Burnham: My Lords, the hardships we are considering under this group of amendments relate both to the children of the marriage and to the other party. As far as the children are concerned, is this not yet another case where an amendment is totally unnecessary by reason of the provisions of the Children Act? The court has discretion to apply the whole panoply of the powers of that Act to cure any problems which may arise on behalf of the children.

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With regard to the other party, there are so many conditions which apply before a divorce can be granted that it is surely not necessary on this rather smaller point to apply the hardship bar in this case.

I assume my noble friend Lady Young was speaking to this whole group of Amendments Nos. 12 to 15. Is not the provision that,


    "the burden of showing that dissolution of the marriage will not adversely affect the interests of any child of the family shall rest on the party seeking the divorce"

a little unjust to the other party, who has a very considerable interest in the matter?

As a final point I note that that amendment proposes that subsection (6) should be omitted. That subsection provides:


    "In this section 'hardship' includes the loss of a chance to obtain a future benefit (as well as the loss of an existing benefit)".

Am I right in thinking that my noble friend Lady Young has dropped any claim that on divorce a future pension should be shared between the two parties to a marriage?

Viscount Brentford: My Lords, I too was slightly disappointed that my noble friend Lady Young did not explain more clearly the differences between her amendment and the existing Bill. For instance, in Amendment No. 13 reference to health is imported in subsection (b), which I should have thought was probably covered by the interests of children. I wonder why she has specifically incorporated that.

I should also have liked my noble friend to explain the significance of subsection (d), which the noble Lord, Lord Clifford of Chudleigh, asked about, and what it is meant to cover that is not covered by the Bill at present.

In addition, I cannot see why in this group of amendments she has removed part of the existing subsection (2) and put it into the new subsection. It seems to me not to make an enormous difference overall except for these new additions. I question whether it is worth making Clause 10 this much more cumbersome and complicated. I am not clear where it is leading us. I am very happy with the revised Clause 10 as it now stands in the Bill after the amendments which have already been agreed. It seems to me to be clear.

I have too many questions as to what this amendment means. I believe it is important that we should be satisfied that Clause 10 is clear in what it says so that the courts can interpret it as clearly as possible. I should certainly need a lot more explanation before I was happy with this amendment.

6.45 p.m.

Lord Hylton: My Lords, I do not know whether my noble friend Lord Clifford of Chudleigh was referring to the Roman Catholic system for annulling marriages. That system starts from totally different premises from divorce law and I think it would be a great mistake to try to import it into this Bill. Nor do I think that parties should be allowed to plead their religious beliefs as a way of preventing a divorce from taking place.

Lord Irvine of Lairg: My Lords, I have to confess that I am somewhat puzzled and I should welcome an

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explanation from the noble Baroness, Lady Young, as to why she considers it right to drop the existing subsection (6) of Clause 10. However, the purpose of my rising to my feet is to demonstrate my even-handedness and to support the suggestion which she makes in Amendment No. 15, essentially for the reason given by the noble Lord, Lord Renton. From a reading of Clause 10, it appears to me that a burden would be imposed on the other party--that is, the party other than the applicant for a divorce--to satisfy the court that the marriage should not be dissolved on one of the hardship grounds. That is how it appears to me, as I think it appears to the noble Lord, Lord Renton. If that is so, I think there is much merit in making it express that the burden of showing that dissolution of the marriage will not adversely affect the interests of any child of the family should rest upon the party seeking the divorce and not upon the other party.

Baroness Seear: My Lords, to my great surprise, I find that on this occasion I do not agree with the noble Lord, Lord Irvine of Lairg. On this Bill I have so far agreed with everything he has said. Only on this Bill!

When it comes to proving that divorce does not affect the interests of a child, I should have thought one could show that any divorce would adversely affect the interests of the child. We have agreed all the way through that the main sufferers are the children. If this were taken literally, I should have thought a great many divorces could have been stopped. However, we accept that, regrettably, the interests of children are damaged by divorce. That is why we have been so careful to highlight the position of children all the way through. This seems to me to be negating what we have supported all along.

The Lord Chancellor: My Lords, I think I am right in saying that in proposing these amendments both my noble friend Lady Young and my noble friend Lord Ashbourne indicated that in their view hardship could be caused to the spouse or children by a dissolution of marriage. That is recognised in Clause 10 of the Bill, where the focus is on hardship.

I am grateful to my noble friend Lady Young for pointing out that the hardship bar has been extended under this Bill to all divorces whereas previously it applied only to five-year separation cases. That is a very considerable extension of the scope of the hardship bar.

In the amendments which were introduced with your Lordships' concurrence on Report the word "grave", which both my noble friends referred to as the foundation of the judicial interpretation that they found difficult or unacceptable, has been taken out and I have put in place the word "substantial", which, as my noble and learned friend Lord Simon of Glaisdale pointed out at Report stage, would in any event be understood to be there. Of course, the courts would only take account of substantial hardship.

My noble friends went on to say that they had been advised that my amendments were cosmetic. I am not absolutely certain that I know exactly what that means in the context of this particular Bill. I intend them to be effective in reducing the burden that is required to be

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proved from "grave" to "substantial". I believe that that is quite a considerable change. Noble Lords' basic concerns are with hardship, as they said in moving the amendments. Surely it is right to keep an anchor on what one seeks to aim at. If we become involved in justice and injustice, we are into litigation in a big way.

I do not believe that the institution of marriage or actual marriages will be helped in this country by tremendous litigation in connection with divorce. As I explained earlier to your Lordships, in my former career I had experience of both undefended divorces and defended divorces. At least one of the defended divorces attained great national notoriety which did nothing for the marriage, although it did a good deal for the deprivation of resources of those who were involved as parties to the litigation. It would be much better for such resources as are available to be concentrated on trying to help people at the stage where they get into difficulties.

I would be in favour of a reasonably precise hardship bar which is, nevertheless, effective to deal with the problems that my noble friend enunciated. That is the hardship to the person who does not want the divorce. Having carefully considered the arguments put forward in Committee and at Report stage, I have reached the conclusion that that is the way to handle the problem of the person who is disturbed by the fact that the marriage has irretrievably broken down and who wants it to continue because he or she does not accept the position. I do not believe that it is possible to do that in a more practical way than by basing it on hardship. That is what we have done.

The group of amendments would lead us into considerable litigation and the opportunity for malicious delay by a party who would seek to use the children as pawns in the fight. The amendments would significantly change the current hardship bar under Section 5 of the Matrimonial Causes Act 1973 and under the current draft of Clause 10. The hardship which is properly to be dealt with is hardship which has resulted or is thought to be likely to result from the dissolution of the marriage. That is the important focus of Clause 10. I venture to think that it is lost in the amendment.

It has been said more than once that I seek to introduce a no-fault divorce. Any telegraphic description of such a Bill is likely to be misleading. That description is particularly so. From the beginning I have understood that where conduct is important it should be taken into account. I have made that clear. What I disagree with is the idea that fault should be used as a basis for a dissolution order itself in some circumstance which enables it to be obtained more quickly because of the bad behaviour on which it is based than if there were no such behaviour. That is what I have been talking about. I am not and I do not think anyone who has taken part in the debates should be under any illusion that conduct in relation to the children and conduct in relation to the property are matters which the court can take into account where it is equitable and proper to do so.

I understand well the reason the amendments have been put forward, but they do not take adequately into account the point which I have sought to make. The amendments which I proposed to Clause 10 which were

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accepted by your Lordships deal with the hardship which may be caused, to which my noble friends referred. I have no doubt that the courts will direct attention to the new clause, if and when it becomes law and in force, in a way that will recognise that the clause is different from what it was before. The courts will recognise that "grave" has been dropped and instead "substantial" has been used. I would therefore expect them to give effect to what the House has so far decided in their consideration of any future case.

I do not see why subsection (6) in Clause 10 should disappear. It strikes me as important. All the problems of pensions may some day be solved, but I would not guarantee it at the moment. It seems to me right to keep subsection (6) in place. I would not wish to alter the onus of proof without a good deal of further consideration. The whole purpose of the arrangements is to do everything possible to minimise the effect of what has happened on children. Dissolution of the marriage is something which one would wish to prevent. But I agree with those who take the view that the greatest damage is done by the breakdown of the relationship of marriage which leads to its dissolution. One has only to see the practical circumstances of people to realise that.

I hope that my noble friends will feel that Clause 10, as amended on Report by the House, deals sufficiently with their concerns. The amendments would introduce an area which is completely uncharted and likely to lead to substantial litigation, with no or very little, likelihood of benefit to the parties to the litigation.


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