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Baroness O'Cathain: My Lords, having listened carefully to the noble and right reverend Lord, Lord Habgood, there is no way in which I can support the amendments. Despite what the noble Lord said, marriage is very different when there are children and when there are not. Although a divorce in which there are no children is a disastrous situation it is easier to sort out, for instance, the financial and housing matters. When children are involved there is much more to be contemplated; for example, the educational needs, the future emotional needs, the housing needs and the financial strains which are inevitable following a divorce. For all those reasons I believe that Amendment No. 34 is the best that we can hope for and I hope that this House will not overturn it.

Lord Stoddart of Swindon: My Lords, I too oppose the amendments moved by the noble and right reverend Lord, Lord Habgood. I am surprised that he has insisted that children make no difference to a marriage. After all, marriage is about having children more than anything else. It is my belief, and I expressed it in Committee and on Report, that children mean that there at least three people to be considered in any matters of divorce and not just two.

As was pointed out, the interests of children are often different from the interests of the parent. They should therefore be paramount and it will take a great deal longer to settle those interests to suit the children and not the parents. That is why I believe that it is necessary to have the extra period of six months. I do not believe that it should be qualified in the way that the

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amendments suggest. It may only be a matter of nuance but, on the other hand, it may be more important than that when it comes to the practicalities. I believe that the safeguards set out in subsection (3B) are adequate to deal with any difficult situation.

The amendments proposed by the noble Lord will in fact increase the difficulties of the divorce in that parents will seek to use their children in arguments before the court to reduce the time from 18 months to 12 months. In that case, the children become a sort of marital football between the parties. For those reasons, I shall certainly oppose the amendments moved by the noble Lord and, indeed, I hope that he will decide not to press them.

The Lord Chancellor: My Lords, I have said already something about this matter but I should like to express my submissions to your Lordships a little more fully.

First, the amendment that the House of Commons has proposed is not automatic in the sense that the court has a power to disapply it in a situation where the postponement would be significantly detrimental to the welfare of any child of the family. Therefore, there is an overriding and important power in the court in respect of any damage to the welfare of a child of the family.

The second point that I wish to make is that the noble Lord, Lord Habgood, pointed out that he does not wish to distinguish, from the point of view of the marriage itself, between a marriage with children and a marriage without children. The obligations of the marriage as between the parties are substantially the same. Of course, when children come into the world as a result of a marriage, there are new obligations to the children which both parents have as a result of that fact. But the nature of the marriage itself is not affected.

The point that I make in response to that is that the noble Lord's amendments will permit postponement of the divorce where there are children. Therefore, he has also to recognise that from the point of view of the divorce arrangements, they will be different or may be different in a case where there are children as affecting the divorce itself. Of course, there are other arrangements but, as affecting the divorce, the noble Lord's amendments, equally with those which have been passed by the Commons, give a different status to a marriage where there are children from where there are none. That is because in the case of a marriage with children, there is a power in the court to postpone the divorce to the 18 month period or the additional six month period according to the situation of the children.

The next point that I wish to make echoes a point made by the noble Lord, Lord Irvine of Lairg. In practice, the difference between those two formulations will be relatively small because if it is in the best interests of the children that the divorce should be postponed, it is likely not to be detrimental to their welfare. On the other hand, if it is not in the best interests of the children that the divorce be postponed, it will be detrimental to the welfare of the children. Therefore, those are mirror images, the one of the other.

I should like to make one other point which was made by my noble and learned friend Lord Ackner during our discussions on Third Reading on the amendment moved

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by my noble friend Lady Young. Of course, at that time, that did not contain the power of the court to disapply the extension. My noble and learned friend said that in a case where there are children--and my noble friend Lady O'Cathain also made this point--the arrangements are likely to be more complicated and take more time to sort out than if there are no children. So it is highly likely that, in any event, the arrangements will take a good part, if not the whole, of the 18 months. Therefore, there is very little in it.

I suggest respectfully to your Lordships that the difference in practice between the amendment proposed by the noble Lord and the amendments which the Commons have passed is not sufficient to justify the view that we should invite the Commons to reconsider. It is true that the matters were discussed on a free vote as part of a Committee of the Whole House. We must remember, at least I wish to remember, that the House of Commons ultimately passed all the provisions of this Bill with a very large majority. It had a majority of 418 in favour of the Bill which is quite unusual in relation to the Third Reading of a Bill. Therefore, the package as a whole has been very forcefully endorsed.

Of course I understand the concerns of the children' organisations and others. But I feel that those considerations were well before the House of Commons because they were expressed very fully in our debate on Third Reading. The amendment moved on Third Reading embraced those points and, indeed, as some of your Lordships may remember, I read out a very succinct communication from well-known children's charities making those points.

The House of Commons has taken account of that by giving the court the power to disapply that extension where it would be detrimental to the interests of the children that that extension should apply. Therefore, I hope that the noble Lord, Lord Habgood, will feel that this matter has been considered again in your Lordships' House but that, having regard to all the circumstances and the stage which we have reached, it would not be wise to press this amendment.

I give that view as a personal view. Of course, this is a free matter. But having considered as carefully as I can and with a great deal of sympathy the point of view of the children's organisations, I think in practice the court is likely to distinguish in no degree between those two formulations and that the House of Commons has dealt quite reasonably with the point.

Lord Habgood: My Lords, I am grateful to all those who have spoken on the amendment and in particular to the noble and learned Lord on the Woolsack for what he has just said.

Despite what has been said, a certain confusion still persists. It seems to me that there is still an important difference of principle at stake here. While I accept readily that distinctions occur within marriages and within the divorce process where there are children, those distinctions arise out of perceived difficulties. Clearly, where there are perceived difficulties, the process needs to be changed.

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I am exercised about the long-term implications of having two categories of marriage because that is in effect what the Commons amendment would provide. Therefore, I regret that as an ex-Prelate, I am speaking on a moral plane about something which concerns me and many other people very deeply.

I recognise also that there are difficult political issues at stake here and I am not sufficient of a politician to be able to judge the political risks in all this. Indeed, I have already shown my political incompetence by quoting from a speech in another place and naming the person concerned, for which I apologise humbly. However, it seems to me that your Lordships' House is full of people with much more political nous than I have and that that insight would carry the day if I were to divide the House.

I am also conscious that 18 agencies have formed a coalition to sponsor these amendments and they are looking to me to see that this matter gets a fair hearing. I find myself in a tremendous quandary. I have no wish to create difficulties, but I feel that in fairness to those people it would be right for this House to make a decision. I shall leave it to the politicians to decide what is the wisest course to take, while trying to continue my assertion that on the moral level there is a substantial point at stake here. I therefore ask the House to make this decision.

On Question, Amendment No. 7A, as an amendment to Commons Amendment No. 7, negatived.

On Question, original Motion agreed to.

COMMONS AMENDMENT

8 Clause 5, page 3, line 4, leave out from 'statement' to 'has' in line 9.

8.30 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8, and with this amendment I would like to speak to Amendments Nos. 32, 35 and 36. Amendments Nos. 8 and 32 amend Clause 5 and Clause 9. Clause 5(1)(a) requires that where the division of pensions may be involved the statement of marital breakdown was made by statutory declaration. These amendments remove that requirement and instead require that where the division of pension assets may be involved any declaration relating to the couple's financial arrangements, which accompany the application for a divorce or separation order, must be a statutory declaration. These amendments do not affect the principle of pension splitting.

Amendment No. 35 paves the way for introducing pension splitting on divorce. It replaces the parts of Clause 15 relating to England and Wales, and Amendment No. 36 removes those parts from Clause 15, leaving behind a part which attempts to extend Amendment No. 35 to Scotland.

As I said at an earlier stage of this Bill, the Government are fully committed to the principle of pension splitting and we acknowledge the strength of feeling on this matter. While we have stated our belief that legislation in this Bill is premature we have, nevertheless, accepted the desire to

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see the principle of pension splitting on the face of the Bill, and so made no attempt to overturn the original Clause 15 in the other place. As I pointed out to your Lordships, that clause expressed the principle but did not will the means to put it into practice. The amendment before us today attempts to will us the means, in the absence of a full policy, by giving a range of delegated powers to my noble and learned friend the Lord Chancellor. It is not clear that even these wide powers would be capable of delivering full policy when that is settled.

Clearly, those who proposed this amendment in the other place are well aware of the range of changes likely to be required. Thus they have given my noble and learned friend powers to amend by regulation, not only secondary, but also existing primary legislation, and via the negative procedure at that. Furthermore, the noble and learned Lord the Lord Chancellor will have to use these powers to make important changes to pensions and tax law.

I have some reservations about this Henry VIII procedure, having been taught by a few of your Lordships the intricacies of this historic debate. Our work on pension splitting has already identified a considerable number of issues which, under this clause, would demand changes to regulations. That work is on course for the publication of a Green Paper at the end of July. I am sure your Lordships will welcome that. In that Green Paper we will raise all the key issues associated with pensions splitting, and seek the views of interested parties. It will look into, for example, such issues as whether state as well as non-state rights should be included, what rights a non-scheme member's spouse should be given, what obligations scheme managers should have, and to what extent their discretion should be fettered.

We will then proceed with developing a full package of policy proposals and afterwards we envisage publishing a White Paper, followed by legislation as soon as is practicable. We believe that this is a better way to proceed, not only for those who are likely to use pension splitting, but also for the pension industry and other non-divorcing scheme members.

I am convinced that further primary legislation will be necessary. However, I am mindful of the strength of feeling on this issue. The House obviously wishes to see pension splitting on the face of this Bill, and despite my reservations concerning Henry VIII procedures, I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 8.--(Lord Mackay of Ardbrecknish.)

On Question, Motion agreed to.


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