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COMMONS AMENDMENTS

29 Clause 9, page 6, line 42, leave out from 'section' to 'must' in line 44 and insert '(Welfare of children)'.
30 Page 7, line 6, leave out 'or'.
31 Page 7, line 7, at end insert ', or
(d) those set out in paragraph 3A of that Schedule,'.
32 Page 7, line 9, at end insert--
'(8) If the parties' arrangements for the future include a division of pension assets or rights under section 25B of the 1973 Act or section 10 of the Family Law (Scotland) Act 1985, any declaration under subsection (2) must be a statutory declaration.'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 29 to 32 en bloc.

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Moved, That the House do agree with the Commons in their Amendments Nos. 29 to 32.--(The Lord Chancellor.)

On Question, Motion agreed to.

The Lord Chancellor: My Lords, I am asked at the next convenient break in Business--what more convenient break can there be than this?--to make the following announcement: in the second Division, on the Security Service Bill, the figure for the Not-Contents was announced as 107. This figure should have been 109.

COMMONS AMENDMENT

33 Clause 10, page 7, line 31, leave out from 'if' to 'after' in line 32 and insert 'an application is made under section 3 or 4(3)'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 33.

This amendment simply rectifies an earlier omission in the Bill. Under Clause 10(4), after cancellation of an order preventing divorce, a divorce order can be made if an application is made under Clause 3 or Clause 4(3) of the Bill. The provision had previously failed to refer to the possibility of an application for a divorce order being made under Section 4(3), hence this amendment. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 33.--(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

34 After Clause 10, insert the following new clause--
Welfare of children

'.--(1) In any proceedings for a divorce order or a separation order, the court shall consider--
(a) whether there are any children of the family to whom this section applies; and
(b) where there are any such children, whether (in the light of the arrangements which have been, or are proposed to be, made for their upbringing and welfare) it should exercise any of its powers under the Children Act 1989 with respect to any of them.
(2) Where, in any case to which this section applies, it appears to the court that--
(a) the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Children Act 1989 with respect to any such child;
(b) it is not in a position to exercise the power, or (as the case may be) those powers, without giving further consideration to the case; and
(c) there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section,
it may direct that the divorce order or separation order is not to be made until the court orders otherwise.
(3) In deciding whether the circumstances are as mentioned in subsection (2)(a), the court shall treat the welfare of the child as paramount.
(4) In making that decision, the court shall also have particular regard, on the evidence before it, to--

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(a) the wishes and feelings of the child considered in the light of his age and understanding and the circumstances in which those wishes were expressed;
(b) the conduct of the parties in relation to the upbringing of the child;
(c) the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by--
(i) his having regular contact with those who have parental responsibility for him and with other members of his family; and
(ii) the maintenance of as good a continuing relationship with his parents as is possible; and
(d) any risk to the child attributable to--
(i) where the person with whom the child will reside is living or proposes to live;
(ii) any person with whom that person is living or with whom he proposes to live; or
(iii) any other arrangements for his care and upbringing.
(5) This section applies to--
(a) any child of the family who has not reached the age of sixteen at the date when the court considers the case in accordance with the requirements of this section; and
(b) any child of the family who has reached that age at that date and in relation to whom the court directs that this section shall apply.'.
35 After Clause 14, insert the following new clause--
Division of pension rights

'.--(1) The Matrimonial Causes Act 1973 is amended as follows.
(2) In section 25B (benefits under a pension scheme on divorce, etc.), in subsection (2), after paragraph (b), by inserting--
"(c) in particular, where the court determines to make such an order, whether the order should provide for the accrued rights of the party with pension rights ("the pension rights") to be divided between that party and the other party in such a way as to reduce the pension rights of the party with those rights and to create pension rights for the other party.".
(3) After subsection (7) of that section, by adding--
"(8) If a pensions adjustment order under subsection (2)(c) above is made, the pension rights shall be reduced and pension rights of the other party shall be created in the prescribed manner with benefits payable on prescribed conditions, except that the court shall not have the power--
(a) to require the trustees or managers of the scheme to provide benefits under their own scheme if they are able and willing to create the rights for the other party by making a transfer payment to another scheme and the trustees and managers of that other scheme are able and willing to accept such a payment and to create those rights; or
(b) to require the trustees or managers of the scheme to make a transfer to another scheme--
(i) if the scheme is an unfunded scheme (unless the trustees or managers are able and willing to make such a transfer payment); or
(ii) in prescribed circumstances.
(9) No pensions adjustment order may be made under subsection (2)(c) above--
(a) if the scheme is a scheme of a prescribed type, or
(b) in prescribed circumstances, or

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(c) insofar as it would affect benefits of a prescribed type.".
(4) In section 25D (pensions: supplementary), by inserting--
(a) in subsection (2)--
(i) at the end of paragraph (a), the words "or prescribe the rights of the other party under the pension scheme,"; and
(ii) after paragraph (a), the following paragraph--
"(aa) make such consequential modifications of any enactment or subordinate legislation as appear to the Lord Chancellor necessary or expedient to give effect to the provisions of section 25B; and an order under this paragraph may make provision applying generally in relation to enactments and subordinate legislation of a description specified in the order,";
(b) in subsection (4), in the appropriate place in alphabetical order, the following entries--
"'funded scheme' means a scheme under which the benefits are provided for by setting aside resources related to the value of the members' rights as they accrue (and 'unfunded scheme' shall be construed accordingly);
'subordinate legislation' has the same meaning as in the Interpretation Act 1978;"; and.
(c) after subsection (4), the following subsection--
"(4A) Other expressions used in section 25B above shall be construed in accordance with section 124 (interpretation of Part I) of the Pensions Act 1995.".'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 34 and 35 en bloc. I have spoken to Amendment No. 34 with Amendment No. 6 and to Amendment No. 35 with Amendment No. 8. I have spoken to Amendment No. 36 with Amendment No. 8.

Moved, that the House do agree with the Commons in their Amendments Nos. 34 and 35.--(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

36 Clause 15, page 10, leave out lines 12 to 29.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 36.

Moved, That the House do agree with the Commons in their Amendment No. 36.--(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

37 Clause 18, page 12, line 9, leave out from 'time' to end of line 10 and insert 'when no application by reference to the statement, either for a divorce order or for a separation order, is outstanding.'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 37. Together with this amendment, I wish to speak to Amendments Nos. 38 and 39. Amendment No. 37 clarifies the fact that marital

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proceedings are to be treated as being both divorce and separation proceedings unless there is an application pending for a particular order, in which case proceedings will be treated as either divorce or separation proceedings depending upon the type of order applied for. Therefore, in a situation where a party had applied for either a divorce or separation order, and the application had then been withdrawn, the proceedings would revert to being proceedings of both types until a further application was made.

Amendment No. 39 makes it clear that marital proceedings come to an end once the lapse period has passed, only when there are no applications outstanding at that time, or after any such outstanding applications are withdrawn.

Amendment No. 38 is a minor amendment, consequential upon the amendment made in the other place, which introduced the possibility of applying for an extension to the period for reflection and consideration. Clause 4 now refers to two types of application: that for an extension and that for conversion of the separation order and it is necessary therefore to identify the appropriate type of application being referred to in this clause. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 37.--(The Lord Chancellor.)

On Question, Motion agreed to.

9 p.m.

COMMONS AMENDMENTS

38 Clause 18, page 12, line 12, after '4', insert '(3)'.
39 Page 12, leave out lines 18 to 20 and insert--
'( ) at the end of the specified period mentioned in section 5(3)(b), if no application under section 3 by reference to the statement is outstanding;
( ) on the withdrawal of all such applications which are outstanding at the end of that period;
( ) on the withdrawal of an application under section 4(3).'
40 Clause 20, page 12, line 34, at end insert--
'(3) In exercising his power to make grants in connection with the provision of marriage support services, the Lord Chancellor is to have regard, in particular, to the desirability of services of that kind being available when they are first needed.'.
41 After Clause 20, insert the following new clause--
Provision of marriage counselling

'.--(1) The Lord Chancellor or a person appointed by him may secure the provision, in accordance with regulations made by the Lord Chancellor, of marriage counselling.
(2) Marriage counselling may only be provided under this section at a time when a period for reflection and consideration--
(a) is running in relation to the marriage; or
(b) is interrupted under section 7(8) (but not for a continuous period of more than 18 months).
(3) Marriage counselling may only be provided under this section for persons who would not be required to make any contribution towards the cost of mediation provided for them under Part IIIA of the Legal Aid Act 1988.
(4) Persons for whom marriage counselling is provided under this section are not to be required to make any contribution towards the cost of the counselling.

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(5) Marriage counselling is only to be provided under this section if it appears to the marriage counsellor to be suitable in all the circumstances.
(6) Regulations under subsection (1) may--
(a) make provision about the way in which marriage counselling is to be provided; and
(b) prescribe circumstances in which the provision of marriage counselling is to be subject to the approval of the Lord Chancellor.
(7) A contract entered into for the purposes of subsection (1) by a person appointed under that subsection must include such provision as the Lord Chancellor may direct.
(8) If the person appointed under subsection (1) is the Legal Aid Board, the powers conferred on the Board by or under the Legal Aid Act 1988 shall be exercisable for the purposes of this section as they are exercisable for the purposes of that Act.
(9) In section 15 of the Legal Aid Act 1988 (availability of, and payment for, representation under Part IV of the Act), after subsection (3H) insert--
"(3I) A person may be refused representation for the purposes of any proceedings if--
(a) the proceedings are marital proceedings within the meaning of Part II of the Family Law Act 1996; and
(b) he is being provided with marriage counselling under section (Provision of marriage counselling) of that Act in relation to the marriage."'.
42 Clause 21, page 13, line 1, at end insert--
'"non-molestation order" has the meaning given by section 39(1);
"occupation order" has the meaning given by section 36;'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 38 to 42. I spoke to Amendments Nos. 38 and 39 with Amendment No. 37, I spoke to Amendment No. 40 with Amendment No. 1 and I spoke to Amendment No. 42 with Amendment No. 2. With your Lordships' leave, I shall move them en bloc.

Moved, That the House do agree with the Commons in their Amendments Nos. 38 to 42.--(The Lord Chancellor.)

On Question, Motion agreed to.


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