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Lord Meston: My Lords, I wish to raise a question in regard to Amendment No. 66. Having spent probably too long over the years looking at suspect divorces, I have always had a concern about the potential misuse of Clause 9(2)(d) of the Bill which provides that one of the parties may declare that,


It has always struck me that there is potential for misuse and misrepresentation in that clause. I have taken some comfort from the fact that the Bill properly preserves a role for the Queen's Proctor. However, Amendment No. 66 provides that,


    "The validity of a divorce order ... is not to be affected by any inaccuracy in the declaration".

That raises in my mind a question as to what degree of inaccuracy there must be for the divorce process to be wholly undermined. For example, if a party who ought

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to disclose substantial assets declares inaccurately that he has none, and moreover he ought to declare that the other party intends to make an application, but declares the opposite, why should such an inaccurate declaration not affect the validity of the divorce?

One can see that there may be situations in which the inaccuracy is trivial or innocent, though it is difficult to see, in the context of Clause 9(2)(d), how an inaccuracy could be other than substantial. It would mean that there were significant assets on one side or the other and that there was in fact an intention to make an application on the part of the other spouse. That is the only possible type of inaccuracy that could arise under that clause. It further begs the question therefore: what effect, if any, does an inaccuracy have if it is not trivial or innocent, but is a complete misrepresentation by the party making the declaration who is trying to hoodwink the court and the other party?

The Lord Chancellor: My Lords, the intention is that these declarations should be statutory declarations and therefore any falsity contained in them will carry sanctions under the Statutory Declarations Act. In relation to the consequences of a false declaration, other remedies are available.

The point of this amendment is that it should not affect the validity of the divorce order itself. One can see that once a divorce order is granted rights may accrue as a result of that which may be awkward. That is why we made that provision.

On Question, Motion agreed to.

COMMONS AMENDMENTS

64 Schedule 1, page 43, line 19, after 'must' insert ', in prescribed cases,'.
65 Page 43, line 20, after 'must' insert ', in prescribed cases,'.
66 Page 43, line 20, at end insert--
'( ) The validity of a divorce order or separation order made by reference to such a declaration is not to be affected by any inaccuracy in the declaration.'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 64, 65 and 66 en bloc. I spoke to these amendments with Amendment No. 63.

Moved, That the House do agree with the Commons in their Amendments Nos. 64, 65 and 66.--(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

67 Schedule 2, page 45, leave out lines 7 to 10.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 67. In moving this amendment I shall speak also to Amendments Nos. 68 to 77, 79 to 82, 93 and 94, 96 to 102 and 105 to 107 inclusive. This group of amendments relates to financial provision on divorce. Amendments Nos. 67 to 69, 72 to 77, 79 to 82, 94, 101, 105 to 107 are of a technical drafting nature and effect no policy change.

27 Jun 1996 : Column 1113

Amendments Nos. 70 and 71 give the court power to make orders for interim lump sum payments on nullity. During the Report stage in this House the Government tabled amendments giving the court a statutory power to make interim lump sum orders in favour of a party to the marriage and a child of the family when an application for a financial provision order under the new Section 22A of the Matrimonial Causes Act 1973 on divorce and separation is made. The Government had it in mind to give the court similar powers in relation to nullity in this House but were concerned not to come forward with amendments on nullity which would risk being beyond the scope of the Bill. I was delighted to see that the amendments were made in the other place and that they did not go beyond the scope of the Bill.

Amendment No. 93 was moved by the Government at the Committee stage of the Bill in the other place. It emphasises that it is conduct of whatever nature which it would be inequitable to disregard which is to be taken into account when the court is considering financial provision on divorce. The amendment also clarifies that the conduct to be taken into account is conduct whether it occurred during the marriage or after the separation of the parties or (as the case may be) dissolution or annulment of the marriage. The amendment does not make any significant change to the existing law. The role of conduct in ancillary relief proceedings has not changed and there is therefore no question, as has been suggested in some quarters, of conduct being introduced through the "backdoor".

The purpose of the amendment is to emphasise what the law is at present on this aspect because it was misrepresented or, at least, some people were under the impression that only particular types of financial conduct, for example, were relevant in this connection. It is right that we should make it clear on the face of the Bill what is the present law on this matter in order to avoid misrepresentation.

The noble Lord, Lord Clifford of Chudleigh, tabled amendments to Section 25(2)(g) of the Matrimonial Causes Act 1973 during the passage of the Bill through this House. I was unable to accept those amendments as they sought substantially to increase the role of conduct in ancillary relief proceedings, and the advice of my Ancillary Relief Advisory Group on that matter was that the role of conduct should not be increased. During the passage of the Bill in the other place, concern was expressed by my then Parliamentary Secretary that in practice there was a perception that it is only conduct of a financial nature to which the court is to have regard. I am pleased to say that the Government moved this amendment to clarify the position, as I have sought to explain. My Ancillary Relief Advisory Group is content that the amendment does not increase the role of conduct in this matter.

Amendment No. 96 was moved by the Government in the other place and extends the court's powers to make orders between parties to a marriage where one spouse has failed to provide reasonable maintenance to the other or to a child of the family (subject to the Child Support Act 1991) by giving the court a statutory power to make interim lump sum orders by way of

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maintenance. This extension strengthens the remedies available for financial relief during marriage and may be particularly useful to a spouse who has attended an information session during the three months from this time to the time when a statement of marital breakdown is received by the court.

Amendments Nos. 97 and 102 are consequential to the alternations to Section 27 of the 1973 Act in Schedule 8. Amendments Nos. 98, 99 and 100 were also moved by the Government in the other place and give the court power to vary all types of property adjustment orders made before a divorce order or separation order is made and also lump sum orders made before this time. It should only be possible to apply for this power of variation to be exercised before the divorce or separation order is made and before the order takes effect. The amendment was moved to alleviate concern that the final nature of these orders may prevent reconciliation between the parties. The amendment was in addition to the powers of variation on reconciliation which were already included in the Schedule 2 to the Bill.

Moved, that the House do agree with the Commons in their Amendment No. 67.--(The Lord Chancellor.)

On Question, Motion agreed to.

9.30 p.m.

COMMONS AMENDMENTS

68 Schedule 2, page 46, line 14, leave out from 'consideration' to end of line 15 and insert 'is interrupted under section 7(8) of the 1996 Act.'.
69 Page 46, line 30, at end insert--
'(5) In this section, "period for reflection and consideration" means the period fixed by section 7 of the 1996 Act." '.
70 Page 46, line 42, after 'order', insert 'an interim order for the payment of a lump sum,'.
71 Page 46, line 44, after 'order', insert 'an interim order for the payment of a lump sum'.
72 Page 48, line 45, leave out from 'consideration' to end of line 46 and insert 'is interrupted under section 7(8) of the 1996 Act.'.
73 Page 49, line 7, leave out '22A' and insert '23A'.
74 Page 49, line 12, at end insert--
'(5) In this section, "period for reflection and consideration" means the period fixed by section 7 of the 1996 Act." '.
75 Page 49, line 40, after '(b)' insert 'above, unless sub-paragraph (ia) below applies,'.
76 Page 49, line 41, at end insert--
'(ia) where the order is made by virtue of section 22A(2)(b) above and the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, than the date of the making of that application;'.
77 Page 49, line 42, leave out 'or (d)' and insert 'above'.
78 Page 50, line 3, leave out 'an order of divorce' and insert 'a divorce order'.
79 Page 50, line 12, after 'above' insert ', except where paragraph (aa) below applies,'.
80 Page 50, line 13, at end insert--
'(aa) in the case of an order made by virtue of section

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22A(2)(b) above where the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, the date of the making of that application;'.
81 Page 50, line 14, leave out 'such'.
82 Page 50, line 14, leave out 'or (d)'.
83 Schedule 3, page 51, line 37, after 'means' insert '--
(a)''.
84 Page 51, line 38, at end insert 'or
(b) if the proceedings are for the conversion of a separation order into a divorce order under section 4 of the Family Law Act 1996, the statement of marital breakdown by reference to which the separation order was made.'.
85 Schedule 8, page 66, line 37, leave out from 'In' to 'section'.
86 Page 66, line 38, after 'applies)' insert '--
(a) in subsection (2)(a)(i),'.
87 Page 66, line 39, leave out 'and'.
88 Page 66, line 39, at end insert '; and
(b) in subsection (2)(c)(v), after "Matrimonial Causes Act 1973" insert "(as that Act had effect immediately before the passing of the Family Law Act 1996)".'.
89 Page 67, leave out lines 4 to 13.
90 Page 67, line 46, at end insert--
'Proceedings after decree nisi: general powers of court.

15B.--(1) Where a decree of nullity of marriage has been granted under this Act but not made absolute, then, without prejudice to section 15A above, any person (excluding a party to the proceedings other than the Queen's Proctor) may show cause why the decree should not be made absolute by reason of material facts not having been brought before the court; and in such a case the court may--
(a) notwithstanding anything in section 15 above (but subject to section 41 below) make the decree absolute; or
(b) rescind the decree; or
(c) require further inquiry; or
(d) otherwise deal with the case as it thinks fit.
(2) Where a decree of nullity of marriage has been granted under this Act and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned in paragraphs (a) to (d) of subsection (1) above.'.
91 Page 67, line 47, after 'divorce' insert 'to'.
92 Page 67, line 48, leave out from '19)' to end of line 6 on page 68 and insert '--
(a) for "1(5), 8 and 9" substitute "15, 15A and 15B"; and
(b) for "divorce" in both places substitute "nullity of marriage".'.
93 Page 68, line 16, after '23A";' insert--
'( ) in paragraph (g), after "parties" insert ", whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be) dissolution or annulment of the marriage,";'.
94 Page 69, line 6, at end insert 'and, if the first party has already applied to the court for the making of such an order, it may dismiss the application.'.
95 Page 69, line 14, after '25C(1) and (3)', insert 'and'.

27 Jun 1996 : Column 1116


96 Page 69, line 21, leave out from beginning to 'substitute' in line 22 and insert--
'--(1) Section 27 (financial provision orders etc. in case of failure to provide proper maintenance) is amended as follows.
(2) In subsection (5)--
(a) after "an order requiring the respondent" insert "--
(a)"; and.
(b) at the end insert ", or
(b) to pay to the applicant such lump sum or sums as the court thinks reasonable."
(3) For subsection (6)'.
97 Page 69, line 27, at end insert--
'(4) In subsection (7), for "(6)(c) or (f)" substitute "(6)".
98 Page 70, line 13, at end insert--
'( ) after paragraph (dd) insert--
"(de) any other order for the payment of a lump sum, if it is made at a time when no divorce order has been made, and no separation order is in force, in relation to the marriage;";'.
99 Page 70, line 17, at end insert--
'(ea) any order under section 23A which is made at a time when no divorce order has been made, and no separation order is in force, in relation to the marriage;".'.
100 Page 70, line 24, after '(4A)' insert--
'In relation to an order which falls within subsection (2)(de) or (ea) above ("the subsection (2) order")--
(a) the powers conferred by this section may be exercised--
(i) only on an application made before the subsection (2) order has or, but for paragraph (b) below, would have taken effect; and
(ii) only if, at the time when the application is made, no divorce order has been made in relation to the marriage and no separation order has been so made since the subsection (2) order was made; and
(b) an application made in accordance with paragraph (a) above prevents the subsection (2) order from taking effect before the application has been dealt with.
(4B) '.
101 Page 71, line 23, leave out '(9) and (10)' and insert '(7) and (8)'.
102 Page 71, line 40, at end insert ', so far as it requires the making of periodical payments."'.
103 Page 72, leave out lines 9 to 28.
104 Page 72, line 31, leave out 'Family Law Act 1996' and insert '1996 Act'.
105 Page 73, line 4, after '22A', insert 'or 23'.
106 Page 75, leave out lines 3 and 4 and insert--
'"(a) section 22A(5) (provisions about lump sums in relation to divorce or separation);
(aa) section 23(4), (5) and (6) (provisions about lump sums in relation to annulment);".'.
107 Page 75, line 17, leave out from 'etc.)' to end of line 27 and insert '--
(a) after paragraph (b), insert--
"(bb) is executed in pursuance of an order of a court which is made at any time under section 22A, 23A or 24A of the Matrimonial Causes Act 1973, or"; and.
(b) in paragraph (c), for "or their judicial separation" substitute ", their judicial separation or the making of a separation order in respect of them".'.

27 Jun 1996 : Column 1117


108 Page 76, line 53, leave out first 'is' and insert 'has been'.
109 Page 82, line 24, at end insert--
'( ) In Schedule 11 to that Act, in paragraph 6(a) (amendment of the Domestic Proceedings and Magistrates' Courts Act 1978), for "sections 16(5)(c) and" substitute "section".'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 68 to 109 en bloc. I spoke to Amendments Nos. 68 to 77 with Amendment No. 67; to Amendment No. 78 with Amendment No. 14; to Amendments Nos. 79 to 82 with Amendment No. 67; to Amendments Nos. 83 to 92 with Amendment No. 14; to Amendments Nos. 93 and 94 with Amendment No. 67; to Amendment No. 95 with Amendment No. 14; and to Amendments Nos. 96 to 98 with Amendment No. 67. I spoke to Amendments Nos. 99 to 102 with Amendment No. 26, I think, but I am not certain--


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