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Lord Stallard: My Lords, yes, or dinosaurs. We have heard all that. I have the feeling that that attitude is with us again tonight. I have felt that all those of us who do not agree with the provisions have been dubbed all those things.
The effects of divorce proceedings on children are not always shown in surveys but, certainly, they are shown in surveys relating to this Bill. They should make us halt and consider where we have gone wrong and, if necessary, call a stop to the process of automatically accepting what is and give a lead to what should be.
The costs of divorce were mentioned briefly by the noble Baroness, Lady Young. The figure amounts to several billion pounds per year and includes legal aid, welfare payments, extra housing, court costs, judges, lawyers, accountants, conciliators, counsellors, sickness, lost time and God knows how many other things. That adds up to billions of pounds which, had the money been spent in the right way, might have seen the saving of many marriages. It is not too late yet.
One should add to that the bitterness, acrimony, hardship and even the suicides of which we have heard resulting from the introduction of the Child Support Agency. The effect of such legislation is vividly outlined by the leaflet circulated by the victims of the CSA to many Members of this House.
During the last few minutes left to me I wish to make a suggestion along the lines that I have mentioned. The Bill is designed to make greater use of the mediation process in an attempt to save some marriages. But mediation does not mean that at all. Mediation is not reconciliation; it is a totally different process. Indeed, if we understood our Latin lessons we know that it is a completely different word. Mediation and reconciliation are totally different. We do not want mediation, which focuses on the future and not on the past. It accepts that the marriage is broken and that we should sort out who gets the house, who gets access to the children and how much it will cost. The mediators, who are paid by the session, will make them last as long as they can. Already we are being lobbied by some powerful people who want to get into the mediation which will be set up as a result of the Bill. Many mediators will be paid to mediate but only after the damage has been done.
I recognise that my suggestions may not be fashionable and may not even be politically correct but I do not care. I believe that they are necessary and sensible. I do not even consider that this is a party issue and I do not approach it on a party line. I take the view that the matter is more serious and cannot be knocked about like a party political item at an election. The matter should be taken seriously by the whole House. I hope that more priority resources will be made available to all the organisations which are working hard along the lines that I have outlined on reconciliation to save marriages, to prevent divorces and to prevent the increase in divorces that will result if the Bill is passed.
Lord Simon of Glaisdale: My Lords, when I spoke on his measure in the debate last week I ventured to suggest that, if the Bill were passed into law, marriage would, in effect, be an arrangement between the parties to live together until one gave a year's notice of its termination, whereupon it would determine, irrespective of the wishes or interest of the other party or of the children. No one who followed me in that debate--and many did, including the Minister--controverted that view. Nor has any noble Lord who has preceded me today. Therefore, my first question must be: is that really the kind of marriage that your Lordships wish to see constituted in this country? I humbly suggest that that is a matter that the Bench of Bishops should face specifically.
Another strange aspect arises. As a Cross-Bencher I naturally take an interest in comparative government. I have been asking myself what are a Conservative Government doing bringing in a measure such as this? If I am right in saying that it would be terminated irrespective of the wishes of the other spouse or the children it must be obvious at the outset that there will be a substantial risk of injustice, especially to married women, and a disadvantage to children.
Before I try to spell that out more clearly, perhaps I may deal with an observation made by my noble friend Lord Habgood, who sought to justify the concept of irretrievable breakdown as a proper basis for divorce by relying on the document Putting Asunder. I thought that he was on rather dangerous ground because that implicated quite clearly the Church with the disaster of the 1969 Act. I say "disaster" because the very point of departure of the White Paper has been the mischief of the 1969 Act. The figures have been quoted repeatedly for the dramatic rise in the number of divorces and the children affected consequent on that Act.
The right reverend Prelate the Bishop of Oxford was inclined to suggest that the increase that follows every liberalisation facilitating divorce represents an initial surge, the taking-up of a backlog. But that was certainly not so. After the 1969 Act came into force, it is true that there was a 44 per cent. increase in the number of divorces. But it did not stop there. The numbers went on rising constantly from that point until, according to the latest figures, there are 2.5 times as many divorces as there were in 1970 and, therefore, 2.5 times as many children who have been affected--168,000 according to the 1992 figures, which are the latest that we have. However, one must add that figure to the number of children under 16 who were affected by divorce in previous years and who were still under 16 in 1992.
The fate that was visited on those children was admirably described by my noble and learned friend the Lord Chancellor in the passage which I quoted in our recent debate. It was spelt out, if I may say so, most movingly by the noble Baroness, Lady Young, in her extremely important speech today.
My noble and learned friend the Lord Chancellor will remember, because he dealt with it with such dialectic and parliamentary skill, the Child Support Act. That was launched by a White Paper entitled Children Come First. Do they come first under this Bill? Do they not rather come last? Are they not deferred to the wishes of their two parents to be rid of each other but, furthermore, are they not deferred to the wish of one parent to be rid of his marriage and possibly because he wishes to contract another one?
Obviously, the damage to the children will be less if the parties can part without acrimony. For that reason, as well as because we put them forward in the context of the family court, the proposals for mediation and conciliation are to be welcomed. While damage limitation is to be welcomed, is it not really preferable to try to avoid causing the damage?
I have dealt with the children and I turn now to the married woman. Your Lordships may remember the story of the traveller who asked an elderly inhabitant, "Which is the way to Littlecombe?" The answer to that was, "If I were going to Littlecombe, I wouldn't start from here". That is the real fault of the White Paper and indeed, the Law Commission Report. It starts from the wrong point. The right point would surely have been to ask what it is about traditional marriage as a norm that makes it congenial to western society.
There are a number of reasons why marriage--that is, a lifelong monogamous marriage for joint life--should be found to be congenial. I wish merely to isolate one of those reasons because it seems to me to be fundamental and its disregard is redolent of injustice.
Society needs two things for its continuance: one is production and the other is reproduction. Reproduction is needed to generate the successors. Production is needed, economic activity is needed, to sustain them. The main burden of reproduction falls on a wife. It is she who bears the child for nine months; who alone can suckle a child, although others can give a bottle; and by doing that, she incapacitates herself for her own economic effort. Moreover, she releases the husband for his economic effort. He can advance himself economically. In other words, one sees a co-operative division of labour. While there is a co-operative division of labour, in equity, the fruits of the labour should be shared between the parties.
But in the case of marriage, there is an additional factor; that is, that the early years are generally more difficult than the later years. The early years are straitened; there is more work to be done, and fewer means to be enjoyed. The later years are years of ease. They are much easier. Therefore, to allow a wife to be cast off at the end of the difficult period so that the easier time may be shared with another woman who has found better favour in the man's eyes must be the very depth of injustice.
There is one specific aspect of that that was mentioned by the noble Baroness; that is, the pension. Increasingly the emoluments of labour are deferred to be paid in the form of pension after retirement and to a widow after the death of the man who has earned it. What could be more unjust than to allow that pension to be carted off to another person in another marriage?
Some emphasis has been placed on the spate of propaganda that we have had on the safeguard of grave financial and other hardship which allows a court to refuse the divorce. Why should a wife who has substantially performed her matrimonial role have to suffer any hardship at all? Why should she suffer grave hardship? I am told that, in fact, only once since 1970 has the court invoked that provision. I tried to get the figures from the Lord Chancellor's Department, but they are evidently not available. However, that is what I have been told by practitioners.
Perhaps I may deal briefly with mediation and the end to the quickie divorce. There has never yet been this century a divorce Bill where the pill has not been sugared. A very good example is A. P. Herbert's Matrimonial Causes Act 1937. There were two baits on
As for mediation, naturally we who pressed for a family court--of which that was a centre--welcome it. But it is not enough. We concede that the family court should also in its welfare wing have a reconciliation role and, indeed, a social welfare role. Those are missing from the Bill. We failed to get anywhere with the Government on our plea for a family court, despite the support of the Finer Committee on One-Parent Families and of the Law Society (prompted by the Family Law Division) and, most importantly, in your Lordships' House that of the noble Lord, Lord Mishcon, and the noble Baroness, Lady Faithfull. Nevertheless, the courts did what they could.
My predecessor as President in the High Court appointed a group of welfare officers. Their mediation is primarily to do with children. On the whole it has been useful, although comprehensive mediation is likely to be more useful. I do not have the figures with me, but my recollection is that the welfare officers alone engaged in 192,000 mediations in the last recorded year. My noble and learned friend on the Woolsack will probably have the figure and be able to verify it.
When I succeeded Lord Merriman, I went to the marriage guidance group of the National Marriage Guidance Council and the Roman Catholic and Jewish counterparts. They gladly came in and contributed reconciliation and marriage guidance, in addition to mediation. The other feature was a number of local groups. I only have direct contact with one--the one in Teesside--which engages in general married guidance, including reconciliation as well as mediation and conciliation. The noble Baroness, Lady Faithfull, mentioned her Oxford group last week. Moreover, my noble friend Lord Habgood has done a great deal in that connection. Reconciliation is most important.
Finally, I turn to the quickie divorce which has been at the forefront of the propaganda. The noble Lord, Lord Stallard, held up a pamphlet which was on top of the enormous and expensive parcel that was sent to us last week. It is headed, "An end to the quickie divorce". Who would think from that that the quickie divorce was solely the creation of the Lord Chancellor's Department which now claims that its disappearance justifies this further step towards the sort of marriage that I ventured to describe at the outset of my address to your Lordships?
Perhaps I may deal briefly with Part III of the Bill. I understand the wariness of Members in the other place at finding marriage approximated, as so much is in that place, to parties living together in a regular union. On the other hand, as the noble Lord, Lord Irvine, pointed out, there is a considerable history here, principally in
As the Government withdrew the Bill last Session and have now presented it to your Lordships' House, it is my view that any noble Lord or Member of the other place is fully entitled to table an amendment to any provision. The Opposition parties have indicated that they wish to challenge the changes and we shall certainly have to listen to them. However, I believe that it would be a great pity to do anything which endangers the advantages of the Jellicoe procedure. Therefore, I humbly venture to suggest that we should proceed very warily when we come to deal with Part III.
Last week I urged, as the noble Lord, Lord Stallard, has just done, that there should be some positive measures in the Bill to affirm marriage. I suggested two fiscal ones. Within the scope of the Bill, by far the most important is to deal with the married woman's ownership of the matrimonial home and its chattels. It seems extraordinary that a married woman who stands by her marriage from the point of view of finance and property is in a considerably worse position than one who divorces. How can that possibly be justified? How, I ask, can bringing forward this Bill to facilitate divorce in priority to a measure dealing with married women's rights be justified? It is not as if the Law Commission had not taken up that matter; it did in the early 1970s, but that has all been left aside.
The final question which I would venture to lay before your Lordships is: how should we act on Second Reading? Before I pose that question, I hope that I may ask my noble and learned friend to deal, when he replies, with the Whipping procedures that will be used on this Bill. I hope he will be able to say that there will be no Government Whips at all and that there will be a free vote for every Member of Parliament in either House. Having said that, the Salisbury convention does not apply to this Second Reading. Nevertheless I shall myself, when the voices are collected, be voting in favour of this Bill because I believe that the mediation procedure, so far as it goes, is worth having. I am anxious to get rid of the quickie divorce and I am anxious to get rid of the provisions of the 1969 Act which are repealed in the schedule. There is also Part III, which I believe it would be wrong to jettison after the consideration it received last Session. Therefore, with distinct misgiving as regards much of this Bill, I venture to support its Second Reading.
The Duke of Norfolk: My Lords, I start by apologising to the House for not having been present for the start of this debate. I was privileged to attend Vespers at Westminster Cathedral. That service was attended by Her Majesty the Queen, the most reverend Primate the Archbishop of Canterbury, the Moderator of the Free Churches and many others. It was a moving, humble and spiritual occasion.
Perhaps every recent attempt at reform has resulted in more divorces but the present position is hopeless and is crying out for wise and sensible reforms. I should add that many of the figures which we have all been quoting relate to marriages. There is also the situation where couples have cohabited for a period and then that relationship breaks up: they are not included in the figures. Family life in this country is in a terrible way. I firmly believe that marriage is absolutely essential to the well-being of society. It is a contract or covenant by which a man and a women freely consent to live with each other. As we all know, the words of the marriage service are:
Marriage signifies a partnership of a man's and a woman's whole life as spouses and in the procreation of children. That is clearly spelt out. Between the baptised of all Christian faiths the marriage covenant has been raised by Christ to a sacrament. Marriage is woefully in need of strengthening by an effective family policy and the likelihood of divorce needs to be lessened by making adequate resources available to increase education for marriage and to bring about a change in people's attitudes and expectations regarding marital relationships and the bringing up of children before marriage ever takes place. That must include helping young people to acquire the necessary social skills of communication, to deal sensibly and maturely with conflicts and to develop an understanding of what commitment means in terms of changing and adapting within the marital relationship as the couple grow up.
Provision needs to be made for the generous funding of marriage counselling services and other organisations supportive of marriage and family life so that access to such services is available when difficulties begin to arise in a couple's life. This must take place long before the word "divorce" is considered. Families, including single parent families, need support through the tax and benefit systems and they must have access to adequate housing, employment and child care facilities.
As has been said before, the current cost of divorce is £3.4 billion but the Government spend only £3 million in subsidising marriage help organisations such as Marriage Care, One Plus One, Relate and the Jewish Marriage Council. There are others. I recommend that the Treasury should increase the amount of money which is given to those organisations. That would represent a great economy and it would prevent divorces. I have heard people say that they cannot spend more money, but I am suggesting that the Treasury
Divorce legislation was first introduced in 1857. Before then, one had to obtain a special Act of Parliament, as did one of my ancestors. However, that is another story. The legal understanding of marriage has radically changed since 1857. From being understood and defined in law as indissoluble, marriage has become, both in law and in the common understanding of many, a temporary union. A covenant for life has been replaced in effect by a legal commitment to stay with one's husband or wife until one or the other decides to go.
Under the 1969 and 1973 divorce Acts the sole ground for divorce has been irretrievable breakdown. It was intended that most divorcing couples would seek to rely on either a two-year separation, with both parties consenting to a divorce, or a five-year separation if only one party was willing to divorce. However, in recent years 75 per cent. of divorces have been achieved in six months through what is called the special procedure system under the fault grounds of adultery, desertion and unreasonable behaviour. Those fault grounds have been open to collusion, dishonesty and contrivance to obtain what has been nicknamed "quickie" divorces which amount to de facto, unilateral divorce on demand. I welcome the proposal to abolish those quickie divorces and substitute a minimum period of at least a year. Perhaps it should be longer. We also need state-funded help for reconciliation. If that fails and there is to be a divorce, there is need for mediation and advice upon the arrangements that have to be made for the future.
Research shows that many people were not fully convinced that their marriage was really over when they started legal proceedings. The current system harnessed them to a conveyor belt which somehow they could not jump off. In one study, 50 per cent. of divorced men and 29 per cent. of divorced women stated, after six years, that they wished that they had not divorced and had remained married.
I congratulate the noble and learned Lord the Lord Chancellor on having grasped this nettle--it is a horrible nettle to grasp--and on having removed divorce from the Home Office and taken it under his own wing. He has called this not the Divorce Bill, because that is not its aim, but the Family Law Bill. He is trying to strengthen family life. I give him my full support in what he is trying to do.
The Lord Bishop of Birmingham: My Lords, I begin with a proposition which may sound surprising but which I believe to be true. There can be no such thing as a good divorce law. That is because the problem it seeks to address is itself inherently disordered. The breakdown of a human relationship, though in particular circumstances it may be unavoidable and even understandable, can never be an intrinsically good thing. What the law tries to do in providing for divorce is to mitigate the effects of something which in itself is not good and not satisfactory. For that reason one can never
Another fact to be faced is that the availability of divorce, despite what some of your Lordships seem to have been saying, does not directly cause the breakdown of marriage. It is a response to it. The causes for the breakdown of marriage as an institution in our society lie much deeper. Of course, the law may encourage people to give up on marriage more quickly than they might otherwise (which is a reasonable charge against the present state of the law) or, by making divorce difficult to obtain, it may disguise the extent of matrimonial breakdown. There is a correlation between the rise in divorces in the late 1940s and the availability of legal aid. Before that the poor could not divorce. Nevertheless, the law on divorce remains in essence a response to the fact of breakdown, not a cause of it. The law on divorce is therefore an attempt to provide an orderly framework for dealing with the consequences.
If, as a society, we want to support marriage as a public good, there are, as we have heard from many of your Lordships, other more effective means to hand, like giving effective and adequate support to the agencies which may help people to prepare for marriage and stay married. Enough has already been said by Members of the House on that subject.
A few moments ago I mentioned the facts of human fragility and sin. Nevertheless, I believe that the proposals before the House are right in maintaining the principle of the irretrievable breakdown of marriage as the sole ground for granting divorce. As we have heard, that principle was fatally compromised in the 1969 Act by the covert retention of the principle of fault through the possibility of alleging the facts of adultery and so on as grounds for the granting of immediate divorce. That is what has largely led to the present deplorable availability of so-called quickie divorces, some of which we are told could have been avoided had there been more time for reflection.
So the Bill is to be welcomed for removing that avenue to rapid divorce and for combining the principle of irretrievable breakdown with a requirement for a time for reflection and consultation before irreversible action is taken to dissolve a marriage.
To say that irretrievable breakdown should be the sole ground for divorce is not to deny personal responsibility for the breakdown of a relationship. It is not to deny the place of human fault and sin in the process of matrimonial breakdown. It is to say that a human court of justice is too blunt an instrument for apportioning blame in so complex an area of human behaviour, especially if the processes one has invite one to say that it is all the fault of one side or the other. Anyway, what is the point of apportioning blame?
People are easily tempted to think that there should be some correlation between guilt for the breakdown of a marriage and the arrangements to be made for dealing with the consequences, as if arrangements for alimony
That having been said, there is a point at which distributive justice properly comes into play; that is, in attending to the continuing obligations which have arisen out of a marriage, the obligations of the parties towards one another and towards their dependants. That is where the courts properly come in. Those claims and obligations are a matter for the courts and are rightly to be settled before the granting of a divorce.
Lord Gisborough: My Lords, clearly the current law on divorce is not working well. As we have heard, England has the highest divorce rate in Europe, costing, I am told, some £9 million a day. Can it really be that much?
Too many--some 40 per cent.--of marriages come unstuck, and many of them will have degenerated into domestic violence. This is a widespread evil for, quite apart from the misery, it often leads to increased alcohol abuse, drug dependency, chronic pain and depression, and also to the increased likelihood of miscarriages and low weight babies, all of which are potential costs to various departments of the health service.
At present people going through divorce often privately admit joint responsibility, but they face many hurdles. They lack information about the full consequences. They face delays in obtaining help from agencies. There is no easily discernible route for the couple to take to try to avoid a breakdown of their marriage, which they may have entered into in the first place with an inadequate idea of what it would entail.
The adversarial legal system encourages an abandonment of mutual responsibility. Separate solicitors inevitably stoke up conflict. Fast track divorce encourages the exaggeration of blame to achieve a quicker result. It is little wonder that people say that going through a divorce is the most dreadful experience of their lives. The Bill extends the help and the remedies available from the courts, and that must be a good thing.
The introduction of mediation may well save a number of marriages when the full consequences of divorce are brought home to the participants before the pitch has been destroyed and irreparable bitterness created by acrimonious resort to lawyers. It will also help to resolve the problems in respect of children with the least damage to them.
Perhaps a greater awareness of the availability of counselling and mediation could help people solve their difficulties before their situation deteriorates irrevocably. However, I believe that it is necessary that statutory privilege should be conferred on any statement made during mediation so that it could not be used later in a legal case. Otherwise participants may well be advised by their lawyers to be economical with the truth during mediation, thus reducing the chances of success. I wonder why that has not been included in the Bill.
The year's delay will allow the couple to have time to reflect on the counselling or to negotiate the separation. It may sometimes seem unfair that fault should be set aside, but there will be few cases where fault lies entirely on one side.
Research indicates that 25 per cent. of couples living apart at the start of counselling were together six months later; and 75 per cent. who completed the course were often together after six months. Forty-seven per cent. of the survey said that they should have come to counselling earlier. As we have already heard, 51 per cent. of divorced men and 29 per cent. of women regret their divorces, and perhaps mediation could have kept them together. Second marriages are not the panacea for them, for while 40 per cent. of first marriages break down, second attempts are 50 per cent. more likely to fail. Some may realise their impending regret during the year of reflection.
One issue that should be included in the Bill is the question of maintenance, capital, and, above all, the pensions of divorced persons. I believe that that has been mentioned. The wife must have a right to part of the pension built up over the years. There have been many cases of great injustice where the wife has, in effect, contributed through her care of the household but has been left with no share of the pension after her divorce.
The Bill deals with the sad but far too common cases of divorce. The Government should also try to help avoid the necessity in the first place. The Government could offer a range of services to help prepare young people for the responsibilities of marriage, family life and the discipline that it entails, thus discouraging some marriages that might be bound for disaster from the start. Children are often loath to take advice from their parents who, since the days of Adam, have been thought old and out of touch, but a third party is sometimes better heeded.
Greater funds for counselling would be needed. That must be set off against the £3.4 billion cost of divorces each year, a staggering £9 million a day, and that does not take into account the misery or crime related cost. Marriage support organisations at present cost only £3 million so any increased funding and success could pay a 10:1 dividend. Relate estimates that in 1990 it saved the taxpayer £42 million in saved marriages--a very good investment, over 10 times the cost of the service.
Lord Marsh: My Lords, the clear factor that emerges from the debate is the depth of the differences between some of us. They are fundamental differences which will emerge in Committee and which will be explored. I suspect that the Committee stage will be hard fought in many areas.
Divorce is a difficult issue. That is not surprising because marriage is one of the most peculiar contracts it is possible to envisage. When one thinks of the numbers of dear friends with whom one would not contemplate spending a fortnight's holiday, the prospect of linking oneself up for life and sharing the same bed for 365 days a year is an extraordinary and difficult concept.
The Bill is one of those measures where it is possible to agree over a wide field regarding the analysis and key issues and yet draw very different conclusions. I agree with the noble Lord, Lord Gisborough, and many others, in their analyses of the unpleasantness of divorce. I am quite clear that I shall spend little time in the same Lobby with them during the Committee stage. There are many differences between us, in particular regarding our views on how far governments can or should seek to change major shifts in social attitudes by legislation. In the minds of most people, politicians do not emerge as the obvious role models for the young and starry eyed about to embark on the adventure of marriage.
However, there are major areas of agreement. I am completely with the noble and learned Lord the Lord Chancellor when he says that the best possible environment for children is a loving and secure family. There is no question of that. I go further. Couples in such a relationship, with or without children, enjoy something of a value that is impossible to exaggerate. I have no doubt that for most people divorce is a horrendous experience and, whether the damage--it is always real--is financial, emotional or, as in most cases, a mixture of both, for the children it can be very distressing. At its worst, for one of the parties it can, and frequently does, involve a sense of total loss and desolation paradoxically even greater than bereavement when at least the happy memories remain valid.
In short, for most people divorce is a uniquely ugly business. So why has it become fashionable? Why, at any party, do you find that of most of the people there one or other partner has been married before? I simply do not accept that 40 per cent. of all married couples of all religions and none and of all classes of society from the highest to the lowest, rich and poor, are simply wrong headed and in need of guidance. It requires a truly magnificent arrogance to believe that that enormous, unique cross-section of our fellow citizens--some of them friends, relatives or colleagues--are too ignorant to understand what they are doing or too stupid to be concerned about the consequences. I simply do not believe that.
The charitable explanation for those who take that view and whose sincerity I do not doubt is that having experienced a happy, secure family life where they have what they describe as the "ups and downs of married life"--it is rather like telling the schizophrenic that he should pull himself together and have a cold bath--they do not understand the emotional violence of a marriage where one of the partners is trapped in a relationship that he or she has come to hate. It is a point of total agreement in the House that those who suffer most are frequently the children.
Most people in this country live in very small homes with rooms 14 feet or 15 feet square, with two or three bedrooms. You can carry on an argument from any part of the house or apartment. There is no privacy. You cannot escape from the disruption. Equally important, most children do not board at school. They spend 365 days a year inside that very small house or flat with the two people upon whom they depend most in the world, to whom they have loyalties above anyone else, listening to those people snipe and snarl at each other. Whenever there is a temporary lull and one or both parents are in a good mood, the children constantly hope that perhaps this is the time that the parents will get together. That is what the children want. They want to remain inside a happy family; that is their constant hope. They hope that perhaps it will come right. Eventually, as they get older, they realise that it never will.
I know several adults who still look back with great anger at that period of their lives. One is an exceptionally proficient swimmer. She is the much loved only child of affluent parents who gave her everything they could. The parents are dead. One was a Member of this House. I knew them both very well and respected them. But no one should ever have introduced them to each other. They had a great deal to contribute to someone but neither had anything to contribute to the other. The daughter had everything. She went to a good school and had amazingly good holidays. Unfortunately, the two parents loathed being married to each other, so she spent much of her childhood in the apartment swimming pool. It was the only place in a block of luxury flats, not far from this House, where she could have peace and get away from the conflict. Thirty years later she has never forgiven either of her parents for those years of misery. She regards as the high point of their relationship the time when they gave her the wherewithal to get out at the age of 18 and live in a flat on her own. That is the reality for many children who live in that kind of environment.
The Daily Mail poll on the problem was interesting; it highlighted the paradox. It asked those interviewed whether they believed that divorce was harmful to children. Ninety-four per cent. said yes. Only 2 per cent. said that it was seldom harmful. I am not surprised by that; it is how most people accept the reality. However, when the poll asked whether the parents should stay together for the sake of the children, 69 per cent. said that it was better for the children that they should part and only 18 per cent. said that they should stay together.
It is all well and good to be superior about modern trends. On an issue such as this, it is the will of people in a democracy that is changing. The whole institution of marriage is changing. By all means, provide, as the Bill does for those who need it, assistance towards the least bad agreement between the parties for the future of the children and the division of the assets. But divorce will continue to be a major fact of modern life. Modern marriage is different from the past because the participants are different. Expectations are much higher. Women are at least as well educated as their husbands and in many cases just as capable of earning a living. In most cases they regard the traditional "honour and obey"
With great respect to my noble and learned friend Lord Simon, marriage today is not simply for the procreation of children. That is the role of brood mares, not human beings. Its purpose is to provide a secure and happy environment for couples who may or may not have children. When it succeeds, it is at worst tolerable and convenient; at its best it is sublime. When it fails, it is ugly, destructive and best ended in as civilised a way as possible.
There will be many arguments in Committee. Like the noble Lord, Lord Irvine of Lairg, I believe that some of the changes made to the original Bill are appalling in their implications. But the principle behind that Bill can and, I hope, will be of major benefit to all those who suffer in this unhappy situation whichever side they are on. That is why allocating fault is a pointless exercise.
Baroness David: My Lords, that was an extremely interesting speech and I agree with much of it. However, I think a little of it was perhaps rather patronising towards women. I should like to study it further.
I give a welcome to the Bill and thank the noble and learned Lord for his clear exposition of it. I was at first critical of the fact that two Bills had been rolled into one, I suppose partly because I was both angry and sad that the Family Homes and Domestic Violence Bill, a good Bill on which so much careful and thorough work had been done in this House, was allowed to fall in the overspill period for no good reason at all; in fact for very bad reasons. However, I came to see that there could be some justification for the two Bills to be run together. Some of the criticisms of the divorce part of the Bill, Parts I and II, such as that the period of 12 months' waiting between the making of the statement of breakdown of marriage and the actual divorce would be very long where one partner was abusing or being violent to the other, could be dealt with by using the non-molestation or occupation orders provided in Part III.
I should like to ask for a little more information about the first interview which is to take place before the statement of marital breakdown is made. There is nothing in the Bill to specify that the initial interview should introduce the parties to,
I believe that some of the criticisms of the Bill are quite unjustified and ill informed. I do not see how the proposals will deprive the innocent of justice, as the noble Lord, Lord Ashbourne, said last week. It does not make divorce easier. The present system allows de facto divorce on demand. The quick divorce can be obtained in three to six months. That method, which is very liable to abuse, is to go. The obligation to have arrangements made for the children, the home and the finances before the divorce can be finalised should make the position for children much less traumatic and ensure that both the father and mother will continue to share the parental responsibility and pleasure. Bitterness and hostility, if not eradicated--and probably that is humanly impossible--should surely be substantially reduced.
I have for a long time encouraged the use of mediation to prevent court appearances, but I have not hitherto had very encouraging responses from the noble and learned Lord. I am very glad that here it has his support. Equally, I am glad that there is to be no compulsion to use it because I think that would be wrong. Could we be told if there will be enough trained mediators in all parts of the country to cope with the likely demand when the Bill becomes law? I agree with the noble Lord, Lord Habgood, about the support that is needed to fund mediators at the moment. We hope that there will then be enough.
There can be no complacency about the present situation: 150,000 children are affected every year by divorce, and 75 per cent. of divorces are on the basis of fault and over an average of six months. The number of divorces reached a record 165,000 in England and Wales in 1993, the highest rate in Europe. In that year 176,000 children under 16 experienced their parents' divorce; and two-thirds more children under the age of five were affected than in 1977.
The fact that recent laws on divorce have not proved successful and have led to an increase in the number of divorces does not mean that a new approach is bound to cause further erosion of the institution of marriage and even more divorces, as the noble Baroness, Lady Young, said. I support what the right reverend Prelate the Bishop of Oxford said in that respect. This Bill is quite different from previous Bills. Of course the proof of the pudding will be in the eating, but a Bill which has the support of the bishops, the Children's Legal Centre and the Mothers' Union starts off with quite a lot going for it.
I want to turn now to Part III of the Bill, in which I have a particular interest as a member of the Special Public Bill Committee earlier this year. So far as I can see as a layman, and the Lord Chancellor has confirmed it, the provisions of this part of the Bill are almost identical to those in the earlier Bill, although the arrangement of the clauses and the wording may differ. But there are three clauses in the Family Law Bill where there are differences, and one clause, Clause 26, which was in the Family Homes and Domestic Violence Bill has been left out. The differences here have been
The noble and learned Lord the Lord Chancellor kindly wrote to me explaining these changes in a letter I had yesterday, so to speak, excusing the changes. He said that the powers have been made discretionary in Clause 31 in cases involving non-entitled cohabitants; and he said that,
It seems unreasonable in these days, when many couples live in a stable relationship with their children, not to recognise that this is a fact of modern life, and that in fairness to them and particularly to their children they should be treated in the same way as married couples. In 1993, one in three children were born outside marriage; it was one in four in the late 1980s. We must keep in mind the principle of the Children Act that the welfare of the child is paramount. If we want marriage to work--and I certainly am very much in favour of it, as are so many of those who have spoken here today--we have to do much more to make it an attractive proposition and make it work better. There should be much more preparation for marriage. I do not think a punitive attitude to those who fail helps at all.
I have one or two more questions to ask in relation to children. I want to refer to Clause 38, where a child under 16 with the leave of the court can apply for an occupation or non-molestation order. If the child does get permission, would it not be right for the court to give a guardian ad litem to that child? Some assistance will surely be needed. I hope that I can have a response to that.
I am afraid that I have one further question, and it is one that the noble Baroness, Lady Faithfull, asked. It concerns the place of children in the course of mediation. The children could well want to communicate with the mediator, and they should be able to see him or her if they so choose. Once the case gets to court, under the Children Act the court will have to find out what they want, and it would seem both right and sensible that that should happen earlier. Can the noble and learned Lord please comment on that?
I believe the warm welcome that the Family Homes and Domestic Violence Bill had was because of the more satisfactory way of dealing with occupation and molestation as far as children were concerned. So I hope we can continue in that way. I end as I began, with a welcome for this important and necessary Bill, and wish it a speedy passage through both Houses.
Viscount Brentford: My Lords, I support many of the points made by the noble Baroness, Lady David. It is a pleasure to follow her. Many conflicting views have been expressed in this debate as to whether this Bill strengthens or weakens marriage. My view is that it strengthens marriage, and I support its general thrust. I want to see marriage strengthened; but I also want to see divorce and cohabitation weakened. I was glad to see from a Written Answer earlier this week that the number of divorces last year was down by 7,000. Whether that is because fewer people are getting married and more are cohabiting, I do not know, but it is at least one part of the equation that is moving in the right direction.
I have in mind three reasons why it is important to encourage marriage: first, because of the promises of faithfulness to each other that are made at a marriage ceremony; secondly, because of the public recognition of the new relationship that is given by marriage and which is not there in cohabitation; and thirdly, because I believe that there is a much greater commitment in marriage than there is in cohabitation.
I am not sure that in decrying cohabitation I shall necessarily receive the support of the right reverend Prelate. I understand that this morning only four Bishops voted against the motion taking note of the Church of England report Something to Celebrate. As I understand it, that means that those who wanted to take note of it supported the fact that cohabitation should no longer be considered sin and that there should be affirmation of and support for many of the aspects of cohabitation as opposed to marriage.
I do not go along that path. I believe that if divorce is too hard, cohabitation will be encouraged; but if divorce is too easy, then marriage is cheapened. I hope that this Bill produces the right balance. Only time will tell. I do not have the gift of prophecy and cannot tell the House whether or not it will have the right effect. However, I believe that we should try it, and I support it.
I agree with the abolition of fault as a demonstration of irretrievable breakdown. It has more or less become redundant and has little impact on the arrangements that are now made in divorces, both affecting provision for the children and for the division of property. To retain fault does not get us anywhere. I strongly support the remarks of the right reverend Prelate the Bishop of Birmingham in his admirable address. They fitted in excellently with my own thoughts.
Certainly the Bill should reduce conflict, and that is valuable. However, I emphasise the fact that it is not just conflict between the parents that causes suffering for the children, but also the fact of divorce. The more we can do to reduce divorce itself, the better it will be for the children. That point needs emphasising time and time again.
Turning to the question of mediation, I strongly support the year of reflection that this Bill introduces. But I should like the Bill, as a number of noble Lords said, to go much further on the question of promoting reconciliation. The White Paper refers at paragraph 2.37 to the need to,
I noted the figures given by the right reverend Prelate the Bishop of Chelmsford in his speech on 20th November (Official Report; col. 153). I found it very stimulating when he spoke of the experiences in Canada and other parts of the Commonwealth where mediation has been brought in. He said that:
I hope that in the course of mediation help can be given in improving communication between the married partners. One of the causes of breakdown of marriage is a failure to communicate. We need continually to be reminded of that. We need to improve communication between spouses and with children. Also, access to independent legal advice must be available to the parties before, during and after mediation.
My last point on mediation is that the attitudes, quality and training of mediators are crucial to the success of the mediation process. I have seen it written that there is great fear that most of the mediators will be divorcees who are keen to encourage others to join them in the same state. It is cardinally important that mediators are people equipped to support marriage where marriage remains possible. Where it is not possible and there is irretrievable breakdown of the marriage, divorce must follow.
I should like to ask my noble and learned friend a question about Clause 10. Can he elaborate on the circumstances which will be taken into account by a court in considering whether an order should be made preventing divorce? As I understand subsection (2), paragraphs (a) and (b) must both be met to the satisfaction of the court. One is clear about grave financial hardship, although there may be other forms of hardship which can be taken into account. But paragraph (b) states that,
Finally, I should like to make one or two comments about support for marriage, comments which have already been made by many other noble Lords. Following the debate on the gracious Speech on 20th November, I asked my noble friend Lady Blatch whether she could tell me when the public information campaign would materialise. An HMSO document, entitled Looking to the Future, produced earlier this year, had promised a widespread public information campaign to encourage those in marriage difficulty to seek appropriate help in good time. I am not aware that that public information campaign has yet been implemented. Perhaps my noble and learned friend can tell me when that will take place. That is typical of what I believe will be truly positive. It will give government support to marriage and help for married couples in difficulty. As has been said, equipping young people for marriage ahead and helping existing married couples is a financially profitable venture for the Government to launch into.
Lord Moran: My Lords, we are facing a deeply disquieting state of affairs: the prospect, I believe, of social disintegration. It is a little like the picture of a house perched on a cliff, with the sea eating away at the cliff so that eventually the house will be washed away. The independent, non-political and well-respected Joseph Rowntree Foundation says:
It is a fact that, whenever we have legislated on divorce, there has been an immediate upsurge in the numbers seeking divorce. I do not agree with the right reverend Prelate the Bishop of Oxford who said that this time that would not happen. I believe that it will happen, as it did in 1969.
The effect of our high divorce rate is great unhappiness for those involved. It has an enormously damaging and traumatic effect on children, resulting in increased crime, drugs, homelessness, truancy and reading difficulties. There is an increase in housing
It seems to me that any government ought to be doing their utmost, difficult though it is, to reverse those trends and protect our social fabric by buttressing the institution of marriage and doing everything possible to strengthen the family and family values. Are this Government doing that? I believe that they are not. Again, I quote the Joseph Rowntree Foundation:
Unlike the governments of continental Europe, there appears in this country to be no government policy to promote the family by practical action. All that is deeply worrying. Far from supporting the family, the Government have instead brought forward this Bill, the essence of which is to allow no-fault divorce on demand. The principal of St. Anne's College, Mrs. Ruth Deech, who has often been quoted in this debate, said:
The noble and learned Lord the Lord Chancellor has been listening to this debate with exemplary patience. I was glad to hear what he said in opening the debate regarding his belief that marriage should be for life. But since that is his belief, I am surprised and sad that he should be promoting this Bill.
The noble Lord, Lord Irvine of Lairg, expressed his support for the family. But he too, as I understand it, was in favour of the substance of the Bill with its elimination of fault, and, indeed, he argued for a reduction of the one-year period of reflection. As Mr. Tony Blair has spoken up firmly for the family, I hope that the Opposition's support for the main drift of this Bill is not to be interpreted as a relapse into the attitudes of old Labour or very old Labour.
In recent days I have been puzzled by what appeared to be the uncertain note of the trumpet from some of our Churches. I was therefore glad to hear of the robust line in favour of marriage and the family taken by the Archbishop of Canterbury in the General Synod this morning, when a report was being considered which recommended that cohabiting should no longer be regarded as living in sin. The report said:
As I listened to the right reverend Prelate, I felt that many noble Lords would be struck by the considerable gulf between the line that he took and the line taken by my noble friend Lord Jakobovits and the noble Baroness, Lady Young. Too many voices in the Church of England have argued that the splendid words,
The Bill originates from the Law Commission. I share the anxiety of the noble Baroness, Lady Young, regarding its approach. Both it and the courts bear a good deal of responsibility for what has gone so wrong. I am thinking of cases like Watchel v. Watchel in 1973 where, as I understand it, it was decided that it was wrong to allow considerations of guilt to affect the financial arrangements on divorce. Perhaps my noble friend Lord Habgood was mistaken in thinking that fault can now be taken into account in arranging financial details of a divorce.
The sort of liberal thinking that influenced the Law Commission often results in a burning sense of injustice when, for instance, what I would still call an innocent party finds that the other party, who may have broken up the marriage, has been given custody of the children and the matrimonial home. I am not worried about couples divorcing who do not have dependent children, but I am deeply concerned about the effects of the Bill on children. The right reverend Prelate the Bishop of Worcester spoke eloquently of the devastating effect of divorce on children. Research, as the noble Baroness, Lady Young, said, shows that it is divorce itself, not just the acrimony surrounding it, that unsettles children. The Bill proceeds on a contrary assumption.
I personally believe that in all ordinary circumstances it should be unthinkable for parents of children under 16 to contemplate divorce. They brought their children into the world and the children should come first, before what the parents conceive as their personal happiness. The present law is highly unsatisfactory. One only needs to look at the results. It badly needs reform, but this Bill may make matters worse, primarily by sending out a message that no one is to blame for anything and that the civil marriage contract can be regarded as a temporary arrangement with a minimum commitment which can be terminated for no given reason by either party after 12 months. I hope that it can be substantially amended at subsequent stages. We might at least extend the one-year period.
As has been pointed out by previous speakers, there is nothing in the Bill about reconciliation. Surely we must seek to save any marriages which can be saved. As has been pointed out, a good number of people come to regret their decision to divorce. I support those who argue that efforts to reconcile partners in a marriage
I do think it is wrong that there should be a limitation on legal advice for those without money. I was impressed by the arguments of the noble Lord, Lord Irvine of Lairg, in the debate on the humble Address, when he said:
Many of our great institutions today are, I sadly fear, hanging by a thread. It must be our aim to shore up the social fabric of our country to promote stability and to have that in the forefront of our minds as we consider this Bill.
Lord Elton: My Lords, perhaps I may preface what I intend to say by emphasising that I accept the enormous importance of marriage to British society, to the individuals involved in it and to the children resulting from it. That is something written on my heart. Marriage should be for life, and I believe that that is the ambition of most people who embark on it. It was certainly mine.
It is distasteful in a debate like this to refer to one's own experience, but I owe it to the importance of the subject. When that ambition fails it is a totally shattering experience, doubtless for both parties, even when the procedure is a no-fault procedure, which is nothing new and has existed for a quarter of a century.
Because of that experience, I warmly support the wish of the noble Lord, Lord Jakobovits, for education. Other noble Lords have referred to it as well; and, indeed, I chaired an inquiry which published the Elton Report, as it is now called, on discipline in schools. The report pointed to the necessity of educating children for parenthood, because we already have children who are the children of unmarried teenage mothers who themselves were unmarried teenage mothers. The succession of stability and the understanding of what a happy family is about has been broken and cannot be preserved by means of legislation. It can be remedied only by some other intervention, which must be educational.
That education ideally would be, and for centuries has been, given by the clergy and the rabbis. But the churches are now emptier and I dare say the synagogues are too. Therefore, it is necessary to involve the state, the education system and the social services to restore this broken chain. It is necessary to emphasise to people entering marriage the enormous solemnity and importance of the enterprise they are embarking on. I wonder whether we might not look at some statement to be made or signed at the moment of applying for a marriage licence that some explanation of this had been received by both parties from a reputable source. I am not aware that that is the case at the moment.
My experience is that couples do not examine divorce procedures before they embark on marriage--which I regard as a rather bizarre idea. I agree with the noble Earl, Lord Russell, that you cannot mend a marriage by any law, least of all by reforming the divorce law. Even if you remove the possibility of divorce altogether you will still have the shore littered with wrecked marriages. You cannot shore up the house on the cliff by statute when the sea begins to eat away at it.
I hope that my noble and learned friend will expand on mediation, which in the Bill before your Lordships is the last stage before divorce, for the sake not only of my noble friend Lord Brentford and the noble Lord, Lord Stallard, but also my noble friend Lady Young on the linkage between the provisions in Clause 7(1)(a), which make the first object of mediation conciliation, and the provision in Clause 11(1) and (2) for the rules that he will make for it. I hope that it will be made clear to all of us how it is intended to make conciliation further towards the front of the Bill. It is already there in the statement that has to be made by the legal adviser to the court, but I hope that it will be more specific.
Couples, and above all parents, should never be driven into divorce unless it is utterly beyond them to maintain marriage, and then only with the greatest reluctance. But I would ask any noble Lords who did not hear the noble Lord, Lord Marsh, describe the conditions for the children within a failed marriage to read that before they take any step in the Lobby against what is proposed. The noble Lord was far more immediate and moving than I can possibly be on the subject of the necessity of divorce in some cases.
Nevertheless, divorce has to be a last resort and hence my reservation about accepting a unilateral statement of breakdown on the same terms as an agreed one. I have some sympathy with my noble friend Lord Coleraine and his idea of a decree nisi at the end of the 12 months' mediation period in such a case, or possibly looking at a longer period such as the five-year period that we used to have. But that is all for Committee. For that reason, too, conciliation, where it is possible, is essential.
Let me return to what appears to be, rather bizarrely in my view, the most provocative issue--the availability of fault-free divorce. First, it is a complete misnomer. There is no such thing as a fault-free divorce. Divorce itself is a great fault, as I readily recognise. It is a failure; indeed, it is a disaster. It can result from a number of different ingredients, but what is the point of spelling them out? What is the point, in fact, of
Noble Lords opposed to my noble and learned friend's proposals put children at the front of their concern. So do I. I say to the noble Lord, Lord Stallard, that of course divorce is more damaging than acrimonious marriage if this adversarial road is the road out of it, as it is now in 75 per cent. of all cases. My only experience of divorce was of the no-fault route. That was hugely painful certainly, but it was done by both parties putting the children first. I have not examined them before this debate--perhaps they have sheltered me from some of the truths that they suffered--but I have to tell the noble Lord, Lord Moran, who referred to educational deprivation, that the child who was 13 at the point of separation got a 2:1 at Cambridge and the child who was eight and a half at the time of separation got a first-class honours degree in London, which sounds to me as if not all was entirely lost. The others were less academic. I shall not parade their results because their ambitions were different.
From the security of a second marriage with children in accord with both their parents, I can thank God as though I had walked unscathed--not unscathed but recovered--from an aeroplane crash. But I still think that that institution is central to the welfare of our society. The central concern remains for all of us that marriage should be strengthened; yes, and urgently, for the reasons that have been repeated again and again. However, it should be done not by legislation but by education, which means resources; by fiscal status, which means resources; by housing provision, which means resources; by counselling, which means resources; and only as a last resort by mediation, which itself means resources.
The noble and learned Lord, Lord Simon of Glaisdale--I am relieved that he is not in his place as I regard him as the most terrible adversary in any debate that one can choose--said that prevention is better than damage limitation. It is. That is the way to do it, and not by resisting this Bill, which I warmly welcome.
Lord Meston: My Lords, may I first apologise for not being here for the opening speeches. Secondly, I should declare an interest as a barrister practising mainly in the family law field and, indeed, as junior counsel to the Queen's Proctor for whom I dare to hope some work will remain after this Bill is enacted.
I begin by welcoming Part III of the Bill, the modified version of the Family Homes and Domestic Violence Bill. One welcomes it rather as one might greet a friend who has had rather a difficult summer Recess and has suffered a slight loss of weight as a result. It was a strange feeling, for those of us who served and, dare I say, worked hard on the Special Public Bill Committee on the earlier Bill, to find it suddenly transformed by certain newspapers into the "Live-in Lovers Bill". Frankly, it was very irritating to read uninformed comment on that Bill by people who had not troubled to read it let alone to read the underlying Law Commission Report. Informed opinion continues to welcome the Bill as a valuable improvement and rationalisation of the law relating to domestic violence. The so-called "Ouster Order", which can exclude a husband or a co-habitee from his home, will undoubtedly continue to be regarded as a drastic order of last resort.
Turning to Part I of the Bill and the grounds for divorce, it is surely right to put behind us the unsatisfactory compromise of the 1969 Act, which in turn did away with some of the absurdities of the old law and practice. Although I do not consider that the existing bases for divorce necessarily indicate or aggravate conflict in separated or separating couples, it certainly was not expected in 1969 that so many people would use allegations of adultery or behaviour as the speedier way to end their marriage. As several noble Lords have observed, it has in fact resulted in doubtful and untested allegations of adultery and parties and their lawyers scraping the barrel to find allegations of misbehaviour.
I recently saw a divorce petition which struck me as a precursor of no-fault divorce. In it the wife included the allegation that the husband had bought her a brand new washing machine. When further questioned as to why that was actually a complaint, it turned out that her grievance was that he had not allowed her to come along and help him choose it.
The reality is that 99 per cent. of these cases are undefended and that surely indicates that a fault-based divorce law is doing nothing to uphold the institution of marriage. However, those who do want to retain or indeed to re-emphasise fault, must be prepared to have disputes about faults litigated at public expense. The noble Lord, Lord Moran, suggested that the courts were at fault particularly since the decision in 1973 of the Court of Appeal, which suggested fault should only be relied on in financial cases in exceptional circumstances. That was on the pragmatic basis that if a fault is relied on in financial matters it will involve lengthy inquiries, as I say, often at public expense, resulting very often in the judge concluding, perfectly properly, that it was six of one and half-a-dozen of another.
Equally, to compel people to live apart for five years sometimes also creates great unhappiness, particularly if they have to co-exist under the same roof. That can cause an enormous strain preventing any prospect of reconciliation because those parties fear that to get back together again while the period of five years is running will prejudice their position and will of course prolong the agony. Happily, I have been involved in few
The Bill will not make divorce easier; indeed, I suggest that it will make it more difficult in many cases. In any event, I suggest that it is a misapprehension that people treat divorce lightly because it is perceived to be easy. In one of the debates on A.P. Herbert's Bill back in the 1930s, I remember reading the then Bishop of Durham observing that in some ways people take greater care of their marriages if they are aware of the risk of divorce. The vast majority of people who contemplate divorce do not do so other than with a very heavy heart and knowing, or soon realising, that they will expose themselves to a great deal of pain and agony. I do not believe that the mechanisms of this Bill will alter that basic fact, which the information session must clearly convey.
Perhaps I may touch on something which I do not believe has been mentioned during the course of the debate; that is the separation order as an alternative to divorce. At first sight it seems to provide the same alternative to divorce as judicial separation does now for those who want a formal arrangement allowing them to live apart and have matters regulated by the court. However, it is noticeable that, unlike judicial separation at present, a separation order will require proof that the marriage has broken down irretrievably. I wonder if that is necessary or helpful to those marriages which can be saved.
Turning to the process envisaged by this Bill, it begins with a statement of marital breakdown. The court will not of course determine the matter solely on the basis of that statement, which I believe was a view taken by the noble Lord, Lord Craigmyle. Such a statement may well be less daunting than a divorce petition, but it may well be seen by the other party as a hostile act and a notice to quit the marriage. I suggest that it might be less confrontational if the initial statement, particularly when it is a unilateral statement, were to be required to include a request to undergo counselling. Likewise, the period for reflection can be suspended under Clause 7 by a joint notice requiring time to attempt reconciliation. I wonder whether it can be possible to allow for a limited suspension also by means of a unilateral notice from the recipient of the initial statement.
Another matter which may need to be considered in Committee is flexibility in the period of the year envisaged by the Bill. It may well be appropriate in certain cases to have the capacity to extend that period, but also in some cases where there are particular housing difficulties, to have the ability to abbreviate the period. That is a point made by the Women's Aid Federation.
Finally on procedural matters, I should like to see a more positive obligation in the rules to be made under Clause 11(2). At present, they echo the rather lame obligation upon lawyers in the 1969 Act to certify whether they have discussed reconciliation and certain other matters with their clients. If that is the only obligation, what will happen is what so often happened: the lawyer will simply certify that he has not discussed the question of reconciliation.
Mediation is a welcome introduction. Many couples need help to work their way through the painful process. Mediation has grown in both quality and respectability and has made both branches of the legal profession respond in a number of ways, both in terms of the services and advice that they offer, and in their approach to contentious cases. Without dwelling on the merits of the modern family lawyer, I simply wish to emphasise that most family lawyers are all too well aware of the financial and emotional damage that is caused by litigation and that they work under an ethos which properly encourages the settlement of cases. That ethos will continue under what the noble Lord, Lord Habgood, accurately described as the "year of work". I do not suggest that mediation is simply a fifth wheel on the wagon. It will be a valuable part of the machinery, but it is certainly not a panacea.
At present, lawyers tend only to see the result of unsuccessful or defective mediations, but it is increasingly realised that it is a valuable process. However, mediators must be properly trained, particularly if they are to embark on a resolution of financial and property matters. Skilled mediation costs money and involves a clear understanding of the legal framework. Difficult cases will not become easier by being subjected to mediation. There must be rigorous procedures for the disclosure of assets and resources. With respect to the noble Lord, Lord Gisborough, there is certainly a limit to the amount of privilege which can be applied to what is disclosed because it is not to be thought that simply because a mediation process is under way, some spouses will not continue to try to hide their assets. There must also be safeguards to protect the weaker party who may feel compelled to settle on unfavourable terms simply because it seems that settlement is expected of them. Part of the training of mediators is to be on the lookout for the potential exploitation of an unfair bargaining position.
Mediation must depend on a consistent application of the principles of family law relating to finance and property. It is not easy on the face of the Bill to discern the relationship of mediation, litigation and access to independent legal advice. I hope that that will emerge in Committee. An important feature of the mediated negotiation will be the negotiated agreement, defined in Schedule 1(6). In my submission, it is important that the requirement for a negotiated agreement sets minimum standards of fairness and consistency.
Finally and briefly, perhaps I may support the comments of the noble Lord, Lord Jakobovits, in relation to Clause 10. Secular divorce is not enough to dissolve a marriage in the view of some religious groups which require a religious divorce before remarriage can be permitted. Both Jewish and Moslem women have to
Reading the history of the 1857 Matrimonial Causes Act, which I notice was opposed by the ancestor of my noble friend Lord Russell, it is interesting to note that one of the catalysts for that change in the law was the disparity in the ability to get a divorce in England and in Scotland. I cannot help wondering whether that disparity may reappear by virtue of the changes suggested by this Bill. With that thought, I welcome the initiative that has been taken by the Government.
The noble Baroness, Lady David, said that she did not agree with me that the Bill will make divorce easier. However, I hold that view sincerely, for this reason: I believe that young people will enter marriage very lightly if the Bill becomes law because they will say to themselves, "I will marry this person and, if it doesn't work out, after a year I can get a divorce without a reason"--I prefer the term "no reason divorce" to "no fault divorce"--"and I'll then try again with someone else and, if that doesn't work, I can do it again".
I feel that, for that reason, the Bill will greatly increase the divorce rate and not minimise it. Abolishing fault will abolish responsibility. The law will no longer declare that adultery, unreasonable behaviour and desertion are morally wrong. The conduct of an adulterer will no longer be considered by the law as morally reprehensible. Abolishing fault will remove justice from divorce. By removing all obstacles to divorce, more and more couples will be tempted into seeking divorce as the only way of solving marital difficulties.
Where it has been introduced in other countries, no-fault divorce has increased the divorce rate. A 1989 study on the effects of the introduction of no-fault divorce in 16 states of the United States, including the two most populous, concluded that:
The Bill constitutes unilateral divorce on demand and it will be divorce without reason. My noble and learned friend on the Woolsack denies this charge. He points to the hardship bar in Clause 10, which will now apply to all divorce petitions. But just how credible is this safeguard? In the debates on divorce reform in 1969 it was divorce petitions based on five years' separation which caused controversy. It was said that an innocent spouse could be divorced against his or her will. For that reason the hardship bar was introduced to prevent a divorce where there would be,
However, how have the courts operated the law? They have practically ignored the hardship bar. According to Ruth Deech, the Principal of St. Anne's College, Oxford, who helped to formulate the Divorce Reform Act 1969, a bar in the case of grave hardship has been invoked only once in 25 years. In the case of financial hardship, the bar has been very rarely invoked, according to Dr. Stephen Cretney, Fellow of All Souls, Oxford. In Clause 10 the present Bill incorporates very similar wording to that in Section 5 of the Matrimonial Causes Act 1973. Given the almost complete ineffectiveness of the present hardship bar, this scarcely inspires confidence.
Other concerns include the way in which the courts have operated under the present law. The expectation of Parliament in 1969 was that allegations of fault would entail an investigation by the court into the truth of the allegations. Case law and various regulations have severely reduced this, and the special procedure brought in in the 1970s is now followed in more than 99 per cent. of uncontested divorces. Under this procedure, divorce takes place on paper without the need for a court appearance. The cost of litigation ensures that only a tiny number of divorces are contested. The present system certainly includes a level of abuse. False allegations can be so easily made simply because they are not investigated. The Government's answer is to abolish fault entirely, but this will, I fear, lead to gross injustice.
The whole emphasis of the Bill is to oil the wheels of divorce. Only mediation and information sessions are on offer and, while these may save money, they are unlikely to save marriages. In brief, the philosophy of the Bill is that if one party believes that the marriage has broken down there should be a divorce. The Bill, therefore, provides no protection for the innocent party
Lord Northbourne: My Lords, your Lordships have been most patient. We are approaching the straight and I shall try not to detain the House for longer than I need. This is an important Bill which deals with a very difficult subject. I greatly respect the noble and learned Lord the Lord Chancellor for having the courage to take it on board. I agree entirely with the objectives set out in the White Paper. I agree in particular with the concept of a fixed minimum period for reflection. I agree with the objective in the White Paper that reconciliation and mediation should be offered to anyone who wants it, whether or not he or she can afford it.
The question that we must ask ourselves is whether the Bill as drafted will achieve those objectives. It is with that point that I have difficulty. I really think that it will not and that we must do quite a lot of work on it if it is to achieve those objectives.
It seems to the public and, indeed, to the media, to make divorce easier and less painful. Therefore, at this point and as currently drafted, the Bill is sending out the wrong messages about the importance of marriage and divorce. It seems to imply that, somehow, the Bill provides a way in which divorce can be achieved without hurting the children, which we all know is not true. I know that that is not what the Bill is meant to say but everybody to whom I have spoken about it--from a cab driver to a merchant banker who I saw this morning--has the impression that the Bill is making divorce easier, and they do not like it.
As many noble Lords have said, the real problem in our society which needs to be addressed is not divorce but marriage. Of course, in a perfect world a new divorce Bill should be considered alongside a total consideration of the nature and role of marriage in our society today. But, sadly, as I understand it, marriage comes under the Home Office and divorce under the Lord Chancellor's Department. It is rather incredible that the beginning of marriage comes under one department of state and its end comes under another, although I cannot say whether that is the reason why those two issues were not considered together.
But what we say about divorce sends messages to people about what we believe about marriage. The noble Lord, Lord Marsh, said that its role and status in our society today is changing and that it is more in the nature of an equal partnership. I am sure that that is undoubtedly true. But it does not alter the fact that we need to consider very carefully what is and should be the role of marriage and that we should make it credible.
When we look at marriage, we surely should be thinking of the kind of commitment that people need to make to one another to provide a secure and stable environment for the upbringing of children; the kind of support that will be needed to do the job properly; and the kind of preparation which they will need before they start to do that. We should consider what kind of
The noble Baroness, Lady David, who unfortunately is not in her place, spoke about marriage and cohabitation. I do not believe that that should be addressed as a moral issue but rather as a practical issue. The difficulty about cohabitation is that it does not necessarily imply any commitment, and certainly where children are concerned there are very strong reasons for supposing, both in the interests of the children and society, that commitment is important.
The noble Lord, Lord Elton, referred to a marriage contract and to giving information to young people before they enter into marriage. It is distressing to say that that is not done because the Registrar General refuses to do it. One Plus One, one of the organisations supporting marriage, has pamphlets which it has asked and pressed to have handed out and that has been refused on several occasions.
In my view, the objectives set out in the White Paper are unimpeachable but the Bill is rather disappointing compared with the White Paper. It seems to me that there are three improvements that we should make to the Bill to bring it more into line with what the White Paper is envisaging. First, we must attempt to change the image of the Bill, as I said, because I think that it is creating the wrong public image. Secondly, we must state on the face of the Bill the primacy of the needs of the children of the marriage, because they are the powerless partners in the marriage. They must be given the protection of society. Thirdly, reconciliation must be given parity of esteem with mediation in order to encourage the survival of as many marriages as possible.
How can we say to the world that this Bill does not simply make divorce easier? One way in which to do that is to increase the period of reflection from one year to 18 months or two years in the case of a family with a child under the age of 16. In cases in which an 18-month or two-year waiting period is deemed to be contrary to the best interests of the child or children, the court could have the right to reduce the period to one year, but not less. Such a provision would have the added advantage of emphasising the extra responsibilities which the adult partners take on when they bring a child into the world and into the partnership.
I should like to look a little more closely at the position of children. Reading this Bill, it seems to me that it could have been drafted before the Children Act, because children are treated as the chattels of their parents. As I see it, until a child is born, the marriage consists of a partnership between two adults. Then, when the child is born, it becomes a partnership of three. The child has its own rights and needs. Because the child is the powerless partner--the vulnerable partner--society has obligations to him or her.
I return now to the question of differentiation. One of the most important defects of the Bill is that it does not clearly distinguish between families with children and those without children. It does not make clear the added responsibilities that people take on when they bring children into the world. I believe that the primacy of the needs of children should be stated as the first clause in the Bill, as it is in the Children Act. I shall introduce an amendment to that effect with the noble Baroness, Lady Faithful, who had the same idea without collusion. I shall also introduce other amendments to establish the importance of children as the vulnerable and powerless partners.
In some ways the greatest disappointment of the Bill is that it steps back from the position taken by the White Paper in not giving any commitment to the prevention of dysfunctional families or to the preservation of marriages. It seems to me that priority needs to be given to help parents avoid the tragedy of family dysfunction and subsequent divorce. Surely conciliation should have equal status with mediation in the Bill. Indeed, it should be the first step in the process for all to attempt reconciliation.
Some organisations have suggested that the first six months of the reflection period should be devoted to attempting reconciliation and only if it fails should parties turn to mediation. The noble Lord, Lord Jakobovits, suggested a three-tier structure with conciliation, mediation and litigation all having equal status. It seems to me that there is a great deal of gravamen in that suggestion.
Of course, the trouble may lie--and I suspect that it is the reason why such considerations have been left out of the Bill--with the Treasury. If that is indeed so, I despair. I do not know where they get the people who are employed at the Treasury--perhaps from Winchester. Those concerned ought to be able to see that to spend £100 now is better than having to spend £1,000 or £10,000 later.
Finally, if the Government are genuinely committed to the objectives in the White Paper, I suggest that there are a number of other things that they will have to do alongside the divorce Bill. I just want to get this on the record. We need more preparation and education in schools about relationships, parenting and the needs of children. We need more preparation for marriage and for parenthood, together with an acceptance of the need to seek help before things go seriously wrong. At a meeting last night, Dr. Dominian said:
Baroness Hamwee: My Lords, I must begin by declaring a number of interests. I am a solicitor and a partner in a firm of solicitors although I do not myself practise family law. I am a member of the council of management of Refuge which provides services for the victims of domestic violence and I am a member of the governing council of the Family Policy Studies Centre.
As well as declaring interests perhaps I should declare my stance. It seems to me that families come in all shapes and sizes and therefore so, too, do family values, or perhaps one might call them family responsibilities. The term "family values" now, I believe, carries too many overtones especially for those--and I am one--who rather resent the implication that someone who is not a spouse and is not a parent and whose morality is not based on Christianity, but is nevertheless, I think, soundly based, is somehow less of a person. I should make it clear that I am not at all accusing the noble and learned Lord of that attitude. I hope that by saying that I have not immediately undermined the point of saying that I do not point the finger. Indeed I congratulate the noble and learned Lord not just on the content of the Bill but also on his approach to it, and particularly on the consultative approach which has taken place over a long period.
The noble Baroness, Lady Young, said that the number of divorces is increasing. However, that is not the case as regards the latest figures, as we have recognised. She asked whether that increase mattered. I agree that that is the question we must ask, although I come to a different conclusion from the noble Baroness because I share with others the view that what matters is the breakdown of the relationship. If the relationship cannot be retrieved, it is better to find the least painful way of recognising that. Divorce is indeed a catastrophe in terms of what lies behind it. The greatest catastrophe may be to force a tie which is not a genuine one, leading perhaps to potentially explosive effects for both partners and, as has so rightly been said, for children. I join with the right reverend Prelate the Bishop of Oxford in agreeing that one cannot support marriage by making divorce more difficult.
I appreciate that my remarks may be regarded as being anti-marriage, or at least uncaring as regards marriage. That is not the case although I find it a little ironic that those who are criticised for failing to respect marriage are those who support the concept of the noble and learned
I hope that I am not one of those solicitors that the noble Lord, Lord Habgood, described as chuntering solicitors. If I am chuntering at all, my chuntering is that the very requirement to identify fault, as we have at present, is what increases acrimony. I support the non-adversarial approach of mediation although I do not regard that as entirely a replacement for legal advice; that is, advice as to what the law is and how it applies to individuals; advice and investigation as to the assets that may be available, and which are perhaps not being disclosed; and the very important part of a lawyer's job which is to instil in his client a sense of reality based on the current situation and what is possible.
Unhappily, too many separating and divorcing partners have unrealistic expectations. Sadly, the advice may reveal the pensions predicament which has been mentioned. I, too, know of a couple who are not married solely because of their concern for the wife who is separated from the husband and because of the need to support her. I believe that that can only be addressed by making specific provisions as regards pensions, not by preventing second marriage.
In supporting what the right reverend Prelate the Bishop of Oxford, called the humane and effective approach, I am aware, too, of the fragility of the mediation services. By that I mean their financial fragility. The Financial Memorandum to the Bill says that the provisions are designed to be cost neutral and there will be no increase in government expenditure. Anxieties have rightly been expressed both for the long term and the short term. If these proposals are to succeed, it is important that the mediation services are put on a secure financial footing. That will require resources, because a great many more trained mediators are required, as my noble friend Lord Meston said. That must be regarded as an investment.
As noble Lords have said, resources for counselling are also an investment. I support much of what has been said on that score. Resources are also needed for training in what are called, in the jargon, interpersonal skills. I do not see that as meaning formal lessons in marriage as a new form of domestic science, as it was called in the days when I was taught how to make scrambled eggs on toast, but assistance in communication skills. The importance of skills in communication for so many areas of life cannot be over-emphasised.
In referring to training for whatever life may hold in store, including marriage, I note the calls for the Government to have a role in education for marriage. Those seem to have come largely from those who in other discussions might quite rightly point to the role of parents rather than the Government in that training.
The right reverend Prelate the Bishop of Worcester talked about resources for preparation for marriage and for counselling, and said that parenthood is as important as any career. My noble friend Lord Russell said that matters such as childcare and paternity leave will make a difference to marriage. The noble Lord, Lord Elton, referred to housing and other resource-intensive matters. Those are what may make a difference to a successful marriage rather than the ease or otherwise of divorce. Parenting is an important career. The sooner more men truly accept that (although I agree with the noble Baroness, Lady Faithfull, that many do) the better for women, men and children. However, I take the point made by the noble Lord, Lord Marsh, that women's changing role may lead to increasing conflict.
My noble friend Lord Russell referred to Who's Who, which I understand will print details of one's partner who is not one's spouse. It took me several letters to persuade the publishers of Debrett that if they were to mention my father they should also mention my mother.
With regard to the information session that will now be required, I welcome the assurance given by the noble and learned Lord at the start of the debate that a victim of domestic violence need not attend at the same time as her spouse. However, I still have reservations about the potentially public nature of the information session and the possibility of what are essentially private matters, if not being aired in public not being confidential. I do not suggest that it will be a teach-in in the sense of those attending having to contribute. I welcome the fact that there will be pilot arrangements for the information sessions.
I wonder whether the sessions may be counter-productive in some cases. One knows that in other difficult situations, such as alcohol addiction, the first step--attending the first session and identifying oneself--is the most difficult. If the first step in these proceedings is to identify oneself, we may be making life harder, not easier, for those affected.
My noble friend Lord Russell has dealt with Part III of the Bill. I shall not repeat what he said other than to say that I share his concern and that of other noble Lords that the provisions of the domestic violence legislation are not diluted. The noble Lord, Lord Irvine of Lairg, said that no one should be entitled to assault another member of the household. I very much agree with that. Domestic violence is a crime; there is no getting away from that.
My noble friend asked for further assurances about the special position of victims of domestic violence in the new homelessness legislation. I remind him publicly that an assurance was given not only by the noble and learned Lord the Lord Chancellor but also by the Minister of State for the Environment in a debate on refugees in, I think, July.
The noble and learned Lord, Lord Simon of Glaisdale, referred to the challengers to the changes in the proposed legislation. With very genuine respect to him, I believe that it is for the changes to be justified. Therefore thorough consideration at Committee stage will be required. So I shall support amendments to restore the original provisions so that the matter can be thoroughly argued.
It cannot be often, even in your Lordships' House, that so wide a range of expertise and experience has been encompassed in one debate. Those who participate in the Committee stage will be faced with a formidable task in assimilating it all, especially as many of us also have the benefit of a substantial amount of briefing from sources representing those who regularly work in this area and for which I am very grateful.
I wait with eager anticipation to hear how the noble and learned Lord the Lord Chancellor will address the task of winding up so rich a debate. I hope that your Lordships will forgive me if I abdicate any attempt to do so. To refer to even the most informative contributions at this hour would not endear me to your Lordships. I venture therefore only a brief reflection on four themes which have emerged from the debate.
First, we need to consider the limitations on what we can hope to achieve in the Bill; indeed, what any legislation about divorce can or cannot achieve, bearing in mind contemporary public attitudes to cohabitation outside the marriage bond, referred to by my noble friend Lord Irvine. There have been periods in our history when public opinion would have constituted a serious sanction against cohabitation not supported by marriage vows. In the high Middle Ages, cohabitation would frequently give rise to all the obligations of marriage.
I recollect once seeing, in a manorial roll, the judgment of a manorial court that two people be ordered to separate on pain of being considered married. In the 18th century, a couple cohabiting outside marriage risked the community pronouncing its view by way of a procedure known as "rough music" when all the neighbours gathered outside in a somewhat noisy demonstration. Indeed, in the community in which I was reared, the suspicion that a cohabiting couple were not married was whispered behind closed doors and, if
With the right reverend Prelate the Bishop of Birmingham, I believe that attitudes have changed and that that is a cause and not a consequence of changes in the divorce law. But with those changes have gone many of the sanctions which could be imposed by telling the parties to a marriage that they could not enter into a marriage with someone else. There are three things which we in the community cannot do. First, as the noble Earl, Lord Russell, and the noble Lords, Lord Marsh and Lord Elton, so movingly demonstrated, we cannot make two people live together in harmony if they cannot or will not. No law, no judge, no court can do that. If two people no longer generate love between them, if the atmosphere is cold and unhappy, still more if there are perpetual rows, we cannot compel people to make their home warm and happy.
Secondly, we cannot make them go on living together. If either or both are determined to separate, we cannot force them to stay together. Thirdly, in our generation we cannot prevent one or both living with someone else. We can say to them, if we so decide, "If you live with your new partner you will be cohabiting out of wedlock." But today that may not deter them from cohabiting. We may then need to decide whether the new relationship is better brought within the marriage bond.
Of course, it does not preclude our doing what we can to engender public respect for marriage as an institution. I venture only to observe that that is not always best achieved by causing some people to cohabit without being able to marry. I share the anxiety of the noble Viscount, Lord Brentford. If divorce is too hard, then cohabitation outside marriage may be encouraged.
We have to set all this into context. So the second theme which I believe has arisen today is best expressed in the form of a question. If we cannot impose harmony on a domestic situation, is there anything we can do to encourage a stable, permanent and happy relationship? I believe, with some of your Lordships, that there are steps we can take to ensure that the occasional bad patch is not fatal. First, we can encourage people to reflect seriously before they enter into partnerships, either inside or outside marriage. That is not always practical. When relationships begin, parties are not always at their calmest and most reflective. But we can at least make available proper, considered sex education in schools, pointing out--as the noble Lord, Lord Jakobovits, and my noble friend Lord Stallard suggested--the virtues and contribution which marriage can make. We can warn people of the dangers of embarking on such adventures lightheartedly. As the noble Lord, Lord Northbourne, pointed out, we can ask registrars to distribute to those about to marry some of the valuable literature which is available. So we can do our best to ensure that relationships do not begin unless both parties are persuaded that they have a serious prospect of continuing.
Secondly, we can encourage parties whose marriage is experiencing difficulties to take advantage of marriage guidance and counselling. As the noble Lord, Lord Marsh, said, not all of them will benefit, but many will and there might be marriages saved. It is right at this stage that we should repeat the distinction emphasised by my noble friend Lord Irvine between conciliation and marriage guidance on the one hand and mediation at the later stage on the other. For the moment I am talking about conciliation and marriage guidance.
I share the curiosity of my noble friend Lady David as to whether the parties are to be told at an early stage what is available and how they can embrace it. The organisations that provide those services cannot budget unless they have guaranteed resources. As some noble Lords pointed out, producing those resources may be a very good investment. The current cost of divorce, including the court costs, the cost of the children in care and social security benefits--as the right reverend Prelate the Bishop of Oxford pointed out--are estimated to be something like £3.4 billion a year, whereas we spend less than £3 million each year in supporting marriages. Therefore I echo the plea of the noble Duke, the Duke of Norfolk: if we could achieve a 25 per cent. reduction in the former figure by increasing 25 per cent. investment in the latter figure, on any showing that would be good business.
Thirdly, there are the fiscal measures mentioned by the noble Lord, Lord Elton. One thing we could do is assist people to maintain a roof over their heads. Many marriages begin to go wrong when the family is evicted from its home. Then there are the matters mentioned by the noble Earl, Lord Russell. We can arrange hours of work so that the parties can see one another from time to time. There is a great deal we can do.
The third theme addressed today was reflected in the question posed so clearly by the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Elton. How do we deal with the situation where, despite all the measures that we can take, a marriage has reached crisis point and the parties are contemplating divorce? I, too, endorse the way this was expressed by the right reverend Prelate the Bishop of Oxford. He stated it succinctly, and I hope that he does not claim copyright because I think I may repeat it elsewhere: we do not strengthen the institution of marriage by an unsatisfactory divorce law.
I welcome the end of the recriminatory procedure. We should be grateful to the noble Lord, Lord Habgood, for reminding us of the succinct arguments in Putting Asunder, which many of us read a very long time ago. To offer positive encouragement to one party and embark on a recital of the other party's misconduct makes no contribution either to a possible reconciliation or to a future relationship from which the children might benefit. At best, as my noble friend Lady Birk pointed out, as did the noble Lord, Lord Elton, the allegations are not contested and there follows the "quickie" divorce, which I hope we all condemn. At worst, the parties' attitude to one another is soured for life, with all the unhappy consequences for the future of the children. As the noble Lord, Lord Meston, reminded us, we may divert into legal expenses public money which
That is very different from the question posed by the noble and learned Lord, Lord Simon. What will be the procedure for enabling the other party to express a view as to whether the marriage should be terminated? It seems to follow from Clause 10 that such a procedure will be provided, but I share the curiosity of the noble and learned Lord. I hope that the noble and learned Lord the Lord Chancellor can to some extent assuage our curiosity when he replies.
As to the requirement for a period of reflection, I agree with the noble Baroness, Lady Hamwee: the Bill is likely to make divorce less likely and not more likely and it may well save marriages. The right reverend Prelate the Bishop of Worcester and the noble Duke, the Duke of Norfolk, reminded us that those who have experience in conciliation report that all too frequently those who go ahead with a divorce come years later to regret it. They wish that they had stayed married.
But I have heard doubts expressed as to whether the provision may be too inflexible. There may be situations in which the advantages are outweighed by some of the hardships. My noble friend Lord Irvine gave a very telling example of that, as did the noble Earl, Lord Russell. Another example which I have heard quoted is one where the wife is pregnant and anxious to marry the father of the child. There might be very real arguments there based on the welfare of the child for saying that she should be free to do so before the child is born. So I echo the plea of my noble friend Lady Birk for a degree of flexibility.
Of course there will be arguments about the thin ends of wedges. I recollect the procedures in the Matrimonial Causes Act 1937, which was referred to by the noble and learned Lord, Lord Simon, where no party was permitted to initiate divorce proceedings within three years of the marriage. Whatever the subsequent legislative history to which the noble and learned Lord referred, he will remember--as I remember--the days when I was a young barrister and I appeared before him on exactly that kind of application, because it was found necessary to mitigate exceptional cases. The courts were given a discretion in proper cases to dispense with the provision. It did not mean the virtual end of the rule. The courts gave leave only in exceptional cases. I hope that the committee will hear evidence on that before we reach any dogmatic conclusions.
Most particularly, I welcome the proposals in Clause 12 for making available, and making the parties aware of, provision for mediation. I assume, as my noble friend Lord Irvine pointed out, that here mediation means mediation and not conciliation, although conciliation was referred to in the White Paper and no doubt the two will be in the mind of the noble and learned Lord. Mediation arises when conciliation has failed. If, then, the parties can be persuaded to resolve their differences without bitterness--and, it is to be hoped, without some
I have only three reservations, none of which diminishes my support for the proposal. In fact, I should like to make it more effective. First, mediation is not likely to be effective unless it is carried out by trained and skilled mediators who are aware, among other things, of modern research into communication, as the noble Viscount, Lord Brentford, pointed out. Mediators cannot be trained by listening to a half-hour lecture on a Friday evening. If the proposal is to be successful--I could be completely wrong, and that would not be wholly unprecedented--I imagine that there will be something like a tenfold increase in the number of people seeking mediation. I do not believe that at present those mediators are sitting in their rooms waiting for clients to come in. So, I echo what was said by the noble Lord, Lord Coleraine, and my noble friend Lady David: there will need to be a substantial recruitment and training programme.
Secondly, I share the anxiety of my noble friend Lord Irvine as to the implications of Clause 24. Training as a mediator and training as a lawyer are not often combined in the same person. As the noble Lord, Lord Habgood, said, in some cases they are; but there are very many who do not share both skills. Certainly there are not enough of those who do.
I am told--I believe that the noble Baroness, Lady Hamwee, said it--that couples who avail themselves of mediation usually require separate legal advice about matters such as the title to the matrimonial home, pensions and certain kinds of provision for the children. Incidentally, while I am on the subject of pensions, like my noble friend Lord Irvine and the noble Lord, Lord Gisborough, I hope that provision can be made for splitting pensions. It will not impose any additional burden on the Treasury and will make it much easier to effect justice between the parties.
Thirdly, if the process is to be activated by a statement under Clause 5, I shall be grateful if the noble and learned Lord can tell us a little about the form of that statement. He said that it would be a statement that the party believes that the marriage has broken down. If it is merely a formula, it does not appear to add much to the proceedings. If it is more than a formula, there may be a temptation to embark on a long and unhappy history of the marriage by the back-door. I hope therefore that we shall be told a little more about that.
I share the curiosity of the noble Baroness, Lady Hamwee, as to the form of the meetings which are to take place. Are they to be group meetings? If not, will they be on a one-to-one basis? Practitioners tell me that there is a danger that some wives will be reluctant to avail themselves of the provisions if they think that they are likely to suffer embarrassment.
Fourthly and lastly, perhaps I may be permitted a word on Part III of the Bill. The Family Homes and Domestic Violence Bill was based on a careful and well-researched report by the Law Commission. In March and April of this year the Special Standing Committee of which your Lordships have heard,
Subsequently, the Bill was changed at the instance of a number of Members of another place. I do not know whether they had read the Law Commission's report or the evidence available to the committee, or whether they had read a report of its deliberations. Of course they are entitled to differ from those who offered us the benefit of their expertise, and I am sure that they acted with what they thought were good motives. But if their purpose was to encourage people who cohabit to do so within the marriage bond, what they did was counter-productive. A property-owning husband will now have an incentive not to enter into a marriage.
We are grateful for the careful analysis which the noble and learned Lord, Lord Brightman, gave us. For myself, I am prepared to listen, when we go into Committee, as to how far it may be necessary to re-establish the original Bill and what may be the fate of the Bill if we fail.
In an imperfect world there are no perfect solutions. Every proposal will carry a price tag. We must do the best we can with the benefit of such information and experience as are available, and perhaps later be prepared to admit that we might have done better. None of us represents the ultimate in wisdom, and it is an area in which sometimes the most helpful quality we can contribute is a little humility.
The Lord Chancellor: My Lords, I echo at the start the words that have just fallen from the lips of the noble and learned Lord, Lord Archer of Sandwell, in closing. Humility is not a bad attitude in which to approach the difficulties that we face in this Bill. Those who assert with confidence what the future holds must be sure that they can lay proper claim to the mantle of the prophet. Mrs. Ruth Deech, who was referred to a number of times during the debate, cautions against that kind of prophecy in her recent article in The Spectator.
I am not sure what is the right way to sum up the debate. There are some general issues that I should like to emphasise. I cannot promise to answer every question posed, but I shall try to answer in correspondence those that I do not have time to answer tonight.
First, like almost everyone who has spoken, I should like to see far fewer divorces. Even more, I should like to see far fewer breakdowns in marriage that cannot be saved or retrieved. But though I share that view, I am not certain that there is any absolutely certain formula by which to reach that end. I doubt whether any of your Lordships who expressed particular anxiety about the
My noble friend Lady Young suggested that we were seeking to obliterate fault. I do not think one will find in the Bill any suggestion that there is no such thing as fault, but what one does find is an omission from the facts showing irretrievable breakdown of any reference to adultery or unreasonable behaviour. I posed a question at the beginning of the debate to which so far I have not heard an answer. How does the fact that a very quick divorce can be awarded in respect of a person who has grievously broken his marriage vows by committing adultery and can then re-marry very quickly indeed support the institution of marriage? Almost everyone who spoke on this line agreed that the quickie divorce should be abolished. That, by itself, is justification sufficient for a Bill dealing with this subject.
I shall be most interested to see the amendments that my noble friend indicates she proposes to bring forward at the Committee stage. As I indicated at the outset of the debate, and again a moment or two ago, I certainly believe that the issues here are ones which will require to be carefully considered in Committee. All the amendments that may be suggested will be, certainly on my part, very carefully looked at, including the amendment which the noble Lord, Lord Jakobovits, said he wished to propose in relation to the particular problem that he referred to at the end of his remarks.
A good deal has been said about the rise of divorce after every change in the divorce law. Anyone who looks at the figures will have to ask the question, "If the divorce changes had not taken place, would the graph be very different?" That is the question. No one denies that there were rises in the divorce rate after changes in the law, but there were also rises before changes in the law. What does that prove, I ask rhetorically?
Part I of the Bill deals with the ground of divorce and the procedure associated with that. It is proposed after the Children Act. The provisions of the Children Act apply, for example, to questions about residence or contact. All the provisions there will be effective. I do not see any point in trying to repeat them in this Bill. There are procedures in the courts. Perhaps I may make an aside on the family court. I think that as a result of the jurisdictional changes in the Children Act we have a family court with three levels of jurisdiction. The family court has procedures for dealing with the views of children. I would certainly like to think that, where it is appropriate, the views of children should be taken into account in mediation. That will certainly be perfectly possible.
Some questions have been asked about the information session. The objects of the information session are to give information so as to be sure that anyone contemplating the divorce process has all the information that we can furnish in an objective way about conciliation, counselling, lawyers, mediation and anything else that may be helpful. That is the purpose of the information session. How best to give it is a matter on which I shall be glad to obtain advice.
That service can be provided in a number of ways. A video may be a possible way of doing it. We have used that method very successfully recently as regards jurors. The amount of information which they get is not so complicated at that stage as this kind of video would be. As I say, I am certainly open to suggestions about how that should be done. The purpose is to give as reliable, full and helpful information as can be given about all the services available at that stage.
The noble and learned Lord, Lord Archer of Sandwell, asked me about the document and what is stated. I believe that one needs something to start the year off. I believe that it should be as simple as possible. Therefore, so far as I am concerned, one needs to say--and this seems to be the reality if one is thinking of divorce--that one's marriage has broken down. The next stage, after a year, is that in the light of all the circumstances, one believes that one's marriage has broken down in such a way that it cannot be retrieved or healed. That appears to me to be a reasonable basis for proceeding.
I do not believe that this Bill makes divorce easier. A number of noble Lords have supported this view. I do not entirely understand what that phrase means and therefore it may be more difficult to respond to remarks that I did not fully hear about it. It is quite clear that the period required for some 75 per cent. of divorces will be longer than it is at the present time. I strongly suggest to your Lordships that there is a very uncertain sound about fault sent out by the present system in which reliance on that enables one to get a quick divorce. I shall be very interested to see the amendments of those who are proposing to abolish the quick divorce and the basis on which that proceeds.
As regards the provisions dealing with mediation, they are a modification of the Legal Aid Act to enable the Legal Aid Board to fund mediation. I have sought to do that on a basis of principle, which of course is slotted into the existing Legal Aid Act. So legal advice and representation will be available on the terms presently set out in these Acts except in so far as they are modified by this Bill. What we have sought to do in this Bill is to give a fair wind to mediation as a way of dealing with the disputes that arise between parties at the stage at which this matter arises.
It is absolutely plain and crucial that mediation and conciliation, and all the other things that have been referred to, are quite different. Mediation is distinct because it is intended to address problems that will arise between the parties on the dissolution of the marriage. If the mediation does not come to a conclusion these issues will be justiciable by the court. That is quite a
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