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Mr. John Patten (Oxford, West and Abingdon): I warmly congratulate my right hon. Friend on his speech thus far. I am sure that he is dying to get to the end of it, so I shall try not to delay him too long. As I am sure that he will appreciate, I do not necessarily agree with everything that he said; however, I congratulate him warmly on his splendid new constitutional convention of the real free vote as opposed to the free vote. We constitutionalists have longed to see that drawn out of the closet.
Will my right hon. Friend wind his mind back to the point that he was making before this serial intervention? He said that, in his personal view, he judged that the Bill would bring about a reduction, and not an increase, in the number of divorces. I am sure that he recognises that he is speaking not in a personal context, but as a Government Minister. What is the Government's prediction and what is his firm policy view as to whether the Bill will reduce or increase the number of divorces?
Mr. Freeman:
I am sorry if I confused my right hon. Friend. As the Bill provides for a minimum period for reflection and consideration of 12, 18 or 24 months--at present, it contains a provision of 12 months as agreed in the other place--there will be a lengthening in the period before divorces can occur. That must be mathematically correct because, at present, it is possible to obtain a divorce after a matter of a few months. As to supporting the argument about the total number of divorces, it is probably more accurate to reflect that as a proportion of the number of marriages rather than as an absolute number, but however we define it, I understand that my right hon. Friend wants some evidence or argument in detail. It is a central point, and the Parliamentary Secretary is planning to deal with it when he replies to the debate.
Mr. Michael Stephen (Shoreham):
Is it not important that a clear signal goes out from Parliament that those who faithfully abide by their marriage vows will not be treated in exactly the same way as people who deliberately violate their marriage vows? I agree that it would be inappropriate to bring in concepts of fault at the dissolution stage, or the stage at which custody of the children is considered; however, the concept of fault or conduct should be an important factor for the court to consider when dividing property between a husband and wife.
Mr. Freeman:
That is clearly understood. The matter has already been referred to in interventions. I assure my hon. Friend that the courts already have the power to take into account conduct and the implications of conduct. The point has been made that that power is not discharged as efficiently and effectively as some hon. Members would like. That is best dealt with in Standing Committee rather than on the Floor of the House.
I shall endeavour to make rapid progress, as it is important to lay some facts before the House and I am aware that other right hon. and hon. Members wish to speak.
Let me turn to the proposed new separation and divorce procedures. It is obviously of critical importance that marriages should not be dissolved if they can be saved. The mechanism for testing breakdown must be clear and unambiguous. The Government's proposal in the Bill is, therefore, that the irretrievable breakdown of the marriage should be established solely by the passage of a fixed period of time. It will be a period for reflection, and for consideration of whether the marriage can be saved, and it will provide an opportunity to effect a reconciliation or to think about what arrangements can be made for the future should divorce be inevitable.
We recognise that whether allegations of fault should have any place in the divorce process is a matter of conscience for some hon. Members. As I have already said, the Government intend to allow a free vote on that issue.
The period of time for reflection and consideration would start by the lodging of a neutral statement that one or both parties believed that the marriage had broken down. Such a statement would not contain allegations, nor would it state that the marriage had broken down irretrievably. One of the concerns that emerged most strongly in debates in another place was the need to ensure
that proper emphasis was placed on reconciliation through the divorce process. The Bill has been strengthened in that area by ensuring that the possibility of reconciliation is always before the parties. As it now stands, the Bill states that one of the purposes of the period is to provide an opportunity to effect a reconciliation.
It is important to make it clear that the Bill will allow the door to reconciliation to remain open throughout the divorce process. Couples will be able to attempt reconciliation at any time during the period without prejudicing their position and may also suspend the period if they want longer to attempt a reconciliation.
Between 20,000 and 30,000 couples each year start divorce proceedings, but do not proceed to divorce. I believe that the number proceeding to divorce is likely to decrease under the new system. At the information meeting, parties will be told about marriage counselling and other support services, about the importance to be attached to the welfare, wishes and feelings of children and about how they may acquire a better understanding of the ways in which children can be helped to cope with the breakdown of a marriage. They will be told about the financial issues that may arise on divorce or separation and the services that are available to help, such as mediation and the availability to each of them of independent legal advice about the divorce and separation process. Couples will be much better placed than at present to understand what divorce is likely to entail. As a result, I expect more couples to decide to try to keep their marriage going. I have already dealt with the Bristol university study on those matters.
The Lord Chancellor has taken over the funding of marriage support services so that there can be the best possible integration of the policy on supporting marriage with that on divorce law. The Government have set up an interdepartmental official working party on marriage to see how best use can be made of the resources available to support those who are considering marriage and those whose marriage is in difficulty.
Research since the last major reform of the ground for divorce has shown us how important it is to try to reduce conflict in separation and divorce cases, to reduce at least some of the damage caused to children. It is clear that the children who do best after divorce are those whose parents reach amicable arrangements for the future of their children and co-operate in the upbringing of their children even though living separately. In those important respects--the improvement of communication and the reduction of conflict--mediation has been shown to be most effective.
Mediation has enormous potential in appropriate cases, so part III provides for the Legal Aid Act 1988 to be amended, to allow parties who are eligible to apply for state funding for the use of mediation. Any mediation will not become compulsory.
Legal advice will be available in support of mediation for those who need it and will be state funded for those who are eligible. When couples mediate, they negotiate together with the help of a neutral mediator--in other words, they represent themselves in negotiations. They should not need a lawyer to represent them in those same negotiations. They may, however, need legal advice and assistance in support of mediation and, as I said earlier, that will continue to be available when needed.
It is important that a couple should face up to the practical consequences, including the financial consequences, of divorce before they end their marriage. By confronting what life will be like after divorce, they may realise that it is not what they want. Clause 9 requires the couple to have decided their financial arrangements before they can divorce. The court is currently under a duty to take the conduct of the parties into account when considering financial provision on divorce, where it would be inequitable to disregard it.
The most significant change to the present law is that financial provision and property adjustment orders can be made before the separation or divorce order is made but cannot take effect before that time. The only circumstances in which such orders can take effect before divorce or separation is where the circumstances are exceptional and it would be just and reasonable for the orders to do so. It is important that the orders are capable of being made before the divorce order or separation order, so that the couple are compelled to focus on the consequences that will result, if they go ahead and get divorced.
Mr. John Redwood (Wokingham):
What would my right hon. Friend say to a man or woman who feels that he or she has done nothing wrong, and would like their marriage to continue for their own sake or that of their children, but whose spouse has decided to petition and would--as I understand the Bill--be granted a divorce 12 months later? Is that not a grave change from current law, whereby the spouse has to wait much longer, separated, before he or she can get a divorce?
Mr. Freeman:
I understand the strength of feeling of people who--on moral, religious, spiritual grounds--feel that they cannot become party to a divorce and for whom, at present, divorce might have to wait five years. When we debate clause 7 on the Floor of the House, my right hon. Friend may advance an amendment to protect those persons who feel strongly that the minimum period of reflection and consideration should be longer. Without over-emphasising and placing too much weight on clause 10, which contains the hardship bar, I draw my right hon. Friend's attention to the fact that an application to extend the minimum period depends on not only financial but non-financial hardship. That point will be debated, argued and perhaps further amended in Committee.
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