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Mr. Edward Leigh (Gainsborough and Horncastle): My right hon. Friend knows that a large number of us are opposed in principle to the Bill, but while we can exercise our conscience, some hon. Members on the payroll might find that more difficult. Can my right hon. Friend give the assurance that, in addition to the genuine free votes on clauses 5 and 7, he will consider free votes on the hardship bar in clause 10 and on court orders, which are dealt with in clause 14 and schedule 2, on the Floor of the House? Those provisions are also germane and central to the Bill, and it is important that those of us who can exercise our consciences look after the interests of those hon. Members who cannot.
Mr. Freeman: My hon. Friend will have read the committal and business motions. I am prepared to reconsider those issues as grounds of conscience, but I am
not persuaded at present. If my hon. Friend can persuade me, we can return to those issues on Report, on the Floor of the House.
Mr. Brazier: I am grateful to my right hon. Friend for indulging me a second time. My right hon. Friend referred to property settlements. As someone who supports the Second Reading, I put it to my right hon. Friend that unless we make the one-year bar--some of us would like the period to be a little longer--absolute on final orders on property, without any just and reasonable let-out of the sort that my right hon. Friend described, and through which our liberal-minded judges could run a coach and horses, we would find that although the divorce on paper would be held for a year, de facto the family home could still be broken up in a matter of weeks. The divorce would take effect in those cases that the court ruled to be exceptional--which, as asylum seekers and everyone else finds, can be case after case after case in far too many instances. We must tighten up the Bill and remove the exceptions.
Mr. Freeman: I understand my hon. Friend's strength of feeling, as he represents the Conservative family forum. There may be cases in which one party becomes terminally ill, disabled or desperately needs somewhere to live, to facilitate seeing his or her children. I give my hon. Friend an undertaking that that matter will in Committee receive the attention of my hon. Friend the Parliamentary Secretary, who is well aware of the amendment that my hon. Friend the Member for Canterbury has in mind--he too seems to be talking himself on to the Standing Committee.
Mr. Bill Michie (Sheffield, Heeley): Concern is felt by many people, including by couples who go for mediation--which I certainly encourage, for the reasons that the right hon. Gentleman outlined--that they may be disfranchised. They can take legal advice for mediation, but that may jeopardise taking a second opinion because mediation is not to do with negotiation but with trying to work things out. Either spouse might want a second opinion from a solicitor or lawyer. Is the right hon. Gentleman saying that legal aid will not be available in that respect?
Mr. Freeman: My understanding is that mediation would not jeopardise the ability to seek a second opinion. My hon. Friend the Parliamentary Secretary, who is more qualified than I in such matters, will clarify that point if necessary.
Sir Jim Lester (Broxtowe): Does my right hon. Friend agree that all the evidence is that children are the principal sufferers in a divorce, whether it is amicable or contested? The majority of divorces are petitioned because of fault in the short term. Those of us who have served constituencies for a long time know that the most pressing reason for change is the effect that divorce has on children. Everything that my right hon. Friend has suggested so far will improve the situation, not destroy it.
Mr. Freeman: I am grateful to my hon. Friend for his observation. The interests of the children in a divorce must be paramount. I am sure that the House will support anything that can be done to protect their interests and to avoid wounds that can last a lifetime.
I refer next to the minimum time for reflection and consideration, and to pension splitting. Some individuals who have contributed to discussion of the Government's proposals have suggested that the longer the period, the more chance there is that there will be a reconciliation. The Bill sets the minimum period at one year. On the one hand, the period should be sufficiently long to give parties a realistic amount of time in which to reflect on whether the marriage could be saved, but also a realistic time within which the practical questions about children, home and finances can be resolved. On the other hand, the period is meant to be an active period of reflection and consideration. If it is too long, the parties could postpone active consideration of their situation--thereby making it more likely that their marriage breakdown becomes irretrievable, as the longer the time the more likely it is that attitudes will become hardened. Alternatively, they simply walk away from the marriage that has broken down into a new relationship, without any of the practical questions being resolved.
The majority of responses to the Law Commission and the Government's consultations favoured a period of 12 months. In particular, that period was regarded by the main children's organisations as being long enough, and they recently repeated that advice. An extremely important factor in deciding the appropriate length of time is that when children are involved, uncertainty is bad for them. It cannot be stressed too strongly that 12 months is a long time in the life of a young child living with uncertainty. Too long a period would prolong the agony not only for the adults, but for the children. Children are after all the innocent victims of marriage breakdown. It is vital that the divorce law should do all that it can to minimise the damaging effect of divorce on children. Recognising that, it is vital that, so far as possible, children emerge after the divorce having a good relationship with both parents.
There have been suggestions that if the minimum period for reflection and consideration was lengthened to say 18 or 24 months, the period should be capable of being abridged in exceptional circumstances. The Government believe that there should be an absolute minimum period to demonstrate irretrievable breakdown. It is the Government's view that there should be no abridgement below 12 months. Provisions elsewhere in the Bill are adequate to deal separately with circumstances of domestic violence.
I accept that this issue is controversial and a matter of conscience and I repeat my offer to meet any right hon. or hon. Member to begin the process of drafting amendments.
Mr. Anthony Coombs:
My right hon. Friend is right that this is an area of controversy. Many people might regard the fact that children thrive better after an amicable divorce as a myth that is perpetrated by people who want a divorce. Is not it true that recent research shows that even those children who live in unhappy marriages thrive better in the long run--because they have both parents at home--than those who are subject to divorce?
Mr. Freeman:
I understand the strength of feeling and that is precisely why we are determined to have genuinely free votes, for Ministers and Back Benchers alike. I look forward to a serious debate and my hon. Friend's contribution to it.
Mrs. Peacock:
To add to that point, there is great concern also that when divorce takes place children are left usually with their mother and sometimes another relationship develops. The father is not present and, on occasions, children are ill-treated by the mother's new partner because they are not his children. There are statistics that prove that point and we must not say that children are so much better off once they are removed from a family through divorce.
Mr. Freeman:
My hon. Friend is right that one cannot be dogmatic about this issue. There is evidence on both sides and it is a question of reaching a balance, as in most of our legislation, on what is in the interests of children overall.
We have modified the provisions of the current hardship bar contained in clause 10. As the Bill now stands, if the court is satisfied, on the application of one party, that the legal dissolution of the marriage would cause substantial hardship to that party or to a child of the family, for financial or non-financial reasons, and that it would be wrong in all the circumstances, including the conduct of the parties and the interests of any child of the family, for the marriage to be dissolved, the court may order that the marriage not be dissolved. That will apply to all cases, not just to the 6 per cent. of divorces that proceed on the basis of five years' separation, as at present. There have been criticisms that, because of the way in which the hardship bar operates under the present law, it is ineffective. The changes we have made demonstrate the Government's commitment to making it an effective protection against substantial hardship caused by the divorce itself, where such protection is needed.
Mr. Alton:
May I draw attention to a case in Liverpool two years ago, in which a constituent of mine, when she said that she wanted her marriage to continue, was told by a judge that she was living in mediaeval times if she dared to suggest that she was being divorced against her will? Will the Minister assure the House that this new provision will be transmitted to judges in such a way that they will realise that when people involved in divorces say that they do not wish to be divorced against their will, their feelings will be taken into account?
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