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8.10 pm
Mr. Roger Sims (Chislehurst): Some of the Bill's critics say that it will make divorce quicker. As my hon. and learned Friend the Member for Burton (Sir I. Lawrence) said, that is a misconception, as it is now possible to start divorce proceedings after one year of marriage and to divorce within four or six months. If the Bill becomes law in its present form, it will be one year before one can put in a divorce statement and another year before the divorce can take place.
There have been references to the message that the 12-month period is sending from the House. I would ask about the message conveyed by existing law, which allows a divorce application 12 months after a marriage. Before 1985, the period was three years. The marriage service stipulates that marriage is not to be entered into "unadvisedly, lightly or wantonly", but at present surely the message is that one can get married and, if after one year, it does not work out and there are difficulties, one can undo the marriage.
There is much discussion about the proposal that 12 months should elapse between the statement of intention to divorce and that intention being fulfilled. I would not alter that, but I would look again at the minimum period between marriage and the ability to make a statement of intention to divorce. I would like to see it increased at least to two years--I endeavoured to do that in 1985, but there was insufficient support in the House for my proposal--if not the three-year period that applied before 1985. I hope that at a later stage of the Bill, the House will be given the opportunity to consider that amendment.
If two people have decided that their marriage is not working and is not likely to work, they should consider the implications, but do they need to justify that decision
publicly? The Bill is said to be introducing no-fault divorce, but as my hon. and learned Friend the Member for Burton said, a no-fault divorce can be obtained after two years. It can be sooner if fault can be quoted, but what exactly does that achieve? Listing faults makes divorce more unpleasant and acrimonious as each side digs around for real or imagined grievances against the other--a process that culminates in distasteful court proceedings. It also makes that process more expensive. Does detailing faults really help the procedure? No-fault divorce is a misnomer. The Bill is not saying that when a divorce takes place, there is no fault. Of course there is almost certainly bound to be fault on both sides, but it does not seem advantageous to have a recitation of those faults as a ground for divorce.
I have heard it argued that there is not necessarily fault on both sides--if, for example, adultery or violence is involved that may be so, but we can be sure that if adultery is claimed, there will be a counterclaim in similar terms or it will be said that the other party showed a lack of interest or was frequently absent. If violence is claimed, we can be sure that there will be counterclaims that it was provoked. Surely a reasonably amicable settlement is more likely if listing faults on both sides can be avoided.
Speaking of settlement brings me to mediation and I very much welcome the Bill's endorsement and promotion of mediation, which I fear is sometimes misunderstood and misrepresented. It is not counselling--helping married couples through problems so that their marriage can continue. It is not reconciliation--discussing with couples considering separation whether and how their differences might be resolved and the relationship continued. Mediation serves those who have started or contemplated divorce proceedings and it is defined by National Family Mediation as
The hon. Member for Bristol, East (Ms Corston) mentioned correctly that the first mediation services started in Bristol rather less than 20 years ago. Similar services were set up in Wandsworth and the one in Bromley in my constituency was one of the earliest. I have been on the management committee of a Westminster-based mediation service for a number of years.
There are now 66 local services and 700 trained and accredited mediators. In 1981, the National Association of Family Mediation and Conciliation Services, known as National Family Mediation, was established and most of the local services now belong to that body. It selects, trains and accredits mediators and trains local supervisors. Earlier this year, the various bodies involved in mediation formed the United Kingdom College of Family Mediators to set and promote standards for mediators, to operate a register and to issue a code of practice.
Mediators are drawn from a variety of backgrounds, including probation officers, social workers and solicitors. It must surely be self-evident that, instead of the cost and ill-feeling involved in the exchange of letters between two parties' solicitors culminating in acrimonious court proceedings, there should be available a third party who can discuss with both parties separately and together how to reach agreement with regard to the house, other
property and, most importantly, their children and to decide with whom, and where, the children should live, and access arrangements.
Mediation does not replace legal help. As the study carried out by Newcastle university in 1994 commented:
It pointed out that
Those are fairly high proportions.
In 1993, 165,000 couples divorced and fewer than5 per cent. of them had access to mediation. It is obvious that we need rapidly to expand, develop and build upon existing services. I regret that, at present, the Government appear to be taking no steps to facilitate that expansion by supporting existing services. My concern is that they are operating on a shoestring. Unlike Relate, National Family Mediation gets no core grant funding from the Government. Each local service depends on charity, charging fees only to the extent that its client can afford. It may have contracts, but, on the whole, must rely on charitable donations, which are diminishing. Some services have closed for lack of funds, while others are in difficulty. Bristol is under threat, Sussex is about to close and the Westminster service, with which I am involved, is waiting for the next cheque--otherwise it may have to close.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy):
I declare an interest as a solicitor who practised in a firm that did a fair bit of divorce work.
Forty one per cent. of marriages in the British Isles, or 3.1 per 1,000 population, end in divorce--a shocking figure that is twice the European average. No doubt, those statistics have exercised the minds of the Bill's opponents, who wrongly claim that the measure will make divorce far easier and increase the divorce rate. Broadly speaking, nothing in the Bill is likely to do that. The contrary is true. If the Bill's opponents were to come clean, they would admit that they are against divorce per se. Arguing about the time involved and the no-fault concept is just to use the Bill to their own ends. Those opponents are not in step with the majority of the public.
The Lord Chancellor's stated aim, which everybody would welcome, is to safeguard the institution of marriage, However, a friend who is an experienced
divorce lawyer put it to me that the Bill approaches the problem from the wrong end. He reminded me that it is already much more difficult to dissolve a marriage than to enter into marriage. Should we not consider more thorough and compulsory preparation for marriage, and increasing the minimum age for marriage? The incredibly high divorce rate among teenagers bolsters the arguments for both. The current legal limit was introduced by the Age of Marriage Act 1929, when life expectancy was substantially less. It almost goes without saying that the decision to enter the most sacred contract of all is momentous--that view is generally held. It is, alas, entered into without formal instruction, advice or counselling. I hope that that aspect will be meaningfully addressed during the passage of the Bill, because I believe that such preparation would decrease the divorce rate at a stroke, and save young couples and their children a great deal of heartache and emotional turmoil.
I cannot cover all the points that concern me on Second Reading, but I welcome the broad thrust of the Bill, which is a helpful attempt to reform and codify existing matrimonial law. The no-fault debate has polarised the argument. As the law currently stands, at least two grounds for divorce do not involve fault. One is the irretrievable breakdown of the marriage. No-fault divorce is not a new concept, so the true picture is not that presented by the Bill's opponents. The so-called no-fault concept, which is much maligned by opponents of change, is nothing new and is welcome.
It is illogical and intellectually unsustainable for advocates of the fault principle to opine that pitting spouses against one another deters them from divorce and protects the institution of marriage. It is self-evident that the fault concept has never been a deterrent to divorce. Nearly three quarters of all couples choose divorce as the route out of their marriages, with all the acrimony and upset that it causes them and, more importantly, any children of the marriage.
Every divorce lawyer spends hours going through intimate details that have been dredged up by warring clients. They are often painfully retold, and would always be best left unspoken. What possible use can there be for that practice, apart from allowing the parties to the divorce to exercise their minds and be as horrible as possible to each other? In many cases, the parties to a divorce are being self-indulgent, and it almost becomes some kind of a game to them--and it is a waste of legal aid to boot.
I welcome the extension of the no-fault concept. It will bring a saving in emotional stress to many divorcing couples and their children, in lawyers' time, and in costs to the legal aid fund. Everyone would like to see fewer divorces, and the Bill extends the length of time needed to divorce from an average of seven months to a minimum of one year and two weeks. The one year allowed for consideration and reflection is also welcome. Relate, which does excellent work, is firmly of the view that one year is appropriate. It is significantly longer than the present limit and will allow couples sufficient time to make arrangements about children, property and finance--but not so long as to cause disadvantage or hardship to families who need to make decisions and take action in respect of the distribution of assets, including the matrimonial home. One year is long enough. Relate refers to it as a year with a purpose, which sums it up well.
I welcome, with many other hon. Members, the mediation principle, and the Lord Chancellor's assurance that it will be voluntary--but some reassurances are needed. By which authority will directions for mediation be given--a circuit judge, deputy circuit judge or district judge?
I do not accept that the Bill will be cost neutral. There are only two mediators in the whole of Clwyd in north Wales and not one in Gwynedd. To get up to speed will be an uphill task but I am sure that will happen in due course, in the spirit of the Bill. However, it is clearly impossible for the Bill to be cost neutral.
I will not comment in detail on the provisions on domestic violence but I appreciate and accept the reasons for them. The codification of existing law is substantially overdue.
Children's voices should be heard throughout the Bill. Where complex and difficult cases arise, the child's needs should be protected by the appointment of a guardian ad litem and reporting officer. It is crucial that independent advice and assistance is offered to children, because they are often the real losers--not only emotionally but materially. There should be a legal requirement, as exists in Scottish legislation, for parents to have regard to their children's views. When a parent makes a statement of marital breakdown, courts can provide children with information appropriate to their age. Those proposals enjoy support from many organisations involved in child welfare. I also welcome the pension-splitting provisions, although I would like them in the body of the Bill.
"a process in which an impartial third person, the mediator, assists couples considering separation or divorce to make arrangements, to communicate better, to reduce conflict between them and to reach their own agreed joint decisions. The issues to be decided may concern separation, the divorce, the children, finance and property."
"Legal advice and mediation are complementary."
"39 per cent. of cases of mediation resulted in agreement on all issues and 41 per cent. of cases resulted in some issues being agreed".
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