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Mr. Leigh: I am grateful to my hon. Friend, as he has put his finger on it. We all accept that the marriage contract should be the most solemn contract that one makes in one's life. It should be uniquely unbreakable. In fact, it will be uniquely breakable. In any other contract, one has to allege a fault. As one of my hon. Friends said on Second Reading, if one buys a television set and wants to sell it and get one's money back, one alleges a fault. In this, the most important contract of all, one has to allege nothing. One simply says that the marriage is over. None of us thinks that that is the way to proceed.
Mrs. Elizabeth Peacock (Batley and Spen): Does my hon. Friend accept that, under the present proposals, if a couple get married on Saturday, and if, on the same day, they take out a finance agreement for 24 months, they have a firmer commitment to that agreement to purchase than they have to the marriage that they are embarking on, which is nonsense?
Mr. Leigh: My hon. Friend is right.
Mr. Donald Anderson (Swansea, East): I have been trying to follow the hon. Gentleman. He talked about a contract and a breach of contract. In our civil courts, judges are regularly able, knowing the law, to state whether there has been a breach of contract in a case. For example, in an industrial accident, a personal injury accident or an accident in which someone has been run down, judges are able to say who is responsible and whether there has been contributory negligence. The question is whether, in a short hearing, a judge is capable of ascertaining whether fault in the lifetime of a marriage is apportioned 50:50, 60:40 or 75:25, and, secondly, whether any proper public purpose is served by that attempt.
Mr. Leigh: The hon. Gentleman is a distinguished lawyer, and, as he well knows, that is precisely why the Divorce Reform (Miscellaneous Provisions) Act was introduced in 1968, and why we have only four or five divorce trials every year. We are not saying that we can or should return to the days of the full-blown divorce trials that we saw in the 1930s--we realise that we cannot do that, whatever our private opinion about divorce and the sanctity of marriage may be.
We are saying that a general public understanding and consciousness is underwritten by the existing law, that, if people want to get a divorce, the State will not stop them and they will get their divorce, but that marriage is for life, and that, if people are going to get a divorce it has to be based on separation of more than two years, on fault, on adultery or whatever. It serves a purpose. I assure the hon. Gentleman that we are not seeking to return to the old divorce legislation that operated before 1968. We realise that we cannot do that, whatever our private view may be.
Hon. Members have been patient, and I hope that they understand that I have had to give way to the hon. Members who wished to intervene. I shall now draw my remarks to a conclusion.
What sort of message do we want to send to young people? Do we want to send out the message that solemn promises, often made in a religious context, do not matter? Do we want to say that desertion does not matter? Do we want to say that adultery is not reprehensible? Are we saying that the law does not influence behaviour?
Do we deny that the public have a right to express a point of view? Do we deny that this is a solemn moment in our history, because, for the best part of 2,000 years, our law in this area has been based on our Judaeo-Christian inheritance? I believe that there was no-fault divorce in Roman times. However, in the past 2,000 years, the divorce law has been based on that Judaeo-Christian inheritance. This afternoon, do we wish to sweep that all away?
The Chairman:
I remind hon. Members that with this amendment the Committee is considering amendments Nos. 6 and 20, and new clause 1.
Dr. Jeremy Bray (Motherwell, South):
My amendment is amendment No. 6, which states:
I am grateful to the Lord Chancellor's Department and to parliamentary counsel for helping me draft my amendment. I puzzled long and hard over the question whether counselling, reconciliation and attempts to save a marriage can have any part in the divorce process. They have precious little to do with this Bill. If one party believes that the marriage could be saved and wishes to save it, provision is effectively limited to the giving of information and does not extend to counselling, to the financing of counselling or to support of it in any way.
There are people who will use any provision out of malice to delay or to refuse divorce. There are other people who believe, out of love and a sense of reality--perhaps a greater sense of reality than their partner--that the marriage can be saved and they want to make every effort to do so, even while their partner is pursuing the divorce process. Counselling, where people have no wish to be counselled, is futile. Any requirement for counselling may rapidly become a dead letter, as indeed
the requirement to give information on counselling has done in previous legislation since the Divorce Reform Act 1969.
The amendment caters for people who have made a commitment not only to their marriage partner but to seek help to maintain the marriage if it comes under strain. They may wish to seek help from the community. The amendment opens the way to serious preparation for marriage and support to maintain the marriage during its course.
At present, a conscientious clergyman will meet a couple for two or three sessions in preparation for a marriage, but his or her resources, and the resources of the registrar and the register office, are extremely limited. Properly resourced and supported, marriage preparation sessions may become a highly popular institution. People are required to pay fees for various purposes when they marry, and they incur much heavier expenses at their weddings in a great many cases. A modest fee for marriage preparation and continuing support would not be an objectionable imposition.
A well-managed counselling organisation would keep in touch with couples throughout their married life, as a properly functioning church does with couples who have been married in that church, and would be there to give help if at any time during the marriage it were called on to do so to maintain the marriage.
In making an agreement first to seek counselling at the time of marriage or during its course when there are no problems, the couple can accept that, in the last resort, the court will require them to seek further counselling before they seek divorce under the provisions of the amendment. The divorce process will not be affected, but such an arrangement would work on the fortunes of a marriage at an earlier stage, preventing it from sliding into irretrievable breakdown.
One of the Bill's difficulties is that its sponsors see only the fact of marriage and its breakdown. They do not witness the increasing strains that gradually lead to the breakdown of marriage, and the thousand and one times when it is possible to budge it back or it may slide further forward. It is in that constant help in maintaining the marriage that sensitive counselling has a role.
Some years ago, the Church of England called for the introduction of two types of marriage--one for those who wished to make a lifelong commitment and another for those who would qualify that commitment in various ways. Rightly or wrongly, the Church decided against it, on the grounds that, understandably, it did not wish to detract from commitment in any marriage.
However, the amendment does not seek to set up two types of marriage. It recognises the divorce law and it sets up a reservation, before that divorce law can take effect, that counselling will be sought.
If it is argued that the provision belongs in a marriage Bill, not a divorce Bill, that is not the choice of the House. Many of us feel that, indeed, a commission on marriage and a Bill on marriage is the only context in which a Law Commission report should have been pursued on divorce law reform. Marriage and divorce cannot be treated separately in law in our society. There is very little in the Bill as it stands relating to marriage. Something can usefully be introduced into it so that divorce is viewed in the wider perspective of a lifelong marriage or its breakdown.
"Clause 5, page 3, line 22, at end insert--
--(2A) If the parties have entered into an agreement, following counselling by a body approved for the purposes of this section by the Lord Chancellor, not to make a statement unless each of them has sought further counselling (either from that body or from any other such body), any statement made by either of the parties, or by both of them, is to be disregarded unless the agreement has been complied with within the period of three months ending with the date on which the statement is made."
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