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4.45 pm
Mr. Nicholls: I was interested to hear my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) outline why he had reached particular conclusions. I agree with much of what he said, although I do not agree with the conclusion that he draws. He made the point--as did the hon. Member for Motherwell, South (Dr. Bray)--that we should be talking about a campaign for marriage, as divorce is the ultimate failure of the usefulness of marriage.
I was somewhat puzzled, initially, that a Conservative Administration should approach the matter with a view to altering divorce law rather than by addressing the social context of marriage, to which my hon. Friend referred. I found that slightly strange. I am concerned also that a commission of lawyers is the driving force behind the proposals. As a lawyer, I draw two conclusions: first, that I am entitled to be rude about lawyers; secondly, that I am entitled to say that lawyers are not the best people to conceive legislation of that sort.
I am distinctly unhappy about a measure that was not trailed in the manifesto and that has been prompted by the academic ideas of lawyers on the Law Commission. In some extraordinary way, it has emerged as party policy and, as such, must be accepted. The measure seems completely devoid of politics, which I rather favour.
There is nothing ignoble about politics: it is a matter of trying to identify the aspirations of the people who send us here. Sometimes, the aspirations of the Opposition and the Government parties will differ. What brings me here is perhaps different from what brings Opposition Members to this place, but the political process is the same in both cases: each of us tries to reflect the views of our constituency and answer to it. I must admit that, initially, I could not conceive what Conservative constituency had called me to debate a Bill such as this.
Mr. Patten:
Has my hon. Friend received any letters in support of the Bill from any known Conservative supporters--of which there are a great many in his constituency as he is such a popular and excellent Member of Parliament?
Mr. Nicholls:
My right hon. Friend may say that, and I could not possibly contradict him. I do not know the
My right hon. Friend makes a serious point. When confronted with a piece of legislation with which I was profoundly out of sympathy, I thought it would be a good idea to canvass the views of the Roman Catholic Church and the Church of England. That is not to say that I intended, having sought their views, to put my independent judgment to one side, but I was greatly assisted, reassured and impressed by the quality of the arguments advanced by Cardinal Hume and the Bishop of Liverpool. To the extent that I have made any sort of odyssey in relation to the issue, I was greatly assisted by those contributions.
I was assisted also by the fact that politics entered the process for the first time when my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department held negotiations with my colleagues and me in an effort to identify a possible Conservative agenda in the Bill. I was impressed also by the approach of my right hon. Friend the Chancellor of the Duchy of Lancaster--I hope that he is pleased rather than embarrassed--when dealing with the matter on Second Reading. I began to appreciate that several points needed to be examined.
It was possible simply to walk away from the Bill, saying, "I'm not quite sure how it got here and I will not play any part in it," but I decided not to take that view because of the responses that I received from both the Roman Catholic Church and the Church of England and as a result of conversations that I had with my right hon. and hon. Friends. There was another reason for my decision: although we may lament the fact that it ever appeared in the first place, if the Bill is to pass into law--which seems likely--we have an obligation to ensure that it performs a useful purpose. It troubles me greatly that, if the Bill is left as it is, the one-year period of separation for pause and reflection would go through unchallenged, which would be a mistake. The Bill also poses the problem for the Committee--with which my hon. Friend is dealing--of whether fault should be brought back into divorce.
It is always dangerous to make a speech in the House on a subject about which one knows something, and I declare an interest in that I do not do that often. However, for many years I made my living as a divorce lawyer. I did not handle just a few divorces, as many other humble country solicitors do, but practised nothing but divorce law. That was a few years ago, but people do not change greatly over the centuries. I learned fairly quickly that the misery and unhappiness that two people deadlocked in matrimony can cause each other was a bottomless pit.
When I was a practising divorce lawyer in my 20s and 30s, at least the point was to some extent academic--in so far as the misery of another human being is ever academic. I have grown older and become greyer, and I am at that miserable time in life, in late middle age, when the marriages of my friends, which I thought were as
stable as I believe my own to be, are cascading around me. That brings home to me how utterly miserable is divorce.
The prospect of bringing fault back into divorce must be addressed. I say without any attempt at sarcasm that I understand to the hilt that which my hon. Friend is trying to achieve. A contract of matrimony is not the same as a hire purchase contract. On one level, a marriage contract should be harder to enter and leave--but it is anyway totally different. I have seen in the past the way that fault has been used as an integral part of the divorce mechanism, and it does not work. If fault has to be produced, in conjunction with time or without time, one must pull fault out of a hat in a prize rabbit way and say, "Guess what. I've found a fault. I've found an isolated act of adultery. I've found a desertion. I've found a pattern of unreasonable behaviour."
Persons who have not practised in the divorce courts as long as I did can have no conception of the difficulty of using a judicial process to carry out that sort of moral audit, which is what we are talking about. Those of us who are inclined superficially to believe that we should reintroduce fault are looking for a certificate of moral righteousness to show that one person has measured up to their obligations and to bring upon the person who has not a sort of contrition that will help to carry them through. That is a marvellous aspiration, but it cannot begin to work.
What about the situation in which a wife deserts her husband and commits an act of adultery? That is a bad enough fault, but wait a moment. She may claim that she was driven out by a hard and domineering husband, so perhaps the fault was his. But hold on another moment--the husband may claim that he had to control and direct his wife because she was a rotten housekeeper, was getting the finances wrong and the children were suffering. Then the wife might say, "Come off it. I married at 18. I didn't know enough, so obviously I was going to get it wrong." What is the answer? God knows--and He is not going to come down to tell us to help us with our deliberations.
Such a scenario is far from fanciful, as anybody who has practised in the courts knows. It is unreal to think that, in such a complex pattern, we can use the courts to work out definitively and fairly who was at fault and who was not. I am just about old enough to remember how it used to be in the old days, when people had their day in court. No video nasty that I have ever seen is more squirmingly embarrassing and heartbreaking than two people having their day in court, trying to explain to the man up there in the wig how they felt and why they acted as they did. It does not work. I do not see how a moral audit in which the circumstances could be brought out and expanded, to produce a definitive version of events, could ever be workable.
Mr. Bernard Jenkin (Colchester, North):
I think that everyone in the House will agree with my hon. Friend's analysis that the attribution of fault at the point at which the marriage is breaking down is destructive, but how can we allow couples to enter the contract of marriage--the most solemn contract that we ever enter--on the basis that
Mr. Nicholls:
If I may say so, my hon. Friend has given half the answer to his question in his concluding remark, but the real answer to his question is that we should have started a debate--in many ways, it is the great debate--about how matrimony has got into its current situation. Is there a campaign for matrimony that could reverse the process that we have seen? God knows, there is not much in present-day Britain that readily unites hon. Members on both sides of the House, but very few hon. Members would deny that stable marriage is the ideal. We do not have that now.
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