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Mr. Nigel Spearing (Newham, South): Many people would agree with the right hon. Lady's general argument, but is not one of the basic problems the fact that marriage is not merely a contract between two parties--although young people may see it as such, because we have not made the position clear? Surely marriage is a contract between two individuals who are committed to each other, and society as a whole. Society says, "We too will sustain the couple in sickness and in health, and the quality of our legislation and our community life will help them to maintain their ideals." Is it not our duty to make that clear in a positive way, so that the real meaning of the contract--which I think the right hon. Lady understands--can make things easier, and deal with the terrible tragedies that can and, alas, do occur?
Dame Angela Rumbold: That is probably true to an extent. My point is that, when people enter into that contract and make that commitment, there is a deep understanding that it is not all that easy to extricate oneself. I want to make that clearer.
Over the years, a range of factors will have an effect. We should not consider just what happens in a first-generation marriage breakdown; when they grow up, the children of that marriage are likely to follow the pattern set by their parents. They, and subsequent generations, may say, "Mummy and daddy didn't make it. Now that we are grown up, if we make the same mistakes we can do the same to our children." The legislation should not allow people to say that no fault is involved, and to assume that they can walk away from the commitment that they have made.
Mr. Nicholls:
No one is suggesting that there is no such thing as fault. We are considering whether the courts are an adequate instrument for the apportioning of fault.
My right hon. Friend has spoken about the difficulty or otherwise of getting out of the commitment. Surely, the message that can be conveyed--even through the Bill; it is connected with the way in which the Bill came to the House in the first place--is that, although we cannot stop young people getting married, because we have not thought about a campaign for marriage yet, it will be much harder for them to extricate themselves. They may have to wait not just a year, but 18 months or two years. If my right hon. Friend said that, we might wind up in the same Lobby.
Dame Angela Rumbold:
I have no doubt that we will wind up in the same Lobby when we vote on the second amendment, because I agree with that point entirely.
I cannot for the life of me understand why young people still want to opt for the commitment of marriage. They no longer have any reason to marry. What is the
purpose? Why do they not do what the majority do anyway to begin with, and simply set up home together? A shared mortgage is more of a commitment than a church ceremony.
Mr. Rowe:
As my right hon. Friend is no doubt aware, in Great Britain the proportion of unmarried women aged between 18 and 49 who are cohabiting has almost doubled in the past 13 years.
Dame Angela Rumbold:
I am grateful for that information, but it does not surprise me.
We have a major responsibility, not so much for adults who make commitments such as marriage, as for the children. I fear that the Bill--whether for the best legal reasons or not--sends the outside world the message that the children will not suffer, because it is far better for parents to live together squabbling and fighting. I am worried that it sends the message that it is far better for children to live in a single household in which there is one parent who is happy and contented.
Let us think about what the children feel. They ask themselves, "Why don't my mummy and daddy live together, like the parents of little Fred or Johnny at school?" All those things go through children's minds and have a profound effect on them as they grow up. I ask the lawyers, as I have asked many times before, how they can be so certain that what they have decreed for children is best, merely because it seems to be a convenient, clean and better way. What makes anyone think that a single woman will find bringing up two children on her own better than struggling along in a relationship that is perhaps less than good but in which there is another person who will be there sometimes to give her some support?
People experience very difficult periods in most marriages, and most marriages have ups and downs. But the reality is that, if one gets over those difficulties, two people in a household can ultimately come together to provide a stable background for children to grow up in, even if they occasionally argue or if one partner is sometimes away.
Mr. Nicholls:
How will the reintroduction of a concept of fault in the eventual divorce make it more likely that parents will stay together for the sake of their children?
Dame Angela Rumbold:
That is the very nub of the question. People have to have a greater reason to divorce than simply because they have disagreements. The point that I am trying to make--probably not very well--is that I fear that couples think that a reason for divorce is because
My concern is that if we do not have a greater reason for divorce, we will hand it on a plate to those who do not have such a sense of responsibility--partly because people such as myself have not given them a sense of responsibility over the years--and that it will become all too easy for them to have children and to part company without serious thought.
I shall not say anything further on the issue, but I feel very strongly that it is important to examine the consequences for children of divorce. We should not accept divorce legislation without some concern for and thought about exactly what will happen to small children, rather than considering the views of the elderly people who sit on commissions and in committees who have decided what will happen to children.
Mr. Devlin:
Something needs to be done about the current law on divorce. One matter that everyone--practitioners, commissioners and respondents to the White Paper--agrees on is that the current law does not work and that the current, intolerably high divorce rate is not helped by the current system.
As I said in an intervention on the speech of my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh), the current law is that divorce is available on demand. The current law is a cop-out and represents a failure in the 1960s to bite the bullet in terms of the role of fault in divorce. The result has been a hybrid system that is not satisfactory from anyone's point of view. Fault is not a ground for divorce, but the sole ground for divorce is irretrievable breakdown that must be witnessed by one of five facts. In some cases, that amounts to faults.
As my hon. Friend the Member for Teignbridge (Mr. Nicholls) said earlier in the debate, if one wants a divorce under current law, one can go along and allege adultery--one's own or one's partner's--and obtain it in about three months. Nothing else would have to be said about the adultery, such as when or where it took place. We no longer have the grand old days in which the Queen's commissioners, or whatever they were called, went down to Brighton to take photographs of people coming out of hotels after an indecent amount of time.
The current system has four main shortcomings, such as encouraging recrimination by retaining the fault element. It may seem controversial to remove all elements of fault, but if acrimony is to be taken out of divorce in the interests of saving marriages, we must stop couples blaming each other for the break-up of their marriage. Of course there is an important proviso that the courts must be able to take into account the behaviour of one partner if it would be manifestly unfair to the other partner not to do so.
As the Bill is drafted, clause 3 states:
The Bill does not say what evidence should be adduced to say that the marriage has broken down irretrievably, but I imagine from my experience--I must confess to the right hon. Member for Mitcham and Morden (Dame A. Rumbold) that I am a lawyer--that that will be done by means of an affidavit. The affidavit could be as short as saying that, "This marriage has broken down irretrievably", or it could be as long as saying that, "This marriage has broken down irretrievably for the following 59 or 600 reasons", as some affidavits currently do.
Although I have never practised divorce law, I have seen divorce petitions that have gone on describing so-called "unreasonable behaviour" for page after page. One Sunday magazine--I cannot remember which one--not long ago carried a mildly humorous account, or at least it would have been humorous if had not been so tragic, of the reasons currently cited as unreasonable behaviour. The reasons varied from such terrible crimes as cutting one's toe nails and leaving the pieces on the bathroom floor to regularly beating up one's wife, going out and getting drunk and not coming home at night. There is obviously an enormous range within those parameters, but the bulk of that survey showed that the vast majority of incidents of so-called "unreasonable behaviour" were very trivial. Anyone who takes a responsible attitude to a marriage would overlook such trivial matters, or at least try to accommodate one's partner to achieve a longer-term good.
The current system has shortcomings in that it affords no opportunity for reconciliation or mediation, not even on such issues as what will happen to the children or how the family finances will be settled. The current process also contains nothing to show that any thought has been given to the children. The principal issue in the current system is the divorce or the breakdown of the marriage, and any thought for the children is purely secondary.
When the Family Reform Act 1969 was passed, it was thought that the period between the decree nisi and the decree absolute would be used as a period for reflection and to make financial arrangements and arrangements for the children, but that has not happened: people get their first decree and then just wait the minimum amount of time until the court automatically grants them the second decree.
Anyone who thinks that the current system in any way apportions blame to either party going through a divorce is living in cloud cuckoo land. Ever year, hundreds of thousands of divorces occur for which a variety of reasons are given. No one feels any shame, publicly or privately, about an allegation of adultery. Yet adultery is given as the reason in the vast majority of cases in which men divorce women. Women tend to prefer to cite unreasonable behaviour. None the less, no one feels any shame about such allegations, and the allegations are rarely, if ever, made public. Indeed, there is no shame these days--if there ever was--in being divorced. It happens to the best of us, and sometimes for reasons that we do not understand until later.
Divorce can occur too quickly. Once a person has made the difficult decision to get a divorce, it is easy to go through the whole process in well under a year and look
back later, wondering about everything that was thrown up. The process, once entered into, becomes acrimonious because, as my hon. Friend the Member for Teignbridge pointed out, there is a cycle of allegations against the other party, which does nothing to resolve simple issues that may need to be resolved on the back of a divorce.
As for the amendment, I counsel my hon. Friend the Member for Gainsborough and Horncastle to take account of three points which constitute a test that I have used when considering legislation since I became a member of Parliament. Good legislation should be comprehensible, enforceable and fair. The current divorce law is not really comprehensible. Indeed, it is widely misunderstood. The Bill is widely comprehensible, although perhaps differently from how we might imagine from listening to the debate. In any event, it will be easily understood.
Secondly, it is easily enforceable. Thirdly, the Bill is fair, not just to the two parties involved but to the community at large and, more particularly, to the children. Children do not need to know what father said about mother or what mother said about father in order to get a separation when they felt that their marriage was at an end.
"If an application for a divorce order or for a separation order is made to the court under this section by one or both of the parties to a marriage, the court shall make the order applied for if (but only if)--
(a) the marriage has broken down irretrievably".
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