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Family Homes and Domestic Violence Bill [H.L.]

12.27 p.m.

Report received.

Clause 2 [Associated persons]:

The Lord Chancellor moved Amendment No. 1:

Page 2, line 1, at end insert:
("(dd) they have agreed to marry one another (whether or not that agreement has been terminated),").

The noble and learned Lord said: My Lords, in moving Amendment No. 1, I should like to speak also to the subject matters of Amendments Nos. 2 to 5.

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Amendments Nos. 1 to 5 enable persons who have agreed to marry to be "associated persons" able to apply for remedies in the Bill in certain circumstances. The Law Commission recommended that persons who have agreed to marry should be "associated persons" for the purposes of the Bill. One of my concerns about that recommendation was that the whole purpose of proceedings in the Bill was to give quick and adequate remedies in particular circumstances. The last thing that I wanted to encourage was a long preliminary trial which had to do with entitlement, but which had nothing whatever to do with the substance of the matter with which the parties were seeking to deal. That is precisely what brings the law into difficulty and sometimes into disrepute. That can happen if there is a long preliminary inquiry which has nothing to do with the subject matter, so far as anybody can see, but which is embarked upon simply so that the person concerned is qualified to bring proceedings. So at first I was not happy to have such a category in the Bill.

As the evidence before the Committee developed, it seemed plain that there might be cases where it would be easy to prove that entitlement. It may have been a bit harsh, unnecessary and unwise to exclude those. If we could find some way of satisfactorily differentiating between the cases in which the entitlement could be proved readily and those in which it would take a great deal of time, that would be the best answer to the problem. We had some discussions about those issues in Committee and we have had some since.

The noble and learned Lord, Lord Archer of Sandwell, the noble Lord, Lord Meston, the noble Baroness, Lady David, and my noble friend Lord Butterworth produced an amendment addressing that concern before I produced mine. I believe we are all agreed that we want to provide a remedy in the cases falling within that category where it would be fairly easy to establish the title of the applicant as conforming to the description. The Government's amendment is intended to cover the whole subject matter of the other amendment and it does so except in one particular category. The second part of Amendment No. 2 refers to a new category of persons who,

    "have undergone a ceremony of marriage in the presence of others assembled for the purpose of witnessing the ceremony whether or not such a ceremony creates a valid marriage".

I understand that that is intended to cover non-effective marriage ceremonies among certain groups. So far as I have been able to follow it up to now, I do not favour that amendment as it appears to have the effect of conferring, at least to some extent, recognition on marriages which do not satisfy the requirements of English law. The intention is not to confer the status of marriage but that part of the amendment would have the effect of conferring on the ceremony a validity for a purpose which is different from the purpose of the ceremony itself—the ceremony itself, as a ceremony of marriage, not satisfying the requirements of English law. That would create an anomaly and would not therefore be an improvement to the Bill. Obviously I am willing to hear what is said, but those are my thoughts.

Amendment No. 5 provides that three types of evidence will suffice to entitle an applicant to obtain a remedy under the Bill. The first is that the agreement is evidenced

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in writing. In seeking evidence in writing, I am not proposing to require that the agreement itself be in writing, because that would be unlikely in the majority of circumstances. Instead, I am proposing that this written evidence may take a variety of forms including correspondence between parties, newspaper announcements, made with the consent of both parties, invitations to an engagement party, and so forth. I believe that that will offer sufficient flexibility in the sort of evidence of the agreement which can be produced while at the same time greatly assisting the courts in dealing with any potential problems with the definition and proof of that category, which could seriously undermine the new domestic violence jurisdiction.

Secondly, the agreement can be evidenced by an engagement ring given by one party to the other in contemplation of their marriage. Engagement rings are still widely used and offer further evidence that an agreement to marry is in existence. Of course it would be a way of proving that an agreement had been entered into. The Bill does not contemplate the idea that the mere fact that one had an engagement ring from the other would necessarily constitute an agreement to marry, but it is a way in which the court could find that the agreement had been evidenced satisfactorily.

The third means of evidencing an agreement to marry is by a ceremony of betrothal in the presence of witnesses. That is intended to deal with the more formal cases. I had hoped that it might cover the types of case mentioned in relation to at least some of the ethnic minorities where problems might arise. That is a method by which clear proof of an intention to marry could be evidenced. It will assist those groups which hold formal or informal engagement ceremonies. Couples who have terminated their agreement to marry may also apply for remedies under the Bill. However, where the agreement has been terminated for more than three years, they may no longer apply and will need to rely on the general law. That provision is consistent with Section 2(2) of the Law Reform (Miscellaneous Provisions) Act 1970.

Amendments Nos. 3 and 4 are intended to achieve a consistency with the general provisions of the existing law. Any violence between the couple is likely to occur within three years of the termination of the agreement. That limitation is also likely to assist the courts with any problems of definition and proof if they do not have to deal with agreements which have been terminated many years previously, where the couple may no longer have any greater nexus than other members of the public.

The amendments I propose will provide a helpful and practical means of addressing the evidential difficulties which may arise in relation to the definition of those who have agreed to marry and will ensure that a remedy is offered to those who have entered into such agreements without undermining the Bill's ability to provide urgent remedies where domestic violence occurs.

I have spoken to the subject matter of the four amendments as well as to Amendment No. 2, because I believe that they all go together. I beg to move Amendment No. 1.

Lord Archer of Sandwell: My Lords, I express my warm appreciation to the noble and learned Lord on the Woolsack for addressing his mind to some of our

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anxieties and for responding so adequately to what those anxieties were. If I may say so, our proceedings in Committee, under the chairmanship of the noble and learned Lord, Lord Brightman, were the ideal way in which a legislature ought to address the details of its legislation. We heard evidence from those who were capable of giving informative evidence; we addressed our minds to one another's anxieties. Over a very large area, we reached consensus, and where there were differences we clarified them.

The history of the matter has been set out by the noble and learned Lord the Lord Chancellor. In the initial version of the Law Commission's draft Bill, the words referred to by the noble and learned Lord were there. They were left out in the Government's version. On Second Reading some of us asked the reason for that, and the reason was expressed by the noble and learned Lord. He has expressed it again today. I say at once that I found what he said persuasive, but my noble friend Lady David, who very much regrets that she cannot be with us today, having committed herself to be elsewhere before she knew the date of these proceedings, decided that she would like to hear further discussion. She set down an amendment in Committee to restore the words which were in the Law Commission's original draft Bill.

The noble and learned Lord again repeated the reasons for the form of the Bill as it had been originally introduced. The noble Lord, Lord Meston, supported my noble friend, and I think, if I may paraphrase him, expressed the view that perhaps some of the difficulties were a little exaggerated. The noble Lord, Lord Butterworth, expressed his support for the amendment. I said, positively and decisively, that I found it difficult to make up my mind, and the noble Baroness, Lady Darcy, equally decisively, shared my hesitation. That was how the matter left Committee, except that the noble and learned Lord the Lord Chancellor suggested that there might be room here for a compromise in the sense in which he has already described it to the House so that much of our anxiety would be dealt with without opening the field to the very long delays which might emerge from the original Law Commission version.

At that stage, my noble friend Lady David, the noble Baroness, Lady Darcy (de Knayth), the noble Lord, Lord Meston, and I went into a huddle. We sought advice in particular from those who were knowledgable about the anxieties of the minority ethnic groups and we tabled the amendment. I wish to acknowledge the great assistance that we received from the noble Lord, Lord Meston, who greatly improved my initial efforts at drafting.

The response of the noble and learned Lord the Lord Chancellor has met all our anxieties, subject to one, and we are grateful for that. I am sure that those whose anxieties we were seeking to express will be grateful too.

As the noble and learned Lord said, the one matter that has not been addressed is the position of those from certain minority ethnic communities who undergo a religious ceremony of marriage which in the view of that community establishes a marriage but is not recognised as such in English law. It is curious if when all they seek to do is to undergo an engagement ceremony they are protected under Clauses 7 and 13. However, sometimes the engagement ceremonies are not public and fall into

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exactly the category which occasioned the anxieties of the noble and learned Lord the Lord Chancellor. If, instead, they undergo what they see as a marriage ceremony in accordance with the requirements of their religion, and they are perceived by their community as being married and they perceive themselves as being married, normally all that remains is at a suitable time—frequently when various people can be present and when arrangements can be made—to go to a registry office and undergo a ceremony that is recognised in English Law as creating a marriage. But that is not what such couples see as creating the marriage; they consider that they are married at the time that they undergo the original religious ceremony. It would be most curious if they would be protected merely because they considered that they were engaged but they would not be protected if they considered themselves to be married.

I have not had an opportunity to consult the noble Lord, Lord Meston, or the noble Baroness, Lady Darcy (de Knayth), and therefore I can speak only for myself. I would not wish to seek to divide the House today. I express our gratitude for the amendments, which have been tabled as a result of the noble and learned Lord's reaction to our anxieties. I believe that the matter is worth further discussion between us and perhaps at some stage something will emerge which we all find ourselves able to live with.

Amendment No. 2 appears in my name, but that of the noble Lord, Lord Meston, appears above mine. Perhaps I should leave it to him to move the amendment but if the task falls to me I shall be happy to move it for purposes of discussion today. However, I say at once that if it is left to me I shall in due course seek leave to withdraw it.

12.45 p.m.

Lord Meston: My Lords, for the reasons indicated by the noble and learned Lord, Lord Archer, I should be happy to follow that course in relation to Amendment No. 2. I join him in thanking the noble and learned Lord the Lord Chancellor for responding to the amendment tabled in Committee and I pay tribute to the noble and learned Lord, Lord Brightman, for his chairmanship of the Committee.

The amendments return us to the question of where to draw the line between those who can and those who cannot seek relief under the Bill. The Law Commission included those who had agreed to marry and also those who have had a sexual relationship. The Bill excluded them because of the risk of difficulties in definition and proof. The arguments were fully rehearsed in evidence to the Committee and were summarised by the noble Baroness, Lady David, when she moved her amendment.

The provisions will apply only to a small number of people who are not caught in the other categories listed in Clause 2. Only in a small proportion of that small number would there arise the issue of whether the parties were engaged to marry. I suspect that in respect of an even smaller proportion of that small proportion would any time need to be taken in resolving that issue. However, the noble and learned Lord the Lord Chancellor helpfully pointed the way to a possible compromise, hence the tabling of these amendments.

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The government amendment appears to be more elaborate than ours. It includes a specific reference to evidence of the agreement to marry being in writing. Frankly, in the real world few agreements to marry are in writing. I doubt whether even the most fastidious member of the Chancery Bar would solemnly record his engagement in writing. I was pleased to hear the noble and learned Lord the Lord Chancellor indicate the wider interpretation to be given to that provision. Of course, in practice the more important evidential requirements will be the existence of a ring or a betrothal ceremony of some kind. Today we have had reference to Bardell v. Pickwick. It remains the fact that Mrs. Bardell, with no ring and no corroboration, would not be covered by the provisions of the Bill. It is such a topical case that I reread it and was reminded that even an early conditional fee agreement was undertaken by Messrs. Dodson and Fogg. Perhaps that will be material for later debate.

The point of difference between our amendment and that tabled by the Government is the inclusion of those who have undergone a ceremony of marriage in the presence of others, whether or not such a ceremony created a valid marriage. I respectfully agree with everything that was said about the provision by the noble and learned Lord, Lord Archer. There are people who are married in the eyes of their own community. They may be married without a betrothal ceremony, so they would be caught by the preceding provision of the amendment.

I have in mind a case in which I was involved concerning an Asian arranged marriage. The 16 year-old bride was tricked into a religious marriage ceremony, which our courts would not have recognised. She then had the strength of character to resist the subsequent arrangements for the civil ceremony and to resist cohabitation with the "husband". Thereafter, he harassed her; in particular he tried to obtain money from her and her family. Such a situation might usefully be covered by the Bill. However, it must be remembered that in some situations there is a gap between the religious ceremony and the subsequent civil ceremony. The amendment would serve the purpose of filling that gap. Of course, there may be other consequences. I suppose that polygamous marriages would then come within the ambit of the Bill. But perhaps it is not too high a price to pay if we extend the provisions of the Bill to polygamists.

It is not my intention to press that difference at this stage but perhaps it should be looked at further before the Bill leaves this House.

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