Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Chalker of Wallasey: My Lords, I congratulate the noble Baroness on a very clever question. The noble Baroness refers to the ELB scheme. We had a meeting with the Publishers Association only last week. I hope that before long we shall be able to announce a good substitute scheme. I shall of course inform her. As regards the bilateral aid programme, we are at present discussing resource allocation. I do not believe that we shall see--certainly not in the next year--much change, if any, in our previous plans. There are major reductions in the level of multilateral aid from the previous forecasts. That has enabled me to change the figures in the way I have.

The Earl of Sandwich: My Lords, is the Minister aware that the so-called near cuts--they have not actually occurred--would have fallen heavily on the work of the non-governmental organisations which are important to the aid programme? Does she recognise that there is also concern about the multilateral aid programmes being, as she says, drawn down, possibly at the expense of the poor whom they serve?

Baroness Chalker of Wallasey: My Lords, every year for the past six years the money that has been put through the non-governmental organisations, and given to them in core grants, has been increased very substantially. I do not have the exact percentages with me but each year there has been an increase. We may not be able to continue doing that. There may have to be some change, in particular because a number of smaller NGOs now do specific work in countries which were not in need six years ago. We are encouraging the multilateral aid donors to concentrate their aid much more effectively. It is by concentration of the aid, in

30 Nov 1995 : Column 698

particular in the health and primary education sectors, that we can do so much more to enable people to help themselves.

Viscount Waverley: My Lords, does the Minister agree with the German development minister when he suggested that, "Poor countries should ensure that non-social spending, including military spending, be examined critically and put in relation to social spending"?

Baroness Chalker of Wallasey: My Lords, yes, indeed we do, for the simple reason that that kind of spending by some of the countries is entirely negatory. Every year we consider what those countries are spending in different parts of their budgets before we agree our forward plans with them.

Turkey: Customs Union

3.33 p.m.

Lord Avebury asked Her Majesty's Government:

    What was the purpose and outcome of the discussions between the Prime Minister and the Turkish Prime Minister, Mrs. Tansu Ciller, on Wednesday, 22nd November.

Baroness Chalker of Wallasey: My Lords, the main issue discussed was the prospective customs union between Turkey and the European Union. The Prime Minister confirmed his support for it; Mrs. Ciller reiterated her commitment to continuing democratic reforms in Turkey.

Lord Avebury: My Lords, does not taking a decision on the customs union now forgo our leverage over Turkey to encourage her to improve human rights? Does not the noble Baroness agree that that leverage is manifestly necessary? For example, tomorrow Yasar Kemal, the foremost writer in Turkey, comes before the State Security Court on charges which will carry a long sentence of imprisonment for an article that he wrote in Der Spiegel. Hundreds of cases are being brought before the European Commission on Human Rights, which is beginning to criticise the Turkish regime for intimidation and harassment of litigants and witnesses, including recently the murder of one of the litigants. Also at this time four of the Members of Parliament who support the Kurdish cause remain in prison for long sentences.

Baroness Chalker of Wallasey: My Lords, the noble Lord's interest, involvement and concern in this issue are well known. However, the most effective way of helping to make progress on human rights in Turkey is to encourage closer ties between Turkey and the West. That is why we strongly support the completion on schedule of the customs union between Turkey and the European Union. It is part of the process of deepening the dialogue between Turkey and the western institutions. Some significant reforms have been passed by Turkey in the past six months. I know that they are not enough to please the noble Lord. But amendments

30 Nov 1995 : Column 699

to Article 8 of the anti-terror law last month have had early practical results: 123 people have been released from prison. More needs to be done. But it is taking steps in the right direction.

Baroness Rawlings: My Lords, the vote on the customs union between Turkey and the European Union is on the December agenda of the European Parliament. It has to be ratified by the European Parliament, as do any of the new member states. Are we making sure that all 87 of the British MEPs support our Government on this matter?

Baroness Chalker of Wallasey: My Lords, my noble friend is very tempting, but I do not believe that either members of our own party in the European Parliament, or indeed members from parties opposite, would ever take kindly to a whip from the Government on how they should vote in the European Parliament. As your Lordships know, they are a law unto themselves on many occasions. I shall do what I can to see that common sense prevails. However, rather like in another place, sometimes it does not do so in Strasbourg either.

Lord Dubs: My Lords, does the Minister agree that it would be wrong to allow Turkey to join a customs union as long as a Turkish army continues to occupy Northern Cyprus?

Baroness Chalker of Wallasey: My Lords, the noble Lord knows very well that we condemn unreservedly the Turkish incursions into Northern Cyprus. However, as I said in answer to the first question, we have to encourage closer ties. We have been working hard to make sure that Mrs. Ciller, who stated quite clearly that she intends to continue the process of democratisation, is encouraged to do so. What my right honourable friend the Prime Minister agreed with her was that Turkey could exercise a positive influence on Mr. Denktash, and that we are encouraging her to do.

Lord Rea: My Lords, is the noble Baroness aware--she does not appear to be--that the practice of torture in interrogation centres and places of detention in Turkey is alive and well according to the Medical Foundation for the Care of Victims of Torture in this country and its sister organisation, the Turkish Foundation for Human Rights? Should we not receive evidence from those organisations that that practice is ending before we admit Turkey into closer unity with the European Union?

Baroness Chalker of Wallasey: My Lords, of course I am aware that torture takes place in Turkey and in far too many other places as well; and of course we deprecate it. But I have to say this to the noble Lord. I do not believe that postponement of this customs union is a viable solution. The people who would like to see Turkey separated from the West are the very people who are perpetrating some of the worst abuses in Turkey. That is why making co-operation with Turkey an important part of our policy towards getting rid of human rights abuses must be continued. Postponement is not a viable solution.

Baroness Blackstone: My Lords, if the customs union between Turkey and the European Union goes

30 Nov 1995 : Column 700

ahead, as perhaps it should, will the Minister tell the House how the Government intend to continue to put pressure on the Government of Turkey to make further improvements in their human rights record?

Baroness Chalker of Wallasey: My Lords, by continually reminding them what the world and the European Union expect of them.

Education (Scotland) Bill [H.L.]

The Earl of Courtown: My Lords, on behalf of my noble friend Lord Lindsay, I beg to introduce a Bill to provide for the establishment of a body corporate to be known as the Scottish Qualifications Authority; to provide for the transfer of functions, property, rights, liabilities, obligations and staff to that body and for the conferring of other functions on it; to make provision enabling payment of grant to providers of education for children under school age; to amend certain legislation relating to school education in Scotland; and for connected purposes. I beg to move that this Bill be now read a first time.

Moved, That the Bill be now read a first time.-- (The Earl of Courtown.)

On Question, Bill read a first time, and to be printed.

Family Law Bill [H.L.]

3.39 p.m.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that this Bill be now read a second time.

I should like to begin this important debate by reaffirming my commitment and that of the Government to marriage. I personally believe that it is a divinely appointed institution and this Government will not do anything to undermine it.

The provisions of the Bill have been brought before your Lordships against a background of long and detailed debate and consultation, not only about the problems with the present divorce law and how the situation might be improved but also about the need to support marriage.

What has emerged very clearly from the recent debate is a very grave concern about marriage and the need for greater emphasis on and support for marriage. This debate has been as much about marriage as it has been about the finer details of a divorce system. This must be right because we cannot look at marriage and divorce in isolation from each other. The Government firmly believe that they have a role in supporting the services available to help not only those whose marriage is in difficulty but also those considering entering marriage. This is why the Government provide funding to marriage guidance and marriage research organisations.

The Government are, however, concerned that the best use is made of the resources available to support marriage. That is why we have also set up an inter-departmental working group on marriage. This

30 Nov 1995 : Column 701

group seeks to identify the needs of couples in relation to preparing for marriage and for guidance and support during marriage; the range of services currently available in this area, the extent to which their existence is known and how this knowledge might be increased; and how existing resources might best be used to meet the needs of couples who are considering marriage or whose marriage is in difficulty.

Under the provisions in Part I of the Family Law Bill, the ground for divorce would remain the irretrievable breakdown of marriage. At present, it is possible to establish breakdown by producing evidence of adultery, behaviour, desertion or separation. None of these requires the conduct in question to have been the cause of the irretrievable breakdown of the marriage. The court's judgment proceeds on the basis that the marriage has broken down irretrievably. At present, therefore, the real reason for the breakdown of marriage may have little to do with the alleged fault which forms the basis of almost 75 per cent. of divorce petitions. The law makes no attempt to investigate what really made the marriage break down. This is not the fault of the judges, the courts or the lawyers. In an intimate relationship such as marriage, it is usually very difficult to obtain evidence on which a human tribunal would come to a fair judgment on that question.

It is a mistake to believe that the present law underlines in any way the idea of responsibility by the use of fault in the ground for divorce. In fact the reality is that the only relevance of fault is to obtain a quick divorce, and that seems to me to run quite contrary to the idea that the concept of fault fortifies the institution of marriage. How can it be said that a requirement to make allegations of fault provides the law with an underlying moral base when in fact to commit a wrong--such as adultery--actually means that you can be divorced in less than six months and so be free to marry again? And how can it be said to support marriage that such a person be free to remarry without having first sorted out all the arrangements consequent upon divorce and so fulfilled the obligations and responsibilities undertaken when the parties married and perhaps became parents? These are questions which I have asked myself many, many times. I have tried hard to see how fault can therefore be said to provide a moral basis for marriage. These are questions which I would suggest to your Lordships are worthy of consideration.

Not only do allegations not need to reflect the real cause of the breakdown but they are often exaggerated and usually uncorroborated. This leads to bitterness and resentment on the part of the accused spouse resulting in conflict which poisons the atmosphere and is very damaging to children. Such an atmosphere cannot help a couple consider whether divorce is the right course of action or indeed try to save their marriage. Even if the marriage has broken down irretrievably, how can such an atmosphere help the couple consider the consequences of divorce and make workable arrangements for the future for their children? I see no merit, either moral, intellectual or practical, in retention of the requirement to make allegations of fault in order to establish breakdown and do so quickly.

30 Nov 1995 : Column 702

It is of course vitally important that marriages are not dissolved if they could be saved and therefore important that the mechanism used for testing breakdown is one which we are satisfied will do just that. The provisions in the Bill are that the breakdown would be established by the passage of an absolute period of time without that period being abridged in any circumstances. The provision would require a person wishing to initiate proceedings to attend a compulsory information session before the period of time starts to run which might lead to divorce. This will not only mark the seriousness of the step being taken but also ensure that essential information is conveyed to people contemplating divorce in the most effective way possible. Information provided will include information about the various services available to help people, including marriage guidance, mediation and legal services. I believe that this will be done most objectively and effectively if done by those who provide the services. It will also deal with alternative options to divorce and the consequences of divorce for the parties and their children. Regulations will provide for exceptions to personal attendance--for example, disability--when alternative arrangements will be made for the information to be conveyed. It is not intended to force spouses to attend together and so the victims of abuse will not be in any way at risk as a result of this provision.

The period of time would be commenced by the lodging of a neutral statement. By that I mean a statement which does not make allegations and does not, at that early stage, state that the marriage has already irretrievably broken down and that the maker of the statement wants a divorce. The spouse or spouses making the statement would be required to declare that he, she or they believe the marriage to have broken down and declare that they understand that the purpose of the period which will follow before an application to the court can be made for either a separation or a divorce order, will be for reflection on whether the marriage can be saved and consideration of the arrangements for the future, should divorce be proceeded with.

The general view of those who were consulted by the Law Commission and by the Government, following the issue of our consultation paper, was that a sufficient period of time should elapse in order to demonstrate quite clearly that the marriage had irretrievably broken down. The period should be sufficiently long to give parties a realistic timescale within which to reflect on whether the marriage could be saved but also a realistic time within which the practical questions about children, home and finances could be resolved. The length of time which most respondents favoured was 12 months. Those who work with children pointed out (and this is a thought which I would commend to your Lordships) that although 12 months may not seem long to us, 12 months is a very long time indeed in the childhood of a young child living with uncertainty. Those consultees who work with children considered that, if the divorce process period went on too long, this would be bad for children. A lengthy period would prolong the agony not only for the adults but also the children, which could be damaging. Hardship could be caused by the imposition of a period longer than 12 months. It probably has to be

30 Nov 1995 : Column 703

accepted that there are limits to how much longer the period can be made without causing too much hardship--particularly to children. Do we really want to make things harder for children? Are things not hard enough for those children who are innocent victims of marriage breakdown?

For those who are the victims of violence, the remedies which will be available under Part III of the Bill will be adequate to protect them during the 12-month process.

A very important requirement in the Bill is the requirement that parties decide all arrangements relating to their children, finance and home before a separation or divorce order can be made. This is an important and significant change from the Law Commission's recommendation. In making this change the Government have been influenced by those who responded to their consultation paper who were of the view that parties who marry should discharge their obligations undertaken when they contracted their earlier marriage, and also their responsibilities which they undertook when they became parents, before they become free to remarry. The Bill provides for certain narrow exceptions to the requirement that all arrangements should be decided before divorce, in order to protect vulnerable parties, such as those who are sick, disabled or being prevented from making arrangements by vindictive and obstructive spouses, and also to protect the children of such parties.

I believe that the requirement that everyone should wait a minimum of a year before applying for an order (as opposed to the small numbers who now wait two years or even smaller numbers who wait five years), together with the requirement that all arrangements will have to be decided before divorce, will do far more to reinforce and underline the institution of marriage and its inherent obligations and responsibilities than the present system which allows quick divorce following allegations of fault.

I should emphasise that the current legislation which enables the conduct of each of the parties to be taken into account by the court, where that conduct is such that it would in the opinion of the court be inequitable to disregard it, when making financial provision orders, will stand as it now is in terms of this Bill.

The Bill provides that it will not be possible to commence a process which would lead to divorce within the first year of marriage with the result that it will not be possible for couples to apply for divorce until they have been married for two years. This will act as a brake on couples rushing into and out of marriage again too quickly.

I have also preserved the power for the court to bar a divorce altogether where one party can show that dissolution of the marriage would result in grave financial or other grave hardship. The court will continue to be able to take account of all the circumstances of the case including the conduct of the parties when considering such a bar. However this bar would be available in all cases and not just, as at present, in five-year separation cases and so has the important potential to protect more spouses.

30 Nov 1995 : Column 704

Research since the last major reform of the ground for divorce has shown us the importance of the need to try to reduce conflict in separation and divorce cases in order to reduce at least some of the damage caused to children. We have also, through research, become much more conscious of the need to help parties try to communicate better during the separation and divorce process and encourage them to try to manage conflict so that they can make arrangements for the future which are workable and better for their children. It is clear that the children who do best after divorce are the children whose parents co-operate in the discharge of their parental responsibilities and who reach amicable arrangements for the future of their children. I am most disturbed by the fact that allegations of fault are used in more cases where there are children than where there are not, and that conflict is more prevalent in cases based on intolerable behaviour. In these important respects, namely, the reduction of conflict and improvement of communication, mediation has been shown to be most effective. The position at the moment is that although under the current Legal Aid Act the Legal Aid Board can pay for mediators' reports to be commissioned, it is not possible for the board to pay for the process of mediation itself, although it is possible for lawyers to be paid for.

I would like this to change. I believe that mediation has enormous potential in appropriate cases and Part II of the Bill therefore provides for the Legal Aid Act to be amended to allow parties who are eligible to apply for state funding for the use of mediation. I am not intending that mediation should become compulsory--compulsory mediation quite simply does not work, and is a contradiction in terms. State funded legal advice and assistance will be available in support of mediation when needed by eligible parties. Legal representation will be available for eligible parties when mediation is not suitable for the parties or appropriate for the circumstances of the case.

In presenting the provisions of Parts I and II of this Bill to the House, I do so against a background of long, detailed and most careful consultation and as a person, as I said at the outset, who has a strong belief in the institution of marriage. I personally believe that marriage should be for life. This is the ideal I believe most couples who marry strive for. It is this ideal which provides the most stable and secure background for the birth and development of children. I personally would not wish to see people divorced at all. I would prefer that spouses remained united until "God separates them by death". But I have to recognise that marriages do break down and that the civil legislator must take account of this fact and provide the best framework of law to cater for this. I believe that according to St. Mark's Gospel (Chapter 10, verses 4 and 5 when Jesus reminds the Pharisees that Moses allowed men to "put away" their wives because of their "hardness of heart", he was referring to a civil legislative system with which they were familiar. I believe also that our Lord's teaching contemplated a civil system in which it would be possible to do what He told His questioners should not be done.

30 Nov 1995 : Column 705

I turn now to Part III of the Bill, which deals with domestic violence and the occupation of the family home. The provisions in this part reform the various remedies which exist in family law to deal with two separate but linked problems. These are: providing protection for one family member from violence or molestation from another family member; and regulating the occupation of the family home where a relationship has broken down, either temporarily or permanently. The Bill will provide a single consistent set of remedies through two types of orders, "non-molestation" orders and "occupation orders". Eligibility for the orders is based on the concept of "association" by way of certain family or domestic connections or through family proceedings. Eligibility for specific orders is further distinguished in the Bill, and depends on the existing property rights of the applicants, as well as their relationship to each other.

This part of the Bill was substantially before your Lordships' House last Session, in the form of the Family Homes and Domestic Violence Bill. It was discussed at great length then in a Special Public Bill Committee and completed all of its stages here before going on to be debated in another place. For that reason, and because time is limited, I propose to speak now only on the changes that have been made since the Bill was last before your Lordships. At a late stage and just before Prorogation the Bill attracted some controversy. This was based on a belief, I think misconceived, that cohabitants were being placed on an equal footing with married couples for the first time, and that this undermined the institution of marriage.

Although I do not think that the Bill would have had the effect feared, I accept that there is genuine concern to uphold the special nature of marriage. This is a concern I share, and for that reason I have made four changes to the Bill that was before this House in the last Session.

First, I have introduced a general clause on marriage. This instructs the courts to have regard, when making an occupation order for a cohabitant, to the fact that they have chosen not to give each other the commitment that a married couple have chosen to give. I hope that this will emphasise the important general message that marriage is special in a way that no other relationship is.

Secondly, the previous Bill made provision for the procedure for resolving property disputes contained in the Married Women's Property Act to be available to cohabitants. I have removed that provision. Although the extension was purely of procedure it was the subject of specific concern, and I think it is right to respond to those concerns.

Thirdly, concern was expressed about a cohabitant who had no right to occupy a property gaining long-term possession of it. For this reason I have now provided that in such circumstances an order, which may be for a maximum of six months (that was the old provision), may be extended only once. It was possible under the former provision to extend it again and again, indefinitely. This contrasts with the position for spouses

30 Nov 1995 : Column 706

and ex-spouses. I believe this further distinguishes between marriage and cohabitation and still retains the essential of what is required.

Fourthly, it was possible under the old Bill for the court in certain circumstances to be under a duty to make an occupation order in favour of a cohabitant with no right to occupy the home. This duty came about by the operation of the "balance of harm" test, as it was called. In these cases I have recast the test in such a way that there is no duty on the court to make such an order, but simply a discretionary power to permit it to do so. The court can have regard in considering that matter to all the circumstances of the case.

I believe that the overall effect of these amendments is to emphasise the difference between marriage and cohabitation while at the same time providing protection where it is needed. Marriage is a lifetime commitment, publicly entered into. It gives the parties to the marriage rights and obligations to each other which can continue even after the marriage has ended. Cohabitation is not the same. Although individual cohabitants may intend their relationship to continue indefinitely, they do not have the same obligations to one another or the same rights as married partners. It is important that the law provides protection against domestic violence for those who need it. But I also believe that a distinction between marriage and cohabitation can and should be drawn. I believe that Part III of the Bill does that. I ask your Lordships for support for the changes that I have made in an attempt to reach consensus on this matter.

This is an important Bill which deals with areas fundamental to people's lives. I feel that it is right that Parliament should have an opportunity of considering this matter in a Bill promoted by the Government in government time. After prolonged thought, I have put forward what I consider are the best proposals. I am happy to see them improved, if Parliament can suggest improvements. I hope that we can all approach this matter in a spirit of united resolve to do the best that we can for families in England and Wales in the years to come. I commend the Bill to the House.

Moved, That the Bill be now read a second time.--(The Lord Chancellor.)

4.1 p.m.

Lord Irvine of Lairg: My Lords, this Bill is a marriage of two separate measures; but a marriage made in haste. The divorce provisions are driven by Treasury urgency to cut the legal aid budget. The alterations to the previous domestic violence measure are a sop to an unrepresentative minority of Conservative MPs. They should not have been bought off. The original measure was supported by an all-party agreement. It also enjoyed overwhelming support in both this House and the other place.

I shall deal first with divorce. A marriage breakdown is rarely the fault of one party alone. The decree should reflect the fact of breakdown. It should not be seen as a reward for marital virtue nor as a

30 Nov 1995 : Column 707

punishment for marital sin. I agree with the right reverend Prelate the Bishop of Chelmsford, who, in the debate on the gracious Speech, said that:

    "the family is essential to the health and wellbeing of our society".--[Official Report, 20/11/95; col. 152.]
But the question that we face is what to do if a marriage breaks down. Neither the parents nor the children are assisted by imprisonment within a loveless union. That breeds misery only. It is the children who are the most vulnerable. They need to be sheltered from conflict. They need to grow up with a positive view of both their parents.

The noble Lord, Lord Ashbourne, expressed his concern about the growing number of children born outside marriage. I share that concern. But I do not believe that, by making it more difficult for people to divorce, the illegitimacy rate will come down. On the contrary, people who are unhappy within their marriage and wish to start again with a new partner will do just that, whether or not they are free to marry. If they are unable to marry, that will not stop them having children. Their children will have to grow up without the security of parents who are married and without enjoying the status of marriage. The children of family number two will pay a heavy price for preserving the shell of a moribund union.

So, we support the no fault principle. But, with respect for what has come from the noble and learned Lord, the 12-month embargo on obtaining a divorce is too restricted. If the parties are able to make sensible and prompt arrangements to protect the interests of the children, we see no merit in holding them to a marriage which is dead and from which both want to escape. We shall be tabling amendments to that effect.

Let me give an example from the recent experience of a solicitor who is a distinguished family law specialist. A man who was separated from his wife more than 10 years ago was diagnosed in February this year as dying from cancer. He and his wife had not divorced; neither of them had seen any need to do so. He was living with his new partner. She became pregnant. He wanted, so far as he could, to provide for her and their child after his death. His lawful wife was entirely supportive. She too was living with another. The lawful husband had substantial pension policies. Within a few months he was able to obtain a divorce from his wife with her full agreement and the co-operation of the courts. The divorce was in June this year. He died in September. His new wife now has the benefit of a widow's pension under his occupational scheme, to the great benefit not just of herself but of their child too. Happily, the child was born in the summer. I should be astonished if the noble and learned Lord could think other than that the courts should be given flexibility to grant divorces in less than a year in exceptional cases.

But also, we hold firmly to the view that, if fair arrangements have not been made, there should be no pressure, just because a year has elapsed, to make an unfair arrangement which will bind the children and the parties for years to come.

Central to the Bill is the process of mediation. We support mediation. But it is widely misunderstood. The mediator does not attempt reconciliation. I acknowledge

30 Nov 1995 : Column 708

that very rarely there could be a reconciliation once the parties realise the full implications and consequences of what they are doing; but that is no different from the present law when a solicitor is consulted. After advice about the financial and other consequences of divorce, some may have second thoughts. They may want to try again to save their marriage and, if a marriage is savable, the mediator, in exactly the same way as a solicitor, will be bound to halt the process and refer the parties to a marriage guidance organisation. Mediation proper can only begin to work and continue to work if both parties recognise that the marriage is over and that sensible arrangements for the future have to be made.

But fair arrangements necessarily depend on skilled legal advice and representation. The Bill in terms says nothing about that, although the noble and learned Lord, in the debate on the gracious Speech, said:

    "Legal advice and assistance will be available for eligible parties, where needed, in support of mediation".--[Official Report, 20/11/95; col. 137.]
We take that to be on the Green Form scheme and that it will be what the White Paper called "early preliminary advice and assistance". But it is quite clear that what is not made available to legally assisted persons is legal representation.

Mediation is an anodyne word but the lot of a fearful and intimidated wife in the mediation process will not be a happy one, despite prior legal advice and the skills and courtesy of the mediator. She will have been told what her legal goals should be; but, unrepresented, in the real world it is unlikely that she will be able to present her case effectively. So I ask: are all lawyers to be excluded from mediation or only lawyers for legally aided parties?

I have another question. Will the noble and learned Lord confirm that it is the intention of the Bill to make fundamental changes to the present arrangements for legal aid representation in divorce cases? Will he confirm that the effect of Clause 24 is to place upon the Legal Aid Board in divorce cases the duty to refuse legal aid representation in favour of mediation? Clause 24 means that the Legal Aid Board must--not may--refuse legal aid representation in family proceedings on the grounds that:

    "mediation is to be considered ... as more appropriate".
So that is the general provision. The Bill states that it will be subject to exceptions, but they are not defined in the Bill and we should like to be told what those exceptions are to be. Your Lordships are being asked to legislate for a two-tier system--proper legal advice and representation for those who can pay and the lonely prospect of the mediation room for the rest. Mediation, which is all that will be on offer from the Legal Aid Board after some early legal advice, is not truly voluntary.

I turn to a wholly distinct point. Legal representation in the courts must always be necessary where the extent of the family assets is in dispute. It is all too common for one or other of the parties to be less than honest about resources. The noble Baroness, Lady Blatch, in her reply in the debate on the gracious Speech, sought to reassure your Lordships that, if one party did not

30 Nov 1995 : Column 709

disclose assets, mediation would cease and the parties would be referred to lawyers. But how will the mediator know? A concealing husband is hardly likely to tell the mediator that he has salted away a secret source of assets. Whenever a serious issue in regard to the true extent of the assets arises in mediation, there should be no question of the mediation continuing and no exclusion of legal aid representation for court proceedings.

There is another major subject on which we shall be tabling amendments in the name of my noble friend Lady Hollis. I hope the noble and learned Lord will feel able to accept them. Divorced wives should be entitled to their fair share of accruing--I emphasise "accruing"--pension rights. It is no good allowing them rights which depend on the former husband living to contractual retirement age. Divorced wives should have those rights at the time of divorce. I emphasise that there will be no public expenditure implication.

I turn to Part III, which deals with the family home and domestic violence. The domestic violence proposals of last Session were lost at the eleventh hour because of an uninformed campaign by a tabloid newspaper supported by a minority of Conservative Members in the other place. I say "uninformed" because they should have known--indeed, the noble and learned Lord confirmed--that the right to be protected against domestic abuse had been given, since 1976, not only to spouses but also to a man and a woman living together as though married. Therefore the argument that the Bill was bad for marriage because for the first time it would enable an unmarried cohabitant to remove a partner from the home, was plainly wrong. The unmarried partner has had that right for nearly 20 years. But the Bill dealt a modest blow for civilised behaviour and it is civilised behaviour which should underpin true family values. By protecting children, mothers and the elderly, the present Bill strengthens not only family values, but also family responsibility by providing emergency and temporary safeguards for victims of abuse.

Part III enables the law to extend protection against non-molestation to former spouses (who some think were excluded irrationally from the 1976 Act) to persons who used to live together as though married; to those living together in the same household for reasons other than that one is employed by the other; to a tenant lodger or boarder; and to close relatives such as parents, grandparents or children. The so-called "grasping mistress" will be given no greater protection than she enjoys today. But parents will become safe from harassment by their children and a lodger from assault by his landlord.

Those are protections only against molestation. A court order requiring the perpetrator of violence to leave the house can only be sought by a spouse, a former spouse, cohabitant or former cohabitant and then only if he or she lives or used to live in the house in question. The noble and learned Lord modified the Bill in deference to those whom he thinks must be appeased. The Bill is a weaker Bill as

30 Nov 1995 : Column 710

a result. Now, before the court may make an exclusion order in favour of an adult who is not an owner of the property, the court is directed to consider physical ill-treatment or impairment of health. But noble Lords will appreciate that emotional and psychological assault, even though it does not cause impairment of health, can be just as damaging as kicks or punches. Why should one party be free to make late night hoax calls, to switch off the heating or indulge in any other antics which cause misery to the other party or the children without running the risk of being ordered to leave their home unless he comes to his senses? Those antics do nothing to promote family values. Family values deserve support, whether or not the partners are married.

Next, the Bill puts the court under a general duty to take into account, when considering occupation orders, that, where a couple cohabit without marriage, that signifies a lesser commitment. The noble and learned Lord defended that change. Perhaps it does signify a lesser commitment. But the whole point of an occupation order is to protect from harassment. Harassment is unacceptable, whether the victim is a wife or a live-in lover. If, in an extreme case, the partner of an unmarried cohabitant assaults the other or terrorises the children, it is wrong that the court should give less protection because they are unmarried. Is that what the provision invites the court to do? If not, it should be taken out because there is a risk that that is how it will be interpreted.

It is no answer to say that, by not marrying, a couple demonstrate less commitment. No one should be entitled to assault another member of a household, whether or not their relationship is cemented by marriage. Though non-molestation orders can be made in those cases, without the underpinning of exclusion orders the protection will be a second-class protection. We shall be tabling amendments to ensure that all forms of harassment, whether physical or otherwise, run the risk of the perpetrator being removed from the home.

The noble and learned Lord told your Lordships that exclusion orders in favour of non-owners are now--this is another sop to those who must be appeased--only to last for a maximum of six months, with the possibility of a further and final six months' renewal. In most cases, in practice, that will be adequate. But in this sensitive jurisdiction, where the facts of the case vary so infinitely, it is wholly unhelpful to tie the hands of the court more than is absolutely necessary. There may well be cases where there is acute difficulty in rehousing the abused party; where the couple may be elderly or where one party may even be terminally ill. In such cases, obviously, it may, in the real world, be impossible to obtain alternative accommodation within the timescale stipulated. The court's discretion should be preserved, otherwise, once one year has gone by, the party under the court's protection will be turned out on to the street. We shall be tabling amendments to give the courts flexibility.

30 Nov 1995 : Column 711

All the amendments that we table will be informed by our support for the family, for children, for victims of violence and for fairness between those who suffer the tragedy of a failed marriage.

4.19 p.m.

Earl Russell: My Lords, for us on these Benches this is a free vote Bill so anything I say will not commit these Benches, or even my noble friend Lord Meston, who is leading on the later stages of the Bill. That said, on free vote Bills we usually agree well enough. I hope not to break that tradition.

I shall begin by telling the noble and learned Lord a story from which I hope he may take a small amount of comfort. We have perhaps had no Prime Minister whose devotion to Christian moral principles was more intense and more plain than Mr. Gladstone. Rather more than 100 years ago Charles Bradlaugh was elected to another place as an avowed atheist and because, being an honest man, he hesitated to swear by Almighty God, found considerable difficulty in taking his seat. Mr. Gladstone, after serious consideration, decided that, being a duly elected Member, he must be allowed to take his seat. Lord Randolph Churchill commented that this proved that Gladstone was an atheist. The noble and learned Lord on the Woolsack, after reading what has been said in the press about this Bill, may perhaps have some inkling how Gladstone may have felt. He may perhaps even take some comfort from reflecting that when he is thus maligned he is in most excellent company. It may also be of some interest to the House to know that at the time Lord Randolph perpetrated this remark he was the leader of an unofficial grouping on the Conservative Back Benches colloquially known as the Fourth Party.

It will not surprise the noble and learned Lord if I begin by paying attention to Part III of the Bill, the former Family Homes and Domestic Violence Bill. It is important that in this Chamber and in the other domestic violence has always been a matter of all-party concern. That is vital to many of those working in the field. I have heard them speak with considerable warmth of the work done as Ministers by the noble Baroness, Lady Hooper, and the noble Baroness, Lady Cumberlege. It is important that that tradition should continue. It has obviously suffered from what happened last Session, but I am delighted to see the Government struggling to restore it, and so long as, and in so far as, they do, I shall help them with that. It causes me great pleasure.

I am also most grateful to the noble and learned Lord for what he said in the debate on the humble Address about our Jellicoe procedure. I have before me the proceedings of the committee which considered the Bill in the last Session. If anyone says that the Bill had a cursory examination, I hope as a penance that they will be sentenced to read every single word of it. It is most thorough and very interesting too.

I take the point that the noble Viscount the Lord Privy Seal made in reply to my noble friend Lady Seear when the Bill was abandoned in the last Session about the need to achieve consensus. Whether consensus has yet

30 Nov 1995 : Column 712

been achieved or whether we have merely gone through one of the moves on the road towards it is a question we need to explore. The criticism of the Bill was essentially, as the noble and learned Lord has made plain, because of a dislike of cohabiting. Even if one were to regard that concern as justified, it was here misplaced. What we are dealing with in Part III of the Bill is the preservation of the Queen's peace; the right, as the noble Lord, Lord Irvine of Lairg, said, to be free from molestation, from physical threat and physical harm. It is the first duty of the state to preserve that for its subjects. That must come before other duties. The noble and learned Lord referred to preserving the special nature of marriage. I shall not argue with that but it worries me to see it done at the expense of the Queen's peace. I cannot improve on the words of the Royal College of Nursing. It says:

    "The RCN believes that domestic violence is unacceptable, whoever is the victim".

It is also not as widely understood as it should be--partly because not enough people have sat through social security Bills--that cohabiting is a recognised status in law. It is explained in the answer to Question 26 of the proceedings of the Select Committee in the last Session. It goes back to the supplementary benefits Acts immediately after the war and is confirmed in the 1976 Act dealing with this subject. It is a defined status which is referrable to evidence and tested by such things as the shared household and the shared finances. It is not an arbitrary whim of an idea and it does not protect any old mistress.

Cohabiting is now a socially recognised status. Twenty per cent. of live births are registered by two parents living at the same address but not married to each other. That means that in any normal party if you have 20 couples present and you start denouncing cohabiting you may be denouncing five out of the 20 couples present. I confirmed this morning on the highest authority that you can now, in making an entry in Who's Who, enter yourself along with a partner rather than a spouse if you so prefer.

In a social relationship which is common among those we meet daily good manners demand that we temper our criticisms. I am not sure that Clause 36 as it stands at present entirely meets that test. We shall need to discuss all the changes which have been made without prejudice to what we may ultimately do. I want to hear further the details of what the noble and learned Lord is recommending. Even Lord Chancellors are entitled to the rules of natural justice. I shall hear what he says before reaching any decisions. But I am not at present comfortable about the change in Clauses 31 and 33 from a duty to a discretion. It gives the court a chance, if it wishes, to put the balance of financial interest above the protection of physical safety. I am not convinced that that is right. The preservation of the peace comes first. It is a right to which even a condemned criminal on the way to execution used to be entitled and I do not think it should be taken away from cohabitees.

On the argument about the Married Women's Property Act, I shall want to hear further exactly what the noble and learned Lord has to say. But in cases where there is a shared budget and a shared mortgage,

30 Nov 1995 : Column 713

where the woman has contributed to the building up of the household, I shall want to know why a one-year order might not in some circumstances be renewed for a further period. But those are matters to be considered later on.

Before I leave Part III of the Bill, the noble and learned Lord gave a welcome assurance on 9th March in Committee that the homelessness legislation we are expecting will preserve the status of women in refuges who are victims of domestic violence. Water has flowed under a lot of bridges since then. I hope the noble and learned Lord will forgive me for saying that I would be awfully glad if he could say that that is still the intention of the Government as a whole.

On the divorce part of the Bill, I hope that we shall not get too excited because we must not overrate the powers of this House to change a loving or unloving relationship between two people. It is not in this House's power to destroy marriage and it is not in this House's power to revive a marriage which is already dead in spirit. In considering the divorce part of the Bill my guiding light will be a remark made by the right reverend Prelate the Bishop of Chelmsford in the debate on the humble Address. He said that when a relationship is in danger it is not the legal bonds which need attention but the relationship that they are designed to protect. That is a remark with considerable implications.

I do mind very deeply the breakdown of a marriage. Every breakdown of a marriage is, I believe, a sort of little death, but whether marriages which have already broken down then go on to result in divorce is a question about which I feel a good deal less emotion. I believe that the proportion of broken down marriages which go to divorce is not a constant over the centuries. If what is happening is that more matrimonial breakdowns are ending in divorce, that is not a matter of profound concern to me.

What is of concern to me is the underlying breakdown. Thinking that one can prevent that by tightening the divorce laws is a bit like thinking that one can prevent death by postponing the funeral; it is altogether aimed in the wrong place. So for me the test of a good divorce law will not be whether it produces more or fewer divorces. It will be whether when a marriage has broken down it minimises conflict; provides orderly arrangements for protecting the interests of the children; settles money and property; and is generally an orderly procedure.

I also ask the House not to get too excited about the effect of divorce on children. I speak as the child of divorced parents. I know that it is difficult. But as far as I know I am not actually a nervous wreck--yet. I must insist on the qualification, I am afraid. It is always difficult for children if there is a bad relationship between their parents whether they are married or not. As far as I know, we do not have any comparative evidence on the difficulties suffered by children with unhappily married parents or divorced parents.

As far as I can judge from the limited sample of people to whom I have had to listen in these areas, what seems to me to cause trouble is the state of emotional

30 Nov 1995 : Column 714

warfare between the parents, especially a state of emotional warfare in which the children are chosen as the battleground. That seems to me to cause damage whether the parents are divorced, separated or, in what is perhaps the very worst case I remember, continuing to live as man and wife until all the children are grown up. In that case the couple would have done much better to have been divorced 20 years earlier. The children would have been spared a very great deal.

If we really want strength in marriage--which I do, and badly--I do not believe that we can achieve it by changing the laws on divorce. I do not believe that we can achieve it by anything we do in this Bill. I believe that we would do much more if we tackled questions like the hours of work which prevent so many married couples from seeing anything of each other, child care, paternity leave and giving the couple a chance to know each other. Noble Lords know that I can list many more such measures, but I see the clock and I shall not.

Overall, I offer to this Bill a cautious sympathy, and the noble and learned Lord will hear both words equally. As regards the issue of fault, I agree with him entirely in every word that he said. I decided long ago that we never really know the inwardness of anyone else's marriage. Experience does nothing to make me change that conviction. As regards the one-year limitation, in general, yes, I agree. But I would like to see the possibility for exception to that. I found what the noble Lord, Lord Irvine of Lairg, had to say about that extremely moving and persuasive.

I am thinking also of cases of mental illness. I remember one friend of mine, since fully and happily recovered, who it was absolutely essential to free from the emotional and practical bonds of the marriage before a psychological recovery could begin. The noble and learned Lord will have guessed that I am thinking also of victims of domestic violence.

I was delighted to hear him say again that mediation will be voluntary. There is of course a question about how voluntary it is. Clause 12(4) looks as though it requires people to show cause why they do not want mediation. I certainly have an uncomfortable memory of certain notices--which some other noble Lords may remember--"There will be voluntary games for the following. Those failing to turn up will be severely dealt with". I should like to know who decides that mediation is or is not appropriate. I must also apologise to the noble and learned Lord in that for a moment I did not hear him clearly because I was noting his previous remark. But I believe that I heard him give an assurance on Clause 8 that nobody will be compelled to attend the preliminary information session with their previous partner. I am delighted to see him nod. That is an extremely welcome assurance.

I would also like to know whether people can leave mediation if they have gone into it but do not like what they are finding; and whether there is a procedure for varying a mediation order in a change of circumstances. I would welcome a categorical assurance that on matters of property mediators will not be using formulae. I believe that the noble and learned Lord knows my views about formulae and I shall not touch on them further.

30 Nov 1995 : Column 715

I wish to make one point about custody. There is a very strong feeling among separated fathers that they are not getting a fair crack of the whip in custody and access. As regards access, I am sure that the noble and learned Lord knows that it is heartbreakingly difficult to know what is the right thing to do. One must hear the message and try. For exactly the reasons that women deserve equal rights in employment, men deserve equal rights in child custody. I hope that the mediator will hear that message.

Finally, I would like to hear that there is adequate finance available for the mediation process. I would like to know how much and from what source. If the noble and learned Lord will forgive me, I would welcome a categorical assurance that under no circumstances will mediators ever be on performance-related pay.

4.37 p.m.

The Lord Bishop of Worcester: My Lords, I am glad that this Bill was put into the Queen's Speech. It is going to provoke a debate, which I believe is timely indeed and urgent. It was Richard Baxter, a luminary of my own diocese, who said that when marriage and the family fail, all else miscarries. I believe that we have the highest divorce rate in the European Union. In 1993, 76,000 children under the age of 16 witnessed their parents' divorce. Since then there has been a two-thirds rise in the number of children under five years of age who have witnessed the break-up of their parents' marriage.

We are letting down our children and thereby placing a time-bomb under our society. We have tolerated the breakdown of marriage and the family in the name of self-fulfilment and sexual liberty, and this in a country shaped in the Christian tradition, which values children so highly. Jesus made much of children. Any country that claims to be Christian should make much of them also. I speak not only as a bishop, but also as chairman of the Children's Society. I go visiting family projects. I was in Bolton, Rochdale and Oldham last week. I see the havoc that is being done to children by the breakdown of the family. My only concern is that the people whom I visited last week actually get near a mediation session. Some people in our country today are naturals for counselling and mediation; for others it is just not in their line.

Professor Halsey has described our contemporary age not as the age of the child, but the age of child neglect.

I realise that it is perilous for a churchman to venture into questions of divorce. He is always open to the charge of selling the past if for one moment he admits that divorce may be necessary. Let me assure your Lordships that we as bishops stand foursquare behind marriage and the family. They are within the order of God's creation and the basis of a stable and wholesome national life. We uphold the highest possible standard for marriage, but we are also pastors. We carry with us as a symbol of our office a shepherd's crook. We know that human nature is frail. The world is not perfect, but into that world, grey and sometimes soiled, we must go. Those who are well have no need of a physician--only

30 Nov 1995 : Column 716

those who are sick have such a need. When we legislate we cannot legislate only for the elect: we must legislate for those who are in need.

Truth flies with two wings. It is both a declaration of the ideal and a concern for those who have not achieved it which must occupy us. I believe that that has always been so in the Judaeo-Christian tradition. The greatest of the medieval Rabbis, Maimonides, taught that you must proclaim the law and espouse the cause of those who have broken it. You do not improve human marital relationships by making the law more punitive. At the present time in England we need laws which will build up marriage and the family. We need to build them up from within as relationships. We need to resource those two vital institutions and to heal rifts when they occur. It is no use taking the moral high ground as if one is speaking from an ivory tower.

I am pleased that the Bill is entitled the "Family Law Bill" because I believe that that is a positive title. It puts the family at the centre of attention. The Lord Chancellor has produced a Bill which has the potential to foster good marriage--and I have to say that that sometimes comes the second time around--and proper care for children. As a Bench, we want to see it go through to Committee stage. Perhaps what I am saying this afternoon will be general compared with what has been said by noble Lords opposite, but we shall want to see that the detail of the Bill fulfils the principle. I am also pleased that for the first time since 1857 this concern for good marriage and for children has been introduced by government. We are thereby showing concern for the common good.

I know of none who considers the present divorce laws to be satisfactory. The quickie divorce is prevalent to the tune of 75 per cent. of all divorces. It is based on the allegation of a fault which is neither approved nor rebutted and often involves collusion, contrivance and even deceit. That cannot be good. The sole ground for divorce is to be the irretrievable breakdown of the marriage. That does not mean that we shall no longer talk about faults or sin. It means that faults are not justiciable. Just as a couple went into their marriage partnership together, through the Bill they will have to think carefully about dissolving it.

The required information session could assist both parties to know what help is available. I understand-- I should like to be assured on this point when the noble and learned Lord responds to the debate--that legal advice will be available in mediation. That is necessary if an informed decision is to be made. Mediation will give a couple an opportunity to reflect on the consequences of divorce for their children, home and property, thus underlining the responsibilities of marriage and parenthood. I believe that a year with a purpose could provide the time for a couple to come to a more balanced view.

It is not possible for any legislation to cover every hard case. I know of quite a lot of hard cases, but I shall not take up the time of the House by describing them this afternoon. Above all, the children would benefit greatly from the avoidance of the crossfire of marital warfare. That will stand them in good stead when they

30 Nov 1995 : Column 717

themselves marry. Bitterness, rancour and taking up sides damage children and put them at a disadvantage in terms of future relationships.

So far, so good and I am glad to support the Lord Chancellor in his good purposes, but I am disappointed that there is nothing on the face of the Bill about the resources which the White Paper said would be at his disposal for marriage preparation, marriage education and marriage counselling, and to support the existing voluntary agencies which will be called upon more if we introduce mediation. Can we be assured that they have the resources with which to respond? I understand that they have formed themselves into a college of mediators and that the training course that mediators will receive has university validation. That is good, but we would be in a situation where the last case would be worse than the first if the Bill were to become law and in the end we found that we could not resource it. I look for reassurance on that point.

There is also the question of the protection of women as well as children. Words such as "flexibility" and "the discretion of the court" are important. Unfortunately, I cannot go into Part III of the Bill in as much detail as has been covered so far in the debate. However, in the present state of affairs men are often the losers. They are often rendered homeless and, if they are workless also, that is a recipe for disaster. Can we be assured of the use of the judge's discretion in allowing children to stay in the family home--they may be taking GCSEs or be in the midst of exams of great importance. We need to know that there will also be an ouster clause to cover cases where abuse has occurred, and the use of the bar where undue hardship to either party would follow the granting of a divorce.

I believe that the Bill has the potential to end quickie divorces and to make the option of divorce harder. There is in our society a divorce mindedness which sometimes brings people to divorce in haste and repent at leisure. I am told by an inquiry that six years after divorce, 50 per cent. of men and 30 per cent. of women registered regret that they had taken that step. We need to halt the slide. We need to talk up marriage and to avoid sceptical remarks such as "Holy deadlock" and the sophistication which comes like a frost to blight our life.

Equally, we would be foolish to imagine that changes in marriage and the family have not taken place. Of course they have. Marriage and the family are under unprecedented pressures from the massive social changes of our time. Poverty, unemployment and mobility all put marriage and the family under pressure. Women are no longer prepared to be anything less than equal partners in marriage and the family--and rightly so. I want to argue that parenthood is as important as any career. So, marriage and the family need our support and I believe that, in principle, the Lord Chancellor's Bill will effect that.

4.50 p.m.

Lord Craigmyle: My Lords, my noble and learned friend on the Woolsack has put me in something of a

30 Nov 1995 : Column 718

quandary. I yield to no one in admiration of my noble and learned friend's many high qualities and, in respect of this matter, of his intellectual integrity. It was clear from the way in which he spoke to your Lordships that he has devoted intense study to this matter, far more than I and probably many of your Lordships. Indeed, I suspect that had I had before me all the material that he has considered I should not have been able to understand a great deal of it. During his time at the Bar he had experience of the law, including experience of divorce cases.

My noble and learned friend puts me in a quandary because I am not entirely persuaded by what he said. In view of his qualities, my first instinct is to say, "Of course, he is right. I have not thought about the matter sufficiently". And yet the worries remain. It may be as well if I express them briefly. I ask the noble and learned Lord's charity. If I am critical of the Bill my criticism springs from a spirit of inquiry and is not mere carping.

My main difficulty is the business of no fault. A great deal of propaganda has been sent to noble Lords on both sides and the no-fault provision seems to be--I risk making a pun--the fault line. Those who support the Bill believe that no fault is an excellent idea; those who do not support the Bill believe that it is a dreadful idea.

I do not know the answer but I wish to raise this aspect. Under the terms of the Bill, divorce remains a matter for the court. Although these days divorce proceedings seldom reach the court they are nonetheless decided by a judge. Upon what basis is a judge in future to decide a divorce matter? The petition--the statement, as we must now call it--tells him nothing but the opinion of the parties to a marriage or, much more often, of one party to the marriage that the marriage has broken down. No reasons and no explanations. We have been told that in the past reasons and explanations were often false and involved connivance. Now no reasons are to be given at all. Does that improve the situation? To my mind it does not.

If the judge is given no reasons, upon what can he reach a decision? There are no explanations of the causes of action. How can he judge the matter justly? Is he expected to judge the matter? The right reverend Prelate said that it may be that the fault will not be justiciable. I am beginning to wonder whether anything justiciable is left in the majority of undefended divorce cases. If there is nothing, why do we leave the matter to the judge? The judge becomes a mere rubber stamp. The divorce proceedings should go through the registrar of marriages. Let the registrar who did the hitching do the unhitching. The judge is no longer in a position to do anything except in relation to mediation or what is contained in Clause 10. My noble and learned friend seems to believe that Clause 10 will be effective. I wonder whether it will. I wonder how many people will use Clause 10, which seems to put a heavy burden on the so-called "other party"; that is, the one who has not made the statement. One may guess that in practice it will be seldom used. Apart from that, it appears that the judge cannot refuse to grant a divorce.

30 Nov 1995 : Column 719

The statement of breakdown of marriage is not a petition to the court. It comes very near to being an instruction to the judge to set in process the machinery which will inevitably lead to divorce. Its grounds cannot be challenged and it does not have to be proved to be sound. It expresses merely the unexamined opinion of interested parties to what is always a complex matter. I am afraid that Clause 10 and, very likely, the mediation clauses will prove the merest fig leaf to cover the shame of divorce proceedings. I do not believe that judges will like being rubber stamps. I have not asked any, but I can guess the answer.

What are the rubber stamps for? In the phrase I used a moment ago, for the unexplained, unquestioned opinion of one party to the marriage. No reasons; no explanations. No fault; no justice. However ill-founded or trivial the case for divorce may be, a divorce there will be, pace Clause 10. The compulsory waiting time, mediation and all that, will not deter many prospective divorcees. A few may be turned back but I suspect not many. The danger is that, in the upshot, quite contrary to my noble and learned friend's intention, divorce under a no-fault system will be easier than ever and will continue to become more and more common.

Perhaps most of your Lordships have it in the back of the mind that the existence of divorce alters the concept of marriage itself. If a couple entering upon matrimony realise that marriage is for life and that fact is sunk deep into their thinking they will take it seriously. They will understand that marriage, in the wonderfully telling words of the Book of Common Prayer:

    "is not... to be... taken in hand unadvisedly, lightly, or wantonly".
But if, on the contrary, we in Parliament, by whose authority laws about marriage were made, not only make divorce available but strive to make it as simple, convenient, stigma-free and inexpensive as we possibly can, we shall make it seem a normal, everyday matter and, consequently, marriage a simple thing easily undone. The very marriage vows, solemn as they are, become just an old-fashioned form of words in an old-fashioned form of ceremony. Who is to take seriously all that guff about "better or worse" and "till death us do part" when it is known very well that on the merest whim of one or the other partner statement can be laid before the court saying that the marriage is falling to pieces. That will be the situation if divorce is only a formality. In those circumstances, marriage promises will be set aside cheerfully, not just by the parties, but by us here in Parliament, the very authority which insists on their being made in the first place.

Those may be general considerations which are not strictly pertinent to the Bill but when considering anything in the way of divorce reform such general considerations must underlie our discussions. We should look at the map to see where we are going and where we shall reach if we carry on in the current direction.

If, as I greatly fear, the removal of all trace of fault from divorce proceedings further weakens the bonds of matrimony in England and Wales and the number of divorces continues to increase, the time may not be far away when we shall be forced to react very strongly and

30 Nov 1995 : Column 720

once more insist that divorce is made unattractive and so becomes less readily sought after and that couples take seriously their marriage vows and abide by them, however difficult that proves to be.

At the moment, I do not think that we need do more than stop and take a step or two backwards. We need not have a violent reaction such as that of which I have just spoken. I agree entirely with the right reverend Prelate that we must ensure that the bodies which support and help marriage and help people who are having marriage difficulties are adequately supported. The support they receive from the taxpayer is trivial compared with the enormous sums expended on supporting the divorce machine. And it will be trivial compared with the sum needed for the new industry of mediation in which not only my noble and learned friend but many other noble Lords seem to be placing much hope. I suspect that that will just become another branch of the social services or the counselling profession. I greatly fear also that we may find that there is a danger of the industry becoming manned by those who have their own agenda, which may not be the agenda of Parliament.

I am sorry to be critical of the Bill. I hope that by the end of the debate, I shall be better satisfied with it. I must apologise to my noble and learned friend if I am not able to be present for the conclusion of the debate. The reason is one for which he will have some sympathy. I am going to Scotland.

5.3 p.m.

Lord Jakobovits: My Lords, I wish to pay tribute to the noble and learned Lord the Lord Chancellor for presenting the Bill and for the manner in which he introduced the debate. I wish also to express my delight at what I heard from the right reverend Prelate the Bishop of Worcester. Obviously we share a common heritage to a large extent and therefore there was much with which I found myself in agreement, as there was in the speech of the noble Lord, Lord Craigmyle, who expressed ideas very close to my heart.

The Bill contains some valuable provisions which merit support. More important, it helps to bring one of the most depressing problems besetting the country to national attention. It places it at or near the top of our parliamentary agenda.

I find the Bill quite satisfactory for what it says but less so for what it omits. The White Paper, Looking to the Future, proposed that present arrangements for marriage preparation would be reviewed and that every opportunity would be made available to explore reconciliation even after the divorce process had started. It promised also to support the institution of marriage. I find nothing in the Bill as currently drafted to reflect those objectives.

Above all, what I miss in the Bill is the sense of urgency and alarm which should be evoked by the disintegration of marriage on such a huge scale. With some 150,000 divorces per year, marriage is now a national disaster area, inflicting immeasurable harm at an incalculable cost economically as well as socially, not to mention morally.

30 Nov 1995 : Column 721

Legal payments and welfare benefits alone cost the state some £3 billion annually. When one adds the far greater losses in productivity caused by people whose homes are breaking up, plus the huge cost of crime directly attributable to children growing up in what amounts to a no-man's land without a stable and loving home, £10 billion is the aggregate price for divorce. Marriage failure may now even, alas, blight the nation's most precious asset, the monarchy itself.

I recall some years ago a chief constable, after detailing the rise in the crime figures, saying, "We will have to learn to live with crime." I believe that that is dangerously defeatist counsel. We must learn not to live with crime. We must learn to abhor crime as utterly unacceptable. Similarly, this Bill, by its emphasis on easing divorce rather than on strengthening marriage, seems to accept the massive break-up of marriage as though it were inescapable with scarce concern for promoting the benefits and consolidation of regular home life.

If the country were faced with a physical epidemic affecting 600,000 victims a year--on average every divorce brings severe anguish to at least four people--a flood of emergency measures would be set in motion to stay such a devastating plague. We all remember when the AIDS epidemic first struck how energetically the Government mobilised all available resources to bring the dangers to the attention of the public and to create an awareness of the dreadful consequences. Leaflets entitled Don't Die of Ignorance, with detailed instructions on how to avoid the hideous infection, were dropped into the post boxes of every home in the land.

Surely, the first task must be to alert the population to the awesome peril facing all spouses--indeed, all young couples today--if they are not careful, and to the potential resultant threat to millions of children who will grow up in a barren no-man's-land, sans love, sans tender care, sans everything, to echo Shakespeare's seven stages of man in "As You Like It".

The Chinese have a proverb: people stumble over molehills, not over mountains. Many marriages start to go sour over petty arguments. Small, early precautions could prevent many a great tragedy later. Some simple rules should be widely circulated on how to guard against marital shipwreck--for instance, stating that in a truly happy marriage giving is more important than taking, and that each partner should think first of making the other happy before seeking personal happiness. Much more gravely, sexual adventures before marriage are bound to turn the eventual marriage into an anti-climax as "stolen waters are sweet" and, therefore, illicit pleasures are always more exciting than legitimate joys. Such marriages are often ruined before they start by unfulfillable expectations.

It may be argued--I am sure it will be--that it is not the business of government or of Parliament to give moral advice or to urge people how to conduct themselves in their private lives. I reject that argument as false and irresponsible. It is the business of government to protect society from any looming peril, especially when it is liable to be of catastrophic proportions, as the breakdown of marriage now is.

30 Nov 1995 : Column 722

Perhaps I may give your Lordships an analogy. The state does not allow drivers to take to the road without a licence which is given after competent instruction and a proper test. That is because an untrained driver is a menace to other road users. Before entering the often much more risky business of marriage, why should not young people be required to undergo pre-marital instruction to make sure that at least some of the pitfalls, as well as the skills, of home-building are thoroughly known beforehand? Failed marriages can produce more casualties than unlicensed drivers. They can destroy whole families and the entire fabric of society. If the state controls the exit from marriage, it is at least as urgent to regulate the entrance to marriage.

Even more damaging than hasty divorces are hasty marriages. A waiting period on registering a marriage before it can be solemnised or contracted can save more marriages than a waiting period before a divorce is granted. Shot-gun marriages all too often lead to the gun going off with tragic casualties.

Some teaching in the responsibilities of marriage should also be included as an essential subject in school instruction. It belongs to basic civics. In the end, it may well prove even more indispensable to success in life than purely professional or occupational training. A broken home costs more than a poorly prepared career.

In the light of the present-day crippling havoc, the state owes it to all citizens to promote and support educational and counselling facilities, helping towards healthier marriages. Huge sums are being spent on public relations campaigns, for example, to highlight the danger of the abuse of drugs, alcohol, drinking and driving and other hazards. The amounts saved on avoiding failed marriages would amply cover such publicity. The savings would also leave funds for essential research--such as on the causal relationship between broken homes and crime or between pre-marital training and the incidence of divorce.

Another relevant subject calling for urgent study is the effect of television on communications between husbands and wives, and between parents and children. The results may turn out to be startling. One only has to compare the amount spent on medical cancer research with the funds devoted to domestic cancer research to realise the glaring disproportion between the two.

I should like to make a final point on the Jewish ramifications of the Bill, particularly the hardship bar. A special difficulty arises out of a divorce. While dissolving the civil contract of the parties, it leaves the religious bond--equally recognised by the state as valid in parliamentary legislation--still intact, thus leading to a "limping marriage" liable to cause immense hardship. The noble and learned Lord the Lord Chancellor has been most helpful and has indicated that if I table an amendment to the hardship bar, designed to alleviate the hardship, the Government will look seriously at it in Committee. I repeat that I am most grateful to the noble and learned Lord for his understanding.

As heirs to the Judaeo-Christian heritage, most of us appreciate that the biblical story of the creation starts with marriage as the first human institution. In their togetherness, man and woman were told by their maker

30 Nov 1995 : Column 723

to be fruitful and to multiply; to fill the earth and to conquer it; and to have dominion over nature. It is no good reaching the outer space of the heavens, ruling over the mysteries down here on earth through the conquest of nature and being dominant outside if the inner space of the home collapses and the hallowed bond between man and wife is allowed to snap. I hope that the Bill, with amendments, will help millions of homes to be built or rebuilt as secure havens of love, virtue and joy.

5.20 p.m.

Lord Coleraine: My Lords, I am never surprised to find myself in agreement with words spoken by the noble Lord, Lord Jakobovits, and today is no exception. It is always a pleasure to have the opportunity to discuss a Bill introduced in this House by my noble and learned friend. This Bill is clearly a product of the age of the paramountcy of the interests of the child. That is a phrase of little meaning, flawed in concept and unjust in practice. I assume that it is primarily for the purpose of giving effect to this paramountcy that the major Christian religious organisations support the Bill.

However, there has to be some doubt as to whether the Bill will do everything that is claimed for it as regards children. Those who propose that it is better for parties to part than to stay together use emotive phrases such as "warring parties" and "abusive parties". However, not all limping marriages comprise uncivilised, struggling parties. There are limping marriages which can survive without that sort of friction, and they should be encouraged.

I spoke about this Bill during the debate on the gracious Speech and I wish to express again in more detail my support for many of the changes contained in the Bill which, taken individually, add up to humane, honourable and healing law reform. There are the proposals for mediation and the period of reflection which are intended to enable a disintegrating married couple to agree about their children and other matters before, and not after, finally divorcing. The proposals may also give couples the chance to experience before their divorce takes place the sadness and sense of failure which so many decent divorced couples have been shown to feel after it is all over and the sense of regret that their marriage was ever allowed to break down.

Some couples may come back together as a result of the period of reflection, but there has to be scepticism about that hope. It is unlikely that the period of reflection will be a cloistered six months. In the difficult cases where children are involved and the parents are embittered--just the cases where a period of reflection is most needed--it is unlikely that all the ancillary arrangements will have been agreed or ordered much before the end of the 12-month period, and then the divorce will be obtained and that will be that. I can also agree that in our enlightened times the state should no longer even pretend to stand in the way of divorce by the mutual consent of the parties.

The first of the five objectives of a better divorce law, as stated at paragraph 3.5 of the White Paper and elsewhere, is to support the institution of marriage. I ask

30 Nov 1995 : Column 724

whether the Bill will achieve this objective; I believe that it will not. That is why I believe that the Bill as drafted is, unfortunately, a bad Bill. My noble and learned friend, however, says that the Bill will support the institution of marriage. In paragraph 3.8 of the White Paper he writes that the Government propose to set up an interdepartmental working group on marriage chaired by his department. He writes:

    "The Government believes that there should be greater integration of policies which support marriage with those on divorce".
I agree. I only think it a pity that the group was not set up earlier.

The clear availability of marriage reconciliation services and counselling at all periods during the divorce process, to function in conjunction with mediation, would have been a central part of a Bill which reflected an integrated policy on marriage and divorce. However, we do not have that in the Bill, nor is it intended. I suggest that the purposes of mediation need to be spelt out with some clarity in the Bill. I wonder whether the purposes might be headed with, as a first objective, the strengthening of the institution of marriage and the family and of individual marriages and families, including particularly existing marriages and families but not excluding those which may later be entered into or be created by the separating parties.

The provisions for mediation in the Bill and in the White Paper are, frankly, in my view, better intentioned than considered. One has only to look at published papers on mediation to realise the extent to which as a profession it is in its infancy and has still to work out exactly where it is going, and the extent to which the creation of a formal profession has hardly begun, including the creation of a college next year which is to set and regulate high standards for a new profession. All that does little to give confidence in the Bill.

At the moment only a small percentage of divorces are mediated. Those are mostly cases where the parties are what we might call "civilised". There are nowhere near enough mediators to cope with the intended expansion of mediation in divorce. Paragraph 7.39 of the White Paper tells us of the pilot project to monitor and test the new arrangements before full implementation of the White Paper's proposals. I wonder whether my noble and learned friend has decided, and can tell the House, when he anticipates that the provisions for no-fault divorce and the year for reflection which are central to the Bill will be brought into force. Will it be in one year, two years or three years?

I have one further suggestion to make and I make it in the context that my noble and learned friend has said that the Government are prepared to be persuaded by arguments submitted in Parliament. When I spoke on 20th November I sought to show that to make of marriage a licence to cohabit, terminable at one year's notice by either husband or wife, is likely so to destroy the significance of marriage in the eyes of the young unmarried as to make them ask--even more than now--why they should marry rather than cohabit.

It is commonplace to say that one cannot legislate for happy marriages. However, what one can do is to lay down indicative laws to buttress the institution of

30 Nov 1995 : Column 725

marriage and to create a climate in which a happy marriage has a better chance to develop than otherwise. I suggest that this could and should be done within this Bill. We should be prepared to look carefully at the idea that a marriage which one party wishes to maintain should not be so easily dissolved on demand as one where the parties are in agreement. I have in mind as an example that, without the consent of both parties, it should be possible for the party who wishes to end the marriage only to obtain the equivalent of a decree nisi at the end of the year's period of reflection. There should then be a further period for reflection before the divorce takes effect and the parties are free to remarry. That is not punitive, nor is it intended to be.

The thought that for one party alone to break a marriage might call for something more than a year's wait would be at least a small signal to those thinking of marriage that the state still has some interest in supporting the institution. They would be reassured to think that neither they nor their partner could act altogether wantonly. That thought might help to create a good atmosphere in which to start the building of a loving relationship. Nowhere in the White Paper or in the briefing documents that I have seen is consideration given to the effect of this Bill on those contemplating marriage and hence on the institution itself. We need to take a wider view of divorce in relation to marriage than the White Paper does. Figures published in The Times yesterday bear this out. They show that fewer than 300,000 couples were married last year, compared with 426,000 in the record wedding year of 1972, and only about 180,000 of those marriages were first marriages for both parties.

5.29 p.m.

Baroness Birk: My Lords, today I have a feeling of dejo vu. I think that I must be one of the few Peers left who spoke throughout the passage of the 1969 Divorce Reform Act. There are not many of us left, alas.

In its time, that legislation was considered just as controversial, if not more so, as the Bill we are discussing today. I see that the noble and learned Lord nods his head. The late Lady Summerskill labelled it the "Casanova's Charter". What a sound bite that would be today. Many noble and learned Lords were dead against it. Nevertheless, I believe that it worked well, within its limitations.

At that time it was envisaged that more people would follow the no-fault, two-year separation route. That has not been the case. Frequently the present law has been manipulated to achieve divorce using the concept of fault whatever the circumstances may be.

Therefore, there are obvious advantages to the reform of the current divorce system proposed by the noble and learned Lord the Lord Chancellor, conjoined as it is with his commitment to marriage. Removal of the fault-based facts for adultery, unreasonable behaviour and desertion avoids the bitterness and acrimony in what is for most people an already painful experience. However, although the object and motivation behind the Bill are to be praised, my anxiety is that its detailed provisions are based on a number of fallacies and so miss the mark.

30 Nov 1995 : Column 726

The Bill is based on the belief that husbands and wives do not give adequate reflection and consideration prior to instituting divorce proceedings. Some of them, of course, do not. However, I understand from a number of experienced divorce practitioners that that is not generally the case. The majority of people agonise for a long period over whether there is any prospect for reconciliation before they come to the final decision that there is no hope for their marriage. There are many cases in which, even after consulting a solicitor, husbands and wives take further time to reflect before giving him the green light to trial proceedings.

Under the present law nearly 75 per cent. of divorces rely on adultery or unreasonable behaviour as proof of marital breakdown. Many petitions are based on fault-facts, not because that necessarily reflects the real reason for seeking a divorce but because reliance on one of the other facts requires a longer waiting time before the divorce can be obtained, namely either two years or five years depending on which path is taken.

The 1969 Act does not adequately protect the welfare of children. Many of us were aware of that at the time. The proposals of the noble and learned Lord the Lord Chancellor for a year of reflection to minimise conflict and problems associated with the children of divorce may prove to be too "one route" for many couples.

For some the period will be too long. Victims of domestic violence, mainly women, are often in need of urgent relief. Not all couples have children, or many have adult children who no longer need to be provided for.

For others the period may be too short. The Bill proposes that the divorce should not be made final until all the ancillary arrangements, whether they relate to children or finance, have been concluded, save in certain limited and expressly prescribed circumstances listed in Schedule 1. There would, in effect, be artificial pressure to conclude the ancillary aspects. The breathing space will not then be used as a time for reflection on whether divorce is the only course, but most concentration will be focused on what will happen after divorce and on reaching an agreement.

At present the noble and learned Lord the Lord Chancellor is unwilling to shorten the period or make it more adaptable. My view is that it must be made more flexible. We must recognise that we are dealing with adults, although many may not behave as such, and we should not underrate people in the way that is suggested in the Bill. I found a rather patronising tone in parts of the Bill. Perhaps the noble and learned Lord will join with me in trying to remove that.

I believe that there should be more discussion on how long the period should be and how it can be made more flexible.

As the White Paper stated, the primary purpose of the period for reflection is to demonstrate that the marriage has irretrievably broken down and not solely to make arrangements for living apart. The Government believe that a minimum absolute period is necessary to establish that breakdown with certainty. I wonder whether that is not counterproductive.

30 Nov 1995 : Column 727

Looking abroad for a moment, France has divorce by mutual consent after six months and automatic divorce after six years separation. There is fault divorce at any time on grounds of adultery and unacceptable behaviour. In Sweden there is automatic divorce with no time stipulation if parties agree and there are no children under 16. Otherwise, a six-month deliberation period operates. In Finland divorce is also automatic assuming consent and no young children. There is a six-month period of reflection for those couples with children or two years' formal separation.

As it stands, the Family Law Bill sets out long and complicated procedures involving compulsory information sessions, mediators and solicitors. There is a good case for encouraging the use of mediation as part of the divorce process, but the proper add-on costs of legal advice should not be overlooked. If parties decide to mediate they may well need some legal advice on the legal issues which arise during the course of mediation. Therefore, it is difficult to see how the new measures will be both cost neutral and socially acceptable. I hope that the noble and learned Lord the Lord Chancellor can say a word about that when he winds up the debate.

More consideration also needs to be given to tighter and more practical rules in the Family Division. I hope that we shall be able to deal with that issue in Committee.

If the noble and learned Lord the Lord Chancellor really wants to discourage divorce, as I am sure he does, the problem must be addressed at a much earlier stage. Many noble Lords will have seen the "Panorama" programme a few weeks ago which highlighted a scheme at a medical practice in Reading where a marriage guidance counsellor has been employed. Doctors work closely with the community and are often in a better position to detect the early stages of marital breakdown. This scheme ought to be promoted and funded and more widespread if there is to be any real chance of helping people resolve their differences before the marriage deteriorates to the point of irretrievable breakdown. The imposition of a 12-month period of reflection and consideration is too little and too late. That is what we must bear in mind and consider before the Bill leaves this House.

5.38 p.m.

Lord Habgood: My Lords, this counts as my third maiden speech in your Lordships' House. Therefore, perhaps I may begin by saying that no irony is intended in making a third maiden speech on the subject of divorce. I need to declare an interest as one of the two patrons of National Family Mediation. The other patron is also a Member of this House.

I have had a long interest in this legislation, and it is, of course, a matter of great concern to all the Churches. As your Lordships are well aware, the Church of England has been going through agonies on the whole subject of divorce and its own internal discipline in so far as it relates to marriage and remarriage. However, it is also totally clear that if there is to be legislation on divorce, it should be good, clear and fair, protective of children and supportive of marriage.

30 Nov 1995 : Column 728

For those reasons I thought that it might be useful to take us back to the beginning of the whole concept: namely, a report prepared by the Church of England in 1966 entitled Putting Asunder. In a quite revolutionary way from a Church body, the report puts forward the notion that breakdown should be the sole ground for divorce. It is an interesting report to re-read. It is tightly argued. It is not about being more humane, avoiding trauma or making divorce easier or harder, but about the nature of marriage. Perhaps I may quote a few sentences from it.

The report states,

    "We were persuaded that a divorce law founded on the doctrine of breakdown would not only accord better with social realities than the present law does, but would have the merit of showing up divorce for what in essence it is--not a reward for marital virtue on the one side and a penalty for marital delinquency on the other; not a victory for one spouse and a reverse for the other; but a defeat for both, a failure of the marital 'two-in-oneship' in which both members, however unequal their responsibility, are involved together. So we arrived at our primary and fundamental recommendation: that the doctrine of the breakdown of marriage should be comprehensively substituted for the doctrine of the matrimonial offence as the basis of all divorce".

The report further argues that the fault principle--I stress this because outside your Lordships' House there are still many who want us to return to a fault principle--implies a superficial view of marriage and its breakdown. The report took the example of adultery. It states:

    "There are all sorts of ways in which the situation created (say) by adultery might be dealt with by the two persons concerned. So in reality it is only if they fail to deal with it in any of those other ways that there is a case for divorce; and that means that it is not the matrimonial offence in itself that should be the reason for dissolving the marriage, but only the ultimate failure of the relationship between the two to bear the stress [that adultery] put upon it".
In other words, what had hitherto been counted as offences and faults are symptoms rather than the fundamental factor that is wrong. What is fundamentally wrong is the breakdown of the marriage. Therefore the report argues that breakdown is the only proper ground because that essentially is what divorce is about.

It further argues about the importance of not bringing in so-called "grounds" such as adultery as additional reasons for granting divorce. Again its argument is interesting. The report states:

    "Superficiality is probably inherent in any law that defines and lists a number of co-ordinate 'grounds' for divorce. That is one reason why it will not do to reduce breakdown of marriage to such a 'ground' and add it to the existing list. If the new principle were introduced into the law in that form, courts would inevitably be tempted to accept and act on a superficial likeness between the circumstances of the parties and the verbally formulated 'ground' instead of trying the issue of breakdown".

Under the 1969 Act, "grounds" were substituted by "facts". As we well know, lawyers were unwilling to assess breakdown. They felt that they could not do so on the basis of normal legal procedures. That is a very good argument for not wanting any flexibility in the law now. It would put lawyers into precisely the same position as regards seeking to make judgments about an issue on which it is extremely difficult to make judgments--namely, the quality of the relationship between a couple.

30 Nov 1995 : Column 729

However, in effect the 1969 legislation rendered the principle of breakdown ineffective by the addition of new quasi grounds in what is still popularly regarded as a fault-based procedure although it is not. That is precisely what those who produced the 1966 report warned against. It has also led to what I now regard as the nadir of marriage and divorce: namely, the present system of quickie divorce by post which reduces the concept of marriage and divorce virtually to something quite contemptible.

I therefore greatly welcome this opportunity to start again on a basis of clear principle. People may continue to ask, "What about fault?" Of course there is fault in marriage; of course there is fault every time a marriage breaks down; of course fault may be a reason for divorce. Fault will probably need to be taken into account in the settlements arrived at during the year of reflection. But that does not make fault the legal basis for divorce.

The Bill provides that marriages can be legally dissolved only when, in effect, they are dead already. Who can tell that? Only the two people concerned. However, it is not simply their decision. Marriage is not just an extra commitment; it is a public status. That needs to be emphasised, and I am sorry that it is not emphasised in Clause 36 of the Bill.

The break-up of a marriage cannot simply be on the decision of the couple involved. It must be a legal decision because marriage represents a legal status. That is why it is so important, as previous speakers said, that the right of refusal must be retained. I imagine that most refusals will be based on a factor which can be assessed by the law--namely, whether fair conditions have been decided for the settlement of children and property.

If the opportunities are properly seized, the Bill gives us an enormous opportunity to clarify the principle underlying marriage and divorce, and to strengthen marriage. It is not just a year of waiting but of working. That is why the provision must be a year for everyone.

I welcome the emphasis on mediation. I have already spoken of my interest in that. However, I should like to see a clear statement in the early stages of the process that there are three different routes down which people can go: mediation is important; conciliation might be another route, and litigation a third. Those three should be presented as options. There should also be opportunity to switch between them. There is no need for rivalry between lawyers, mediators and others, despite some of the chunterings from the legal profession. Half the present mediators are lawyers. We are talking not necessarily about different people but different roles.

Mediation involves a different process from that of the lawyer taking sides and making out a case. The mediator is precisely not there to make a case, but to enable the couple themselves to explore what the issues are which have to be settled between them. However, as one much involved in national family mediation, I have to say that although it is becoming increasingly professional and is full of highly dedicated people, at the moment it is in a fragile state because it has virtually

30 Nov 1995 : Column 730

no resources. I do not believe that it can wait for resources to come in through the legal aid system. What needs to happen now is some core funding for the support services so that they can prepare themselves for the greatly increased workload that they will have.

Thus I welcome this legislation, on the assumption and the condition that there is real commitment by the Government to ensuring that proper support services are put in place. We must not go down the route that was followed in 1969 when a good principle was accepted but was then undermined and unsupported.

5.50 p.m.

Baroness Young: My Lords, I should like to begin by apologising to my noble and learned friend the Lord Chancellor as I was unable to be here for the last part of his opening remarks. I apologise also to the noble Lord, Lord Irvine of Lairg, the noble Earl, Lord Russell, and the right reverend Prelate the Bishop of Worcester. Unfortunately, I had an unbreakable commitment but I shall read very carefully what they said in Hansard when it is published tomorrow.

I wish to begin by thanking my noble and learned friend for the opportunity that he gave me earlier in the autumn to talk to him at length about the provisions of the Bill. It is a piece of legislation that I believe to be the most important in the Queen's Speech because it will have more lasting effects for good or ill than any other piece. If we do not get it right, the tragedy will be all the greater and the more difficult to put right at any subsequent occasion.

As I think my noble and learned friend knows, I am very unhappy about the Bill. I draw a distinction between Parts I and II which have been the subject of all the debates that I have heard, and Part III which has already been debated in your Lordships' House and which has been generally agreed.

I speak only for myself and I speak in many respects with a heavy heart because I greatly respect my noble and learned friend and the work that I know he personally has put into this piece of legislation. The fact is that I wish we did not have Parts I and II at all. As Ruth Deech said in her paper on Divorce Dissent, every time there has been a Bill to reform divorce law, the number of divorces has actually gone up. In 1936 there were approximately 6,000 a year. Following the Matrimonial Causes Act in 1937, the number went up to over 10,000. The divorce rate climbed steadily through the 1940s, with the advent of legal aid, and then we came to the Divorce Reform Act 1969, with 70,000 divorces at about the time of its passage, rising very rapidly to 111,000 divorces in 1971.

I listened with care to what the noble Baroness, Lady Birk, said about that piece of legislation. It is interesting that in its preamble its purpose was: to promote the stability of marriage, reconciliation, maximum fairness, protection of children and the economically weaker spouse. Of all those great ideals, possibly only the last was achieved by the legislation because we find that by 1977 when there was a further reform of divorce procedure, the numbers of divorces had risen to 170,000. There are some 191,000 today. In

30 Nov 1995 : Column 731

view of that evidence, it is difficult to believe that yet another piece of reform of the divorce law is not going to increase the numbers of divorces. I think that it is no use blinking at these facts which are there for us to see.

There are two questions. One is: "Does it matter?" The second is:"Do we really think it will happen?" I believe that a halt has to be called to the apparently inexorable rise of the divorce rate. The fact that over the past 10 years some 3.5 million adults and 1.5 million children have been involved in divorce should make us all pause for thought. Modern research--unlike that on which the Law Commission's earlier proposals were based, particularly in the 1969 Act--has shown that it is divorce itself which has such devastating effects on children. Of all their troubles, quarrelling parents who stay together are better for the children than divorce itself. Many children never recover from the trauma of divorce.

No one can read that remarkable book, Families Without Fatherhood, based on the research of two members of the Labour Party, with a very interesting foreword by Professor Halsey from Oxford, without being aware of the mass of statistics which indicate that children of divorced couples are less healthy, do less well at school, are more likely to be unemployed, are more likely to take to crime and, finally, to repeat the pattern of instability which they have inherited. More recent work in the Exeter study has made the same important point that divorce does lasting damage. My noble friend Lady Elles would have spoken on this point, had she been able to be here today.

The second general point that I would make about the Bill is that it is the work of the Law Commission. The Law Commission is concerned only with legal procedures, and I will turn to the detail of the Bill in a moment. Yet those are but a part of the whole situation of divorce. The enormous cost to society of divorce--vastly more than the legal aid bill--is a drop in the bucket, even with the money that is given to the mediation service. I have seen figures on the social security budget varying from £4 billion to £9 billion annually. I should be grateful if my noble and learned friend the Lord Chancellor could tell us what is the correct figure. Whatever it is, it is enormous. The money which is given is frequently paid by married couples who are already bringing up their own children and who are then obliged to support the children of divorced couples in ever more expensive circumstances.

Whatever consenting adults may or may not do in private (which is their affair), when children are involved, apart from anything else the direct cost of divorce is nearly always borne by society and society has, in my view, both a right and a duty to take an interest. I was very interested in the point made by the noble Lord, Lord Jakobovits, on that matter and very much agree with him. Yet the Bill is completely silent on the point and we are concerned only with legal procedures and a number of other well-meaning ideas. Much of what seems to me to be so essential for society is left out.

I find disturbing some of the philosophy of the Law Commission. The point was well made by my noble friend Lord Coleraine, speaking in an earlier debate on

30 Nov 1995 : Column 732

the gracious Speech. He quoted Brenda Hoggett, now Mrs. Justice Hale, who I believe was the architect of the Law Commission's report on which the Bill is based. She said in a lecture:

    "Logically, we have already reached a point at which, rather than discussing which remedies should now be extended to the unmarried, we should be considering whether the legal institution of marriage continues to serve any useful purposes".
The Law Commission's report also states:

    "the increases in the numbers of divorces does not, as is sometimes alleged, indicate a fundamental weakening of the fabric of society".
All that I can say is that members of the Law Commission are clearly living in a completely different world from the one in which I find myself living.

Whatever the Law Commission says, marriage is the basis of society as we have always known it. Its breakdown over the past 30 years--in barely a generation, since the early 1960s--has had an absolutely disastrous effect. It is disastrous for adults, and particularly disastrous for millions of children. In my opinion it is gradually undermining society at all levels. Its costs in human and money terms continue to grow. I ask myself where we shall be 20 years from now. I decided to speak in this debate because, as I see my young grandchildren growing up, I ask what their fate will be if we continue down the terrible path on which we have set ourselves, with no clear idea where we are going or what we face at the end of the day.

I now turn to the detail of the Bill. I ask myself whether it will do anything to buttress marriage. The Bill has been hailed as the ending of the quickie divorce, and I welcome that. I am glad that newly married couples will not be able to divorce in under two years, and that other couples will in all cases have to wait a year. The reality of that, as I understand the figures, is that for 77 per cent. of couples who probably get divorced in six months, the wait of one year would add a further six months to that period. However, I agree with the principle. I should like to see that waiting period extended, and I shall table an amendment accordingly. I support it because I believe it acts as what has been described as a cooling off period. I was interested to read the statistics from Relate. Research shows that 51 per cent. of divorced men and 29 per cent. of divorced women would have preferred to stay married. I profoundly hope that the longer waiting period may help them. As the Bill stands, however, the wait is only one year. That means that a man or woman can be divorced against his or her will after a year without any reason being given. Therefore, although the wait deals with the quickie divorce, it considerably shortens the time taken in divorces with agreement after two years or without agreement after five years. That issue needs to be addressed.

I turn now to mediation, about which there has been much confusion. People think that it is conciliation. It is not; it is quite different. Couples must accept at the outset that the marriage is over before mediation starts. It is a method by which divorce settlements are facilitated. It cannot of course be compulsory. I have talked to those involved in mediation, and I see full well that it can work where couples are willing for it to do so. If there is no acrimony, mediation will no doubt

30 Nov 1995 : Column 733

work well. There are those who are far more knowledgeable about this work than I who think, however, that it often puts women at a disadvantage. The danger is, "mediation" sounds so soothing. It is a kind of aspirin to the conscience of adults, who must know full well the damage that they are doing to children, to make them all feel a lot better. It may help some children, but what really disturbs children is the divorce itself. That is a paramount fact that we should hold onto.

I come now to what I realise will be regarded as very controversial remarks. I feel that I must make them because I believe them profoundly. It is the no fault provisions that I find to be the least acceptable part of this Bill. I simply do not understand what the noble Lord, Lord Habgood, intended in his remarks on no fault, that is, whether he thought there was not a fault or there was. Therefore let me say what I think.

Providing "no fault" undermines marriage vows. What, after all, is the point of making a vow when there is no fault if you break it? I have always believed that marriage is a sacrament. I realise that that is a rather quaint idea nowadays. It is certainly a contract, whether in church or at a registry office. But why should the concept of no fault apply to this, the most important of contracts, when it does not apply anywhere else?

The removal of fault undermines individual responsibility. By removing it, the state is actively discouraging any concept of lifelong commitment in marriage, to standards of behaviour, to self-sacrifice, to duty, to any thought for members of the family. It declares that neither party has any responsibility for the breakdown of marriage. Furthermore, it undermines the legal basis of marriage by making the contract meaningless; and it weakens the distinction between marriage and cohabitation. Under existing law, the need to establish a cause before divorce proceedings take place has been a consistent policy. Now, marriage can be ended just on the say-so of one or other, or both, partners. It flies in the face of experience.

Last year, when I was involved in the Pensions Bill, I received very many tragic letters from women aged about 55 whose husbands had gone off with someone aged about 28. As they cynically wrote, "I've been traded in for a new model". Those women had been married for some 25 to 30 years, so it cannot have been all that difficult for them. They had brought up the children and helped their husbands in their careers; and then were dumped. They will not believe that there is not a fault. By simply stating that there is no fault, we shall not remove it. What we shall do is bring the law once again into disrepute, because it will be out of line with what people know to be true. Stating that something is not true does not alter the fact that in many cases it is.

As someone once very wisely said, why look at the crystal ball when you can read the book? No fault divorce was introduced in California in 1970. It was not widely demanded by the public but appeared to offer--as we are being told today--an easier and less contentious way to end a marriage. Those are exactly the arguments that are used in support of this Bill. There

30 Nov 1995 : Column 734

is now clear evidence from America, Australia and New Zealand, where no fault divorce applies, that it leads to an increase in divorce. I shall table amendments at a later stage to meet those objections.

I began by saying that this is a very important Bill. It is one that will have enormous consequences. It is very important for us to get it as right as we can. I recognise that there are very different and profoundly held views in all parts of the House. I shall table amendments which I hope will have the effect of trying to buttress marriage. That is what we ought to be talking about, not just picking up the pieces, which is what this Bill does.

On the one-year time limit, on no fault and on mediation, much could be said. There is much that could be said to bolster mediation by conciliation. I hope very much therefore that we shall be able to improve this Bill before it goes to another place.

6.8 p.m.

The Lord Bishop of Oxford: My Lords, to state the obvious quickly and get it out of the way, I believe marriage is for life and I find the present high level of divorce dismaying. I respect the passion with which the noble Baroness, Lady Young, made that point. At the same time I recognise that if people are determined to divorce, the state must legislate for that. The question before us is simply this. When the point of irretrievable breakdown has been reached, what is the most humane and effective means of legally recognising that and settling the contentious practical issues?

I believe I speak for the majority of bishops of the Church of England in warmly welcoming Parts I and II of the Family Law Bill, to which I propose to confine my remarks, with one important condition and with attention to many of the important points of detail that have been made in this debate. The advantages of the new procedures for divorce are many. They have already been highlighted by a number of other noble Lords and I shall not repeat them. I wish simply to focus on two criticisms of the Bill that have been made, both within and outside the House.

The first criticism is that every reform of the divorce law since World War II has resulted in a large rise in the number of divorces and that this Bill will have a similar effect. In short, it will further weaken the institution of marriage as a lifelong commitment. It is a point that has been well made by Ruth Deech and was referred to this afternoon by the noble Baroness, Lady Young. I am particularly sorry to have to disagree with the noble Baroness on this point.

It is indeed true that the number of divorces has risen steeply in recent years; but it is not inevitable that that trend will continue. Many noble Lords will have read the latest figures for the number of divorces, and in fact they have gone down by 7,000 a year, or 4 per cent. The initial rise in the rate of divorce when the law was changed had at least something to do with the great backlog that had developed of marriages that had indeed severely broken down and for which, sadly, divorce was the least bad course of action.

30 Nov 1995 : Column 735

As for the general rise in the divorce rate, that is due to a whole range of social pressures, of which the availability of divorce, in my opinion, is not the most significant. One significant pressure, to which I have referred in this House in the past, is the fact that we simply live so much longer. The average length of a marriage today is longer than it was 150 years ago, when so many women died as a result of childbearing. That means that,

    "for better for worse, for richer for poorer, in sickness and in health",
may mean trying to stay together for 60 or more years. Together with other significant factors, such as the new role of women in society, it poses major new challenges. The availability of divorce is only one--and not the most significant--of the many severe pressures on marriage in our time.

Sadly, marriages fail, but we do not strengthen the institution of marriage by an unsatisfactory divorce law, which the present law is widely recognised to be. Let us concentrate on the present proposals for their own sake, recognising that marriages break down and that when they do we need the least damaging and most effective procedure possible. Strengthening the institution of marriage is a separate issue, to which I shall refer in a few moments.

The second criticism of the present Bill is that the abolition of fault as evidence of breakdown means that marriage as a legal concept no longer has any meaning. Again, that has been referred to by your Lordships. In effect, so the critics say, it is reduced to a private contract which can be dissolved at will. In my view, that criticism is mistaken. Under the new proposals, the court still plays the crucial role and the procedures set out will be enshrined in laws with which the people will have to comply. Only the court may make an order to dissolve a marriage. Furthermore, according to Clause 10(2), the court can also make an order preventing a divorce, if dissolution would result in hardship to one of the partners or if:

    "it would be wrong, in all the circumstances ... for the marriage to be dissolved".
It may seem an obvious point, but it is one which still needs to be made in the light of the criticism. The involvement of the court in the process is a recognition that marriage is not simply a private contract. Marriage is a public commitment in which society has a stake--a stake expressed through the law and the courts. The details of the process, the requirement to attend an information session and the year which must be set aside for reflection and consideration, for example, signify clearly that it is not just a private arrangement. Marriage will remain what it was: a commitment for life, made in public with legal consequences.

In supporting the Bill, neither I nor my fellow bishops in any way imply that fault is not involved in the breakdown of a marriage. There is fault, as the noble Lord, Lord Habgood, stressed. But anyone who knows anything about relationships knows how difficult it is to attribute blame fairly. In some marriage breakdowns it may seem glaringly obvious who is at fault, but in a good number of cases the real story is painful, private and confused. A court with an adversarial process is not

30 Nov 1995 : Column 736

the best context in which to adjudicate. Far better is what is proposed in the present Bill, where the two partners simply have to face the question: has or has not their marriage irretrievably broken down?

I suggest, therefore, that the two main criticisms of the Bill do not stand up to serious analysis. If we are to have a divorce Bill, let it be one that is humane and effective--which I believe, in principle, this Bill to be, whatever further details need to be attended to.

It is also the purpose of the Bill to give an opportunity to save marriages that are savable. It is stated in Clause 7(1)(a) that the very first purpose of the year's period of reflection and consideration is:

    "to reflect on whether the marriage can be saved".
In addition, the Lord Chancellor may make a rule requiring the legal representative of a party to certify:

    "whether he has discussed with that party--the possibility of a reconciliation; and ... whether he has given that party names and addresses of persons qualified to help--to effect a reconciliation; ... or by counselling".
That is in Clause 11(2).

The noble and learned Lord the Lord Chancellor, both this afternoon and outside this House in many speeches over the past year, has stressed his personal commitment to marriage and his wish to strengthen it. In particular, I note what he said at the launch of Marriage Care about the role of the Inter-Departmental Working Group on Marriage, one of whose tasks is to identify:

    "how existing resources might best be used to meet the needs of couples who are considering marriage or whose marriage is in difficulty".

I particularly respect the great passion with which the noble Lord, Lord Jakobovits, brought to our attention this afternoon how pressing and widespread is the problem.

Existing resources are small compared with the amount spent as a result of marriage breakdown. In 1992, that sum was certainly £3.4 billion. That contrasts with the mere £3 million spent on supporting the work of marriage organisations. I very much hope, if the Inter-Departmental Working Group on Marriage ascertains that present resources, however targeted, are inadequate, as I believe them to be, that it will say so clearly and that the Lord Chancellor will support an increase in those resources.

There are ways in which marriage can be supported and there are well trained people able to work in this field but, as always, resources are needed. Commitment to marriage implies commitment to finding the resources to support it. Support of this Bill, which offers a procedure for divorce, which minimises the damage--a support which I wholeheartedly give--needs to go along with support for the organisations which support marriage, for that too is part of the express purpose of the Bill.

6.19 p.m.

Baroness Faithfull: My Lords, I rise to support the Bill; at the same time I agree with the noble and learned Lord and many other noble Lords who have spoken of their profound belief in stable, happy and lasting marriage. However, it has to be admitted that there are

30 Nov 1995 : Column 737

marriages which break down. It is absolutely essential that we better educate our children about marriage. As many noble Lords have said, we should put more money and more resources into preventing marriage breakdown and helping people whose marriages are at risk.

I wish to speak about children. It may seem presumptuous of me to speak on divorce. I am unmarried with no children. But my professional life has been spent working alongside vulnerable families and, in particular, those who have embarked on divorce, both before and then during and after. I have also served as a servant of the court. With such experience I believe that the Bill should ensure that children are the main consideration. The noble Earl, Lord Russell, said that as a child he had experienced divorce in his family. I too was brought up by one parent, my father being killed in 1916. We may think that we are normal, but we do not know. We might have been better; perhaps I should say humbly that I, rather than the noble Earl, might have been better.

The Children Act 1989 states that when a court determines any question with respect to the upbringing of children, the administration of a child's property or the application of any money accruing from it, the child's welfare shall be the court's paramount consideration. I make three points. It is wise that the Bill drops the fault clause. Only in extreme cases can anyone outside the marriage judge where the fault lies. Often it can be incompatibility of both the husband and wife. And for the fault clause to be proved requires the adversarial system of wife versus husband or vice versa.

Research by both the Great Ormond Street Hospital and the Rowntree Trust shows that children's happiness, wellbeing and behaviour reflect the state of mind of the parents. Inevitably, during the course of the divorce in the courts, the parents are overwrought and the parent caring for the child cannot hide from the child his or her state of mind following an acrimonious court hearing. The state of mind of the parent or parents is bound to be reflected in the child's feelings and behaviour, not only at the time of the court case, but thereafter--and long thereafter.

Furthermore, the adversarial system in court does not engender a peaceful relationship in the future which is necessary if children are to be in touch with both parents. Therefore, I support the work of the family mediation service. The noble Lord, Lord Habgood, said that one other member of this House is a patron of the service. I confess it is I. Furthermore, I am president of the Oxford mediation service whose chairman is a judge. At the annual meeting I attended this year, several judges were present to support the work. As stated by many noble Lords, the mediation service makes it possible for parents to talk through quietly and without acrimony the future of the children and the financial situation.

Many noble Lords have said that the mediation service may be harmful to the wife where the question of property arises. I understand, however, that legal advice will be available. And, of course, the case finally goes before a judge. Those who run the mediation

30 Nov 1995 : Column 738

services in Oxford are trained. We have a trained probation officer who has available to him legal advice and some of the mediators are themselves legal people.

Many years ago--more years than I care to remember--I was asked to chair a lawyers' meeting at Bristol University. The lawyers wanted to start a mediation service. I asked why. They said that much of their time and work was taken up by mediation which required long hours which they did not always have available, and that someone outside the court was needed to spend time with a couple if the marriage breakdown was to be as smooth as possible and without unhappiness.

I should perhaps say that both parents, when attending mediation, are made aware of the different laws that will affect them and their children when the divorce is finalised. It is sad that the legal profession is so divided on this subject. Many lawyers support the mediation service, but many do not. That saddens me because, as has been said, many lawyers take an active part in the mediation service.

I wish to raise one or two points with the noble and learned Lord the Lord Chancellor. First, I believe that children have a right to be heard in all cases of divorce. Children have come to me and asked, "Why am I not spoken to? Why am I not asked? Why can I not say what the trouble is?" I feel that children are left out of consultation not only during the time of the divorce but also following the divorce. We all make mistakes. Sometimes custody is given to a parent and the arrangement breaks down. The child has no one in whom to confide and explain deep anxieties.

My second question concerns fathers. According to research by the university of Newcastle, many men are devoted to their children and want to see them but, owing to various circumstances, have been unable to formulate or continue a relationship with their children or ensure their happiness. Times have changed. Men can now cook. They can look after children, and many do. At one time in Oxford three unemployed men came to me and asked to run a nursery. I made sure that they were trained and that there was a health visitor on hand. But I have never seen three happier men. They were quite upset when they obtained jobs and had to give up the nursery. Attitudes have changed. Children need fathers and mothers. The fact that they may be separated or divorced need not break the relationship with parents. It gives happiness both to the children and to the parents.

I pass on to the Family Homes and Domestic Violence Bill. It would be presumptuous of me to comment because the noble and learned Lord, Lord Brightman, is to speak. He was marvellous as chairman piloting the discussions on the Bill in this House. I wish, however, to be somewhat emotive. Anybody who has had to remove a child from his or her home because of allegations of cruelty or sexual abuse will know that it is a heart-rending experience. It is damaging to the child. The child has already suffered cruelty of some kind and must suffer again by being removed from the family home. The chairman of my committee in Oxford is sitting in

30 Nov 1995 : Column 739

front of me. We arranged for an empty flat to be available into which we could move mothers and children. Even then, of course the child is moved from his home. Therefore, I support the Family Homes and Domestic Violence Bill. I know that it may be difficult for the owner of the house, but surely children come first.

6.30 p.m.

Lord Brightman: My Lords, I should like to speak briefly on Part III of the Bill, which replaces the Family Homes and Domestic Violence Bill. The domestic violence Bill, as I shall call it for short, received all-party support in this House in the last Session, but was derailed in the other place as a consequence of ill-informed newspaper comment. In particular, it was asserted that the Bill had been whisked through this House--that was the verb used--without proper consideration and without adequate opportunity to table amendments.

That was a travesty of the facts. The committee set up in your Lordships' House to consider the Bill, which I had the honour to chair, received written evidence from 48 different sources, and heard oral evidence at six meetings. A total of 82 amendments were tabled at the Committee, Report and Third Reading stages. Seventy of those amendments were accepted. In conformity with the Special Public Bill Committee procedure, every Member of your Lordships' House had the right at every stage of the domestic violence Bill to table amendments and to speak on amendments. I can therefore say, without fear of contradiction, that the domestic violence Bill could not have received more profound consideration in this House than it has already received.

There are, however, four changes in the domestic violence Bill which are made by Part III of the present Bill. It is on these four changes that I should like to concentrate for a few moments. Change No. 1, as I shall call it, is this. The former domestic violence Bill gave the High Court, a county court and a magistrates' court power to make what is called an occupation order. An occupation order, put briefly, is a temporary order regulating the occupation of a home by, for the most part, spouses and ex-spouses, and unmarried couples who are living together as if they were man and wife. Under the domestic violence Bill an occupation order could be made from time to time, without any specified maximum period. Under the new Bill, in the case of unmarried couples who do not otherwise have property rights, an occupation order cannot be made for more than a maximum period of one year. Only spouses and ex-spouses can have the benefit of an occupation order which lasts longer than that.

That is the first change, and the question is whether it is an acceptable change. I express no final view at this stage, because I should like to listen to the arguments if any of your Lordships see fit to seek to restore the position under the domestic violence Bill. But, as at present advised, I find the change an acceptable one.

I turn to change No. 2. The scenario on this occasion is that a spouse or ex-spouse, or an unmarried partner or ex-partner, seeks an occupation order in respect of

30 Nov 1995 : Column 740

the family home. Under the former domestic violence Bill, the court would be bound to make an occupation order in favour of the applicant if the hardship to the applicant or a child was likely to exceed the hardship to the respondent or a child. That provision remains the same under the new Bill in the case of spouses. But in the case of unmarried couples, the new Bill gives the court a complete discretion. I myself have no objection to a judge having power, for a limited period of a year, to do what appears to him to be fair and just in all the circumstances as between unmarried couples and any child involved.

I turn to change No. 3. The scenario here is that there is a property dispute between the parties. Under an Act of 1882, a short and easy summary procedure was established for dealing with such a dispute as between a husband and wife. The domestic violence Bill proposed to extend that summary procedure to unmarried couples. This clause is not contained in the new Bill. Unmarried couples will have to use the ordinary court procedure to help resolve their property squabbles. This is a matter of court procedure and not of substantive law, and I have no strong objection to the change.

Change No. 4 is significant. Clause 36 of the new Bill, with no counterpart in the domestic violence Bill, provides that, in deciding whether to make an occupation order in favour of a cohabitant or ex-cohabitant, and whether to impose obligations regarding repairs and maintenance of the home, the payment of outgoings and the like, the court,

    "is to have regard to the fact that the parties have not given each other the commitment involved in marriage".
This is an important change, and, if an amendment is tabled to remove it, I should like to hear what is said before I make up my mind. But at the end of the day, I feel sure that a judge will always seek to promulgate an order that is fair and just, and suited to all the circumstances of the case without adopting too legalistic an approach. So it may well be that I shall find the addition of this clause acceptable.

To sum the matter up, I am sorry that my noble and learned friend the Lord Chancellor has found it necessary to make changes to the domestic violence Bill. As the former chairman of the Special Public Bill Committee, I have tried to deal as fairly as I can with those changes. I can only express the hope that Part III of the new Bill, with or without the four intended changes, can find its way on to the statute book as early as possible and without any additional changes. I am certain that it will be warmly welcomed by all who are concerned with the problems that Part III of the Bill seeks to resolve.

6.40 p.m.

Baroness Macleod of Borve: My Lords, I am grateful to the noble and learned Lord, Lord Brightman, for what he has been telling us about Part III of the Bill, which is a part of which I had absolutely no knowledge and now certainly have more than I did at the beginning of his speech. In my view this Bill is one of the most important that we shall discuss in this Session of Parliament because it deals with most of the people in this country, past, present and future.

30 Nov 1995 : Column 741

It was 12 years and 10 days ago, in 1983, that we had the Second Reading of the Matrimonial and Family Proceedings Bill under the guidance of my noble and learned friend Lord Hailsham as Lord Chancellor. I seem to remember that the General Synod was in session that week and it was able to give us its views, as it is doing today, and we welcome that so much.

Unfortunately, since then the situation as regards divorce has deteriorated and many more families are increasingly making themselves, their children, relatives and friends deeply unhappy through divorce. I and all who are worried by the present trends are enormously grateful to my noble and learned friend the Lord Chancellor for the hard work, imagination, care and concern that he has given to this particularly difficult Bill. I say "difficult" because it is not possible to find the right answers and give the right guidance for 173,000 divorces--that was the figure for 1993 in Great Britain.

All noble Lords who are taking part in the debate this afternoon will have received as many recommendations and reports as I have, and have doubtless spent many hours weighing up the evidence and advice. I have been very much impressed by the ideas put forward by Relate. As I believe that I am a committee member, I want to acknowledge due guidance and pay deference to it for its very hard work in this particularly difficult field. It has wide knowledge and experience.

As with other organisations, it does not agree with the present grounds for divorce. As we know, the acrimony and bitterness endured by children when divorce is not agreed to is made much worse if one partner is continually blaming the other. That does more than anything else to make the children unhappy and leads to unhappy adults. My noble friend Lady Faithfull was perfectly right when she said that we know that children will grow up with the example set by their parents, whether they are divorced or not.

This Bill will make it more difficult to obtain a divorce and will give couples not only more knowledge and advice before they marry, but they will have a source of help on which they can draw if difficulties arise. I believe that care must be taken to make sure that at all stages the talks are confidential. There is one question I want to ask my noble and learned friend and it is this: at what court will the separation orders be granted? When I dealt with them as chairman of my matrimonial court many years ago, it was in the magistrates' matrimonial court. The court was always cleared and no publicity was ever allowed. I feel very strongly that the two people involved need it to be known that no publicity will follow their appearance in court.

Although the Bill, which I warmly welcome, deals with the partners to a marriage, the children and future generations must be adequately protected. In my view they should, as my noble friend Lady Faithfull has said, be advised through counselling about the state of their parents' unhappiness.

30 Nov 1995 : Column 742

There is an organisation called Families Need Fathers which I also try to help. We have talks on this subject. The fathers are deeply unhappy that the courts have not given them as much authority over the children as they had before, despite the fact that frequently the judges involved want the fathers to have more authority over the children.

Marriage is one of our national institutions and part of our way of life. We hold it dear and precious. As has been said, breakdown of a marriage is defeat for both parties. I shall end, because time is precious tonight, by updating the quote of the right reverend Prelate the Bishop of Oxford, which was marry,

    "for better, for worse; for richer, for poorer",
by adding,

    "but never for lunch".

6.48 p.m.

Lord Stallard: My Lords, I too welcome the introduction of this Bill by the noble and learned Lord the Lord Chancellor. I say at the beginning that I accept quite readily and happily his Christian-based background and his references and biblical quotations to prove it. I say in passing I can count 42 quotations from the Bible upholding marriage in most respects, so we could go on for the rest of the evening exchanging quotations, which would prove that we are all right--and so we are.

I also accept that there are a number of contradictions in the Bill and some of them have been mentioned by other speakers. I shall keep mine as short as possible. In a debate of this kind it is inevitable that we shall all be speaking to each other at some stage. The Bill makes the most significant changes to divorce law in 26 years. There were some significant changes 26 years ago and this Bill makes even more. With the highest divorce rate in Europe, we have to look carefully indeed at all the possible implications of the proposals contained in this Bill.

I agree with those people who recognise that the current law of quickie divorces is in need of reformation. However, I believe that the proposals contained in the Bill are flawed. This is not the first time that divorce and its causes have been examined since the end of the last war. On each occasion one social factor or another, or a combination of social factors, has been blamed for the increase in divorce. Bad housing, lack of housing, youthful marriages, women's increased awareness and activity in social and political matters and the availability of legal aid have all been mentioned. The list gets longer, but all are excuses to justify the need to change the law yet again.

Lawyers and some politicians have always concluded that reforming the law will change the outlook of those people whom it is intended will be affected by the reforms. I think that that view is firmly reflected in this Bill also. We hear lawyers justifying it and saying that it will change people's outlook, but they said that last time and the time before. I do not think that it happens like that. It is always denied that new laws which make

30 Nov 1995 : Column 743

it easier to obtain a divorce will cause more people to end their marriages. But, as we have already heard, this Bill would make it easier to get a divorce.

The facts belie such views. Indeed, things changed even before the 60s. We have had 130 years of divorce reform and after each set of reforms, the number of divorces has increased. That is a fact based on sound research. It has been the case for many years. In the 60s, there were only 45,000 divorces per year. However, after the 1969 reforms, the number of divorces rose over three years to more than 100,000 per year in England and Wales alone. I am always conscious of the fact--I am sure that we all are--that behind every divorce lies a human tragedy--and that is a terrible number of tragedies. The most recent figures reveal that in 1993 there were 165,000 divorces in England and Wales and that 176,000 children experienced their parents' divorce. I repeat that the figure is 176,000, not 76,000 as was said earlier by, I believe, the right reverend Prelate the Bishop of Oxford.

Reference has also been made to a decrease in the number of divorces. However, those who justify their remarks in that way do not mention that there has been a fall in the number of marriages also. We do not have the figure, but those of us with some street-sense know that even now marriage is becoming something that is unpopular, not necessary, difficult and expensive. That is why we do not hear much about marriage any more. We hear a lot about "my partner" or "my relationship", but nobody ever refers to their wife or husband any more. There are many fewer marriages today and, given that there are fewer marriages, I am not surprised by the fact that there are fewer divorces as a consequence. However, that was not the impression that I gained from the right reverend Prelate.

If current divorce rates continue, one in four children in England and Wales will see their parents divorce before they are 16 years old. A key aim of the Bill is allegedly to minimise harm to children by making the process less acrimonious. I agree with everything that the noble Baroness, Lady Faithfull, with all her experience, said about children. However, recent research undertaken by the Centre for Family Research and by the Exeter Family Study, which has been mentioned by the noble Baroness, Lady Young, and others, reveals that greater damage is caused to children's mental, physical and educational wellbeing by parental separation than by the death of a parent. Research shows that children suffer more from the permanent separation of divorce than from bereavement. I accept the validity of that research.

Therefore, the priority should be to prevent parents divorcing, not to make divorce easier. Children want their parents to stay together, not to part--even amicably. Therefore, we are entitled to ask whether the thrust of the Bill is in the right direction. I do not think that it is. Previous experience teaches us that reforms such as those proposed in the Bill exacerbate the situation. I have mentioned the figures. Every year there are 190,000 petitions for divorce. In 1968, 10 per cent. of marriages ended in divorce, whereas now, after all the reforms, 40 per cent. of marriages end in divorce. And things will get worse. Ruth Deech has been quoted

30 Nov 1995 : Column 744

and I make no apology for quoting the words of this expert in family and divorce law. She has stated that the Government should abandon plans which make divorce easier. If they go ahead, she says,

    "They will not save marriages but will precipitate a further rise in divorce".
That view is not to be taken flippantly when it comes from somebody so experienced in the subject.

I agree with all those people whose work involves trying to save marriages and to discuss such difficulties and who say that the Government should amend the Bill to include providing education on marriage for children at school. Children should learn at school about the sanctity of marriage and how to prevent breakups. There should be widespread publicly funded marriage preparation for all couples contemplating marriage. The noble Lord, Lord Jakobovits, mentioned something along those lines. Support and funding for services and agencies which provide ongoing marriage support and counselling should be made available. Greater emphasis should be given to the effects of divorce on children. Parents should be made far more aware of that than they are at the moment. More information should be given to them about the effects of parental separation on children. As has been said, the problems caused by separation are far more severe than those caused by conflict in marriage. Research shows that, in many cases, a bad marriage is better for the children than divorce. A bad marriage does not do them as much damage as separation or the permanency of divorce.

How many times do we have to hear reformers telling us to come into line with the times? Every time we have a controversial Bill we are told to come into line with the times. They say, "Join the real world; face up to reality and forget the past because it has gone". I heard such words almost daily during the passage of the 1993 Education Act. We were always being told to move into line with the current state of affairs as opposed to what we thought matters should be. We have heard that again tonight. We have been told that we must accept that this is what people are doing and that, "They are all at it". We have been told simply to accept it and to try to legislate for it.

That has been the basis of most of the movement for reform. However, it does not do us any good. Indeed, it makes things worse and then we have to return for another reform of the law. Those of us who resist that automatic reflex action, which emerges in every debate, are always dubbed reactionaries, has-beens and old fogies who are past our sell-by date--

Next Section Back to Table of Contents Lords Hansard Home Page