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Lord Simon of Glaisdale: At the risk of egotism I am impelled to intervene to give my testimony as a matrimonial judge for 11 years that it is simply untrue to say that in every case, or even in a significant number of cases, it is six of one or half a dozen of the other. There were a number of cases where one felt that, but it was a great minority of cases. That is not only my own testimony; it was the testimony of David Morris in the book from which I cited earlier, borne out by my noble and learned friend Lord Hailsham.

It would be adding cruelty to injustice if when a woman is cast away and unilaterally repudiated one was to say that it must be partly her own fault. That would be a monstrous cruelty.

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The noble Lord, Lord Meston, has just asked how one proves fault. The answer is that it has been proved for 1,100 years in the matrimonial courts. It is still proved in the Church courts, which still take cognisance of the misdemeanours and faults of the clergy. No doubt in the forum internum the sin is lust, but in the courts what is investigated is incontinence. There was a case of that only last year. The Church does not say that the ministry has irretrievably broken down, still less does it allow for the parochial church council to file a notice in the diocesan office saying that in its view the ministry has irretrievably broken down. As it has always done, the court investigates fault. That is the role of the law generally in social control and social influence. If one deprives the law of that, one demoralises the law.

Listening to the optimistic speeches of the noble Baroness, Lady Faithfull, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Irvine of Lairg, as to the result of this Bill, those of us who lived through the 1969 Bill must have had memories startlingly evoked. There was the same crass optimism, the same foolish hope, that all would be better. It was called a "kiss and make-up" Bill. Yet the first effect was that divorces increased by 44 per cent., and the number of children affected therefore also increased by 44 per cent. However, that was not temporary. The number of divorces continued to increase, until today there are two and a half times as many divorces and two and a half times as many children are affected as before 1969.

I cannot hear what the noble Lord says, but of course I shall give way to him.

Lord Elton: I shall wait for the noble and learned Lord to put the instrument to his ear. I wondered whether he would show how the effect he describes was propter hoc and not post hoc.

Lord Simon of Glaisdale: All I can do is look at the figures and ask what happened in 1970 to cause a 44 per cent. increase. If there had been a gradual upturn the intervention of the noble Lord, Lord Elton, would be justified. However, there was a sudden jump, and the increase was maintained. The only sensible course is to ask what happened that was likely to cause the 44 per cent. increase. It is unlikely to have been only a fortuitous result of the passing of the 1969 Act.

The Earl of Onslow: Will my noble and learned friend give way briefly? Does he suggest that if we went back to the 1935 divorce legislation, the numbers of divorces would fall to what they were in 1969? And would human happiness be consequently increased in any way whatsoever?

Lord Simon of Glaisdale: As I feared, I did not hear what the noble Earl said. However, as I respect what he says in general, I shall certainly read his comment tomorrow. If it calls for a letter, I shall write to him.

We would be very foolish if we were again to repeat the optimism that was expressed in 1969. Is this a kiss and make up Bill? Is this a kiss and break up Bill? That seems to be the best that can be hoped for: that the break up will be less acrimonious.

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The noble Lord, Lord Meston, did not explain why allegations of fault at the stage of mediation, and investigation of property rights, financial rights, and sometimes custody, were in any way less damaging to the children than allegations of fault at the time of the divorce. Of course they are equally damaging if they are going to be damaging.

I do not want to trespass on my next amendment, but parents can quarrel in front of their children, and quarrel damagingly. On the other hand, they can be solicitous, for all their differences, as regards the effect upon the children.

There is abundant evidence that it is the break up of the marriage, the separation, which causes the damage. In a moving speech at Second Reading, the noble Baroness, Lady Young, referred to that research. It is no use our saying, "We shall make things easier for the children". We may make it easier in certain cases, but every time there is a surge in divorce more children will be at risk.

Baroness Seear: With all respect to the noble and learned Lord, Lord Simon of Glaisdale, we cannot let him get away with the argument that the increase in divorce is necessarily the result of previous divorce legislation. After all, until relatively recently women had no means of earning a living if their marriage broke up. I wonder how much the increase in divorce is a result of the fact that women now have a degree of economic independence. I wonder also how many marriages broke before but they did not break to the outside world because the woman had no option as to what to do if she left the home.

Some noble Lords may remember Herbert Baker; I believe that he was a judge of the Family Division. He said that it was not just enough to know who threw the rice pudding; one had to know how the rice pudding was cooked.

Finally, we must be careful regarding the use of the language that we use. Some words have implications which can lead to quite wrong conclusions. We talk about the contract of marriage. Of course there are legal elements to that contract. But one thing that you cannot contract to do is to supply an acceptable amount of love. Therefore, to use the word "contract" in connection with a relationship of which the whole heart and centre is love seems to me a most misleading use of language.

Baroness Park of Monmouth: I wish to make two separate points. Although I greatly respect the conviction of the noble Baroness, Lady Young, and all who support her, I was the chairman of the Legal Aid Advisory Committee for six years. At that time people were beginning to look again at the whole problem of divorce. An idea gradually emerged and it seems to me that we cannot just write if off as an interesting technical idea. It was that there had to be a period of thought, with mediation not just conciliation. Many people do not want to be conciliated but they need to be required to accept the opportunity to sit and think about the consequences that would follow from divorce. We ought not to disregard the immense variety of support for that

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from scientific research and from the experience of conciliation groups and practitioners. It would be wrong to ignore that.

My other relevant experience is that, as head of an Oxford college, sadly I had to see the effects of divorce on undergraduates. I therefore understand clearly how terrible it is. However, I still feel that the Bill is making a positive effort to enable people to look at the facts, consider what the consequences will be and take time. The difference between arguing privately in the mediation process and sorting it out and being adversarial in court is great. In the court you are in public, you are committing yourself and taking stands that become set in stone.

When we worry about the message that we send to the country, we should be worrying about what the Bill will do. It seems to me that there is everything to be said for trying to give people a chance to stop and think clearly. The noble Lord, Lord Irvine of Lairg, used the comparison about creating light rather than heat. Therefore, on those two counts, I strongly support the Bill.

Earl Russell: The noble and learned Lord, Lord Simon, and I have many times appeared on the same side of an argument with great pleasure, and, I hope, with great profit. I am sorry that on this occasion we appear on opposite sides but I am sure that the noble and learned Lord will understand that there is a certain built-in paradox in the notion of a pair of individualists. However, that is what we are and we have always recognised it.

My noble friend Lady Seear saved me a little time by making the first point I had wished to make. It is vital. We do not want to preserve marriage by turning it into a prison. The economic independence of women is a fact and we must all welcome it. But we must recognise that it has consequences.

The noble Baroness, Lady Young, said in her speech a long time ago now that she did not understand why we were sitting here at all, if the law did not influence behaviour. Of course the law influences behaviour, but it influences rational behaviour a great deal more than irrational behaviour. Love--thank God!--is irrational behaviour. It would not be nearly so tough under pressure if it were not. As the story of Romeo and Juliet and hundreds of others illustrate, love is an area in which people are rather counter-suggestible. It is more difficult to influence them through the law than it is in some other fields.

I am sorry that the noble Lord, Lord Habgood, who spoke so well on the subject at Second Reading, is unable to be here. He argued first the difficulty of identifying the fault. Clearly, normally there is fault. The fault may be in having made the marriage in the first place or it may be in something that we shall never discover. No one knows everything that passes between a married couple in private. Very often the worst and cruellest faults in marriage can lie in inaction rather than action.

Perhaps I may be forgiven a reminiscence. I have not forgotten an incident when I had been married a couple of months. We had been out to dinner, and my wife got

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food poisoning and spent most of the rest of the evening being violently sick. It somehow turned me over inside to find how pathetically grateful she was that I was not repelled by that experience. Had I been repelled, I think that that would have been a fault capable of contributing to the first stages of a rot that dissolves a marriage. However, I do not think that any court in the land could ever have pinned that down to me. I should have made a perfectly rational, reasonable sounding defence and I do not know whether anybody would have penetrated it. But I think I should have known at bottom that I was wrong.

It is suggested that somebody who has been abandoned is insulted by being told: "It must have been partly your fault." Nobody is proposing to tell anybody that it must have been anybody's fault. In the end, my first position is that, although I believe there is fault there, we cannot know where the fault lies.

My second point is that the fault, if we can find it, may not be anything that is a matrimonial offence at all. I take one actual incident. A person was driving up to a traffic light on an uphill slope and did not see until much too late that it was red, so he ran into the back of the car in front and did a good deal of damage. Being a quick thinker and unscrupulous, he leapt out of the car, ran up to the driver of the car in front and said, "You mustn't let your car slip downhill at a traffic light." The wife of the man in front said, "How often must I tell you not to do that, dear?" That, in my book, was a fault. It was a withdrawal of trust such as might put a rot inside a marriage. But it would not be regarded, in any classification I can imagine, as a matrimonial offence.

The noble Baroness, Lady Young, dwelt on the tragedy of the older woman dumped for a dolly bird. It is a tragedy. I think none of us would maintain otherwise. What I do not understand is how that woman is one wit better off for the preservation of a legal shell of a marriage in which her husband will not live again. I do not understand what she gets out of it.

The noble Lord, Lord Ashbourne, was also much concerned at the notion that a marriage could break up because of the withdrawal of the commitment of one partner. I should like to ask realistically as distinct from legally: has it ever been otherwise? In the 17th century, when a husband got tired of his wife, he used to say that he had gone to New England. I am not at all convinced that all of those men had gone to New England. Indeed, some of them were later proved not to have gone to New England. I cannot see what useful purpose is served by legally preserving the fiction that there is a marriage when there is no relationship between the parties.

Also, if we are to have fault, I do not understand why this group of amendments confines itself to adultery. Why not cruelty? That is a very much more obvious fault and often a great deal easier to prove? And that is important.

I first learnt about fault-based divorce when I was a child of divorcing parents at the age of 11. As the noble Baroness, Lady Faithfull, said, it was an intensely painful experience. But what was painful was the matrimonial breakdown, not the divorce. The divorce,

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when it ultimately came, represented a considerable diminution of the pain which had been experienced while the conflict was in progress.

What was beyond my comprehension at the age of 11 was the notion of punishment inherent in fault. In a divorce based on desertion, it was essential for the deserted party to pretend that he (or she) wanted the other party to return. If one party did not want the other to come back, there could be no divorce. So if both parties wanted a divorce, they could not have one. If both parties wanted to be apart, they had, in law, to be together. I could not get my childish mind around that. My adult mind cannot do any better.

I must apologise to my noble friend Lord Meston in that I was even more horrified when I discovered the existence of the office of--as it was then--King's proctor, to which he is now counsel, and found out that it was necessary to go around investigating to see whether one could prove collusion. It was necessary to see whether one could prove that both parties wanted the divorce because, if they both wanted it, they could not have it. It was not a punishment to give the parties a divorce but a punishment to withhold the divorce.

At the beginning, I said that marriage is not a form of imprisonment. I say it again.

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