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Baroness Young: We have had a very long debate on this subject. One thing is quite clear. There are very deeply divided but sincerely held opinions about this matter on which we are possibly unlikely to agree. I indicated at the beginning that I was not going to press these amendments. I shall, of course, read very carefully what my noble and learned friend the Lord Chancellor said because he went into great detail. I would like to take the opportunity to study it.

I admire my noble and learned friend's sincerity on this matter. I am quite certain that he believes sincerely that this Bill will in fact make matters better otherwise he would not have brought it before us at all. He said that he cannot understand why I believe that continuing fault will in any way help in divorces. The point is that it is not that I believe that fault in divorce is going to help anything at all, but that the abolition of fault as a principle is going to have a disastrous effect on all sorts of people long before they get married because they will start off from the wrong place. It is that which I believe is so dangerous in society, but nobody has answered that point.

I am sorry to disagree with the right reverend Prelate the Bishop of Oxford. I disagree profoundly with what, I am sorry to say, is the attitude of the Church. He said that if you have fault you have to have punishment. I was quite interested to hear him say that because normally in this House we do not allow punishment at all. I thought that we believed that that was rather a bad thing in most cases, but I suppose it has now been put

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up because it is thought that I am not really politically correct. Well, I am not politically correct and I do not pretend to be that, but I do not believe that to be a very good argument. I am not talking about punishment and I have not used that word. I would not want it implied that that is my intention.

I am out to face reality because I believe that is just what this Bill does not do. I have listened very carefully to all the arguments. Indeed, we have a number of lawyers speaking in this debate, but the professional advice is itself contradictory. My noble and learned friend Lord Simon of Glaisdale speaks with his years of experience as a judge and says that it is possible to deal with the question of fault in divorce, but others seem to think that it is not possible. Lay people in this situation must make up their own minds on the basis of the evidence that they have. I support very much what the noble and learned Lord, Lord Simon of Glaisdale, said on this matter.

I am very sorry to disagree with my noble friend Lady Faithfull, but I do disagree profoundly with what she said--not because I am not deeply concerned about the children of divorces. I am concerned because I have seen too many desperately unhappy children as a result of divorces. However, the question that my noble friend must consider is whether or not there will be more divorces as a result of this Bill and therefore more unhappy children. Of course, I am in support of doing everything that I can to try to help those children--nobody would want otherwise--but the greatest help of all would be to create a framework in which there will be fewer divorces. The real danger is that in this legislation we are creating a world in which there will be more divorces, not fewer.

I realise that there are many faults in the amendments. I do not pretend that they are perfect or that they are the last word. I am quite prepared to take them back and to think again. Amendment No. 4 would permit divorce only on the ground of fault or of behaviour which was destructive of the continuance of the marriage. Amendments Nos. 21 and 23 seek to adapt the present law and to permit divorce where both parties seek it. But where only one party seeks the divorce, the provisions would require one of three possible reasons to be proved: adultery, behaviour or five years' separation. That is a slight variation on what we have now. That amendment needs to be considered with the later amendment to Clause 7 which increases to 18 months the minimum time for all divorces.

If I may say so in support of the amendments, it may well be that both parties to a marriage are at fault or in some way believe themselves to be incompatible. However, the fact is that in a substantial proportion of cases, the fault lies in the behaviour of one or other of the parties. Indeed, the White Paper acknowledged that at Section 4(4) which stated that the retention of fault received significant support in the consultation process on the Green Paper. So, even those who are experts are clearly divided on this issue.

We have not had an answer to this, but the fact is that the Bill removes all protection for the innocent spouse. As I see it, a husband or wife can simply say that the

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marriage has irretrievably broken down whether or not the other party wants a divorce. That is where we are. Again, that seems an extraordinarily bad signal to send to young people.

It is late now and I do not intend to go over all the detailed points that have been made. I thank very much all those noble Lords from all parts of the House who have supported me in this series of amendments on fault. It is only right to say that this is not a matter which those of us who feel strongly will allow to drop. I do not intend to press the amendment this evening because if I may say so, using the words of the Bill, perhaps we all need time to "reflect" on what is the right thing to do. I shall certainly reflect on the criticisms that have been made of these amendments and shall consider coming back with different amendments on Report if my noble and learned friend cannot produce amendments that he would find acceptable.

It would be quite wrong at this stage to allow in this legislation on the abolition of fault the pretence that it will make no difference. As we gradually sap and undermine individual responsibility, we do not help young people entering marriage. We do not help marriages which both parties are struggling to make work or where one partner is struggling to make the marriage work in great difficulties. We would simply be encouraging everybody to give up far too easily. I do not think that that is a signal that we should send out at this stage and that is why I stand by the whole question of fault. As I have said, I do not intend to press the amendment, so I beg leave to withdraw it.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Meston moved Amendment No. 5:

Page 2, line 1, at end insert ("or, in the case of an application for a separation order, the marriage has broken down").

The noble Lord said: I spoke, in part at least, to the amendment at an earlier stage in connection with Amendment No. 2. The purpose of the amendment is to examine why the Bill seeks to assimilate the ground for a divorce order and the ground for a separation order. As I mentioned at an earlier stage, under the existing law it is not necessary to allege or to establish that a marriage has broken down irretrievably if the party concerned seeks only a judicial separation.

The Law Commission suggested that the two forms of relief should now be integrated. That is the one part of the Law Commission report which I find somewhat unconvincing. A separation order is a concept distinct from a divorce order, and it is questionable whether it is necessary or desirable to integrate them as the Bill seeks to do. A large number of people prefer, for personal reasons, to have a separation order. They find it easier, less painful, and sufficient for their requirements. It is therefore unnecessary for them to have to prove now, under the Bill, that the marriage has broken down irretrievably. It should be sufficient to prove that the marriage has broken down. After due

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formality, they should be enabled to regulate their affairs, or to invite the court to regulate their affairs, as the law presently allows. I beg to move.

The Lord Chancellor: I wish to indicate in answer to the noble Lord, Lord Meston, that in this area the Bill is founded, as he recognised, on the Law Commission's proposal. The possibility of having a distinct basis for separation exists in logic. If all he wants to have is that the marriage has broken down, we would need to know more about the conditions under which that would be thought to be established.

One of the reasons for doing what we have done is to make the basis upon which the orders are made as simple, as clear, and as capable of going out to people as a message as is possible. At the moment at least, I feel that what we have in the Bill is the best solution to that problem. The question that the Law Commission considered more fully is whether we need a separation order at all. For reasons that we have gone into already, I believe that it is desirable to have a separate separation order. It is not necessary to specify further what it does than what is said in the Bill.

If the noble Lord considers that some better function would be served by a separation order distinct from the divorce order in its ground, then I should be glad to know what that would be. It would have the consequence that one could not readily transfer from the separation order to the divorce order without in some way doing some more work to bring one into the ground for the divorce order, I assume.

When talking about a separation order earlier, I may have spoken about the possibility of obtaining one in one year after the marriage. If I said that, it was not what I intended. I intended to say that it was possible to apply for an order within one year. It was not subject to the bar, as is an application for a divorce order. Under this Bill, one cannot obtain the order in less than a year because it takes a year to obtain it. I meant to say that the application can be made. If I did not say that I am sorry, and I take this opportunity to correct the point.

The essential point is that we desire to have one. We desire to make it possible to move from a separation order to a divorce order if the circumstances seem to the parties to make that desirable. If we are to distinguish between the two on grounds we need to know the ground that the noble Lord wishes to suggest for the separation order.

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