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The Lord Chancellor: This is an important group of amendments because it raises a question which is fundamental to the structure of the Bill as regards arrangements for the future being reached before a divorce is granted. I believe that to take that out and follow the Law Commission's recommendation would remove from the Bill one of its major aims and significantly weaken its impact. The Committee can be assured that with the Law Commission's views before the Government, this was a carefully considered decision.
The reason I feel strongly that what the Government have put in the Bill is right is that, first, I think it correct that before parties are granted a divorce they should be required to face up to the responsibilities that they have undertaken in marriage. Those responsibilities are of a fundamental nature, particularly, of course, the responsibility for the care and support of the children. There is also the issue of how their own mutual arrangements are to be conducted after divorce. The first purpose is to make the parties face up to the responsibilities they have already undertaken and to face them in a clear and unequivocal manner.
The second point, which I sought to make in answer to the intervention of the noble Earl, Lord Perth, is that it is important that parties look to the future as realistically as they can and compare what the future is likely to hold with what they have at present. For example, if it sinks into a father that he may see his child, whom he loves very dearly, only very rarely and in rather difficult circumstances, he may feel that it is better to try to restore the existing relationship than to go forward into the wilderness.
The third point I wish to make is that an examination of statistics shows that second marriages of people who have been divorced are likely to be more fragile than the first. There may be many reasons for that; at least one is that the responsibilities of the first marriage continue to intrude upon the second. Both as Lord Chancellor and before, I have seen circumstances in which both parties to the second marriage make strong references in relation to discharge of responsibilities of the first marriage. It is extremely important that before an order of divorce is pronounced, the parties should face up to their responsibilities in order to ensure that before they go forward to any other relationship they know as precisely as it is possible to know what is the position. Of course, circumstances in relation to maintenance and so on may have to change.
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I understand well that the practitioners of the law in this area may go along with the Law Commission for reasons set out in the Law Commission's report, as the noble Baroness, Lady Hamwee, reminded us. Naturally that weighs with me. However, I consider that, ultimately, the court has power and is very astute in knowing how to handle people who are being deliberately and unnecessarily obstructive.
On the other hand, I believe that it is really fundamental to the existing marriage that, before it is dissolved, the parties should face up to their responsibilities. Of course, that is a change from the existing law so far as concerns property. I also believe that it is a change which will have the effect of supporting the institution of marriage by requiring people to face up to their responsibilities.
We hear from time to time about making divorce easier. Whatever can be said about that, the proposal would not make it easier; indeed, it would make it more realistic and comprehensive. Therefore, I wish to resist amendments to remove it. Obviously we need to look at the provisions of the exceptions, and there are later amendments which will deal with that aspect. However, I have endeavoured to detail the exemptions in order to try to address realistic problems in the area. I believe that the principle is one which is fundamental to the Bill. I hope that Members of the Committee will support me in that point of view.
Lord Meston: Grouped with this amendment are several amendments which are tabled in my name, including Amendments Nos. 95, 195, 196 and also Amendment No. 85. As Members of the Committee have been told, Clause 2 states that the "requirements" of Clause 9 must be satisfied and Clause 9 itself stipulates that,
must have been put in place. I give way to the noble and learned Lord.
Lord Simon of Glaisdale: I am sorry to interrupt the noble Lord, but I am not quite clear as to the amendment to which he is speaking. I realise that it is my fault but, nevertheless, I should like clarification.
Lord Meston: I am sorry if I did not make it clear. I am adhering to the groupings list, which, as I read it, has grouped Amendment Nos. 85, 95, 195 and 196, among others, with the current amendment. I hope that I am right in that respect.
Lord Simon of Glaisdale: I am much obliged.
Baroness Trumpington: I believe the noble Lord has left out certain amendments. Is he aware of that fact?
Lord Meston: Yes. I hasten to say that I did use the words "among others" to cover that fact. I am confining myself to the amendments which concern me directly.
The principle which the noble and learned Lord just stated is one with which I would not argue. In particular, the noble and learned Lord struck a chord with me in suggesting that the present system has a
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fault in allowing the parties to carry into their second marriage too much unfinished business from the recently dissolved first marriage.
The first point that I would like to make is merely a drafting matter. Clause 9(4) states baldly:
Thereafter, Clause 9(5) refers one to the three existing exemptions which are set out in the first schedule. As a matter of drafting, I wonder whether it might be easier to read if subsections (4) and (5) were merged and, better still, if the exemptions presently in the schedule were set out more clearly in the main body of the clause. However, that is a peripheral point.
I turn now to my main point, which relates to Amendments Nos. 95, 195 and 196. In the schedule as presently drafted, there are three specific exemptions from the requirement that financial arrangements should have been finalised before a divorce or separation order can be made. They deal with situations where the other spouse is absent or is so awkward or so afflicted that it is impossible to make arrangements. The amendments which I wish to introduce into the schedule would provide a fourth and fifth exemption.
In Amendment No. 195, I seek to insert a fourth exemption which would provide that the circumstances,
"are that the children of the family, or any of them, are the subject of care proceedings and it is in their interests for a divorce order to be made notwithstanding that the parties are unable to make arrangements for them".
That is designed to deal with the situation where the children mentioned in the original statement will become the subject of care proceedings during the following year, so that the parents are unable to make arrangements for them. It may be very much in the interests of those children for there to be a divorce before the care proceedings are resolved as it may facilitate their return to one or other of the parents.
Amendment No. 196 suggests another exemption in the following terms. The court must be satisfied that,
"the requirements of Section 41 ... have been satisfied; [that]
"both parties have considered and reflected on their financial arrangement and concluded that it is in their interests or that of a child of the family not to determine their financial affairs finally until some future date; and,
to have reached that conclusion. That is designed for parties whose financial affairs cannot be fully or finally determined until after divorce at some possibly uncertain date.
There are those who have good reason to wait because important imponderables have not been clarified. For example, the outcome of a financial settlement can, quite often, depend on an expected inheritance, the attitude of a pension fund or even—dare I say it in these days?—the crystallisation of substantial Lloyd's losses. It is my suggestion that that sort of provision should enable parties to proceed to a divorce if they can satisfy the court that there is a good reason to wait.
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Amendment No. 85 is designed with a different purpose in mind. As the Bill stands, the requirements in Clause 9(2) involve the possibility that "one of the parties" may declare to the court that he or she has "no significant assets" and that,
"the party making the declaration does not intend to make an application for financial provision and believes that the other party does not intend to; and [that]
The amendment seeks to question whether it is appropriate to proceed on the unilateral declaration of one party. I suggest that the declaration should be something that is made by each of the parties to the marriage.
As drafted, the provision that a divorce may be granted on the declaration of one party that there are "no significant assets", that he does not intend to make an application for financial provision and that he believes that the other party does not, is a potential gift to the unscrupulous. At the very least, the court should have a duty to investigate the bare assertion by one party that there are no significant assets and that he believes that the other party does not intend to make a claim. Otherwise, the unscrupulous husband could simply tell the court that he thinks that there are no assets of any significance and that he does not believe that his wife (whom he may have bamboozled in some way) intends to make a claim. He can then proceed to obtain a divorce. Surely the declaration in Clause 9 is of such importance in these sorts of cases that it should be a declaration of each of the parties to that effect.
I am conscious of the fact that the noble and learned Lord the Lord Chancellor has his own amendment, Amendment No. 87, which includes a provision that,
I suggest with respect that even that is rather too weak to prevent misuse of Clause 9 by the unscrupulous.
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