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Baroness Young: I am grateful to my noble and learned friend the Lord Chancellor. I shall certainly read carefully in Hansard what he said because this is an important point. He now says that the divorce cannot be granted in certain circumstances until after a year or until agreed arrangements are made in respect of finance and the children.
Baroness Hamwee: I realise that with this somewhat awkward grouping of amendments in the absence of my noble friend Lord Russell I should perhaps have referred to his amendmentAmendment No. 193which seeks further to extend one of the exemptions. However, perhaps that is a matter to which we can return at another stage, although the noble and learned Lord may wish to comment briefly.22 Jan 1996 : Column 849
The Lord Chancellor: Briefly, the circumstances between the parties for interim arrangements and so on are matters that will have to be dealt with under, for example, the provisions in Part III relating to domestic violence and the family home. I do not believe that it is wise to allow the facing up to responsibility to be damaged further by considerations of that kind.
Baroness Hamwee: I am grateful to the noble and learned Lord. It may be helpful to review this matter together with the hardship bar and the comments that may be made in that context, even though they are different issues, as the noble Baroness, Lady Young, suggested, although the noble Baroness and I have rather different perspectives on the matter. I beg leave to withdraw the amendment.
The noble Lord said: Perhaps I may speak briefly to Amendment No. 13 and also to Amendment No. 53, which proposes the omission of Clause 7(4). I hasten to say that I am sorry that Amendment No. 53 may have been misunderstood. What I am about to say should not in any way inhibit the noble Baroness, Lady Young, and the noble Lord, Lord Jakobovits, who support Amendment No. 53, from taking an entirely different point of view. They have their own reasons for seeking the omission of Clause 7(4).
What I propose is purely a drafting simplification. Clause 2(3)(c) refers to Clause 7(4), which re-enacts the provision that proceedings for a divorce may not be commenced within a year of the marriage. I do not propose to debate whether that provision has any value. It is the existing law and it is preserved by this Bill. In the context of this Bill there might be something to be said for an earlier intervention if a marriage, sadly, is in difficulties in its first year. However, if the bar is to remain I suggest that it may be clearer to state it in Clause 2(3), as proposed in Amendment No. 13, by simply referring to,
Lord Simon of Glaisdale: I shall deal, first, with Amendment No. 16 because it takes up the point with which the noble Lord has dealt. Amendment No. 16 arises out of some confusion which I am sure was my fault. It arose on an earlier amendment, I believe
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Amendment No. 2. My noble and learned friend dealt with the timings and resumed the point later. I wanted to be quite sure that I understood. It is for that reason that my amendment proposes to leave out,
Perhaps I may put this situation to my noble and learned friend: there is some very great fault within the first few months of the marriage. At an earlier stage I gave as an example the communication of a venereal disease by, say, the husband to the wife. The wife is clearly entitled to withdraw from cohabitation. As I understood my noble and learned friend's second answer, let us say that she withdraws within a month and at the end of the month she is entitled to move for a separation order. The first question, therefore, is: what about her maintenance during the currency of consideration of her application for a separation order? That cannot take effectmy noble and learned friend will correct me if I am wronguntil after a year. In other words, that is 13 months after the marriage in the situation that I postulated. How is the wife to be maintained during that time? When the ecclesiastical courts had jurisdiction in those circumstances they awarded alimony pending suit. That was subsequently taken over by the civil courts. Is that provision still available? If so, will my noble and learned friend remind me of it?
At the end of that 13 months, or perhaps at the end of 12 months, the wife can move for a divorce order. Is there another year after she moves for a divorce order? If so, does the period come to an end 24 months or 25 months after the marriage? Again, I ask about her maintenance during that period. That is the point on which I wish to have my mind clear.
"If the court is considering an application for a divorce order and an application for a separation order in respect of the same marriage it shall proceed as if it were considering only the application for a divorce order".
In the example that I outlined as regards the later amendment, the wife is applying for both ordersfirst, for a separation order, and then a divorce order. However, it might be the husband, at the end of the 12 month period after the marriage, who applies for a divorce order. If that happens, the court is enjoined to give priority to his application for a divorce order. I draw attention to that because it is, again, an aspect of the predilection of this Bill towards divorce rather than separation. We saw it earlier as regards an amendment by the noble Lord, Lord Meston. We shall see it later in the Motion that Clause 18 shall not stand part to be moved by the noble and learned Lord, Lord Archer, and myself. Why is there this predilection for divorce rather than separation?
Baroness Trumpington: No, never silent. The noble and learned Lord is speaking to the first amendment
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which has been moved. The other amendments can be spoken to but not moved until it is their turn. That is my understanding.
The Lord Chancellor: My understanding is that Amendments Nos. 13 and 53 are drafting amendments intended to simplify the provisions of the Bill. However, they would allow a statement of marital breakdown made in the first year of the marriage to be effective for the purpose of eventually applying for a divorce order after the second anniversary of the marriage. I believe that to be the effect of the amendments. If I have understood them correctly, that is not the policy on which the Bill is drafted.
Under the current provisions of the Bill, a statement made in the first year is effective only for a separation order which can then be converted into a divorce order after the second anniversary of the marriage. While the actual period of time of obtaining a divorce in both those circumstances is the same, the reason behind the policy was to maintain the one year ban under the current system on petitioning for divorce. In other words, couples would not be able to initiate proceedings with a view to divorce in the first year of their marriage.
Amendment No. 14 is in the nature of a probing amendment, but it is perhaps worth while my indicating how I see it. Its effect would be to leave the court to decide with which application it should proceed in cases where it had applications before it for both divorce and separation orders in respect of the same marriage.
In order to keep the parties' options open for as long as possible, and in order not to commit parties to applying for a dissolution of the marriage at the outset of the period of reflection and consideration, it is intended that only at the end of the period will either party, or both parties jointly, need to choose for which remedy they need to apply.
It is also intended that, with the exception of the hardship bar, the same conditions as apply to divorce should apply to separation orders. Marriage breakdown has the same serious consequences for the parties and their children whether the parties decide to apply to the court for divorce or separation orders; so the process which leads to a court order being made in relation to the marriage, and therefore to important orders relating to children, should be as demanding as that for a divorce.
Not many parties use judicial separation under the present system. However, it is right that a separation order should be available as an alternative to divorce, particularly for those who have, as I said on the last occasion when this point was raised, a religious or conscientious objection to divorce. The reality is, however, that generally judicial separation cases involve irretrievable breakdown; and in practice, when dealing with children and financial matters, the courts treat judicial separation as if it represented a final breakdown.
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Adopting the same ground for judicial separation as for divorce would not act as a deterrent to reconciliation. Reconciliation can still occur during the 12-month period for reflection and consideration, just as it does under the present system, and indeed at any time after a separation order is made.
Where, however, at the end of the period one party applies for a divorce and the other spouse applies for a separation order, the court should make a divorce order, provided that the marriage has broken down irretrievably and other requirements relating to attendance at information sessions and decisions about future arrangements have been met, unless an order preventing divorce has been made and subject to the statement not having been made in the first year of marriage. So the important difference is the availability of the hardship bar and the order preventing divorce from being made.
Once a marriage has irretrievably broken down and parties have decided on arrangements for a life apart, there is no benefit for either party or their children in keeping the empty shell of a marriage in existence, unless of course the dissolution of that marriage would result in grave financial or other hardship for the spouse who wants a separation rather than a divorce.
Amendment No. 16 would have the effect of leaving the court to decide whether it should proceed with an application before it in respect of divorce or separation. As I said, in order to keep the parties' options open, we have provided for this.
Financial provisions during the period between the making of a statement and obtaining a separation order can include interim and final periodical payment orders, so that in the case that my noble and learned friend postulated there is the possibility of the court making an order for interim periodical payments during the currency of the litigation. That could be made into a final order for periodical payments
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