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Lord Simon of Glaisdale: Does the right reverend Prelate agree that the Church courts apportioned fault without any real difficulty for some 1,500 years?

The Lord Bishop of Liverpool: It may not have found any difficulty but I guess that, in particular, many of the women concerned found a good deal of difficulty in what the Church courts would have found in those years.
 
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Before we leave the word "fault" it is worth saying that it was the 1969 fault-based law which opened the floodgates with which we are concerned today. When I have known a couple closely through the pain of divorce, I have realised that there has been fault on both sides. Even if I knew people many times better than any court could, it would be very difficult to apportion the blame fairly. It seems to me that there is a Christian view of fault and that is that I should be more concerned with my own part in the fault than in trying to establish my partner's part.

The question which we must ask, which I believe the noble and learned Lord the Lord Chancellor has asked very carefully, is whether there is a better chance of fault being examined properly, including one's own fault, in the adversarial context of a law court or in the more relaxed atmosphere that we hope will exist for mediation.

One of the most tragic figures about divorce is the number of divorces of second marriages. The point has been made already today that people sometimes rush on from the breakdown of a first marriage without seeing their part in it. One of the great reasons for divorce over time in this way is that people will be given the opportunity to reflect on their part in the breakdown of a marriage before they are free to go forward to another marriage.

I believe that irretrievable breakdown is not a fatalism. Couples know they have failed but I do not believe that we need to exaggerate that profound sense of failure which so many people feel.

Lord Stoddart of Swindon: I should like to say a few words on Amendment No. 18A moved by the noble Baroness, Lady Young. I come back to the messages that we are sending out. I am sorry to be repetitive about that but I believe that that is really the crux of the matter.

What are we saying? Two people solemnly enter either a Church or a civil contract to establish a relationship not on a day-to-day basis but on a supposedly permanent basis. It is not one person who agrees to do that; it is two people. There are two people involved in making a contract of marriage—and we do call it a contract of marriage, whether it is made in heaven or in the registry office. It is a contract. But here, against all the laws of contract, we are saying that the contract can be unilaterally abrogated. We are saying that a contract made by two people can be set aside by one of the people who is party to that contract; and, even worse, that can be done without giving any reason.

There is no need to give a reason for the breakdown between the two who made the contract because, as we have just heard from the right reverend Prelate, fault has gone. The Government want to do away with fault. Therefore, all one party has to do to break the contract which was entered into solemnly is to say that it has irretrievably broken down. There is nothing in the Bill to say that there must be justification for that. Unless there are certain other conditions involving children or hardship and so on, the other party will have to put up with that. That is not a very equal contract.
 
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As I said, that sends out the wrong message to people who are about to marry because at the back of their minds when they are marrying now they say, "Well, if we want to put it asunder, there are certain things which must be done and we may be blamed by society". They may feel that there will be a bit of a stigma if the contract is ended unilaterally. Indeed, one of them may feel sorry for the other partner and may feel that he or she is "wronging" that person. It is not so much a case of it being a social stigma: there are social reasons why people do not embark upon such action.

However, what we are now telling people when they are about to get married is that they do not really have to think very much about it because, after two years, one of them can simply go to court and say that the marriage has irretrievably broken down. That means that they will, perhaps, not think too seriously about their marriage vows. That is the last thing we want. We want them to think more seriously about such vows. But the Bill sends them the message that they do not have to think too seriously because, if they are not getting on after a couple a years, one party can say, "I've had enough of this; the marriage is irretrievably broken down. No matter what my partner thinks and no matter what my fellow contractee has said, I can end this unilaterally". I believe that we are sending the wrong message. I believe it most sincerely, despite the remarks of the right reverend Prelate. We must reflect on the matter. That is why I believe we should give serious consideration to this group of amendments.

8.30 p.m.

Lord Elton: I believe that my noble and learned friend can help to resolve a couple of anxieties which are felt by a wider group of people than perhaps have attached their names to amendments. The first anxiety relates to Amendment No. 29 and the debate about words. I accept that it is not a debate about semantics.

The right reverend Prelate said that it was not a question of crisis. That is when you start trying to save a marriage and not when you start initiating a divorce. However, the noble and learned Lord, Lord Simon of Glaisdale, described a sequence which many of us thought we had detected in the Bill; namely, a process which starts with making a statement followed by compulsory mediation during which conciliation is offered and mediation can be put on one side and concluding in reconciliation or, if that fails, in divorce. So crisis would be the right word for the beginning of the process but the wrong word for the beginning of something which presumably could only end in divorce.

Perhaps my noble and learned friend can say more about the relationship between mediation and conciliation. I know that it belongs in Clause 5, but it is relevant to this group of amendments. The key amendment is Amendment No. 18A which lays down that there can only be divorce between consenting partners. That amendment is itself amended, as it were, by Amendments Nos. 21 and 23 which suggest an alternative route where there is no consent and which returns to the issue of fault.
 
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I do not wish to return to the issue of fault. However, many of us are disturbed by the way in which it is possible to describe the Bill as providing a contract of marriage which can be abrogated unilaterally after a short time. There are cases where one of the parties does not actually despair of the marriage and where in fact hope is justified, as my noble friend said when speaking to one of her earlier amendments.

It would be helpful if my noble and learned friend could explain the position of the other party. Indeed, any party, whether consenting or not, needs to know that such a statement has been made. As my noble friend Lady Elles, I believe, pointed out, it would seem quite possible under the Bill for a statement to be made without the knowledge of the other party. But where the other party actually wishes to continue to try to salvage the marriage then, a fortiori, we would like to know what the arrangements would be.

Lord Coleraine: I agree with the noble and learned Lord, Lord Simon of Glaisdale, about the size of the groupings of amendments. I suspect that the intention is benevolent; namely, that we should have large, general debates in which all the issues involved on any particular broad group of subjects can be discussed. However, my own feeling is that the discussions tend to get sidetracked and are not conclusive. All we are doing is building up trouble for the Report stage. Indeed, we shall end up with very long Report stage debates on matters not properly discussed at this point.

Baroness Trumpington: I understand—and I hope that the noble Lord, Lord Graham of Edmonton, will agree—that groupings are set down by arrangement between the usual channels. If anyone objects to anything, he or she is perfectly at liberty to degroup an amendment. Equally, that does not stop someone moving the amendment when we come to the relevant point. I hope that I am correct in my assumption.

Lord Graham of Edmonton: I can only speak on behalf of the official Opposition. We are invited to agree to the groupings proposed. Indeed, my noble friend Lord Irvine wishes to raise a particular matter in a short while. The problem is that unless everyone whose amendments are put into a group is consulted—Members of the Committee can see by the size of the groups how difficult, if not impossible, it was in this case—then he or she is entitled to make the kind of comments that have just been made.

Lord Coleraine: I am most grateful but I should like to continue. It is correct to say that one can change the grouping and degroup. However, there were special difficulties today in that when one telephoned the Whips' Office one got a continual ringing sound because the telephone was not working. Moreover, the groupings list was available only shortly before the Committee sat. I find that amendments which were in one group 10 days ago now turn up in another. Indeed, one paving amendment has been detached and put into an altogether different group. Although such large debates are clearly designed to achieve a good effect, I doubt very much whether they do so in the long term.
 
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The right reverend Prelate referred to Amendment No. 20. I am certainly aware that if one puts in the statement the fact that the marriage may have broken down it runs the risk of starting proceedings prematurely and that in such a case it is possibly better if the divorce does not start at that point. However, the amendment we are discussing is largely an amendment of benevolent semantics. Whatever happens the party considering making the statement will make such a statement as and when he or she has decided that the marriage has broken down and a divorce is required. I do not believe that that should necessarily prevent the statement containing the words "may have broken down" as opposed to "has broken down".

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