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Lord Meston: I cannot help but suspect that one of the concerns raised by the amendments is an anxiety about how far one party can go down the path to a divorce without the other party knowing about it, let alone consenting to it. I believe that some confusion has crept into our discussions.
I have assumed that all the various documents which must be put before the courtin particular, the initial statementwill have to be served promptly upon the other party. I suspect that that is not perhaps as clear as it might be on the face of the Bill. However, I presume that that would be covered by the rules to be implemented under Clause 11 whereby the Lord Chancellor,
However, I return to the point of the amendments. Whatever the legal mechanism which happens to be in operation at the time, the reality is that the parties to a marriage will probably have different views as to whether or not the marriage is at an end, at least at the beginning of the process.
This Bill has been criticised as allowing for unilateral repudiation of marriage. However, I invite the Committee to consider what is the present state of the law. As the law stands, divorce in reality quite often represents a unilateral repudiation of the marriage by one party which is only reluctantly and eventually accepted by the other party. The other party the reluctant partymay not have the resolve or the funds to fight a divorce and cannot therefore stop the process, and indeed by trying to stop the process merely emphasises to the court the fact that the marriage has in reality hopelessly broken down.
The defect, as it seems to me, of the existing system, as the noble Baroness, Lady Elles, put it, is that there is no time given for the marriage to heal, if it is possible to heal the marriage. It seems to me that the virtue of this Bill is that it provides a mandatory period of a year to enable such healing to take place if it is at all possible. However, I suggest that consideration might
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be given to an indication at this stage as to how the rules under Clause 11 for service of documents on the other side are to take shape in reality.
Lord Irvine of Lairg: I desire to say a word or two in support of what the noble Lord, Lord Coleraine, said about the groupings. I have to say for myself that I find the groupings far too heavy, each incorporating a series of unrelated issues. Therefore they are monstrously muddled. I hope that we can do much better in the later stages of this Committee. I do not know how many draft versions of the groupingsI think it was about threeI looked at in the half hour between 2 p.m. and 2.30. The noble Baroness, Lady Trumpington, says that this has to be agreed between the usual channels. That should indeed be the case, but the previous Committee day was on 11th January; we are now at 22nd January and these draft groupings were only being circulated about half an hour before the Committee sat. In my submission, that does not begin to be good enough.
I agree with the noble Lord, Lord Coleraine, that what overladen groupings of this kind entail is an invitation to a series of Second Reading debates and speeches on a broad range of issues. There is a loss of focus on specific amendments and therefore denial of an effective Committee stage. I hope that we can do much better at later stages in this Committee and that there will be longer notice through the usual channels.
The Lord Chancellor: I find the particular groupings that have been attempted quite difficult. On the other hand some form of grouping is required. If we can all do better, I shall be very happy. I shall try to deal with the grouping that we have, which starts with Amendment No. 18A. The principle behind this amendment is based on consent and it alters the period, or allows the period to operate, by virtue of consent. I think that this is a point that arises under the present law. It is worth remembering what the present law is. I believe that this particular part of the present law continues to be reflected in Amendment No. 23 of my noble friend Lady Young.
The point is that the various aspects of the ground for divorce under the present law affect the time it takes to obtain a divorce. The noble Lord, Lord Stoddart, says we must consider the messages that our law sends out. The message the present law sends out, and the message Amendment No. 18A, with Amendment No. 23, would send out is that if parties are agreed that they may get rid of their marriage, that can happen comparatively quickly. If one of the parties is at fault, that may also lead to an early divorce. However, if no fault is alleged against either party, neither of them can remarry for a period of five years. That does not appear to me to send out a signal of disapproval of fault, because the person at fault is apparently free to remarry much earlier than the person who is not at fault.
I come to the second point. My noble friend Lady Young says that the proposals I have are in a sense fatalistic and that it is important to consider the situation of the spouse who does not want the divorce
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to go ahead. I do not agree that the structure that the Government are proposing is fatalistic in that sense. What the Government are proposing is, first, the information session if the marriage is in crisis. One might hope that people would seek help before it reached that stage. However, if they are at the stage of thinking about a process in court, they have the information session which is intended to help them to deal with the situation as it then exists.
At that stage the position is that they need not do anything more if they can get help and can resolve the crisis. One has to measure these crises; they are all in a sense crises. The next stage is where one of the parties considers that the marriage has broken down. This is, of course, the matter that is focused primarily by the later amendments in this group, Amendments Nos. 29, 165 and 166. My noble and learned friend Lord Simon of Glaisdale has criticised the phrase "irretrievable breakdown" as having originated from a Scottish sheriff. However, I believe it has the meritthere may be other phrases availableof referring to stages of crisis. The crisis of breakdown is the one that triggers the process, and then a period has to elapse before one reaches the next stage of irretrievable breakdown.
The trouble with "failure", I believe, is that it is difficult to establish in degrees. I believe that "breakdown" is a word that one can accommodate in degrees whereas "failure" appears to me to be complete. If one starts off considering that a marriage has failed, it is difficult to see how one can, as it were, progress to some more definite conclusion about it. I would respectfully suggest to the Committee that to start off suggesting that a marriage has failed is more fatalistic than the way we have sought to go about it.
In Amendment No. 18A my noble friend Lady Young has put a requirement at the centre of Clause 4 that both parties should take the view that the divorce should go ahead. I regard consent as a somewhat dangerous basis on which alone to allow divorce to go ahead because, as has already been said, the relationship is one that depends on the active support of both parties.
Amendment No. 20 in the name of my noble friend Lord Coleraine makes the first declaration more provisional. I would regard it as undesirable to make it easier than we have made it to make the first statement. In other words, one ought not to seek to initiate a divorce process unless one is of the view that the marriage is in the state of crisis which involves breakdown. If it is less than that I would hope that the help that is mentioned, and about which information will be available at the information session, will help people to take other steps than to go forward to the divorce process.
Amendment No. 21 is an introduction to Amendment No. 23. I shall return to that amendment, but in the meantime there is my amendment, Amendment No. 22. That is no more than a drafting amendment to make clear what is intended in Clause 6.
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I propose to amend the Bill by removing Clause 6 and replacing it with Amendment No. 22 as an improvement.
As Clause 6 currently stands, if a statement were made jointly but only one party wanted to make an application for a divorce order the other party could effectively prevent the divorce by refusing to make the appropriate declaration. The declaration should only be made by the party or parties who make the application, with no reference back to who made the original statement. The effect of Amendment No. 22 is to make that clear.
Amendment No. 23 requires allegations to be made. Those are set out in paragraphs (a), (b) and (c). My noble and learned friend Lord Simon of Glaisdale referred to the judgments in the ecclesiastical courts over the years. I believe that the grounds that were before the ecclesiastical courts were a good deal less ample than the grounds contained in paragraphs (a), (b) and (c), particularly in relation to paragraph (b). I believe that the ground for divorce set out in that paragraphnamely, that,
In any event, that amendment, with its paragraphs (a), (b) and (c), points sharply to the message that if there is grievous fault such as adultery one may be allowed to remarry very quickly, but if one has not been responsible for any fault in a marriage except living apart one may have to wait for at least five years. That is a problem with a law which is based on fault.
Before I leave that amendment I should like to say that the suggestion that the Government are trying to make out that there is no such thing as fault is not a justified criticism of the Bill. The Government are trying to secure a framework for divorce law which makes it as easy as possible to keep marriages going and to restore those where there is any hope of restoration. However, in my submission it is not realistic to think that in the situation with which we are faced it is possible to improve on that situation. The best that we can do is to provide a framework in which those marriages are restored if at all possible.
Amendment No. 24 is consequential. Amendment No. 25 would require the applicant for the divorce in its final form to be the same person who made the original statement. One of the purposes of this structure is to leave it as open as possible for the marriage to be restored. I believe that it is therefore important that where the process is initiated it should be possible for either party to take steps under the process equally.
I was asked about the way in which the provisions that we are dealing with at this stage would operate. The intention is that any document put before a court shall be properly served on those who are interested. That is normally a matter dealt with under rules of court or regulation. The powers contained in Clause 11 are ample to secure that. I give the Committee every assurance that where it is possible to serve such a statement it will be served. It is only in the case of
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somebody who has completely disappeared or something of that kind when no service would be required. That applies to all the documentation, including the type of document that the noble Lord, Lord Meston, mentioned.
I wish to make a second point in this connection in answer to what was said by my noble friend Lady Elles on this aspect. The arrangements between the parties are intended to reflect what has happened between them. One of the provisions dealing with these matters is that where conduct is of such a nature that it would be inequitable to disregard it, it is to be taken into account in connection with dispositions of property. Therefore, the nature of the conduct as between the parties will have to be faced where it is important in connection with the arrangements that are made between them and the way in which they face up to the responsibilities which this Bill requires them to face. Therefore, the nature of their conduct is not left out of account. It is accepted that it requires two to make a continuing marriage. If one has demonstrated by as long as a year's refusal to take the marriage forward then it is clear that the marriage has irretrievably broken down. The consequences of that are to be reflected in the arrangements that are made between the parties in so far as it is appropriate and equitable for that to be required.
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