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Lord Stoddart of Swindon: The noble and learned Lord puts forward a serious and interesting proposal. Is he saying that, despite what has been said, there will remain fault in marriage, and that that will be punished by depriving the person who is at fault of a given amount, say, of money or property in any marriage settlement? That seems to be something new. I had not quite understood that.

The Lord Chancellor: It is not something new. It may be new to express it in quite the way that the noble Lord does. However, what I am directing attention to is that the conduct of the parties, where it would be inequitable to ignore it, is taken into account in the financial arrangements between them.

Lord Stoddart of Swindon: So they will be punished for it.

The Lord Chancellor: I do not use that language. But it is right that where the conduct is of such a character that it would be inequitable to ignore it, it is taken into account if the court has to adjust property rights between the parties.

Lord Stallard: We do not take that into account in the irretrievable break-up of the marriage. It is a no fault situation when it applies to the marriage, but it is a fault when it comes to the settlement.

The Lord Chancellor: These things are not entirely separate. One of the proposals in the Bill—we debated it earlier and I wish to emphasise it—is that before a divorce is granted under these proposals the parties will have to face up to the responsibilities flowing from their marriage. The way in which that is done includes the provision to which I have referred; namely, that if
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the conduct of a party is of such a character that it would be inequitable to disregard it in these arrangements, then the court will take it into account. In the proposals the Government have put before Parliament that factor is available for consideration.

My noble friend Lord Elton raised the question also in connection with the abrogation unilaterally after a short time. How short? In my submission to the Committee, a year is quite a substantial time in the context of this situation. The important factor is that it is a year with a purpose; namely, of consideration and reflection. The Bill seeks to put into the law, so far as the law can, a purpose for that period. It is not just an aimless delay; it is not done for no purpose, but to enable the parties to consider carefully in the light of all the help they can gain, and as regards the whole view of the future, what the future holds for them. The logical consequence of that is that if there is hope for the marriage to be saved, that is what will happen.

I believe that I have dealt with all the matters that arise under these grouped amendments. In due course I shall move my Amendment No. 22 and indicate then that I do not propose that Clause 6 stand part of the Bill. At Report stage your Lordships will have the Bill as the Government consider it should be on this aspect.

Lord Stoddart of Swindon: Before the noble and learned Lord sits down, I am sorry to delay the Committee but I have to have this clear. Earlier on the noble and learned Lord said that under the present arrangements the party to the marriage who is at fault is able to remarry sooner than the party not at fault. Is that correct? Did I understand that correctly?

The Lord Chancellor: Not quite. If you have a situation such as is contemplated in these amendments, a party who is at fault in a marriage will obtain a quick divorce—in less than five years—and therefore will be able to remarry more quickly than a party to a marriage who is not said to be at fault who has to wait at least five years for that. That is the point I seek to make. It is a very important point. It is a very profound message; and it is a message which in my view the law should not send. In my view, far from frowning, as it were, on these breaches it rather suggests that the breaches will be rewarded in a great number of cases by a rather rapid licence to remarry.

Lord Coleraine: Before my noble and learned friend leaves that point, is that not the situation under the present law as envisaged in 1969: that the issue was going to be fault based, and if you committed adultery you could be divorced but, otherwise, if the parties were not agreed upon a divorce, you had to wait for five years, separated during that period? Surely the positions are analogous one to another.

The Lord Chancellor: That is right. That is what I think is so wrong with the message that the present law sends out. Far from penalising that kind of fault, far from saying that the law disapproves of it, the message appears to be that the law commends it by the rapidity with which it will be blessed by a licence to remarry. I am sure that that is not what many of us would like to see, but that is the logic of the present position. It is one of the reasons that I feel that it is extremely difficult to
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have a sensible law which makes a distinction between a divorce based on fault and a divorce that is not based on fault unless the same timescale applies. In that case, having the fault base makes no real difference.

Lord Simon of Glaisdale: In answer to the noble Lord, Lord Stoddart, my noble and learned friend said that under the existing law a party who is at fault can obtain a quickie divorce—he did not use these words but I think that it is what he was referring to— and therefore can marry sooner than a party who has to wait five years who he assumes is not at fault. But the party who has to wait for five years may or may not be at fault himself. Indeed, he is more likely to be at fault than not at fault in actual situations.

My noble and learned friend dwelt much, as did the White Paper, on the imperfections of the present law. But in my respectful submission it is wrong to credit the critics of this Bill either with responsibility or with any affection for the 1969 Act. On the contrary, those who are critical of this Bill stand in place of, and are successors of, those who were critical in 1969. Many of the supporters of this Bill are the successors of those who supported the 1969 Act.

The Lord Chancellor: My noble and learned friend just pointed out that the five-year separation does not imply that a person is or is not at fault—which in a sense makes the point about the present law: it may or may not involve fault. My point is that if fault is alleged against a person, under the existing law the divorce can be much quicker than if no fault is alleged.

Regarding support for the 1969 Act, I am not concerned to say who is responsible for that. I am simply concerned to answer questions about messages. One takes the law as it is and says that this is the message it sends out. I do not want to say that opponents of the present Bill have any responsibility for that. All I am saying is that these are inevitable consequences of a particular position. That is what we have to examine.

Baroness Young: First, I thank my noble and learned friend the Lord Chancellor for his very detailed reply to these amendments. I shall read it with very great care. There are two issues to which we shall unquestionably return and in relation to which one cannot be entirely happy.

I am sorry to raise the question of fault once again. But as I understood my noble friend, he argued consistently that it is the fault provisions under the 1969 Act that have led to quick divorces. To take the divorce rate for the United Kingdom, I understand that it is only in England and Wales that this uniquely quick situation exists whereby divorces can take place, as some 30 per cent. do, in under six months.

In Northern Ireland, the corresponding figure for divorces that take place on the basis of two to five years is some 73.4 per cent. I understand that in Northern Ireland the statute law is identical to that which applies in England and Wales; the main difference is that there is no special procedure,
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introduced here in 1973, which I understand allows divorce by post, whereas in Northern Ireland a court appearance is required.

For reasons that I do not fully understand (I am not an expert in this field) we not only had the provisions of the 1969 Act but, in order to speed them all up a little, we made the process easier.

Presumably, the statutory instrument under which the special procedure operates could simply be repealed. Then we could have fault without the process happening so quickly. I do not quite understand why it should apply in one part of the United Kingdom and not in another. But there it is. There is still a lot of question in relation to fault.

Baroness Seear: I am sorry to interrupt the noble Baroness. Is it not possible that there is a difference in Northern Ireland because there is a much higher proportion of Roman Catholics?

Baroness Young: I cannot possibly say whether it is a result of the composition of the population. In Scotland, for reasons I do not fully understand, a much higher proportion of divorces take place after two to five years. There may be all sorts of reasons for that; I do not know what they are. But we might examine the situation within the United Kingdom. Whether, under the statutory instrument, the special procedure that was designed to speed the process up and save money (perhaps that is a good thing; it could be said that quicker divorce is cheaper for the Government) really contributes to the good of society and to an ultimate saving of public money is another question. This argument could continue.

I am bound to say that I was very disappointed in the remarks of the right reverend Prelate the Bishop of Liverpool. He says that, on the one hand, he believes in redemption but, on the other, one has to accept that a marriage has broken down. He is adopting a completely fatalistic approach on that point.

On the whole question of the wording, there is a good philosophical discussion as to whether "breakdown" is susceptible to the degrees of description that my noble and learned friend the Lord Chancellor gave to it and whether "failure" is. It is not a matter with which I intend to trouble the Committee at length at this stage of the evening. But the issue here is the message that we are sending out on these matters. "Irretrievable breakdown" has a very fatalistic sound to it: it suggests that that is the end.

I feel that this has been a valuable debate. It opened up a number of questions about which we have some concern. We are concerned particularly in Amendment No. 18A that there can be unilateral divorce, one party against the other, after a year. I believe that that should concern us all. It is a very serious point.

Amendments Nos. 99, 109 and 106 refer to provisions for a court to make an order barring divorce for two years where one spouse objects to the divorce. In practice that would prevent divorce for possibly four years. It is a way of extending the time—not punishing anyone—and giving people the opportunity to consider further whether they have a chance of getting back together again.
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The question of conduct came up at the end of the discussion and my Amendment No. 108 refers to that. There will be a number of issues which need to be raised over the hardship clause, to which I shall certainly return at a later stage in the Committee's proceedings. I do not intend to raise them at this time. I shall read very carefully what my noble and learned friend has said on these matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 to 21 not moved.]

9.15 p.m.

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