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Baroness Young: Once again I thank my noble and learned friend for his detailed reply. I am bound to say that at first I found it disappointing because I felt that he had not really taken on board what has been a major concern on all sides of the Chamber as regards the importance of reconciliation. If I have understood him correctly, he is against the separation of periods of mediation and reconciliation and feelsso far as I can understand itthat there ought not to be time limits on either. However, if that is his view, it adds materially to the strength of the argument for extending the period of a year; otherwise everything will have to be dealt with within a short period of time. After all, we are now at 22nd January. If that is when the clock starts, it will stop on 22nd January 1997. That is a short period in anyone's life for all these things to be considered. We need to think about that.
I hope that, when we reach the next stage of the Bill, my noble and learned friend will have filled out his thoughts to a much greater extent on a number of these issues, because, if I may say so, we are being asked to take on trust an enormous number of matters. I regret to say that experience of parliamentary life has taught me one thing; namely, that if one does not see the small print at the time one lives to regret that considerably afterwards. Nothing could be truer as regards this particular Bill.
My noble and learned friend has already said that he will conduct some pilot schemes on the information session. That is extremely important. We do not really know anything about who will conduct these sessions
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or what will emerge out of them. We do not really know anything much about the whole process of mediation except that one cannot make people go to mediation if they do not want it. We are being invited to take all these matters on trust. We need to see more detail. I am, of course, entirely in favour of the subsequent amendment, Amendment No. 162, of my noble and learned friend, which concerns research into marriage breakdown and grants to organisations to support marriage.
The right reverend Prelate the Bishop of Oxford will be pleased to know that I support his amendments, which I believe are valuable. Again, we need to know who is to do the counselling and what they will say when they give the counselling. I have supported what appeared to be sensible actions but which in the end did not square with what anybody expected. Therefore, it will be interesting to have more detail on that aspect.
The question of the code of practice on mediation seems to have arisen this evening for the first time. I have no objections in principle to such a code of practice, but it would be nice to know what it will contain.
I have two serious points to make. There is a need for reconciliation. I am flattered that anyone should think that I am being modest about the amendments. I am not a lawyer. I said to my noble and learned friend at the start of the proceedings that I would put down a number of amendments covering the same point because I hoped that one of them might be acceptable to him, or that if none of them were he would come forward with an amendment of his own. That would have been ideal.
I shall not argue about whether there should be a separate period for reconciliation and whether it should come first or later. We want to know how it will work. I am still very unclear about how mediation suddenly becomes reconciliation, which seems to be the view in the Bill. We shall need a great deal more information before the next stage of the Bill.
One point which emerges from this discussion is that if there is not to be a separate period for reconciliation, which is what I should like to see, that adds weight to the argument for extending the period of a year. I believe that most people are agreed that it ought to be extended. My noble friend Lord Perth made that point clearly, as others did earlier.
Page 2, line 37, leave out ("the appropriate declaration") and insert
("a declaration by the party making the application that
(i) having reflected on the breakdown, and
(ii) having considered the requirements of this Part as to the parties' arrangements for the future,
the applicant believes that the marriage cannot be saved.").
The noble and learned Lord said: I spoke to Amendment No. 22 with Amendment No. 18A. It makes clear what I wish this provision to state. The amendment is coupled with the fact that I have given notice that I do not wish Clause 6 to stand part of the Bill because I have altered Clause 4 to take account of that provision. I beg to move.
The noble and learned Lord said: I say at the outset that this is a probing amendment, moved in a spirit of genuine curiosity, although the Committee may observe that a probe can sometimes be an instrument of excision.
Our curiosity centres on the relationship between the statement and the application for an order of divorce. Clause 4(3)(a) provides that a statement may not be the basis for an application for divorce if the parties have jointly given notice withdrawing it. That is understandable. If each party has agreed not to rely on that statement then neither party should be permitted to say, "I didn't really give up my right to rely on the statement, I had my fingers crossed". That does not disturb us.
The subsection then goes on to say in paragraph (b) that even if the parties have given no such joint notice, the statement may not be the basis of an application if more than six months have passed since the earliest time when an application could have been made. I observe, first, that there have been those who say that that appears to admit of some ambiguity. Does it mean that the statement cannot be made the basis for an application more than 18 months after it was first madethat is, when it could have been made had there not been some impediment? Alternatively, does it mean that it cannot be made the basis for an application more than six months after all the requirements of Clause 2 have been satisfied? For my part, the natural, literal meaning seems to be the latter. I assume that what the provision means is that a party wishing to proceed to divorce will have been able to do so and there will have been nothing to compel them to wait for the further six months.
I understood what the noble and learned Lord the Lord Chancellor said in an earlier debate as to the need, where possible, to finalise the situation. Reflection cannot go on for ever, and uncertainty is not in the interests of anyone, least of all the children. But let us suppose that both parties need just a little more time for reflection, either in order to reflect on the arrangements for the future or to consider whether they want a divorce at all. They would have breathing down their necks the constraint that if they deferred their application a day beyond the statutory limit, they would need to file a further statement and to wait a further period of 12 months. It is not difficult to imagine circumstances which might cause them to wish for a little more time in order for some relevant situation to crystallise.
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In an earlier debate, the noble Lord, Lord Meston, gave some examples. The arrangements may depend upon whether a child of the marriage obtains a particular employment requiring the family to stay in a specific area or obtains admission to a specific school or university.
The provision imposes what may be a severe sanction. If the purpose is to encourage finality, if it is clear that no reconciliation is possible and the purpose is, for example, to protect the children from further uncertainty, then it may achieve precisely the opposite effect. The very child whose needs are in question could be visited with another year of uncertainty. As was observed in an earlier debate, when you are a child 12 months can seem a very long time.
It would be helpful if the noble and learned Lord the Lord Chancellor could tell us the reasoning behind the provision. Members of the Committee may then be able to judge whether the purpose is so important that it is worth the undoubted disadvantages of so rigid a provision. I beg to move.
Lord Meston: It may be almost churlish to suggest that, rather than over-grouping, there has been a little under-grouping. I believe that I can usefully say what I need to say about Amendment No. 27, which concerns the same provisions in Clause 4 as the noble and learned Lord, Lord Archer, has just addressed.
"An application may not be made under section 2 ... if ... a period of more than six months has passed since the earliest time when an application for a divorce order could have been made by reference to the statement".
It is hard to understand the justification for this blanket prohibition. As the noble and learned Lord suggested, it may not be easy to define in some cases exactly what is the earliest time that an application for a divorce order could have been made. If the parties have not yet managed to reach agreement but are still trying to do so, or the applicant is relying on the other spouse's obstructive behaviour as a reason why financial arrangements have not been made, does the 12 months run from the date of the application, or only when agreement is reached, or when the applicant decides to give up trying to reach agreement? The issue of when exactly a written agreement was reached is likely to be a very fruitful source of litigation.
While it is obviously undesirable that an application should be made years after it could have beenparticularly if there has been a reconciliation or attempted reconciliationit is hard to see why a couple who have not reconciled and have sorted everything out, but who fail through some inadvertence or apathy to go on to issue the application for a divorce, should go through the hollow charade of a further 12 months' reflection and consideration. Therefore Amendment No. 27 would provide that the period should be 12 months from the date when the period of reflection ended, with the court having a discretion to make an order after that date if it is satisfied, on a joint statement by the parties, that,
and that they should continue to regulate their future under those provisions. It is also necessary that there should have been no relevant child born and there has been no other significant change of circumstances that would make it inappropriate for the divorce to be ordered by reference to the original statement. This is a matter for further thought and clarification, as the noble and learned Lord, Lord Archer of Sandwell, suggested.
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