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The Lord Chancellor: As to the meaning of this clause, the earliest time an application for a divorce order can be made is provided for by Clause 7(1); namely, when the "period for reflection" has passed. Clause 7(1) defines that phrase precisely. It states:
"Where a statement has been made, a period for the parties ... to reflect ... to consider ... must pass before an application for a divorce order or for a separation order may be made by reference to that statement".
That is the phrase that is intended to be picked up in Clause 4(3)(b):
"the earliest time when an application for a divorce order could have been made by reference to the statement".
That is the intention of the clause. Now to turn to the reality—
Lord Archer of Sandwell: I am most grateful to the noble and learned Lord for giving way. It seems that my construction was wrong. I had assumed that the earliest date when an application could be made was when all the requirements of Clause 2 had been satisfied. Presumably, even if some of the requirements have not been satisfied, the six-month period runs.
The Lord Chancellor: Yes, that is the intention. It is reasonably plain, with all respect to the noble and learned Lord; the phrase is exactly the same one. But in a sense it makes more difficult the justification of the period on that basis.
The justification for "a period" is that it is important that proceedings are not allowed to drag on interminably, causing uncertainty for spouses and their children. The notice that says the marriage has broken down is intended to be an important one, and to be under consideration. It would not be right to allow that to drag on interminably. Nor would it be right that one party could hold, as it were, a Sword of Damocles over the other for an indefinite period just to enable one of the parties to rush for a quick divorce in the future, having laid the ground work, as it were, way back in the past and left the matter open to rush forward on the basis of such a statement as this without a time limit.
On the other hand, precisely what the time limit should be is a matter that requires consideration. That is the idea behind Amendment No. 27, tabled by the noble Lord, Lord Meston, and also the amendment in this grouping by my noble friend Lady Young, Amendment No. 27A which reads:
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It may well be that the period that we put forward, a total of 18 months, is too short. Certainly, so far as I am concerned, I believe that there could be some intermediate position. Amendment No. 27A goes for 18 months and we suggested six months. Amendment No. 27 from the noble Lord, Lord Meston, goes for 12 months. That seems to me to be an intermediate, and therefore possibly attractive, period on which to settle.
The principle of requiring some period is, I feel, reasonable. I also put in the Bill the power to extend the period in the light of experience. It has been suggested that that should be done by instrument in a slightly different form from the one that I proposed and I do not object to that suggestion. But, in the light of the considerations which I have received since the Bill was published, I believe that a period in the order of 12 months is appropriate here. If noble Lords allow me, I shall certainly consider bringing forward a government amendment to give effect to that at Report stage.
Lord Archer of Sandwell: The noble and learned Lord cannot say fairer than that. Perhaps I may say one word about the construction of this provision. I understand that it follows the wording of Clause 7(1). I should have thought that at least a possible construction of the words:
means the earliest time when all the necessary conditions have been fulfilled. Indeed, that was how I did construe the words. It may be that I was more than usually confused when I read the passage but it is a confusion shared with other members of the legal profession. It may be that the noble and learned Lord would like to reconsider this point before a great deal of time and money has been spent on litigating about it.
The Lord Chancellor: Most certainly. The noble and learned Lord said that he had read the passage in that way and I certainly wish to keep the proceedings as free from litigation as I can. As the noble and learned Lord knows well, it is not possible to be categorical about that but I shall certainly do my best.
Lord Archer of Sandwell: I am most grateful for that response. As to the merits of what we seek to achieve, I accept that there has to be some limit on the period before the application is made. One could not allow a statement to drag on for years and find years later someone waking up and saying, "I think I shall make an application for a divorce order." If the noble and learned Lord were minded to accept the suggestion of the noble Lord, Lord Meston, certainly I should not seek to dissuade him. This is clearly a matter on which we might all reflect further. I am most grateful for what the noble and learned Lord said. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Young moved Amendment No. 27A:
Page 3, line 1, leave out ("six") and insert ("eighteen").
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The noble Baroness said: In moving this amendment, I just want to ask a question for clarification. I recognise that my noble and learned friend suggested that in consideration of Amendments Nos. 26 and 27 he could possibly extend the time from 6 months to 12 months. I hope that I am correct about that. I beg to move.
The Lord Chancellor: Yes, indeed.
Baroness Young: In fact, my amendment, which suggests 18 months, would have the effect of extending to 30 months the maximum time to obtain a divorce based on one statement. I hope that I have the arithmetic right and that by suggesting 12 months instead of six, the period would be reduced to 24 months. So we are talking about a period of two years. I hope that I have understood that correctly.
Baroness Young: I thank my noble and learned friend. It is quite late at night. In following all those figures, I wanted to make sure, as they refer to more than one clause, that we had got them straight. I am pleased that the period of time has been extended. To that extent I welcome the indication. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Archer of Sandwell moved Amendment No. 28:
Page 3, line 7, at end insert—
("( ) Any statement made under this section shall specify whether the maker or makers of the statement wish to apply for a divorce order or a separation order.").
The noble and learned Lord said: Amendment No. 28 raises a simple point but one which occasions some anxiety to practitioners. Indeed, it caused the Law Society to express some concern. As the Bill is drafted, the statement does not need to specify whether the maker envisages a divorce or a separation. That is a matter to which your Lordships adverted in an earlier debate. Indeed, the noble Lord, Lord Meston, pointed out that the Bill does not seem to make clear the precise effect of a separation order. In the days when I practised under the old divorce jurisdiction—admittedly long ago—it used to be said that the effect of a separation order was that the parties could live apart without either being guilty of desertion. However, the concept of desertion is passing into history. As the noble and learned Lord, Lord Simon, indicated, the precise effect of a separation order may be the subject of a debate on Clause 18.
Amendment No. 28 is directed to a rather different question. The statement really initiates the proceedings as in the past a petition did or, in other contexts, a writ may. Presumably an important part of its function is to give notice to the other partner that the proceedings are about to begin and that that is what the maker of the statement intends to say to the court. In response to the noble Baroness, Lady Elles, in an earlier debate, the noble and learned Lord the Lord Chancellor explained that there were to be provisions for ensuring that it reached the other partner and that that was indeed part of its function.
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An important piece of information necessary to enable the other party to act appropriately is the remedy that is being sought. Without knowing what remedy the other partner has in mind, it is not easy to see how a party can decide whether to oppose the application, how to reflect on arrangements for the future, or how to react at all. The amendment does not permanently foreclose the options.
Clearly, the Bill envisages that a separation order may be converted into a divorce order. It may even be appropriate, though the Bill does not actually mention it, to permit of some flexibility by amending the statement if the court considers it just and convenient to permit it. That may well be what is in the mind of the noble and learned Lord in relation to the regulations. Surely any document initiating legal proceedings ought to make clear what relief is at present in contemplation. That is the purpose behind the amendment. I beg to move.
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