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Lord Carr of Hadley: I am a strong supporter of the principle of the Bill but I have one nasty niggle in my mind about it. It relates to the issue that has been touched on by the noble Lord, Lord Mishcon. Perhaps I may say to my noble friend Lord Wolfson that if I stood up firmly and did not sit down to let him speak first it was because on this point I wish to make what will be my only contribution to the debate.
If, like the noble Lord, Lord Stallard, I believed that the Bill made divorce easier I should oppose it. I do not believe that, first and foremost because it gets rid of that wretched thing the quickie divorce. In my view, one of the reasons why the quickie divorce was used so much was that the period of the other alternatives was so long. One of my reasons for supporting the Bill is that it gets rid of the quickie divorce.
I turn to the second reason and I speak not as a lawyer and, luckily, with no experience of dealing with divorce in my family, either close or distant. It seems to me that for the first time in our history we are seeking to put on the statute book a process which must be gone through before divorce can be obtained; which is designed to question whether the divorce is necessary by conciliation; and, if that fails, at least to ensure that before the point of divorce is reached the parties have made arrangements as to how to provide for themselves and, above all, for their young children. That seems to be a strong, positive case for the Bill.
My noble friend Lord Elton said that the provisions of Amendment No. 41 go to the heart of the matter. I want a period that is long enough to ensure that the processes of conciliation and mediation can be pursued to their utmost useful extent. Therefore, the period must be long enough. It is also my experience of life generally that too long a period takes away the urgency rather than adding to the urgency with which one goes about these matters. One cannot work out mathematically or logically any reasonable period. I cannot justify 12 months rather than six or 18 months. However, I have a feeling in my bones that 12 months is about the right period. It is long enough to do everything you have to do but it is not too long to make one say, "I am not going to be bothered with it" or "It is going to take so long that I have not the will or the energy to pursue it".
It is a matter of subjective judgment but I believe that 12 months is about the right time, provided we are sure that the machinery and the resources for conciliation and mediation are in place before the Act comes into operation. I was heartened by what my noble and learned friend said yesterday, that he was not in any hurry to bring the Bill into action so as to make sure that all the proper framework is there first. That being so, I believe that 12 months is right and I have to say with sorrow to my noble friend Lady Young--I think this is the first time over many issues that I have found
I do not want to sit down without drawing attention to the fact that my noble friend's amendment raises another issue. When dealing with a divorce on which both parties are going forward, the situation is different from a divorce where only one party wishes it and the other does not. I believe that situation requires a different period or, if not that, some different procedure. The noble Lord, Lord Mishcon, made his suggestion and, as a non-lawyer, I cannot really give an opinion about it, but I do want to add my urging to those of others to my noble and learned friend, that somewhere in this Bill we must take up the problem of the divorce when one party is asking for it and the other partner is not. I do not think the two cases can be or should be treated exactly the same.
Baroness Seear: I should like very strongly to support what the noble Lord, Lord Mishcon, has said. I am a very strong supporter of this Bill, apart from one reservation about the situation where one party, who is usually an older woman and who has probably been married to the man for a great many years, wishes to resist a divorce. That is a different situation from the others and it requires very careful consideration.
In Clause 10 there is surely the possibility of dealing more satisfactorily with this situation. If the divorce is stopped, in Clause 10, to meet the wishes of the partner who does not wish to divorce and if, after a period, it still is not working, it is very likely--not certain but likely--that the unwilling partner will come to the conclusion that there is no future in it. However, a longer time will have been given for them to work at it and the case will have been given a really fair trial. One knows that this happens. Very often, as has been said, men will fancy a younger woman for a period of time maybe. Then that passes and the man will come back to the woman to whom he has been married for a long time.
If you can use Clause 10, as the noble Lord, Lord Mishcon, has said, to give greater protection to the older woman in those circumstances who is resisting divorce, at least it will give her the chance of a fairer deal and it might lead to a decision not to divorce in the end, when the excitement of his second youth has passed and he returns to the woman he has been used to for all those years.
Lord Wolfson: I too share the view that one year is enough and therefore I support my noble and learned friend the Lord Chancellor and other speakers. Most of what is necessary has been said but I should like to make one or two points. First, obviously the circumstances leading to divorce are not always the same. This fact should be taken into account. You cannot have a blanket rule for such an emotional and sad issue. I think the length of marriage should be taken into account. In my own case I was married for 41 years before it was ended, and it was a sad thing to happen. Also, age is relevant. I was in my sixties at the time and had the opportunity--
I saw a film, as no doubt many of your Lordships have, called The War of the Roses, where the stresses and strains in a marriage ended up in the most horrific manner, with the participants either killing each other or committing suicide in a home which they could not share together properly. I think it is advisable to take account of all the views expressed here. One year seems to me to be right. There should be some allowance made for length of marriage, age, opportunities for resettlement and the fact of not having dependent children.
The Earl of Onslow: There is one more point which needs to be alluded to and that is this. Sometimes there have been cases of a marriage having broken down and one partner who, under the present law, could appear to be the innocent party has moral objections to divorce and will do nothing whatever to consent to it. However, for the sake of argument, let us assume that we all know of cases like this. The wife bends the husband's ear something rotten and finally he goes away; or he bends her ear and she goes away and he says, "I am not going to let you have a divorce". I may say that my religious beliefs do not allow me to do that. It seems to me that we should not always assume that the person who will not allow the divorce is being reasonable. I do not know whether that fact has been brought to your Lordships' attention but it happens in human affairs.
Baroness Macleod of Borve: We started this afternoon by talking about the children. To me the children are always paramount, and we have not mentioned them in discussing these amendments. I think that the longer the parents are unhappily together with children, and the children have to see it, the worse it is for the children as they grow up. Therefore, I would go along with my noble and learned friend the Lord Chancellor and have the one year, because of the children.
Lord Meston: As the noble Baroness, Lady Elles, said, it is not possible to generalise; but I tend to the view that parties for the most part begin the divorce process towards the end of a marriage which has been in trouble for some time. Your Lordships may take the view that in some cases one year is too short, but one thing I am clear about is that five years is too long. Under the existing law, surprisingly, divorces after a five-year separation are quite often those in which more acrimony and unhappiness are generated than in almost any other type of case. One party will not consent to the divorce and cannot or will not use grounds which may be available for some other form of divorce.
I ventured to mention on Second Reading one of the unhappiest divorce cases in which I have ever been involved. In fact, it was the wife who wanted to end the marriage. She had decided to go off after a very long marriage, but the husband would not divorce her. Rather stubbornly, he wanted to hold on to the marriage which had lasted for over 40 years. In the end, the wife brought a petition on the grounds that the parties had been apart for five years. However, the husband denied that they had been apart for that time. He said that it was a lesser period when the divorce petition was filed with the court. There then followed what was one of the most unhappy days that I have ever spent in a divorce court.
The bitterness and unhappiness of that couple was quite distressing to behold. In the end, the judge accepted the husband's case that they had not been apart for five years. Therefore, the husband did not get what he wanted--namely, his wife back--and the wife did not get what she wanted which was a divorce. They limped on with their future unresolved until eventually five years could be proved to have elapsed to the satisfaction of the court. I have to say that I left the court that day thinking that if only that couple had been seen by a professional mediator or counsellor at a much earlier stage, they probably would not have reached such a sad situation.
I suggest that the noble Lord, Lord Mishcon, has put his finger on the point. Rather than worrying about the period, we should be looking more constructively at what can be done for both parties either under Clause 10 or, possibly, by giving the court a discretionary power to extend the period beyond a year as is suggested in forthcoming amendments.
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