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Lord Jakobovits: I indicated in my speech at Second Reading that an amendment would be moved to try to overcome what has proved to be a very grave cause of distress and therefore should invoke the hardship bar in a very specific way. During our detailed discussion of the Bill I intimated that an amendment to that effect would be moved in Committee. I am most grateful to the noble Lord, Lord Meston, for having drafted as well as presented this amendment. We have consulted a number of other legal, rabbinical and communal experts to whom we are immensely grateful for their efforts to find a solution to what is at present still an agonising problem.

The need for this amendment arises from a strange anomaly in the law as it stands. The Marriage Act 1836, followed by all subsequent Acts, right up to the latest one in 1949, includes the following provision:

That is the wording of a law that has now existed for over a century and a half.

In other words, the civil law expressly recognises a synagogue marriage as legally valid, and no separate civil marriage is required, such as is required in some other countries, for example, in France where I was married and where I had to go through a separate civil marriage ceremony in the Mairie or the town hall. Here, the state accepts the synagogue ceremony as constituting both the religious and the civil bond between the parties.

Yet in dissolving that dual bond by divorce, the law requires only the civil contract to be revoked while leaving the religious bond intact. If thereafter one of the parties remarries, content with just a civil divorce, the other spouse, who may regard the religious marriage as still valid, cannot remarry until a religious divorce is obtained; and if the first party refuses that, the second may remain what we called "chained"--that is, tied in a limping marriage, unable to be released until the religious bond is severed. That can lead to either lifelong loneliness or to blackmail and extortion.

That situation can affect either spouse since the termination of the religious bond requires the consent of both, just as the marriage contract can be established only with the agreement of both sides. In fact, I am informed by the Jewish authorities dealing with that situation in this country that at present about one-third of the "chained" spouses are men and that two-thirds are women.

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The law in question is not ordained by rabbis, but is biblical. The relevant verse, verse 2 of chapter 24 of the Book of Deuteronomy, reads:

    "and he shall write for her a deed of divorcement and give it in her hand",

and no rabbi is authorised to cancel or to override any biblical law; nor can a contract in principle be terminated except by the parties who established it.

The problem is not due to any anomalies in Jewish law. Were we to have exclusive jurisdiction in matrimonial matters, there would be no difficulty since, in general, we would merely refuse to administer a divorce which does not enable both parties to remarry. It is hoped therefore that the proposed amendment will achieve that amelioration of unspeakable hardship occasionally resulting from the law as it stands.

Finally, the Committee may be interested to know that similar legislation has recently been introduced in several other countries and states, such as the USA, Canada, South Africa and Australia.

10.30 p.m.

Lord Archer of Sandwell: Since I adverted to this matter on Second Reading, I intervene merely to say that I support every word that has come from the noble Lords, Lord Meston and Lord Jakobovits. I think that the noble and learned Lord the Lord Chancellor indicated on Second Reading some sympathy with what was said on this issue. I therefore do not propose to trouble the Committee further.

Lord Simon of Glaisdale: My recollection of the history of matrimonial law is that marriages of Jews and Quakers have always been outside the main code. They were exceptions when all marriages had to be in a church or chapel of the Church of England. They remained outside when, in 1836, marriages in register offices were recognised. They were always exceptional. It seems to me that an exceptional case has been made out here.

Baroness Hamwee: I have three amendments in this group. I do not intend to move Amendment No. 10l which, in drafting, was linked with amendments we debated and disposed of earlier.

I hope that does not detract from the serious points on this clause which have been made and with which I associate myself. Amendments Nos.111A and 114A have been tabled merely to explore the difference in wording between subsections (2) and (3). In one case there is a reference to the "dissolution of the marriage" and "the marriage to be dissolved", and in the other to "dissolving the marriage" and "to dissolve the marriage". They are different words. I am interested to know the difference imported by them.

Baroness Young: I thought that it might be for the convenience of the Committee were I to speak to my amendments which are grouped with Amendment No. 98; that is to say, Amendments Nos. 99, 104, 106, 108 and 115. This is an important group of amendments. The amendments deal with the hardship bar. Of course the present law includes special safeguards in the case

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of an innocent spouse who does not want a divorce: first, five years' separation; and, secondly, there is a bar where there would be grave financial or other hardship, and where, as I understand it, in all the circumstances it would be wrong to dissolve the marriage.

As I understand it, some 6 per cent. of divorces are granted on the basis of a five-year separation, but in 25 years the hardship bar has been accepted only once, and that was based on grave hardship. There have been few reported cases on financial hardship. The purpose of all the amendments is to strengthen the bar and to help resolve the situation.

I have received advice from Dr. Cretney of All Souls College, Oxford who has written to me to explain why the hardship bar has not operated. I am sure that my noble and learned friend will be well aware of the legal reasons.

It is so important that the hardship bar should work and help that I have tabled this series of amendments. I support the amendment moved by the noble Baroness, Lady Hamwee, which covers the same point. My Amendment No. 99 gives a safeguard to a spouse who does not consent to a divorce. On application to the court an order can be made preventing a divorce for a period of two years. Amendments Nos. 104 and 105 bar on grounds of grave hardship to the children of the marriage. Amendment No. 108 extends the hardship bar, taking in the welfare to children. It also bars divorce on the basis of conduct, loss of financial benefits or impediment to a career. Amendment No. 115 substantially strengthens the hardship bar. The proposed subsection (3)(a) sets out the circumstances in which a divorce could be barred. Those circumstances are where a divorce would be prejudicial to the interests of children; where one spouse suffers from ill-health or disability or injury; where divorce would be contrary to the religious beliefs of one of the parties to the marriage; and where one of the parties seeks a further period of conciliation.

At this late hour I will not go at length into all of those matters but I hope that my noble and learned friend will consider them. I believe that this is a most important part of the Bill which, apparently, has been previously inoperative. There are a number of amendments, none of which may be quite right. I believe that the amendment of the noble Baroness, Lady Hamwee, covers the same point. It would be helpful if my noble and learned friend were prepared to look at the appropriate safeguard to put into this part of the Bill.

Lord Irvine of Lairg: I believe that it comes naturally within this rag-bag of amendments, if I may put it that way, for me to speak to Amendment No. 102, which stands in my name, immediately after the noble Baroness, Lady Young, has spoken to the amendments standing in her name. Even at this late hour it gives me particular pleasure to be able to make what I regard as substantial common cause with her on this issue. I certainly join with her in inviting the noble and learned Lord to consider the way in which the hardship

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provisions currently work. The purpose of my amendment is to make a specific proposal in that regard with a view to strengthening them.

As I have indicated, I do not shrink from the proposition that divorce should be made harder to obtain where justice requires that to be so. What I have suggested in Amendment No. 102 is the taking out from the current Bill of the statutory language indicated and the insertion of the new language:

    "significant detriment to the welfare of any child of the family; or ... serious prejudice to the other party".

The noble and learned Lord may say that that is to no purpose because the same position obtains under the present law--that is to say, under the Matrimonial Causes Act 1973. The words which I suggest should be taken out of Clause 10(2)(a) and replaced by the words in this amendment are the very language of the present statute. I am suggesting the removal of the language of the present statute.

However, I believe that my intelligence is the same on this subject as that of the noble Baroness, Lady Young. I invite the noble and learned Lord to consider that that might be precisely the mischief that needs to be eradicated. It is the mischief in the current statutory provision, the current statutory language, which is carried into the Bill. All the intelligence that I have is that the current statutory language has proved to be something of a dead letter.

If I may remind the noble and learned Lord, Lord Simon of Glaisdale, who I am sure needs no reminding, of what he has said on any previous occasion in our discussions on this Bill, he observed on Second Reading (at col. 748 of Hansard) that it is only once since 1970 that the court has invoked that statutory provision and has withheld divorce on that ground. There may be a very small number of examples, but I understand them to be infinitesimal. What the noble and learned Lord, Lord Simon of Glaisdale, said on Second Reading accords with what family law practitioners have told me.

Basically, the courts have construed the present hardship provisions on the basis of asserting a public interest in dissolving marriages which have become an empty shell and have in effect disregarded grave financial hardship as a ground for not dissolving marriage. In Mathias in the Court of Appeal, a woman argued that her marriage should not be dissolved because she would lose an army and a state widow's pension. The Court of Appeal held that there was a public interest in dissolving marriages which had become an empty shell and that the prejudice she alleged did not qualify as "grave financial hardship". Therefore the purpose of this amendment is simply to offer a suggestion to the noble and learned Lord for his consideration.

The primary provision in the Bill is that concluded arrangements for the future must be in place before the court can order divorce. That is Clause 2(1)(c). The arrangements are those set out in Clause 9 but that is wisely made subject to exceptions in Clause 9 (5), and the relevant exception is at page 38 in Schedule 1 at paragraph 2(d). It is from that language that I am borrowing for the suggestion that I make in this

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amendment. Even although there are no concluded financial arrangements after the expiry of the year for reflection and consideration, still the court may grant a decree if a delay in granting a decree either,

    "would be significantly detrimental to the welfare of any child of the family,"--

I think that accords with one of Lady Young's concerns--or,

    "would be seriously prejudicial to the applicant".

That is the criterion for overriding the basic requirement that no divorce should be granted until financial arrangements are concluded.

The suggestion that I offer the noble and learned Lord, since my intelligence accords with that of the noble Baroness, Lady Young, that the current provision has become something of a dead letter, is that we should adopt as the relevant criterion for denying a divorce after expiry of one year the same criterion as I have described for overriding the basic requirement that no divorce should be granted until financial arrangements are concluded; namely, the detriment to a child or prejudice to the other party.

The reason for incorporating the language of Schedule 1, paragraph 2(d) into Clause 10(2)(a) in substitution for the existing statutory language is that Parliament should make its will plain to the judges; namely, that it desires the same test to be applied in these undoubtedly exceptional but cognate situations. That is, the criterion which the Bill lays down for permitting a divorce to go through after expiry of the year for reflection and consideration although financial arrangements are not in place. The criterion is the prevention of detriment to the welfare of a child or prejudice to an applicant. That likewise should be the criterion for withholding a divorce although the year has expired. Again, in that situation, the criterion should be the prevention of detriment to the welfare of the child or prejudice to the other party. All the intelligence that I have received is that the previous statutory formula does not achieve its intended effect in practice. Therefore, I offer the suggestion that I have just explained to the noble and learned Lord.

10.45 p.m.

Baroness Elles: In view of what the noble Lord, Lord Irvine of Lairg, and indeed my noble friend Lady Young have said, perhaps I may speak briefly to Amendment No. 115A which is tabled in my name. I believe that there is very little difference between us. My amendment very much accords with the views expressed by the noble Lord, Lord Mishcon, earlier this afternoon. He said that there would be certain special considerations which could be dealt with in Clause 10, especially in those cases where one of the parties did not consent to a decree of divorce.

As the noble Lord, Lord Irvine of Lairg, and my noble friend Lady Young have indicated, there are certain justifiable reasons which could be taken into account by the court whereby discretion could be used to decide whether there should be a decree preventing the order

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of divorce or, alternatively--following Clause 10(3)--whether there should be an application for the cancellation of an order preventing a decree of divorce.

My amendment does not seek to delete those provisions in subsections (2) and (3), but proposes to add to the clause the provision that,

    "For the purposes of subsections (2) and (3)",

certain circumstances should be included and taken into consideration. They are not exhaustive, but they could be included. The first is,

    "the welfare of the children of the marriage",

to which the noble Lord, Lord Irvine, has already referred. I have then included,

    "the conduct of the parties",

where there might be specific circumstances. Again, I shall not go into detail tonight because I think such matters have been fully discussed during the course of our debates. However, that really refers to the kind of thing where it would be very harmful either for the children, or impossible for one of the parties, to go through a divorce at that particular time. Finally, I have inserted the consideration of,

    "the loss of any financial benefit, or benefit in kind".

One could perhaps imagine a situation where someone is taking a course of education in order to further a career and the prospect of a divorce at that particular time could, in fact, damage the possibility of that person continuing for, say, three months, six months or whatever it might be. Such a provision would allow for a decree to be delayed.

I referred to the question yesterday of whether it is better for children to be in a home of high conflict rather than be in a one-parent family or with step-parents. In that respect, I have added a rider to my amendment that,

    "in the absence of clear evidence to the contrary by [them] remaining under the care ... and control within the marriage of their two natural parents".

Of course, that provision would not be enforced. However, it would be something that the court could take into consideration where it is clear that the children would benefit and prefer to be with their parents; and, indeed, where the parents could come to an agreement at that stage of the proceedings. It is not an obligatory condition; it is a provision that the court would be free to take into account.

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