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Lord Archer of Sandwell: Now that it is clear that we are debating all the amendments in the group, perhaps I may speak again and say a few words about Amendment No. 116, which is tabled in my name. I believe that I can spare the noble and learned Lord the Lord Chancellor some trouble in that respect. The amendment was tabled in consequence of what I am now satisfied was a misconstruction of the Bill. It was designed to put right a problem which does not exist.
Lord Hylton: I listened to the noble Lord, Lord Meston, and to my noble friend Lord Jakobovits speaking to their series of amendments with considerable sympathy. That was somewhat increased by the memory of a conversation that I had in Jerusalem nearly four years ago with a distinguished member of
Well, be that as it may, perhaps I may, as a complete layman in such matters and in no way a practitioner in such difficult areas, ask the noble and learned Lord the Lord Chancellor whether he will deal with the following question in his reply to the debate. In the event of the amendments in the names of the noble Lord, Lord Meston, and my noble friend Lord Jakobovits being accepted, can the noble and learned Lord say whether they would be undermined, and the ground cut from underneath them, by the series of amendments to which the noble Baroness, Lady Young, spoke?
Lord Simon of Glaisdale: I speak to my Amendment No. 100 which seeks to leave out the word "grave". The background was referred to by the noble Lord, Lord Irvine of Lairg, referring to my speech on Second Reading.
We now have divorce by unilateral repudiation on one year's notice. As I ventured to argue on Second Reading and earlier in this Committee, that is inherently liable to cause injustice to married women. A married woman in the situation described in the passage I cited from David Morrisey's book might well have--many have--sacrificed herself in the interests of her children, aged herself by bearing children and allowed her husband thereby to go out, to his economic advantage. Then, when he turned to somebody else--because his original passion faded and he was renewing it with somebody else--he could cast off his first wife. That is obviously a situation of injustice.
The provision in the Bill came into the law for the first time in 1969 in reference to divorce after five years separation. The sort of argument I put forward, and which has been put forward elsewhere in the debate, was then raised. The object of the 1969 Act was to facilitate divorce, in which it certainly succeeded. Therefore there was stern resistance to the removal of the word "grave" before "hardship" with the result that has been explained. It has been virtually a dead letter. Even financial hardship has been hardly used.
My amendment merely omits the word "grave". One asks why should any woman who has committed no fault at all but merely ceased to find favour in her husband's eyes--a husband who has preferred to cast his favours on another--be expected to suffer hardship before he is allowed to go on his way?
I prefer the amendment of the noble Baroness, Lady Hamwee, to which she has spoken. That amendment refers to "financial prejudice". Although I am attracted by the amendment of the noble Lord, Lord Irvine, I believe that the amendment in the name of the noble Baroness is preferable.
The test of hardship is an unsatisfactory one. It appeared in the Matrimonial Causes Act 1937--Herbert's Act--to which I referred earlier, which barred divorce for the first three years of the marriage.
The test proposed by the noble Baroness, Lady Hamwee, is very much easier for the court. Although it is true that judges are not paid to make easy decisions, they are more likely to be right when all that is required is a balance of financial advantage and disadvantage.
I regard Amendments Nos. 111A and 114A in the name of the noble Baroness, Lady Hamwee, which are drafting amendments, as improvements on the Bill and am happy to accept them. Therefore, when we reach them I shall be happy for the noble Baroness to move them and I shall advise the Committee to accept them.
I should like to have an opportunity to consider all of the other amendments. There are groups of subject matters. The subject matter of children is an important one. I want to take this opportunity to offer the Committee a very full account of the literature on children and divorce which I have had available to me. Since it is a comprehensive list of the literature it would be inadvisable for me to read it out now. Therefore, I shall offer a copy of the list to any Member of the Committee who asks me for it, either now or later, and I propose to place a copy in the Library.
At the invitation of my noble friend Lord Coleraine, I read from The Exeter Family Study earlier. One could read the whole report with profit, but there is a passage on page 54 relating to conflict which I should like to mention expressly. It states that,
I am content to consider the amendments as regards financial matters. I am anxious because I know that when one introduces a new phrase into the law it takes quite a long time before a settled interpretation is reached. Sometimes these matters arrive at your Lordships' House and, just occasionally, your Lordships' House having reconsidered what it said before may find it possible to improve upon its previous interpretation. Therefore I am not anxious, if I can avoid it, to introduce new phrases into the law. On the other hand, there has been some reference to phrases already in the Bill which could be used, and therefore it may be that some ultimate economy could be achieved by using one of those rather than having a variety of different phrases in different places in the Bill.
As regards the amendments moved by the noble Lord, Lord Meston, the noble Lord, Lord Jakobovits, and associated with the name of my noble friend Lady Young, this is a difficult matter. The reference is to impediments in the substantive amendment which states:
and so on. Obviously these are not impediments or barriers created by the general law. They are barriers of another type. I have been familiar with this problem almost from the time that I became Lord Chancellor and the noble Lord, Lord Jakobovits, came to see me about it; and I have received representations and have had meetings with a number of those concerned with these matters, including the noble Lord, Lord Meston, the noble Lord, Lord Mishcon, and others. Many have suggested to me more specific amendments. This is a carefully and very generally drafted amendment which in some ways makes it easier to consider incorporating it in the Bill because it does not refer to any specific difficulties.
Members of the Committee will appreciate that I am anxious not to create unnecessary litigation. One of the purposes of the Bill is to do what we can to reduce the risks to the relationship of parents with both their children as a result of divorce, and unnecessary litigation would be in conflict with that principle. Therefore I am anxious that if this hardship clause, the Clause 10 power--I call it that; it may be effected differently if one takes some of the amendments instead of the provision as drafted--is too wide, we may have absolutely unnecessary litigation. There is no point in simplifying one part of the system in order to produce complications in another. Subject to that, I shall consider the amendments carefully. That may be sufficient for present purposes.
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