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Lord Clifford of Chudleigh: I am grateful to the noble Lord, Lord Coleraine, for introducing the Committee to the fact that amendments listed in my name, beginning with Amendment No. 197A, are associated with the question of whether Clause 14 shall
Under paragraph 4 of Schedule 2 of the Bill as drafted, as the noble Lord, Lord Coleraine, said, the parties can apply for financial orders before the mediation period even begins. Clearly that cannot be right. That is totally at variance with the attempt by a civilised society to support marriage.
The effect of the Bill would be to enable orders dealing with maintenance and matrimonial homes to be made before the period for reflection and consideration even begins. Maintenance and lump sum orders may be obtained at any time after the filing of a statement of the breakdown of the marriage; that is to say, at the very start of the divorce process. Orders giving the matrimonial home to one of the parties may, in special circumstances, be made at any time after the filing of a statement of breakdown; again, at the very start of the divorce process.
We are rightly concerned about "quickie" divorces. But Schedule 2 will give us the "superquickie" divorce. It means that a divorce in all but name may be obtained within weeks rather than months, still less the 12 months claimed. The parties concerned may not be allowed to remarry for 12 months, but in every other way the divorce settlement will have been sewn up. That surely defeats the purpose of mediation and pays lip service to the chances of achieving any reconciliation.
How does that save saveable marriages, which we are told is one of the purposes of the Bill? I am told by lawyers that once the matrimonial home is settled or transferred, then reconciliation becomes highly unlikely. Do we or do we not want to save marriages? How can we allow the possibility of a superquickie divorce? Under the present law financial and property orders are made after a decree nisi but are not carried into effect until after the decree absolute. The wrangling in divorce settlements takes place between the two decrees.
Perhaps I may say in passing to the noble and learned Lord the Lord Chancellor that the statistics he cited on Tuesday showing that only 15.9 per cent. of divorces involving children under 16 are obtained in less than 6 months is nothing like the figure of 75 per cent. that some have bandied about. I believe that only 32 per cent. of all divorces take place within six months. Under Schedule 2, orders can be made at any time after the statement of breakdown. The court does not have to wait for the divorce order. One can quickly see that that is a significant change in the present law where the court has to wait until the decree absolute.
Let us consider the following scenario. A wife wishes to divorce her husband. Her solicitor writes to him asking him to agree a settlement. He also adds that an appointment has been made before the judge in 28 days time to invite the judge to make an order moving the husband out of the home. That could arise under Part III of the Bill. The husband may agree so as to buy time. The wife can lodge a statement of breakdown on day one and, shortly after, the solicitor may obtain an early appointment before a judge and is able to present the
My amendments are designed to face that problem. Specifically, Amendments Nos. 197A, 197B and 203A ensure that orders cannot be made by the court until after the period of mediation has ended and cannot take effect until the divorce order is made or the separation order comes into effect. The amendments are designed to make the mediation year effective and to give reconciliation a reasonable chance. That should also help the innocent party and the party that does not wish to divorce. In particular, it will eliminate the superquickie assets splitting which the Bill will otherwise introduce under Schedule 2. I hope that the noble and learned Lord the Lord Chancellor will see that it is an area of the Bill which requires careful review and amendment.
Baroness Young: I wish to speak briefly in support of what my noble friend Lord Coleraine said on Clause 14 stand part and also because the amendments spoken to by the noble Lord, Lord Clifford, are obviously relevant to it.
As I understand the position, Clause 14 and Schedule 2 make fundamental changes in the law as it now stands. Financial provision orders by the court--that is, those that require the payments of large lump sums--can be made at any time after the statement of marital breakdown. In certain special circumstances property can be reallocated before the divorce. That has a number of implications of a serious character. For example, asset splitting can technically start on day two--a point made by the noble Lord, Lord Clifford, in his remarks. That could well lead to irreversible court orders within three months.
Without wishing to repeat all the arguments, that appears to run contrary to the principle of the Bill that there should be a year for reflection and consideration. Court orders for lump sum orders or property adjustments make reconciliation unlikely, if not impossible. I believe it to be true that such orders set the divorce in concrete long before the divorce order actually comes through. In other words, although the legal permission to remarry only comes with divorce under the Bill, all the practical arrangements can be set up well before the divorce order and very soon after the initial statement.
As was pointed out, that is a "superquickie" divorce and cuts right across what I understand my noble and learned friend seeks to do in the Bill. That is a point I recall my noble friend Lord Coleraine raising at Second Reading or perhaps at an earlier stage at the Committee. It is important and although no amendment has been tabled in that regard I hope it is a point that my noble and learned friend will address.
Lord Elton: I rise now for the avoidance of confusion later on. I notice that Clause 14 stand part is a group on its own; that the amendments to which the noble Lord, Lord Clifford of Chudleigh, was speaking
The Lord Chancellor: I am quite content to deal with those amendments at any time, but I certainly do not want to deal with the same amendments twice if I can possibly avoid it. It is a question of what the noble Lord, Lord Meston, wants to do with his amendment. The noble Lord, Lord Clifford, has tabled a number of other amendments which may bear on the same matter. Perhaps the noble Lord, Lord Meston, will indicate what he wants to do and I can then deal with the points that have already been made--that is, unless the noble Lord would like to leave it until later.
Lord Meston: It was not entirely clear to me to which of his several amendments the noble Lord, Lord Clifford, was speaking. When I have caught up with that point, I shall perhaps be able to give a clearer indication.
Lord Clifford of Chudleigh: Perhaps it would be easier if I listed the amendments which I should like to have included in my last speech. I refer to Amendments Nos. 197A and 197B, 199A to 199C, and 203A and 203B. I know that some of those amendments may not be entirely relevant to a Clause 14 stand part debate, but the Bill is so intricate that all of our amendments are in some way interrelated. I hope that the Committee will understand why I spoke as I did, especially given that the noble and learned Lord the Lord Chancellor has said that he does not want to deal with the same subject twice or three times this evening. Perhaps I may help the noble and learned Lord by advising him that I intend to speak later to the second group of amendments which stand in my name, that is, to Amendments Nos. 203D and 204A.
Baroness Trumpington: I wonder whether the noble Lord, Lord Clifford, has a copy of the groupings. Quite frankly, I was totally lost when he was speaking to amendments which are practically at the end of that list. Naturally, it is up to my noble and learned friend the Lord Chancellor to decide whether he wants to answer those amendments now, but we certainly do not want to go over the same ground twice. When it comes to the noble Lord's other amendments, perhaps I may suggest that he sticks to their place in the groupings and does not confuse the Committee.
Lord Meston: May I respectfully agree with the noble Baroness. It seems entirely appropriate to deal with Amendments Nos. 197A and 197B now because they deal with the important point raised by the noble Lord, Lord Coleraine, and the noble Baroness, Lady Young, about the timing of the application of the order as compared with the timing of the divorce. I suspect that the other amendments in the name of the noble Lord, Lord Clifford, cover other ground, as do my amendments, Amendments Nos. 199 and 206. Frankly, I should prefer to deal with them in their correct place.
Having said that, I do not want to follow the noble Lord, Lord Coleraine, and others down the path which was addressed at the beginning of this debate. However, I should like to take this opportunity of a debate on Clause 14 stand part to express some concern about the structure of Schedule 2. That concern relates more to the technicalities of the drafting than to the substance of the provisions. The main object of Schedule 2 is stated in Clause 14(2)(a) as,
From a drafting point of view the essential problem seems to be that provisions which fall at present in a single subsection of the Matrimonial Causes Act become three subsections in this Bill. As there are no substantive changes to the law relating to financial provision or property adjustment, that makes me wonder whether it might not have been better to try to make the minimum alterations that are necessary to the Matrimonial Causes Act in order to achieve the same object. I do not find that redrafting user-friendly. Of course, it may be that I lack familiarity with the Bill as drafted and that practitioners such as myself are too familiar with the existing provisions. However, I find the new provisions complicated and dense and wonder why they have been drafted in that way.
I have not presumed to table an amendment at this stage, but I wish to reserve the right to do so on Report. It must have been possible--I imagine that it was contemplated--to have redrawn the existing provisions of the Matrimonial Causes Act in such a way as to produce something which made far less change to the existing statutory structure and to have reproduced that amended structure in the Bill, possibly by way of a Keeling schedule to show how the provisions would look if amended in that way. I wonder whether we should look more fundamentally at the drafting of Schedule 2 to see whether this might be done differently.
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