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Lord Phillimore: As a barrister practising in family law, I should like to support both amendments proposed by the noble Lord, Lord Meston. I wholly endorse all the comments that he has made and all the reasons that he has advanced in support of his amendments. I understand that the intention behind the first is to enable the courts to make an interim lump sum order, which they cannot at present easily or usually make; that is to say, to have the power to make a capital provision order in divorce or separation proceedings at an early stage.

There are often circumstances such as those that the noble Lord outlined and others where it would be possible to alleviate the tensions and hardships that often occur during the trauma of divorce proceedings if the courts had such a power. It would be for the benefit not only of the parties but, more important, for any children involved.

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For instance, in appropriate cases capital provision could be made for alternative accommodation for one of the spouses at an early stage. At present, the usual practice is not to make any capital provision orders until after such matters as the determination of any application in relation to such matters as with whom the children should live in the long term. That necessarily involves substantial delay before the courts can properly make capital provision orders. It has often been said that justice delayed is justice denied. That would, in my view, be true in such circumstances.

I consider that my point would also be valid under the new procedure proposed by the Bill whereby the parties should seek to resolve any disputes relating to child, children and finance in the period for reflection and consideration by mediation or, in the absence of agreement, by recourse to the courts. It would seem highly desirable that the courts should have available to them the power to make all appropriate orders at as early a stage as possible and to have wide enough powers to do justice between the spouses.

This leads me also to support the noble Lord's second amendment, since it would provide the courts with two valuable powers which they do not at present enjoy in making financial provision and property adjustment orders. As I understand it, the effect of the amendment would enable the courts, first, to mitigate hardship and injustice in cases where the provisions of the original order making capital provision have unforeseen consequences. Secondly, it would enable the courts to make a further capital provision order at some time later than the original order. At the present time, the law only enables the courts to make one property adjustment order and/or one lump sum order. This type of order can only be varied in very limited circumstances, when the courts have allowed the device of leave to appeal out of time to be used. This device is reflected in the proposed subsections (2A)(a) and (c), derived, I believe, from the leading case dealing with this exception from the general rule. Furthermore, this exception can only be used where the fundamental supervening event has occurred within about 12 months from the date of the original financial order. I suggest that it would be preferable to grant the courts the necessary wider statutory power by these amendments.

As for the second additional proposed power, the present law only enables the court to make one capital provision order and that cannot be varied save in the way that I have already stated. That is too restrictive, since circumstances may subsequently occur where it would be possible in the light of the financial resources of the parties to impose a clean-break order where it was not possible when the original order was made. It is clearly desirable that clean-break orders--a phrase used to indicate complete severance of all financial links between the parties--should be made wherever possible so that, among other things, new relationships, whether of cohabitation or marriage, do not suffer unnecessarily from the continuing stress of maintenance payments.

10.45 p.m.

The Lord Chancellor: Taking Amendment No. 199 first, my understanding is that the court does at present

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have an inherent jurisdiction to make such payments, but in rather limited circumstances. I think it is fair to say that the precise basis of the jurisdiction is a little uncertain.

My main concern regarding an amendment of this kind is that orders under it could restrict judicial discretion at the final hearing unless there are very substantial assets, which is when the court's inherent power would appear to be used at the moment.

I can, however, appreciate that a power of this kind might well be useful. Therefore, I propose to deal with it in the same way as I should like to deal with Amendment No. 206, which extends the power of the court in Section 31 of the Matrimonial Causes Act 1973 to vary or discharge property adjustment orders which settle property or vary settlements; and, secondly, gives the court power to make a property adjustment order or lump sum order where it considers it appropriate when it is dealing with an application to vary a periodical payments order.

In principle, in the interests of certainty and finality in litigation, property adjustment orders are once and for all orders. It is for this reason that only those which settle property or vary a settlement can be varied, and then only where they were made in the course of judicial separation proceedings and the decree is rescinded where an application for divorce is made.

I can appreciate that there are circumstances where, in the interests of justice, there may be grounds for making an exception to this principle. Accordingly, I wish to seek the opinion of the ancillary relief advisory group which we have in place in relation to these matters, advising about the whole procedure of ancillary relief, whether or not it would consider that amendments on these lines would be helpful. I should like therefore to consider these amendments and seek to obtain as soon as I can the advice of the ancillary relief advisory group.

Lord Meston: I am grateful to the noble Lord, Lord Phillimore, for his support. It is reassuring to have at least one other paid-up member of the Family Law Bar Association in the Chamber, even at this hour. I am also particularly grateful to the noble and learned Lord the Lord Chancellor for the indication that he will put this matter before the committee for further and, I hope, reasonably urgent consideration. On that basis, I am very happy to seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 199A to 199C not moved.]

The Lord Chancellor moved Amendments Nos. 200 to 203:

Page 43, line 22, at end insert ("but the court may not make more than one periodical payments order, or more than one order for payment of a lump sum, in favour of the same party.").
Page 44, line 11, at beginning insert ("On an application made under this section,").
Page 44, line 12, at end insert--
("(1A) If the court makes more than one property adjustment order in favour of the same party to the marriage, each of those orders must fall within a different paragraph of section 21(2) above.").

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Page 44, leave out lines 19 to 24.

The noble and learned Lord said: I spoke to these amendments with Amendment No. 197. With the leave of the Committee I should like to move them en bloc. I beg to move.

On Question, amendments agreed to.

[Amendments Nos. 203A to 203C not moved.]

Lord Clifford of Chudleigh moved Amendment No. 203D:

Page 45, line 23, at end insert--
(" . For section 25(2)(g), substitute--
"(g) the conduct of the parties and the cause of the breakdown of the marriage;").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 204A and Amendments Nos. 206A to 206F at the same time. I am most grateful to the Committee because I understand that certain of the points I raise may have been broached before.

My amendments are designed to remedy existing financial injustice in the divorce law. At present, before the courts will consider the conduct of any of the parties, the onus is on the applicant to show that the conduct is exceptional. In the words of the Matrimonial Causes Act 1973, as amended, it would be "inequitable not to consider it". Clearly, that is best done by permitting the court, when it assesses the financial provisions, to take into account the conduct of the parties and the causes of the breakdown of the marriage. I suspect that most people will agree that that is essential.

However, under the present law, conduct is all too frequently left out of account. I am told that in the case of Whiston v. Whiston (1995) Mr. Whiston had to go as far as the Court of Appeal at his own expense, before the court could be persuaded that his "wife's" bigamy was something which they should be concerned with when assessing what he should pay her. The respondent was legally aided so Mr. Whiston could not recover his costs and it was a great deal of money.

I was pleased to see that the noble Lord, Lord Habgood, so stated in his Second Reading speech, that in the settlements arrived at during the year of reflection, conduct ought to be considered. My Amendment No. 203D will ensure that that is achieved more satisfactorily than it is at present. The Committee may have noticed also the article referred to in the media and published in The Tablet by His Eminence, Cardinal Hume, in which he came to a similar conclusion. He said:

    "If one party does not want to divorce and sees themselves as the innocent party it is extremely important that they should not be penalised in any settlement. To this extent, at least, it is essential that immoral or unjust conduct should effectively be taken into account".

Amendment No. 204A prevents a party from claiming maintenance not only when they subsequently remarry, but also when they start co-habiting as if married. Without this, marriage will continue to be discriminated against by the divorce laws. Since mediation is meant to be the means by which financial settlements are achieved, one might ask in passing: who is to choose the mediator? Who is to train the one person who is to

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"divide the spoils" in a marital breakup? Surely, it would be wise to have a panel of at least three people. The body should include one who has experienced the trauma of divorce himself or herself; a child psychologist, if children are involved; and a lawyer trained in family law. This replacement for the present gallery of solicitors, counsel, accountants, asset assessors, etc., will be compelled by existing law to be subject to almost limitless acquisitiveness on the part of an applicant. That may often be the female spouse who is, more often than not, not the family breadwinner, nor usually the inheritor of capital assets nor the creator of those assets or of any income-earning business.

Members of the Committee may wonder how that will be so. I have to say that it is the law at present. The law with respect to financial settlements in divorce proceedings already works that way. A spouse may be turfed out of his house on false allegations. The other spouse will get de facto custody of the children thereby and may choose to invite a lover into the home. If the children are young the mother will get custody in the vast majority of cases. I doubt whether there are many lawyers who would dispute that.

If the children reside with the mother, she will then have need of the available accommodation and thus she will get the matrimonial home. She will get maintenance for the children and also for herself. The Child Support Agency will chase the father for child maintenance--and they can reduce him to just about the income support level. However, the father will not get any additional rights of access to his children, despite the financial asset-stripping which he will have had to undergo. Neither, more importantly, will the children get any greater rights to access to the father. That is a most important point which the social workers so often overlook.

Your Lordships may ask how this can be possible. The answer is this. No matter how flagrantly she may choose to ignore the order of the court defining the father's right to access, the likelihood of the court taking the children away from the mother and giving custody to the father is very slim. I think the Committee will begin to see that this can all have a shattering effect on the ordinary father. Yet there are many men who have suffered in this way. Some are not without fault; but many have done nothing wrong. They are just ordinary, regular husbands and fathers. But their lives are ruined. They have no home; no family. They cannot see their children except rarely when the mother allows; yet they have to pay, pay and pay. And they have to endure this cruel and unusual system of injustice until their children have grown up or have ended their fulltime education. That sometimes can be for the majority of the father's life. It is a sad fact that many of these fathers end up drifting away from their children, not because they want to--on the contrary.

A converse hardship can be seen in the case of older women whose children have grown up. She may be deserted by her spouse and her children have grown up, so she will not receive the usual lion's share of the family assets. However, what becomes of her selfless

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commitment to her marriage and her family? It is not a matter which the law directs the courts to be especially concerned about.

Our laws appear to be in the position where they reward the badly-behaved and they penalise the victims of such bad behaviour. That is the very paradigm of injustice. We should be deeply ashamed that our legal system has sanctioned it. We all agree that this is unsatisfactory, and we all agree that it needs reform. But it is an unfortunate fact that the Family Law Bill as currently drafted will not change this most unjust situation.

I have knowledge of a case where the wife successfully sued for a decree absolute, custody of the children, the family home and all her husband's income-earning assets within four years of the husband having inherited capital wealth. The husband was forced to borrow large sums of money to replace sums which were in effect stolen from his children's education fund and also in order to cover maintenance payments to his wife and huge legal fees that he had no option but to incur.

Unlike the situation described by the noble Lord, Lord Irvine of Lairg, on the 11th January (at col. 283 of Hansard), there was no proven fault in this case, and the respondent did not defend the case precisely because he was thinking of the children. This is not an unusual case. Similar cases occur regularly.

In defending the case, the husband recognised that the inevitable slanging match between the legal representatives, the parties and witnesses would be presented in open court. It would subject the children to harmful remarks at school or from those parochial newspaper readers who might gloat over the reports of the case.

That was not the only cause. I warmly urge the noble Lord, Lord Irvine of Lairg, to bear that in mind before he makes further pronouncements about "defence" and the guilty parties in cases of marital breakdown.

The respondent husband was assured by his legal advisers, in the knowledge that there is a tendency among members of the judiciary to favour the mother, that for every extra week that he might wish to pursue the case in court and attempt to protect himself and his children from allegations falsely made against him and from the process of asset-stripping that he was forced to endure, it would cost him a further £100,000 in legal fees. Truly a most unenviable choice: the devil or the deep blue sea.

Who are the winners in that situation? Certainly from the financial point of view the appellant wife was, and of course the lawyers were. Who were the losers? One loser was certainly the respondent father, who is still paying heavy interest payments on his large, enforced borrowings. But, above all, the losers were the children. The financial arrangements originally designed for the children's future went into the pockets of the legal representatives; the major part of the balance went to the appellant wife. But, most of all, the children lost the all-important stability of their home life--to be able to confer, to question both their mother and father at any time and under the same roof and to have the assurance

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of a reply which they would and could accept with confidence in the knowledge that behind it lay the completely committed love of a father and a mother.

That stability disappeared. Consequently, it affected the children's education, which, in turn, required a further financial outlay from the respondent father. It appears that the father is always responsible for the education fees of the children as he is the conventional breadwinner. Therefore, on top of his existing interest payments and debts, he must pay still more.

That situation is not confined to the very rich. It is typical throughout the wealth brackets--the rich, the moderately well-off and those substantially poorer in society. Neither is it an uncommon occurrence; it is standard. An appellant who may be almost entirely to blame for marital disharmony, and who may be suffering from or prone to a mental disorder and lacking in the proper responsibility, is nonetheless permitted equal choice as to where the children of the marriage are to be educated. That is so despite her having no financial obligation towards that essential, vital part of their young lives.

There are many complications in this field--the location of the school and the proximity of the school to the custodial parent as well as to the other parent. It is so complex that it seems unjust to expect the mediator to take the decision or to allow him to require the parties to do so at his behest. It is precisely the kind of situation arising within the mediation process which will undermine any glimmer of reconciliation.

My amendments would provide for adjustments in maintenance payments according to changing circumstances. For example, if the child is a day-school attender and then changes to being a weekly or full-time boarder, to ensure that justice is done to the parties involved in the marital break-up, the provider of the education fund should be relieved from part of the maintenance payment that he is currently making.

One particular phrase that strikes terror in the heart of any man whose wife wishes to divorce him is that she has the right to live in the manner to which she is now accustomed. She can make a claim on her former husband, even if it means near-ruin for him financially. How will the mediator cope with that terrifying concept which will be imposed on him by law? How will he be able to maintain a balance between the parties in treating with them? This ill-conceived parameter for financial justice between the parties is generally applied to the female spouse, depending on the financial status of the male spouse at the time of the grant of the divorce order. The beneficiary applicant, who prior to the divorce has had the benefit of help from the ex-partner's financial advisers and has in the past left money matters to her husband, may find that a sudden inflow of capital goes to her head. Sometimes she finds that the money is just blown. That can hardly be to the advantage of the children. It cannot set a good example of careful husbandry of resources.

There is no doubt that the flow of capital from the male to the female spouse--though occasionally it may operate in the reverse--is more the rule than the

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exception. No matter which spouse is the recipient of the capital flows and/or maintenance payments, the inclination to live off unearned wealth is often wasteful and a poor education of the children in financial matters. All too often it is financially crippling to the respondent husband, particularly if his resources are limited. The eventual result may be that he becomes yet another person who relies on the taxpayer for welfare payments. The social costs rise. The mediator is to be paid out of the Legal Aid Fund. If there are little resources within the family, one of the parties will end up relying on welfare. The taxpayer is to pay. Where is the saving?

If approved in its present form the Bill will justly earn the title of a lethal, merciless and punitive measure, both to the taxpayer who will have to pay and to the party who is divested of his assets, and the children will be denuded of their basic right to the love and care of a mother and father. I note in passing that the framers of this legislation enjoyed that right when they were themselves children but seem very unconcerned that children of this generation should be denied it.

The majority of taxpayers need stable married lives. Why should they be required to subsidise the folly of our current situation? It strikes me as yet another form of hidden taxation. It may be worth the expense if the benefits to the children are obvious, but there are none. Instead, there is much damage. If it were not for the fact that the nation was fed up with the creation of new regulatory monitoring bodies, I would suggest that the noble and learned Lord the Lord Chancellor initiate the creation of a legal watchdog, similar to those that currently cover the public utilities. I hope that cricket and tennis umpires will forgive me if I suggest the name "Offleg" or "Offcourt".

Let us take a more optimistic view. Is it beyond the wit of us all to make the essential reforms to redress the terrible injustices to which I have alluded? I believe that it is not, and I urge these amendments upon your Lordships. I beg to move.

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