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A noble Lord: My Lords, will the noble Baroness give way?

Baroness Hollis of Heigham: My Lords, I am in the hands of the House. On taxation, again we have repeated the argument that we had with the noble Lord, Lord Elton. The Government have not challenged the fact that, on the Treasury's own figures, in the year 2020 the loss to tax revenue of £80 million is precisely offset by the overall savings on income support and court costs. That is 25 years on. I honestly ask your Lordships whether it is reasonable to damn this amendment not by what it may be like in 25 years' time but by what it may be like in 40 years' or 50 years' time, as though the tax law and the benefits law have not changed.

The Government said that this amendment would give privilege to divorce over marriage. I do not think any of us believes that this would produce bogus divorces. In any case I have to remind your Lordships that the Government have already accepted that justice. No one is saying that married couples should be treated as though they were not married. Let me remind your Lordships that as regards state old age pensions the husband gets £59 on his stamp. His wife gets a further £35 as his dependant. If they separate--let alone divorce--he still gets £59 on his stamp and she also gets £59 on his stamp. The Government have built into their pension the very principle of pension splitting that they are denying to occupational funded schemes. The Government do that--and they are quite right to do it--because they recognise that after divorce people are poorer and we all have a public policy interest in trying to make sure that people face old age with dignity.

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Finally, I want to quote a letter from the Mothers' Union. It says that the union expresses,

    "support for the inclusion of pension splitting as part of the divorce settlements in family law. We believe strongly in the uniqueness and importance of marriage as a lifelong commitment and responsibility. Marriage breakdown and divorce must always be a tragic outcome. However, our objectives always include a deep commitment to helping those whose family life has met with adversity. In consequence, the creation of an equitable settlement, that is pension splitting, is a necessary principle in divorce".

The Mothers' Union is urging us to accept this principle today. It is saying, "Please do not lose that opportunity". It is fair, it is decent. It need cost the taxpayer nothing at all, but it will enable wives and mothers to face old age with dignity. It is an amendment about justice and about honour and we can make that decision tonight. I hope that your Lordships will support this amendment and I should like to test the opinion of the House.

5.14 p.m.

On Question, Whether the said amendment (No. 10) shall be agreed to?

Their Lordships divided: Contents, 178; Not-Contents, 150.

Division No. 1


Acton, L. Addington, L. Allenby of Megiddo, V. Archer of Sandwell, L. Ashley of Stoke, L. Attlee, E. Bancroft, L. Beaumont of Whitley, L. Berkeley, L. Birk, B. Blackstone, B. Boardman, L. Borrie, L. Boyd-Carpenter, L. Brightman, L. Broadbridge, L. Bruce of Donington, L. Butterfield, L. Callaghan of Cardiff, L. Carmichael of Kelvingrove, L. Carter, L. Castle of Blackburn, B. Chandos, V. Chapple, L. Cledwyn of Penrhos, L. Clinton-Davis, L. Cocks of Hartcliffe, L. Cornwallis, L. Craig of Radley, L. Craigavon, V. Cuckney, L. Darcy (de Knayth), B. David, B. Dean of Beswick, L. Dean of Thornton-le-Fylde, B. Denman, L. Derwent, L. Desai, L. Diamond, L. Dixon-Smith, L. Donaldson of Kingsbridge, L. Dormand of Easington, L. Dubs, L. Eatwell, L. Elis-Thomas, L. Falkender, B. Falkland, V. Farrington of Ribbleton, B. Fisher of Rednal, B. Fitt, L. Freyberg, L. Gainsborough, E. Gallacher, L. Gardner of Parkes, B. Geraint, L. Gilmour of Craigmillar, L. Gladwin of Clee, L. Graham of Edmonton, L. [Teller.] Grey, E. Griffiths of Fforestfach, L. Habgood, L. Halsbury, E. Hamwee, B. Hanworth, V. Harris of Greenwich, L. Harrowby, E. Haskel, L. Hayhoe, L. Hayman, B. Hayter, L. Healey, L. Henderson of Brompton, L. Hilton of Eggardon, B. Hollick, L. Hollis of Heigham, B. Howell, L. Hutchinson of Lullington, L. Hylton, L. Hylton-Foster, B. Iddesleigh, E. Ilchester, E. Irvine of Lairg, L. Jakobovits, L. Jay of Paddington, B. Jenkins of Putney, L. Judd, L. Kennet, L. Kilbracken, L. Lawrence, L. Lester of Herne Hill, L. Lichfield, Bp. Lockwood, B. Longford, E. Lovell-Davis, L. Macaulay of Bragar, L. McCarthy, L. McGregor of Durris, L. McNair, L. McNally, L. Mallalieu, B. Mar and Kellie, E. Marsh, L. Mason of Barnsley, L. Merlyn-Rees, L. Meston, L. Methuen, L. Milne, L. Milner of Leeds, L. Mishcon, L. Monckton of Brenchley, V. Monkswell, L. Montgomery of Alamein, V. Moran, L. Morris of Castle Morris, L. Napier and Ettrick, L. Nicol, B. Northbourne, L. O'Cathain, B. [Teller.] Oliver of Aylmerton, L. Oxford, Bp. Park of Monmouth, B. Pearson of Rannoch, L. Pender, L. Peston, L. Prys-Davies, L. Redesdale, L. Renwick, L. Richard, L. Robertson of Oakridge, L. Robson of Kiddington, B. Rochester, L. Rodgers of Quarry Bank, L. Roskill, L. Runcie, L. Runciman of Doxford, V. Russell, E. Ryder of Warsaw, B. St. Davids, V. Sandwich, E. Seear, B. Sefton of Garston, L. Serota, B. Sewel, L. Shannon, E. Shepherd, L. Simon, V. Simon of Glaisdale, L. Smith of Gilmorehill, B. Stallard, L. Stedman, B. Stoddart of Swindon, L. Strabolgi, L. Strafford, E. Strange, B. Taverne, L. Taylor of Blackburn, L. Tebbit, L. Tenby, V. Terrington, L. Thomas of Walliswood, B. Thurlow, L. Tope, L. Turner of Camden, B. Walpole, L. Walton of Detchant, L. Warnock, B. Weatherill, L. Wedderburn of Charlton, L. Whaddon, L. Wharton, B. White, B. Wigoder, L. Williams of Elvel, L. Williams of Mostyn, L. Wilson of Tillyorn, L. Winston, L. Worcester, Bp. Young, B.


Aberdare, L. Addison, V. Ailsa, M. Aldenham, L. Aldington, L. Ampthill, L. Archer of Weston-Super-Mare, L. Astor of Hever, L. Barber, L. Belhaven and Stenton, L. Bethell, L. Birdwood, L. Blake, L. Blaker, L. Blatch, B. Bowness, L. Brabazon of Tara, L. Braine of Wheatley, L. Brentford, V. Brougham and Vaux, L. Burnham, L. Butterworth, L. Cadman, L. Campbell of Alloway, L. Campbell of Croy, L. Carnegy of Lour, B. Carnock, L. Chalker of Wallasey, B. Chelmsford, V. Chesham, L. [Teller.] Clanwilliam, E. Clark of Kempston, L. Clifford of Chudleigh, L. Cockfield, L. Coleraine, L. Coleridge, L. Colwyn, L. Courtown, E. Cranborne, V. [Lord Privy Seal.] Crickhowell, L. Cross, V. Cumberlege, B. Darnley, E. Daventry, V. De Freyne, L. De L'Isle, V. Denham, L. Denton of Wakefield, B. Eden of Winton, L. Ellenborough, L. Elliott of Morpeth, L. Elton, L. Erne, E. Exmouth, V. Faithfull, B. Feldman, L. Ferrers, E. Finsberg, L. Fraser of Carmyllie, L. Gainford, L. Geddes, L. Gisborough, L. Glenarthur, L. Goschen, V. Gowrie, E. Gray of Contin, L. Hailsham of Saint Marylebone, L. Hambro, L. Harding of Petherton, L. Hardwicke, E. Harlech, L. Harmar-Nicholls, L. Harmsworth, L. Harris of High Cross, L. Harris of Peckham, L. Harvington, L. Henley, L. Holderness, L. Hooper, B. Howe, E. Inchcape, E. Inglewood, L. Johnston of Rockport, L. Kenilworth, L. Kenyon, L. Killearn, L. Kimball, L. Kingsland, L. Kinnoull, E. Lauderdale, E. Lindsay, E. Lindsey and Abingdon, E. Long, V. Lucas, L. Lyell, L. McColl of Dulwich, L. Mackay of Ardbrecknish, L. Mackay of Clashfern, L. [Lord Chancellor.] Mackay of Drumadoon, L. Macleod of Borve, B. Mancroft, L. Merrivale, L. Mersey, V. Miller of Hendon, B. Milverton, L. Monk Bretton, L. Montrose, D. Mountevans, L. Mowbray and Stourton, L. Munster, E. Murton of Lindisfarne, L. Nelson, E. Newall, L. Norfolk, D. Northesk, E. Orkney, E. Orr-Ewing, L. Oxfuird, V. Perth, E. Pike, B. Plummer of St. Marylebone, L. Prentice, L. Pym, L. Quinton, L. Rankeillour, L. Rawlings, B. Rees, L. Rennell, L. Renton, L. Saltoun of Abernethy, Ly. Sandford, L. Shaw of Northstead, L. Strathclyde, L. [Teller.] Sudeley, L. Suffield, L. Swansea, L. Swinfen, L. Teviot, L. Thomas of Gwydir, L. Torrington, V. Trefgarne, L. Trumpington, B. Tugendhat, L. Ullswater, V. Vivian, L. Wakeham, L. Westbury, L. Wilcox, B. Wyatt of Weeford, L. Yarborough, E.

Resolved in the affirmative, and amendment agreed to accordingly.

29 Feb 1996 : Column 1637

5.25 p.m.

Baroness Young moved Amendment No. 11:

Page 2, line 33, at end insert--
("( ) in the case of a statement made by only one of the parties to the marriage, the requirements of subsection (1A) below are met;").

The noble Baroness said: My Lords, to me, and, I think, to many others like myself, this is one of the most important issues raised in Part I of the Bill for it introduces no-fault divorce and creates a new world of divorce on demand.

I should like to start by giving the apologies to the House of the right reverend Prelate the Bishop of Chester. I greatly regret--as I am sure all of us do--

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that the right reverend Prelate is unable to be here, but he has sent me a copy of the speech that he would have made had he been able to attend and has asked me to quote from it. I should like to begin by reading two short paragraphs from that speech. The right reverend Prelate has written:

    "How can it be just when two people have publicly and solemnly entered into marriage vows--with contractual responsibilities--for one party simply to decide to go off with another person. We hear such people say of the person with whom they are departing, 'I love him/I love her' as if that excuses the requirements of love, commitment, care, concern and responsibility for the partner and family to be so suddenly dumped.

    "It wreaks of the old 'I divorce you' spoken three times which our Lord so strongly condemned. It reflects the growing self-first disease which is debasing our society. Emptying responsibility from any real meaning in the marriage contract devalues not only marriage but the standards of public and private life".

I turn to the particulars of the amendment. I believe it is quite clear that the amendment would reintroduce into the Bill the grounds for fault-based divorce taken directly from the 1969 Act. We are all, therefore, familiar with them and I shall not repeat arguments or go over familiar ground again. This afternoon, I should like to make one general point and then bring forward three pieces of evidence on the subject which have, at any rate, been brought vividly to my attention since we discussed the matter in Committee.

First, there is the general point, and I make no apology for repeating the argument. Law influences behaviour and it sends out a very clear message. There would be no point in legislating at all if law did not influence behaviour and, indeed, I believe that my noble and learned friend the Lord Chancellor expects the Bill to influence behaviour. However, this is not an academic argument. We know from recent experience in the fields of gender, of race and of disability where the law has made discrimination a fault-- and it is--that it has not only influenced behaviour; it has also profoundly influenced the culture of our time.

The Bill, whether amended or not, will influence behaviour. It will send out a message and it will influence the cultural climate of our society. The message of no fault is clear. It is that breaking marriage vows, breaking a civil contract, does not matter. It undermines individual responsibility. It is an attack on decent behaviour and fidelity. It violates common sense and creates injustice for anyone who believes in guilt and innocence. I believe that it undermines the whole legal framework of marriage and makes marriage less than buying a television licence, or making a tenancy agreement. In the case of a television, if it is broken, there is a fault and that represents the breaking of a contract.

As I have said before, that is the message that is going out to young people in particular. The message is going out that it does not matter if, having made a promise, one does not keep it. Yet all of us who are parents can hear ourselves saying to our children, "If you make a promise, you should keep it. If you think you cannot keep it, you should not make the promise". As regards the most important decision we ever make in the course of our lives--that is, the decision to get married--it seems to me completely contradictory that breaking that promise should now carry no fault at all.

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I have received three pieces of information since the Committee stage. First of all, we now know that the department of the noble and learned Lord the Lord Chancellor commissioned a MORI poll as part of the consultative exercise on the White Paper. That poll shows that 60 per cent. of the respondents reject the concept of divorce on demand, which this Bill introduces. What conclusions do we draw from that result? Whatever may be the result of your Lordships' deliberations this evening, the proverbial man or woman on the Clapham omnibus does not believe in no fault divorce. I believe they take that view because it is a matter of common sense and common experience. They should be listened to.

The second piece of information I have received concerns the results of a review undertaken by the Scottish Law Commission. My honourable friend Lord James Douglas-Hamilton was in correspondence with a Mr. Colchester. On 9th February this year a letter was sent to Mr. Colchester which stated,

    "The Scottish Law Commission reported on the grounds of divorce in Scotland in 1989 ... and did not recommend the abolition of fault as ground for divorce".

What are we poor politicians to do when one Law Commission recommends the abolition of fault and another Law Commission does not? We have two groups of experts giving us completely contradictory advice. I am second to none in my admiration for lawyers but, as we all know, the truth of the matter is that one can always find a lawyer to support any point of view that one cares to put forward. They do it well and cleverly, and the more one pays them, the better they do it. We all know that. However, those of us in public life have to make a judgment about these matters. I recall that when I was a Minister contradictory pieces of advice were put before me, not from within the same department but from people outside. At the end of the day one has to weigh the evidence and make a decision. I suggest to your Lordships that legal advice at least is completely divided on this subject.

Thirdly, we now have considerable evidence from America on this matter. My noble friend Lady Elles referred to this matter when we were discussing children. We now know that some American states have had no fault divorce since 1953--that is a long time--and others, notably California, have had no fault divorce since 1970. They have had lengthy experience of no fault divorce. In every single American state which has this measure the evidence is overwhelming that once no fault divorce is introduced, divorce increases, on average by 26 per cent. How ironic that at the very moment that we are introducing no fault divorce in this Bill, there are Bills pending in the states of Alabama, Idaho, Iowa, Michigan, Minnesota and Oklahoma to restore fault to divorce law because of their extensive experience of the disastrous effects of no fault divorce.

We also know of the experience in Australia where the introduction of no fault divorce has resulted in a doubling of the numbers of divorces. One should seriously consider that experience. Why should we imagine that somehow what will happen in this country will be quite unlike what has already happened in the

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United States--which it now bitterly regrets and is trying to change--and what is currently happening in Australia? This evidence must be taken seriously. If time would allow, I would give far more detail of what I have managed to find out.

Finally, I wish to discuss the arguments which my noble and learned friend the Lord Chancellor has used with great eloquence when he has spoken on this matter on a number of occasions. He has told the House that the concept of fault has enabled the so-called "quickie" divorce to take place. Couples use the concept of fault to obtain a quick divorce. But the fact of the matter is that the quickie divorce only became possible by the accelerated procedure which was introduced by statutory instrument in 1977. It was not part of the 1969 Act. It would be relatively easy--if the problem is speed of divorce--to repeal the statutory instrument without repealing the fault provisions. That, of course, is what my amendment is designed to do. As regards the speed of divorce, it is not the concept of fault that causes that but rather the legal procedures which enable people to obtain a divorce by post. The legal procedures have brought that about in a way which I do not believe Parliament has recognised, or ever wanted to see.

This amendment is quite straightforward. It retains the fault element in the present law. It must be read in conjunction with other amendments which I and my colleagues from all parts of the House have tabled in this Bill.

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