Previous Section Back to Table of Contents Lords Hansard Home Page

The Lord Chancellor moved Amendments Nos. 54 to 57:

Page 4, line 39, leave out ("The regulations") and insert ("Regulations made under this section").
Page 4, line 40, leave out ("sessions") and insert ("meetings").
Page 4, line 41, leave out ("and").
Page 4, line 42, at end insert ("; and
(c) for the giving of information to parties (otherwise than at information meetings) in cases in which the requirement to attend such meetings does not apply.").

The noble and learned Lord said: My Lords, Amendments Nos. 54 to 57 arise out of the earlier amendments. I beg to move these amendments en bloc.

On Question, amendments agreed to.

[Amendments Nos. 58 and 59 not moved.]

Baroness Faithfull had given notice of her intention to move Amendment No. 60:

After Clause 7, insert the following new clause--

Special children's officer

(".--(1) The Lord Chancellor may make regulations for a special children's officer attached to the family court care centres and divorce hearing centres.
(2) The regulations shall make provision for the special children's officer to make appropriate arrangements on behalf of children whose parents--
(a) have made a statement of marital breakdown under this Act; or
(b) have taken or are taking proceedings under Part II of the Children Act 1989.
(3) Arrangements mentioned under subsection (2) shall include the provision of information, advice or assistance, including applying to the court for the separate representation of the child.").

The noble Baroness said: My Lords, this amendment was moved on the last occasion that we sat. Therefore, I do not move the amendment.

[Amendment No. 60 not moved.]

3.45 p.m.

Clause 8 [Arrangements for the future]

[Amendments Nos. 60A to 62 not moved.]

Baroness David moved Amendment No. 63:

Page 5, line 28, at end insert--
("( ) Where a divorce order is granted on the basis that the provisions of subsection (2) or Schedule 1 are satisfied and it is subsequently shown that those provisions were not in fact satisfied this shall not operate to invalidate the divorce order concerned.").

The noble Baroness said: My Lords, on behalf of my noble friend Lord Archer of Sandwell I should like to move Amendment No. 63 as an amendment to Clause 8. The amendment inserts at the end of the clause subsection (6), which reads:

4 Mar 1996 : Column 23

    "Where a divorce order is granted on the basis that the provisions of subsection (2) or Schedule 1 are satisfied and it is subsequently shown that those provisions were not in fact satisfied this shall not operate to invalidate the divorce order concerned".

This is a probing amendment which I believe raises a new point. It is unclear from the Bill what the effect on a divorce order will be if someone falsely declares that arrangements have been made for the future, or falsely states that he or she comes within the exceptions provided for in Schedule 1. The amendment is designed to clarify whether the Government intend that false declarations will make any subsequent divorce bogus or will have no effect upon a subsequent divorce order. I hope that the noble and learned Lord will be able to enlighten us on the point. I beg to move.

The Lord Chancellor: My Lords, it is a fundamental procedural requirement of the Bill that evidence of arrangements must be produced to the court in order to satisfy the requirements of Clause 8, unless one of the exemptions in Schedule 1 applies. If a divorce order is made and it is subsequently found that the requirements of Clause 8 have not been met, that is to say, evidence of arrangements has not been put before the court, that order should be void.

I have carefully considered this amendment. Although I believe that if faced with a case where Clause 8 has not been complied with it is likely that a court will declare an order void, nevertheless I believe that this should be made clear on the face of the Bill. I will bring forward a Government amendment to reflect the intention that a divorce or separation order that is obtained without the provisions of Clause 8 and Schedule 1 having been complied with shall be void, but no person shall be entitled to challenge the validity of the order on the ground that the information contained in the declarations mentioned in Clause 8(2)(c) and (d) is incorrect. The courts would still be able to pronounce an order void or voidable in other circumstances according to general principles, for example complete lack of service. I hope that I have explained what I have it in mind to do in answer to Amendment No. 63. We may be able to deal with that by Third Reading.

Baroness David: My Lords, I am extremely grateful to the noble and learned Lord for his response. I feel that putting down the amendment has been worthwhile. I look forward to an amendment from the noble and learned Lord, hopefully at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 64:

Leave out Clause 8.

The noble Baroness said: My Lords, it may be that the last response will carry some weight also in relation to Amendment No. 64. However, I believe that I should move this amendment in order to find out the response of the noble and learned Lord. Clause 8 provides, in conjunction with Schedule 1, that arrangements for the future must be made during the period for consideration and reflection, subject to limited exceptions. This clause

4 Mar 1996 : Column 24

represents a change from the Law Commission's original proposals and should be removed for the following reasons. First, it will place a considerable bargaining chip in the hands of a recalcitrant or spiteful spouse. He or she will be able to insist that certain arrangements are made as the price of granting the other party a divorce.

Secondly, a number of problems exist with the exceptions to the rules as currently drafted as they are unclear and incomplete. The net effect is that uncertainty will be increased. That is likely to lead to increased litigation. Examples of possible difficulties are that the provisions in Clause 8(2)(c) and (d), which relate to the financial arrangements, as supplemented by Schedule 1, may lead to fraud. Thirdly, these proposals are untested. The proposed provisions are not duplicated in other common law jurisdictions where a system of no fault exists. In Australia, for instance, arrangements for finance and children are dealt with entirely separate from the divorce itself. I should say that I am speaking also to Amendment No. 117 which is consequential upon the removal of Clause 8. I beg to move.

The Lord Chancellor: My Lords, the provisions of Clause 8 and the schedule are essential to what is in contemplation here. It is vital that before a divorce is granted the parties should face up to the responsibilities that have arisen in their marriage in such a way as to make all the necessary provisions for the future. That does not happen at the moment. So far as I know, it has not been provided for in other jurisdictions at present, as the noble Baroness said. I cannot think of a more practical way of facing up to the responsibilities of marriage than this way.

To have the divorce first and to leave over these matters is to leave over the essential dealing with the responsibilities of the marriage, which are fundamental. For example, it is clear that if someone is going to undertake new relationships and new responsibilities, it is important that, so far as possible, before that is done that person should know the nature of the commitments they have arising out of the earlier marriage.

It is sometimes said against me by those who are not minded to accept the approach of the Bill that I am seeking in some way to depart from forcing people so far as possible to face up to their responsibilities before a marriage is dissolved. This is the provision that does that. It is an important and practical one.

The noble and learned Lord, Lord Archer of Sandwell, referred on the last occasion to Professor Cretney. Professor Cretney has indicated to me that he regards this as an important improvement and modification to what the Law Commission proposed. It is sometimes said that all of these proposals are the Law Commission's proposals. Of course they are not. In this respect there is a most important departure from them. It is necessary to have this. It will require a different approach to divorce from that which is available under the present system.

I am of course always willing to consider whether improvements to the drafting of these provisions can be made, but on the principle of the provisions, as challenged in Amendments Nos. 64 and 67, I hope that

4 Mar 1996 : Column 25

your Lordships will feel that the provisions are vital and an important and desirable part of the proposals contained in the Bill.

Earl Russell: My Lords, before the noble and learned Lord sits down, I wonder whether he can clarify a point raised by the noble Baroness about what happens if a party wilfully refuses to agree to any financial arrangement.

The Lord Chancellor: My Lords, that point is dealt with in the schedule of exceptions. The court is pretty astute and can deal with such a situation. Schedule 1 deals with it. That is why I said that drafting matters are different, but in cases where that has happened and the court thinks that that is what is happening, the court has power to deal with the matter. There is always a difficulty about such problems. The only way to deal with them is to leave them to the court to handle in the light of all the circumstances that obtain.

Next Section Back to Table of Contents Lords Hansard Home Page