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Baroness David: My Lords, I thank the noble and learned Lord for his full and positive response which was not entirely unexpected. I see the importance that he attaches to the clause. I noted also that he said that he is always willing to consider drafting improvements. I think I should discuss this with my noble and learned friend Lord Archer of Sandwell. It was his amendment that I moved. In the light of his reading of the noble and learned Lord's reply he might want to suggest drafting improvements and bring the matter back at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Hardship: orders preventing divorce]:

The Lord Chancellor moved Amendment No. 65:

Page 5, line 35, leave out ("grave") and insert ("substantial").

The noble and learned Lord said: My Lords, I should like to speak also to Amendments Nos. 66, 67, 68, 69 and 70. As your Lordships will appreciate, in Committee there was a full and valuable debate about the provisions and workings of the hardship bar on divorce. I intimated in Committee that I wished to consider in more detail the points made and I have now tabled these amendments to address some of the concerns which were raised.

One of the main concerns which was expressed in Committee centred around the rarity with which the hardship bar is invoked. The view was expressed, in particular by the noble Lord, Lord Irvine of Lairg, and my noble and learned friend Lord Simon of Glaisdale, that the bar was currently something of a "dead letter", and amendments were tabled to test whether the language of the clause could be amended to make its application less rigid.

Your Lordships will recall that the bar provisions at the moment apply to five-year separation divorces only, which form a small proportion of the total number, the vast bulk presently being based on fault grounds with no bar applicable to them. The Bill extends the bar provisions to all divorces. I share the concerns that the hardship bar should be a meaningful provision. I have

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therefore decided to amend the clause in the direction suggested in Committee by replacing the word "grave" in relation to the hardship experienced on dissolution of the marriage with the word "substantial", which is a less strict test.

In terms of the relevance of the hardship bar, I have mentioned that it is intended to apply to all divorces. Your Lordships will be aware that it is not just financial hardship that is in question but other hardships as well. People have sometimes not understood that fully. It is a bar that applies to substantial financial or other hardship.

The other amendments which I propose to make relate to children. This again arises out of the Committee stage. The welfare of children in divorce was referred to in Committee in the context of the hardship bar, in particular by my noble friends Lady Young and Lady Elles and the noble Lord, Lord Irvine of Lairg. Although they mentioned it in particular, I am sure that they are concerns which we all share. In the light of those considerations and the remark of my noble friend Lord Boyd-Carpenter when the question of children was being discussed, I have decided to propose these amendments to extend the provisions of the bar on divorce to encompass the children of the family as well as the parties to the marriage. In that context, I would emphasise that in all cases in order for the hardship to be applied the court must be satisfied that the actual dissolution of the marriage will cause substantial financial or other hardship to a child or children.

I should also emphasise that an application for an order preventing divorce can be applied for only by a party to the marriage, even if this application is asserting that the dissolution will result in hardship to children. In my view, it would place an intolerable burden on children to provide that they themselves might be involved in making such an application, as we discussed earlier. They could easily be put under pressure by one or other parent to apply for such an order--indeed, by other well-meaning persons--without any regard to the enormous responsibility that that would place on such a child. We cannot have a situation in which we pitch child against parent in a battle about whether the marriage should be legally dissolved.

Amendments Nos. 67 and 70 are intended simply to emphasise that where there are children in the family their interests must be taken into account when the court is considering all the circumstances of the case in order to determine whether it is wrong to dissolve the marriage. I beg to move.

4 p.m.

Baroness Young: My Lords, I thank the noble and learned Lord the Lord Chancellor for the amendments that he has tabled to Clause 9. They are in response to points raised in Committee and I am glad to see them. I am sure that he was completely misinterpreted in his comments relating to Amendments Nos. 67 and 70 concerning children and that there was never a suggestion that children should appear in court. I support the noble and learned Lord in what he said.

However, I should be grateful if he would clarify a major issue of principle. He said that one of the criticisms in respect of what was originally Clause 10,

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but is now Clause 9, was that the hardship bar had never been used or, as I understand it, had been used on only one occasion. I also understood him to say that it applied only to five-year separations and that under the Bill it would apply to all divorces. I do not understand how the same principle can be seen to work in respect of all divorces when it failed to work in respect of five-year divorces. I understand that the issue was not a question of time but the interpretation of the law.

The noble and learned Lord mentioned Dr. Cretney from whom I have received a letter on this matter. As there is a legal point which I am not sure I fully understand I hope that the noble and learned Lord will explain it to me and that he will forgive me if I quote from the letter. Dr. Cretney refers to the fact that the hardship bar is designed to help in grave financial or other hardship and I take the point that that has been amended. He states:

    "These words appear in the existing law; but are rarely invoked--largely because the courts have consistently held that hardship must result from divorce (i.e. the ending of the legal status of marriage) rather than from the breakdown of the relationship and the circumstances which led to it. There is no reported case in which a defence based on hardship other than financial hardship has been successful".
Dr. Cretney goes on to state:

    "The 1969 concordat between the Law Commission and the Archbishop of Canterbury's group (which led to the enactment of the present divorce law)"--
that is, the 1969 law--

    "envisaged that the court would be required to refuse divorce if satisfied that, having regard to the conduct and interests of the parties and the interests of the children, it would be wrong to end the marriage; but the terms of the legislation are much narrower. The court has no power under the existing law to refuse a divorce merely because the applicant has been guilty of outrageous behaviour; and it will have no such power under the Bill currently before the House of Lords".

I see that there is a distinction between hardship which must result from divorce and hardship resulting from the breakdown of the relationship. However, as someone who is not a lawyer that seems a narrow point of law. If that is the point of law on which it has not been possible to operate the hardship bar--and it is a most serious point--I would be grateful if my noble and learned friend the Lord Chancellor could explain the difficulty and assure me and the House that Clause 9 will not suffer from the defects from which a similar clause suffered in the preceding Bill.

Lord Northbourne: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor, as I am sure is every Member of your Lordships' House and the organisations concerned with the welfare of children, for the introduction of the amendments, which serve an important purpose in improving the Bill.

Lord Simon of Glaisdale: My Lords, when the 1969 Act was before your Lordships strong objections were voiced to the requirement that in order to halt a divorce after five years' separation a wife against whom nothing substantial could be alleged had to show grave hardship before she was cast off to her detriment. That anxiety was voiced by Lord Hodson, the foremost matrimonial

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judge of the time, and by Lady Summerskill, who was ever vigilant of the interests of married women. They asked: why should it be grave hardship? Indeed, they asked: why should she be required to show any hardship, but in any case why grave hardship?

As my noble and learned friend has explained, that bar in the 1969 Act, which was consolidated in 1973, was relevant only to divorce after five years' separation; the divorce by repudiation. The issue became much more serious when one found that the requirement to show grave hardship appeared in this Bill; in other words, where there could be repudiation of a spouse against whom nothing substantial could be alleged after one year's notice. Those voices, those considerations and those concerns were raised in Committee and my noble and learned friend has gone a long way towards meeting them.

I have only one question about the substitution of the word "substantial" for the word "grave". That is on the ground that the law does not generally take any account of insubstantial consideration. It is always expressed in a Latin tag, which I shall not repeat because I know that lawyers' pronunciation of Latin is highly offensive to your Lordships. The fact remains that the law does not regard taking any account of insubstantial consideration. It seems to me that the court might be alerted, therefore, that something more is required by the use of the word "substantial". Why cannot one simply leave it out and provide for only hardship? That argument relates to Amendments Nos. 65 and 68.

As regards Amendments Nos. 66, 67, 69 and 70, it remains only to express appreciation for the way in which my noble and learned friend has met our views.

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