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The problem that the amendment addresses is that the press have unhelpfully characterised the amendments of the noble and learned Lord on the Woolsack as giving children a veto over their parents' divorce. In fact, far from doing that, the noble and learned Lord's amendments are likely to make little difference in practice. A number of lawyers have described the changes as cosmetic, as my noble friend said. The definition of hardship is neither strong enough nor precise enough.
It is important to bear in mind the inherent problems with the hardship bar; namely, that it only prevents the present application going through. Under Clause 10(5) it is possible for the court to impose conditions which must be satisfied before the bar on divorce is lifted. But the hardship bar is essentially temporary in nature, and under the present law it has failed because of the interpretations judges have given to the word "grave". Unless the hardship bar is crystal clear and quite unambiguous the same will happen again with this Bill.
Furthermore, divorce can lead to severe hardship for one spouse, and normally has serious economic and health consequences for both parties. The existing bar has proved completely ineffective, and a strengthened hardship bar will force couples to face their responsibilities both to their spouse and to their children.
Lord Meston: My Lords, I have considerable concerns about the amendment. I understand the point of view that the hardship bar, even in its modified form following earlier amendments to the Bill, may not be strong enough. However, I have little doubt that the amendment, if enacted, would open up the floodgates, to the benefit of the lawyers and to no great benefit to the parties to the marriage.
At an earlier stage in the Bill, the noble and learned Lord, Lord Simon of Glaisdale, questioned the justiciability of the concept of the irretrievable breakdown of marriage. In the context of the amendment, I would question the justiciability of the various concepts which a court would be required to consider in any litigation under the amendment: as regards whether a marriage had irretrievably broken down and whether it was unjust to grant a divorce or contrary to the interests of any child of the marriage.
As the clause stands, unamended, substantial hardship is an issue with which the court could grapple. But I question whether it is necessary or desirable to allow in considerations of fault by the back door. It will greatly increase acrimony between the parties. Consideration of the interests of the children is of course important. But as has been said several times in debates on the Bill, the disservice which the parties do to their children is in separating not necessarily in divorcing. It is difficult to see how a court can consider objectively whether or not it is contrary to the interests of the child to allow a divorce to go forward. As was said in the earlier debate, I can see the temptation to pray in aid the interests of children in an improper way.
The main point I wish to emphasise is that litigation will undoubtedly be generated. That litigation will almost certainly emphasise beyond any doubt that the marriage has irretrievably broken down. I doubt whether an amendment along these lines could save any marriage in reality, although in certain circumstances it might preserve for an indefinite period the legal status of marriage. An application under this amendment may fail, in which case it will be costly both emotionally and financially to the parties, or it will succeed. It is hard to decide which is worse. If it succeeds, it will create immense bitterness, preserving the status of marriage and storing up further litigation for the future because the frustrated party will be tempted to apply under the provisions of the Bill to cancel the order in due course. Meanwhile, the marriage will limp on indefinitely.
There may be a few cases where the compensation (to use that phrase perhaps inappropriately) awarded to a wife under the financial and property adjustment provisions of the legislation may not be adequate. But that in itself is not always a reason for preventing the divorce and for not recognising the reality of the position which the parties have reached. I therefore advise your Lordships to be very careful about the amendment, at least in this form.
Lord Renton: My Lords, quite frankly, I do not see the need for Amendments Nos. 13 and 14. I agree with the noble Lord, Lord Meston, in the reasons that he has given against them. As it stands, Clause 10 ensures that the interests of the children of the marriage are well cared for.
I cannot see the need for leaving that out. I believe that it would be best to let it stand. However, the proposed subsection (6) on the burden of proof requires serious consideration. I should be grateful if, when my noble and learned friend the Lord Chancellor replies, he could either say that new subsection (6) in Amendment No. 15 is necessary and acceptable to him or that it is unnecessary because the burden of proof is dealt with satisfactorily.
I am a little surprised at the noble Lord, Lord Meston. I was going to speak in support of the most recently approved amendment, Amendment No. 11, which is closely associated with the wording that I have just read. In England--the argument does not apply only in Israel and in other countries--we have religious beliefs. We have the Roman Catholic Church. Often the senior member of the family is the father. The family are baptised as Roman Catholics. The mother divorces the father. Noble Lords can probably understand--and, if not, allow me to educate your Lordships--that the Roman Catholic Church then has the Catholic father on trial. I am assuming that the female spouse, the wife, is not a Roman Catholic. Those trials are not just civil trials; they are also Church trials, and they can go on and on.
The most important point to remember is that we are talking about the children. If they are brought up initially as Roman Catholics, they cannot understand why their father is not receiving that most holy Sacrament, the Body of Christ. They ask dad, "Why are you not going to communion when you have had me brought up as a Catholic, and I can take communion? What is the trouble?".
I do not believe that enough consideration has been given by the noble Lord, Lord Meston. The provision is closely associated with Amendment No. 11, to which all noble Lords agreed. I request that your Lordships consider the provision seriously.
Lord Elton: My Lords, while the noble Lord, Lord Meston, is considering his answer, perhaps I may seek to reassure my noble friend Lord Ashbourne, on one small point. He stated that the hardship bar, in such form as it previously existed, had foundered on the term "grave". We have changed that. The word is now "substantial". It has been changed for the very reason that he adduced. Therefore one of the four or five reasons that he advanced has been dealt with.
On the remainder, I do not wish to recapitulate what I said on an earlier amendment about the protections which already exist for a child as a result of Amendment No. 1, with Clause 3 bringing in Clause 9 and hence Section 41 of the Matrimonial Causes Act, and paragraph 23 of Schedule 8 strengthening that clause. I believe that those are sufficient reassurances as regards children even if the Children Act which overarches them were not.
I had hoped that the noble Lord, Lord Clifford of Chudleigh, would illuminate me on paragraph (d) of Amendment No. 13. I am not entirely sure that he has done so. In any case, he has addressed himself only to religious beliefs. I find it difficult to understand how ethnic background can contribute to the situation. I begin to wonder whether the Bill is trying to embrace the Mormon or Moslem faiths, where it is perfectly proper to have what in British statute law is a bigamous marriage. We have to be careful about the interrelationship between statute and religious law. Where a religious divorce is required, that is a matter for the officials of the religious faith. I can see the noble Lord teetering on the edge of his seat. Perhaps I might conclude by saying that I believe that as much as needs to be done in that direction was done by Amendment No. 11 and therefore, while I am not passionately against this amendment, I am certainly not enthusiastically for it.
Lord Clifford of Chudleigh: My Lords, if Amendment No. 11 will cover that particular part of the clause, I totally agree, and there is no need for it to be included in Amendment No. 13 as paragraph (d). As long as it is included somewhere, that is fine. I was trying to emphasise the interests of children.
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