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Baroness Young: My Lords, I should like to express my support for my noble friend Lord Coleraine. As the House will recall, my noble friend introduced amendments along similar lines both in Committee and on Report. The point that he has raised is an extremely important one in that, if such orders are made at any time after the first statement, the whole idea of reconciliation, reflection, consideration, and so on, is pointless because the situation is decided by those circumstances.
We are concerned with two orders here and, as I understand it--although it is quite possible that I have not got it quite correct--the Bill permits lump sum orders to be made at any time after the first statement and provides for property transfers to be made in special circumstances before the divorce. I believe that my noble and learned friend has gone some way towards meeting one of those points and that is most welcome. That will certainly help the situation. The provision would mean that either the husband or the wife could obtain a court order during the reflection period which would settle who would own the house at the divorce and how much would be paid in a lump sum on divorce. Therefore, although my noble and learned friend's provision goes part of the way, it does not go as far as we would wish.
Having gone part of the way, I hope that my noble and learned friend will feel able to go all the way with my noble friend Lord Coleraine on this most important series of amendments. I believe that that would be in keeping with what my noble and learned friend wants; namely, to have such a period for reflection and consideration. It would not in any way be damaged by the fact that a party could make a settlement of their assets right at the beginning before anything else had been considered.
Many people take the view that one of the more pressing problems we face in this country today is the breakdown of the traditional family leading to widespread social misery and great distress among children who frequently suffer from loss of status, loss of identity, loss of self-esteem, and in many cases loss of one parent altogether. Of course I realise that one cannot legislate against human nature and that whatever laws are passed in Westminster may have little effect on human relations within a family; but I believe that it is the responsibility of the Government to create an atmosphere within which marriage and the traditional family can flourish. In fact the 1969 Act did exactly the opposite with the result that we now have the highest divorce rate in Europe. By putting more emphasis on reconciliation, more marriages will be saved. It is for that reason that I commend these amendments to the House.
Lord Northbourne: My Lords, I rise to say briefly how much I support the noble Lord, Lord Coleraine. It seems to me quite inimical to the objectives of the Bill to allow the courts to make what appear to be permanent settlements in regard to lump sum payments and property transfers before the parties have had an opportunity to attempt reconciliation and before the parties have had an opportunity to attempt mediation and to arrive at an agreed solution. Surely, it should be possible to make temporary arrangements for sufficient capital or income to be available to the spouse, or, alternatively, for occupation of the property, without actually making a property transfer.
Lord Elton: My Lords, I do not know what my noble friend intends to do with the amendment after he has heard my noble and learned friend's reply but if, as I imagine, the matter may be left open to go to another place, I wonder whether that opportunity will be taken to look at it again in a slightly different light. I think we have all accepted that the divorce proceedings are not the start but the conclusion of a process, and we need to consider whether any additional time or slack water is to be introduced in the light of that. There will have been great turbulence before this passage of time--the 12 months--begins.
That said, surely the difference that strikes the parties to the marriage and the divorce at the moment divorce proceedings begin, is the crystallisation into reality of what they had merely imagined to be the arrangements that will result. Many of your Lordships feel--I rather think that I feel this way too--that it is that crystallisation that makes people seriously have a second look. Merely beginning the argument about the arrangements, or beginning the process, does not. It is arguable--this is probably a persuasive argument--that it is when they see what the position will be at the end of the process that they think, "Good heavens! Is this really what we meant?" I should have thought that an amendment which made the order of the court in some way provisional after it had been made, and left the six
Earl Russell: My Lords, the logic behind this amendment is, I think, impeccable. The points made in its support are serious, but I also listened with a great deal of interest to the points made by the noble Lord, Lord Elton. I can see a great deal of force in those points. The other point that occurred to me is one about the tempo of negotiation. I think most of us find that in negotiation there is usually one moment at which the parties may be induced to reach agreement. It may come sooner or later when moods coincide.
If that moment is attained, it is a matter of a tide in the affairs of men which is not taken at the flood, especially in cases involving matrimonial breakdown. It is not unknown after matrimonial breakdown for hostility between the parties to go on growing which may mean there could be some cases where a settlement might have been accessible early on but there may be bitter contests later if it is not taken when it is accessible. I hope that all those points on both sides will be taken into account. However, I recognise the case that has been made in favour of the amendment is a serious one; I just think that it probably is not quite the whole story.
The Lord Chancellor: My Lords, I have indicated on previous occasions what my noble friend Lord Coleraine has described as a rather lukewarm antagonism to these amendments. That just about accurately reflects my attitude to them. There is a great deal to be said in the ordinary case for an order being made in the first six months. I think as a practical matter it is highly unlikely that a contested order would in any event be made in the first six months. However, there may be situations in which agreement is required on the basis of which some further understanding can be built. There is also the point that under the European Convention on Human Rights there is the question of conducting a hearing within a reasonable time. What amounts to "reasonable time" depends very much on the circumstances.
It is important to think about these amendments against the background of what I am proposing both in the Bill and in amendments to be discussed later; namely, that any order that is made for property adjustment or for financial provision will not take effect until the divorce order is granted unless there are exceptional circumstances and it is just and reasonable to do so. I have added the term "exceptional circumstances" out of concern to meet the points that my noble friends have made to me before.
I am endeavouring to see whether reforms of the ancillary relief procedure can be put in place to reduce the cost and delay involved. My inclination at the moment is to think that this sort of matter is best dealt with in rules of court which take account of the various circumstances. However, I think that the present rules of court may not be sufficient to enable this particular
Lord Coleraine: My Lords, I am grateful to all noble Lords who have spoken and for the general understanding around the House of the purpose of these amendments. At the moment I find it difficult to see what rules of court can do when the thrust of the Bill, as it is at the moment, is that at any time after the statement is made one party can go to court and obtain a financial provision order or a property adjustment order. That will effectively ruin any chances of reconciliation or mediation on other aspects of the arrangements for the future.
The Bill ought to be aimed at ensuring that as far as possible mediation and negotiated agreements are favoured rather than court applications. Taking up a point which my noble and learned friend made when discussing his disagreement with his advisory group, my noble friend Lord Elton made the point that if the order was made the parties would then realise that that was not what they wanted. I believe that in fact when the order is made one party will realise that it is not what he or she wanted but the other party will be extremely satisfied with what he or she has, and the divorce will continue in an acrimonious manner.
As regards the tempo of negotiations, I understand that the early stages are possibly not the time when one will achieve an easy agreement. On the other hand, if agreement is not achieved in the early stages I very much doubt whether it will be possible to reach agreement in the later stages.
Nevertheless, I am very grateful to my noble and learned friend for what he said about looking into ways in which those points can be met. I know that he will do so because he said that his opposition to the amendments was lukewarm. In the circumstances, I beg leave to withdraw the amendment.