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9.5 pm
Mr. Julian Brazier (Canterbury): I share the horror of divorce, as expressed by the majority of hon. Members on both sides of the House who have contributed to the debate. As the father of three young children, I am constantly aware of the advantage that my children have in life, in having parents who are married. If my wife remains as tolerant as ever, we shall remain married throughout their childhood. I believe firmly in marriage. I support the Bill and I urge the House to give it a Second Reading. With amendment, it will represent a substantial and worthwhile improvement to the present state of the law.
I commend my right hon. Friend the Chancellor of the Duchy of Lancaster, and especially my hon. Friend the Parliamentary Secretary, for the open and listening way in which they have received the issues that colleagues have raised.
Most of us agree that the courts have trampled over Parliament's clear intentions. The most frequently quoted example is the way in which unreasonable behaviour has been extended to the most trivial matters. In any event, it is no longer verified. That is important. We may have pious hopes that we all agree with in the early clauses and the introductory material, but it is the letter of what the law states and enjoins on the courts that is critical.
Under the control of the courts in England and Wales we have had divorce on demand, without fault and without conduct, for some years. The Bill offers three main advantages. The first is the one-year delay. It has already been said that that will effectively double the average time that is taken for a divorce.
The second advantage is the provision for mediation and reconciliation. I am surprised that there are some who think that the information session should be compulsory. The
first contact that most people have at the beginning of a divorce is with an adversarial lawyer. Whatever his personal motivation, he has a direct financial interest, both in the marriage breaking up and in that break-up being as bloody as possible. We know that the bloodier it is, the longer it will be, and the larger will be the fee. It seems eminently sensible that initially there should be a compulsory information session, so that the parties are made aware of the opportunities for reconciliation and mediation.
In cases where domestic violence is not involved, legal aid should be restricted to green-form advice, as the Government propose, until people have tried mediation. That process encourages people to talk about their problems first. I understand that mediators will have a statutory duty to bear in mind the possibility of reconciliation. That will again tend to make people aware of the opportunities for getting together again. There is no such duty at present.
The third advantage bears on children. We know that the vast majority of divorces are initiated by women. Over 70 per cent. were initiated by women last year. They are usually brought about by young women with children, who know that under present arrangements their chances of getting custody are overwhelming. They know also that, with that advantage, they will get control of the house along with guaranteed maintenance for the children and, usually, for themselves.
By balancing a little the arrangements for children and by making courts slightly more reluctant to hand custody automatically to the mother, we shall remove one of the main incentives for divorce, as well as being much fairer to the children and, dare I say it, to the father.
Thus I am glad that the Government were prepared to take on board Baroness Elles's amendments, as introduced in the other place. They were drafted by the Conservative Family Campaign. The amendment will make it a specific duty of the court to consider the conduct of both parents towards the children in making custody arrangements. Before divorce is granted, the courts will consider access arrangements for fathers. I should like to see more teeth in the proposed arrangements. In any event, courts will have to consider access arrangements for fathers, or for the other parent, before a divorce is granted. They will have to take account also of any new partners who come on the scene.
The hon. Member for Sherwood (Mr. Tipping) mentioned the fact that many cases involve child abuse. I have news for him: the overwhelming majority of child abuse cases involve not the natural father, but the new partner of the child's natural mother. That is why it is absolutely right that one of those amendments accepted in the House of Lords says that, when it comes to the custody of the children, the court must look at any new partners, too, before the divorce is granted.
I am aware that my hon. Friend the Member for Teignbridge (Mr. Nicholls) wants to speak, so I shall be brief. Two areas in the Bill should be strengthened: first, orders on the family home. The Government have rightly majored on the fact that there will be a minimum period before a divorce can be granted. Personally, I should like it to be longer than a year and will support an amendment for 18 months on a free vote, but the essential point is that the period must be watertight.
My hon. Friend the Parliamentary Secretary will know from my earlier urgings that a number of us are concerned that, if we allowed orders other than "ouster" orders,
arrangements for domestic violence and so on, to be made on the family home in the first few weeks of the proceedings, any provision for mediation, reconciliation and the rest would be a waste of time. The marriage would already be dead. The divorce might not have gone through as a piece of paper, but, de facto, it would have happened. I urge that there should be no exceptions where final orders are to be made on the family home during the year concerned.
The other issue on which I urge amendment to improve the Bill is conduct. I think that five hon. Members specifically referred to it. The hon. Member for Brent, South (Mr. Boateng), part of whose speech I had to miss because of a constituency engagement, mentioned culpability, by which I take it that he means the same thing. There is a strong feeling among some hon. Members on both sides of the House that, when it is manifestly clear that one party is largely to blame for the break-up of a marriage, that should be taken into account by the court. I accept the Government's argument that it should not be through fault. We do not want to begin the process of divorce with fault as a way to speed it up. Even when reconciliation has failed, many couples will none the less be able to settle their differences without fault.
We do not want a return to fault. We want conduct, which has also effectively been abolished by the courts. In the minority of cases in which there has been no reconciliation and there has been an inability to settle the terms amicably through mediation and a divorce will go ahead, the court should take account of the conduct of the parties. The innocent party should be able to argue, whether it is domestic violence, desertion or whatever, that when making the various orders--not just about the children, where we have had the concession already, but orders on financial matters--conduct should be taken into account. That was quite clearly Parliament's intention in the original legislation. The courts have departed from that in practice.
One example illustrates that point, that of Kyte v. Kyte, where a wife lied to the courts to get her husband ousted from the home, installed the new boyfriend and went out of her way to assist her husband in an attempted suicide. Two courts of this country ruled that even that was not sufficiently serious conduct to be taken into account. That had to go all the way to the Court of Appeal to be overruled, and it still forced some financial settlement on the husband.
Mr. Donald Anderson (Swansea, East):
I share many of the assumptions made by the hon. Member for Canterbury (Mr. Brazier). Like him, I am blessed with a happy marriage, which I believe has lasted 30 years--although I always forget the precise number of years.
Dame Elaine Kellett-Bowman:
What was the date?
Mr. Anderson:
I always forget the date as well. Moreover, like the hon. Gentleman, I have three children.
For several years I practised in the family division;I was also a member of the Home Affairs Select Committee that produced a report on domestic violence--along with a number of distinguished hon. Members on both sides of the House who are present tonight.
Although I agree with the hon. Member for Canterbury that the saddest element of divorce is the need to protect the children involved, I do not agree with him about fault. In my long experience of the family division, I have rarely seen a case in which the fault is 100 per cent. on one side. The hon. Gentleman mentioned the case of Kyte v. Kyte, but that was nothing like the generality of cases. We are discussing complex human circumstances. Mr. Justice Ormrod, as he then was, put it well in his judgment on the famous leading case of Wachtel v. Wachtel, reported in 1973:
On the basis of practice, I know that the petitioner is normally the person who has the incentive to consult a solicitor first. All too frequently, following the "escalator principle", the solicitor or counsel will ask the petitioner about incidents in what may be a normal marriage, but a marriage which--if it has lasted for six, seven or 10 years--may feature incidents that, if isolated and combined in a petition, will make that marriage appear the most lurid possible. The juggernaut will then move on, and the bitterness will overflow into the ancillary proceedings. That will affect children and, to a less important extent, property.
That is the reality of fault in marriage: it is a complex human situation. The courts are ill adapted to say precisely where the fault lies. Even if a wife has committed adultery, that may be put in the context of a long period of unreasonable conduct on the part of her husband. Certain considerations are not helpful when decisions must be made about the dissolution of an unhappy marriage. It is, however, in the public interest for marriage to be preserved. Not only is that morally right, given that marriage represents a cornerstone of our society; as many hon. Members have pointed out, the breakdown of marriage is very costly to the public purse, to the tune of some £4 million. We should not be too bemused by the divorce law, or consider it to be the only or best way in which the public and the Government can have an impact on the family. Tax, housing and benefits law should also be considered.
"The fact is that the forensic process is reasonably well adapted to determining in broad terms the share of responsibility of each party for an accident on the road or at work because the issues are relatively confined in scope, but it is much too clumsy a tool for dissecting the complex inter-actions which go on all the time in a family. Shares in responsibility for breakdown cannot be properly assessed without a meticulous examination and understanding of the characters and personalities of the spouses concerned, and the more thorough the investigation the more the shares will, in most cases, approach equality."
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