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Mr. Michael Alison (Selby): I support the amendment moved by my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh). It focuses the Committee's attention on the issue of fault, to which most of my right hon. and hon. Friends have addressed themselves in their speeches, not the least of which was the important speech made by my right hon. Friend the Member for Old Bexley and Sidcup (Sir E. Heath).
I shall quote from the guidance that was circulated to Members of Parliament by a mysterious agency not a hundred miles from the Lord Chancellor's Department:
So fault is at the very heart of the Bill.
The fundamental issue that we must decide is whether fault should be the sting in the tail, or more up front, as a possibly curative and preventive factor, affecting the way in which divorce proceedings may take place.
I take the point cogently argued by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), who is also a practitioner, and who repudiated the idea of fault being up front. My hon. Friend the Member for Teignbridge (Mr. Nicholls) is also a practitioner in that area of the law, and I believe that he thought that, although fault is bound to come into consideration at some point, to have it up front as a major initial hurdle is likely to exacerbate the situation and make things more difficult. That was advanced as one reason for disallowing fault up front.
Mr. Nicholls:
The point that I was making was simply that, when we deal with the relatively narrow questions of who looks after the children, or how the money is divided, conduct is a subject with which a court can competently deal--whereas to conduct a moral audit between two people, and to work out how they fulfilled their obligations towards each other, is beyond the competence of any earthly court that I have ever come across.
Mr. Alison:
There speaks the reasonable voice of the practitioner in the law. However, I shall quote from a letter to the Committee that shows the attitude and approach of a victim--in this case, a feminine victim--of the various processes that make up a divorce. I make no apology to the Committee for quoting from the letter, which says:
I shall call the lady's erstwhile husband "Jim", although that is not his name--[Hon. Members: "Sir Jim?"] Having caught the eye of my hon. Friend the Member for
Broxtowe (Sir J. Lester), I shall immediately abandon that pseudonym and call the man "Marmaduke" instead, in the hope that I shall not be causing offence anywhere in the Committee.
If one makes that change, the letter reads:
Divorce by post. The letter continues:
In other words, it needs to be defined in law that the accusations are based on behaviour and not only on the feelings of the petitioner. That is a fundamental reason for bringing the factor of fault, which is latent and irreplaceable in the Bill, right to the forefront in the hope that it will help with reconciliation.
I shall again quote from the important document that the Government have circulated. Under the explanation for the minimum period, the 12-month option, it states:
How can someone be encouraged to reflect on that if the Bill, without fault, conspires to conceal the underlying factors? We must have up front the factors that the Government themselves propose should be specified and placed under the microscope later in the divorce proceedings.
The very divorce proceedings that are the subject of the 12-month limit are flexible if the factors of fault are not properly dealt with. All that the amendment of my hon. Friend the Member for Gainsborough and Horncastle asks is that the realities of fault be specified, placed up front and used to help focus attention on the root of the problems of the marriage, so that the mediation and reconciliation that is in everyone's sights can be fruitful. It is for that reason that I hope that the Committee will see the sense in the Government maintaining fault. There is a half-open door in the Bill, and the amendment will push it a little wider to add logic to common sense in our approach.
Mr. Patten:
I am glad to follow my right hon. Friend the Member for Selby (Mr. Alison), and agree with everything that he said. I shall not labour the point any longer.
It has been an excellent debate, and I congratulate my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) on the way in which he introduced it. He put forward a case that many hon. Members, certainly many Conservative Members, find persuasive. He gave way on many occasions and replied with great authority. The debate lapsed into agreeable high farce only when the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) suggested that this was a Euro-sceptic issue. One of my
hon. Friends who was slumbering behind me woke up and rushed off to find whether there was some proposal for a Euro-marriage. He has not come back--Lord knows what he has found out.
Alas that we are where we are. This is a classic case of listening to experts. I have listened to experts; many of my best friends are experts. We have listened to lawyers--many of my closest, oldest and most stalwart friends are lawyers. We have ended up with a process-driven Bill that deals with technicalities and misses the main point, which is about marriage, the family and our social fabric. That is why we are where we are.
My hon. Friend the Member for Teignbridge (Mr. Nicholls) made a remarkable speech. I have listened to him often in the past 13 years, and it was one of the best that he has made. He said that we should use the Bill in Committee and on Report to try to introduce elements that will help to support the institution of marriage.
We are, alas, where we are, as my right hon. Friend the Member for Mitcham and Morden (Dame A. Rumbold) said, but we must try to use the Bill as constructively as possible to underpin the institutions of marriage and family. I suspect that there is much cross-party agreement on that. The arguments will go on in Committee and on Report. At least two days of debate on the Floor will be necessary for proper and careful consideration on Report. There will be changes at each stage to improve the Bill to support marriage, even though it was introduced to expedite and tidy up divorce.
I have only three points: first, a brief comment on the nature of contracts; secondly, a point about what has happened elsewhere in the world where such changes have been introduced; and thirdly, one about what will happen in 2020 if the Bill passes largely unamended.
Much has been said about the importance of contracts and of not lightly entering into agreements. That must be considered most solemnly, whether in a religious or secular sense, when two people decide to marry and live with each other for the rest of their lives. If a marriage contract is empty and has no meaning, marriage has no meaning.
I fall back, as I have on several previous occasions, on one of my distinguished constituents, Dr. Ruth Deech, the principal of St. Anne's college, Oxford. I do not know what her politics are. Lamentably, she is not a member of the Oxford, West and Abingdon Conservative Association. Equally lamentably, she persecutes me from time to time with attacks on the Government's education and other policies. I do not think that she is a close friend of the Government. In 1969, on the previous occasion when we set out to reform divorce law, she was a young researcher at the Law Commission. She saw it happen. She saw the results. Every time that we have legislated on divorce, as we propose to do today--whatever we have done or said--there has been a surge in the number of divorces thereafter.
We do not need to look to the United States or Australia for such evidence. If the Bill is passed, Dr. Deech says:
"In addition, the present law, which requires the court to take conduct into account in decisions relating to finance and property orders, where it would be inequitable not to do so, is not altered by this Bill".
"to have no 'fault' actually harms reconciliation attempts. Jim"--
"Marmaduke would not tell me what I had done wrong from a November to the March when I received the divorce petition in an envelope at the breakfast table."
"When I did not know what I had done wrong I could not say sorry to specific things, I could not try to make amends for specific things, and there was no way of negotiating agreement if one did not know what the problem was. Also no one else could come to the rescue and try and reason, if there was nothing to reason about and no way to make amends.
The registrar told me that the law upheld Marmaduke's viewpoint, however trivial the accusations were, because the law recognised the feelings of the petitioner as to what he felt was unreasonable, and therefore if I attempted to defend my actions this was counted as being even more unreasonable!"
"Once a statement of marital breakdown has been registered with the court, a minimum twelve month cooling-off period will follow during which couples will be encouraged to reflect on whether their marriage can be saved".
"The contract of marriage will become an empty one; there will be no rights and duties, no standards of behaviour, no commitment . . . Under the proposed new law marriage will be terminable with less formality than, for example, the ending of a lease or the hiring of a car."
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