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6.45 pm
The Chancellor of the Duchy of Lancaster (Mr. Roger Freeman): We have heard some powerful speeches in this important debate. I confirm, for the benefit of my right hon. and hon. Friends, that we will have a genuine free vote. Government Members, and--I am pleased to hear--Labour Members, must reach their own conclusions. They must use their conscience and their judgement as to how they should vote. Undoubtedly, the Government will be divided by opinion, but not by party loyalty. The contributions of hon. Members, expressing both sides of the argument, have been very powerful.
There is common ground: the need to campaign for the institution of marriage--I agree with the hon. Member for Brent, South (Mr. Boateng) on that. I note what my right hon. Friend the Member for Mitcham and Morden (Dame A. Rumbold) and my hon. Friends the Members for Lancaster (Dame E. Kellett-Bowman) and for Teignbridge (Mr. Nicholls) said in that regard. I support their views and the need for all hon. Members to do everything possible to support the institution of marriage. It is a tragedy that two out of five marriages in this country end in divorce. All hon. Members are seeking to reduce that number.
My hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) asked me to confirm the consequences of voting for amendment 1 and new clause 1. The Bill, as presently drafted, provides for no fault to be given as a reason for divorce, and for a one-year minimum period for reflection and consideration, with or without children.
Amendment No. 1, on which we are about to vote, is a paving amendment for new clause 1. New clause 1 provides reasons of fault--that is, unreasonable behaviour and adultery--as grounds for divorce, and there will have to be a one-year period of separation. New clause 1 also provides for divorce with consent, but no fault, after two years; and without consent, and without allegations of fault, after five years.
I confirm that, if this new clause is passed and we then come to amendment No. 7 after this vote--in the debate that is to be taken by my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department--the only consequence of amendment No. 7 will be to extend to a minimum of two years if there are children, even if there is an allegation of fault, the period before divorce can take place. Amendments Nos. 7 and 8 are consistent with new clause 1. If new clause 1 is passed, and if amendments Nos. 7 or 8 are subsequently passed, the Government will facilitate appropriate amendments to ensure that they are consistent with the rest of the Bill.
My right hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) prayed in aid the examples in other countries, particularly the United States. I urge hon. Members to treat with some caution the statistics that are
available from other countries--from Scotland, Northern Ireland and, in particular, the United States--in arguing for or against the amendment. Circumstances are different. Provisions in the divorce law other than those relating to the minimum period, such as whether there is fault or no fault, may influence people's behaviour. In any case, I have to agree with my hon. Friend the Member for Lancaster that, sadly, there is an upward trend in the rate of divorce throughout the western world, whatever the provisions in national legislatures concerning divorce.
I suggest to the Committee that we should take into account two important criteria in reaching a judgment tonight. First, we should ask ourselves: are the steps that we are taking in voting on clause 5--that is to say, fault or no fault--likely to reduce the rate of divorce to lower than it would otherwise be?
I cannot hold out any hope to the Committee, on behalf of the Lord Chancellor and my other right hon. and hon. Friends who have been involved in the preparation of the Bill, that in itself it will reduce the absolute number of divorces. The argument is whether the provisions in the Bill at the moment would reduce the number to lower than would otherwise be the case. The second criterion, as so many hon. Members have said, is the effect on children.
I emphasise that this debate is not about the minimum period for reflection and consideration; it is not about the minimum period before a divorce can occur. Indeed, the lengthening of the minimum period from the few months that can occur at present under our present law to a minimum of one year will, in itself, make divorce harder and send a signal to all those who are contemplating marriage--or, regrettably, contemplating divorce--that it will be harder than at present. Amendments Nos. 7 and 8 lengthen that period to 24 months or 18 months respectively.
I say to my right hon. Friend the Member for Selby (Mr. Alison) that everyone recognises that there are always faults when a marriage breaks down and when a couple look at the prospect of divorce. The issue before us tonight is not the statement of faults, which often occur on both sides and obviously must be explored through the process of reflection and consideration, through mediation and through counselling. The issue is whether the two very narrowly defined faults--adultery and intolerable behaviour--in themselves should be grounds for divorce.
The amendment tabled by my hon. Friend the Member for Gainsborough and Horncastle still leaves fault as an optional remedy; indeed, it is not necessary always to allege fault in order to cause a divorce under my hon. Friend's amendment, because he holds out the prospect of divorce after two years--
Mr. Leigh:
Will my right hon. Friend give way?
Mr. Freeman:
My hon. Friend will forgive me.
He holds out the prospect of divorce after two years with consent and five years without consent, where fault is not alleged.
Sir David Mitchell:
Can my right hon. Friend confirm that there is no relationship between the question of fault or no fault and the form of the financial settlement that may follow?
Mr. Freeman:
No. As my hon. Friend will know, in Committee there will be discussion of, and amendments
In the remaining few minutes, I shall try to sum up the arguments for and against fault in divorce proceedings. There were three arguments in favour of the amendment.
The first argument was that it sent a moral message--a sanction--that the reason of fault could be used by one partner against another, and my hon. Friend argued that that might stiffen people's resolve, that it would send a clear message that marriage was a lifetime's commitment. My hon. Friend would be the first to concede, however, that, as my hon. Friend the Member for Teignbridge said in a powerful speech, it is not always the case that 100 per cent. of the fault is on one side. In reality, in most cases, fault is on both sides.
The second argument, advanced in particular by my hon. Friend the Member for Lancaster, was that of vindication. She described the situation of a middle-aged wife who had forsaken her career to support her husband, who then deserted her for a younger woman. The argument was that her ability to allege fault was a vindication and a necessary weapon, as it were, for the wronged party to use. However, as the hon. Member for Swansea, East (Mr. Anderson) said, when there is fault on both sides, much depends on who gets to the divorce lawyer first and who lodges the petition.
Thirdly, the argument has been advanced, especially by my hon. Friend the Member for Colchester, North (Mr. Jenkin), that marriage is a contract, and there is no penalty if the concept of fault is removed. I draw the attention of the Committee to the fact that the Bill, as drafted, provides for a minimum of one year for reflection and consideration. That makes the marriage contract more important than it is at present, as it is currently possible to obtain a divorce in weeks.
I shall now mention the arguments against the amendment tabled by my hon. Friend the Member for Gainsborough and Horncastle. My hon. Friend the Member for North-West Hampshire (Sir D. Mitchell) pointed out clearly that, if one uses fault as a reason for divorce and it is only one of the grounds for divorce, one is in some ways building oneself into a confrontational escalation of the procedure. The mere fact of alleging fault and ascribing the evidence can in itself lead inevitably to the conclusion of divorce, so it can be argued that it makes reconciliation less likely.
As my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department will explain later in other debates, at the heart of the Bill is the introduction of a new procedure of mediation, of reconciliation, of trying to save marriages after the initial process has begun--that is to say, the statement of an irretrievable breakdown. Some marriages can be saved even though proceedings have begun.
The second and final argument against amendment No. 1 advanced by some, although not shared by my right hon. Friend the Member for Westmorland and Lonsdale (Mr. Jopling), was about the effect on children. The Committee must ask itself tonight, what would be the effect on the children of a marriage if we reinserted into
the Bill allegations of fault, which would inevitably involve greater acrimony and hostility between the partners?
I will give way at the end of my remarks to allow my hon. Friend the Member for Gainsborough and Horncastle the last two minutes in which to speak.
I urge in the Committee, in a free vote, to use not only its conscience but its judgment.
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