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Mr. Peter Bottomley (Eltham): I am listening to my hon. Friend with great care. Were the period to be, say, two years, does he think that the time for reconciliation would be before people reached agreement on ancillary matters, after they had done so or at the same time?
Mr. Leigh: If one of the amendments were passed and the period were extended to 18 months or two years, I suggest that early in the process there would effectively be a litigation-free zone. Such a period, which is similar to what the Opposition spokesman is arguing for, would be built into the Bill. It would occur early in the divorce process, before people were allowed to start arguing about assets or what to do about the children and before mediators arrived to determine or advise on such matters. The time after a partner had lodged a statement of marital difficulty would be devoted to reconciliation.
My argument and that of Peter Duckworth is that, if the period is as short as 12 months, it is simply impossible to have a meaningful period of reconciliation--there is not enough time because there is so much to sort out. If children are involved and if there is not consent to the divorce, reconciliation will not be effective.
A final problem with the Bill, if not amended in the way that I am suggesting, is that permanent arrangements could be in place within three months of the beginning of the process. In theory, everything could be agreed within three months. Were that to happen, one would effectively be divorced within three months although, in practice, one could not remarry for 12 months.
If a woman wanted to eject her husband from the marital home--it is usually that way around--it could be done early in the process, especially if there were an allegation of domestic violence. A lawyer could be obtained to settle these matters quickly and one could effectively be divorced within three months. I know that that is not what the Under-Secretary wants, but often what Ministers want, as we have seen in previous divorce legislation, is not what happens after the courts have interpreted or re-interpreted the legislation.
Ruth Deech has already been cited once or twice in this debate. She is a good person to cite in this instance because she has apparently always opposed us on everything else and so cannot be accused of being a Conservative party stooge. She is, after all, the principal of St. Ann's college, Oxford and a very distinguished lady. In the context of what I am about to read out, it is important to note that she is a woman. She wrote:
That is a powerful point. Before hon. Members consider voting down the sensible amendments, which are themselves very much a compromise, I hope that they will consider what Ruth Deech said in her letter to me.
Writing in The Independent, Polly Toynbee said that the break-up of a marriage should be a cause for celebration. I do not think that most hon. Members would agree with that. Children want their parents to stay together. We would wholly reject any amendment that would reduce the waiting time to less than 12 months. Public opinion supports us on keeping parents together, and the verdicts of other jurisdictions in Europe also support what I am suggesting.
My view and that of many people who practise in this field is that one year is simply too short a time where children are involved or where there is a dispute. I urge the Committee to accept my amendments.
Mr. Donald Anderson:
I find the arguments proposed by the hon. Member for Gainsborough and Horncastle
There is broad agreement on the principles set out in part I of the Bill and on the notion that divorce is extremely costly, not only to the individuals involved and their children but to the state. There is also clear agreement that there should be some restriction on divorce in the early years of marriage. To that extent, I wholeheartedly concur with amendment No. 3, which was so ably moved by the hon. Member for Chislehurst (Mr. Sims). The question therefore is one of judgment--how long should the restriction last and in what circumstances should it be abridged? It was with those objectives in mind that I and--for these purposes--my right hon. Friend the Member for Barkston Ash made our own stab in response to the Minister's invitation to use his Department's resources in that respect.
I looked at the established principle--the formulation that was in being when I was called to the Bar in 1969. At that time, a petition could only be presented within three years of marriage if the court was satisfied that the case was one of exceptional hardship suffered by the applicant or exceptional depravity on the part of the other party. I had a word on that with the right hon. Member for Oxford, West and Abingdon (Mr. Patten), who thought that the word "depravity" very considerably appealed to him. The right hon. Member for Barkston Ash and I thought that, effectively, the formulation that we had proposed was not only more general, but had an established body of case law behind it and judgment on it, and could therefore be well understood.
I must confess that, having looked more carefully at the formulation and having reflected on the matter, especially in the light of the criticisms of it in pages 12 to 15 of the Law Commission's 1982 report, No. 116, "Time Restrictions on the Presentation of Divorce and Nullity Petitions", I have come to the view that that proposed by the hon. Member for Gainsborough and Horncastle is infinitely preferable. I shall briefly explain why.
The time-hallowed formulation, which included the remarkable word "depravity", had in practice proved quite difficult. It encouraged, if not ensured, that the particulars had to be made very unpleasant to bring the applicant within its terms. Setting out the case under it caused immense distress and humiliation. It led to very subjective judgments throughout the country, and, in effect, exaggerated the adversarial element. The task was therefore to find a formula that avoided those drawbacks, but which was simple, comprehensive and did not add further to the conflict between parties.
I wholly adopt the arguments of the hon. Member for Gainsborough and Horncastle. The proposed formula will not encourage further conflict when, for example, the case has already been before the court and there is a relevant non-molestation order. If there had been conflict, it would have been litigated previously and the court would have come to a decision in that respect. His formulation is simple, and using the phrase that has been used before, it gives all the right messages and signals.
The key question is therefore one of time. As a former practitioner who, certainly in the 1970s and early 1980s, practised in this field, I well accept what the legal adviser to the hon. Member for Gainsborough and Horncastle said. There needs to be more than one year. I hope that my hon. Friend the Member for Brent, South (Mr. Boateng), whose attitude to the Bill has been to emphasise the key need for adequate time and facilities for reconciliation, will make those aspects a matter of public policy. I hope that, when the Bill is in Standing Committee, the Government will be prepared to look very carefully at reconciliation.
There is also the question of resources. If the Government are really keen on reconciliation, adequate resources must be made available. The point made by the hon. Member for Mid-Kent (Mr. Rowe) must be addressed. Those who are in the business of counselling must be broadly from the same social class as those who need the counselling.
"Our ancillary relief is already a vengeful process and is based on the premise that all husbands should maintain their wives regardless of conduct, and regardless of her ability to keep herself. The pressure to settle in twelve months will make it worse in every respect.
Mediators will perforce lend themselves to this process of settling everything regardless of justice within 12 months. The wife who is reliant on Legal Aid will be at the mercy of the mediation process whereas the husband who can afford to pay a lawyer will be able to use ancillary relief for his own ends. Will mediators be able to tell wives about pension-splitting, the effects of the Child Support Agency, mortgage relief, intestacy law, joint bank accounts, etc? It is not surprising that where there is any money at all, ancillary matters can take more than 12 months."
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