Power of Abridgement (Transitional Provision)

New clause 6 – in the House of Commons at 4:23 pm on 17th June 1996.

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`.—(1) The Lord Chancellor may make rules prescribing circumstances in which the court may abridge, in respect of a marriage, any period specified in section 7(3) or (13) or section 8(2) where it appears to the court that any party to the marriage or any children affected would otherwise suffer inequitable treatment in comparison to other cases where there had been an irretrievable breakdown of a marriage.

(2) Rules made under this section shall cease to have effect on the fifth anniversary of the day on which Part II of this Act came into effect.'. —[Mr. Boateng.]

Brought up, and read the First time.

Photo of Mr Michael Morris Mr Michael Morris , Northampton South

With this, it will be convenient to discuss the following: Amendment No. 107, in schedule 9, page 83, line 15, at end insert— 'Transitional arrangements for those who have been living apart—(1) The Lord Chancellor may by order provide for the application of Part II to marital proceedings which—

  1. (a) are begun during the transitional period, and
  2. (b) relate to parties to a marriage who immediately before the beginning of that period were living apart,
subject to such modifications (which may include omissions) as may be prescribed.(2) An order made under this paragraph may, in particular, make provision as to the evidence which a party who claims to have been living apart from the other party immediately before the beginning of the transitional period must produce to the court.(3) In this paragraph—
  • "marital proceedings" has the same meaning as in section 21;
  • "prescribed" means prescribed by the order; and
  • "transitional period" means the period of two years beginning with the day on which section 3 is brought into force.'.
Government amendments Nos. 93 to 95.

Photo of Mr Paul Boateng Mr Paul Boateng Shadow Minister (Business, Innovation and Skills), Shadow Minister (Lord Chancellor's Department)

New clause 6 is designed to ensure that no injustice is done to the petitioning spouse to a divorce under the old law, who has lived separate and apart from his or her spouse for two years and is seeking a divorce by consent at the expiry of that period—or for five years, where there is a refusal of consent on the part of the respondent—as a result of the Lord Chancellor's bringing into effect the relevant provision of the Bill.

One of the alarming aspects of the Government's approach to the Bill is that they seem to have been caught between two conflicting impulses—the technocratic impulse, which has been present throughout consideration and formulation of the Bill, and the impulse to be seen to be paying at least some lip service to the maintenance of marital bonds. That has led them into error.

At one stage, it was the Government's view that there should be no transitional provision. So, it was just one's bad luck if one happened to have been working on the basis of the old law and was one year and 11 months into separation, or, indeed, one's misfortune if one had a recalcitrant and obstructive spouse and was four years and 11 months into a five-year separation. One would just have to begin all over again.

That was clearly grossly unjust and caused widespread concern among the general public. We tabled the new clause and an alternative in amendment No. 107 to deal with that injustice. During a five or two-year transition period, the Lord Chancellor would have power to make necessary regulations to avoid an ensuing injustice to the parties. Such power is particularly important where children are involved. Uncertainty and damage can be done in such circumstances to children whose parents are precluded from arriving at new arrangements for their welfare or to children whose parents are precluded from entering into new, more formal relationships—when, perhaps, a child has been born of a new relationship—in order to secure their children's legitimacy. Unnecessary and unjust delay in those circumstances is clearly undesirable. Such delay would certainly occur were the House not to agree the need for transitional provisions.

I hope that the Government will accept that there is a need for such transitional provisions and that, accordingly, the Bill will be improved by their inclusion. The Opposition look forward to the Minister's early and positive response, while recognising that, when a similar amendment was tabled in Committee, the then Minister would have none of it. I hope that, now, good sense prevails and the Minister will be able to satisfy the Opposition and the House on the point.

Photo of Gary Streeter Gary Streeter Parliamentary Secretary (Lord Chancellor's Department), Assistant Whip (Law Officers)

I speak against new clause 6, and in favour of amendment No. 107, which was also tabled by the right hon. Member for Sedgefield (Mr. Blair). I have taken advice from parliamentary counsel, and that suggests that, in order to achieve what I take to be the intention of new clause 6 and amendment No. 107, the wider-ranging, order-making power of the latter would be more suitable, because it would allow the court to adjust more of the Bill's provisions than simply the time periods. Bearing in mind the way in which the Bill's provisions interlink, that may be necessary to ensure workability.I therefore urge my right hon. and hon. Friends to vote against new clause 6 and in favour of the amendment.

Amendment No. 107 provides for those couples who have been living apart immediately before the new provisions of the Bill coming into force. It addresses the situation where parties are in the process of a two or five-year separation period and have therefore not commenced divorce proceedings. As currently drafted, the Bill provides that parties in such a position would be required to undergo the full process under the new system, with no account being taken of any prior period of separation. Clearly, it would not be right to require couples to wait twice for their divorce.

The amendment allows the Lord Chancellor to modify the requirements of part II to provide that account may be taken of prior periods of separation, on proof of such separation being produced to the court, for a transitional period of two years. I appreciate that, in this respect, the Bill's current provisions may well lead to difficulties, especially where children are involved and where further delay would be unfair and detrimental to their welfare. I therefore have pleasure in agreeing to the amendment.

Photo of Peter Bottomley Peter Bottomley , Eltham

I welcome both the amendment and my hon. Friend the Minister's welcome for it. In practical terms, the amendment matters to the couples involved. In terms of number, it is not that important because only a small proportion of divorces occur after a five-year separation, and a relatively small number of divorces occur after two years when, in effect, both parties concur in the application. As my hon. Friend the Minister and the hon. Member for Brent, South (Mr. Boateng) have said, it would be wrong if the Bill's provisions were to catch for an extra year or so those who are in the process of waiting for two or five years.

Photo of Mr Paul Boateng Mr Paul Boateng Shadow Minister (Business, Innovation and Skills), Shadow Minister (Lord Chancellor's Department)

I welcome the Minister's accession to amendment No. 107. In the light of that, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.