Family Law (Divorce etc.) Bill: Second Stage

– in the Northern Ireland Assembly at 11:15 am on 17 September 2002.

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Photo of Sean Farren Sean Farren Social Democratic and Labour Party 11:15, 17 September 2002

I beg to move

That the Second Stage of the Family Law (Divorce etc.) Bill (NIA 01/02) be passed.

The Bill deals with two aspects of family law. The first is divorce, which is a sad reality of life for many in Northern Ireland. The second concerns three outdated and anomalous provisions of the law on family property, which I shall deal with presently.

The Executive, in their Programme for Government, are committed to supporting children and their families. The Executive’s children’s fund has been created to develop services that will help children and their families in Northern Ireland. The Children’s Commissioner Bill is another example of our concern for children. Supporting families should be one of our main concerns. However, support comes in many forms, and we must face reality. Sadly, marriages do break down, and all sorts of families are affected by breakdowns that occur for all sorts of reasons. Experience shows that people in Northern Ireland do not enter into divorce lightly. I can assure the Assembly that research commissioned by the Office of Law Reform shows that couples tend to divorce using the separation facts and over a relatively long period. In contrast to the position in England, our divorce rate is around the European Union average. Divorce rates have remained almost the same over the last decade, although, as the statistics show, the numbers fluctuate from year to year.

Divorce law has evolved over many years to cater for the needs of society. In the nineteenth century, industrial injury and the perils of childbirth meant that most marriages were short-lived — often they did not last beyond 10 or 20 years. For those whose marriages broke down, divorce was available only at great cost by a private Act of Parliament. Parliamentarians felt that divorce should be made difficult and expensive to keep it out of the hands of the so-called feckless poor.

Despite that policy, marriages broke down, and people sought different ways of handling the situation. Men in particular simply deserted their families and started a new life in another part of the country leaving their wives and children to be cared for by the local poor law committee. However, society has evolved since then and is no longer prepared to allow people to act in that way. Although marriage breakdown is not a new problem, divorce law must be periodically reviewed to ensure that it meets modern-day requirements and protects people. The Bill follows wide consultation with people across Northern Ireland and is informed by long and detailed research on how people here use the divorce system.

The research and consultation processes showed that the divorce system here works fairly well most of the time. However, there is room for improvement. In particular, the system could do more to promote good post-divorce relationships for the sake of the children and to minimise, in so far as primary legislation can, the bitterness and acrimony of divorce. Children could, and should, be more central to the system, and the law could be made easier for users to understand.

The Bill does not make divorce easier. It seeks to refine the divorce system so that it can better achieve its objectives. It strikes a balance between fears about maintaining family life and ensuring that no one is left outside the law’s protection during a difficult period.

The Law Commission for England and Wales made a famous statement in 1966:

"A good divorce law should aim to save saveable marriages and to ensure that where a marriage has irretrievably broken down, the empty legal shell should be destroyed with the maximum of fairness and the minimum of bitterness, distress and humiliation."

I would like to add to that. A good divorce law, like a team of paramedics, is called upon in the aftermath of the disaster of marriage breakdown. It does not cause the disaster, but it will be judged on how well it deals with the aftermath and on how it facilitates the resumption of normal life.

Although some acrimony is unavoidable, an effective divorce system can help to lower the tension between the parties. In many cases, after they cease to be husband and wife they will still be father and mother. A good divorce system does not worsen relationships between them so that they are unable to maintain a relationship as parents for life.

The Bill, therefore, fine-tunes the procedures for divorce in Northern Ireland. I want to ensure that those procedures do not make a difficult situation even harder for the parties and children affected by the breakdown of a marriage.

In the main provisions of the Bill, clause 1 sets out a statement of principles. That is designed as an interpretive aid for the court and for any persons exercising functions under the divorce legislation. The principles are that where a marriage has irretrievably broken down and is being brought to an end, it should be done with the minimum distress to the parties and children affected; that questions should be dealt with in a manner designed to promote as good as possible a continuing relationship between the parties and children affected; and that in those cases where there is a risk of domestic violence, it should be removed or diminished as far as is reasonably practicable.

Currently, the only ground for divorce in Northern Ireland is the irretrievable breakdown of marriage. The Bill does not seek to change that. Under the present law, irretrievable breakdown of marriage is proved by using one of five facts. Those are adultery, unreasonable behaviour, desertion for a continuous period of two years, two years’ separation with the consent of the respondent, or five years’ separation. Three quarters of Northern Irish petitioners use separation facts, in sharp contrast to England where three quarters of petitioners use fault facts. When people in Northern Ireland use fault facts, they are most likely to use unreasonable behaviour.

Our research showed that the most common behaviours complained of were violence and alcoholism. Although many consultees felt that separation was an appropriate basis for divorce, there was also a strong feeling that the law must protect those who had suffered during their marriages because of their spouses’ behaviour. A fault fact, therefore, had to remain available.

Clause 2 of the Bill, therefore, retains irretrievable breakdown of marriage as the sole ground for divorce in Northern Ireland, as evidenced by three facts: two years’ separation with the respondent’s consent; three years’ separation; and unreasonable behaviour.

The periods of separation balance the need for enough time to prove irretrievable breakdown with the need to avoid delay for an unreasonable time in accessing financial remedies and arrangements for children. Consultees thought that the existing two-year period with the respondent’s consent was appropriate, and I concur. A wider range of views was taken in relation to the five-year fact, but there was a strong feeling among consultees that five years was too long to deny people remedies from the divorce courts. I have, therefore, chosen three years. That period is long enough to demonstrate that the marriage has indubitably died, but not so long as to deny access to court.

As consultees identified, some petitioners require divorce to be on the basis of fault for religious reasons or because they suffered greatly while married. Some actions so destroy the soul of a marriage that as a result a reasonable person would conclude that the petitioner could not be expected to live with his or her partner. Present law formulates that sentiment as:

"The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him/her".

In legal shorthand, that is referred to as "unreasonable behaviour", which is broad enough to cover the variety of behaviours that can cause a marriage to break down. I intend to retain that definition as the fault ground.

Members should not be concerned that the adultery fact will no longer appear in the primary legislation. Adultery strikes at the heart of marriage and cannot be tolerated. It is not my intention to detract from the seriousness of adulterous acts or to belittle their effect on the wronged party or on the trust that is the foundation of marriage.

The legal definition of adultery is limited. In the law only the act of full, penetrative vaginal intercourse counts as adultery, and proof of that act is required. Other forms of sexual infidelity are not legally regarded as adultery. Providing proof of adultery is prurient, difficult and often degrading for the petitioner. Under the Bill, adultery will still appear in the divorce petition, but the petitioner could also include any other connected behaviour that he or she had to endure, such as unexplained absences, changes in mood and sums of money spent in mysterious and unexplained ways.

The substantive law, therefore, has not changed. Adultery is still grounds for a divorce. The law takes sexual infidelity seriously and condemns it. Including adultery in the "unreasonable behaviour" fact will make the law easier to understand and will remove the technical and illogical legal differences between acts of sexual betrayal.

The Bill removes the legal fact of desertion, which is infrequently used, complex and difficult to prove. In all but the rarest cases, a petitioner who can rely on the fact of desertion could also use two years’ separation with consent or unreasonable behaviour as grounds for divorce. The exceptional and, perhaps, hypothetical petitioner who cannot rely on those grounds will be able to obtain a divorce using the three-year separation fact.

In line with proposals for divorce, the Bill amends the grounds for judicial separation to maintain parity. To maintain consistency throughout family law, it also amends the grounds on which a maintenance order may be obtained in the domestic proceedings court.

Clause 3 provides that in certain strictly judicially controlled cases, the oral hearing for divorce may be dispensed with. That would be available only in separation cases where arrangements for children are settled and where the respondent consents to that course of action. Consultees indicated that in some cases hearings are a stressful and unnecessary part of the process. However, the correct checks and balances must be put in place to ensure that the system protects parties and their children, especially those whose parents have not settled and made sensible decisions about their future. That is why the court is given discretion to decide whether a case is suitable for the no-hearing route, taking into account the respondent’s consent as well as the children’s interests.

There is also a catch-all provision, which has always existed, that allows a judge to dispense with oral testimony for special reasons; for example, if the petitioner is seriously incapacitated and unable to attend court.

Clause 4 allows the decree absolute, which is the final decree that dissolves the marriage, to be automatically generated after six weeks. That removes the onus from the petitioner to apply to the court office. However, the decree can be delayed by an application by either party under the Children (Northern Ireland) Order 1995 or by the respondent for financial provision in separation cases.

Clause 5 makes provision for suitable cases to be adjourned for mediation. That process enables parties to meet a trained individual and work through the remaining issues in the marriage, such as finances or arrangements for children. It is not reconciliation; it is an alternative dispute-resolution method that is helpful to some, but not all, couples. That is why the court is given discretion to adjourn cases for the purpose of referral to mediation. That power is extended to judicial separation cases and to those under the Domestic Proceedings (Northern Ireland) Order 1980.

Clauses 6 and 7 concern the grounds of application for financial provision under the Matrimonial Causes (Northern Ireland) Order 1978 and the 1980 Order. The present fault grounds will be amended to reflect the divorce grounds in the Bill. The "failure to maintain" ground will be amended in order to sound less adversarial by adding the words

"ought in all the circumstances of the case".

That takes into account the applicant’s need and the respondent’s ability to pay, and is designed to reduce the acrimony of the proceedings without changing the outcome of the case.

Clauses 9 to 11 address three anomalous areas of family law that must be amended so that the United Kingdom can ratify protocol 7 to the European Convention on Human Rights. The three anomalies are: the presumption of advancement; the common-law duty of a husband to maintain his wife; and the rule on housekeeping moneys. Since protocol 7 requires equal treatment in the law between husband and wife, those technical areas must be changed.

The presumption of advancement between husband and wife is a legal doctrine that affects property ownership between them. If a husband gives property to his wife, it is deemed to be a gift. However, if a wife gives property to her husband, she retains an interest in it, and her husband holds it in trust for her. That doctrine does not always reflect the intentions of the parties and can lead to unfair results in some cases. The Bill abolishes that presumption and will, therefore, allow the parties’ intentions to determine where property ownership lies.

The Bill will abolish the common-law duty that a husband should maintain his wife. That duty has been usurped by more modern primary legislation, such as the 1980 Order, but was never explicitly removed from the common law.

The rule on housekeeping moneys can lead to unfair results. Currently, any housekeeping allowance that a husband gives to his wife remains his property, including property that is purchased from the allowance. Even lottery or pools winnings that the wife wins using housekeeping money will theoretically belong to the husband. Again, that does not generally reflect modern conditions or the intentions of the parties. Clause 11 states that in the absence of any agreement to the contrary, money derived and property acquired from the allowance shall be treated as belonging to each party equally.

The remainder of the Bill’s clauses and its schedules are technical in nature and deal with amendments and repeals of the existing legislation. They also contain provisions in relation to interpretation and commencement.

The provisions of the Bill will have an effect on court procedure, so commencement will depend on making new court rules, which are the statutory instruments that govern court procedure. My Department will liaise closely with the Northern Ireland Court Service on this.

The Bill is a reflection of the ever-changing nature of society and the need to review the law periodically to reflect society’s needs. It will not bring about root-and-branch reform but will refine and hone existing legislation and make the law easier to understand for those who use it.

Divorce is not a pleasant subject. It is not an option that any of us want to face or have our friends or family members face. However, it happens for all sorts of reasons and to all sorts of people. I want a divorce system that supports people as much as possible during a difficult period in their lives, and I consider that the Bill will achieve that. I commend it to the Assembly.

Photo of Francie Molloy Francie Molloy Sinn Féin 11:30, 17 September 2002

Go raibh maith agat, a Cheann Comhairle. I thank the Minister for his statement and his explanation of the Bill. Its general principles and objectives include an aspiration to minimise the distress to the parties involved and their children.

The Bill’s intention to promote good post-divorce relationships between parties and between them and their children and to remove any risk of domestic violence to one of the parties in the marriage or to the children is to be welcomed. The Bill provides practical measures to support those aspirations and includes a provision to make it easier to change a fault-based divorce to a separation-based divorce and thus reduce acrimony. It also empowers courts to adjourn cases to allow mediation and enables couples to agree future arrangements for their children and their finances. The procedural changes enable some people to choose not to have a hearing. In addition to that, the Bill provides for several anomalies in the family property law to be addressed to enable the British Government to ratify protocol 7 of the European Convention on Human Rights.

The Office of Law Reform has briefed the Committee for Finance and Personnel on the principles and details of the Bill. There has also been departmental consultation. The level of pre-introduction consultation is welcomed, and the Office of Law Reform’s treatment of the Bill is a good example for the future.

We all have personal views on the permanence or otherwise of marriage and the issue of divorce. The law permits divorce on the grounds of the irretrievable breakdown of marriage, and that is a reality. Given that, any measures to reduce the associated acrimony and bitterness should be recognised and welcomed.

The Committee for Finance and Personnel will examine in detail the key issues arising from the Bill and will take evidence from interested groups. If the Bill passes the Second Stage, the Committee will place a public notice in newspapers inviting written submissions.

The Committee is concerned about the permanence of marriage and its perception of the ongoing effort of some groups to undermine the sanctity of marriage. The Committee wishes to be reassured that the intention is not simply to provide a facility for quicker divorces but to reduce the inevitable distress and hurt experienced when a relationship irretrievably breaks down. The Committee wishes to see greater efforts made to strengthen the concept of marriage and to support couples in difficulty.

The Committee will examine the Bill and its provisions in detail, report its findings and make recommendations to the Assembly.

Photo of Esmond Birnie Esmond Birnie UUP

I welcome the opportunity to speak on the Second Stage of the Family Law (Divorce etc.) Bill.

The aims of the Bill, as expressed, for example, in clause 1, which deals with the effect on parties and any children, are laudable. However, I am concerned about what may be the unintentional by-products of the Bill and their possibly negative social consequences. My concerns relate mainly to the so-called facts — the factors that the courts must consider to establish whether a marriage has broken down irretrievably.

I wish to pay particular attention to clause 2, which replaces article 3(2) of the Matrimonial Causes (Northern Ireland) Order 1978. The proposed new paragraph 2(b) reduces the required separation period without consent from five years to three years. Whatever may be argued to the contrary, that will make it easier to get a divorce, and it will increase the incidence of divorce.

A second change to the facts is made in the proposed new paragraph 2(c), where the categories of so-called fault — adultery, desertion, and so forth — are amalgamated under the single category of unreasonable behaviour. This implies a diminution of the seriousness of the emphasis placed on individual responsibility for actions that may grossly undermine a marriage.

It will be argued that the Bill represents a change to the law as it operates in England and Wales, other Commonwealth countries, and perhaps elsewhere. However, as England has the second-highest divorce rate in the European Union, care and due caution must be exercised with regard to imitating that example. The Minister rightly emphasised the fact that Northern Ireland’s divorce rate is substantially lower than that of the rest of the United Kingdom, which leads me to question the need for this series of major changes to the so-called facts that determine irretrievable breakdown. Apart from any consideration of the intrinsic merits of marriage and its permanence, I am concerned by the wider and negative social consequences of any further increase in the divorce rate in the Province. I am sure that that concerns all Members.

Even if the Bill succeeded in its stated intention of reducing the friction between adults who are, sadly, involved in a divorce process, there would remain a legitimate concern that the children involved would have a different experience. There is much evidence to support that concern. In 1994, ‘The Exeter Family Study: Family Breakdown and Its Impact on Children’ suggested that children involved in a divorce situation often experience more psychological distress as a result of the divorce process than as a result of any conflict between the parents during their time together. That point is made in other similar pieces of research.

I recognise the Bill’s good intentions, and, as the Minister rightly said, there is a requirement that certain laws be changed, given various human rights and European considerations. However, with regard to the facts, the Bill contains a fundamentally unsound assumption that it is mainly the divorce process and how it proceeds that determine the degree of acrimony in the marriage breakdown. Surely it is the acrimony that predates and causes the breakdown.

I am pleased to have had the opportunity to highlight some of my concerns about the Bill, and I trust that the Committee will consider these late points.

Photo of Patricia Lewsley Patricia Lewsley Social Democratic and Labour Party 11:45, 17 September 2002

I welcome the opportunity to speak in support of the Second Stage of the Bill. The Assembly has a duty to provide essential public services and to make provision on essential everyday living issues. It has already been stated, and reiterated by the Chairperson of the Finance and Personnel Committee, that divorce is a sad reality in Northern Ireland, and we have a duty to do all that we can to ensure that people faced with difficult circumstances are protected legally and are supported in rebuilding their lives as painlessly as possible.

Members have raised some concerns, and there are also concerns in the wider public, that, in introducing the Bill, divorce is being made easier. The Minister should clarify whether the Bill does make divorce easier. He should also reassure the Assembly that, in the drafting of the legislation, individuals and relevant groups had a full say on the Bill’s contents. Can the Minister outline the type of consultation undertaken, and how wide that was?

The Executive have said that they are committed to promoting the family and to protecting the rights of children. I welcome the inclusion in the statement of principles of the fact that children’s interests are important in divorce proceedings, during which the focus is mostly put on the husband and wife. Children are often overlooked. The Minister should tell us what his Department is doing to ensure that mediation is put in place specifically for children caught up in a divorce.

While facilitating those people faced with divorce, we should continue to strive to promote marriage. Can the Minister tell Members what the Executive are doing to promote marriage? I support the Bill.

Photo of Ian Paisley Ian Paisley Leader of the Democratic Unionist Party

We gave notice to the Minister, when discussing the Marriage Bill, that the Family Law (Divorce etc.) Bill would be more controversial. The Minister is well aware of the controversy that this Bill, and other Bills regarding marriage, is bound to raise.

The Minister has made clear his views on some matters today, but they are not matters that can be brushed aside by saying that the legislation should proceed because of the needs of the people. What are the needs of the people? My opinion is that the needs of the people are not served by legislation that will weaken the sanctity of marriage. The need of the people is to strengthen marriage, not to undermine marriage or to make it easier to depart from the solemn obligations entered into by those who are married. The need of this hour is not legislation for easy divorces, or using legislation to say that something is just a fault when it is far more than that. The current need is to strengthen marriage, and my party would be dedicated to the strengthening of the marriage bond and dedicated to the sanctity of marriage.

It is interesting to note that in the unfallen world, before sin entered and ruined mankind, there were two great ordinances: the ordinance of marriage and the ordinance of the holy day of God. These two ordinances are under savage attack in the world in which we live, and that indicates the sad departure of people from that which is right, true, and divinely revealed. Many people will disagree vigorously with what I am saying, but that matters not. We must realise that in this world we have two great pillars, which I believe are very important. Today, we are discussing the pillar of marriage. When we look at the laws on the statute book regarding marriage, we see how far we have departed, and how we will depart further if the Bill is accepted.

According to page 109 of the third edition of ‘Words and Phrases Legally Defined’, edited by barrister John B Saunders of Lincoln’s Inn:

"Marriage, in its origin, is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind: It is the parent, not the child, of civil society."

That is an important statement for all of us to consider. Marriage is the parent, not the child. The child can be defended properly only if proper defence is given to the parent.

The quotation continues:

"In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilised countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded: It then becomes a religious, as well as a natural, and civil contract; for it is a great mistake to suppose that, because it is the one, therefore it may not likewise be the other. Heaven itself is made a party to the contract, and the consent of the individuals, pledged to each other, is ratified and consecrated by a vow to God. Dalrymple v Dalrymple"

I will quote from the case of Bethell v Hildyard:

"I am bound to hold that a union formed between a man and a woman in a foreign country, although it may there bear the name of a marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England unless it be formed on the same basis as marriages throughout Christendom, and be in its essence ‘the voluntary union for life of one man and one woman to the exclusion of all others’."

Marriage deals with different sexes; it is a union between a man and a woman. I have listened to the attacks made on marriage in the House of Commons, and I have been disgusted by some of the remarks that have been made there on this issue in the attempt to take away the sanctity of marriage.

Amendments must be made to the Bill. I, and others in my party, will be doing that, and we hope to sponsor important amendments in the Finance and Personnel Committee.

I do not support the Minister in taking away the importance of adultery in the present divorce legislation. He is not right when he argues that he can do that and not weaken marriage. The question of adultery goes to the very heart of marriage. Marriage should be a relationship that ties the man and his wife together in such a way that they two become one flesh. When that is violated it is not a fault but a crime, as much as the others delineated in the Ten Commandments of the law.

If it is wrong to do other things, then adultery is certainly wrong. No legislator should think that, with a simple line in a Bill, he can lessen the seriousness of that matter.

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I am glad that divorces in Northern Ireland are fewer than in the rest of the United Kingdom. We should be glad of that and should aim at strengthening, rather than weakening, marriage. That is a matter to which we should all attend. This Bill deserves the closest possible scrutiny of every Member in the House. There should also be a thorough examination of some of the implications that will naturally flow from it.

Changing the five-year period to three years has been mooted. That is also a very serious matter. If parties are unable to come to the courts to deal with their divorces on the basis of the law that we are about to pass but, by default, as it were, wait the current five years, it is a break-up. If they must instead wait only three years, that will release the pressure on them. Those matters need extremely careful consideration.

There is a great difference between the view taken by the Bible and by our Lord Jesus Christ on marriage and that which is common in this country today. That is sad, for a happy country is one with happy and permanent marriages. I have been involved in pastoral work in Belfast for 56 years; what a delight it is to celebrate with those who have been married for 50 or 60 years. Their marriages have stood the test of time, and their families have benefited. I agree with the Minister that we must think of the children of broken marriages, for no one suffers more than the child.

We should aim to mend marriages and put our weight behind the movement that we need in our land to re-establish the sanctity and honour of marriage and the solemn obligation of those who marry. The common idea that, if things do not work out, a person can get a divorce, is not the way to enter a marriage. The couple should enter marriage to make it work.

All of us who have happy marriages know that we must work at them. Marriages do not run smoothly, because of the many weaknesses in human nature. However, we should all work to see that we keep one of the most precious commodities in the world, one which means much to the future of our nation because of its effect on the children whom we bring up and train in the ways of truth and righteousness.

I look forward to the amendments that my Colleagues on the Committee for Finance and Personnel will move, to reading the record of the debates in that Committee and to a time when we return to the House to deal with this matter again.

Photo of Seamus Close Seamus Close Alliance

As one who is, if I might use the phrase, firmly wedded to the concept of marriage and the belief that it is the union of one man and one woman, voluntarily entered into to the exclusion of all others for life, I have difficulty with any alternative procedures that might undermine its importance. Marriage, and thus the family, forms the very basis — the nucleus — of any society. It therefore goes without saying that the destabilising of that institution has a profound impact on society itself.

We have only to look around us in today’s imperfect world to see the relevance and the truth of that statement. If we further undermine the institution of marriage, future generations will be all the poorer for any failure to adhere to the clear definition, meaning and understanding of what marriage is about.

Having been happily married for more than 24 years, I have some experience of the importance and meaning of marriage, and its immeasurable benefits. Having said that, I recognise that we live in a real and imperfect world. As Members of the Assembly, we have to address unpalatable facts in an impartial manner. With that in mind, I look forward to the line-by-line scrutiny of the Bill and the amendments that have been suggested.

In recognising the unpalatable law of the land that permits divorce due to the irretrievable breakdown of a marriage, we must ensure that bitterness and acrimony are minimised. Although the intent of the Bill may be to reduce bitterness and acrimony, and ensure that any children of a marriage that breaks down irretrievably suffer less hurt, I do not need to remind the House of the old saying that the road to hell is paved with good intentions.

I am conscious that Northern Ireland has a lower divorce rate than other parts of the UK and Europe. I shall, therefore, seek to ascertain why, if that is the case, we want to change the legislation, particularly through clause 2, which could be interpreted as making divorce easy. We have heard the expression "quickie divorce". We do not need quickie divorces: they are not in the interest of the people of Northern Ireland, for whom we should be ensuring a better future.

Clause 2, which lowers the separation requirement from five years to three, causes me concern. I also share the concerns expressed by Dr Birnie and Dr Paisley about the amalgamation of fault. It is subject to interpretation. How can the great fault of adultery be minimised, dismissed and amalgamated with other problems? That is a gross underestimation of the seriousness of adultery, and, in so doing, the Bill undermines the importance of the state of marriage. That issue must be carefully scrutinised and sorted out.

I do not have any particular problem with clauses 8, 9 and 10, which deal with housekeeping money and duty of maintenance. Many of those matters are anomalous and probably obsolete but do not cause the same concern as clause 2.

In looking forward to the examination of the Bill, I assure Dr Paisley, who has made a plea that it should receive close scrutiny, that as a member of the Committee for Finance and Personnel, Close will be giving scrutiny to the Bill.

Photo of Prof Monica McWilliams Prof Monica McWilliams NIWC

I am glad that Seamus Close recognises that some things are obsolete and must be changed. The spirit of the Family Law (Divorce etc.) Bill involves looking at what real marriages are like today and trying to provide for them in legislation.

As regards the irretrievable breakdown of marriage, perhaps some Members have not read the Bill. It does not remove adultery from the law — a divorce granted on the grounds of irretrievable breakdown can still be obtained on proof of an act of adultery, just as it is under present law. The Minister, in his opening statement, said that as there are so few people proceeding on grounds of adultery that it does not seem reasonable to make that one of the main grounds for divorce. Most petitioners now cite unreasonable behaviour as the cause of the irretrievable or irreconcilable breakdown of their marriage.

In past years, unreasonable behaviour was something that people kept behind closed doors — as the title of a book on domestic violence once said, ‘Scream Quietly or the Neighbours will Hear’. Those suffering from domestic violence are no longer prepared to scream quietly but prefer to use the courts and the law of the land.

There are 3,500 cases of common assault by one partner on another in Northern Ireland every year. There are on average five murders every year. There is a case of actual bodily harm or grievous bodily harm on one partner — usually the wife — in Northern Ireland every day. Those are the police statistics. However, the police would argue that the figures — other than those for murder, which come to the public’s attention — are a gross underestimation. They estimate that it is more likely that there are about 10,000 cases of common assault in marriages every year in Northern Ireland.

Rather than the words we have heard from some Members about keeping the family together at all costs, they should be asking — for the sake of the children — at what cost should the family be kept together? Is it at the enormous cost of wives — and husbands — presenting to nurses and doctors in the accident and emergency departments of major hospitals with serious injuries sustained within marriage? It is to be hoped that, in addressing this situation, Members will provide the right for those so injured to be able to leave such an injured marriage. A marriage that causes such enormous grief ought to be ended because it is not a marriage of equality. That is what clause 2 is about.

Members who have done any work in this area or who have interviewed those affected will know why the Bill seeks to reduce the five-year requirement to three years. As public representatives, they will have had women in their constituency offices telling how their husbands have said, "If I can’t have you, no one else will". When those women seek justice and redress through the law they have to wait five years because respondents will not permit them to have their marriages ended after two years. Possessiveness, jealousy, control and power over the partner are exercised, and the law is used accordingly. That is why many petitioners in Northern Ireland — and in Northern Ireland alone — have had to wait five years.

Why should people who could live independently, walk free from such violence, and raise their children in peace, be made to live like that for longer than they need to?

That is why the terms have changed from five years to three. The condition of consent as it applied in the Matrimonial Causes (Northern Ireland) Order 1978 will remain in the new Bill, but three years of separation will now suffice in its absence, on the grounds that it should not be held over the partner who seeks that redress of the court.

Anyone who suggests that the notion of fault has been removed should read the Bill, because it still allows the petitioner to go to court on the grounds of fault. Research shows that three quarters of Northern Ireland petitioners do not argue fault; they are probably so stigmatised that they cannot publicly talk about about why their marriages broke down, and they find other reasons such as the fact and duration of separation. Perhaps the time has come to allow people to come before the courts to speak about what has gone on behind closed doors.

In response to Dr Birnie’s concern about the children of divorced parents, the same research points to the fact that they have been enormously disturbed if the marriage continues and if there is violence and abuse. Children studies have said that they can go to bed and sleep in peace at night now, rather than lying awake wondering if they could save their mothers from further injury or death.

Photo of Esmond Birnie Esmond Birnie UUP 12:15, 17 September 2002

Such research shows that, on average, children deem that they suffer less psychological distress in the continuing marriage than the reverse. The Member is arguing about the sad and hard cases, which I accept.

Photo of Prof Monica McWilliams Prof Monica McWilliams NIWC

I am glad that the Member accepts that. I wish that we could use the word "hard", but that is no longer the case. The children said that the emotional and psychological damage was often as bad as the physical and that it takes more years to recover from what was said than what was done. We are introducing the concept of psychiatric injury into law today to recognise the experience of mental harm as well as that of physical harm.

The requirement for oral testimony to be dispensed with is also a positive step. Research has shown that petitioners have felt no benefit from giving oral testimony where there has been consent. The Bill still allows the court to have discretion. Why are there no savings as a result of that? The changes proposed in the Bill will cost £117,736, but a great deal of money could be saved if there were no longer any requirement for oral testimony, which endures only in Northern Ireland. Most people who have gone through that process agree that it is a waste of money.

Are the figures before us the maximum savings or a rough estimate? The explanatory and financial memorandum states that the right to mediation, as outlined in clause 5, will be cost neutral. However, I warn the Minister in his finance capacity that it will not be done well if there is no cost or if it is cost neutral. People will need to be well trained in mediation skills as it is now written into the legislation. I am glad that it has been recognised that mediation may not be a useful tool where there has been domestic violence. I urge those involved in the clause-by-clause scrutiny of the Bill to recognise that, because it is often very late in the court proceedings before there is a right to say that domestic violence has taken place.

I welcome clauses 10 and 11, which improve equality of opportunity. Clause 11 replaces the outdated laws relating to housekeeping allowances. The inequality that once existed is summed up by an old Russian proverb:

"I thought that I saw two people, but it was only a man and his wife".

The legislation recognises that the reverse applies: clause 10 addresses the automatic assumption that a husband has a common law duty to maintain his wife, and clause 11 abolishes the husband’s right to keep the entire housekeeping allowance. As Mr Close said, the Bill recognises that the law upholds some obsolete practices that must be changed.

Finally, the Minister must address the human rights issue. The explanatory and financial memorandum states:

"In relation to the question of separate representation of children in private law proceedings affecting them (UN Convention on the Rights of the Child Article 12) the Law Reform Advisory Committee is currently seeking the permission of the Minister for Finance and Personnel to consider this matter."

Has that matter been considered seriously? The right of the child to be represented separately is argued in the courts with increasing frequency, especially in acrimonious divorce proceedings.

Photo of Peter Weir Peter Weir DUP

I have certain concerns about the Bill. In passing, however, it was brave of a Finance Minister to state that spending money "in mysterious and unexplained ways" could constitute unreasonable behaviour.

The Bill contains several aspects to which I have no objection. Clause 1 contains good statements of intent regarding children and domestic violence. There is no objection to clauses 5 to 8, which deal with grounds for mediation and the use of less pejorative language with regard to financial provisions. Similarly, no one objects to the changes to antiquated legislation detailed in clauses 9 to 11. However, I have severe reservations about clauses 2 and 4.

The DUP recognises that marriages break down and that the state must intervene on occasion. However, it does not suggest, as Ms McWilliams did, that marriage should be upheld "at all costs". No one from these Benches used that phrase. It would be wrong for the Member to put words in the mouths of some of the people who expressed concerns. The DUP supports the institution of marriage. It believes that society has a duty to support the family unit and the sanctity of marriage. Ms Lewsley posed the key question when she asked whether the Bill would make divorce easier. Undoubtedly, clause 2 will make divorce easier.

Two aspects have been highlighted in particular. The removal of adultery as a separate ground for divorce sends out the wrong signal. I take issue with what Ms McWilliams said; no one on this side of the House has suggested that fault-based grounds have been removed completely. However, the three grounds for divorce have been rolled into one. In this Bill adultery is no longer accepted as a direct cause for divorce. It may be a contributory factor, or an action that might constitute unreasonable behaviour. In essence, the Bill downgrades the seriousness of adultery. That sends out damaging signals to society about morality.

As a barrister with experience of working on divorce cases, I disagree with the Minister’s implication that adultery is a high hurdle. It is not next to impossible to prove, as has been suggested. To put adultery on a level with unusual spending habits is to downgrade its significance.

We will be seeking an amendment to reinstate adultery as a separate ground for divorce. We will not accept the downgrading of adultery, as it damages the concept of marriage.

Reducing the separation period from five years to three years will, undoubtedly, lead to more divorce. It makes divorce easier. At present, there is the option of two years with the consent of both parties, which is continued in the Bill. However, if the divorce is opposed by one party, simply adding on another year renders that consent meaningless. There must be a significant gap between divorce with the consent of both parties and divorce where the desire of one party, however motivated, is to save the marriage. Reducing the separation period will have a major impact on that.

I also take exception to clause 2. In clause 1 there is reference to violence against one of the parties. However, there is no reference to domestic violence in clause 2. It does not change the law on domestic violence by one iota. Preserving clause 2 as it stands will aid no one experiencing domestic violence. If it is passed unamended it will lead to easier divorce. Therefore my party will be seeking amendments to reinstate the grounds of adultery and to restore the five years’ separation without consent.

An amendment may be necessary to the change in the application for the decree absolute. At present, when a decree nisi is granted, a separate application must be made to obtain the decree absolute. A positive act on behalf of the petitioner is required before a decree absolute is made. The Bill shifts the burden so that the petitioner must intervene negatively to stop the decree absolute being granted. It is clear that that will make divorce easier.

In conclusion, we will be seeking amendments on these matters. It is often said that we live in a disposable society — a throwaway society in which things are not valued. The Assembly should make it clear that marriage is not to be part of that throwaway society. We place value on marriage and, as such, some of those changes will diminish the sanctity of marriage. Therefore we will not accept the Bill as it stands.

Photo of Lord John Alderdice Lord John Alderdice Speaker

Members have put a substantial number of questions to the Minister, and it would be inappropriate to ask him to respond at this stage, as there remains only a few minutes. I therefore propose that the House by leave suspend until 2.00 pm, resuming with the response from the Minister.

The sitting was suspended at 12.28 pm.

On resuming (Mr Deputy Speaker [Mr McClelland] in the Chair) —

Photo of Sean Farren Sean Farren Social Democratic and Labour Party 2:00, 17 September 2002

I am grateful for the contributions that have been made during the debate. Many concerns have been expressed, and I hope, as the Bill progresses through the Committee Stage, and the other remaining stages, that departmental officials and I will have the opportunity to assuage some of those concerns as we explain in more detail the purpose of the Bill and the effects of its clauses.

None of us wants to see the breakdown of marriages that have started with so much hope and promise. Marriage is not usually entered into lightly, and family life forms vital foundations in society. However, in one way or another, all Members have acknowledged that divorce is a fact, however regrettable. Relationships break down to the extent that they cannot be retrieved. That is where the Bill comes in. It deals with a situation in which people’s marriages have broken down irretrievably, and it endeavours to deal with the parties involved as humanely as possible.

Mr Molloy referred to the Committee for Finance and Personnel’s forthcoming scrutiny of the Bill. I appreciated his acknowledgement of the work of the Office of Law Reform in the pre-introduction phase. The Office of Law Reform has welcomed the willingness of the Committee to engage with it as it moves through the pre-introduction process, and it affirms its commitment to early consultation.

Although Dr Birnie accepts that the aims of the legislation are laudable, he was concerned by what he described as the "unintentional by-products" of the Bill’s proposals. Other Members shared his concerns about the reduction of the requirement of five years’ separation to three years. After the consultation process, the Department’s view was that, when a couple decide to separate, five years was too long a period to deny people access to a court to reorder their financial and childcare issues. Parties will usually have spent considerable time in coming to the decision to end their marriage. The three-year period does not start with the first disagreement. It is the beginning of a legal process, which may follow a significant period during which two spouses have been trying to reconcile themselves. Therefore, I consider that three years of living separately is long enough to establish that a marriage has irretrievably broken down. Once that fact is established, the parties can start to build a new life.

Dr Birnie, Rev Dr Ian Paisley and others expressed their concern that adultery is no longer included on the face of the Bill. In respect of the changes to the fault facts, the current law on adultery is complex, narrow, technical, prurient and difficult to prove. Adultery is, however, a serious matter, and the Bill’s proposals do not make it any less serious. It does not remove adultery as a fault fact. The Bill’s formulation provides greater protection to the petitioner, and it is less onerous and humiliating for the petitioner with regard to what must be proved.

Dr Birnie and Prof McWilliams referred to strands of research into the effects of divorce on children. Different researchers have come to different conclusions about what is best for children, and I welcome the reference to the research that has been made in the debate.

However, the issue concerns individual family units. What is right in each case will vary. Families must find what is best in each of their individual situations. Marriage support services, the legal profession and the courts all have their role to play in finding the proper course in each case.

Ms Lewsley asked several questions, the first of which suggested that the Bill will make divorce easier. The Bill is not about making divorce easier or more difficult. It does not alter the ground for divorce, as many Members seem to claim. The ground for divorce remains the irretrievable breakdown of marriage. The Bill attempts to streamline procedures, which will help a couple whose marriage has irretrievably broken down to part as amicably as possible. Moreover, arrangements will be put in place for children.

Ms Lewsley asked a question about consultation. I am pleased to assure her that, as always, the Office of Law Reform consulted widely and received well-informed, substantive responses. We were especially grateful for responses from the Churches and the voluntary sector, as well as those from political parties and members of the public. The research commissioned by the Office of Law Reform, which informed its consultation paper, was based not only on an extensive questionnaire survey of the views of people who were in the throes of divorce but on face-to-face interviews with people who had gone through the process, as well as judges and legal and other professionals who operate the system. There was an extensive consultation process, which was supported by comprehensive and wide-ranging research.

I affirm to Ms Lewsley that support for children and their families is at the heart of the Programme for Government. The commitment to putting in place a children’s commissioner and a strategy for children and young people demonstrates the value that the Executive put on children and on family life in general. The Bill makes provision for couples whose relationship has irretrievably broken down. The law on divorce already provides that a court can adjourn for attempts at reconciliation if it believes that that is a possibility.

Ms Lewsley raised an important point about children and the mediation process. I shall ensure that the officials who are examining the mediation process will take it on board.

I thank Mr Close for his comments; I hope that I have dealt with many of his points about the period of separation and adultery.

I thank Ms McWilliams for raising the issue of domestic violence. It is a scourge and a cancer in Northern Ireland, and I welcome any opportunity to raise its profile. I intend that the Bill will continue to raise the profile of domestic violence, therefore bringing it out into the open and allowing victims to break free from the cycle of violence and silence that frequently envelops their experiences.

Ms McWilliams mentioned cost savings. I appreciate her observations, but I certainly do not want cost saving to be seen as a purpose of the Bill. The change to the law on hearings will not reduce court scrutiny, which will take place in a different way. Many cases need a hearing, and some people want a hearing. Therefore, hearings must be provided in those cases.

Ms McWilliams also raised a point about the separate representation of children. She will be glad to know that the Law Reform Advisory Committee for Northern Ireland will consider separate representation of children in private law proceedings under the Children (Northern Ireland) Order 1995. I expect that the Law Reform Advisory Committee will consult, as is its pattern, on that issue, and I am sure that it will be pleased to receive Ms McWilliams’s views.

I hope that my comments have dealt with Mr Weir’s major points. I shall welcome hearing more of his concerns as to how the introduction of a new process for the generation of decrees absolute will make divorce easier. I regard that as a practical procedural initiative only.

The Bill is a measured response to the needs of society in Northern Ireland. It is not a root-and-branch reform, but an opportunity to review whether the Northern Ireland divorce system —24 years after it was set down in legislation — has unnecessarily added to the stress and acrimony that accompany divorce. The Bill will support individuals as they face difficult times in their lives and will highlight the needs of children in the divorce process. Those are worthy aims for any divorce system, and the content of the Bill is to be commended.

Question put and agreed to.

Resolved:

That the Second Stage of the Family Law (Divorce etc.) Bill (NIA 01/02) be agreed.