This is one of the more controversial areas of the bill. At stage 2, I lodged an amendment that was similar to amendment 8, but I would not have lodged amendment 8 had the Executive been willing to accept the compromise position that was reached by the Justice 1 Committee. In fact, the committee only narrowly failed to support the amendment that I lodged at stage 2.
The effect of amendment 8 would be to retain two years as the amount of time of separation prior to a divorce when there is consent. The reasoning behind that is that I am not in any way convinced that it is unreasonable for a couple to seek a divorce when they have failed to cohabit for
Figures have been produced that show that, when the law on divorce has been liberalised, the number of divorces has increased. The committee was anxious not to change the law in a way that would increase or decrease the number of divorces; it wanted the law to be neutral in that regard. However, the effect of the Divorce (Scotland) Act 1976 was a 21 per cent increase in the number of divorces that took place in 1980 and a 30 per cent increase in 1982. The committee might want the law not to increase the number of divorces, but I suggest that evidence from previous liberalisation in the divorce laws shows that there is likely to be a further increase in divorce.
I also understand the argument that we should try to make the process as painless as possible and that a long period in the limbo of separation can lead to greater conflict, but I am not convinced that that is necessarily the case. After all, it can take people a long time to work through difficulties in their relationships.
I accept that we cannot make people stay together and I do not think that divorce should never happen—although that is a perfectly honourable position to take. I believe that there is a place for divorce, but we should not take steps that actively encourage it. When, at stage 2, I asked the minister how the bill's provisions would support and encourage marriage, his silence was deafening. In my view, section 10 will actively encourage more divorce.
A briefing from Couple Counselling Scotland delineates a number of the consequences that result—
Figures suggest that, in Finland, where the non-cohabitation period is six months, the divorce rate is 1.8 per 1,000. However, in New Zealand, where the period is two years, the rate is 2.63 per 1,000. How can the member claim that there is a correlation between the period of co-habitation and the prevalence of divorce?
I beg to suggest that arguments that are based on the culture in Switzerland or New Zealand cannot necessarily be transferred to Scotland. Today, we are making significant changes to family law that successive Governments have shrunk away from implementing. I commend the Executive for having
The fact is that people's circumstances change. This morning, I heard on the radio that the Government has decided to put some more financial muscle behind organisations that seek to save marriages through reconciliation. I welcome that move.
Throughout the long debate on the bill, I kept hearing that the bill was about trying to help children, but there is very little focus on children and none of the proposals suggests that we should take different views in respect of whether children are or are not involved in such situations. I accept what my colleague Mr Lochhead said, but it does not automatically follow that a quick divorce is less painful, particularly for children.
I also understand the—I have to say, totally erroneous—argument that has sometimes been advanced against the terms of amendment 35 that, in cases of spousal abuse, waiting for two years could have dangerous consequences for the individual who is being abused. I draw members' attention to the fact that abuse is specifically in and of itself a ground for divorce. Under the Divorce (Scotland) Act 1976, where a marriage has broken down irretrievably, a divorce can be granted by the pursuer if one of five factual circumstances exists. In such cases, abuse is a ground for divorce in itself, so it would not have any influence in a situation in which there is consent.
I do not think that we will be able to get to a point at which things will be done and dusted within a year. If amendment 35 does not gather sufficient support to win the day, I shall urge colleagues to examine the bill as it has emerged from the Justice 1 Committee. The committee's position is reasonable and takes cognisance of the fact that many people are concerned about devaluation of marriage, which it is perceived might happen as a consequence of the change that is proposed by the Executive. I certainly do not want the arguments in favour of longer periods to go by default, just because there may have
I urge members to support amendment 35, which would leave the position as it is today. I believe that two years is a perfectly reasonable time and I do not accept that five years is reasonable. The Justice 1 Committee took the position that, for cases where consent is not given, three years is an appropriate time. I urge members to reject moves to introduce periods of one year and two years.
I move amendment 35.
Section 10 has, understandably, attracted more attention and debate than any other part of the Family Law (Scotland) Bill. We recognise that divorce is always a sensitive issue and that for many people it touches on their core beliefs about the sanctity of marriage and its importance as one of the principal building blocks of society. There are others who disagree, but people have strong views on the matter.
Ministers have stated many times—I am happy to do so again—that the Executive values and supports marriage. We recognise its special status and the value that it contributes to so many families in Scotland. The Executive has not, does not and will not undermine marriage, and we certainly do not do so with the proposals that we are considering today.
However, it is equally right to say that the state cannot force people to remain married. A proportion of marriages will end in divorce for whatever reasons; in those circumstances it is important, as Richard Lochhead said, to support families so that the transition is as painless as possible, particularly where children are involved. Where the conflict is protracted and bitter, children will suffer.
I want to emphasise that relationship services are an important part of the Executive's overall effort to support stable families and to give children the best possible start in life. I believe that the best way is early intervention, through counselling to help couples to save their marriages or other committed relationships, where those marriages or relationships can be saved. I accept, however, that where separation is inevitable, mediation can help to ensure that parents work together sensibly to look after the best interests of their children. Parents should not use their children as pawns in their personal war.
I acknowledge that current services can be made to work more effectively for users. Our view is that counselling and mediation services are complementary and should be linked at national and local levels. We need integrated and cohesive services.
If people want the opportunity to stay together and to work things through in their own interests and those of their children, we want that to happen. Children suffer not so much from the process of divorce as from a wide range of factors including bitterness, fighting, arguments and distress. Many children go through a protracted period of suffering because of the agonies that have been inflicted on them by their parents. The Executive wants to try to remove that suffering. We hope that adults will behave like adults and behave responsibly, instead of seeing such situations as a surrogate war in which the children can be used to inflict harm and pain on the other individual. That is disgraceful and it happens in far too many cases.
I will move on. The member can come in later if he wishes.
We believe that people should have a range of relationship services to which to turn. The strategy on the ground for those services should be aligned with local authorities' overall goals for children and families. There should be easy access points and there should be flexibility to respond to families' changing needs. However, we need action in order to get the overall framework right, which is why we are encouraging and funding the national bodies to integrate their efforts and to build the capacity of local services to deliver more effectively. We have already made available some £500,000 this year and last year to the national family bodies, in addition to the existing grant funding of some £633,000 a year.
There is a particular challenge to develop the capacity of local family support services and to provide incentives for more joined-up working. Local services are at the sharp end—they deal with the people, with the fallout and with the breakdowns. I am pleased to announce that the Executive will provide an additional £300,000 for capacity building in local family support services in 2006-07. We will consider the details of how that investment will be made, but the key message is that more money will be available next year to fund proposals by local counselling and mediation services, acting together for capacity building, infrastructure development and joint working. I hope that that will put local services in a stronger position to contribute effectively to the wider
I will make one point and then let Christine Grahame in.
I acknowledge the concern that has been expressed by the Justice 1 Committee in a number of our discussions and by the national bodies and many of the local bodies, about gaps throughout Scotland. They are worried about the failure in some areas to provide adequate services.
I will finish this point and, if the Presiding Officer allows it, I will take both interventions.
I have asked the Convention of Scottish Local Authorities for a meeting to discuss that concern. The Justice 1 Committee is equally concerned—Pauline McNeill may develop that point. I am sure that it is something that the committee may consider. We need to consider the funding that the Executive has already provided under a number of headings, and we need to ask why that is not being used to deliver adequate local services. I hope that those discussions will lead to something productive.
In my many years as a family lawyer, one of the great problems was provision of contact centres, particularly in rural areas that have greatly dispersed communities, when there are disputatious arrangements for children. There is a huge difficulty in providing neutral territory at the early stages of separation and divorce where parents can have contact with their children. I ask the minister to consider that.
Christine Grahame's point is about local service delivery and local service provision. We are funding the national bodies but we recognise that there is a problem with local service delivery. There is concern about that—the Justice 1 Committee raised that issue on a number of occasions.
I am sure that it is on behalf of the whole of the Justice 1 Committee that I record a whole-hearted welcome for the funding decision that has been announced this morning. The minister has said that the committee has argued hard for that, and it should be welcomed. Given that the debate is about divorce and relationships, will the minister say whether, as well as the
Exactly—we want there to be local capacity building. We acknowledge the contribution of mediation, but mediation comes at the end of the process, when people are negotiating how to part. We want to focus more attention and funding on counselling and conciliation, to help people to work through their difficulties. We will discuss with national bodies and local service providers exactly how that can be done.
Divorce is a process not an event. It does not happen overnight; it happens after relationships begin to break down and after people begin to argue, to move apart and to lose contact with each other.
Brian Adam said that things could not be "done and dusted" within a year. That is right, and our proposals do not suggest that they could. We are talking about a minimum of one year's separation before divorce can be contemplated, so there is no way that everything could be "done and dusted" within a year. Mr Adam also spoke about evidence, but he suggested that the evidence that Jim Wallace presented was not valid because the circumstances were different. I am not quite sure what Mr Adam's evidence is.
We know that many couples will have been unhappy and will have been working to resolve their relationship for a considerable time before they make the difficult and heartbreaking decision that their marriage is over and they want to separate. That decision made, the sole ground for divorce is the irretrievable breakdown of the marriage, as established by one of five facts. At present, one of the facts is separation. When there is consent, the period of separation that courts require to establish irretrievable breakdown is two years; when there is no consent, it is five years. It is important to understand that the separation periods represent the minimum time after the couple separate and before a divorce can be applied for. Even then, divorce is not granted automatically. Regardless of the length of the separation, the court must still be convinced that the marriage has irretrievably broken down. If the court considers that there is a reasonable prospect of reconciliation between the parties, it will not grant the divorce. Contrary to what may be said, divorce is never easy.
In reforming divorce laws, we have made it clear that we do not wish to change the nature of the divorce process. We want the law to continue to
Following the recommendations of the Scottish Law Commission, we looked closely at the statutory non-cohabitation period. We accepted the commission's proposals that the time periods should be reduced to one year when both parties consent and to two years when they do not. I accept that an element of judgment came into that. However, that is what politicians are elected to do—to judge what we think is best. We have based our decisions on the advice of the Scottish Law Commission and on the subsequent support of legal practitioners and academics in successive consultation exercises. We have not plucked the figures from thin air; we have consulted on divorce three times in the past five years. Parliament has also consulted.
The Executive's amendments 8 and 9 seek to return section 10 to its original form. We propose time periods that, first, were recommended by the Scottish Law Commission; secondly, have been in the public domain for more than a decade; thirdly, have been fully consulted on; and fourthly, have broad support among legal practitioners. The time periods that the Justice 1 Committee agreed at stage 2 were subject to no consultation whatever. The Parliament places great emphasis on consultation as a critical part of the legislative process. I would argue that to pick arbitrary time periods for such an important and significant issue without consultation and careful deliberation would be to do a disservice to our legislative process. I am not convinced that the alternative separation periods that were agreed at stage 2—or those that are proposed today by Brian Adam—have any foundation to support them like the foundation that supports our proposals.
Finally, I want to clarify an issue that many members may have found confusing. Our amendments 27, 28 and 54 seek to ensure that whatever decision Parliament makes on the separation periods for divorce, the same periods will apply to the dissolution of civil partnerships. We are concerned that if the arrangements for divorce do not mirror those for the dissolution of civil partnerships, the bill as a whole might not be compliant with the European convention on human rights and so might be defective. I am sure that members understand the principle that is at stake. We might not need to move amendments 27, 28 and 54, but we must have a fallback that will ensure that whatever decision Parliament makes, the bill is consistent.
I hope that my speech will drop short of three minutes.
At the risk of pre-empting the debate on group 12, when we will talk about support services, I take an early opportunity to welcome the movement and—more important—the money that the Executive has offered. The minister obviously saw the formidable Liz Wallace from Family Mediation Grampian in the public gallery and realised that he would not escape alive if he did not take such action.
It is worth reminding ourselves that there is a consensus to reduce the length of time that it takes to divorce—not when there is agreement, of course, but when there is not agreement. No one is seriously suggesting that we should maintain the current five-year period for obtaining divorce when there is not agreement. That puts in context the debate that we are having about the relevant periods and indicates that, as a Parliament, we are seriously engaging with the subject, rather than just making knee-jerk reactions.
That said, at stage 2, I voted to keep the period of separation for divorce when there is agreement at two years. When that proposal failed, I supported a period of 18 months. One of the threads that must run through any such debate is what value we place on marriage. I have no hesitation in saying that in relationships and in building stable families, marriage is the gold standard. People who make other choices are perfectly capable of living good, useful lives and of bringing up children who will be useful members of the community, but the safest, most secure way of achieving those ends is through the bounds of marriage.
I will support only a small reduction in the length of time that it takes to divorce when there is agreement, to 18 months. In other words, I seek to maintain the position that the Justice 1 Committee adopted at stage 2. I will do so because I value marriage. That does not mean that all members Parliament will necessarily share my view. I think that the minister concedes that although the proposed periods of two years and one year were widely consulted on—I acknowledge that—and no other periods were consulted on, what periods are chosen is a matter of judgment. It will be impossible to prove, evidentially, that any particular figure has any particular outcome. Bluntly, we ain't gonna be able to do that.
I, as an individual, will support the proposal to which the committee eventually agreed at stage 2,
I am tremendously sympathetic towards, and agree totally with the sentiment behind, amendment 35, but from the evidence that has been taken at stage 1 and stage 2, I am convinced that the two-year period is slightly too long. However, I have grave concerns about the Executive's proposal. From the beginning of our consideration of the bill, there seems to have been an acceptance that as soon as a couple separates and files for divorce, it is inevitable that the divorce will go through, but all members probably know of situations in which although a couple has separated and divorced, the same people have gone on to remarry.
I want to move on a little.
The huge problem with debating amendment 35 is that no empirical evidence has been produced, which means that we must consider such situations when we decide whether to support an increase in the timescales. From the beginning, there has been an emphasis on mediation as opposed to reconciliation and counselling to save the marriage. I believe that when the minister continues to talk about couples being intent on divorcing, he is making the same mistake.
I applaud the fact that resources will be put into local services for early intervention to try to solve any problems as they arise. However, I plead with the minister not to take away the opportunity for a husband and wife to have a one-year period, which can be considered as the bereavement process, during which time they go through a full year of changed circumstances, and, at the end of that time, an additional six months in which to decide whether they are absolutely sure that there is no prospect of reconciliation.
There seems to be an assumption that when people divorce, it will always be acrimonious. It will not. There will be myriad complex and varied reasons why relationships break down. The 18 months and the three years would ensure that the marriage is given every possible chance to survive.
The evidence of the Faculty of Advocates was that when one of the parties is still hoping for or seeking reconciliation, the two-year period is not long enough. Therefore, it is only sensible to give the extra year that the three-year period would give.
Today the Scottish Parliament will send out an important and powerful message about how we value the institution of marriage. The one-year and two-year periods have been referred to as "quickie
This is a very personal debate for us all. Despite the press making it the most controversial issue, I am sure that we will continue to have a mature and responsible debate.
If I thought that my decision to support a reduction in the time limits for divorce would result in more divorces, I would not support it; I would support keeping the existing law. I do not believe that short time periods on no-fault grounds will lead to more divorces. I am a Christian and a Roman Catholic and I am also a legislator, so I have thought seriously about what the country needs.
What periods of separation should parties who are married have observed before the court will grant a dissolution of a civil partnership or a divorce? Jim Wallace has already demonstrated that there are no statistics to back up the assertion that a longer separation makes any difference to divorce.
Families of all shapes and sizes, whether there is a marriage or otherwise, go through difficult periods, so the only proviso that I make—and I welcome the Executive's commitment on this—is that professional support should be available, which is why the funding package is so important. It is much more important to try to save relationships at an early stage than to try to save them at the end, when most of the couples have gone through difficult and acrimonious times.
There are not even that many statistics to back up the Executive's assertion that longer time periods lead to more difficulties for children. Our gut instinct is that they probably do, but the committee really struggled with that point.
Through the years, couples have manipulated the grounds for divorce to get quicker divorces. The headline for today's debate should not say that the Executive supports quickie divorces. In certain cases, divorces might be quicker if Parliament passes the bill, but, certainly in my view, the bill will not lead to more divorces. There are other grounds for divorce, such as adultery, unreasonable behaviour, desertion and so on, which already get a couple into court quickly. Members must know that couples can get into court in a matter of months and couples have colluded on that; they might not know that the bill will remove the bar to collusion for adultery. Previously, it was against the law to collaborate with one's partner to get a quickie divorce on the
The five-year period when one party wants to get divorced and the other does not is a bit too long for contemplation. I do not believe that it is right to hold someone to a marriage for that long who does not want to be in it. I did not support Margaret Mitchell's amendment at stage 2 because I felt that three years is also a long time.
I had concerns about the shorter period of a year for couples who consent to divorce, but given the Executive's commitment on funding for family mediation and reconciliation services, I am much happier.
We know that divorce is an emotive issue, although I am sure that members will make the right decision at the end of the day. We all know of difficult cases and we know of all the different reasons why people get divorced, but we should not make the mistake of thinking that the law can force couples to remain together.
As members have said, divorce is a sensitive issue, and many of us will have had painful experience of family and friends going through it. Today, we need to think about divorce and give it the same careful consideration that the committee has given it. I have every confidence that the Parliament will do that.
Let us be clear: we are talking about no-fault divorce. That does not include adultery or unreasonable behaviour, including domestic abuse. Why are we trying to reduce the time period? The reason most commonly given is that it will reduce acrimony, and Mr Lochhead said that it would also reduce the acrimony for the children who get caught up in their parents' divorce. Many of us would instinctively recognise that as a problem; however, there is no proof that reducing the time period lessens the acrimony of divorce. In considering the bill, our experience was that warring couples who are determined to end their marriage acrimoniously will continue on that path regardless of the timescale for the divorce. There is no evidence to support the claims made for shortening the time period, which was one of the problems that we faced.
Where is the support for reducing the time period? The minister made something of the consultations that have taken place over a substantial period. However, of the 190 individuals and organisations that responded to the Executive's most recent consultation, 74 per cent were against reducing the time period and only 26 per cent were in favour. I accept that those figures break down into individual and professional
What do the amendments that the committee agreed to at stage 2 say? They say that, where there is agreement, the two-year limit should be reduced to 18 months and that, where there is no agreement, the five-year limit should be reduced to three years. The committee accepts the need to move on. There is no great difference between its position and the Executive's; the committee is perhaps a little more cautious.
The Executive has always said—and, as Pauline McNeill said, the committee has agreed—that the bill should be neutral on the number of divorces. However, experience has shown that liberalisation has led to more divorces. I heard the figures that Jim Wallace quoted this morning, but we would have to dig deeper to find out the points from which those countries started to get the full picture.
I welcome the minister's announcement that £300,000 will be given to family support services. It will be a boost, and we will discuss it in more detail later. I hope that it will cover issues such as pre-marriage advice, reconciliation services, mediation and family contact centres. The Executive and the Parliament say that they value families, but we must demonstrate that we value them by supporting them.
The findings of the consultation were far from overwhelming and there is not much difference between the Executive's position and the committee's position. I accept that the Executive perceives that there is a desire to reduce the time limits, but the data to support that are sparse. I ask the Executive to be a little more cautious in its approach to divorce and to recognise the damage that its extension might cause.
The debates at stages 1 and 2 and, so far, at stage 3 have been conducted with a great deal of sensitivity by all those who have taken part. We hold different views on the topic but those views are not a matter of party politics. My view has always been that the people of Scotland do not expect us to vote on such issues on party lines. Our decisions are entirely a matter of judgment.
I disagree strongly with the minister's suggestion that there is relevance in the fact that there has not been a consultation on the proposed reduction. As Mary Mulligan pointed out, the overwhelming majority of people who took the trouble to respond to the consultation and express their views were opposed to a reduction in the
I am sorry. I have very little time.
I am no expert, but my experience as a family lawyer for a couple of decades is that, when someone comes to seek advice about a divorce, they face a momentous decision, which is not taken without a great deal of thought and pain. It involves a difficult discussion about private and deeply personal matters. It takes a long time for most people to undergo that process. To me, the idea that there is a host of people who desperately want a divorce after the first month but are frustrated by the law is wrong.
As I said at stage 1, I accept that five years is probably too long. Some people are probably waiting after two or three years, having gone through the torment and turmoil of the process, so the committee's compromise of three years is a good one. Some regard should be had to the fact that a committee of the Parliament has examined the issues in much more detail than we have. I am not saying that its view should be binding, but it should be persuasive to those who are thinking carefully about which way to vote.
I fundamentally disagree with the suggestion that changing the law can remove acrimony. For what it is worth, my experience is that there is a tendency for some litigants—often male litigants, I have to say—to use the grounds of adultery and unreasonable behaviour to create an embarrassment. They use it as a lever or as a weapon to try to get a better financial deal. That is wholly wrong, but if the minister really wanted to remove that possibility he would have removed the grounds of adultery and unreasonable behaviour so that they could not be used as a weapon. He has not done that, so he cannot argue that acrimony will be removed. To argue that the law on the page will remove acrimony from such situations is a misconception of the role of law.
I have never argued that if divorce is made easier and quicker, that will fundamentally undermine the institution of marriage. To argue that would be to overstate the position. However, if we change the law to allow divorce after as short a time as one year, we will be chipping away at the foundation columns of marriage, which is the bedrock and foundation of society and which offers the best possible chance for the upbringing of children. The majority opinion in the Parliament may be in favour of the shorter periods, but I do not think that there is such a majority in the nation that we represent.
I echo Fergus Ewing's views on the sensitivity with which the debate is being carried
People do not just wake up one morning and say, "We're going to separate." Separation comes after a period, after which it is proposed that a year must elapse before parties who agree can start a divorce action in court. The welcome additional support that the minister announced for agencies that are engaged in counselling and reconciliation underlines a commitment to marriage. The briefings that we have had from Couple Counselling Scotland and Scottish Marriage Care show that when efforts are made to reconcile—the process is not easy—the success rate can be very high. Early intervention is important, as is the opportunity that the debate and the bill offer to flag up the availability of those services. I hope that the additional money will make them available in parts of Scotland in which they have not necessarily been provided.
I quoted figures to Brian Adam that, like other figures, show that there is no correlation between the length of the separation before divorce and the divorce rate. That is not scientific but, as Hugh Henry said, the periods in amendments 8 and 9 in Cathy Jamieson's name—which were in the bill originally—are based on recommendations in a Scottish Law Commission report from as long ago as 1989 and on several white papers that were published before and after devolution. Amendment 8 specifies one year of separation before divorce proceedings with consent can start. Hugh Henry was right to say that, under the Divorce (Scotland) Act 1976, a court will still have to be satisfied that there is no prospect of a reconciliation between the parties before it grants divorce.
As a practising advocate many years ago, I dealt with divorce cases when proceedings were held in the Court of Session. I know that divorce on whatever ground is a serious matter for people and is not something that they enter into lightly. People take no particular relish in ending a marriage. Many tragic stories and sadness lay behind the cases that I dealt with.
If the separation period were longer, people might use another ground of divorce, such as unreasonable behaviour, to try to obtain a so-called quickie divorce. We want to avoid that situation. It is right and proper for the unreasonable behaviour ground of divorce to be available for serious domestic abuse. However, showing unreasonable behaviour has often meant that a small incident is blown out of proportion to be used as a lever. Children can be drawn into such situations and used as pawns. Even if they
I will oppose Executive amendments 8 and 9. The starting point for the debate and for all of us is that marriage is good for society—all the objective evidence points in that direction. As a Parliament, we should be clear and unapologetic about that in the face of political correctness. As a responsible Parliament, we should be nervous of taking any measures that might weaken or undermine marriage, even if to do so is not the bill's intention.
I have listened to the arguments on both sides and I simply do not know whether the measures, if passed, would undermine marriage and make divorce rates rise or fall. There is not enough evidence on either side to support either contention. However, we know that many couples change their minds about divorce during the process. I fear that the Executive's proposed reductions in separation periods go too far and so should be opposed. An important principle in a liberal democracy is that, before we change the law, a persuasive case should be made and compelling reasons should be given for the change. I do not think that the reasons for the proposed changes are compelling or that the evidence supports them.
I listened with interest to Brian Adam and I have much sympathy for his position, but it is fair to say that he takes an absolutist view—he believes that the current position should not be changed. Similarly, the Executive takes an absolutist view in the opposite direction—it believes that we should go right down to a one-year separation period with consent.
If there is a lack of clear evidence, it is entirely wrong to take an absolutist view in either direction. There is a case for reducing the periods, but not for reducing them by as much as the Executive proposes. If there is a lack of available evidence, it is surely sensible and responsible not to take an absolutist position; rather, a sensible middle road should be taken, which is what the bill currently takes.
We should remember that the Justice 1 Committee properly and thoroughly discussed the matters that we are considering. That committee reached the view that there is insufficient social research to support the reduction in periods to one
I have one more point to make. It is a long-standing convention in Parliaments that Governments do not whip on matters of conscience. The Conservatives will have a free vote today and I think that the Scottish nationalists will have a free vote. We should allow people to make their own judgments on matters of conscience. If it is true that the Executive is whipping on the matter that we are discussing—and I believe that it is true—that is deeply regrettable and will do the reputation of the Parliament no good at all. I did not campaign to have a Scottish Parliament; indeed, I campaigned against it. I accept that I lost that argument, but I cannot believe that those who campaigned to have a Scottish Parliament would have wanted to see a day on which the Executive is prepared to whip members on an issue of conscience that is important to people throughout the country. If members vote according to their conscience and against the amendments, the Parliament's stature will be enhanced in the eyes of the Scottish people.
All of us can welcome what Hugh Henry said about increasing the resources that are available to support services—we all see the value of doing so. However, getting the resources right is one thing; overcoming the cultural barriers and attitudes in society that prevent people from taking up those services is another thing. We must get things right and ensure that the quality of all the services in question is first class. We must all sign up to that agenda because the earlier that people access those services—whether because they want to stay together and reduce their problems in doing so, or because they have decided that they want to separate but recognise that maintaining a parental relationship is in the best interests of the children—the better.
However, there is a fundamental disagreement that is perhaps not being fully articulated. One position is that marriage is simply better than anything else. Perhaps Stewart Stevenson came closest to that position when he said:
"marriage is the gold standard."
The position is that marriage is a sacred act between man and woman and that civil, state
I am sorry, but all members have a short time to speak.
We should say that we will increase the value of those relationships in society by giving people time off work to spend with their kids and by giving them good homes to live in and good schools to go to. We should achieve that objective by getting our other jobs right in the chamber, rather than by locking people into relationships for a little bit longer when their marriage has failed and they have separated and decided to divorce. That seems to me to be utterly wrong. If members want to increase the value of commitment, love and relationships in our society, we should recognise that those come in many shapes and forms and we should support them on their own terms, rather than locking people into legal arrangements once their relationships have broken down.
The Greens are free to vote with their consciences on every vote; we do not have a disciplinary whip. However, I am happy to say that we will all support the Executive's position, because we believe in it.
I said that this is an important debate, and I want the issue to be thoroughly debated. I therefore propose to use my discretion, under rule 9.8.4A(c) of standing orders, to extend the debate until 10.45. That should just about get everyone in.
I fully support amendments 8 and 9, in the name of Cathy Jamieson. I am concerned that the debate appears to be turning into a discussion of whether we value marriage and whether the bill undermines marriage. To my mind, we are required to ensure that the legislation exists to move the process on when a marriage is over.
No one enters into a marriage with the thought that it will end in divorce. I ask members who have not decided how they will vote to consider the impact of further delay on people who have decided that their marriage is over. I ask members also to consider that it is not always children aged under 16 who are involved; young adults are
I ask members to consider all those issues. I have certainly done so, and I have a wee bit of experience. My daughter was 17 when her father and I decided that divorce was our only option, after 25 years of marriage. Divorce is not an issue that any individual takes lightly. I ask members to consider not just their religious beliefs but the impact that our decision will have on society. We have an opportunity to help our children and young people to establish themselves in stable, new relationships or in relationships of their own. It would be remiss of us to pass up that opportunity by asking people who have already decided to divorce to stay together or to delay the final process that would allow everyone—not just the two people who make the decision, but everyone in their family, including their extended family—to move on in their lives.
I speak as an individual, not as an SNP front-bench spokesman, as this is a matter on which the party is not whipped. I do not agree with my colleagues who have spoken before me; I concur with the views of the minister and—as we are talking about legal issues—I adopt the points that were made by Jim Wallace.
Divorce is always a tragedy. Even if it is justified on moral or legal grounds, it is a tragedy for the individuals concerned, as there will always have been something that made them enter into a relationship. It also has a significant effect on others, especially dependent children and, as Margaret Jamieson has said, non-dependent children in due course. We must try to enable people to separate and go onwards, bearing in mind the good things that brought them into the relationship but allowing matters to proceed with as little acrimony as possible.
In an ideal world, we would make it harder to enter into marriage, rather than harder to get out, but we do not live in that society. We need to counsel people and provide not just mediation but aspects of reconciliation. Like others, I welcome the minister's earlier pronouncements. As Jim Wallace mentioned, this is a cultural matter, which is why there are differences between societies—it is not so much the legislation as the counselling that is important. We need to get across to the people of Scotland that marriage is a significant and serious matter that should not be entered into lightly or discarded on a whim or a fancy—not that I believe that people do that. However, there is a growing perception that marriage is only a minor impediment that people can get out of. Obligations
It would take the wisdom of Solomon to work out whether the separation period should be 12 months, 18 months or two years. It is difficult to find any tangible evidence for those periods. However, I concur with the minister because the matter has been considered by the Scottish Law Commission, which has not made its recommendation on a whim or a fancy. It has given significant consideration to the matter by looking to those people on the front line who are regularly involved with divorce and separation, such as the judiciary, the shrieval bench and the Law Society of Scotland.
It might be that in due course we will seek to change the separation period again. At present, however, we need to bring our legislative process into the 21st century, we need to make changes, and we should have some trust in the Law Commission. We are not making it more difficult to get out of marriage, but we should simply remind the people of Scotland that marriage is to be valued—whether as a gold standard or whatever else—that it carries with it obligations and responsibilities and that the law is made to recognise that and to mediate.
When I got married 35 years ago, it was accepted that everybody got married. Luckily, I have a happy relationship and I am still married. However, society has changed and we have to change with it.
Murdo Fraser talked about whether the vote on this group was a whipping or a conscience issue. If we were discussing divorce alone, it would be a conscience issue and I would probably vote differently from some other people. Divorce is the conscience issue and not whether the separation period should be a year, 18 months or two years. As Kenny MacAskill mentioned, members of the Scottish Law Commission—better people than I—have looked at the length of the separation period. The Executive eventually said that setting the period at between one and two years was the right way forward. It is unfortunate that I was not present for the relevant part of the stage 2 debate; if I had been, I would have asked what the difference is between one year and 18 months. I think that somebody has climbed on the bandwagon and decided to change the period for the sake of change.
As Fergus Ewing said, when he was a solicitor people did not come to him 10 minutes after they had separated; it took them months. When representatives of Couple Counselling Scotland came to give evidence, they said that people
It will not take me two minutes to put across my thoughts. I believe in the sanctity of marriage and am glad to say that I have been married for 52 happy years. Margaret Jamieson touched on the most important topic in today's discussion—the children. We are great at publishing consultations, but how do children reply to a consultation? Kenny MacAskill spoke about the wisdom of Solomon. It will take more than the wisdom of Solomon to get the correct answer on this issue. The question is whether children are damaged more by a short divorce or by a long divorce. In this case, I am inclined to come down in favour of the Executive.
I cannot quite match John Swinburne's record in marriage, but I have been married for 40 years. A good marriage and a happy family life are above price. I have been very fortunate, but some women have not been as fortunate as I have been. In last week's debate on domestic violence, Malcolm Chisholm spoke about having met a woman who had suffered the violence of an abusive husband for 40 years, which is almost unimaginable suffering.
What options for divorce are open to a woman who has been bullied and humiliated for the whole of her married life, has left her husband and is afraid of facing him again? I want to talk not about divorce with consent, but about divorce where there is no consent. There is not a church in this country that would not agree that divorce is acceptable to ensure the safety of one partner in a marriage. If a woman's husband says that he will contest the divorce in order to seek to continue to control her, she may be afraid to petition for divorce on the ground of unreasonable behaviour, in case she has to face him in court—just as a rape victim would fear her rapist. We should
A woman may be unwilling, for the sake of her wider family, to make public what went on in the marriage. That is one reason why I do not support the amendment that was agreed to at stage 2 and that proposes a separation period of three years, rather than two, for a contested divorce. I want abused women whose husbands will not let them go to be able to divorce in the least traumatic way possible. Three years is too long to wait to be free of such a relationship.
There is also a financial consideration that no member has mentioned. Women who are entitled to a proportion of their husband's pension have their share frozen when the separation takes place, but the husband's share continues to increase in value, so that the longer the divorce takes to be finalised, the greater is the financial imbalance between the wife's and the husband's shares.
I have set out two reasons why I support amendment 9, which would restore the original provision for a two-year separation period in cases of contested divorce, rather than a three-year period. As a corollary to that, uncontested divorces must be allowed to take place a year after separation. Very few couples reconcile after separation—by then, it is too late. Conciliation needs to take place before separation. I was very pleased to hear the Executive's announcement today of support for conciliation services within marriage and other relationships. Back benchers have been pressing the minister on the issue for a while and I am glad that he has come through.
You make that sound terribly exciting, Presiding Officer.
As I have said before, I practised as a family lawyer for 12 years. In my unfortunate experience, only one couple reconciled. The duty of a solicitor is to reconcile—it is not to rubber-stamp divorces. Divorces are always painful, personal and individual. However, the reality of life is that, when one party has decided that a marriage is at an end, it is at an end. I welcome the Executive's amendments, which I will support.
It is proposed that there should be a minimum separation period of one year in cases of uncontested divorce, but consent can be withdrawn at any time. If that happens, people will have to wait two years to divorce. There are also fault divorces. The problem has been with the five-year separation period that is currently required in cases of contested divorce. Over all my years as a family lawyer, my experience was that, the longer
Margaret Mitchell mentioned the Faculty of Advocates, but these days it handles very few divorces. It handles only those divorces that involve complex, perhaps international, law, severe difficulties with children or vast numbers of complex property rights. It does not really deal with—I hate to call them this—the run-of-the-mill divorces that many of us have been through. Like Margaret Mitchell, I divorced after 25 years of marriage. [Interruption.] I am sorry—I meant to say Margaret Jamieson. I assure members that divorce was not a step taken lightly, either in my experience or in that of the clients who came over my doorstep.
I welcome the position that has been adopted. I would add that no sheriff will grant a divorce of consent if they are not satisfied as to the welfare of the children. That is an important point to remember.
Murdo Fraser spoke about the primacy of committee decisions on this matter. Could that be a member of the same Conservative group that regularly votes against committee decisions when they come back to the chamber? He suggested that we should take the decision that was made at stage 2 as being the line that should be held and said that it would not do anything for the reputation of the Parliament if we ignored that. If we followed that argument to its logical conclusion, we would not bother with any votes at stage 3 at all. This is about Parliament coming to an informed decision and, on the basis of the discussion that we have had today, I believe that the decision that we will take will be an informed one. We have had a very good, measured debate from all sides.
I recognise the difficulties that many members face when contemplating the issue. John Swinburne made a valid point about how we can hear the views of children on this subject. That might be one of the matters that Scotland's commissioner for children and young people should consider when establishing what children think on a range of issues. Divorce, in common with all aspects of family law, is a sensitive issue. I recognise the range of views that exist. I emphasise yet again that our reform of family law is not intended to devalue the importance of marriage; it intends to reflect the changing shape of our society and to protect the interests of children.
I come from a tradition in which divorce is not recognised. When I grew up, I did not know anyone who had divorced and there was no one to whom I was related who was divorced. It was just
We want relationships to work and we recognise the special place that marriage holds for so many people in our society. That is why we will increase our support to those who help to resolve problems in relationships. I say this to those who believe so strongly in the value of marriage: if someone has decided that there is no longer any point in making a relationship work, if that person then meets someone else and wants to move on to a new relationship, and if that person believes fundamentally in the value of marriage, are we seriously saying that we will prevent them from marrying again and that we will force them to continue living with the same person? That would seem to fly in the face of everything that people argue if they believe in marriage. We should let people move on and live their lives to the fullest. Let us put some of the problems of the past behind us.
If two people are intent on divorcing, we believe that it is necessary for that to happen with the minimum possible bitterness and acrimony. Far be it from me to agree with Fergus Ewing on anything, but if I gave the impression that we believed that our proposals would remove acrimony, I apologise—they will not. They are about trying to reduce it and minimise it. We want that parting of the ways to take into account the best interests of the children, not the personal anger and animosity of the adults. Our proposals are based on long-held values that reflect the central role of children in family life. The amendments are based on the principle that is central to everything that we stand for as a country and as a society: the best interests of children.
We do not have any proposals before us to abolish divorce or to extend the period of time following separation prior to divorce. Various speakers, such as Patrick Harvie, suggested that the proposals would lock people in for longer, but there are no such proposals.
Others—I cannot remember who—suggested that there would be further delay but, again, there are no such proposals before us today.
There is a recognition that society has moved on since 1976. Sadly, we are having the debate against a background of little evidence, whether from Jim Wallace or from me, about the implications for the number of divorces. There is no evidence about whether the changes to separation periods will reduce—or otherwise affect—acrimony or about the impact on children. Sadly, that is the background that we have before us.
The Scottish Law Commission might well have come up with a set of proposals. Westminster has ignored the issue, although it was sitting waiting to be acted on. It has taken the Executive almost seven years to get to this point. I do not criticise the Executive for that, because the issue is contentious. I accept that there are a range of views, which are not necessarily as well informed as many of us would like, given the lack of evidence. It comes down to a judgment call.
On one side are those who parade the evidence of the Scottish Law Commission and the practitioners, but the great majority of those who took part in the most recent consultation did not agree with the commission's proposals.
It was suggested at some point—perhaps by Mr Wallace, who I think did the same at stage 2—that there could be an increase in the number of applications for divorce on the ground of unreasonable behaviour, but there is no evidence for that. If there were lots of concerns about a five-year separation period where there is no consent and a two-year separation period where there is consent being too long, surely there would have been a great increase in the number of applications for divorce on the ground of unreasonable behaviour or on the other grounds. There is no evidence for such an increase.
Although we have had a challenging and, at times, heated debate about that, there is not the groundswell of support from the public for the proposed changes on the basis of the actions that they are taking, which the proposers of the change to two years without consent and one year with consent would have us believe.
I do not take an absolutist position, as Mr Fraser suggested that I do. I am willing to change and recognise that five years is too long. An absolutist position would be to oppose divorce, which I do not. I believe that the choice is up to us all as individuals. Regardless of whether this is a conscience issue, there are a range of views in all our parties, with the possible exception of the Greens, who have said that they have all arrived at the same conclusion independently. It would
I thank the Executive for lodging amendments 27, 28 and 54, which I failed to lodge. I commend amendments 35, 27, 28 and 54 and urge members to vote against amendments 8 and 9.
Division number 1
For: Adam, Brian, Aitken, Bill, Brocklebank, Mr Ted, Davidson, Mr David, Ewing, Fergus, Ewing, Mrs Margaret, Fergusson, Alex, Johnstone, Alex, Mather, Jim, McFee, Mr Bruce, McMahon, Michael, Morrison, Mr Alasdair, Munro, John Farquhar
Against: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Brownlee, Derek, Butler, Bill, Byrne, Ms Rosemary, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Curran, Ms Margaret, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Fraser, Murdo, Gibson, Rob, Gillon, Karen, Glen, Marlyn, Godman, Trish, Goldie, Miss Annabel, Gordon, Mr Charlie, Gorrie, Donald, Grahame, Christine, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Leckie, Carolyn, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, MacDonald, Margo, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Campbell, Martin, Paul, Marwick, Tricia, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLetchie, David, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Morgan, Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Scott, John, Scott, Tavish, Sheridan, Tommy, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinburne, John, Swinney, Mr John, Tosh, Murray, Turner, Dr Jean, Wallace, Mr Jim, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Abstentions: Gallie, Phil
Division number 2
For: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Byrne, Ms Rosemary, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Curran, Frances, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Gibson, Rob, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Grahame, Christine, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Leckie, Carolyn, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, MacDonald, Margo, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Campbell, Martin, Paul, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, Morgan, Alasdair, Muldoon, Bristow, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Sheridan, Tommy, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Sturgeon, Nicola, Swinburne, John, Turner, Dr Jean, Wallace, Mr Jim, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Against: Adam, Brian, Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Canavan, Dennis, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Ewing, Mrs Margaret, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Goldie, Miss Annabel, Johnstone, Alex, Marwick, Tricia, Mather, Jim, Matheson, Michael, McFee, Mr Bruce, McLetchie, David, McMahon, Michael, Milne, Mrs Nanette, Mitchell, Margaret, Morrison, Mr Alasdair, Mulligan, Mrs Mary, Munro, John Farquhar, Neil, Alex, Robison, Shona, Scanlon, Mary, Scott, John, Stevenson, Stewart, Swinney, Mr John, Tosh, Murray
Division number 3
For: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Byrne, Ms Rosemary, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Curran, Frances, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Gibson, Rob, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Grahame, Christine, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Leckie, Carolyn, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, MacDonald, Margo, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Campbell, Martin, Paul, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Morgan, Alasdair, Muldoon, Bristow, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Scott, Tavish, Sheridan, Tommy, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Sturgeon, Nicola, Swinburne, John, Turner, Dr Jean, Wallace, Mr Jim, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Against: Adam, Brian, Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Canavan, Dennis, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Goldie, Miss Annabel, Johnstone, Alex, Marwick, Tricia, Mather, Jim, Matheson, Michael, McFee, Mr Bruce, McLetchie, David, McMahon, Michael, Mitchell, Margaret, Monteith, Mr Brian, Morrison, Mr Alasdair, Mulligan, Mrs Mary, Munro, John Farquhar, Neil, Alex, Scott, John, Stevenson, Stewart, Swinney, Mr John, Tosh, Murray
Abstentions: Ewing, Mrs Margaret