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Justice 1 Committee, 02 Nov 2005

02 Nov 2005 · S2 · Justice 1 Committee

Item of business

Family Law (Scotland) Bill: <br />Stage 2

Ewing, Fergus SNP Inverness East, Nairn and Lochaber Watch on SPTV

These are highly sensitive matters, and I am sure that we all respect the opinions of those with whom we may not necessarily agree. I am inclined to support Margaret Mitchell's amendment. I do so as one who was engaged from 1979 for two decades in family law, although I make no claim to be a specialist. The Divorce (Scotland) Act 1976 contains a duty on lawyers who are acting in consistorial matters to encourage reconciliation. Therefore, the law recognises that lawyers can play a part in discussing with the party in the privacy of an office the possibilities of reconciliation. A lawyer may then recommend mediation or other services. That is a duty that I always sought to fulfil where appropriate.Mary Mulligan made a reasonable point, but Margaret Mitchell's amendment does not seek to force anything; it seeks to encourage. Since the law already contains a similar provision for lawyers, there is no reason why it should not do so for a sheriff.Evidence from the House of Commons in 1996 shows that 50 per cent of men and 28 per cent of women regret having gone through a divorce. Indeed, many couples consider reconciling after divorce. If that is the case, surely it would be sensible for the sheriff at least to be able to look at that possibility at the time of divorce.It may be wrong to generalise, but in my 20 years' experience I found that people seeking advice on divorce are often agitated, confused, angry and uncertain. If children are involved there are almost always mixed feelings about whether it is prudent to proceed. I understand that figures for 1989-93 from "Civil Judicial Statistics Scotland", which are the most recently available, show that of the divorce actions brought in that period, no less than 16 per cent were dropped. That is an indication that many people decide not to proceed with divorce, even though they might have embarked on an action.I say that knowing that raising an action of divorce is a momentous step that sets off a chain reaction of emotions and consequences. However, there are no statistics on how many people have visited lawyers with the intention of instigating a divorce action since the duty contained in the 1976 act was introduced, and have decided to stay together as result, or partly as a result, of the advice received from the lawyer or as a result of the counselling or mediation that they received.Because what happens between solicitor and client is completely confidential, it may be impossible to discern statistics. However, I suspect that a huge number of couples have decided not to proceed with divorce because one of them benefited from advice that they should stay together; perhaps, in most cases, for the good of the children. Stewart Stevenson made the very apposite and telling point that proposed new section 2(1)(a) of the 1976 act would need to be amended, because it may not always be suitable for a meeting to be required. The proposed new section does not stipulate that there must be a meeting. Nevertheless, perhaps proposed new section 2(1)(b) should be amended so that the sheriff could have regard to the points that Stewart Stevenson made about whether it would be reasonable for such a meeting to take place. If there has been violence, a meeting would obviously not be reasonable. No sheriff would require a wife who has been the victim of matrimonial violence to meet her violent husband. That could be dealt with at stage 3, perhaps by a modest amendment to amendment 14. I would be interested to hear whether Margaret Mitchell agrees in her closing remarks. I hope that the committee will give sympathetic consideration to amendment 14.

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Justice 1 Committee, 02 Nov 2005

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