Hansard

I disagree with much of what Bruce McFee said. I do not think that such a proposal gives out the wrong signals. After all, every committee member has indicated the importance of marriage. I sometimes think that if couples were required to know each other for two years before they could get married we might not have to deal with some of these problems.I agree entirely with Brian Adam's important point that divorce should be the last resort. I do not have Fergus Ewing's extensive experience in consistorial actions; when I practised, however, divorces were heard in the Court of Session and the witnesses and the pursuer had to appear. The divorce clients on whose behalf I appeared saw that step very much as a last resort and were in no doubt about its gravity. No matter whether it was on the ground of non-cohabitation for two years with consent, non-cohabitation for five years without consent, adultery or unreasonable behaviour, divorce was very much seen as a last resort.Most couples enter into marriage with the intention that it should last. However, I am sad to say that, as people know from personal experience or from friends who have gone through the trauma of divorce, when a marriage breaks down, the parties involved go through a difficult and traumatic time.The proposals in section 10 are worth supporting. We should remind ourselves that the sole ground for divorce is the irretrievable breakdown of marriage and that the court must be satisfied that the marriage has broken down irretrievably. The bill proposes that evidence of that is that the parties have not cohabited for one year and that they both consent to the divorce.Stewart Stevenson said that a year is a relatively short period of time and that parties might not know whether they want to divorce so there might be a possibility of reconciliation. The practical application of that is that if there is a doubt and one of the partners thinks that there is a possibility of reconciliation, that ground for divorce is not open to them; it applies only when both parties have agreed to divorce. We are talking about two grown-up people who agree that their marriage has irretrievably broken down, who have not lived together for a year and who want to get on with their lives. I have no doubt that the decision whether to divorce will have been a great source of grief and anxiety, but we are talking about people who have consented to a divorce, having been separated for a year. One does not always know, but their marriage might have broken down even before they separated formally.I have read the committee's stage 1 report. Margaret Mitchell referred to the evidence from the United Reformed Church that five years was a long time for there to be uncertainty for the children. The Executive's policy memorandum suggested that research indicated that such a period of disruption could be unsettling and damaging for children, who could suffer from low self-esteem. It is not just a question of trying to shorten the period of disruption, uncertainty and acrimony, although that is important in itself; the bill does nothing that removes the ability to prove irretrievable breakdown of marriage by virtue of unreasonable behaviour or adultery. My concern—it is not fanciful, because I believe that this happens—is that if a person wants a divorce and is going to have to wait longer to get it, they might well decide to cite adultery or unreasonable behaviour. That is where the acrimony would arise. In a divorce that might otherwise have proceeded consensually, we might find that one party decides that if they have to wait two years they will use a specific incident of the other being unfaithful and blow it up.In the debate on amendment 14, mention was made of violent abuse, which would unquestionably be a ground for divorce. I acted in enough cases in the short period of time when I practised family law to know that unreasonable behaviour is not about real physical abuse. Very often when a divorce became acrimonious, a petty little incident of words spoken in anger, which were shrugged off in half an hour, was turned into a major conflict. If there were disputes about money, it became a question of which partner could paint the other blacker. People would dredge up all sorts of things from their memories as one tried to make the other sound worse than they were.I am concerned that in the longer period where one party is not willing to agree to a divorce, we would find that parties would cite unreasonable behaviour, because there is no time limit for that and people can get a divorce more quickly. I am not saying that there is never acrimony, but I am concerned about acrimony spilling out in cases that might otherwise have proceeded more consensually because one party is determined to get a divorce and will magnify any incident that happened during the marriage to establish unreasonable behaviour. If children are involved, a divorce that might have proceeded smoothly might become very difficult for them. We should not lose sight of that.I do not believe that we should undermine or downplay the importance of marriage—everyone who has spoken has said how important it is—but we must consider children's interests. However, in terms of children's interests, if two adult people in a marriage decide that they have tried but failed and now want to move on, making them wait a longer time to do so will not necessarily add to the well-being of society or to that of their children.