Hansard

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 underline the importance of marriage. That is why couples will still have to prove to the court that their marriage has irretrievably broken down, and it is why a court will still not grant a divorce if it considers that there is a reasonable prospect of reconciliation.

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.