HC Deb 17 August 1857 vol 147 cc1717-28

Order for Committee read.

House in Committee; Mr. FITZROY in the Chair.

Clause 28 (Dismissal of Petitions).

MR. HENLEY

said, the Committee would recollect that in Clause 25 there were five offences enumerated, any one of which, if added to adultery, would entitle a wife to apply for divorce. Supposing, then, a woman to present a petition alleging adultery combined with bigamy, and the Court to find that adultery had been committed but not bigamy, in that case, under Clause 28, the Court would not have power to dismiss the petition, while under Clause 29 it would not have power to make a decree. He should be glad to hear some explanation of its actual meaning and force.

THE ATTORNEY GENERAL

said, that the 27th and 28th clauses had been introduced with this particular view—to ascertain, in uncontested cases, that there was no suspicion of collusion. The clauses were put in, not as defining or limiting what the Court was to do in certain cases, but as imposing upon it an obligation in all cases. The clause gave the Court the power, and enforced the duty, of ascertaining that there had been no connivance or combination on the part of husband and wife to obtain a divorce. It did not give the Court power to dismiss an uncontested petition which had merits, but it imposed the duty of ascertaining, by any possible means, whether or not there had been col- lusion. The clause was directed specially to the crime of adultery, because there was no fear or danger of Collusion in cases involving the other grounds of divorce pointed out in Clause 25. The effect of Clause 29 would be to enlarge the area of defence, and at the end of the clause a discretionary power was given to the Court to refuse the decree in cases of unnecessary delay or cruelty. The three Clauses, 27, 28, and 29, were to be taken together, and were intended to provide for the various contingencies connected with uncontested petitions.

MR. HENLEY

said, that, in order formally to raise a discussion upon the point, he would move to leave out the words "alleged adultery," and substitute "facts alleged." He perfectly understood that the intention of the clause was to govern the Court in the dealing with uncontested cases; but it was necessary to look beyond those intentions, and to ascertain what would be the effect of the words contained in the various clauses of the Bill. It appeared to him that the new Court would have no jurisdiction but the statutable one given by this Bill, and therefore, as one clause recited the causes for which the Court should dismiss a petition, while another defined the cases in which the Court should make decrees, it would seem that these two clauses would rather restrict the notion of the Court.

Amendment proposed, to leave out the words "alleged adultery," in order to insert the words "facts alleged."

Question proposed, "That the words 'alleged adultery' stand part of the clause."

THE ATTORNEY GENERAL

said, if any material facts were alleged in a petition, and not proved to the satisfaction of the Court, it would be in the power of the Court to dismiss the petition. The clause only defined what things the Court should absolutely require to have proved in cases where there was no respondent, He thought the clause as it stood was intelligible, and did not require amendment.

SIR WILLIAM HEATHCOTE

said, he wished to point out that in the case of a wife's petition, where the adultery complained of must be combined with some other offence, the latter might not be proved, but the Court could not dismiss the petition if the adultery were proved. He thought such a provision might tend to encourage collusive proceedings.

LORD JOHN MANNERS

observed, further that he thought the point deserved consideration.

MR. BUTT

remarked, that he did not feel the difficulty experienced by the right hon. Gentleman (Mr. Henley), for there was an inherent power in any Court to dismiss any case that might come before it.

Amendment, by leave, withdrawn.

MR. BOVILL

observed, that the effect of the clause would be to render adultery, committed during marriage by the petitioner, an absolute bar against obtaining a divorce. It would be better, he thought, to make it a discretionary bar—namely, to give the Court discretion to say whether such adultery should be a bar, thus enabling it to take into consideration the circumstances under which it had been committed, and whether it had been condoned or not. He proposed that the words "or shall find that the petitioner has during marriage been guilty of adultery," should be struck out of the clause.

THE ATTORNEY GENERAL

said, he had no objection to the Amendment.

MR. HENLEY

remarked, that he preferred the clause as it stood.

MR. AYRTON

said, there had been cases in the Ecclesiastical Court where a condoned act of adultery on the part of the husband had not been held to be a bar to divorce.

Amendment agreed to; words struck out.

Other Amendments made.

MR. BUTT

said, that in order to avoid collusive suits, he would move the insertion of the words, "or that the petition has been presented or prosecuted in collusion with either of the other parties."

THE ATTORNEY GENERAL

observed, that he should offer no objection to the Amendment, and it was agreed to.

Words added.

MR. INGRAM

said, he would propose an Amendment, prohibiting a man or woman from petitioning the Court more than once in five years in the same case. If parties who disagreed were allowed to go perpetually before the Court, the worst passions would be engendered and domestic peace be wholly destroyed. On the other hand, in an interval of five years evil passions might cool down and a chance would be left for reconciliation.

THE ATTORNEY GENERAL

said, that as the Bill stood, if a petition were dismissed, it would not be competent for the petitioner to present it a second time.

Amendment, by leave, withdrawn; clause, as amended, agreed to.

Clause 29 (Decree dissolving Marriage).

MR. BUTT

said, he should move the omission of the words "or has committed adultery," in order to assimilate the clause to the preceding clause.

THE ATTORNEY GENERAL

said, he was not disinclined to support the proposal.

MR. WALPOLE

said, he could not but express his regret that Amendments were introduced in such a way that they could not receive proper consideration. For his own part, he believed that the act of adultery alone, on the part of the petitioner, ought to form a complete bar to a divorce being granted; and, therefore, he was opposed to the omission of the words.

LORD JOHN MANNERS

said, that with regard to the hurried consideration bestowed upon the Bill, the blame must rest with the Government, who called upon that House to sit, at the end of August, from noon to midnight to consider a question of such vast importance.

THE ATTORNEY GENERAL

remarked, that he had no objection to take his share of the blame which was laid upon the Government; but he hoped that the Committe would in future support him in opposing Amendments brought forward without notice, and which the Government thought it would not be desirable to introduce.

MR. HENLEY

said, that he objected to the omission of the words, as their omission would alter the whole of the existing law, which made adultery on the part of the petitioner a bar to a divorce. The hon. and learned Gentleman (Mr. Butt) had spoken of venial adultery, but it would, he thought, be very difficult to find a definition of venial adultery.

THE ATTORNEY GENERAL

said, he was of opinion that it was absolutely necessary, after the alterations which had been introduced into the preceding clause, that some change should be effected in that which was under discussion. If, therefore, the hon. and learned Member for Youghal would withdraw his Amendment he should move the omission from the clause after the word "petitioner" of the words "has committed adultery during the marriage or," and the clause would then run thus:—"In case the Court shall be satisfied upon the evidence that the case of the petitioner has been proved, and shall not find the petitioner in any manner accessory to the adultery complained of, &c."

MR. BUTT

said, that in acordance with the suggestion of the hon. and learned Attorney General he would withdraw his Amendment.

Amendment proposed, To leave out the words "has committed adultery during the marriage or."

MR. M'MAHON

contended, that if they were to pass the clause in the shape which was proposed they would be violating all principle and making the decision, in the single case which had been cited by the hon. Member for the Tower Hamlets (Mr. Ayrton), and which was quite an exceptional case, the general rule.

SIR GEORGE GREY

said, it was not proposed to lay down any general rule upon the subject, but to give to the new Court a discretionary power in dealing with exceptional cases, such as that to which the hon. and learned Member had alluded.

MR. MALINS

said, he was of opinion that it was desirable a discretionary power of that nature should be conferred.

MR. WIGRAM

remarked, that he thought that if the words were struck out a greater alteration would be made than the Committee contemplated. Discretion would then be given in all cases of adultery committed by the husband. That was very different from giving discretion when the adultery had been condoned by the wife.

Question put, "That the words 'has committed adultery' stand part of the Clause."

The Committee divided:—Ayes 37; Noes 78: Majority 41.

Words struck out.

MR. MONSELL

said, he now proposed to leave out the words "such marriage to be dissolved," for the purpose of inserting the words "sentence of judicial separation for life." He thought it the best way of raising the important question, that had not been considered by the Committee or the House in connection with this Bill, whether they would give to the Court about to be constituted the power of granting divorce a vinculo, with power to the parties to marry again.

MR. WIGRAM

said, he rose to order. He doubted if it was competent to raise the question after the Committee had passed the 25th clause.

THE CHAIRMAN

said, that the Committee having decided to give the new Court power to grant divorce by the 25th clause, the question could not again be raised.

MR. MONSELL

said, his object in wishing to take a discussion on the question of divorced parties then, was to save time.

SIR WILLIAM HEATHCOTE

then stated, on behalf of his right hon. Colleague, that as the Amendment which stood in his name referred to the Amendment which he proposed to make in the 53rd clause, he would not press it at present.

MR. WALPOLE

said, he would now move to add as a proviso, words "which would prevent the Court from pronouncing such decree where the petitioner is shown to have committed adultery which has not been condoned." Such a proviso would maintain the existing principle of the law, which laid down that a person guilty of adultery, which, on the part of the husband, was the cause, in nine cases out of ten, of the fall of the wife, should not be able to obtain a divorce.

Amendment proposed, in page 8, line 2, after the words "not be," to insert the words "at liberty to pronounce such decree where the petitioner is shown to have committed adultery which has not been condoned, nor shall it be."

THE ATTORNEY GENERAL

said, that he had no apprehension that a Court of justice, in granting divorce a vinculo upon the application of either the husband or wife, would not, where there was a counter charge of adultery proved, hold that fact to be a bar to the divorce. The words proposed by the right hon. Gentleman would apply only to cases of continuous adultery. Supposing the case of a young man married twenty-five years ago, who then, without the knowledge of it ever reaching his wife until now, had committed a single act of adultery, it would surely be very hard at such a distance of time to dig up that remote circumstance. He thought it would be better to leave the matter as it was. The Court would be bound to net upon the general principle, but not to give effect to a single transgression, such as he had mentioned. He would have no objection to insert in the clause the following words:—"If it shall be found that the Petitioner has, during the marriage, been guilty of adultery."

LORD JOHN RUSSELL

said, he wished to call the attention of the Committee to the fact that the Attorney General had put a particular case as a reason for opposing the Amendment. A Bill of this kind could not be framed without leaving some cases of peculiar hardship; but it appeared to him (Lord J. Russell) that, if the proposal of the Attorney General were agreed to, the law would be that, if the husband had gone on for five years in a course of open and continuous adultery, and in the sixth year the wife, misled by his bad example, should become forgetful of her marriage duties, and also commit adultery, then the Court would be at liberty to give a divorce at the suit of the husband, but not at the suit of the wife. The hon. and learned Gentleman said the Court would probably not act in that way, but they were framing an Act of Parliament on which the grounds of granting divorces were to be set out. He (Lord J. Russell) had been always apprehensive of enlarging very much the facilities for divorce; but this clause would enlarge them very much indeed in favour of the husband, while, at the same time, it was very restrictive in the case of the wife. It might be, that the new Court for a few years would follow the practice of the Ecclesiastical Court, but after a time the practice would change, and there would be nothing in the Act to prevent the Court from saying that it could not take into consideration any previous adultery on the part of the husband—that it was an unimportant circumstance, but that any adultery on the part of the wife should be a ground for granting a divorce to the husband. Such a course would be an encouragement of profligacy, and would lead to a disruption of the proper conditions of married life most fearful to contemplate. He regretted that the Bill did not stand in the same shape as it had come down from the House of Lords, and thought the best thing they could do was to agree to the proposal of the right hon. Gentleman.

MR. CLAY

said, he should oppose the Amendment, and would beg leave to suggest a case in which, under the influence of intoxication, or any other equally palliating circumstances, a man might once in his life be seduced into a house of ill-fame. Twenty years after, his wife, totally ignorant of the fact, might commit adultery; and on his seeking redress would, by the aid of spies and informers, who were always called into requisition in such proceedings, rake up the hitherto forgotten fact, and defeat his petition. Here he thought was a case stronger than that which had been supposed by the noble Lord.

SIR WILLIAM HEATHCOTE

said, he had always regarded with alarm the proposed increased discretion to be given to the new Court, but his alarm had been much increased by a statement which had been made, that the Amendments to the Bill should be so shaped as to give to the new Court the same amount of discretion in granting divorces which the Legislature at present of necessity arrogated to itself.

SIR GEORGE GREY

said, the proposal of the right hon. Gentleman (Mr. Walpole), and the observations of the noble Lord (Lord J. Russell), showed a mistrust of the Court, as if it were not fit to be charged with any discretionary power. He would leave all such cases as had been raised by the right hon. Gentleman and the noble Lord the Member for London to be inquired into by the Court and decided upon according to their merits. He did not himself think the Court would be so regardless of its duty as to refuse to entertain the question, whether the husband seeking a divorce had committed adultery at any period during his marriage, especially as the 27th clause imposed upon it the necessity of inquiring into counter charges.

MR. HENLEY

said, courts of justice went very much by precedents. Indeed, they were often the creatures and slaves of precedents, and there was, therefore, danger lest the period that might elapse after the adultery of the husband might be brought down step by step from nine years, for which there was a precedent, to one year. There might be some difficulty in limiting the case as proposed by his right hon. Friend (Mr. Walpole), but there were still greater difficulties on the other side, and, therefore, he should divide with his right hon. Friend.

MR. WIGRAM

said, he would remind the Committee that no judicial separation could be given if there was uncondoned adultery on the part of the husband, and the same principle ought to be extended to cases of dissolution of marriage.

MR. AYRTON

said, he would support the clause as proposed by the Attorney General. The Court should be left to deal with all these questions as they arose.

MR. MALINS

said, he believed it would be impossible to get three Judges to grant a divorce in the circumstances stated by the noble Lord the Member for London—namely, where a husband had been living in open adultery for a period of five years. He thus far agreed with his right hon. Friend (Mr. Walpole) that where it was proved a husband had been guilty of adul- tery which the wife had not condoned divorce should not be given.

THE ATTORNEY GENERAL

said, that on further consideration he must still oppose the Amendment. Notorious profligacy on the part of the husband would, of course, be a bar to divorce; but it was absurd to say that one act of adultery, which had always remained unknown to the wife, and which had been atoned for by long years of repentance and fidelity, should act with equal force.

LORD JOHN RUSSELL

said, that in adopting the suggestion of the hon. and learned Attorney General the Committee would be sanctioning an alteration of the law of great importance, which would work for the husband against the wife, and would deprive her of a sort of security which she at present possessed, against the commission of adultery by the husband. It must be assumed that the House of Lords had shaped the clause in accordance with their present practice, and that if there had been adultery on the part of the man a divorce would be refused by them; but the suggestion of the hon. and learned Attorney General, if carried out, would leave the new Court at liberty to exercise its own discretion.

MR. BUTT

thought this a case in which a discretion might be left to the Judges, as it was quite impossible that any Judge could grant a decree in the teeth of such an extreme case as that cited by the noble Lord. In the case of manslaughter, the Judges had a discretion either to fine a man sixpence, or to transport him for life. Did any man suppose that under any possible circumstances they would combine to fine all persons proved guilty of manslaughter sixpence?

Question put, "That those words be there inserted."

The Committee divided:—Ayes 41; Noes 80: Majority 39.

MR. BOVILL moved the insertion of words providing that the Court should be allowed to dismiss a petition "where the petitioner shall have been guilty during the marriage of misconduct or neglect towards the other party to the marriage."

THE ATTORNEY GENERAL

said, he could not accept this Amendment, but he would have no objection, instead of these words, to add to the clause words limiting this ground of refusal of a divorce to "such wilful neglect or misconduct as has conduced to the adultery."

MR. BOVILL

said, he would accept this suggestion.

Amendment, by leave, withdrawn.

MR. BOVILL

said, he had further to move the insertion of words providing that the Court should not be bound to pronounce a divorce "where the parties should have been living separate and apart from each other by consent before the adultery." This would only be to carry out the existing law, because the House of Lords by a Standing Order refused to grant a divorce in all such cases.

MR. BUTT

said, he thought that the existing law would be better carried out by the insertion instead of the words proposed by the hon. and learned Member for Guildford (Mr. Bovill), of the words "or have deserted the other party, or have wilfully separated from the other party." Although by a Standing Order of the year 1798 the petitioner for a divorce might be examined at the bar of the House of Lords as to whether his wife was at the time the adultery was committed living with or apart from him, their Lordships had granted divorces in several cases in which the parties before the commission of the adultery had been separated by deed.

THE ATTORNEY GENERAL

remarked that he would suggest that the hon. and learned Member for Guildford (Mr. Bovill) should withdraw his Amendment in favour of that proposed by the hon. and learned Member for Youghal (Mr. Butt).

MR. BOVILL

withdrew his Amendment, and the words proposed by Mr. Butt were inserted in the clause.

The words previously suggested by the Attorney General "such wilful neglect or misconduct as has conduced to the adultery," were then added to the clause.

MR. BOVILL

said, he would now propose, in order to give the widest possible discretion to the Court to refuse a divorce, to add the words "or where the petitioner could not have heretofore obtained a divorce."

MR. WIGRAM

suggested that the Amendment should run, "or under any other circumstances in which it shall appear to the Court unfit or improper to grant a divorce."

MR. COX

said, he should oppose the Amendment, which was negatived.

On the Question that the clause as amended stand part of the Bill,

MR. MONSELL

said, he rose to make some remarks upon the general character of the clause. The Court about to be esta blished would have the power of absolutely dissolving marriage, and allowing the parties to be married again. The importance of that principle everyone must recognise. He might safely say that no hon. Gentleman present ever pronounced an opinion before on a question involving such great social consequences. It was quite clear that this clause made marriage dissoluble for the first time in ninety-nine out of every 100 families in the country. Whether it altered the existing law of the land or not he would not say; but this was quite evident that, as regarded the great mass of the population, it made marriages for the first time dissoluble. He asked the warmest supporters of the Bill whether the people had had a fair opportunity for pronouncing an opinion on such a subject. He gathered from the discussions which had taken place, that even the Members of that House themselves were at sea on the subject of marriage and divorce. They seemed to be unable to fix upon any principle which they could fairly and logically carry out in the different limitations which they themselves had proposed to the Bill. Were they certain, he asked, that they were right when they were opposing what had been the law of all Christendom for many centuries—and if they were wrong, had they calculated till the consequences that would follow? In Prussia there had been a constant addition to the grounds of divorce a vinculo, and the results had been frightful, holding out a warning to us which we ought not to despise or neglect. The result was that those persons who were most desirous of improving the tone of morality in Prussia were anxious to revert to that principle with reference to the dissolubility of the marriage tie, from which they had departed; while in the case of France it was notorious that its inhabitants had found cause to repent the doctrines upon the subject which had been legalized at the time of the Revolution, and had therefore, in 1816, deemed it advisable to return to their ancient law of marriage, by that means saving themselves from those unhappy consequences which might be anticipated to follow in this country the passing of the Bill under the consideration of the Committee. With regard to Scotland it was distinctly proved by the right hon. Member for the University of Oxford (Mr. Gladstone) that power of obtaining divorces was in the hands of but a small portion of the community. As it was near the hour (ten minutes to four) when further discussion on this Bill must for a time be suspended, he should offer no further observations in opposition to the clause, but should content himself with moving that it be omitted from the Bill.

Question put, "That Clause 29, as amended, stand part of the Bill."

The Committee divided:—Ayes 88; Noes 21: Majority 67.

Clause agreed to.

House resumed. Committee report progress; to sit again this day, at six o'clock.