§ Order for the consideration of the Bill as amended, read.
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THE ATTORNEY GENERAL moved the omission of Clause 18 (added to the Bill in Committee), and the substitution of the following:—
Application for restitution of conjugal rights or judicial separation on any one of the grounds aforesaid may be made by either husband or wife, by petition to the Court or to any Judge of Assize at the assizes held for the county in which the husband and wife reside or last resided together, or to the Court of Quarter Sessions of the Peace held for the county or borough in which the husband and wife are or were last resident, and which Judge of Assize and Courts of Quarter Sessions respectively are hereby authorized and required to hear and determine such petition according to the rules and regulations which shall be made under the authority of this Act, and the Court or Judge to which such petition is addressed, on being satisfied of the truth of the allegations therein contained, and that there is no legal ground why the same should not be granted, may decree such judicial separation accordingly, and where the application is by the wife, may make any order for alimony which shall be deemed just; provided always that any Judge of Assize to whom, such petition shall be presented may refer the same to any of Her Majesty's Counsel or Sergeant-at-law named in the Commission of Assize or Nisi Prius, and such Counsel or Serjeant shall, for the purpose of deciding upon the matters of such petition, have all the powers that any such Judge would have had by virtue of this Act or otherwise.
§ Clause brought up, read 1o and 2o; amended, and made part of the Bill.
§ THE ATTORNEY GENERAL moved 1888 the insertion of two clauses after Clause 18, providing the machinery for carrying out the latter.
§ These clauses were also twice read and made part of the Bill.
§ THE ATTORNEY GENERAL moved that the words "of Marriage and Divorce" should be struck out of Clauses 3 and 4, for the purpose of inserting, as the title of the Court, "for Divorce and Matrimonial Causes."
§ Amendment agreed to.
THE ATTORNEY GENERALsaid, he proposed to amend Clause 8 by adding the senior puisne Judge of each Court to the members of the new Court of Divorce.
§ The Amendment was agreed to.
§ Clause 15 and 19 of the original Bill were struck out.
THE ATTORNEY GENERALsaid, that in substitution of Clause 19, for the protection of the deserted wife's property, he should propose to insert Clause 19 E., (Wife deserted by her husband may apply to a Police Magistrate or Justice in Petty Sessions for protection).
§ Clause brought up and read 1o and 2o.
§ MR. HENLEYsaid, he wished to ask whether the words giving the right of action to the wife against a creditor, or person claiming under the husband, expressed with sufficient clearness the kind of action which was to be brought, and in what court it was to be brought. Also, whether there was sufficient protection against the husband seizing the property himself, without the intervention of any agent. In order to make the point clearer he would move,
That an Amendment should be made in Clause 19 E., 1. 29, by inserting before the word "any" the words the "husband or.
§ Question proposed, "That those words be there inserted."
THE ATTORNEY GENERALsaid, his desire was to give the wife a ready and expeditious remedy against every person against whom it was possible to bring an action. There was a technical difficulty in the way which rendered it scarcely possible for her to bring an action directly against her husband. If the husband obtained and violently possessed himself of the property of the wife, after the issue of the order the magistrate would have power as against the husband, or, at all events, he might be proceeded against in a Court of Equity. But if the husband, through the medium of another party, which was more 1889 generally the case, endeavoured directly to obtain possession of the property, the wife was empowered by the clause to bring an action against the individual so acting, in case the claim was under £50, in the County Court, and in case it was above that sum, in one of the Superior Courts. The magistrate's order in all common cases would be a sufficient protection against the husband, and if there were anything more important in point of property involved, the wife might be protected at once against her husband by a Court of Equity, on the ground of her being made a feme sole by the Act, and the husband would be compelled to pay all the costs of the proceedings.
§ Amendment by leave withdrawn.
§ MR. MACAULAYsaid, it had long been felt a great practical defect in the law that there was no means to protect a woman separated from her husband against the husband returning and sweeping away all the property she had accumulated by her own industry. He wished to have some further explanations as to the remedy the wife would have under the Bill for the loss she might sustain by the husband disobeying the order made by a magistrate under this clause, and making such an incursion upon her home?
THE ATTORNEY GENERALsaid, the husband would be exactly in the same position as a stranger who entered the house of the wife and took away her property. If the husband, after the issuing of the order, interfered with the property of the wife there would be a remedy against him under the criminal law.
§ MR. HENLEYsaid, the special remedy given against the creditor seemed to raise a doubt as to the protection the wife would enjoy against the husband.
THE ATTORNEY GENERALsaid, the Bill as it now stood gave a summary jurisdiction against the creditor. At present the right of separate property in the wife was a matter of contract before marriage, or of husband's consent afterwards; but here was a case in which for the first time the legislature gave her, by positive enactment, the same right of property as if she were a feme sole, and for that reason he thought there would be a remedy by the criminal law. Of course, if the parties cohabited together again as man and wife there would be an end to the judicial separation, and the property would become that of the husband as before. He did not make these remarks with a desire of checking 1890 suggestions from hon. Members. He considered this the most important clause in the Bill, and though it was his own proposition, he was quite open to correction from any hon. Member.
§ MR. ADAMSsaid, he thought the remedy of the hon. and learned Attorney General was open to some objection. It would be by preferring an indictment agaist the husband for larceny; but then would arise the ordinary rule of law, that if a person seized goods, believing he had a right to do so, he was not guilty of larceny. A trial of that kind would therefore be a very long and cumbersome process; whereas there ought to be an immediate remedy in such a case. He therefore would suggest that words should be inserted in the clause to the effect that if the husband seized the property protected under the clause he should be liable to a penalty, and in default of payment, be liable to imprisonment, with or without hard labour, for a certain period.
§ SIR ERSKINE PERRYremarked, that in his opinion the hon. and learned Attorney General had established the rights of the wife on a sound ground. The Bill declared that she should have, under the circumstances, an absolute property in her earnings, and she would therefore be enabled to assert her rights in the ordinary way. This was the first time such a remedy had been afforded by the law to a married woman, and he regretted the principle was not carried still further.
§ MR. MALINSsaid, that the mode of proceeding was somewhat cumbersome; it it was to be either by prosecution for felony or by a suit in Chancery. He considered all difficulty would be met by providing that the husband should be committed to the House of Correction for any period a Court of justice might think proper, and be bound to restore the property on the order of such Court.
THE ATTORNEY GENERALsaid, after what had been suggested, he would add a proviso to the following effect:—
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Amendment proposed,—
In Clause 19 E, line 29, after the word "if," to insert the words, "the husband, in violation of any such order, shall possess himself of any such earnings or property of the wife, he shall, on conviction thereof by a Magistrate or Justices, be committed to prison for a period not exceeding two calendar months, unless he shall restore the same or pay the full value thereof to the wife, and all costs and expenses incurred by her, or if.
§ Question proposed, "That those words be there inserted."
1891§ SIR DENHAM NORREYSobserved that, according to that proviso, the objection still remained, if the husband chose to remain in prison for the two months, he might still retain possession of the property.
§ SIR ERSKINE PERRYsaid, the property would still belong to the wife, and she could recover it by a civil process.
THE ATTORNEY GENERALobserved that even if the husband suffered the full punishment, his wife would not be deprived of her civil remedy.
§ MR. AYRTONsaid it was enough to declare that the wife should have all the remedies of a feme sole, and they would only get into embarrassments if they attempted to give a new remedy.
§ MR. MALINStook the same view of the matter. He thought it was sufficient to say that the wife might resort to all the remedies afforded by the general law, which had hitherto been found so effective as regarded both large and small properties, and he would recommend the hon. and learned Attorney General to withdraw his Amendment.
THE ATTORNEY GENERALsaid, he would act on the suggestion, and, with the permission of the House, withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 23.
§ SIR DENHAM NORREYSsaid, he wished to ask the hon. and learned Attorney General whether a woman who had already obtained a divorce a mensâ et thoro would be able to obtain protection for her property by applying to this Court.
THE ATTORNEY GENERALreplied, that such a person would have all the rights which were conferred by this Bill.
§ Clause 25.
§ MR. STAPLETONsaid, he rose to move the insertion of words providing that a woman should be entitled to a divorce a vinculo on the ground of adultery committed by her husband within two years after she had obtained a decree for the restitution of conjugal rights, if coupled with such continued or renewed denial of such rights as would enable her to take further proceedings or maintain a fresh suit for their restitution. He had moved a similar Amendment on a previous occasion, when objections were raised to it, which he hoped he had removed by the form of words that he had now adopted. The Amendment was intended to give a divorce a vinculo to a woman who had 1892 been deserted twice by her husband, or who, having been deserted once, was refused a real restitution of conjugal rights by her husband's residence abroad, or other voluntary cause on his part. To couple desertion with cruelty as a necessary cause for a divorce would leave many cruel causes still unredressed. A lady who was compelled by her husband's desertion to find a refuge in the house of her father, or other relative, and there experienced greater happiness than she had enjoyed in her husband's home, could not establish legal cruelty, and therefore, as the clause at present stood, she would have no right to a divorce. He believed that by clogging the clause with desertion for a period of two years the House of Lords had put it in the power of the husband to render it completely inoperative, as, if he chose to return to his wife once in every two years, she would be debarred from claiming the just privilege of divorce. He also doubted whether the clause of protecting the property of married women would be found to act effectually, for, although there was power to indict a husband who seized the property of his wife, yet, if he chose to return home and live with her, there was nothing to prevent him dissipating that property. A man who had once deserted his wife might well be supposed capable of making false protestations and vows of future good behaviour, in order to delude the wife into a renewal of their cohabitation for his own purposes. The Amendment he proposed would, he believed, be to render suits for restitution of conjugal rights more frequent than they were at present, a result that would be for the benefit of public morality, and would obviate many of the evils which were apprehended to flow from the Bill by many hon. gentlemen in that House.
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Amendment proposed,—
In Clause 25, line 19, to insert after the word "upwards," the words, "or of adultery committed within two years after she has obtained a decree for the restitution of conjugal rights, if coupled with such continued or renewed denial of such rights as entitles her either to take further proceedings in pursuance of such decree, or to maintain a fresh suit for restitution of such rights.
THE ATTORNEY GENERALsaid, he must object to the proviso, as going beyond the scope and intention of the Bill as settled by the repeated discussions that had taken place.
§ Question, "That those words be there inserted, put and negatived.
1893§ SIR WILLIAM HEATHCOTEsaid, he would propose to add to Section 25 the following words:—
And bigamy shall be taken to mean marriage of any person being married to any other person during the life of the former husband or wife, whether the second marriage shall have taken place within the dominions of her Majesty or elsewhere.
§ Amendment agreed to: words added to the clause.
§ Clause 30.
§ MR. BUTTsaid, he would move that words should be added to Clause 30, to the effect that upon any petition for a dissoluion of marriage the Court should have the same power to make an order for alimony to the wife during the hearing of the petition as in the case of judicial separation.
§ Question proposed, "That those words be there added."
§ Amendment, by leave, withdrawn.
§ Clause 40.
§ MR. BUTTproposed to add to the clause the following words:—"Nothing in this Act, except when specially provided, shall be taken to extend to Scotland and Ireland." The special exemptions would be service of processes, summoning witnesses, and enforcement of decrees.
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Amendment proposed,—
To add, at the end of Clause 40, the words, "But nothing herein contained shall authorize the Court, nor shall the Court have jurisdiction or entertain any such suit or proceeding against any person resident in Scotland or Ireland who had not, at the time of presenting such petition, a fixed residence within the jurisdiction of the Court.
§ Question proposed, "That those words be there added."
THE ATTORNEY GENERALsaid, the clause would render the Court powerless, and deprive the injured party of any remedy in some cases; but he had no objection to insert a general proviso exempting Scotland and Ireland from the operation of the Bill.
§ Amendment, by leave, withdrawn.
§ Amendment proposed, to add, at the end of the clause, the words, "But, unless where specially provided, nothing in this Act shall extend to Scotland or Ireland."
§ SIR DENHAM NORREYSsaid, he should take the sense of the House upon the Amendment. If the Bill did not now extend to Ireland the words were unnecessary; and, if it did extend to that country, he rejoiced in the fact, and should object to any proposal which would deprive the Irish people of the benefit it would give them.
§ SIR ERSKINE PERRYsaid, he should also oppose the Amendment.
§ Question, "That those words be there added," put, and negatived.
§ Clause 55.
MR. CLIFFORDsaid, he wished to observe in reference to Clause 55, which exempted clergymen from penalties for refusing to marry a person who had been, divorced for adultery; that it was now 600 years ago since the Councils of Clarendon enacted that clergymen must act in conformity with the law of the land, and that this clause introduced an entirely new principle into that law. If it passed, when a couple presented themselves for marriage, the clergyman would not have to consider whether they were marriageable by the law of the Church or the law of the land, but the responsibility would be thrown upon him of deciding whether, according to his own private judgment, they ought to be married or not. This was introducing the thin edge of the wedge for the severance of Church and State. It would be useless to enter at that time into the question whether such severance would be productive of good or evil; but surely it could never be intended that such a result should be brought about at the fag end of the Session by the insertion of a clause in a Divorce Bill. The speech of the hon. and learned Attorney General on the subject was unanswerable, and he only hoped his vote had been in conformity with it.
§ Bill to be read 3o To-morrow.