§ Order for Second Reading read.
§ (6.45.) MR. HUNTER (Aberdeen, N.)I beg leave to move the Second Reading of this Bill. Since 1858 there has been no legislation in this House on the subject of divorce in England and Scotland; and though I agree that frequent legislation on the subject would be highly objectionable, I think after so long a period it is not unreasonable that the opinion of the House should be taken upon this somewhat narrow but important point. The Bill provides for the assimilation of the English and Scotch law on two points. The law in Scotland has been unchanged since the Reformation. It may be said that the law of Scotland is not absolutely defensible on logical grounds, because it provides the relief of divorce in certain cases and not in others where equally strong reasons might be urged, but it is a settlement which has stood the test of 300 years. I think it is desirable on the question of divorce the law of two peoples, who frequently intermarry, should, if possible, be the same. By the law of Scotland, desertion, in the strict legal sense, for four years is a ground for divorce, whether the husband or wife be deserted. The other provision of the Bill deals with the question of immorality. The matter was argued at great length on the passing of the Divorce Act, and it was decided finally that the husband should get a divorce for adultery only on the part of the wife, but that the wife should only get a judicial separation for adultery only on the part of the husband. The Scotch law puts both sexes on an equality in this matter. In 1857 the hon. Member for Midlothian, who opposed the Divorce Bill, defended the principle of absolute equality for both sexes on this point. The Bill will no doubt be attacked by those who object to all divorce, but they are a small body; and as the principle has been adopted by the English law, it ought to be applied with fairness and equality 1438 between the two sexes, and that equality is desirable in the highest interests of morality. And it will be attacked with more force, perhaps, by those who say you cannot stop at those two points. No doubt, if we were discussing the question de novo, there are other grounds, such as habitual drunkenness, imprisonment for a long period for serious offence, and insanity, on which it might be urged divorce should be granted. The ground for my particular proposal is that it has stood the test of 300 years, and no expansion of the law has apparently been desired. The House is in possession of two interesting Returns, one obtained by the right hon. Member for Midlothian showing the precise number of divorces in England since the Act of 1857, and the other obtained by myself, giving the corresponding figures for Scotland. The Returns show that, although the Scotch law is so much wider than the English law, the percentage of divorces to population in both countries was almost absolutely identical. We may, therefore, draw the conclusion that the Scotch law is not only sound in principle and just as between the sexes, but that in practice it does not lead to a great multiplicity of divorces. In justice to those who suffer under the inequalities of the English law, it is only just that relief should be provided, at least, so far as the Scotch law goes. I will not occupy the time of the House in giving the numerous cases of hardship which have been brought to my notice, but will simply move the Second Reading of the Bill.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Hunter.)
§ Notice taken, that 40 Members were not present; House counted, and 40 Members being found present,
§ *(6.55.) THE ATTORNEY GENERAL (Sir R. WEBSTER, Isle of Wight)I listened with interest to the speech of my hon. and learned Friend, and I confess I am not surprised that he has not been able to suggest to the House any other reasons for a relaxation—if I may use the term—of the conditions under which divorce is to be 1439 obtained in this country. He has told us that the Scotch law differs from the English law in this respect. I cannot speak from experience of the Scotch law, but I am extremely doubtful whether or not there are any large number of divorces for the causes which come under this Bill. I have had some little experience in the Divorce Court in this country, and from that and from the information brought to my notice since I have been in office, whatever may be the opinion with regard to the work of the Divorce Court, I should hesitate, and I respectfully and strongly advise the House to be very slow, to render more easy the means of getting dissolution of marriage. My distinct belief is—and I say it with extreme regret—that the number of collusive divorces which come before the Court, and which do not reach the Queen's Proctor, is very large. The information on this point coming before me as Attorney General has surprised and shocked me. Now, there are three changes proposed in the Bill. The first is, that the wife should be able to obtain dissolution of marriage, as distinct from judicial separation, on the ground of the husband's adultery alone; the second, that she should be able to obtain a divorce for four years' desertion; and the third, that the husband should be able to obtain a divorce for a similar desertion by the wife. My hon. and learned Friend proposes that four years' desertion without reasonable excuse should entitle the wife to dissolution of marriage. Let us consider, from the point of view I have put to the House, what the objection to that would be. We know very well that under the circumstances of many cases desertion is a very great hardship, and is most cruel; and in cases where the husband has himself been guilty of adultery, it is a ground for divorce. But my hon. and learned Friend proposes that simple desertion for four years should be sufficient. I wish he could have given us a little more information on that point with regard to the Scotch law. Perhaps some other Scotch Member will be able to tell us how many cases of this kind 1440 there have been under the Scotch law during the last ten years. That is information that would have been valuable—mere general observations do not carry the case any further. But we must look at this matter from a practical point of view. Take the case, which I would remind the House in my opinion occurs very frequently, of persons being only too willing to separate from one another, and to break the marriage tie if they can do so without any unnecessary stain on their character; or the case of a husband whose business constantly takes him away; or cases might arise in which what after all is only separation by consent might be turned into desertion without reasonable excuse. I cannot imagine any test less likely to limit the operations of the Divorce Court than that such a short period of desertion, and that the circumstances of desertion only should be sufficient to obtain a dissolution of the marriage. In some cases it has been said that judicial separation is scarcely an advantage; but, on the other hand, a large number of persons agree to live separately by separation deed rather than go into the Divorce Court at all. What I have said with regard to a petition for dissolution of marriage against a husband on the ground of desertion obviously applies with very considerable force—I may almost say with increased force—in the case of so-called desertion by a wife. Incompatibility of temper and living away from one another would, in many cases, be turned into desertion by a wife; and I doubt whether desertion would apply in the case of a wife in the same way as it applies in the case of a husband. With regard to the other ground which is to be sufficient to justify the Court in decreeing a dissolution of marriage, I confess, apart from the proceedings in the Divorce Court, and apart from what may be called the legal proceedings of divorce, I sympathise, to a great extent, with the argument of my hon. and learned Friend. Everyone, I imagine, can conceive persons, whose opinions are entitled to great weight, who entertain the view that there should be an equal standard of morality for men and women. We 1441 can conceive persons holding the view that the punishment, if it is to be called punishment, in the case of the husband's adultery ought to be as great as in the case of the wife's adultery; but, unwilling as I am to use an argument in this House or outside this House to lower the standard of morality in one case or the other, I think it is not possible, as experience in the Divorce Court shows, to treat or argue the case on what may be called purely moral or philosophic grounds. We must look at the matter practically, and I have not the slightest doubt that immorality on the part of the husband is not regarded as so serious an offence as immorality on the part of the wife. There are reasons why, from a practical point of view, I think it is not an unfair thing to say, human nature being what it is, that the wife cannot ordinarily be subjected, and is not ordinarily subjected, to the same temptation as the husband is, if there is any liability to failure in the case of one or the other; and when dealing with this question, and considering the grounds upon which persons are justified in obtaining a dissolution of the marriage contract, we cannot shut our eyes to the views taken by high-minded people from a practical standpoint. But, as I have said, regarding the matter from an abstract point of view of right and wrong, or on moral or religious grounds, I admit there is a great deal to be said for the view that the punishment of the offence should be as great in the one case as in the other. I am not sure that it would be desirable in the interests of the wife that the Court should be bound to dissolve the marriage on the ground of the husband's adultery alone. Of course, my hon. and learned Friend may meet that by saying that there should be a discretion given to the Court; but I think there would be a great objection to give that discretion to the Court, having regard to the protection which is afforded to the wife by a judicial separation, by increase of alimony, and by the custody of the children. The opinion I have formed—and I have given some thought to the question and I give my opinion with great deference to the opinion of others—is, 1442 that it would be undesirable that there should be an alteration of the law in the manner indicated by my hon. and learned Friend who moved the Second Reading of this Bill. He will, of course, appreciate the distinction I make. I have already said that I have not any objection to it from what I may call the moral view of the case; but I consider that an alteration of the law, even in that respect, is undesirable, and that, being undesirable, we ought not to relax the conditions under which the dissolution of marriage can be granted, unless a very strong case can be made out. I trust that hon. Members who have experience of the working of the Divorce Court will follow me in this Debate, if it is thought necessary to continue it; but knowing, on previous occasions, that the question was going to be raised, I took steps to inquire from those whose opinion I value, and from those whose opinion I am sure the House would consider entitled to very great weight, as to what would be the practical working of a change in the law in this direction; and certainly the great majority of those who have experience of the working of the Divorce Court to whom I have spoken have concurred in my opinion that a relaxation of the law in this respect would be undesirable. I cannot part from this branch of the subject without again referring to the question of collusion. It has been impressed forcibly upon my mind repeatedly during the last five or six years. I want my hon. and learned Friend to consider how the question of collusion bears upon this question of the relaxation of the conditions under which dissolution of marriage can be granted on the ground of the husband's adultery alone. Parties very often have no objection to be charged with adultery when they want to be divorced. It is not an uncommon thing for a wife to allege cruelty in order to turn judicial separation into a decree for the dissolution of marriage. The husband not unnaturally is unwilling to admit that he is guilty of cruelty. Therefore we have one safeguard, though it is a slight one, against collusive divorce, because if the husband has been 1443 guilty of adultery, and not guilty of cruelty, only a judicial separation, and not divorce, can be obtained. If the alteration of the law proposed by my hon. Friend were carried into effect then a divorce could be obtained on proof of the husband's adultery alone; and I am satisfied that, in the case especially of both parties wishing to get rid of one another, the door to collusive divorce would be much more freely opened, and we should hear more of it. Speaking with some little experience of the Divorce Court—though I give my opinion with all deference—I think it is undesirable, speaking of the procedure of the Divorce Court, to relax the conditions on which dissolution of marriage can be obtained, and to make the facilities for obtaining the dissolution of the marriage contract more easy. From the point of view of morality, from the point of view of perjury, and from the objection I take from my experience of the working of the Divorce Court, I think this relaxation would not be a wise step. The only argument, if I may venture to call it an argument, that my hon. and learned Friend used is based, upon Scotland—a country for which I have the greatest respect; and for the laws of Scotland I have the greatest admiration. But I feel that it is not by calling attention to a law which has existed in Scotland for 300 years, and was, there fore, well known at the time that the English Divorce Act was passed, and was no doubt taken into consideration—it is not by calling attention to that, but by showing, if it can be shown, that within a reasonable period divorce or dissolution of marriage for lesser offences has prevailed largely in Scotland, that some ground would have been shown for the Second Reading of this Bill. But it appears to me that the House should not agree to the Second Reading of this Bill, and that at the present moment it is not desirable that the law should be altered in the manner proposed.
§ *(7.17.) SIR J. MCKENNA (Monaghan, S.)I rise for the purpose of moving the Amendment which stands in my name on the Paper. I venture to say that this is one of the most audacious Bills introduced to Parlia- 1444 ment since I have first had a seat in this House. What this Bill proposes to do is to make it easy to obtain a divorce by the simplest collusion, and without the slightest impairment of the character of either party. That is the premium that is held out. A duly married couple have only to separate for four years, and then they can obtain a divorce as a matter of course. One of the greatest obstacles that now lies in the way of availing of the Law of Divorce is this: that it cannot be done without a certain amount of punishment, social and otherwise, hanging to one party as a result of the decree of the Court; but what does this Bill say? If either the husband or wife deserts—that is to say, keeps out of the way for four years—that will amount to legal desertion of the party who complains, and who may be the great offender, and gets completely rid of all impeachment of character of either party, thus offering a temptation to the innocent one, and holding out a premium of immunity to the guilty one; for if there is guilt in any case under this Bill, however serious, there is no provision whatever for the Queen's Proctor intervening. In cases of this kind nothing could be easier than collusion. An infamous offender might, in fact, force his wife to take the only remedy open to her—namely, proceedings for divorce, which carried no punishment. Under the pretence that it is desirable to assimilate the law of England to the law of Scotland, the hon. and learned Member introduces this Bill, which purports to apply the same condition now applicable in Divorce under the law of Scotland to the Law of Divorce in England. The hon. and learned Member has not explained how the Marriage Laws of England and Scotland have been so different for centuries and are so still; but it came about in this way. The Christian Law of Marriage was early promulgated in England, but was never proclaimed in Scotland at all; not even the latest summary of the law, that of the Council of Trent; thus when the Reformation came upon these countries, whether for good or whether for ill, the Marriage Law of Scotland was radically different from the Marriage Law of 1445 England. I may say for the information of my hon. Friends that the Marriage Law in Scotland was, before the Reformation and in Catholic times, what it has been ever since, with the exception of a few modifications that have been introduced in the course of the last 20 years. The Law of Marriage stood before the Council of Trent in this way—it was left undetermined whether the Sacrament of Marriage was performed by the parties themselves or should be by the intervention of a priest in orders. The Council of Trent decreed that for the future in every country in Christendom in which the Council of Trent should be proclaimed—but not till then—the marriage between the subjects of the Church and of the State should be in faciemecclesiàe—in face of the Church; which, interpreted into ordinary language, meant that it should be in the presence of the priest of the parish, where the ceremony purported to be effected. The marriage law, as laid down by the Council of Trent, was proclaimed in England; it was proclaimed in France; and it was proclaimed over all the Continental countries of Christendom; but it never was proclaimed in Scotland, and, the Council of Trent not having been ever proclaimed in Scotland, they have nothing to modify, and they have had no occasion to do a number of things there which the ancient law of England since Saxon times made absolutely imperative in order to validate or which, being omitted, might afterwards invalidate a marriage. We are now asked to assimilate the law of England and Scotland with respect to marriage; but the hon. and learned Member cannot say that the law of Scotland is now exactly what he proposes that the law of England and Scotland should be when this Bill is passed. Well, I now understand the hon. and learned Member does say so, but even if this be the state of the law in Scotland, I would ask to be informed what advantage and how many times advantage has been taken of that law in Scotland for the purpose of carrying out divorce on principles that would be made easy for both England and Scotland? That would be more pertinent 1446 to the argument by which the hon. and learned Member attempts to support his Bill. That fact would be more pertinent than anything else—how many people in Scotland have felt so aggrieved for the last 300 years that they availed themselves of the facilities for divorcing themselves from one another on the ground of mere desertion? How many have availed of it? If very few have availed of it, then I say that there should be no temptation held out to the people here, who are of a different constitution from my Scotch friends. Then there is another ground on which I say this Bill ought to be rejected. There has been no warning of it, and there has been no inquiry on the subject. Even if there were a justification in the minds of the majority of this House for bringing in such a Bill and sending it to a Committee, it would be a most serious thing to stamp it with the seal of a Second Reading in this House without its having been submitted previously to any test except the test of the judgment of the five Gentlemen, which is not altogether infallible, whose names are found on the back of the Bill. I beg to move that this Bill be read a second time this day six months.
§ *(7.29.) MR. KELLY (Camberwell, N.)I beg to second the Motion of the hon. Member. I am not at all in favour of dealing, and I trust the House will not deal, piecemeal with the Marriage Laws. I admit that there are cases in which divorce is most improperly denied, as for example in cases of insanity, of habitual intemperance, and of long terms of penal servitude. In the case of penal servitude for life I think that the relief should be given which is now denied; but I am not prepared—and I trust that the House will plainly say that it is not prepared—to enter upon this large question of reform for the mere purpose of making changes. I admit that on the face of it there appears to be some injustice in saying that while a husband shall be entitled to a divorce from his wife on the ground of her immorality, the wife shall not be similarly entitled. Theoretically the cases are the same, but 1447 practically they are not. It is manifestly of the greatest importance to the children that they should have their mother living with them and caring for them. The immorality of the husband, although it may be a bitter and cruel wrong to the wife, cannot, and does not, inflict the same wrong as the adultery of the wife does, not only upon the husband, but upon the children of the marriage. The circumstances are not the same. This Bill, therefore, can scarcely commend itself to one's mind, because it makes an alteration in the case of adultery in favour of the wife. As to the desertion of a wife by her husband, the House must be aware that if the husband has also been guilty either of adultery or desertion of his wife for only two years, the wife is now entitled to go to the Court and to obtain the relief she requires. The wife, if she cannot, as the Bill proposes, obtain a divorce on the ground of her husband's desertion for four years, has a remedy; for, after two years' desertion, she can have a decree of judicial separation from him. The question of desertion is one of such minor importance that the House will decline to alter the law in regard to it. I would remind the House, if necessary, that we have not far to go to see what the result of tampering with the law of divorce has been. Hon. Members should remember how the United States stand in regard to this matter. The law there practically varies in every State. Almost without any sound reason—in fact with none, except a mere unwillingness to live together—people are divorced by dozens and by hundreds every year in particular States of America. And, indeed, even in France there was a case the other day in which a wife of 80 sued for a divorce from a husband of 80 on the ground of incompatibility of temper. I once met with an American in a railway carriage who explained that he had been divorced five times, and who said he only regretted that he had not sooner known that a divorce could have been obtained for $45. Such a state of the law must be a scandal, not only in our eyes, but also in those of all thoughtful Americans. People from the States often congratulate us in 1448 England upon our having had the good sense not to tamper with the sanctity of the marriage rite. By refusing to enlarge the grounds upon which marriages may be dissolved in this country, we shall, I trust, do something towards preserving the sanctity of the marriage tie, for which England has been perhaps more honoured than any other country.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Sir J. McKenna.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ *(7.38.) MR. MCLAREN (Cheshire, Crewe)I cannot allow the House to divide without saying how strongly I wish to see this Bill carried. I do not approve of the provision that divorce can be obtained for four years' desertion, but that is a detail for Committee. The essence of the Bill seems to me to be, that whatever the law as regards the cause of divorce against a wife may be it should be the same as against the husband. I regret that there should be a feeling in the House against the alteration of the law proposed by the Bill. The law in Scotland has always worked perfectly well; while in France an Act has been recently passed on the same lines as this Bill, which is also working well. Therefore, there is no reason why we should not have a similar law in this country, and I earnestly hope that the Bill will be read a second time.
§ (7.41.) MR. TOMLINSON (Preston)I hope that the House will not assent to the Second Reading. It has been brought in by a Scotch Member, but English Members have a right to say that they are much better satisfied with the law as it stands in England than they would be with the introduction of the Scotch law on the subject. We have been told that the Scotch law works well in that country; but however that may be, it is no reason why Scotchmen should bring in a Bill seeking to alter the law in England. I am prepared to give my cordial assent to the Amendment, and I hope the House will agree to it.
§ Question put.
§ (7.45.) The House divided:—Ayes 40; Noes 71.—(Div. List, No. 85.)
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Second Reading put off for six months.