§ Order for Second Reading read.
§ 2.33 p.m.
§ Mr. HOLFORD KNIGHT
I beg to move, "That the Bill be now read a Second time."
I ask the special indulgence of the House in carrying on the heavy task which I have undertaken, and I will endeavour to deal with it as speedily as possible. The Bill which I am presenting is a Bill to enlarge the liberties of England, namely, the liberty to enjoy a decent and happy life. This task has engaged the largest abilities which have been seen in both Houses of Parliament in recent years, and it would be wrong to reopen this matter without acknowledging the very considerable help which was given by the late Lord Birkenhead in bringing these matters under the consideration of Parliament. There fortunately still remain powerful voices in the other House, of men who have given yeoman service in prosecuting this reform, and to-day I venture, as one who has very long experience of the administration of justice, to ask the House to consider this very grave matter. I desire to repeat an observation I made here two or three years ago in proposing a related measure, that in my view a review of the divorce laws of this kingdom should be undertaken by a responsible Government. Unfortunately, it is the case that no responsible Government is in sight, as far as I can see, which will undertake this task, and such is the accumulation of private and public mischief as the result of not proceeding with this reform that I have undertaken this task in the hope that the Government may be persuaded to 749 respond to the general opinion, not only in this House but in the country, that this matter should be brought under close discussion.
At the same time, I realise that there are aspects of the matter which are not suitable for discussion on the Floor of the House, and I am going to ask the Government to consider the propriety of assisting this reform by giving the House an opportunity of considering upstairs the matters which I raise. The House knows that as far back as 1912 a Royal Commission sat for two years. It examined 246 witnesses and finally, by a majority of nine to three, recommended Parliament to carry out the proposals which are contained in this Bill. The origin of these proposals is not a private source. It is the most influential source to which Parliament can turn, namely, the considered and prolonged activity of a Royal Commission. In another place a distinguished ex-Lord Chancellor introduced a similar Bill to this, and in 1921 in another place, in a large assembly of, I am informed, 252 peers, a majority of 38 was obtained for these proposals. The sense of the other place was sought in 1922 and its approval was gained. In 1924 the sense of the House of Lords as to these proposals was again sought, and approval again obtained. So that the House of Commons is in the almost unparalleled position of being asked to consider proposals which have, in detail, been approved by another place on three occasions.
I desire rapidly to scan the proposals of the Measure for the House has, no doubt, a general familiarity with the matter. In form, the Bill enlarges a Statute, passed in 1925, which was connected with a review of the work of the High Court of Justice. It sets out that a petition for divorce shall be on these grounds: first, that the respondent has committed adultery; second, has deserted the petitioner for a period of at least three years; third, has since the marriage treated the petitioner with cruelty; fourth, is incurably insane, and has been continuously a certified lunatic for a period of at least five years immediately preceding the petition; fifth, is an incurable habitual drunkard, and has for a period of at least three years been separated from the petitioner in consequence of habitual drunkardness; and, sixth, is undergoing imprisonment under 750 a commuted death sentence. These are the main grounds for divorce which were recommended by the majority of the Royal Commission. I ought to say, to allay very proper anxieties which are entertained in some quarters, that the Bill recites that the court must give the closest possible scrutiny to the facts relied on in the petition. It says that the court, whether the petition is opposed or notshall satisfy itself so far as it reasonably can that the facts alleged in support of the petition are proved, and as to the existence or otherwise of any of the circumstances specified as constituting defences to petitions for divorce.Further, it puts upon the bench a judicial discretion which may give rise to objection, but, in my submission, the recommendation of the Royal Commission should be acceded to, and, if the court is satisfied that the case is one in which a decree should be granted, it should grant a decree. That is the general discretion which is placed upon the judge.
§ Mr. KNIGHT
It is the present practice, but I am afraid, judging from some comments I see of this proposal, the present practice is not familiar to every person. I took occasion to emphasise this point, for there may be doubts as to whether a case can slip through owing to any loose administration. I was surprised to see it suggested by a prominent solicitor the other day that if this discretion were distributed over a number of judges, instead of being confined to two or three, there was a risk of some loose administration. I thought that was a very surprising observation coming from that source, and for that reason I thought it necessary to emphasise the scrutiny which is to be provided.
The Bill provides that the defence to these grounds of petition shall be: first, that the petition is the result of collusion between the parties; second, that where the petition is on the ground of adultery, the petitioner has been accessory to or connived at or condoned the adultery; third, where the petition is presented on the ground of cruelty, that the petitioner has condoned the cruelty; and fourth, where the petition is on the ground of insanity or habitual drunkenness, that the 751 petitioner has been guilty of such wilful neglect and misconduct as has conduced to the insanity or habitual drunkenness. The House will see that the closest possible compactness is provided so that these enlarged grounds of jurisdiction shall not result in petitions being granted without good cause. In addition to these defences, there are certain discretionary defences: first, that the petitioner has during marriage committed adultery or treated the respondent with cruelty or deserted the respondent; and, secondly, that the petitioner has unduly delayed presenting or prosecuting the petition.
There are other matters in the Bill into which I need not go in detail, but I ought to mention a circumstance which may cause criticism. It is that where a petition for judicial separation is presented, either by the husband or the wife, on any ground for which a petition for divorce might have been presented, and the court is satisfied that such grounds exist, the court may grant a decree of judicial separation and thereupon it shall no longer be obligatory for the petitioner to cohabit with the respondent. Further additional grounds are set down in accordance with the recommendations of the Royal Commission for making a marriage void. I will not trouble the House with them, but will put the matter generally in this way. The House can be assured that the grounds set out in this Bill are the grounds recommended by the Royal Commission founded upon the long inquiry to which I had alluded, and that there is reason to believe that these grounds have received additional urgency during the 20 years since these recommendations were made by the Royal Commission. I think there is a special danger before the country if any further delay takes place in reviewing the matrimonial law. It is said—I do not take the responsibility of saying it—that the delay in bringing about necessary changes in the Marriage Law has resulted in that law being ignored, and that the redress which is not available within the law is now being taken beyond the law. I do not think that is a circumstance which will fail to impress the House as showing the urgency of dealing with this matter.
In the last few minutes I want with great respect to glance at the opposition that is made to this Bill. It cannot be 752 said, I think, that I have ever shown any want of respect for the religious scruples of others, and in what I am going to say I do not wish to utter any words of offence, but I consider I am performing my duty in making this comment. This House is ready at all times to receive advice and counsel from any quarter as to changes in the law, but it is not prepared to accept dictation. There is no authority outside this House which should presume to intervene between this House and the discharge of its duty. There are religious communities bound together by doctrines which are not generally accepted, acting under a sanction which is not universally followed, and derived from a jurisdiction which does not meet with the approval of every person in the Kingdom. While we are ready to recognise the usefulness and validity of sanctions we do not accept, we are bound to recognise, in this mixed Kingdom, that there are others who do not accept that jurisdiction, and any intervention is wrong which will have the effect of limiting or seeking to limit the supremacy of Parliament.
I have purposely stated the matter in very general terms, because I do not want to cause any offence, but I desire to say with the utmost deliberation that the duty of changing the law of this realm rests in this House untrammelled, and we are not going to accept dictation as to that duty from any quarter, however distinguished and however devoted. Further, this opposition, I understand, is founded upon a belief in the indissolubility of marriage, which is a view the law of England, for good reasons, under the wisdom of Parliament, set aside as far back as 1857. There are persons who have never accepted that jurisdiction and never acted on it. This Bill does not require them to do so. All the Bill does is to provide for citizens who desire to have broken marriages reviewed by a court on grounds which Parliament can alone determine. We are not asking any person to resort to these proposals who does not wish to have them. I received a few days ago, as I dare say did other hon. Members, a publication in which it is alleged that Clause 4, the Clause which enables the court to issue a decree of divorce, although the petitioner applies only for a judicial separation, will prevent many from obtaining the relief of 753 separation to which they are now legally entitled. That is a complete misunderstanding of the matter. A lady is quoted there as saying:I cannot feel that the guilty party should have any power to impose upon the innocent a remedy against which he or she may have conscientious objections.The case referred to is where the petitioner with religious scruples applies for a judicial separation and the court, in its discretion, comes to the conclusion that the marriage is so broken that it should be ended, and that the right way of dealing with the case is to make an order for divorce.
§ Mr. CHARLES WILLIAMS
Would the hon. Member say what the document is, from which he is quoting, and how it goes on after he stopped reading?
§ Mr. KNIGHT
The document comes from a very devout organisation, of which I wish to speak with the greatest respect, the Westminster Catholic Federation; and the words I have just cited conclude that part of the document which deals with the point I have now raised. I am obliged to my hon. Friend for his interruption because it leads me at once to say something of the support which is being given in the country to these proposals.
The House has no doubt received, as I have, a communication from the Mothers' Union. I thank them for their courtesy, because it does not always happen that the promoters of Bills are favoured as I have been in this case with communications. The Mothers' Union is certainly a very distinguished and devout organisation of church people, and it is opposed, and always has been, to these proposals. I am bound to remind hon. Members that the women's organisations of the Labour movement, representing a large concourse of women, have always been in favour of the proposals, and have repeatedly passed resolutions in their favour; and further that the Women's Liberal Federation, which represents a large body of distinguished and active women throughout the country, are also in favour of them, and have taken steps during the last week to inform the House, through various important Members, of that support. In addition, there is very considerable support.
§ Mr. C. WILLIAMS
We were not quite sure to which Women's Liberal Association the hon. and learned Member referred, because I believe there are varieties of associations.
§ Mr. KNIGHT
I must ask my hon. Friend to excuse me from going into the niceties of Liberal organisation, because I am not a member of them.
§ Mr. WILLIAMS
The hon. and learned Gentleman is quoting their support as evidence. He calls these women "Liberals" but, from the point of view of some hon. Members in this House, it may be unforgivable to call them pure Liberals if they are not.
§ Sir ROBERT HAMILTON
May I ask the hon. and learned Gentleman to give us the title of the association?
§ Mr. KNIGHT
I am aware of the intense anxieties of the hon. Member for Torquay (Mr. C. Williams), but I can tell him that the resolutions to which I am referring as having been received from the Women's Liberal Federation were passed over a long period of years before the unhappy divisions which he deplores took place. The House can rest assured that my reference to the Liberal women of the country relates to all the organised Liberal women, in whatever way they may now be separated.
§ Mr. WILLIAMS
I apologise for interrupting the hon. and learned Gentleman again, but he is quoting from what happened years ago, and we ought to know how many years ago it was or whether these resolutions are modern. We have a right to know this. I am interested, and am quite undecided about the Bill.
§ Mr. KNIGHT
I desire to relieve the anxieties of the hon. Member as far as I can, but I do not quite appreciate at the moment what they are. I can assure him that the reference to the Liberal women who are supporting these proposals relates to the organised Liberal women of the country over a long period of years, from 1912, when the proposals were first laid before Parliament by the Royal Commission.
§ Mr. KNIGHT
There are hon. Members present who have a closer familiarity with the Primrose League than I have, and who can supply the hon. Gentleman with facts regarding it, although I suspect that he has for long been an ornament of that distinguished organisation. I shall conclude by saying that the support for this Bill is very considerable. While I appreciate that there is opposition, and conscientious opposition, which I desire to respect and which is largely concentrated in some women's organisations I must remember that there are other organisations, to which I have alluded, which equally represent the women of the country, and which are whole-heartedly in support of these Recommendations of the Royal Commission.
I thank the House for giving me an opportunity, in this very short space of time, to deal with this very big matter, and I beg that the opportunity may be used to advance these long-delayed proposals, the lack of which is causing untold harm to the family life of this Kingdom. The proposals ought to receive the active attention of the House at the earliest possible moment. I renew my request to the Government. I do not ask them to assume responsibility for the Bill, but that they should give the country the satisfaction of knowing that the proposals are receiving close investigation. For that reason, I ask the Government to give facilities for the Bill.
§ 3.2 p.m.
§ Sir ARNOLD WILSON
I beg to second the Motion.
I am very conscious that I am both ill qualified and insufficiently prepared to do so, and only the strongest and deepest conviction would induce me to intervene in a discussion of this sort upon a matter of such grave importance. We have heard from the hon. and learned Member some details of the origins and the inception of the Bill, and of the Royal Commission, but my own researches lead me to think that it goes back much further than that. The principal proposals of the Bill were, in fact, advocated, particularly by Lord Lyndhurst, as far back as 1857, and they were supported by no small number of bishops, even in those days. It is within my knowledge that there is a substantial minority of bishops on the bench to-day who would unquestionably give this Bill 756 their support. As for the women of England, and of the Church of England, I am sure that the circulars with which the House has been bombarded by the Mothers' Union in no way represent the convictions or the opinions of the 500,000 women therein mentioned. I have good reason for knowing that in a very large number of cases the mothers' unions in various parishes and villages have not for many years had any discussion on the subject, and that the pros and cons have not been brought before them. The Mothers' Union is run by its own council and that council is responsible to itself and does not in my view voice the views of members.
The proposals of the Bill are old-fashioned, in the sense that they were put forward by a very strong all-party Royal Commission in 1912, only three members, two of whom were bachelors, dissenting. The proposals had the support as recently as last October of the President of the Law Society himself, a man of immense experience, and I believe that they have the support of most women of England who have given this matter personal consideration. I cannot believe that a vote on the part of this House to send the Bill upstairs would be received with anything but public approval, and, indeed, public relief. May I make it clear that there is no desire on the part of the promoters of the Bill to make divorce easier; quite the contrary. Rather do we wish to make marriage more holy, easier, stronger and healthier, by making it possible for the State to terminate unions the maintenance of which makes the sacrament of marriage an abiding blasphemy and marriage itself a living hell. There are hundreds—thousands—of homes which are made miserable, and where the life of children is intolerable, from the fact that the very basis of the union has long ago disappeared.
The law in Scotland in the matter of desertion is precisely as set forth in this Bill. It has worked in Scotland for the past 300 years, and I have yet to learn from any Scottish source that it has not worked satisfactorily. Surely the people of England can be trusted with a degree of latitude which the Scottish people have enjoyed for the past 300 years. The basis of the Bill is the basis of the law in Australia to-day. 757 That law, as I am informed, has worked well and smoothly; it has not increased substantially the average number of divorces; and it has the almost unanimous consent of the vast majority of the people of Australia. Australia is not a Continent in which the Churches are unrepresented; it is a Continent where public morals and the public decencies of life are looked at with the same careful scrutiny as in this country. If, then, the law works in Australia and works in Scotland, surely there is at least a case for a further and more detailed inquiry into the need for modifying our own law.
We have to move with the times, and the times have moved. For various reasons desertion is far easier than it was 20 years ago. Divorce has in fact greatly increased in the past 20 years, but the first thing we have to get out of our minds is the idea that divorce is a crime the prevalence of which should be regarded statistically and made the subject of public comment and public discussion. Divorce merely means that some particular union has become impossible and has been terminated. It is, in the enormous majority of cases, the means of entry for both parties into a happier and more fruitful life; it is the end of one frustrated life and the beginning of a new life. But the claim that we should not make divorce easier is one which I think most of us who support the Bill would accept as desirable. We do not want to make divorce easier; we do want to make marriage more of a reality.
If we take the question of our marriage laws as part of our social system, surely the position is this, that we in this House are all engaged, from our various angles and points of view, in the quest for social unity, and that social unity which we seek is based upon the maintenance of the family as the unit in society. All the legislation that we are constantly discussing is meant in the ultimate resort to strengthen the family as the unit. For that purpose we are pressing on with housing; for that purpose we start infant welfare centres; for that purpose we send children earlier to school; for that purpose we have old age pensions and widows' pensions. Everything is done by this House, so far as may be, to strengthen the position of the family as a social unit. This Bill, which aims at a reform of the marriage laws, is to that extent simply an extension of 758 the normal legislative activities of this House in its desire to reform laws which were based upon the Canon Law of 300 or 400 years ago—indeed, some will say, upon a misinterpretation of that Canon Law.
The opposition is, broadly speaking, as I understand it, of two kinds. Firstly, there are those who regard marriage as indissoluble on whatever ground or for whatever excuse. Secondly, there are those who regard marriage as indissoluble except upon two specific grounds, namely adultery or fornication. Marriage concerns not merely the two individuals. It concerns the children. It concerns society as a whole. I would not go so far as the hon. and learned Gentleman the Member for South Nottingham (Mr. Knight) in suggesting that religious authorities outside this House have not the right, and indeed the duty, to put forward their views upon a matter such as this, which is of the most profound importance to society and to the country.
§ Mr. KNIGHT
I entirely concur in what the hon. and gallant Gentleman has just said. What I objected to was a sort of dictation to the House in discharging its duties.
§ Sir A. WILSON
I apologise to the hon. and learned Gentleman. I can scarcely imagine it possible that this House would be dictated to by any authority, however eminent. But, descended as I am from three generations of clergymen of the Church of England, I am far from underrating the importance of the ecclesiastical aspect. I believe it to be of vast importance to the country as a whole that this House should examine any change in the Divorce Laws with the greatest care and should discuss them, not indeed on the floor of the House but in an atmosphere better suited to such discussions, in the light of the very best available information. Social workers and judges of the metropolitan and the High Courts have practically without exception expressed their abhorrence of the present state of the law. They have expressed in books quite recently published their disgust at the working of the law which makes the practice of adultery in order to secure the termination of a union, a practically inevitable preliminary proceeding. We hear a good deal about the guilty party. It is clear that in the courts no 759 deduction can be drawn from the result of the proceedings as to who is the guilty party. The word "guilty" has no real relation to civil actions of this sort, and it would be well if those who claim that the guilty and the innocent parties to a suit should be differentially treated should have somewhat greater experience of the proceedings in courts of law.
Our primary duty in the House is to strengthen in every way the position of the family as a unit. This Bill, were it to be considered by a qualified Committee based somewhat on the principles which actuated the Government of 1912 when it constituted the Royal Commission, could be greatly improved. I should wish to surround the institution of marriage with further safeguards than those in the Bill. I should wish to see certain limitations placed upon the operation of certain provisions of the Bill. The last place where these things could be usefully discussed is on the floor of the House. But I appeal to the Government to consider carefully whether they are not doing an injury to the country as a whole by not taking steps to examine afresh the whole question of the Marriage Laws. If the Bill goes upstairs, an opportunity will be given to the House and the Government to apply their mind to one of the most urgent of all problems. I have some experience of working-class difficulties in this connection. The well-to-do have ways and means, distasteful as they may be, to secure release from unions, but working-men, in spite of various alleviations which have been introduced, are in practice debarred in nine cases out of ten from the operation of the modifications introduced in 1925. The mere expense of obtaining evidence, from Canada and Australia, for instance, as to the circumstances of the spouse who has deserted makes it impossible for the Poor Persons Act to be effective.
I do not wish to continue the discussion on the theological aspect. I have dealt with that elsewhere. The convictions of the people of this country are to a very large extent based upon the New Testament to which the vast majority of people of this country still turn as the highest standard they know, and rightly. There is a great body of opinion in this country, not vocal but very real, which attaches 760 greater importance to the spirit of Our Lord than to the interpretations which have been placed in successive ages upon His particular words and phrases, which may or may not be recorded in their correct sense and at the right moment. We ought to give freedom to women and men who are labouring under the cruellest disabilities. We ought to remember the children of those unions. We should bear in mind that, both in Scotland and in Australia, to mention only two countries, this legislation has in fact worked well. I beg the Government, whatever the decision of the House may be upon this Bill, to consider carefully whether they will not take up the whole question and cut the gordian knot by initiating a further inquiry where the Royal Commission of 1912 left off, bearing in mind that the family is the unit to which we must all look in whatever progress we may reach during the next few centuries, and that the object of the Bill is not to make divorce easy, but to make family life more helpful, more healthy, and more sacred.
§ 3.18 p.m.
§ Dr. O'DONOVAN
I beg to move, to leave out the word "now," and, at the end of the Question, to add the words "upon this day six months."
The Debate upon this Bill has, I think, been started under a misapprehension. There is no question of the opposition assuming the nature of a dictatorship. I, as a new Member, and my friends who are associated with me in whole-hearted opposition to this Bill, are in no sense dictating to this House or to our fellow Members, whom we regard as our equals, and even as being better informed than ourselves and more experienced in life, nor are we here at the dictation of any outside body in our opposition. If, as the hon. and learned Member for South Nottingham (Mr. Knight) said, the opposition is dictated by an outside body, that is an innovation not usually followed in this House, I assure him that the intention that such organised bodies as I know which are opposed to this Bill—I refer to the Church of England, and to the Catholic Church which preceded it in the occupation of the Sees of this country—the intention of both those churches was that both the hon. and learned Member and myself should, in due course, reach Heaven. That intention, I take it, is not 761 unfavourable to the state of the Mover of this Bill. He says that the Church has a jurisdiction which does not meet with the approval of a person in this kingdom. That is s very difficult statement to make, and more difficult, I think, to substantiate. Looking to the jurisdiction to which he objects, I have here the Book of Common Prayer, which is a schedule to an Act of Parliament passed in this House, and I think that we might spend a minute or two profitably considering a book which has jurisdiction over many people in this country—a powerful and sacred jurisdiction. It is headed "the Solemnization of Matrimony." It begins:Dearly Beloved, we are gathered together here in the sight of God, and in the face of this congregation, to join together this Man and this Woman in holy Matrimony.That is the origin of the word "Holy," used by the last speaker.it is honourable among all men: and therefore is not by any to be enterprised, nor taken in hand, unadvisedly, lightly, or wantonly, to satisfy men's carnal lusts and appetites, like brute beasts that have no understanding; but reverently, discreetly, advisedly, soberly and in the fear of God; duly considering the causes for which matrimony was ordained.If that is a jurisdiction unacceptable to the hon. and learned Member who moved the Second Reading, it is a jurisdiction which is very effective over the great part of this country. They are words which have been read over the great majority of married women in this country, whom we have been wrongly informed look upon this Bill with favour. Later on it says:If no impediment be alleged, then shall the Curate say unto the Man: 'Wilt thou have this Woman to thy wedded wife, to live together after God's ordinance in the holy estate of Matrimony.' Wilt thou love her, comfort her, honour, and keep her in sickness and in health; and, forsaking all other, keep thee only unto her, so long as ye both shall live?There is no need for anyone to invoke the shades of the 5th of November, or any historical iniquities in order to draw a red herring across the path. Then it goes on to say:Then they shall give their troth to each other in this manner.—I take thee to my wedded wife, to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part.762 If that is a jurisdiction which the hon. and learned Member does not accept, there should be an affirmation on his part that the cause to which he will devote his life is the disestablishment of the Church of England. Further to the question of dictatorship; a most offensive, tendentious and misleading reference was made to a pamphlet issued by the Westminster Catholic Federation. It is headed "a statement against the Matrimonial Causes Bill"; and the pamphlet most modestly says:It is not expected that the legislature will be much influenced by the teaching of the Catholic Church as such.If those are the words of dictatorship, it is a dictatorship of a type which has not been known in the history of Europe. We are told that this a grave matter. I entirely agree. It is so grave a matter that I do not approve of the suggestion that this Bill should be taken in Committee. The discussions do not receive much publicity; matters which are discussed on the floor of the House are brought to the notice of the community, and the more this matter is discussed before the public the better they will be able to realise the disastrous implications of the Bill upon the public and family life of the country. We shall also be able to draw to the ranks of our opposition those who are more experienced and able to advocate our cause. The word "reform" has been used. "Reform" is a question-begging a word; and to suggest that it must be reform because it is new indicates a want of logic on the part of those who bring forward the Bill, proving that they are not the best custodians of the laws of the country.
The hon. and gallant Member who seconded the measure said that our courts to-day are familiar with what he called "the faking of adultery." If that is the way our courts are managed, if faking of adultery is a common thing, can we trust them with more power than they have at present? If our courts give judgments dissolving marriages upon faked evidence, if that is a true representation of the case, we should not entrust them with further powers. I think their powers should be severely restricted. The proposals in the Bill are, of course, drawn from the recommendations of the Royal Commission. The hon. and gallant Member said rightly that three members 763 of the Commission oppose the Bill, but it was an incomplete statement to say that two of them were bachelors. Bachelors may be lawyers, and may be able to give very dispassionate views in regard to the family troubles of those who are married. If the hon. and learned Member will look at Isaiah he he will find thatmore are the children of the desolate than the children of the married wife.Those who are not tied down by their own marital problems may be able to give a dispassionate judgment, and, therefore, the names of these three gentlemen, including the two bachelors, are worthy of record. They are: Cosmo Ebor, William R. Anson, and Lewis T. Dibdin. These names have been known to me from my boyhood, and they must be men who have made their mark on English life. Many of those who received the Royal Warrant in this case have disappeared. The Royal Warrant was issued by King Edward VII to—Our right trusty and well beloved Counsellor John Gorell, Baron Gorell, late President of the Probate, Divorce and Admiralty Division.It is fair to say that the judgment of a President of the Probate, Divorce and Admiralty Division on a matter of extended divorce could be foreseen before the appointment.
§ Mr. JOHN WILMOT
Does not the hon. Member agree that it is the judgment of a man charged with ripe experience and knowledge?
§ Dr. O'DONOVAN
I should be the last to attempt to give the House a half representation of the case, and when I say—our trusty and well beloved counsellor, John Gorell, President of the Probate, Divorce and Admiralty Divisionit necessarily follows that he is a man of experience, and judicial qualifications.
§ Mr. WILMOT
I did not suggest anything that called for that remark. If I understand the hon. Member aright he intended to convey the impression that the judgment of the President of the Divorce Division was such that it could not be relied upon to guide this House in its deliberations upon this subject.
§ Dr. O'DONOVAN
I repeat my remark that a man who has attained great professional eminence in the expert administration of divorce is not to be expected to give a judgment adverse to the extension of divorce; otherwise he would not hold that position. That view may be open to comment, but it is the view I have.
§ Mr. C. WILLIAMS
Surely a man who has had a life-long experience of this subject can be expected to be able to give a view which is of value to a Committee. The hon. Member's point, if I understand it, is that because a man has been a judge in a divorce court he is naturally, or very likely, not from any prejudice but because he has had brought before him many cases of divorce, to realise the value of that side of divorce as against the side of those who oppose this Bill. Is that the hon. Member's position?
§ Dr. O'DONOVAN
If I can, let me deal with this minor point by analogy. It would be as strange to expect a surgeon to advocate homeopathy as an alternative to surgery as to expect a practitioner of divorce to advocate its abolition.
§ Mr. WILMOT
Would it not be as reasonable to suggest that a judge of the Criminal Court would always advocate the extension of crime?
§ Dr. O'DONOVAN
If my hon. Friend can see an analogy there I must leave him with it. I do not want to recede from what is my opinion, and Members must exercise their own judgment on what I have said. The second Member of the Royal Commission was "the most Reverend Father in God, our right trusty and right entirely beloved Counsellor, Cosmo Gordon, Archbishop of York, Primate of England and Metropolitan." The third was "Our right trusty and right well beloved Cousin and Counsellor, Edward George Villiers, Earl of Derby," with many distinguished honours. Then there were Lady Frances Balfour, Thomas Burt, Charles John Guthrie, Sir William Reynell Anson, Sir Lewis Tonna Dibdin, Sir George White, Henry Tindal Atkinson, Mary Edith Tennant, Rufus Daniel Isaacs, Edgar Brierley and John Alfred Spender, and I note with some pleasure that there was added later to the list of famous and unknown names.
§ Dr. O'DONOVAN
I speak for myself. I am not the common denominator of all the wisdom of this House.
§ Mr. C. WILLIAMS
The hon. Member spoke of "famous and unknown names." Surely Lord Derby's name is fairly well known? I do not think the hon. Member really means that they are unknown, if I interpret his mind correctly. It is not usual to criticise the members of a Commission by saying that they are unknown. I do not think this House has ever heard it done before. Perhaps the hon. Member would like to give an explanation as to why he is taking this point of view, which entirely beats me.
§ Dr. O'DONOVAN
I would point out that I did not originate the discussion. The Minority Report was referred to—in my humble opinion flippantly referred to—as the report of three, including two bachelors. I am, therefore, entitled to consider who are the signatories of the Majority Report. Having indicated to the House who were the minority of three, including two bachelors, and who were the majority, I think I can proceed with my argument, and pass from that very casual reference of the hon. and learned Gentleman opposite to men whose names I have held in respect from my boyhood onwards. The first point upon which I would dwell is this question of desertion for three years. I think it will be agreed that desertion is one of the most easily arranged causes for collusive divorce. If it is possible to have faked adultery nothing can be easier than the arrangement of faked desertion. Three years represents a very short period in a lifetime, and there are in this world many bad-tempered men and many sharp-tempered women. There are many who might, in a fit of temper, leave their spouses and for want of some reconciling friend remain separated for three years or more.
§ Sir J. WITHERS
Will the hon. Member deal with the question of why it has been so successful in Scotland.
§ Dr. O'DONOVAN
I reply by reference to the Minority Report on the question of desertion. Speaking with all respect of the Scottish people, I gather from the Minority Report—I have not lived in 766 Scotland myself—that divorce in Scotland was twice as common as it was in England at the time of the Minority Report, and that that was attributable to the use of desertion as a cause of divorce. If it is the case that the more divorces we have the better, then there is no objection to quoting the Scottish increase of divorces as a reason for making desertion for three years a valid cause of divorce. But if divorce is a bad thing, the Scottish evidence adduced in the Minority Report is evidence against the use of that cause in England. Further, the Minority Report drew attention to the fact that in America where there was much more experience than there is in this country of the use of desertion as a plea for divorce, it was used so much that divorce had been reduced almost to the plane of divorce by mutual consent. This country in my opinion will be reduced to a very bad way indeed when the contract and status of marriage, which is governed by the words of the marriage service, is reduced to a registered concubinage that can be destroyed and made of no avail on a plea of desertion for three years. I see no reason why three years should be accepted unless as a slavish following of the wish of the Royal Commission. If three years why not two years or one year I It is the experience recorded in the Minority Report that the acceptance of deserton as a ground for divorce is only one removed from divorce by mutual consent.
Then there is the question of cruelty. Cruelty is most difficult to define. The Minority Report points out that what is cruelty in one class, may not be cruelty in another. It suggests that among some people a word or a blow may be accepted without the suggestion of cruelty, whereas in another circle a blow would be an unforgivable insult. Cruelty that is so interpreted in various ways is a poor weapon, an uncertain weapon, for administering justice, and if this word "cruelty" is to be left to the interpretation of His Majesty's judges, it is almost unescapable that mental cruelty will be interpreted under that head, and we know what mental cruelty may be. It may be a long continued torture, but it may also be the imaginings of a neuropath. Unfortunately, in the Press, in magazines and books to-day there is too much consideration given to the sex question. Too much importance is attached to it, and 767 doctors are besieged in their consulting rooms by spouses who are of the opinion that they are suffering from marital, sexual disabilities and disharmonies. There is no question that in the mind of a neuropath any act of the other partner may be misinterpreted as mental cruelty. Mental cruelty is almost every act with which a neuropath disagrees, every action, every word of affection that is omitted, every hour that is not accounted for, every kindness to another are interpreted as cruelty by the neuropaths who have a hungry mania for the burning of incense before their intensified ego. I trust that this House will consider well the word "cruelty" before regarding it as a matter to be presented for the consideration of His Majesty's Judges, and before they are themselves allowed to interpret it as seems best to them.
§ Sir J. WITHERS
The term "cruelty" has been a ground for separation for years. The judges have laid down that there must be some physical result from the cruelty, and it has nothing to do with mental cruelty at all.
§ Dr. O'DONOVAN
I accept that valuable interruption, but physical results from mental cruelty can be produced by any competent physician after three minutes, observation and listening to the patient. [An HON. MEMBER: "It depends on the fee."]
§ Mr. C. WILLIAMS
The hon. Member made a statement in regard to physical cruelty which leads me as an ordinary person to inquire what is meant by physical cruelty. Surely if my hon. Friend makes that statement, he ought to clarify what he means by this technical definition so that we may judge.
§ Dr. O'DONOVAN
On page 181 of the Minority Report, there is this passage:Speaking of a charge of 'a mild form of cruelty' as the easiest mode to secure divorce, Mr. Stephen Crane said 'The large number of suits filed, and the ease with which decrees may be obtained have a growing tendency to familiarise the community with divorce, and it must be admitted that 768 it is now looked upon by people of respectability in certain walks of life as a popular and firmly-established institution. The view is spreading that if an unhappily married couple desire to have their marriage dissolved, it is a matter which is peculiarly their own affair, and one with which the public has nothing to do. If they mutually agree as to the result, the method of procedure does not much mind as long as it conforms to the Statutes and the rules of court, and provided also that there is no open fraud upon the court in suppressing and inventing evidence.'The Minority Report says:The conception of what constitutes cruelty differs materially in classes, even in families, and may also differ in the minds of judges.That word "cruelty" will change in content as other words have changed in the history of the English language. Judges' interpretations vary with popular feeling. [HON. MEMBERS: "Oh."] If you read, as an outsider, the change of outlook with which Judges administer the divorce laws, an outsider is entitled to say, subject to comment, that their interpretation of the statutes with which we entrust them varies from generation to generation.
Paragraph (d) says that one of the reasons for divorce is if a spouseis incurably insane, and has been continuously a certified lunatic for a period of at least five years immediately preceding the presentation of the petition.I am astounded at the moderation of the hon. and learned Member who drafted this Bill. If insanity for five years, if mental incapacity, is sufficient ground for divorce, I am astounded at his want of courage and determination in not adding to that five years' insanity five years' physical incapacity for any cause whatsoever. It may be that the insane cannot speak for themselves, but if it be simply a question of making life easier for a spouse with a sick wife, I could give the hon. and learned Member a present of a number of incurable diseases, paralytic diseases, rheumatic diseases, unpleasant and revolting diseases, which will last for many years and which have caused husbands to live apart from their wives; and I cannot understand, if my hon. and learned Friend is moved by compassion and the intention to go to the root of the matter, why he has only put his finger in this matter upon the incurably insane. The Royal Commission noted that those who had the care of the insane were quite certain in their own minds that the pas- 769 sage of a Clause such as this would have a bad effect on their patients. The least we can do in this House is to say a word in favour of those who cannot speak for themselves. The incurably insane are not incurable in the first five years. It will add to the torment of those insane if they know that their affliction may be an excuse for robbing a man or a woman of the status of marriage. Moreover, to-day, we are taking greater and greater care to allow the insane to go back to their own homes as part of the curative or convalescent process, but that releasing of the insane from the confines of asylum life will be put a complete end to in many cases if the partner outside is already counting up the years of separation in order to get a divorce and marry someone else. It is a blow to the cure of the insane and an added mental torture, unless they are in a condition of complete amentia.
In paragraph (e) we seem to have Victorian temperance propaganda in reference to the incurable habitual drunkard; but owing to the Chancellor of the Exchequer's demands on the brewing industry, the incurable drunkards to-day are hard to find, and I do not think it would pay anyone now to open a new inebriates' home. On the other hand, as I have referred to the difficulties of judges and lawyers in defining cruelty, I would also refer to the great difficulty that members of my own profession have in defining what drunkenness is. There is no more awkward predicament than for a young doctor, not much versed in the use of language, to find himself in the witness box in a motor car case, defending his simple use of the word "drunk", when cross-examined by a counsel learned in the law and experienced in the simplicity in the use of words of members of my own profession.
The incurable drunkard is hard to find, but I can well conceive that if drink be a help to divorce, those spouses who find life with their present partners difficult will find means to increase the consumption of alcohol. Speaking personally, I would find it difficult to give sworn evidence that any drunkard was incurable. There are religious motives that have effected the most magical cures of drunkenness that has persisted for 20 years. I have listened to members of the Salvation Army testifying in public 770 places that after 15, 20 or more years of chronic drunken habits, they have in one minute been cured of that obsession and have spent the rest of their lives telling the world about it. On the other hand, if it is to be suggested that incurable drunkenness is a ground for divorce, I can see many people who have not the most pressing motive to seek the rehabilitation of their partners ceasing to do so because the hon. and learned Member for South Nottingham has now made it possible for them to say, "If we cease to aid our weak partner, then we can have a new partner." To have the prize of a new wife in middle age, a young, beautiful wife, if only one does not take steps to try and assist one's elderly wife to correct her tippling habits, is a shocking proposal. It causes the House to laugh, but laughter is often close to tears.
The proposal is not a kind one to those who weaken in the stress of middle life, in the natural strain that many women feel at the climacteric. It is not kind to suggest that that should be the reason for their being cast away rather than for taking the most adequate and complete steps for their restoration to health and to being once more useful members of the community. Those reparative steps can be taken, and I do not like seeing in black and white the suggestion that there are a sufficient number of incurable drunkards in England to-day to make it worth while adding that to this Bill as a cause of divorce.
We have under paragraph (f) the cause "Undergoing imprisonment under a commuted death sentence."
I can well imagine that in times of civil commotion a servant of the Crown may be sentenced to be hanged for having killed a citizen. I believe it is within the recollection of most of us that that happened in the rebellion in Dublin. Now, that death sentence may be reprieved through the good offices of the Home Secretary. A man in civil excitement has killed someone, but is reprieved from hanging, and then we add to his punishment by permitting his wife to quote that as an unescapable ground for divorce. I think that would give rise to hardship if the condition of this country should not remain always as peaceful as it is to-day. Anyway, I think there is nothing more touching, more beautiful, in the history of domestic life in this country than the fact that women have 771 waited for their husbands for many years, and welcomed them at the prison gates, and that a man who leaves prison, having purged his offence, should see his wife in the arms of another, looking after children that are not his, would add tremendous mental agony to the punishment which he has duly served to purge his offence.
A certain reference has been made to a pamphlet that bears upon Section 5 under new grounds for nullity. There is no word that is more misused on questions of divorce than the word "nullity." Nullity is not divorce, is not a dissolution of marriage. If the conditions of marriage never existed from the beginning, then there never was a marriage, and all a court can do is not to annul the marriage but to declare that a marriage never existed. The great Henry VIII, whose, I think, was the leading case that has been considered by both Houses of Parliament, never sought a divorce. He never asked for his marriage to be annulled. If the hon. and learned Member will look up the records in the Case papers he will find the King sought for a declaration of nullity; in other words, he sought a declaration that His Majesty had never been married. He never claimed that he had made a valid marriage and that it should be broken. It is often suggested in arguments in lower spheres that nullity is an alternative to divorce. That may do as "back chat", but among those who are familiar with the use of words, nullity is no alternative to divorce, and in point of fact, speaking for the Church of which I am a most unworthy member, there are fewer decrees of nullity granted in the courts of Rome than decrees of nullity granted in His Majesty's Courts in the Strand. Nullity bears no relation to divorce, but is often used to cloud the issue, under the suggestion that but for the 5th of November we should still be suffering under a certain dictatorship.
The hon. and learned Member who opened this Debate referred to a pamphlet which drew attention to the fact that there was a great hardship to women applying for a separation if the judge, in the exercise of his discretion, decided 772 that a marriage should be broken. The hon. and learned Member did not inform us fully on that point. The reference in that pamphlet was a reference to a remark of one of the majority Commissioners of the Royal Commission, Mrs. H. Tennant, who made a special statement dissociating herself from the rest. Mrs. H. Tennant said:I cannot feel that the guilty party should have any power to impose upon the innocent a remedy against which he or she may have conscientious objections.
§ Mr. KNIGHT
rose in his place and claimed to move, "That the Question be now put," but Mr. SPEAKER withheld his assent and declined then to put that Question.
§ Dr. O'DONOVAN
I think it is a pity that a debate which is of great importance should be clouded by the suggestion that the Westminster Catholic Federation, a small body of people, who have a right to exist, have put forward a claim that the hon Member is doing to-day an act of injustice. The claim that it was an act of injustice was made by Mrs. H. Tennant, one of the majority members of the Royal Commission; and I think the hon. and learned Member owes a word of thanks to the Westminster Catholic Federation for drawing his attention to this statement by a Member of the Royal Commission. There is one big issue behind this question, and that is family life. Family life is a most precious thing, and a man is no help to the good estate of this country if he is enabled, by what is miscalled reform, to start one, two or three families. If the separation of married life is in itself good, and the restarting of new families is good, the only possible conclusion is that the more we have of it the better. If divorce is good and if divorce is a reform, then more divorce would be an even greater reform.
§ It being Four of the Clock, the Debate stood adjourned.
§ Whereupon Mr. SPEAKER adjourned the House, without Question, put, pursuant to Standing Order No. 2.
§ Adjourned at Four o'Clock, until Monday next, 5th February.