CLAUSE 4.—(Duty of court on presentation of petition for divorce). (Hansard, 16 April 1937)

§ Sir Alfred Beit
I beg to move, to leave out the Clause.
In moving the Amendment I find myself in a slight difficulty, because the arguments which I had intended to use have a bearing also upon an earlier Amendment relating to the abolition of the decree nisi which was not selected and therefore I must attempt to address myself to this Amendment without trespassing upon the rules of Order. I have to express my regret, in the first instance, that this Amendment is inaccurately worded, since if it were passed we should be cutting out the defences to a divorce case which are to be found in the second part of the Clause, and I am really addressing myself only to the first part, down to line 22 on page 3. I object to this Clause, which was inserted in Committee, because with the retention of the decree nisi the King's Proctor has transferred to him far greater and more inquisitorial powers than he has at the present time, which I do not think to be really necessary. Under this Clause the burden of proving that there has been no collusion in the case is transferred to the court. The words that were used by the hon. and learned Member for Ashford (Mr. Spens), in introducing the Clause in Committee were as follows: What this Clause does is to put the onus the other way and to say that the Court shall not be bound to grant a decree unless it is satisfied that there has not been connivance, collusion and so forth."—[OFFICIAL REPORT (Standing Committee A) 9th February, 1937, Col. 314.] 1378 It would seem to follow that there must necessarily be a reference of every case that comes before the courts to the King's Proctor before the decree nisi is granted. Added to that there will be the anxiety and strain of six months during which still more inquiries can be made if it is found necessary that they should be made. With the decree nisi retained this transfer seems to be totally unnecessary. The hon. Member for Oxford University (Mr. Herbert) envisaged this point in Committee and said: I did think that in the course of a hearing if the judge smelt anything fishy he might adjourn the hearing in order to give the King's Proctor an opportunity to make inquiries. Under this Clause 4 the Judge will be more or less compelled to do that whether he smells anything fishy or not, and it means, therefore, that virtually there is a reference to the King's Proctor. Therefore, if the decree nisi is retained this rather negative Clause as I choose to call it is not any longer necessary. I should like to read a short extract from a letter which I received this morning from a well-known solicitor with a considerable practice in divorce cases written I have no doubt on behalf of himself and other members of the profession: There is great opposition to the entire alteration of the law by Clause 4 which in the opinion of everybody is entirely wrong. That is, in his opinion, I presume: In the first place, you cannot prove a negative, and secondly it acts entirely contrary to the principle of English law in that you have to prove yourself innocent in order to obtain relief, instead of, as the law is now, that you have to be proved guilty in order not to obtain relief. It is unsatisfactory in practice, as you would not get uniformity in the decisions of the judges. One judge of a suspicious nature will be extremely difficult to satisfy and another will be very easy, and the result will be chaos, and the success of your petition will depend very much on which judge you come before. I hope the House will see fit to omit this Clause.

§ Mr. Duggan
I beg to second the Amendment.

Mr. Herbert
I will say only a few words on this Amendment, and I would remark, first, that it is refreshing to receive an attack from the other flank. We have had many attacks from those who say that we are plunging the country down the slippery slope of divorce, and now 1379 we have an attack from those who say that we are making divorce practically impossible. I would point out that this is not a new Clause thrust in hastily at the last moment. When we considered the Amendment of Clause 3 in Committee it was found necessary, owing to a point of Order, to reintroduce that Clause as a new Clause at the end of the Committee stage. I will not say more, however, because I am very anxious that the hon. Member for Ashford (Mr. Spells), who does understand this technical subject, shall have an opportunity of satisfying, I hope, the objections of the hon. Member.

§ Mr. Spens
I was responsible for approving and not for drafting the Clause. I would like to explain to the House what is the law at present, and what the change in the law will be. I cannot agree that there would be different judgments under this Clause so that the judges could deal with any case as they thought fit. As I understand the application of the present law, it is that the practitioner has, first of all, to prove the grounds for divorce, and then, if there is a suspicion or suggestion of collusion—

§ Sir J. Withers
May I point out that the petitioner has to swear that there is no collusion with the other side?

§ Mr. Spens
If the hon. Gentleman would allow me to do so, I would say that I was going to get to that point. Let us start from the beginning. First, the petitioner not only has to lodge the grounds of divorce, but also to swear that there is no collusion. The case then comes on. The petitioner has to prove the grounds of divorce. If, in the course of the evidence, there is a suggestion of collusion, the court strictly, under the law as it is at present, has very limited powers indeed to deal with that matter, unless the evidence amounts to legal proof of collusion. That is the present position under the law as it is now worded, and that is the difficulty in which the judges of the divorce court find themselves today. If they find that the grounds of divorce are amply proved, but something in the evidence—it may be some casual remark—suggests that there is collusion, that is still far short of legal proof.
The object of this Clause is to deal with that kind of case, the kind which is 1380 known to the layman as the faked case, and the one which causes all the scandal about the administration of our laws. Although in the first instance there is no complete legal proof of collusion, the judge in such a case as that will be able to say that he is not satisfied that there has not been collusion. That will give the court just the power which it requires at the present time to deal with these faked collusive cases, to direct further inquiries or to require further evidence.
It is now suggested that the Clause will give a discretion to each judge, but I do not think it will do so. If the hon. Member for South East St. Pancras (Sir A. Beit) will read Sub-section (2) he will see that it says: If the court is satisfied on the evidence, and that there has, therefore, to be something in the evidence. It is not to be something which the judge knows from outside parties, or anything of that sort. If there is nothing in the evidence which puts the court on suspicion, the case will go through exactly as it would do at the present time; otherwise the court will be able to exercise the power which it does not possess at the present time, and there will be some chance of stopping the greater number of faked divorce cases such as are going through now and causing so much scandal. That is all that the Clause does. Judges, knowing the wording of the present law, have no right to resist a decree unless there is conclusive evidence of collusion. For these reasons, I hope that the House will not accept the proposed Amendment.

§ Sir J. Withers
With very great respect, I have to differ from my hon. and learned Friend the Member for Ashford (Mr. Spens). I think the Clause is quite unnecessary. I will read to the House the existing law on this subject from Section 178 of the Supreme Court of Judicature (Consolidation) Act, 1925, On a petition for divorce it shall be the duty of the court to satisfy itself so far as it reasonably can both as to the facts alleged and also to whether the petitioner has been accessory to or has connived at or condoned the adultery"— on which the petition is presented.
It goes on to amplify that provision. It is a matter of machinery every time. If the judges chose to exercise their powers 1381 under that Section, they could get the whole of the facts without any trouble whatsoever. Unless the petitioner is to have the trouble of going into this matter again, and being subjected to actual proof, I do not see how it is going to be done because you cannot prove a negative. It is easy to leave the matter as it is. Nobody can object.

§ Mr. Crossley
Is that not tantamount to saying that at the present time there is not a considerable amount of collusion going on and escaping the notice of the judges?

§ Sir J. Withers
Certainly there is collusion, but the judges have the power to inquire into it now. Why do they not find out?

§ Mr. Crossley
Is not the point, not that the judges have the power to inquire, but that in this case the judges have the power to make the petitioner say, "I can prove it." That is quite a different thing.

§ Mr. H. Strauss
I am bound to differ a little from my hon. and learned Friend the Member for Ashford (Mr. Spells). The Clause says: If the court is satisfied on the evidence that"— I will now read paragraph (iii): the petition is not presented or prosecuted in collusion with the respondents or either of the respondents; the court shall pronounce a decree of divorce, but"— it goes on to say: if the court is not satisfied with respect to any of the aforesaid matters it shall dismiss the petition. It seems to me that the petitioner is put under the burden of proving a negative. It is said that he has to prove that the petition is not presented or prosecuted in collusion. I do not see how he is to prove a negative. It is then laid down that if the court is not satisfied with the proof of a negative, it shall dismiss the petition. This may impose a serious injustice. I do not think that it is a practical proposal to omit the Clause altogether; but the raising of this matter now will give an indication to another place that there are points of drafting in this Clause which many hon. Members feel emphatically ought to be put right.

§ Sir A. Beit
I do not feel entirely satisfied with the explanation given by my hon. and learned Friend the Member for Ashford (Mr. Spens), but I do not want to divide the House on this point, especially as my own Amendment was not quite correctly drawn. I very much hope, however, that the matter will be considered again in another place, because I agree with my hon. and learned Friend that it is desirable that these cases should be dealt with. Where a judge is not satisfied with the evidence, and it is necessary to inquire into that evidence, that means, practically speaking, that the evidence has to be given to the King's Proctor, and if in a doubtful case the King's Proctor is going to make inquiries before the decree nisi is given, either there is no necessity for an interval of six months before the decree is made absolute, or, alternatively, the part of the Clause dealing with this matter is not necessary. I beg to ask leave to withdraw the Amendment.