HC Deb 23 July 1937 vol 326 cc2608-25

Order read for Consideration of Lords Amendments.

12.6 p.m.

Sir Patrick Hannon

On a point of Order. May I ask, Mr. Speaker, whether, for the guidance of the House, you will say something about the procedure to be adopted in relation to these Amendments. It is the first time in my long experience of this House that such a large batch of Amendments has come from another place, many of which are of a controversial character. I think that hon. Mem- bers, many of whom are unfamiliar with the procedure on Lords Amendments, would welcome guidance as to the course to be adopted in relation to them.

Mr. Speaker

I hardly know what the hon. Member means. The procedure with regard to this Bill is exactly the same as the procedure upon any other Bill as regards Amendments that come from another place. The hon. Member, the promoter of the Bill, will move, "That the Lords Amendments be now considered," and if the House agrees, they will be considered. Each Amendment will be taken separately, and the promoter of the Bill will move either that the Lords Amendment be accepted or that it be rejected.

12.8 p.m.

Mr. Alan Herbert

I beg to move, "That the Lords Amendments be now considered."

I would only add, for the reassurance of my hon. Friend, that I have some acquaintance with the procedure on these Amendments, and I am sure that if there are difficulties, he will find that they can be dealt with from time to time. There are only two Amendments which are really controversial.

Question put, and agreed to.

Lords Amendments considered accordingly.

CLAUSE 1.—(No divorce within five years of marriage.)

Lords Amendment: In page 1, line 14, leave out "five" and insert "three".

12.9 p.m.

Mr. Herbert

I beg to move, "That this House doth agree with the Lords in the said Amendment."

The House may remember that this Clause proposed, when it left this House, that a petition of divorce should not be presented within five years of the date of marriage, and this Amendment proposes to reduce the period to three years. Upon this Clause I have rather a particular personal responsibility, and I think I should be lacking in my duty to the House, and in respect for my opponents, if I did not consider these Amendments with considerable care and anxiety, as I have done. It might be profitable and right if I went back briefly over the history of this Clause, which has been so much discussed. First, it is not a Clause which has been extracted from the promoters in Committee, and, therefore, all talk of a bargain is erroneous. The Clause was in the original Bill, which I introduced in my first Session. The promoters, some of them reluctantly, have always been wedded to the principle of the Clause; but the possibility of modifying the details, especially with regard to time, has never been excluded. Hon. Members will remember that all through the somewhat exciting passage of this Bill, not its essence but its proportions and its shape have been constantly changing, and so the relation of this Clause to the rest of the Bill has been constantly changing, and, indeed, I would remind the House, the actual terms of the Clause have changed since the Second Reading. In the form in which this Bill was first presented to the House and carried on Second Reading the Clause stated that no petition "shall be granted" within five years. That is to say, the petition might have been presented in the third or any other year. I remember the hon. Member for Stretford (Mr. Crossley) on the Second Reading said that on the retention of that Clause the fate of the Bill would depend. I want hon. Members to observe the word "granted".

Mr. Crossley

I do not think that I ever said that the fate of the Bill depended upon this. I said that the attitude of some hon. Members towards the Bill might be changed.

Mr. Herbert

I do not think that it is worth arguing about. I am not trying to attack the hon. Member, but it says here: The whole fate of the Bill does depend on Clause 1."—[OFFICIAL REPORT, 20th November, 1936; col. 2130, Vol. 317.] He may have been misreported. I am not trying to quarrel with him. I merely say that that was a very different Clause from the Clause which now stands in the Bill. The Bill went up to Standing Committee, and on the very first day we made a very drastic alteration, on our own motion, for various reasons, changing the word "granted" to "presented". At once the House will see that there was, in the usual course of court proceedings, added a delay of another year. Now, at that time there was still a Clause in the Bill abolishing the decree nisi. We had a debate on the first day upstairs, when we discussed, and I discussed, the possibility of reducing the time, and in relation to that time we mentioned the fact that there was a further Clause abolishing the decree nisi. The question was left open, and the Clause was carried without a division. Subsequently, the Clause abolishing the decree nisi was cut out of the Bill, and that added another six months to the period, so that when the Bill left the Committee and came back to the Floor of the House, on the Report stage, it was quite a different thing; the whole shape of the Bill on this matter was different. On the Report stage an Amendment was put down by, I think, the hon. Member for South East St. Pancras (Sir A. Beit) to leave out the Clause altogether, but it was not called. If at that stage an Amendment of this character had been put down and called, I am not at all sure that it would not have been accepted by the promoters, and I am almost certain that it would have been insisted upon by the House. However, that was not done, and in my final speech—I remember the words I used, when I was discussing the possible fate of the Bill in another place—I said that it might be the period of five years was too long, and that some hon. Members had suggested other modifications. Then I said that I had no influence with the Lords—I found later that I had been too modest—and I also said that I for my part

could not be a party to any abandonment of the principle of Clause 1, or to any substantial modification of its provisions without thinking myself guilty of a breach of faith to many who have supported the Bill."—[OFFICIAL REPORT, 28th May, 1937; col. 643, Vol. 324.] There were such cheers that the last words were not heard and I emphasise them now.

Then the Bill went to the Lords, where I heard every word of the debates and saw a tremendous barrage laid upon this unfortunate Clause by experts, by laymen, by bishops, even by archbishops; and that barrage did very much impress me. If anyone accuses me of changing my mind, my reply is that the whole object and purpose of our debates in Parliament is to make people change their minds. I have never changed my mind about the principle, but I was impressed by the criticisms of the workability of the Clause, not only the technical workability of it—as to which I think there was some exaggeration—but the political workability. I am quite sure that if the Clause were passed as it stands now there would be such an outcry against the anomalies and hardships that it would cause, that within a year the Government itself would have to take it off the Statute Book. Well, the Lords are rather more learned than we are, with the exception of my hon. and learned Friend the Solicitor-General and the hon. and learned Gentleman who is on the front bench opposite (Mr. Pritt). They devised a scheme, one half of which is included in the Amendment now before the House and the other half in their next Amendment to the Clause. We now have to decide whether we shall accept the Amendment, and I say emphatically that I think the House ought to accept it.

There are two parties to the criticism of this Motion. One is represented by my hon. Friend the Member for Stretford, those who have opposed us in spite of this Clause, and there are others such as my hon. Friend the Member for South-East Essex (Mr. Raikes) and the hon. Member for South Croydon (Mr. H. G. Williams) and one or two more—I do not know how numerous they are—who voted for the Second Reading on the strength of this Clause. I would say to them now that in effect I think they are getting substantially what they expected. I ask them again to consider this point: This Clause, as amended, is in point of time divided by only about six months from the original Clause as it was at the Second Reading of the Bill, for which some of my hon. Friends voted. In the Clause as it was introduced a man might have got his decree absolute sharp at the end of the fifth year. With the Clause as it is now, the decree nisi still existing, he probably will not get the decree absolute for four or four-and-a-half years. So we are really quarrelling, in view of the Second Reading, about a difference of only six months or so. I am sorry that the Archbishop of Canterbury said that this was a trifling thing not worth having. I say with great respect that I am not quite able to follow the workings of that great mind. Three years is three years and four years is four years.

Mr. Speaker

The hon. Member must be careful that he does not quote speeches made in another place too literally, in order to influence the debate in this House.

Mr. Herbert

I beg your pardon. I do think it is idle for anyone to say that three years is a trifling thing and a miserable compromise. We shall be placing on the Statute Book for the first time a declaration that marriage ought not to be a temporary alliance. I quite agree that it is not going, numerically, to effect delay in many divorces. It might be 3 per cent. or 4 per cent. or less of the total rate on the present figures. But although it may not numerically delay many divorces, this Clause will be in the mind of every person who contracts a marriage, both before and after the wedding, and I say that it is not a mere shuffling kind of compromise by which we hope to shovel the Bill through. I think it will be a positively valuable addition to the Statute Book.

I would like to make an appeal to my hon. Friends, my enemies, and especially those of the Roman Catholic faith, to whom I have already paid my tribute for the fairness with which they have fought their fight. There has been a great deal of talk, especially in another place, about bargains and concessions. There have been no bargains. I shall resent, and have resented, any language about dishonoured cheques and that sort of thing, such as we have heard already. But there have been concessions, and, without wishing to cause offence, I would say that all the concessions so far have been made by one side. They have been made by the majority to a minority. I am not complaining about that a bit; I am not regretting it. It has been part of our deliberate policy to try to conduct this Bill without souring the field of religious tolerance and without putting ourselves in the position of a majority dragooning a minority. In return we have received a harmonious atmosphere, for which we are grateful. But now I wonder whether my hon. Friends might not perhaps make a little more positive contribution. It will do them great credit, it will do their faith great credit, and perhaps do this House some credit if now, at the end of this long battle, when we have reduced our debatable differences to this very narrow point, they are able to say, not that they have surrendered their opinions—that, I know, they will never do—but that they do feel they may hold out a sympathetic hand in a truce of understanding; by which I mean that I hope they will not think it necessary to divide against this Motion. For my part, if they cannot accede to that appeal, I say without a shadow of doubt and with a clear conscience, that this Lords Amendment ought to be accepted.

12.23 p.m.

Sir P. Hannon

I am sure that my hon. Friend the Member for Oxford University (Mr. Herbert) will have had the sympathy of the House in the exposition that he has given us of his changed view since the Bill left this House for another place. We all admire his sincerity and all appreciate the spirit in which he has conducted this Measure through the House and in Committee. But even with that great regard for his high public character I do not think I can accept the explanation he has given. When this Bill first went into Committee the hon. Gentleman, in response to an Amendment moved by my hon. Friend the Member for Cambridge University (Sir J. Withers), used words which showed the strong conviction that prevailed at the time in the minds of those responsible for the Bill, in the mind of my hon. Friend the Member for Oxford University. An hon. Member said in Committee, in criticising an Amendment moved by my hon. Friend the Member for Cambridge University, on this very point, the introduction of the limiting period for divorce—

This would destroy the underlying intention of the Clause, which is to keep the idea of divorce from the minds of the parties to the marriage during the earlier and more critical years. The supporters of the Bill at that early stage said that the underlying intention was that there should be this limiting period of five years. Subsequently in the same Debate my hon. Friend the Member for Penryn and Falmouth (Mr. Petherick), who made a very valuable contribution to the Debate, made it clear, in an interesting speech, that he was convinced that was the feeling of the Committee, and later when my hon. Friend the Member for Cambridge University had withdrawn his Amendment, he said it was clear that the majority of the Committee were in favour of the retention of the five years limiting period in Clause 1.

I am prepared to respond to the appeal made by the hon. Member for Oxford University at the close of his speech, but I am bound to say that there is still in this country a very large volume of feeling against the whole object of this Measure. If there is any contract in this country which is of a supreme character, it is the contract of marriage. This five years question is of profound significance, because we have always regarded ourselves in this country and in this House as the guardians of the righteousness and sanctity of all contracts, and of all contracts the supreme contract is the contract of marriage. To those of us who have opposed the Bill from the beginning, the period of five years was the corner-stone of the structure of the Bill on which we could have any sympathy for it.

It is not for us in this House to criticise what happens in another place, but one could have wished that the skill and wisdom which is always exercised in our Legislature had been differently exercised in relation to this Clause. I simply stand to make my protest. I think this is bad legislation. There are hard cases, but we cannot found our social system on hard cases and borderline cases. Although the Bill may relieve many embarrassing cases, I regard it as a serious blow at the moral fibre of our social system. I make my protest against the Bill. I know that my hon. Friends in this House are in favour of this Clause, and I believe that my hon. Friend will get the Bill, but we make our protest and declare our original conviction that a Measure of this kind is the wrong way to deal with marriage, and that it strikes a blow at the moral fibre of our social structure.

12.27 p.m.

Mr. Orr-Ewing

I do not wish to detain the House for many minutes, but I rise as one who does not feel, if I may use the phrase, the same almost fanatical opposition to the whole Measure as my hon. Friend the Member for the Moseley Division of Birmingham (Sir P. Hannon). When the Bill was last before this House, I felt compelled to walk into the Lobby in opposition to it. The reason which forced me into that Lobby was because at that time the Bill contained within the first Clause the stipulation as regards the five years' period, which we are now discussing. The hon. Member for the Moseley Division said he felt the necessity of maintaining the five years' limit, and that that five years' period was in some sense the corner-stone of the structure. I considered it before, and I should consider it now if it were in the Clause, the corner-stone of the most brutally weighted edifice, and it was for that reason that I voted against it.

There is one point on which I should like an explanation. This is essentially a private Member's Bill. We have had experience if not of some danger, yet of some actual difficulty, as regards the time that may be allotted by the Government for the discussion of the Bill. On the Report stage this House did not, for technical reasons, have an opportunity of discussing this particular provision of five years or three years, To my mind that had tragic results and, although I may not criticise any debates that may have taken place in another place, yet those who have studied those debates closely may possibly agree that they would have taken a different form if this House had had an opportunity of expressing an opinion on this question. A difficulty arises now. I am not satisfied that the provision in the Amendment to reduce five years to three years will eliminate a sufficient number of cases where cruelty would have been caused by the original provision.

I am not at all sure that within a few months of this Bill becoming law we may not hear many complaints of sad cases, with all sorts of complications, which hon. Members of this House, however learned, or noble Lords in another place, however learned, cannot have foreseen. The ramifications of this form of legislation are impossible to foretell a s regards their effect, whether cruel or uncruel, and I should like to know—perhaps the Solicitor-General will be able to give us some guidance—how safe we may feel, as far as anybody cart say at this stage, that if this House takes the decision on this Amendment which the promoters wish them to take, that we shall be given time to discuss an amending Bill if cruelty can be proved as a result of this Amendment. I should feel extremely unhappy if I were to think that this provision, as the result of a private Member's Bill and of this House supporting a private Mem- ber's Bill, were to remain in the Act for one month longer than is absolutely necessary if it were proved that real cruelty was being imposed upon those who might have escaped that cruelty if such a provision had not been inserted. Otherwise, I feel that I must support the Amendment. I think the promoters of the Bill have been wise in accepting it, although I have some difficulty in accepting the reasons for accepting it which were given by the hon. Member for Oxford University.

12.34 p.m.

Mr. Raikes

I feel bound to oppose the Amendment, but on rather different grounds than have been advanced by other hon. Members. I agree with the hon. Member for Oxford University (Mr. Herbert) that there was never any bargain in regard to Clause 1. I was one of those who supported the Third Reading of the Bill mainly because Clause 1 stood in the form in which it stood on Third Reading. The hon. Member said that, after all, there was only six months difference in the time in his original Bill and the Bill as amended in the House of Lords, but he did not say that there was a two years difference between the Bill as it passed its Third Reading in this House and as it now appears. After all, the Committee upstairs made alterations, but, in point of fact, this House voted for a Measure in which the period was not actually five years but, taking other things into consideration, considerably longer and, therefore, we have a difference of two years, not a difference of six months. I would point out that so far as the Bill is concerned if it is to be a success—and I think all hon. Members hope that as a result of the reform of the divorce laws we may be able to give greater help and comfort and assistance to many people who are hardly hit—it is important that the view should not be adopted that this is a Bill to give easier facilities for divorce. I have supported it because it aims at more equitable divorce, not that it makes divorce easier.

What effect is this three-year period going to have on many people who will pass into marriage when the Bill comes into law? It seems to me that they will not be guided very much by the fact that there is this three-year period in considering any question of a decree nisi. What they will say is this: "We can get married, and in three years time we can get out of marriage if we want to." That will be the obvious feeling of the ordinary man and woman. Very few marriages break down in the course of the first year, but after 18 months or two years there come those differences and difficulties which may lead people to think of getting out of the marriage. A breakdown may occur at the end of two years, and experts on marriage say that it is not very likely that people will fall in love again in the next two years—[HON. MEMBERS: "Who are the experts?"] I am unable to say who are the experts, but that is what I am told through inquiries I have made.

Mr. Sorensen

Were the hon. Member's inquiries directed to Members of this House?

Mr. Raikes

It would hardly be proper for me to give the name of my informant. We have the fact that a marriage has lasted 18 months and if there is this five-year period they will be forced to try to make it work over a moderately long period for reconsideration or reconciliation. At the end of 18 months there is still 3½ years left before they can consider divorce, and that, I think, would have an effect in a few cases where temporary difficulties have arisen. Although I shall be in a minority, and although I am opposing the Amendment on rather different lines from other hon. Members, I feel bound to continue my opposition. The Bill as originally drafted was a good Bill and would do good, but it is futile when by cutting down the time limit you encourage persons to make use of these new facilities for easier divorce.

12.41 p.m.

Mr. Lyons

I never concealed my dislike for this Bill when it was discussed in the House or in the Committee upstairs. I want to utter a word of protest against this new proposal. I have listened to what has been so forcibly said by hon. Members, including the effective speech of the hon. Member for Moseley (Sir P. Hannon), and while I appreciate and respect the sentiments which prompted him to make his observations, I want to say that my objection to the Amendment is based on entirely different grounds. We cannot, on this Amendment, discuss whether or not there should be a waiting period at all. We have never discussed in this House any alteration of the original five-year period, and I am opposed to a waiting period altogether. I am going to oppose the Amendment in the hope that if the House accepts our view I shall be able to introduce an Amendment to make the waiting period of far less duration. That is the course I propose to follow. Many hon. Members who are opposed to increasing the grounds for divorce were willing to accept the Measure because of what they thought was a compromise in the five-year period. With that five-year bar reduced, I feel that many hon. Members can no longer give to the Measure the general support they indicated they could give when the five-year period was in the Bill. I say that a Bill which makes a very great inroad upon the family life of this country should not be accepted with an Amendment like this. It makes it an entirely different Bill from that which was introduced in the House of Commons.

12.42 p.m.

Mr. Crossley

The House, I know, wants to get on, and I will not detain hon. Members for more than a few moments. It appears to me that the Bill comes from another place in its true colours at last. When it left this House on the Third Reading I said that I should be glad to see the last of the Marriage Bill. Now it comes to us as the Matrimonial Causes Bill, and that is a much more honest description of it. The hon. Member for Oxford University (Mr. Herbert), I thought, was not very comfortable in the speech of apology he had to make to the House in moving the acceptance of this Amendment. He has given me a copy of the speech he made on the Third Reading dealing with this Clause, and I want to read to the House two extracts. He said: It is not a sham. It is not a 'sop.' I believe the Clause will have good effects. It will save marriages; it will discourage rash marriages and rash divorces. A little further on he said—and this is the important point— For some strange reason I am not a Peer, and I have very little influence in another place, but I myself could not be a party to any abandonment of the principle of Clause 1, or to any substantial modification of its provisions without thinking myself guilty of a breach of faith to many who have supported the Bill."—[OFFICIAL REPORT, 28th May, 1937, Col. 642, Vol. 324.] The suggestion of a breach of faith is immaterial, but the point is that there have been substantial modifications. I hate the reduction of this period to three years. In fact, it is such a substantial modification that it applies not to 14 per cent. of marriages, but only to four per cent. However, I will comply with the appeal made at the end of my hon. Friend's speech. I will deny myself even the consolation of solvitur ambulando. I do not know whether my hon. Friend remembers that Mr. Gladstone, at that Box, once said that he believed it was a matter of solvitur ambulando. Lord Salisbury asked him what he meant by that; did he mean walking through the Division Lobby? Mr. Gladstone's reply was: "No Sir, I mean marching towards the temple of truth, guided by the light of reason." I cannot see the temple of truth at the end of the Division Lobby into which I should walk. I will allow my hon. Friend the comfort of going his own way in peace.

12.46 p.m.

The Solicitor-General (Sir Terence O'Connor)

I have no contribution to make on the question of principle raised in the Amendment, but I would like to reply to the question put to me by the hon. Member for Weston-super-Mare (Mr. Orr-Ewing). The hon. Member asked whether the House would be given time to discuss an amending Bill if hardship occurred as a result of this Amendment. The only answer I can give is that the position in this case is no different from that in the case of any other Bill. If hardship results from the operation of the Bill, and the matter becomes sufficiently aggravated to be a political question, the Government would have to take notice of it, because its attention would be called to it by hon. Members in all parts of the House. If such a situation arose, it would be open to my hon. Friend and to hon. Members of all parties to call the Government's attention to the hardship with a view to their considering the question as to whether an amending Bill should be brought forward.

Question, "That this House doth agree with the Lords in the said Amendment," put, and agreed to.

Lords Amendment: Leave out lines 16 to 19 and insert: Provided that a judge of the High Court may, upon application being made to him in accordance with rules of court, allow a petition to be presented before three years have passed on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition, that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree nisi, do so subject to the condition that no application to make the decree absolute shall be made until after the expiration of three years from the date of the marriage, or may dismiss the petition, without prejudice to any petition which may be brought after the expiration of the said three years upon the same, or substantially the same, facts as those proved in support of the petition so dismissed. (2) In determining any application under this section for leave to present a petition before the expiration of three years from the date of the marriage, the judge shall have regard to the interests of any children of the marriage and to the question whether there is reasonable probability of a reconciliation between the parties before the expiration of the said three years. (3) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which have occurred before the expiration of three years from the date of the marriage.

12.51 p.m.

Mr. Herbert

I beg to move, "That this House doth agree with the Lords in the said Amendment".

It was considered in the Lords that in addition to the reduction of the period from five to three years, there might be many cases in which it would be both intolerable and useless to insist upon there being no possible dispensation. This Amendment proposes that, subject to rules of court, a judge of the High Court may allow a petition to be presented before three years have passed if he is satisfied that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent. It was felt that in some cases an absolute bar to divorce might cause unnecessary hardship if it were unaccompanied by any power of dispensation. Cases of this nature—venereal disease, compelling to prostitution, sodomy, and so on—come to one's mind immediately, and in such cases it would be intolerable to prevent the injured party from going to the court. I understand that the procedure would be that the application would be made, probably ex parte on affidavit evidence, either to a judge in Chambers in London or to a judge at the Assizes, and therefore no great expense would be likely to fall on poor people, who I hope will be able to go to the Assizes.

Then I would like to draw attention to a new and very remarkable provision which I hope will commend itself to my hon. Friends who oppose the Bill. It is provided that in determining any application for special leave, the judge shall have regard to the interests of any children of the marriage and to the question whether there is reasonable probability of reconciliation between the parties before the expiration of the said three years. That is a most valuable new principle to place on the Statute Book, and I believe it is the first occasion on which reconciliation is mentioned in a divorce Bill.

I would like to take this opportunity of thanking my hon. Friend the Member for Moseley (Sir P. Hannon) and my hon. Friend the Member for Stretford (Mr. Crossley) and others, who generously responded to my appeal on the last Amendment. I would like also to say one word in regard to the comments of my hon. Friend the Member for Stretford on the passage which he quoted from my speech on the Third Reading, which I think is perfectly consistent with the line I have taken on these Amendments. It would have been very easy for me to stand aside and allow hon. Members to agree with these Amendments, to maintain a great reputation for personal integrity with the hon. Member for Stretford, and to let the House do my work for me. But that is not my conception of the functions of a leader. As for "substantial modifications," I would remind my hon. Friend that when it was mooted in another place that there should be a reduction of the period to two years and even to one year, rightly or wrongly, I resisted. My hon. Friend may think that it is hair-splitting to distinguish in this way between three and two, but that is the view I took.

12.54 p.m.

Sir P. Hannon

I wish to acknowledge the very valuable principle which is introduced in this Amendment, but at the same time, the Amendment does extend the facilities for divorce, and on that ground I am bound to say that I am sorry that it will become part of the legislation. I could not allow the Motion to agree with this Amendment to go through without saying that on the same grounds as those which I have already explained I am against extending the facilities for divorce, and against leaving the home more open to a sort of speculative future as to the relations between man and wife. I am opposed to any movement in that direction. At the same time, I acknowledge that having already in this Bill extended the facilities for divorce, it is a decided advantage that this new principle should be introduced for safeguarding the children and providing the machinery for conciliation, and I regard it as a valuable contribution.

12.56 p.m.

Mr. Orr-Ewing

I should like some reassurance as to how these words "exceptional hardship" and "exceptional depravity" will be construed and how this will work in the courts. This appears to many of us to open up a very dangerous field. I should be most grateful, personally, for a statement and I believe the House would like to be reassured before we agree to this Amendment, as to whether the definition of the grounds on which this discretion may be used is sufficient to enable that discretion to be exercised by those responsible for exercising it, otherwise than on the ground of their own personal opinions alone.

12.57 p.m.

Mr. Lyons

I should like some information as to the kind of machinery which is contemplated. When, for instance, is the discretion to be applied for and obtained? This Clause is an embargo on the taking of a petition within a certain time, and I wonder whether we could be given any information as to the rules which are contemplated for the hearing of applications for this discretion. I appreciate the fact that the rules have not yet been settled, but we ought to have some indication of what the machinery is going to be, of where an application is to be made, of whether it is to be made publicly or otherwise, and of what is the general idea of the procedure to enable a petitioner to come inside this provision.

12.58 p.m.

The Solicitor-General

In reply to the hon. and learned Member for East Leicester (Mr. Lyons), I would remind him that at present this is a private Member's Bill, though it looks as though it will probably become an Act later. When it becomes an Act, if it does so, it will then be for those responsible for the administration of the law to make rules to see that effect is given to it. The House will have sufficient confidence in my noble Friend the Lord Chancellor to feel assured that he will make rules under the new Act which will enable that Act to be operated. The Rules Committee of the Supreme Court is responsible for the making of rules, and it would be quite premature to attempt to say at the present time what form those rules will take. I apprehend that the rules will state when the application has to be made, where it has to be made and in what terms, but those things must be left to the Rules Committee under the guidance of my noble Friend the Lord Chancellor.

As regards the question of my hon. Friend the Member for Weston-super-Mare (Mr. Orr-Ewing) the matter is by these words left to the discretion of the judge and the judge must be trusted to be able to decide for himself whether or not a particular case is one of exceptional hardship or exceptional depravity. It would be impossible for the House to lay down any definite guidance beyond these general words as to how a judge of the High Court is to exercise his discretion.

Mr. Orr-Ewing

Is my hon. and learned Friend satisfied that the expression "exceptional hardship" is wide enough?

The Solicitor-General

I think it gives the widest possible scope to the judge of the High Court. No judge would find any difficulty in dealing with a case within the ambit of these words.

Sir P. Hannon

Can the hon. and learned Gentleman point to any example of legislation in which similar expressions to these are used in regard to the discretion of the judge? These words are very wide in their scope.

The Solicitor-General

As a matter of fact, the court at the present time can shorten the period between a decree nisi and a decree absolute, which normally is six months and in such cases the court is entitled to consider the question of exceptional hardship. That is a definite instance of the kind of discretion which has had to be operated in the past, and there has been no difficulty in operating it.

Question, "That this House doth agree with the Lords in the said Amendment," put, and agreed to.

Subsequent Lords Amendments to page 3, line 39, agreed to.

CLAUSE 5.—(Decree of judicial separation.)

Lords Amendment: In page 4, line 7, at the end, insert: or on the ground of failure to comply with a decree for restitution of conjugal rights or on any ground on which a decree for divorce a mensa et thoro might have been pronounced immediately before the commencement of the Matrimonial Causes Act, 1857.

1.2 p.m.

Mr. Herbert

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This is a rather more substantial Amendment than those which have just been agreed to, but I think it is unobjectionable. Under the existing law a petition for judicial separation may be presented on the ground of adultery, or cruelty, or desertion without cause, for two years, or failure to comply with a decree for restitution of conjugal rights, or on any ground on which a decree for divorce a mensa et thoro might have been granted before the Act of 1857. But the Bill as it stands does away with some of these grounds. It was thought by noble Lords that there was no reason to alter the law in this respect, and accordingly this Amendment was inserted. The only difference between the Bill and the existing law will now be that, for purposes of judicial separation, desertion must exist for three years. I ought to apologise to the hon. Member for South-East St. Pancras (Sir A. Beit) who put down at an earlier stage a similar Amendment which we resisted.

Question put, and agreed to.

Lords Amendment: In page 4, leave out lines 18 to 43, agreed to.

Lords Amendment: In page 4, line 43, at the end, insert:

  1. NEW CLAUSE A. 2,389 words
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