HC Deb 23 July 1937 vol 326 cc2625-32

(1) A person shall not be prevented from presenting a petition for divorce, or the court from pronouncing a decree of divorce, by reason only that the petitioner has at any time been granted a judicial separation or an order under the Summary Jurisdiction (Separation and Maintenance) Acts, 1895 to 1925, upon the same or substantially the same facts as those proved in support of the petition for divorce. (2) On any such petition for divorce, the court may treat the decree of judicial separation or the said order as sufficient proof of the adultery, desertion or other ground on which it was granted, but the court shall not pronounce a decree of divorce without receiving evidence from the petitioner. (3) For the purposes of any such petition for divorce, a period of desertion immediately preceding the institution of proceedings for a decree of judicial separation or an order under the said Acts having the effect of such a decree shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since the granting thereof, be deemed immediately to precede the presentation of the petition for divorce.

Mr. Herbert

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

This really amounts to little more than a re-draft of the provision originally contained in the second part of Clause 5 of the Bill as it left the House of Commons. It was thought preferable to have a new Clause, as the subject matter of the second part of the original Clause really had little to do with the first part. The only alteration of substance is that in cases where an order for separation made either in the High Court or a magistrate's court is to be used as the basis of a petition for divorce, the court cannot now pronounce a decree of divorce without receiving evidence from the petitioner. That is a new safeguard inserted in order to ensure that the petitioner shall be before the court.

Question put, and agreed to.

CLAUSE 6.—(New grounds for nullity).

Lords Amendment: In page 5, line 8, leave out from "or," to "subject," in line 14, and insert: a mental defective within the meaning of the Mental Deficiency Acts, 1913 to 1927, or

Mr. Herbert

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

I hope my hon. and gallant Friend the Member for Hitchin (Sir A. Wilson) will have a few words to say about this Amendment.

1.6 p.m.

Sir Arnold Wilson

The main purpose of the Amendment is to omit so much of paragraph (b) as makes it a ground for nullity that the respondent has been, within 12 months of the marriage, placed in an institution under guardianship under a certain Section of the Mental Deficiency Act. As the Clause left this House, it was defective in that it made an event subsequent to the marriage a ground of nullity, whereas a marriage can only be annulled in the light of circumstances, not known to the parties, which were in existence at the time of the marriage. The effect of the Amendment is to remedy that and to make it clear on the face of the Clause that mental deficiency must exist at the time of the marriage and be unknown to the petitioner. I hope the House will accept that explanation as being in all the circumstances adequate.

Question put, and agreed to.

Lords Amendment: In page 5, line 17, after "disease," insert "in a communicable form."

Mr. Herbert

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

1.7 p.m.

Sir A. Wilson

We originally wanted to insert a definition of the term "venereal disease" in the Bill, but it was found difficult and on the whole unnecessary to do so. The words "in a communicable form" are sufficient to serve as a definition and to indicate the purpose of the Clause.

Question put, and agreed to.

Lords Amendment: in page 5, line 28, after "intercourse," insert "with the consent of the petitioner."

1.8 p.m.

Mr. Herbert

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

I think this Amendment explains itself. It is thought to be desirable in these cases that the petitioner should only be denied relief if he or she has willingly had intercourse.

Question put, and agreed to.

Lords Amendment: In page 5, line 30, at the end, insert: (2) Any child born of a marriage avoided pursuant to paragraphs (b) or (c) of the last foregoing sub-section shall be a legitimate child of the parties thereto notwithstanding that the marriage is so avoided

Mr. Herbert

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

This Amendment is illogical but humane. It has the object of seeing that children born of marriages declared null under paragraphs (b) and (c) shall nevertheless be legitimate.

Question put, and agreed to.

CLAUSE 7.—(Proceedings for a decree of presumption of death.

Lords Amendment: In page 5, line 36, at the end, insert: to have it presumed that the other party is dead and to have the marriage dissolved

Mr. Herbert

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

The Amendments on Clause 7 are almost entirely verbal. The first one provides that the form of the order made by the court shall be more in accordance with correct judicial procedure. The Bill says rather vaguely that the marriage shall be dissolved, and the Amendment provides that it shall be dissolved by order of the court.

Question put, and agreed to.

Subsequent Lords Amendments to page 5, line 39, agreed to.

Lords Amendment: In page 5, line 41, leave out from "and," to the end of line 1, on page 6, and to insert: the petitioner has no reason to believe that the other party has been living within that time

Mr. Herbert

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

The original words were: has not been known by the petitioner to be living. It was thought that there might be cases where the petitioner did not know but might have had reason to believe from hearsay or otherwise, and, therefore, the words ought to be altered in this sense.

Question put, and agreed to.

Lords Amendment: In page 6, line 4, leave out Sub-sections (3) and (4) and insert: (3) Sections one hundred and eighty-one to one hundred and eighty-four inclusive of the principal Act shall apply to a petition and a decree under this section as they apply to a petition for divorce and a decree of divorce respectively

Mr. Herbert

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

This is a simpler way of saying what we have already said.

Question put, and agreed to.

CLAUSE 8.—(Prevention of delay in application for decree absolute.)

Lords Amendment: In page 6, line 22, leave out from the beginning to "against," in line 25, and insert: (3) Where a decree nisi has been obtained, whether before or after the passing of this Act, and no application for the decree to be made absolute has been made by the party who obtained the decree, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party

1.11 p.m.

Sir John Withers

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

I hope that the House will agree with this and with the following Amendment. The point is that the Clause is extended to decrees nisi granted before the passing of the Act as well as after. It is really an extension of the principle, and a useful one, and I think the House will certainly agree to it.

Question put, and agreed to.

Lords Amendment, in page 6, line 29, agreed to.

CLAUSE 9.—(Amendments as to maintenance, settlement of property, Etc.)

Lords Amendment, in page 6, line 34, agreed to.

Lords Amendment: In page 6, line 34, after "ninety-two", to insert: or sub-section (3) of section one hundred and ninety-three.

1.12 p.m.

Mr. Herbert

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

The next seven Amendments are all Amendments to Clause 9, and they are valuable Amendments for which the promoters in both Houses may take some credit, but they are rather complicated. Perhaps I may briefly indicate what the purpose of them is, though I had hoped that my hon. and learned Friend the Member for Ashford (Mr. Spens) would be able to assist me here. The Subsection to which this Amendment refers does not for the moment exist. It has been invented by their Lordships and may be found on page 5 of the Amendment Paper. The object of it is to bring the children under this Clause and to give the court power to order a husband, or the wife in the case of an insane husband, to secure money for the benefit of the maintenance and education of the children, whereas at the moment the court only has power to order such payments on the making of a decree. The only other important point is to be found in the Amendment to line 9, on page 7 of the Bill, to insert a new Sub-section (2). This really redrafts Sub-section (2) in a more concise form and contains the useful provision, in cases where an insane person has been divorced and money is ordered to be paid for maintenance, that the court may order such money to be paid to a person having charge of the insane person, for example, a municipal institution, the object being that the money shall not be wasted.

Question put, and agreed to.

Subsequent Lords Amendments to page 7, line 27, agreed to.

CLAUSE 10.—(Extension of jurisdiction of courts of summary jurisdiction.)

Lords Amendment: In page 7, line 29, leave out from the beginning to "one," in line 32, and insert: (2) A husband shall be entitled to apply to a court of summary jurisdiction for an order on the ground that his wife has been guilty of adultery, and the powers of the court under the Summary Jurisdiction (Separation and Maintenance) Acts, 1895 to 1925, shall include power to make, upon any such application, any

Mr. Herbert

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

This is a drafting Amendment and will have the effect of enabling the persons getting an order under this Sub-section to qualify for the proceedings mentioned in Clause 5.

Question put, and agreed to.

Lords Amendment in page 7, line 34, agreed to.

CLAUSE 11.—(Relief for clergy of Church of England.)

Lords Amendment: In page 8, line 4, after "England," insert "or of the Church of Wales."

Mr. Herbert

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

The Church of Wales is anxious that it should be made clear that the clergymen of that church are covered by this Clause.

Question put, and agreed to.

Lords Amendment: In page 8, line 8, leave out from "permit" to the end of the Clause and insert: the marriage of any such person to be solemnized in the church or chapel of which he is the minister

Mr. Herbert

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

This is a verbal Amendment designed to express more properly the relations between a Minister and his church or chapel.

Question put, and agreed to.

CLAUSE 13.—(Short title, construction, commencement and application.)

Lords Amendment: In page 8, line 20, leave out from "the" to "shall" in line 22, and insert "Matrimonial Causes Act, 1937, and."

Mr. Herbert

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

This Amendment has not the sinister intention that some hon. Members fear. The reason is purely technical. Most Marriage Acts and Bills have dealt with the celebration of marriage, and, in spite of what some of my critics have said, this Bill does still contain one or two mild references to the dissolution of marriage. It is with something of a sentimental pang that I surrender the old Title which has for so long been the partner of our days. It did symbolise in intention which was sincerely felt, and will, I hope, be carried out in practice.

As this is the last opportunity I shall have, I should like to thank His Majesty's Government for giving us their time, my hon. Friends for giving their work, their co-operation and their kindness, and last, but not least, my hon. Friend the Mem- ber for Evesham (Mr. De la Bère) for giving us this opportunity.

1.18 p.m.

Mr. Denham

Perhaps the House will allow a private Member to offer his hearty congratulations to a brother private Member on a most remarkable success. There are many people to whom this Bill, when it becomes an Act, will be the most important Act, for better or for worse, of the whole Session; but, apart from that, everybody will agree that it is one of major importance full of difficulties and rich in controversy. The Government have throughout kept studiously aloof, and both Church and State have deliberately avoided taking an active part in the passage of the Bill. I do not mention that by way of criticism; I mention it merely to note the fact that a private Member has succeeded in piloting an extremely difficult Bill without their assistance. It just shows what is still possible in this House to a private Member who is resolute, persuasive and who consciously represents an enormous volume of instructed opinion—

Mr. Deputy-Speaker (Captain Bourne)

I would point out that this is completely irrelevant. We cannot permit the Lords Amendments to be used as an occasion for panegyrics on the Bill.

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

Lords Amendment in page 8, line 23, agreed to.