MARRIAGE BILL (Hansard, 28 May 1937)

§ The Solicitor-General (Sir Terence O'Connor)
As it is something over a month since the Bill was last before the House—

§ Mr. Charles Williams
On a point of Order. May I ask in what capacity the hon. and learned gentleman is speaking—as representative of whom?

§ The Solicitor-General
I speak as a Member of His Majesty's Government.

§ Mr. Speaker
No point of Order arises.

§ The Solicitor-General
As it is something like six weeks since the Bill was last before the House, and as the first Amendment on the Order Paper is one which, at first sight, appears to be a little complex, and was the subject of some complaint by the noble Lord the Member for Aldershot (Viscount 566 Wolmer), perhaps it will be for the convenience of the House if I indicate what the Amendment is intended to do. When the original Bill was introduced by the hon. Member the Senior Burgess for Oxford University (Mr. Herbert) there was a provision that two years after a decree of judicial separation, either of the parties could convert that decree of judicial separation, on their own motion and without anything further, into a decree of divorce. It became automatic at the expiration of two years. That proposal was very hotly contested in the Committee, and did not commend itself to the Committee. Therefore, instead of it, my hon. Friend brought forward the proposal which appears in the Bill, the object of which is to provide machinery whereby judicial separation can be obtained. That machinery is particularly important during the first five years when, under the Bill, as it stands, no relief can be obtained by way of divorce. The proposal in the Bill is a mixture, which is not very satisfactory from the point of view of drafting, between the new proposal which commended itself to the Committee and the old proposal which did not commend itself to the Committee.
The Amendment which is now proposed seeks to omit so much of Sub-section (2, A) as requires a three-year period to elapse between the grant of a decree of separation and the presentation of a petition for divorce. Obviously, that is no longer necessary now that the decree of judicial separation is a separate act altogether. If that proviso were retained it might be that eight years might elapse, taking the extreme period, and in any case six years would elapse before the parties could petition for divorce. That is no longer necessary. The intention of the Amendment is to secure that a petitioner who has obtained a judicial separation is not estopped, that is, prevented in law, from going on to obtain a decree of divorce. Let me make a somewhat technical legal point more clear. At the present time under the Bill within the five-year period a party cannot ask for divorce for adultery, but the party can go to the court and ask for a judicial separation on the ground of adultery. It would be necessary in many cases to do that, because there is no other means by which the party could get maintenance during the lapsing of the five years. In 567 law at present it is very highly arguable that what might arise in these circumstances would be an estoppel, that is to say, a person having gone to court for a decree of judicial separation on the ground of adultery might not afterwards go to court and say, "I want a divorce instead." It is to make it perfectly clear, whatever the law may be, that in those circumstances the party might go later on and ask on the same grounds for a divorce for adultery when the five years are up, that this Amendment is being moved.
In the second place, the Amendment provides that the court may treat the evidence which was given on the application for judicial separation as sufficient evidence upon which to grant a decree of divorce. Similarly in these circumstances, supposing it were made perfectly plain to the court on the application for judicial separation that adultery had been committed, there is not a great deal of point in going after the five-year period is up and re-proving the whole case, with all the attendant difficulty of calling witnesses; but there must be retained to the court a discretion so that the court may be able to satisfy itself. Lastly, the Amendment does this. If the House will look at Clause 2, which is the substantive Clause creating the offences, they will find that the offence of desertion as a ground for divorce must have occurred three years immediately preceding the presentation of the petition. Therefore, circumstances might arise in which a party had got a decree of judicial separation based on desertion and then had to wait for three years or more until the five-year period was up to present a fresh petition for adultery; but because the first petition had put an end to the state of desertion the party could not say that the three years of desertion were the years immediately preceding the presentation of the petition. This Amendment rectifies that position, puts right the present Sub-section (2, A) and clears up the other point which I have mentioned about the necessity for adding on three years to the subsequent period of desertion. It removes one or two other ambiguities that occur in the Clause as it stands on the Paper. It is not unfair to describe the Amendment as a drafting one, that is to say, it does not raise any new issue. It merely endeavours to translate into working 568 form what the Commit tee upstairs decided it was desirable to do.