MATRIMONIAL CAUSES AND RECONCILIATION BILL

HC Deb 08 February 1963 vol 671 cc806-84

Order for Second Reading read.

11.8 a.m.

Mr. Leo Abse (Pontypool)

I beg to move, That the Bill be now read a Second time.

It is some twenty-six years since Sir Alan Herbert successfully steered through the House a Bill which substantially altered our divorce laws. The Bill which he introduced in 1937 was to a considerable extent implementing the recommendations of the Royal Commission of 1911, and after a lapse in any major matrimonial legislation of a further 26 years today I am seeking to implement some of the recommendations made by the Royal Commission of 1955.

I realise that the House may consider it a little impertinent to introduce a Bill in respect of Royal Commission recommendations upon which dust has settled for a mere eight years. In matters affecting human relationships this House always moves with considerable caution. But I would pray in aid that the Bill which I am introducing is certainly nothing like as radical as Sir Alan Herbert's Measure and that, indeed, the only Clause that the most conservatively-minded Member of this House—and he may well be on this side of the House—could regard as having some novelty is one that I am told was first recommended by a Commission presided over by the first Archbishop of Canterbury of the Protestant Church in 1552. I hope, therefore, that the House will consider that, whatever else may be said, it cannot be suggested that I and the other sponsors of the Bill are bringing forward a hasty and ill-considered Measure.

In moving the Second Reading, I shall seek to be as frank as possible and to draw attention not only to the advantages which I am claiming but to some, at any rate, of the difficulties as they occur to me. I believe that this is important, since any glance at this issue reveals quite clearly that frankness has certainly not distinguished the treatment accorded to divorce in England and Wales, although perhaps it may be somewhat different in Scotland. Maybe it began with Henry VIII. After all, he was a remarkable man. He managed to have six wives and never to have a divorce. Those wives whose heads he did not chop off immediately he managed to show that he never validly married.

Anne Boleyn, great Elizabeth's mother, found that she was defeated by strategems of consanguinity and affinity because he was able to show that he had, prior to his marriage, had illicit intercourse with Anne's sister. He was evidently able to establish that his subsequent marriage was consequently invalid.

I regret that the Welsh, who are not given to humbug, should have brought in this order of Tudor humbug which I fear has somewhat lingered. It certainly fingered on through the nineteenth century, when divorce was reserved for the wealthy who could afford to pay a small fortune to obtain an Act of Parliament. Bishops of those days used to insist on a Clause being inserted in the Act for-bidding the parties to remarry. This Clause was always deleted, apparently without protest, in Committee when, presumably, the bishops of that day absented themselves.

I am recording this somewhat shabby past because too often querulous moralists today seek to show that we once lived in a golden age and that today is a scene of moral confusion where once there was certitude and high principle—just, indeed, as we often hear what I regard as the absurd over-valuation of the authoritarian Victorian family and tirades which follow, of course, from the so-called immorality of the present day.

I believe that too many people make the mistake of believing that this country is down and out and that far too many are inclined to go further and suggest that the nation is possessed of a tramp morality. Certainly all the statistics show otherwise. It is not for us in the 1960s to have the era of agonisingly long engagements, with legions of frustrated spinsters and distorted bachelor uncles as in Victorian times. We are marrying younger and more people are married than ever before. The birth rate soars and, despite the democratisation of divorce through legal aid, all the statisticians' projections show, fortunately, that there is a declining divorce rate.

The fortunate truth is that family life has probably never been more secure, and certainly marriage has never been so popular. In 1960, the total number of divorces was well below the record figure for the bumper year of 1947, and 33 per cent. lower than in 1952. It is certainly, therefore, quite misleading to talk of constantly mounting figures of divorce; and it is not surprising that sociologists, seeing the behaviour in particular of younger marriages, which appear to be standing up very well indeed, are describing our society as a home-centred society.

But there certainly is no room for any complacency or equanimity when we know that annually not only do we have 23,000 to 24,000 divorces but that this is lamentably resulting each year in some 31,000 children being deprived of a parent by a divorce court. I think that today the importance of a child having a secure background, of having both parents, is understood more than ever. Maybe this is the impact of contemporary psychology as we realise the importance of early influence on a child if an integrated adulthood is to be achieved.

It is because of increasing insight into this that we try to get the abandoned little ones 'out of children's institutions and into the homes of foster parents. It is because of our understanding of this that we all recognise that the aetiology of delinquency and of much mental sickness lies in the fact that behind them is the tragedy of broken homes. It is because we have a duty to the children of a marriage that we have an obligation to ensure 'that our laws must contain no impediment—legislatively at any rate—that can be dealt with which could in any way inhibit possible reconciliation between estranged couples.

Therefore, the first and, indeed, the primary aim of this Bill is to amend the existing law so that encouragement can be given to the estranged couple to make a bid for happiness. Clauses 1, 3, 4, and 5 are designed for this purpose. They seek to implement recommendations made either by a majority of the Royal Commission or unanimously. Clause 3 seeks to implement Recommendation 14 of the Commission; Clause 4 seeks to implement No. 15; Clause 5 seeks substantially to implement Nos. 12 and 13; Clause 1, albeit, as I will explain, regrettably clumsily, does intend to implement No. 7.

The House will be aware that the condonation by one spouse of a matrimonial offence by the other can act as an absolute bar to divorce being granted in respect of that offence. The Royal Commission said, on page 70, A husband who has sexual intercourse with an adulterous wife, with knowledge of her adultery, or with a wife who has treated him with cruelty, is deemed conclusively to have condoned the offence unless it can be shown that the intercourse was induced by the wife by a fraudulent mis-statement of fact. Where a wife has intercourse with her husband in similar circumstances, the presumption of condonation is rebuttable, in as much as it is said that it may be difficult for a wife immediately to break off relations with her husband. The implication of this simply is that if, for example, a husband finds that he has the tragedy of an adulterous wife, he must immediately make up his mind as to what action he is to take. There can be, as the law stands, no pause in the sense that he can continue in any way to live with her as man and wife in the matrimonial home. He must decide immediately—forgive forever forthwith or opt for a divorce.

I think that those who have any experience in dealing with people who find themselves in this dilemma find this situation thoroughly unsatisfactory. After all, although it may be a popular idea that adultery arises always because a man or a woman has an infatuation or passion for another party, only too frequently it is a symptom of something that is wrong within the marriage itself and can have little or no relevance to the other party which the sinning husband or wife chooses.

It is because it is so often a symptom of something that has gone wrong that it is so important to enable a period of time for a pause in which it might be possible in the example I have cited for the husband to decide whether he can tolerate, learn to live with, the one offence, and perhaps have an opportunity of seeing out of what it has arisen and perhaps have a period of time in which the parties, after such a tragic impact on their matrimonial life, can leave to live with each other. Nothing is more unsatisfactory than that a man or woman should go to a solicitor and tell the solicitor that his wife—in the case of a man—has committed adultery, for when he asks for advice the solicitor in such circumstances has little alternative but to tell him that in no circumstances must he return to his wife to consider the matter.

The Bill implements the Royal Commission's recommendation and would allow a time of a month for the parties to live together to be able to decide whether the marriage could go on. I am asking the House that this idea of the Royal Commission should be accepted as sensible and sage, because it would mean that if for a period of a month, alas, it was not possible for the marriage to endure, the party against whom the offence was committed would in no way have prejudiced his or her rights.

In the Bill, that is applied not only to adultery but to cruelty. Time and again men have come to see me with a summons issued against them in a magistrate's court for cruelty. They come often after having been married ten or twenty years, when perhaps their wife has decided to take such action. People can be extraordinarily insensitive and unaware of haw daily they have been acting with cruelty almost habitual and unaware of what has been occurring.

I am often astonished that people should find themselves surprised when one hears the catalogue of sins which they have committed, but I have seen similarly—and I am sure that hon. Members with similar experience as magistrates or lawyers must have seen this, too —how the issue of a summons in the lower matrimonial court often acts as a shock, so that the man is pulled up with a jerk. He is aware that the worm has turned, as it were, that there conies a time in the life of a woman, particularly perhaps when the children are a little older, when she is not prepared to tolerate the old relationship in which in fact she was having far less than the parity of esteem to which she was entitled.

As this happens in the lower courts, it must happen in cases where people are given the advice that, on the facts which they are presenting, they can found for divorce on the grounds of cruelty. It would be wise if a woman has received such advice, or has temporarily left her husband for a short time as a result of his cruelty, that an opportunity should be given to see whether the husband has come to his senses, or time, when the situation occurs in reverse—only marginally—when they can see whether the marriage can go on, or know that there is no alternative to immediate divorce proceedings.

Clauses 3 and 4 to which I have been addressing myself would implement the Royal Commission's recommendations and intentions in this respect in so far as there would be a month's period of grace in cases of adultery or cruelty, and the parties could live together for a month and have this trial period to see whether the marriage could go on.

Similarly, the Royal Commission recommended a month's trial period in respect of desertion. At the moment, the position is that if a husband and wife are apart and, say, they have been apart for some six or twelve months, although the actual reality and isolation of separation has now been brought home to the parties, too often one or other is afraid to make another go of it because to try would mean that the period of desertion was broken. As the House will know, as the law now stands, in order to found a petition on the grounds of desertion it must be established that the desertion has been continuous and that it has been for three years.

I believe that the Royal Commission's recommendation that it should be possible for a petition to be founded in accordance with the views which it recommended in paragraph 149 would in no small measure help to deal with this unfortunate position. That paragraph says: Fourteen of us"— that is, 14 of the 19— consider that encouragement should in some way be given to husband and wife to come together for a short period in order to find out whether a lasting reconciliation is possible and that to do this some measure of relief must be provided for a spouse who with the best intentions has sought to resume married life but has again been disappointed. We are of the opinion, however, that only one opportunity should be given for husband and wife to come together and that the period should not last longer than one month, Accordingly, we recommend that, in addition to the present statutory ground of divorce for three years' continuous desertion provision should be made that two periods of desertion which together amount to at least three years, within a period of three years and one month immediately before the commencement of proceedings should constitute a ground of divorce. I seek to do this in Clause 1 (e), but I have expressed it very clumsily. I acknowledge that, but I hope that the House will appreciate the difficulties of an hon. Member attempting to draft a complicated Bill of this character and that it will forgive me and understand when I say that what I am attempting to do is to implement this recommendation, which would mean that there was no need for people who had been apart to fear that if they came together for a month they would necessarily thereby have jeopardised, perhaps for ever, their possibilities of having a divorce if in fact the attempted reconciliation failed.

I said that I would point out some of the disadvantages which might occur to me in some of these proposals, and there is something which the House will have to weigh, as did the Royal Commission. Clearly, when people come together for a month in this way there is undoubtedly a danger that conception can take place in the trial period and if, unfortunately, the attempt failed it would mean that there would be the tragedy of a child being born in those circumstances.

I accept that this is a problem, and the House may have already gathered that my preoccupation is very much with the children of the marriage, certainly more than with the partners. I realise that this is a challenging argument, but when one considers the whole weight of the argument, as the Royal Commission did, there can be no doubt that the balance of advantages are that there should be an opportunity for the attempted reconcilation.

May I mention one further point before I move on from the Clauses specifically designed to aid reconciliation? Clause 3 implements the unanimous recommendation of the Commission whose members all agreed that it was anomalous that husband and wife should not be on the same footing with regard to the presumption of condonation which is raised by acts of sexual intercourse between them. The Commission believes that sexual intercourse in itself should not be, as it now is for men, an irrebuttable presumption that an offence has been condoned. The unanimous recommendation of the Commission is clearly wise, and it marries in with the intention of Clause 4, and I do not expect that any hon. Member will object to its placing men on the same footing as women in respect of this matter of the presumption of condonation.

I turn now to Clause 5, which seeks to amend the law of collusion. A collusive agreement, one in which there has been a bargain between husband and wife as a result of which one of them undertakes to bring proceedings for divorce, is at present an absolute bar to a divorce. As far as I can gather, collusion has never been defined by Statute, and the ambiguities of the present law undoubtedly tend to perpetuate estrangements, and certainly to hinder rational discussion about the future of the children of a broken marriage. Rather than risk the suspicion that a collusive agreement has come into existence, many solicitors, very understandably, advise their quarrelling clients to have no contact whatsoever with each other, and under no circumstances to talk about future financial arrangements or domestic arrangements for the wife or the children.

I know it is sometimes said that there is no need for them to have as much apprehension as this, and that the law does not require them to give advice of this kind, but the law is complex, and solicitors err naturally on the side of caution. There can be no question but that sometimes when asked for advice by an estranged couple, the solicitor concerned advises one or other of the partners to break off all relations with the other side, and certainly not begin talking or discussing with the other the possibility of what is to happen if and when the divorce has taken place.

This is all wrong. When someone asks for advice, far from being told that it is dangerous or hazardous to talk about the future after the divorce, he Should be encouraged to talk about it. Many of us have experience of what happens in a magistrates' court. Very often, after the proceedings have commenced, after the court has heard the mutual recriminations on the part of both parties, a wise bench and understanding solicit ors realise that there comes a point in the proceedings when it is best to ask for an adjournment and to suggest that the panties see the probation officer. It is as though at a certain point there has been a catharsis. It is as they they have poured out pent-up repressed agressiveness which they have perhaps had for years, and at that point it is possible to bring them together. This, in my experience, has happened dozens of times, and those who are magistrates know that often it is possible to break off the proceedings at a certain point and call in the probation officer.

I think that when people begin to talk, or if they can begin to talk, not about fantasies, but about the realities of what will happen if and when a divorce takes place, and talk specifically about how their matrimonial home will be divided up, how their children will find that they can see their father on only one occasion a week, when the actual reality of the loneliness is brought home to them—because they are bound to consider the real consequences of what they are attempting to do in breaking up the marriage—at that point there are still possibilities of bringing the couple together, and it is most unfortunate that the law of collusion as it stands inhibits the possibility of a reconciliation.

There is a subsidiary reason why I think that the law of collusion should be amended in the way suggested in the Bill. Since the introduction of the legal aid scheme, judges, in my view quite rightly, complain that although when they arrive at an assize court they find that they have a long list of defended divorces to deal with at the last moment the defended cases collapse and are dealt with as undefended ones. This is because the solicitors in the case were not prepared to talk about future settlements. Because of the law of collusion, they were not prepared to discuss questions of custody and maintenance. Counsel, often with the approval of the judge, are able to talk about these matters, with the result that the grounds for instituting what would be a long defended divorce case at public expense are destroyed and the ease is heard as an undefended one. This is an unnecessary waste of public funds. The legal aid scheme is working extraordinarily well in most directions, and there is a duty on the legal profession to ensure that it is conducted with the maximum degree of economy, I think that this proposal would make some contribution in that respect.

Mr. Eric Fletcher (Islington, East)

Before my hon. Friend leaves this point about collusion, will he say whether in his opinion the same result would be achieved if collusion, instead of being, as now, an absolute bar to divorce, were made a discretionary bar?

Mr. Abse

This argument, which I know has been persuasively advanced, was considered by the Royal Commission. Although my prejudice is in favour of what my hon. Friend is suggesting, I have felt it safer, so that there shall be no objection to implementing what the Royal Commission has said, to deal with this in the way that I have done. However, if the House is generous enough to give the Bill a Second Reading, perhaps this can be considered in more detail in Committee.

Clause 5, in accordance with the spirit of the Royal Commission's recommendations, declares that certain matters can be talked about without being considered collusive, provided there is full disclosure to the court. If, as some who agree with the intention of the Clause have suggested, it may be interpreted to abolish collusion completely, I must say that that is not my intention, and I would not demur to any Committee alterations, because what I am seeking to do is to implement the recommendations of the Royal Commission.

I turn now to Clause 6, the object of which is to give privilege to marriage guidance councillors. I think that the House would wish to pay tribute to the Marriage Guidance Council, to the Catholic Marriage Advisory Council, and to the Family Discussion Bureau, all of whom do splendid work in attempting to bring about reconciliations. The bulk of this work is voluntary, and it says a great deal for those who participate in such work that at great sacrifice to themselves they have themselves trained and place themselves at the disposal of people who are in difficulties. These bodies receive grants from the Home Office, and they inform me that they are ready to maintain a register of persons who have satisfied their procedures of selection and training and are credited by them to serve as marriage guidance councillors. There is therefore no administrative difficulty with regard to this Clause.

The argument against granting privilege to any group is always that privilege is liable to prevent justice being done. I do not need, this week, to enumerate the arguments for and against this, because they are ringing in our ears. As I understand it, the search for justice has always been claimed to be the overriding consideration, but I think that the unanimous recommendation of the Royal Commission that facts learnt by a marriage guidance councillor in the course of conciliation work should be inadmissible in subsequent proceedings is a wise one, and one which recognises that there are circumstances other than those which, understandably, usually preoccupy the lawyers.

Paragraph 357 of the Report says: We have suggested means of strengthening and extending the work of marriage guidance agencies and of encouraging people to seek their help before taking steps to institute divorce proceedings. Such measures will, however, bear full fruit only if the public has confidence in the counselling agencies and in particular is satisfied that nothing disclosed in the course of discussions with a counsellor will subsequently be revealed without the client's consent. At present the court will treat as privileged communications made by husband or wife to a person acting as a conciliator such as a counsellor, probation officer, doctor or clergyman. This privilege, however, is vested in the spouses and the conciliator may be obliged to disclose confidences to the court if neither spouse claims privilege. From the point of view of the individual client it may be sufficient if he is assured that he can discuss matters in complete frankness with a marriage guidance counsellor without risk of disclosure. But we think that the interests of those engaged in counselling must also be considered, and unless there is cornplete freedom in discussion, the whole basis of conciliation may ultimately be destroyed. The great majority of counsellors are voluntary workers. Their task demands special qualities and therefore the number of persons suitable for this work is limited. If marriage guidance counsellors find themselves compelled to give evidence in court in matrimonial proceedings this fact may deter suitable persons from coming forward to offer their services for this work. One experience only by a voluntary worker of rigorous cross-examination in the witness box might well be enough to make him or her decide to abandon conciliation work. Further, the knowledge that if he is unsuccessful in his attempt at conciliation he may be called to give evidence in court is not likely to assist the counsellor in his task; and if there were to be frequent appearances in court of marriage guidance counsellors the public might well lose confidence in the marriage guidance movement, and those in difficulty would become increasingly hesitant to use their services. This not an academic issue. For years there have been frequent and troublesome threats of subpoenas seeking evidence from counsellors. Counsellors ought not to be subjected to such badgering. I have been told of a much-respected woman counsellor who was prepared, if necessary, to go to prison rather than break the obligation that she felt to he implicit in the interviews that she had given. Happily, the issue was not pressed, but such a situation should not arise. I know that in order to give assistance judges have shown sympathy and appear to be resorting to what are really legal fictions in order to protect counsellors, but circumstances can occur when the mantle of these doctrines or legal fictions is unlikely to protect a hapless counsellor.

The best opinion suggests that if a husband unilaterally went alone to a marriage counsellor such a counsellor could be subpoenaed, and although, by the rules of evidence, what he was told by the husband would not be evidence against the wife, it would clearly be evidence against the husband. When counsellors are dragged into the witness box they should not be placed in this position. Lawyers are jealous of their own privileges, but they must not allow any pedantry to prevent a little of their privilege from passing to a body of completely disinterested men and women who are doing voluntary work and seeking a part in reinforcing family life.

I now turn to the more controversial parts of the Bill, namely, the provisions in the second part of Clause 1 and Clause 2. The intention of these provisions is to permit a divorce to take place, subject to considerable safeguards and restrictions, on the ground that the parties have been apart for not less than seven years. These Clauses may well be criticised for going too far, but I know that some will contend that they do not go far enough.

But for the efforts of my hon. Friend the Member for Flint, East (Mrs. White), there would have been no Royal Commission. It was after the House had given a Second Reading to her Bill—which was without mast of the restrictions contained in this Bill—that the Royal Commission was appointed. I want to direct my remarks particularly to those who dislike the Clauses.

One day the House must choose. What was done once may be done again, unless some sensible action is taken to resolve what many feel to be an intolerable situation for thousands of men and women. Far more permissive legislation than I am suggesting has been passed in some of our Dominions—for instance, New Zealand, and, more recently, Australia. After the experience of what took place when a Second Reading was given to my hon. Friend's Bill it can surely be stated that ultimately, again, if something is not done upon the lines which I am commending to the House—and which is a minor recommendation of the Royal Commission—less restrictive legislation may come about. Although I realise that there must be differences of view, I hope that my compromise will be sufficient to meet the objections of sonic people and, perhaps, will not be so bad in the eyes of others that they regard it as not meeting at least some of the problems.

It may be asked why, in a Bill dealing specifically with the question of reconciliation, I am bringing in these two Clauses. My motivation is exactly the same I am wholly preoccupied with the children. Last year's Ministry of Health Report indicated that about a third of the illegitimate children born in this country annually—about 37,000—are born to cohabiting parents who are apparently living in permanent union but are unmarried. It is therefore reasonable to assume that a large proportion of cohabiting parents would get married if they were not under the disability of being refused a divorce from a previous partner.

From an examination of the statistics it appears likely that there are between 100,000 and 200,000 illegitimate children of such unions. These children are being brought up in an atmosphere of deceit, insecurity and guilt which, to a greater or lesser degree, is bound to pervade the household. It is wrong that the sins of parents should be visited upon the children. It is wrong that the stigma of illegitimacy should be attached to such children and, even worse, that they should be brought up in an atmosphere which may prevent their having the confidence to which they are entitled. Just as I am concerned mainly for the children in connection with the reconciliation procedure, so, equally, in respect of this issue, I feel passionately that we have no right, under the guise of any rules or laws of morality, to abandon hundreds and thousands of children.

In the last debate we had on this subject it was suggested that in what is being proposed we are breaking away from limiting grounds of divorce to something which is not regarded as a matrimonial offence. That battle was fought a generation ago. Insanity and the presumption of death are grounds for divorce. That battle is over. Again, it has been urged that the guilty party should in no circumstances be able to ask for relief. That battle is also over. It has long since been decided that an adulterous wife or husband can ask for the dissolution of the marriage, and our law has accepted the frailty of petitioners.

More persuasively, it has been urged that the innocent husband or wife should not be divorced against his or her will. To meet this, I have made it abundantly clear in Clause 2 that no bounder who married a girl could, after a while, abandon her without any justification and then, seven years later, and against his wife's wishes, come back to court and successfully ask for a divorce. That is not the position under the Bill. If the respondent wishes, he or she can resist, and then the onus is on the petitioner to show that the original separation was in part due to unreasonable conduct by the respondent.

What constitutes unreasonable conduct is for the courts to decide, but they have ample experience in judging conduct short of a matrimonial offence as, for example, the reasons which have been given and which would expose, for example, a spouse to a charge of desertion, such matters as false accusations, or the refusal of a wife to give full marital rights without reasonable excuse, with drunkenness or because of persistent friendship with another man short of adultery. These are the sort of reasons which could obviously be considered by the judge in each particular case on which he could decide whether there had been unreasonable conduct on the part of the objecting spouse who was resisting that a divorce should be given.

There is, indeed, a further hurdle for anyone seeking to win a divorce under this Bill on the ground that they have been separated for seven years. Of course, if a man were living with another woman and then came and asked for a divorce he would have to ask the court for discretion and the principles on which discretion are exercised are well laid down. They include regard for the interests of the community at large, judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a marriage which has utterly broken down.

Therefore, there is this further safeguard that no one could come lightly to the court if this Bill were passed and ask, if he were living with another woman, for a divorce without community's interests and the sanctity of marriage being carefully and scrupulously considered by the court. There is no question of the automatic granting of a divorce.

I think the House may consider that a Measure of this kind, even though it does not meet what I know many would like, is one which it may be wise in the interests of the community to pass. In addition, the House will note that I have sought to provide stringent financial provisions so that there should be no financial disabilities, and this, if necessary, could be strengthened in Committee.

I could read letters—I will not do so because I have detained the House long —but one of the features of more than 1,000 letters which I have received since I announced my intention of bringing in this Bill is that most of them are coming from men and women who are in their 60s. and 70s. This surprised me, but it is a fact. Quite clearly, there must be thousands of men and women who have been separated for twenty or thirty years. They write to me asking whether, before they make their last journey, they can regularise the relationship which they have had in a true partnership so that they may be able to legitimise the children of that union.

I suppose that those who are less religious, less burdened with guilt, care less than those who, in fact, are fundamentally moral men and women, many of whom, as I know, may have been casualties of the First World War. When I was reading the debate which took place when the hon. Member for Flint, East introduced her Bill, I observed that the Attorney-General, who then enjoyed the luxury of being a back bencher and could thus speak with an extravagance which I am certain he would not speak with now, implied in an arresting contribution that there were only two attitudes towards divorce—that of Rome and that of Reno, and that all in between, he implied, was muddle and confusion.

It would be inept for me in my position, as the House will understand, to discuss religious attitudes towards divorce. There are others better equipped and qualified to do this. I certainly welcomed the letter which the Bishop of Woolwich has written in The Times today. I cannot forbear, when I reread the words "muddle and confusion" of the Attorney-General, to mention that I have the privilege of belonging to an ancient people whose divorce laws were founded on the more permissive rules of Deuteronomy, and I think we have muddled though rather well for some 2,000 or 3,000 years. Whatever opponents of the minority to which I belong may say—and they can say much, I know—they acknowledge the strength and vigour which I hope will always be retained in the Jewish family life. It is because I have the good fortune to be blessed with a bounteous family life through my wife and two young children that I want to do this for those not so endowed. This Bill, whatever partial defects it may have, will, I think, help such people just a little, and I commend it to the House.

11.57 a.m.

Miss Joan Vickers (Plymouth, Devonport)

I wish to congratulate the hon. Member for Pontypool (Mr. Abse), first, on his winning a place in the Ballot, secondly, on his choice of the subject of his Bill, and, thirdly, on one of the most interesting and well-put-together speeches that I have ever heard in the House of Commons. I listened with the greatest interest for nearly an hour to the hon. Gentleman's speech.

The hon. Gentleman is obviously very sincere and has a full knowledge of the subject, and, therefore, I feel that there is very little that I can add to what he has said today.

I wish, also, to say how delighted I was that the hon. Gentleman mentioned the pioneer work done by the hon. Lady the Member for Flint, East (Mrs. White). I think that we all recognise that had it not been far the very brave stand which she took at that time, the hon. Member for Pontypool might not have had such a good hearing as he had today. At any rate, he could not have had all the facts on which to base his assumptions and draw up his Bill.

When I was reading the previous debate which took place on this subject—it was before I came to the House—I was interested to note how everyone who spoke in that debate professed to enjoy a very happy married life. Unfortunately, I have not had that experience, and I should like to make it quite clear, because I have received so many letters from people concerning this debate, and that which dealt with the attachment of earnings and about the hon. Member's present Bill, suggesting that if I have an interest in these subjects it is because I am a frustrated spinster.

I take an interest in the subject purely from my knowledge and experience of social work both in this country and overseas. I should not like anybody to think that I was doing anything out of any form of spite.

I support the Bill for two reasons: first, because of the conciliation proposals. I am very glad that that point has been made in the Bill, because I think that it is a fact which will help many decent people who do not descend to unscrupulous means to get a divorce. One often reads in the Press of people stating that they are to be divorced. This, I think, is most unfortunate. These people lay their plans and adopt these unscrupulous methods to get a divorce.

I was very glad to hear the hon. Member for Pontypool stress that we are today keen on the promotion of healthy, happy married life. He particularly wants to protect the interests of the children. I agree with him that when parents are separated, particularly when there is uncertainty about the whereabouts of one of them, it cannot lead to happiness and makes it extremely difficult for the children of such marriages in their conduct with people in the rest of the world. They find themselves in a very different feeling from others when having only one parent and having to admit that the other parent does not take an interest in their welfare.

The Western world decided a long time ago that we should go in for monogamous marriages which should last a lifetime. However, I think that we all agree that human beings are very frail, a married couple sometimes having two different personalities, and that as they grow older their personalities develop on different lines and, therefore, their marriages do not remain, after a number of years, in a happy state. It is these marriages which, fortunately, are still in the minority that concern us today.

War causes an increase in the number of divorces. It was stated in the Report of the Royal Commission that after the First World War 1,500 more petitions were filed each year and 20,000 more after the 1939–45 war. The possibility for increase in divorce is, I think, accentuated by the long periods during which people have to be separated from each other and during which time their incompatibility may become apparent. Were there some kind of legislation as is suggested in this Bill, many marriages might be saved and people brought together again.

I am glad that the hon. Member made the point about legal aid. It is not often realised that three-quarters of the money subscribed by the taxpayer for the purpose of providing legal aid is spent on matrimonial and domestic litigation. I am sure that this was not the intention when the Act was passed. It was intended that legal aid should help people to obtain compensation in the event, for example, of a husband being involved in an accident, and so on. Some social workers and probation officers are of the opinion that the obtaining of a divorce has been made easier by reason of the help which people can obtain in the form of legal aid.

I do not desire to appear rude to the hon. Member for Pontypool, or to his profession, but, after all, it is not the duty of solicitors to bring about a reconciliation between couples. They have their living to earn, and, if they can obtain legal aid to assist their clients, very often they may adopt that course instead of considering methods of reconciliation.

Mr. Fletcher

I do not think that that remark ought to ge unchallenged. Most solicitors, when asked to advise on matrimonial matters, regard it as part of their social duty to see whether a reconciliation may be brought about.

Miss Vickers

I accept what the hon. Gentleman says, and I have said already that I have no intention of being rude to the hon. Member for Pontypool, or to solicitors generally. But I think that there is some basis for what I said—and it may apply to some members of his profession—that a tremendous amount of money which is provided for legal aid is spent on dealing with domestic matters.

I am of opinion that the Clause relating to reconciliation will prove helpful because so many people do not understand that should they write a letter to their married partner, or spend a night together, their chances of obtaining a divorce are delayed for another three years. There are many people who do not possess much legal knowledge and this makes for many complications. A person may, perhaps, encounter a marriage partner from whom they have been separated and invite him or her into the house, without any thought that this might prejudice their changes of obtaining a divorce in the future. On the other hand, they will be able to go back for a period, without feeling trapped, and may become reconciled.

The hon. Member for Pontypool referred to the number of divorces. I gather that 19 out of 20 are undefended. This would appear to show that such divorces are more or less by consent and I think we must face that. The Mothers' Union and other such organisations are concerned about the question of couples who have been parted for seven years being able to obtain a divorce too easily.

As I understand, any woman who does not wish to be divorced on religious or other grounds, and who has not done anything wrong, cannot be divorced against her will. If I am correct in that understanding I hope that the matter will be made clear during the debate. I suggest that the Bill is designed to help in hard cases and not to lead to any increase in the number of divorces. In fact, were the reconciliation Clause accepted, it might lead to more people coming together again.

Mention was made by the hon. Member of an Act passed in Australia in 1959. As he probably knows, the Commission considering the status of women is looking into the legal side of divorce, having already examined the legal side of marriage, including the age at which people may marry and consent to marry. It is understood that the Australian law works extremely well. Australian people are rather conservative about this type of legislation, so I feel that we may be reassured by the fact that there appear to have been no adverse effects following its introduction.

I should like to mention two examples of the type of people whom I think the provisions in the Bill might help. I wish to refer, first, to a marriage which was broken twenty-two years ago, in 1939. In 1941, the husband and wife separated by mutual agreement and there was a deed of separation, and the couple have never met since. The husband wanted a reconciliation, but that was not agreed, and now he wishes to obtain a divorce in order to marry again. As neither of the parties has committed any offence the husband is unable to obtain a divorce. I feel that his is the kind of case which legislation, as envisaged in the provisions of the Bill, might assist.

A second type of case which at present it is difficult to help is instanced by the circumstances of a Service man with whose case I am familiar. He has lived with a woman for fourteen years and has five children by her. He cannot claim, in peace-time—though he could in war time—any family allotment for his "wife" and his children. Until recently their circumstances were not too difficult because the woman was able to work, but unfortunately, owing to illness, she will be unable to work in the future. The provisions in the Bill, should they become law, might enable this woman to marry the man and legitimise her children and bring them up in the way in which she would wish.

I consider that the provisions of Clause 2 (3) are fair when one considers the Act relating to the attachment of earnings. I appreciate that there are still thousands of wives who do not receive any money from their husbands, although the earnings of the husband may have been attached, because the husband has completely disappeared.

In Clause 3 the question of the use of the word "husband" arises and I should have preferred that the word "spouse" was used. The intention, I believe, is to put a man on the same footing as his wife. But I do not know of any legislation where this status of the wife is indicated. I wonder whether the hon. Member for Pontypool would consider this point. I think that the footing of a wife is assumed. But I do not know of any legislation where it is actually laid down. Perhaps the matter might be discussed during the Committee stage proceedings, if the Bill be given a Second Reading.

I appreciate the hon. Member's difficulty in relation to the provisions in Clause 6. What has happened recently regarding an important case which has been before the courts might affect the attitude to the privilege of marriage counsellors. But I should like to support the hon. Gentleman in his endeavour to ensure that such counsellors shall be privileged. Their work would be made very difficult if people who intended to consult them realised that what they told a counsellor might not be in the strictest confidence. The intention of marriage counsellors is to help with a reconciliation and must be confidential. I suggest that the proposed provisions in Clause 6 are necessary.

I have pleasure in supporting the Bill. I hope that it receives a Second Reading and becomes law and that in the future we may become less hypocritical about matrimonial difficulties.

12.10 p.m.

Mrs. Eirene White (Flint, East)

I congratulate my hon. Friend the Member for Pontypool (Mr. Abse) very much indeed on having brought in what I think I might fairly call the first major Bill stemming directly from the recommendations of the Royal Commission on Marriage and Divorce.

In the years since that Report was published we have had one or two minor enactments dealing with matrimonial affairs, There was a substantial Measure initiated by the hon. Lady the Member for Plymouth, Devonport (Miss Vickers), and subsequently taken over by the Government, dealing with the finances of broken homes and attachment of wages for maintenance. This, however, is the first time that we have had before the House a Measure dealing with some of the more fundamental matters with which the Royal Commission was concerned. I am, naturally, delighted that we should at long last have someone in this House who is both fortunate in the Ballot and prepared to take up a matter of this sort.

My hon. Friend was right in saying that the pace at which we proceed in these matters in this country is astonishingly slow. Before the Royal Commission there had been discussion by the Committee presided over by Lord Denning of many of the matters included in this Bill. A great deal of the reconciliation matters dealt with in the Bill was discussed years before the Commission met, in the Denning Report published in 1947. So we cannot say that people have not had time to think about these matters.

I wish to support the proposals made by my hon. Friend in regard to conciliation. It is true that the Denning Committee came to the conclusion in one or two respects that enactment was not required and that the law was adequate as it stood, although there were frequent popular misunderstandings of what the law might be. It is much better that the law should not only be correct and accurate, but that it should be seen to be correct and adequate. Therefore, I commend the proposals in the Bill on several counts.

One is the matter of collusion, or so-called collusion. It is perfectly clear that collusion in any corrupt sense should not he countenanced by anyone, but it is useful to put on the record that there are various discussions between the parties which are not collusive, which are not corrupt and are not intended to defeat the aims of justice. Those, as my hon. Friend said, should be positively encouraged and not discouraged.

One of the most cogently argued passages in my hon. Friend's very eloquent speech was precisely when he said that if the parties were made to face the realities of what the position might be should the marriage be dissolved that in itself might encourage reconciliation and discourage an emotional, romantic approach to the marriage and encourage people to go further towards reconciliation than otherwise they might have gone. Although it was said that enactment was not required, it would be very useful and in the interests of reconciliation to have something as definite as is provided in Clause 5.

It has also been said that the point about formation of marriage guidance councils is not necessary because the counsellors' position is sufficiently safeguarded. It was made clear by evidence given by the National Marriage Guidance Council to the Royal Commission on Marriage and Divorce that the Council itself felt further protection was required and, in particular, that it should be made clear to the general public what the position of its counsellors is. They should not be put into a position in which they could be called upon to give evidence in court which would have the effect of discouraging people, particularly Catholics, to apply to the Council for services which might be of the greatest possible use.

The Australian legislation was passed in 1959. That was not at the instance of a private Member who had to wait for luck in the Ballot, but of the Australian Attorney-General himself, with the full support of the Leader of the Opposition—a much happier state of affairs than is common in this House. This privilege, I understand, has been accorded to accredited marriage guidance counsellors without any disastrous effects on the course of justice.

Then there is the recommendation that parties should be able to come together without jeopardising the possibility of a later petition, or very much delaying it, to see whether they can make a go of marriage and have another try without prejudicing their position. This was discussed years ago by the Denning Committee. Although it pointed out that it was not within its direct terms of reference to make a recommendation on it, the Committee gave the broadest possible hint that legislation was needed. That was supported by the Royal Commission and it is embodied in this Bill.

One can argue whether a month is or is not the right period. Alternative suggestions have been made. These were weighed by the Royal Commission which came down in favour of one period only so that there could not be a sort of cat-and mouse game between the parties. The Commission thought that the period should be brief and that within the period of a month the parties should be able to decide, having been brought right up to the point, whether or not they were prepared to go on. This seems a most valuable reform of the law which has been discussed for many years and on which I think, there should be little disagreement.

When my hon. Friend mentioned that he was proposing to bring in this Bill with reference to reconciliation, I wondered whether he might perhaps have gone even further and provided, as in the Australian law, for reconciliation action to take place in the High Court rather similar in its intention to the kind of action taken in the magistrates' court. Under Australian law, I understand, if it seems to the judge possible that there may be reconcilation even after proceedings have commenced, he can adjourn the proceedings.

By the consent of the parties he himself can discuss this matter with them in chambers, or refer them to a marriage guidance council nominated by the court, which, of course, could include a clergyman or similar person. If after fourteen days, at the request of either body, reconciliation seems impossible, the proceedings are resumed, but, if the judge has himself heard the parties in chambers without success, normally he would not continue with the case. It would have to pass to another judge.

If this reconciliation attempt were not successful, anything that was said during those reconciliation proceedings, no matter on what basis, would not thereafter be admitted in evidence in the subsequent proceedings. I do not know whether my hon. Friend considered this additional provision, or whether, having considered it, he decided that he did not want to overload the Bill or had other reasons for thinking it inadvisable, or whether he thinks that the provisions made in the courts are adequate. I mention this only because if the Bill succeeds today, as I hope it will, we may consider this point in Committee.

With or without that extra provision, it seems that this Bill as it stands offers a very substantial increase in prospects for reconciliation between estranged parties. It is true that it is easier to obtain reconciliation before proceedings have begun. Therefore, I very warmly support the work which is done by the Marriage Guidance Council and other bodies in trying to help couples who are in difficulty before matters ever reach the point of court proceedings. Even when they have done so, one does not necessarily have to give up all hope. One should certainly, to my mind, support a Bill which endeavours to help couples whose marriage is in some danger of breaking down.

I turn now to a much more controversial subject. My hon. Friend has included provision for one version of dissolution of marriage following seven years of living apart. I do not want to say much about it beyond pointing out that in the Bill which I introduced many years ago I had the absolute minimum of conditions or safeguards, partly because I did not wish to make it too complicated and knew very well that if it went into Committee there would be ample opportunity to amend it and add safeguards. I was perfectly aware that some safeguards would be needed. My hon. Friend has very clearly pointed out the very strong safeguards which are in his Bill.

Again, I have made a comparison with the Australian Act. I would not wish to be dogmatic about whether the Australian form of safeguard is more effective or whether my hon. Friend's safeguards are effective enough. Section 37 of the Australian Act provides that where parties have separated and lived apart—for five years only in this case— and there is a petition for dissolution of the marriage and there is no reasonable likelihood of cohabitation being resumed, on hearing such a petition the court, if satisfied that by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason that it would in the particular circumstances of the case be harsh and oppressive to the respondent or contrary to the public interest to grant a decree on that ground, shall refuse to make the decree sought.

In other words, in the Australian Act the widest possible discretion is given to the court, because it has to take into account the conduct of the petitioner, whether dissolution may be harsh or oppressive to the respondent and also what appears to be the public interest. As I understand, the conditions in the Australian Act are wider and more general than those in this Bill.

I should be much interested in Committee to hear from those who are experienced in the administration of the law whether the suggestion made by my hon. Friend offers the best safeguard, or whether a more general one on the lines of the Australian legislation might be preferable. I think that all of us would agree that some safeguard is necessary. Nobody wants to encourage some completely irresponsible person in abandoning a marriage partner, possibly after many years of family life, and leaving that partner with no redress, and having the whole thing completely automatic. That would be intolerable. But equally intolerable is the other situation in which someone is tied for life by an unreasonable or vindictive spouse and where a possible happy and fruitful marriage of one of the partners is prevented for reasons which at the present time are simply not discussable in court at all.

Similarly, my view has always been that in suitable circumstances, with proper safeguards, when one can satisfy the court about the conditions and the improbability of cohabitation being resumed, it should be possible to obtain a dissolution of marriage without a matrimonial offence necessarily having to be committed. It is repugnant to civilised thought that it should be essential to commit a matrimonial offence in order to obtain dissolution of a marriage which has broken down. The whole basis of our law in this respect is founded upon the doctrine of the matrimonial offence. Insanity is the only major exception. I find this repugnant. There should be, with all the safeguards that any reasonable person could think of, the possibility of dissolution without an offence necessarily having been committed.

I repeat that I shall be very interested in any discussion which may take place about the best form of safeguard which can be devised so that there will not be either undue hardship to individuals or a situation in which one may feel that the public interest is not served.

My hon. Friend has made a very courageous and sensible attempt at this. He has taken a minority recommendation of the Royal Commission. The Commission sat before the Australian enactment took place. Whichever way we go, I hope very much that the House will now face this situation and see whether we cannot sensibly, quietly and intelligently meet a position which many people have for many years felt should be met.

I congratulate my hon. Friend again. I hope very much that on this occasion the House will give the Bill a Second Reading. If any hon. Members feel, as they may well do, that in certain particulars it needs improvement or alteration, possibly even drastic alteration, I hope that they will nevertheless let the Bill go to Committee.

The Bill which I introduced in, as I said, deliberately over-simplified form years ago was never discussed in Committee, The circumstance was that the Attorney-General of the day said that it was a complex subject and it was an opportunity to have it more fully discussed by a Royal Commission. In those circumstances, it would have been an impertinence to have taken a small Private Member's Bill into Committee for discussion.

Consequently, the House has not discussed in any detail this kind of problem since Sir Alan Herbert's Bill. It seems to me that one owes it not only to the public, but also to the members of the Royal Commission, who spent many years on this matter, that recommendations from their Report should at least merit proper discussion in Committee by the House of Commons.

12.19 p.m.

Mr. Nicholas Ridley (Cirencester and Tewkesbury)

I am very pleased to follow the hon. Lady the Member for Flint, East (Mrs. White), who has so much work behind her in this important subject. I want to congratulate the hon. Member for Pontypool (Mr. Abse), who has introduced the Bill. I say this very sincerely indeed. I congratulate him not only on his courage and great knowledge, but also on his most enlightening speech and the very clear way in which he explained the Bill.

I wish to detain the House for only a short time. I differ from the hon. Member for Pontypool in so many respects that he may find brief support from me a help to him. I am not a lawyer, but an ordinary businessman, an engineer. I am not a Socialist, but a Conservative. I am not a Welsh Member, but an English Member. Therefore, it may help to show how bipartisan support is for the hon. Gentleman's proposals if I say a few words.

I repeat that I am not an expert on this subject. I am simply an observer of the human scene. I have come to the conclusion that we must continually be revising our laws, even on such intimate matters as divorce and marriage. The old idea of the indissolubility of marriage, which has for centuries existed in our civilisation, was not only rigorously enforced by law, but also by the Church, the two combining to ensure that marriage was an enduring partnership for life.

I believe that the reasons for this were primarily economic, in the sense that there was no Welfare State which could look after the children if they became orphans, or if they were in any way neglected by their parents, or which could look after old people or widows who were separated in the latter years of their lives. There were no economic provisions among the poor for those who left the family. In those days social conditions were completely different. People lived in isolated rural districts, with no communications. Travelling was impossible. There was no chance, perhaps, to eke out in any way the loneliness which divorce might have resulted in. This is what impresses me most about this whole subject, that perhaps the worse evil of all is the loneliness which can be caused by a broken marriage.

It is also true that the rich and the ennobled were exempted from many of the more ruthless provisions of the laws of marriage. Although this has fluctuated through history, it is not untrue to say that money was always able to buy one a better position and an easier means of breaking one's marriage. I am certain, as the hon. Member for Pontypool said, that the Bill does not go as far as it would need to go to put Henry VIII within the law for what he did.

These reasons do not now apply so strongly. Many aspects of the Welfare State and of social work being carried out by many admirable organisations in this country mean that there is much more chance to help those who are the victims of broken marriages. Further, the very mobility of the population and the proximity in which they live to each other make it much easier to find out what has gone wrong and give people another chance to start in life by remarrying. Therefore, I am in favour of altering the law as circumstances change to make it easier for those who are hurt by the law at present.

I take it that the main object of the Bill is the promotion of happier marriages. This is how I have read it. The recommendations which the hon. Gentleman has included seem to me to make for more happy marriages rather than for less. As such, we are wrong to talk about them in terms of divorce rather than in terms of remarriage in order to build a successful relationship where the first one has been a failure. We are right to take the pragmatic approach to the whole problem, that we should alter our law slowly and only after much experience and a consensus of opinion has been arrived at that the time and method of alteration is right at present.

The Act which Sir Alan Herbert introduced in 1937 has been quoted several times already. This advanced the law by a considerable amount in relation to desertion, cruelty and madness. A long time has passed since then. The 1950 Act was merely a consolidating Act which brought in hardly any new provisions of a major nature.

The Bill contains recommendations which are based not only on the Report of the Royal Commission, but on the experience of solicitors, marriage guidance counsellors and people who are active in this field. I am not one such, but I am impressed by the experience which such people have received that these are the lines on which we should proceed at this time.

I do not want to say much about the Bill in detail. The major points running through the Bill are, first, that desertion for three years is not interrupted by a period of cohabitation, and, secondly, that one month's grace, so to speak, can be given to enable couples who might be about to part to make up their minds. These two reconciliation points must be right. I would certainly regard these Clauses as designed to save marriages rather than to aid divorce. They are absolutely necessary at this time.

I am sure that many people would not try to see their separated spouse when they were trying to achieve a period of three years desertion for fear that, if they succeeded in seeing their spouse, this would later condemn the separation bid to failure. This is very wrong indeed. The obvious and human need to have another try to patch up the marriage should not be denied as it is at present.

The only major point on which I want to comment is that contained in Clauses 1 and 2, which the hon. Member for Pontypool himself admitted was by far the most contentious point and the one which most advances the law. The hon. Lady the Member for Flint, East was of the opinion that Clause 2 does not go far enough. It is a Clause which will give the power to obtain a divorce after a seven-year separation if the separation was in part due to unreasonable conduct of the respondent. This is the crux of the matter, as I understand it. This is the part of the Clause which contains both the safeguard and at the same time the chance to interrupt many separations which have lasted a long time.

It all hangs on the meaning of "unreasonable", which is about the most nebulous and meaningless word in the English language. We can say that something is reasonable or unreasonable and interpret in whatever way we like what that means. I take it that the hon. Member for Pontypool intends to leave to the courts a very large amount of the decision in each individual case, depending on how the members of the court feel or how the judge feels about the reasonableness or unreasonableness of the respondent's conduct.

I am not able to comment very much on this, but I want to ask some questions. First, I wonder whether this means that a genuine unsuitability of temperament could be called unreasonable. Many marriages lead to separations and finally end in failure because the two persons' temperaments are utterly different and they cannot get on. Would this be considered unreasonable conduct? I am sure that a number of hon. Members have received letters dealing with the sort of case where there has not been a matrimonial offence.

Mr. Abse

I see the lines along which the hon. Member's mind is working and I would be less than frank if I did not tell him that I would regard it as extraordinary if any judicial interpretation of the word "unreasonable" did not include cases of the kind he has mentioned. I am sure that it would.

Mr. Ridley

That was the feeling I had, but it is interesting to see how vague the hon. Member has left this part of the Bill. For instance, what about the case where a divorce is not granted despite a matrimonial offence by the spouse. Would that be regarded as unreasonable?

I realise that the Bill relates only to unreasonable conduct of the party before the separation, but for the sort of case I have in mind it might be possible to extend that to unreasonable behaviour after the separation has taken place. I hope that the Minister, when replying, will give us some information about the Clause, how far it goes and what its exact meaning would be.

I have received a few letters from various women's organisations urging me to oppose the Bill. I have had an equal number of letters—three from each side, so to speak—from individual personal cases who have said that the Bill, if it achieves the objects which it sets out to achieve and if it reaches the Statute Book, would completely transform their lives. Not knowing a great deal about the subject and judging the matter impartially, the letters I have received from personal cases carry much more weight with me than those I have received from women's organisations which may have thousands of official members, but which represent no real emotional and personal problems.

I hope that the Government, who, I understand, are not particularly opposed to the Bill, will go further than be negative in their attitude because, although there may be drafting errors and certain ambiguities, it has a great deal of merit. I hope that they will actively help in drafting and qualifying these ambiguities so that we can make progress in this matter. As has been said, there are too few opportunities for discussing this topic in the House. We now have a great chance to improve the Law and help the personal lives of many people, and I again congratulate the hon. Member for Pontypool on taking this opportunity of raising this matter, so enabling us to make progress.

12.46 p.m.

Mr. David Weitzman (Stoke Newington and Hackney, North)

I, too, would like to congratulate my hon. Friend the Member for Pontypool (Mr. Abse), first, on his luck in the Ballot, and, secondly, for the way that he has used that luck He made an excellent speech and presented his case in fine fashion.

I well remember taking part in the debate in 1951 on the Second Reading of a Bill introduced by my hon. Friend the Member for Flint, East (Mrs. White). As she said, that Bill sought to add a simple ground for divorce; that of separation for a period of at least seven years coupled with the fact that there was no reasonable prospect of a reconciliation and that financial provisions were made to protect the position of the wife.

I remember the then Attorney-General promising the appointment of a Royal Commission. We should remember, when discussing the Bill before us, that it was largely due to the efforts of my hon. Friend the Member for Flint, East, that we got a Royal Commission, which sat for a number or years, and which discussed this matter in detail and made a number of important recommendations.

Not many of those recommendations have been implemented during the years and we now have an opportunity to put into effect what I consider are some of the more important ones, though in some cases they are minority recommendations. There is a great deal in the point made by my hon. Friend the Member for Flint, East, that we have not had an opportunity in the House to discuss what is, perhaps, the most important social problem of our time. I should mention that my hon. Friend withdrew her Bill on the promise of the Attorney-General to appoint that Royal Commission, so we had no Committee stage or further discussion oil that Bill. Now is the time, therefore, for us to discuss the subject in much greater detail.

I am particularly concerned with the recommendations set out in Clause 2. I regard that as probably the most important part of the Bill. There is, first, the recommendation made by nine members of the Royal Commission to the effect that where the parties had lived separately for a period of seven years, and there was no objection by the other spouse, there should be a ground for divorce for that reason. The proviso sets out the recommendation made by four of the members. In other words, it tried to meet objections put forward by the innocent spouse by inserting the words my hon. Friend has included in regard to unreasonable conduct in part bringing about the separation.

I wish to deal with the reasoning behind the Clause. Our divorce law today, apart from special exceptions such as, for instance, insanity, to which my hon. Friend the Member for Pontypool referred, is based on the doctrine of the matrimonial offence. In other words, when one commits such an offence one breaks a fundamental undertaking entered into at the time of marriage and, therefore, provides a ground for divorce. Thus a single act of adultery, whatever may be the degree of the repentance thereafter by the offending party, provides a ground for divorce.

In the 1951 debate the Attorney-General reminded the House that the King's Proctor, in giving evidence before the Royal Commission in 1912, had said that 75 per cent. of the divorces obtained in this country were, in fact, obtained by consent; that is, they had been agreed. The Attorney-General added in that speech that from his personal experience he was not impressed by any real principle in the administration of our divorce laws. That may be far too sweeping an observation, but there is no doubt that many divorce cases result from the consent of the parties.

I adopt the view that the real ground justifying the dissolution of a marriage ought to be that the marriage has irretrievably broken down. Marriage should be entered on as a union for life, not to be lightly put an end to, and in the great majority of cases that will remain the understanding and intention of the parties. But one must not shut one's eyes to the fact that there are many marriages—we all know of them—which have become very unhappy affairs; whether they he marriages between the very young, between misfits, or forced marriages—for example, a man making an "honest" woman of the other party because there is a child on the way.

One has to ask oneself, quite sincerely and honestly; is it right that parties shall be tied together in unhappiness unless one commits a matrimonial offence and the other spouse is ready to bring proceedings? Are not those circumstances an encouragement to then) to pretend to commit an offence in order to obtain release?

Moreover, there are many people—and in 1951 the figures were given as being between 100,000 and 200,000— living in sin because they cannot obtain such release. Many of them would, if permitted, marry, and found happy homes. Many would like to bring up families, but are deterred because the children would be illegitimate. Many secretly nurse the shame that they have children who are illegitimate, and those children bear a slur through no fault of their own—as my hon. Friend said, a visitation of the sins of the fathers upon the children.

If parties have been separated for a period of at least seven years that is surely cogent evidence that the marriage has irretrievably broken down and, if both parties consent, recognising that position, what possible objection can there be to a dissolution of the marriage?

The 1951 Bill was based on a separation of seven years and, unlike this Bill, the consent of both spouses was not required. The objection then made quite forcibly was that—forgetting the case of insanity—that meant the principle of what was called unilateral compulsion; that the guilty party might, despite the objection of the innocent party, obtain a decree. My own view is that after a period of separation for at least seven years the marriage is clearly a dead marriage, and I think that either party should be able to obtain a divorce.

There must be many cases where the marriage is at an end in that way, but where the other spouse, because of some scruple, perhaps even for spite, perhaps in a desire to punish the other party, will not bring proceedings and will not consent to a divorce. I recognise the view put forward by the Royal Commission, and adopted by my hon. Friend in the proviso to Clause 2 (2) to deal with that objection. It puts the onus upon the petitioner to satisfy the court that the separation was in part due to unreasonable conduct on the part of the respondent.

The hon. Member for Cirencester and Tewkesbury (Mr. Ridley) said something about the meaning of the words "unreasonable conduct". There might be difficulty in construing them, but it has long been the task of judges to deal with words of that kind. After all, the judges are dealing with the actual cases, they have the evidence before them, the circumstances are there, and it seems to be a good idea to give an experienced judge the opportunity of judging, in the particular circumstances of each case, what is meant by "unreasonable conduct".

On the other hand, I am, quite frankly, attracted by what was said by my hon. Friend the Member for Flint, East about the position in Australia. If, as I hope, this Bill is sent to a Standing Committee, there might be detailed discussion as to whether we might not adopt the Australian view, and consider whether the provisions at present in the Bill ought not to be extended so that the courts might have regard to the conduct of the parties, so to speak, during the period of separation.

This is a matter of such great importance to both sides that it would be as well to take all these factors into consideration, and the best solution might be to give a judge discretion to consider the position in such a way and to decide whether, in the interests of the parties, it was right that the marriage union should be declared at an end. We might give the court the right to do that.

I believe that the principle set out in Clause 2 would enable the court to deal with many cases upon the true facts, and provide a remedy that would give the opportunity of a happy home life to many who are now denied it. It is sometimes said that by doing this we would in some way be interfering with the institution of marriage, but I believe that marriage as an institution would be enhanced rather than detracted from. The sanctity of marriage would be enhanced, because we would bring an atmosphere of realism into the marriage relationship. I therefore very strongly support Clause 2.

I remind the House that even if Clause 2 were taken out, the Bill would yet make other vital reforms that need attention. There is, for instance, the provision with regard to desertion. I emphasise what my hon. Friend has said about the break in the period of desertion. Very often, this period is very artificial. In a divorce case based on the ground of desertion, the parties must at present be able to show that the period of desertion was continuous for three years. A period of two years, eleven months and so many days will not do—it must be three years of continuous desertion.

As my hon. Friend said, how often do we get cases in the magistrates' court where the parties, having told the court all about their difficulties, go to the probation officer and discuss the matter, and where there is a real chance of their going back together? After all, if one recognises the importance of the institution of marriage, and it is not one which should be lightly broken up, is it not right that every effort should be made to give the parties the opportunity of coming together again?

The Royal Commission recommended this period of one month and my hon. Friend has adopted it in this Bill. Surely it is right to say that the parties should have a limited period such as one month in which they can come together and try to solve their difficulties. The fact that, despite every effort, they have failed to solve their difficulties should not be held against them so that when a petition is subsequently brought they are debarred by the fact that they have lived together in this way for one month.

I should like to say something about Clause 3 dealing with the question of condonation. The hon. Lady the Member for Plymouth, Devonport (Miss Vickers) made a very good suggestion, that instead of the word "husband" we might use the word "spouse", because we are seeking to put husband and wife upon the same footing. It seems absurd that the fact that a husband has had sexual intercourse, knowing of his wife's matrimonial offence, should put against him the irrebuttable presumption that he has condoned the offence, whereas in the case of the wife the presumption is rebuttable. I suppose that it is based upon the idea that if a husband has intercourse with his wife, knowing of a matrimonial offence, a child may result and that is something that may have to be guarded against. I agree fully with Clause 3, but I think that consideration might be given in Committee to the case in which, as a result of the husband having intercourse in this way, a child results, and whether it might be said that in such circumstances that the presumption should remain irrebuttable.

I now come to Clause 4, which gives relief from condonation in what is called a trial cohabitation period. Here again, much as one uses the argument in regard to Clause 1 in the case of a desertion, the argument would apply to this Clause. A petition is brought on the ground of adultery or cruelty, and if it is shown that after adultery or cruel conduct occurred, the parties—knowing of such conduct—have had sexual intercourse—possibly one act of sexual intercourse—the law says that the adultery or the cruelty has been condoned.

From the point of view of realism, one often gets some extraordinary situations, particularly in cases of cruelty. Cruelty may have gone on for many years. A wife may have borne the acts of cruelty —physical or mental acts—for many years and she may have done so because of the children, or because she has nowhere else to go, or to preserve the matrimonial home. It must be in the experience of many divorce practitioners that there are many cases of that kind. Yet because the wife remains behind, living with her husband and submitting to his sexual requests, there is condonation. The absurd situation arises that it is only where there has been further cruelty or of adultery—which has not been condoned—that the earlier acts are revived. There is no realism about it.

I know that there may be many cases in which one would say there is a good deal to be said for holding that there has been condonation. I know of many cases where one is satisfied that there is condonation and that a decree ought not to be given. But there are many cases where, if one looks at the facts, it is wrong to say that, because there is a period in which husband and wife have lived together, that should be held to be condonation so as to be a bar to proceedings.

The main point put forward by my hon. Friend the Member for Pontypool is not so much the absurdity that this is held to be condonation, but the fact that an opportunity should be given to the parties to try to live together. After all, if the parties have come to such a state that a petition is presented for divorce it may be that friends will speak to them. They may go to a probation officer, or to a marriage guidance counsellor and, after talking the matter over, they may want to try again; and for a limited period, surely, they ought to be allowed to see whether they can resolve their difficulties and save the marriage.

To hold that their action in doing so in an effort to save the marriage, by living together in such a way for a limited period, should be condonation so as to be an absolute bar against later proceedings is, in my view—in such circumstances—going too far. I think that Clause 4 effectively sets out the sort of limitation period that ought to be allowed.

Clause 5 deals with the important matter of collusion. My hon. Friend the Member for Pontypool was interrupted and asked whether he did not think it might be better if this were a matter of discretion. I think that there is a good deal in that suggestion. Even today there is a certain amount of discretion in these cases. When judges look at the facts they may say that they do not amount to collusion, and in that sense there is something in saying that it is discretionary. Nevertheless, collusion is a bar, and if a judge holds that there has been collusion there is an end of the matter.

In Committee, it might be a good idea to explore the passibility of dealing with the words in this Clause to see whether this matter could not be made discretionary, and going a little further than the provision goes at the moment. Nevertheless, whether we take it further or not, this provision is a good one. True enough, it might be said with regard to some of the provisions in Clause 5—particularly paragraphs (a) and (b) and, I think, more especially in the case of paragraph (a)—that an agreement of the kind mentioned in the Clause would not be collusive. But it is important that any doubt should be removed, and I think that it would be advisable to enact provisions of this kind which place on record what shall not be regarded as collusion.

My hon. Friend rightly said that this does not interfere with the idea that if there is collusion a judge can deal with the matter, but it does specify quite clearly the right of the parties to discuss these matters without barring further proceedings.

My hon. Friend touched upon what is, within the experience of divorce practitioners, a very important matter, that solicitors and counsel, in dealing with these cases, are very careful to see that their clients do not talk to the other side and do not discuss any matters in the case lest it might be held that there was some collusive arrangement. He referred to the absurdity which often arises when a case has gone on for a long time and has actually reached the door of the court. Outside the door of the court, there may be some discussion of various matters, and this will receive the approval of the judge and not raise any question about whether the proceedings ought to go on, or ought to be barred in any way. One has to wait all that time to have that sort of thing done when a discussion could well be had at a much earlier stage.

I agree, also, with the provision in Clause 6 (1). It is important that conversations held in this way and statements made by either of the parties to what is called a marriage counsellor should be excluded from any possibility of being put in evidence.

This is an excellent Bill. When it goes to Committee, as I hope it will, we shall have our first opportunity to discuss these matters in detail, perhaps adding to it or modifying certain of its provisions. This is one of the most important social problems of our day. I hope that the Bill will receive the support of hon. Members generally, that it will be examined and improved—I am sure that my hon. Friend will be ready to accept any Amendments to improve it—and that it will not be long before it finds its way to the Statute Book.

1.11 p.m.

Captain Walter Elliot (Carshalton)

I have listened to the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) with great interest. He has a profound knowledge of this subject, which I cannot pretend to have. I had not intended to take part in the debate until a day or two ago I received a letter from an old couple, who have been living together for forty-three years, who asked if their divorce question could be settled so that they could get married and end their days in peace. This recalled to my mind an occasion which I had forgotten. A few months ago, I was sitting with someone who had been living apart from the other party to the marriage for about twenty years and who could not get a divorce. When the picture of the other spouse appeared on the television, it was not recognised. I feel that we should be able to do something in these cases.

I have not read the record of past debates on this subject, and I have only just managed to glance at the Report of the Royal Commission. I doubted, therefore, that I could make a contribution to this debate, but those two cases to which I have just referred persuaded me to intervene.

I have not read the Report of the Royal Commission thoroughly, but I say frankly that I did not find it very helpful in enabling me to form an opinion on many points. There was so much difference of opinion in the Report itself. It rightly stressed the principle that divorce proceedings should be undertaken only in the last resort, but it also expressed the unanimous view of the Commission that the remedy against increasing divorce did not lie in making the divorce rules more difficult. This is very important, because there is so much prejudice when we consider the question of the divorce rules.

I shall confine myself very narrowly to the question which has been brought to my attention in considering the Bill, but I wish to say at the outset that I entirely agree with the importance which the hon. Member for Pontypool (Mr. Abse) attached to the new paragraph (e) which, by Clause 1, he wishes to add to Section 1 of the Matrimonial Causes Act, 1950. It seems to me that much of the purpose of his Bill is to effect reconciliation, and the new paragraph will help this.

The new paragraph (f) which the hon. Gentleman proposes under Clause 1 and the proviso to Clause 2 (2) deal with the particular problem I have in mind. What is the safeguard for the innocent party? I support my hon. Friend the Member for Cirencester and Tewkesbury (Mr. Ridley) in the doubts he raises about the definition of "unreasonable conduct." A man can be cruel and drive a woman to what may be considered unreasonable conduct, and perhaps vice-versa. I want to know exactly what is unreasonable conduct.

The hon. Member for Pontypool said that the courts could decide this question. But could they? Are there not difficulties in determining something which is extremely difficult to define? Are there not difficulties in deciding it on evidence which is seven years old? This is what worries me. I suppose that one should have in mind the possibility of bringing an innocent party before the court after seven years to face accusations which, even if untrue, might have serious effects. My main concern is for the definition of "unreasonable conduct" and the position of the judges in deciding on it, particularly after an interval of seven years.

My hon. Friend the Member for Plymouth, Devonport (Miss Vickers) said that, under the Bill, an innocent woman could not be divorced against her will. Speaking purely as a layman, considering the merits of the Bill and the paragraphs to which I have referred in particular, I am not sure about that, and I should be very glad to have the comments of my hon. and learned Friend the Solicitor-General on the question.

1.18 p.m.

Mr. John Parker (Dagenham)

I think that I am the only Member present who was a strong supporter of A. P. Herbert's Bill when he introduced it in the House. It had a very warm reception and was very strongly opposed. Those of us who supported the Bill had to organise ourselves with Whips in order to get it through the House. I hope that the present Bill will go through rather more easily. It is a very useful Measure, particularly in its provisions regarding reconciliation. However, I wish to voice a view which is, I think, widely held outside the House, that it is now time for a general review of our marriage laws in order to bring them up to date and make them accord with modern needs.

It will be remembered that before Palmerston's Divorce Act, 1857, divorce and matrimonial cases were, in the main, dealt with by the church courts. This historical background is responsible for the ecclesiastical hangover from which our present marriage law suffers. It is wrong—I agree with my hon. Friend the Member for Flint, East (Mrs. White)—that a matrimonial offence, so called, should be the main cause of dissolving a marriage at the present time. Outside the House—and I share this view—there is strong objection to the argument that there are guilty and innocent parties when a marriage breaks down. If a marriage breaks down, in my view that must be due to both parties being to some extent responsible, and I do not think that we should draw up laws on the assumption that one party is guilty and the other party is innocent. That approach means an unhealthy concentration on sexual misdemeanours, and in spite of A. P. Herbert's Act we still have the creation of cases of adultery as being the simplest way of getting a divorce. I view with distaste the whole business of the Queen's Proctor and that kind of thing.

I agree with my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) that when a marriage is entered upon it should be with the idea of being a partnership which lasts for life. To some extent—and I will come to the point later—it is rather too easy for people to get married at present. There ought to be some method to make them think a little more in certain cases before they get married.

But after a marriage has broken down, if after a fair trial one of the parties feels that it is no longer workable, there ought to be arrangements for ending that marriage and giving both the partners an opportunity to make a fresh start. I agree that it is very important that there should be adequate safeguards—here I agree with my hon. Friend the Member for Pontypool (Mr. Abse)—in respect of the children of the marriage, and, secondly, to see that the wife is adequately maintained if the marriage breaks down.

I realise that a number of the Churches strongly object to the views which I have put forward. I remind hon. Members, however, that the society in which we live today is, in the main, a secular society. In this country there are people of all religions and none, and I do not think that the views of a Church, either Rome or Canterbury, should dictate what the law should be on this matter to those of us who do not happen to agree with those views. I think that it is right and proper that the Churches should lay down rules for their own members which they expect them to observe, and if their members do not observe these rules they have every right to punish them by refusing them access to Communion or expelling them from the Church, but I do not think they have any right to try to force their views upon other people who do not share them. I therefore do not agree with the hon. Lady the Member for Plymouth, Devon-port (Miss Vickers), who took the view that if either partner to the marriage objects to the marriage being ended then the other partner should have no right to have it ended. Irrespective of religious views, I do not think that anyone has a right of veto and so to bind another person who has different views just because it happens to offend one's own views about marriage.

It seems to me that in this matter we have to consider the rights of individuals, at the same time safeguarding, as I have said, the children of the marriage and, if necessary, the financial position of the other partner. I feel that when a marriage has broken down it is right and proper that people should have an opportunity of making a second attempt at a happy marriage, and the law should be so arranged for that purpose.

At present there are an enormous number of de facto marriages in existence where the partners cannot marry because, under the present law, one or both of them is not free to marry. As my hon. Friend said, there are an enormous number of illegimitate children; he mentioned that 37,000 yearly are born to couples living together in these circumstances. The fact remains that these children are illegitimate. Other figures show that there are at least 3 million people in this country who were born illegitimate. About a million of them are either adopted or legitimated by the subsequent marriage of their parents, but that still leaves about 2 million persons who are illegitimate.

Of these, about 800,000, or about 40 per cent., are living or lived in the past when they were children with their own parents. This is a large body of children living with parents who cannot legally marry. They are the children of de facto marriages, and they ought to be taken into consideration when we are considering the revision of our marriage laws. This large body of children has as much right to be considered as have the children of marriages which have broken down, and this is therefore a vital fact which must be remembered when we are considering the whole matter. If we so altered our divorce laws that the partners in these de facto marriages were free to marry legally, then most of these children would be legitimated under the Legitimacy Act, 1959.

There is one point on which I quarrel with the Bill. I feel that seven years separation before one can terminate a marriage is much too long. Life is short, and seven years is a very large part of one's life. I prefer the Australian suggestion of five years as being a much more reasonable period. If a marriage has broken down and the parties have been separated for five years, surely it is time enough that the marriage ought to be terminated.

There is another point which I wish to take up. I said earlier that in many cases it was rather too easy to marry, and I think that we should look at the very serious return to child marriage which is taking place at present. I fully agree with my hon. Friend that it is a good thing for adults that marriage should be more popular and more indulged in than in the past, but I do not agree that it is a good thing that we should have the big increase which has recently taken place in the marriages of children between the ages of 16 and 21. This position needs looking at, particularly in view of the very high number of divorces among people who marry at that age, especially among girls who tend to marry younger than boys. There is a very high rate of divorce among these young people, and I think that it is a part of the job of the community, and particularly of the Churches, to teach young people that they should look around and select carefully before they decide to marry. I think it is reasonable that parents should encourage second thoughts among these young people if a first choice seems unsuitable.

I feel that there is a case far raising the marriage age for boys to eighteen and for girls to seventeen. Australia recently raised the age for boys to seventeen, and I think there is a strong case for such a change. Nor do I agree with the view that when a boy has put a girl in the family way he should marry her if that is the principal reason. A great many unhappy marriages take place because of some unfortunate accident, possibly due to ignorance on the part of the girl, or because at a party someone gets drunk; a girl then finds that a child is on the way and pressure is put on the young people to marry. I do not regard that as a good enough reason for starting on what one hopes will be a life partnership.

It is much better for a child born in such circumstances to be adopted and to be brought up by other parents. There are plenty of people wanting to adopt such children. Alternatively, if the girl keeps the child and after a due period the young couple still want to marry and there is real affection between them, they can marry and the child will be legitimated. I therefore think that we ought to try to discourage the old idea that when a girl is put in the family way pressure should be put on the young couple by their families, and by moralists generally, to try to get them to marry. That is not the right approach to what we hope will be a life-long partnership.

If we are to review our marriage laws generally we should consider why we cannot have one law for the whole United Kingdom. I think that it is wrong to have a separate law for England and Wales, another for Scotland and another for Northern Ireland. Australia recently drew up a federal law covering the whole country because it was found that difficulties arose when people moved from one State to another.

Such a change would abolish the degrading and farcical business of Gretna Green. It only exists because Scottish law is different from English law. I think that it should be possible to draw up a common marriage law for the United Kingdom as a whole on lines similar to that recently drawn up in Australia.

In this I am reflecting a widely held opinion in the country. I realise that it is not possible to make such changes in this Bill, but since it is a useful step forward I hope the House will give it a Second Reading.

1.30 p.m.

Sir Stephen McAdden (Southend, East)

I am sure that all hon. Members will applaud the Bill in so far as it refers to the opportunity for reconciliation. Like other hon. Members, I congratulate the hon. Member for Pontypool (Mr. Abse) on the moderation with which he presented his case and on the opportunity which he has afforded us to discuss this matter. It is high time that we had the opportunity to discuss what has happened since the Herbert Act and the recommendations made since then.

In so far as the Bill deals with reconciliation, it has my wholehearted support. It is undoubtedly correct that an opportunity should be offered to interested parties to get together, for the simple reason that, with great respect to the legal profession, although it may be able to be proved in court that one or other was the guilty party and the other innocent, most of us with experience of life appreciate that the only two people who know who is guilty and who innocent are the parties themselves. Lawyers may argue in the courts until the cows come home, but this is basically a matter between two people.

I was surprised when my hon. Friend the Member for Cirencester and Tewkesbury (Mr. Ridley) referred in rather unusual tones to the old idea of the indissolubility of marriage as being due mainly to economic reasons. I do not think that that is true, especially when we recall that when many people believed in the principle there were other people living in similar economic circumstances who considered that it was perfectly all right for them to have four wives, and even more so long as they did not have more than four at once. The economic circumstances of the two communities were not greatly dissimilar.

I am not convinced that because an idea is old it is necessarily bad. One of the greatest patterns for the conduct of our lives was laid down in the Ten Commandments, many years ago. I do not think that because they are old they are necessarily wrong. We have a great deal to be grateful for and to pay tribute to in our pattern of life laid down years ago for us to follow.

I applaud and support, and shall continue to do so, the steps the hon. Gentleman is urging to allow people a period in which to get together to discuss their differences. Of course, it is wrong that when a person goes to a solicitor for advice he should immediately be told that under no circumstances should he contact the other party lest it is suggested that there is collusion or anything of that description.

I know that I carry many hon. Members with me in saying that I wish that it was not always necessary for people, when they have a matrimonial difference, to go dashing off to a solicitor. I wish that they would do what people used to do—talk it over with their parson, priest, rabbi, or doctor, who sometimes gave them very useful advice. When they go to their solicitor, because of the confused state of the law he is prevented from giving them such advice because he might injure his client's interests.

I want to warn the House lest we inflict a certain amount of hardship upon people who happen to believe in the old idea of the indissolubility of marriage. It is not in itself a bad thing to hold this view. Amongst the people who have been living apart for seven years and more there may be great hardship, to which attention has, quite legitimately, been drawn, but there must be some at least of these marriages which result from the fact that one party or another has conscientious religious beliefs and does not believe in divorce but in the indissolubility of marriage.

This House, ever careful of the rights of minorities, should not ride too roughshod over this and say that we can ignore the fundamental belief which is held, for example, by the Roman Catholic Church, many members of the Church of England and by members of other religious denominations, who believe that marriage is not only a contract between two people, but a sacrament of their Church.

If people hold these views, we should recognise that they take very careful steps to try to ensure that differences will not arise after marriage. For instance, the Roman Catholic Church does not encourage mixed marriages because it recognises that the question of different religious beliefs may be the cause of discontent in future. Therefore, people are not encouraged to enter into such marriages without long and careful discussion of all that is involved, such as the religious upbringing of the children. It is only after long deliberation that marriages of this kind are entered into.

It may happen, as a result of something occurring later in married life, that the husband or wife leaves, and we are urged that it is reasonable that, after seven years, despite all the advice given before they entered into marriage, one or the other should have the right to go to court and say that because they have been living apart for seven years they are now entitled to a divorce—subject to the words which I believe the hon. Gentleman himself admitted are not all that clear. These are: Provided that, if the respondent objects to the dissolution, the petitioner must satisfy the court that the separation was in part due to unreasonable conduct of the respondent. As has been mentioned, it will not be all that easy for the courts to decide what is reasonable and what is unreasonable. Lawyers have interrupted to say that this is easy and that the courts have been doing it for years. Nevertheless, I should have thought that it was difficult to say what was reasonable and what was unreasonable. For instance, is it unreasonable for a mother, having agreed with her husband before entering into marriage that the children should be brought up in a particular faith, to insist upon that being done? Would he court say that this was unreasonable?

I am quite sure that my good friend the hon. Member for Dagenham (Mr. Parker) who has played such a prominent part in the Secular Society, would, if he were promoted to the bench, say that it was most unreasonable.

Miss Vickers

The mother cannot do that, becauses she does not have equal guardianship with the father.

Sir S. McAdden

Whichever way it was. I believe that those are considerations which are not sufficiently safeguarded by the use of the word "reasonable". For those reasons, much more consideration ought to be given to what must be done in these cases.

The general principles of the Bill, inasmuch as they seek to bring about reconciliation, obviously command the support of the House. It was pointed out that this was a Bill to save marriages and not to aid divorces. Therefore, as the Bill is directed to the saving of marriages, I am sure that it enjoys the unanimous support of hon. Members, though as it can be argued that it contains provisions which are aids to divorce there are some of us who will have some qualifications about it.

No one impugns the sincerity and honesty of the hon. Member for Pontypool. He rightly said that members of the Jewish faith have great traditions of family loyalty. I cannot imagine one who is devoted to that religion introducing a Bill which would imperil the sanctity of the institution of marriage. Consequently. I am sure that he is animated by the best of motives. The only word of caution which I utter to him is that he must be careful to see that in Committee, if the Committee stage is ever reached, adequate consideration is given to ensuring protection for the rights of minorities who hold strong views about the indissolubility of marriage.

We should not pass legislation by which one party or the other could lead to the break-up of the marriage, even after a period of separation, if, for conscientious reasons, the other party was opposed to the granting of divorce, and we should not lightly overlook the sincere views which are held on this matter.

1.42 p.m.

Mr. Julius Silverman (Birmingham, Aston)

While I welcome the aids that the Bill gives to reconciliation, its most considerable contribution is that which it makes towards making divorce easier in some cases. I do not apologise for saying that that is a very desirable and useful thing to do, because inasmuch as it helps to dissolve marriages which have already broken down and which have ceased to retain any element of sanctity, and inasmuch as it allows the children of people living in illicit unions which result from the continuation of such marriage bonds to lead a normal life and to be free from the stigma of illegitimacy, the Bill is to he welcomed. I hope that its main provisions will go forward, and not only those which relate to reconciliation.

Questions of divorce and marriage ought to be separated from religious beliefs when, as we do, the matter is considered from the civil point of view. We respect the religious beliefs of those who do not agree with divorce in any circumstances, who believe that marriage is a union which can be dissolved only by death. They are entitled to that belief. But we are dealing with a matter of public policy, with questions of happiness and misery, with human beings and, above all, with children. The sooner we separate ourselves from the old ecclesiastical procedures and the old ecclesiastical beliefs and theories, the better. The idea of divorce should still be attached entirely to the committing of a matrimonial offence is dying slowly, but it will have to die.

Several hon. Members have already said that when a marriage breaks down one cannot say whether this or that party is responsible. In most cases neither party can be blamed. It is simply a question of incompatibility, of people being unable to live together. It may be six of one and half a dozen of the other, or there may be no real blame at all. Sometimes, even when the evidence is presented in court, the human picture of the emotional circumstances of the situation which has brought the marriage to an end is not presented. In court one inevitably gets the hard facts of evidence, but some hard facts are not as real as the things which took place between the two people concerned.

To talk in terms of matrimonial offences and of guilty and innocent parties is wrong in this day and age in our civilisation, and the court ought to be able simply to say that a marriage has broken down. After seven years of separation it ought to be able to say that. If the marriage has broken down, the court ought to be able to say that it is dead and that it pronounces the marriage to be at an end. It should do that in the interests of public policy, in the interests of the parties and especially of the children involved. The court ought to be able to take all those things into consideration.

I am attracted by the law outlined in the new Australian procedure, set out by my hon. Friend the Member for Flint, East (Mrs. White), which gives the court wide discretion to consider all matters relating to the marriage when deciding whether it is desirable that the marriage should be brought to an end. I prefer that to the words used by my hon. Friend the Member for Pontypool (Mr. Abse) in his Bill when he suggests that the respondent should be able to object to the dissolution. That puts the onus on the petitioner to satisfy the court that the separation was in part due to the respondent's unreasonable conduct, and that might be an extremely difficult onus to discharge after seven years. It is not correct to attach this sort of burden to the petitioner, and it still preserves the old idea of the guilty and innocent party. It would be better for the courts to have wider discretion and to be able to consider all the circumstances of the case and all the interests of the parties, while preserving the rights of the respondent in matters like maintenance and custody of the children and so on.

The Bill obviously requires close scrutiny to see that the interests of the two parties are preserved and that the rights of minorities are protected. At present there seems to be some conflict between Clauses 3 and 4 about condonation. Perhaps that conflict can be resolved by deciding which should be the guiding Clause, which covers the other.

Clause 5 deals with collusion. The provision of this Clause might well be extended to divorce on the ground of desertion where any agreement between the parties might result in the desertion case either going by the board or being considerably weakened. The court might say that there has been an agreement which is in effect a negation of the desertion, an agreement by which the parties have agreed to separate and live separately.

There should, therefore, be a provision extending Clause 5 to an agreement entered into between the parties on the occasion of proceedings on the ground of desertion to deal with various matters such as the custody of children and financial provisions following the dissolution of the marriage. If such agreements are entered into or contemplated when the proceedings are started, it should not be a bar to divorce on the ground of desertion, and should not affect the three-year period.

Those are some of my observations on this extremely useful Bill. I think that if it is proceeded with it will relieve a good deal of human misery. I think that it will bring relief to many families and remove the stain of illegitimacy from many children. I congratulate my hon. Friend on having used his success in the Ballot to introduce this Bill, and I am glad that so far it has received a wide measure of support.

1.51 p.m.

The Solicitor-General (Sir Peter Rawlinson)

It may be of assistance to the House if I intervene in the debate at this stage.

The hon. Member for Pontypool (Mr. Abse) is not here, but I am sure that it is because, having been here all the time, he has merely gone to have lunch. In his absence, I should like to say that he has the first attribute of any parliamentarian; he is lucky in succeeding so often in the Ballot. But he is more than that. He is able to turn his luck to extremely good account, as can be seen by the thoughtful and important Measures, and this one is particularly so, which he brings before the House.

I do not think that anybody who was here this morning, and heard the hon. Gentleman present his Bill with the skill and sincerity which he did, could fail to be impressed by him. By introducing this Bill he has instituted a debate during which we have already travelled the road from Rome to Reno by way of Gretna Green, although I suppose it is doubtful whether the House will reach paradise; it might on a Friday, but certainly not on any other occasion.

On the last occasion on which the House debated a Measure of this kind the Attorney-General of the day made the offer to the hon. Lady the Member for Flint, East (Mrs. White) that if she withdrew the Bill a Royal Commission would he appointed to consider the position. I need not tell the House that I am not going to say anything of that kind this afternoon. What I shall do, and I hope that it will be of assistance, is to remind the House of the effects of the Bill.

The matter which arises for consideration in this strikingly interesting debate is one of obvious importance. The State is closely interested in the status of marriage and the methods for its dissolution. But although this affects the interests of the State, the proposals of the Bill have no direct bearing on the administration and government of the nation. Moreover, approval or disapproval of these proposals—and, so far, there seems to have been mainly approval—certainly will not be affected by political theory or philosophy and, as happens more often than some outside think, debating opponents—although there has not been much debate so far—are as likely as not to come from beside or behind one, rather than from in front, because this is a matter in which individuals hold sincere and deep beliefs and the decision whether to give the Bill a Second Reading is obviously a matter solely for the conscience and judgment of hon. Members.

In an attempt to assist the House, may I remind hon. Members of the present law, and how this Bill would affect it. The story of the Divorce Court began more than 100 years ago, in 1857, although the ecclesiastical courts had from early days exclusive jurisdiction in all matters of marriage and its dissolution. Between the seventeenth century and 1857 the view prevailed that the court had no power to dissolve marriages. The only way a valid, marriage could be dissolved before the Act of 1857 was by private Act of Parliament, and it was Mr. Justice Maule who claimed, in the early 1850s, to be responsible for the Royal Commission which preceded the Act of 1857.

Mr. Justice Maule claimed it because, in sentencing a very ragged impoverished hawker who was before him on a charge of bigamy, he addressed him in these terms: You have broken the law of your country. You have a drunken, unfaithful wife, the curse of your existence and her own. You knew the remedy the law gave you, to bring an action against the seducer, recover damages from him, then go to the House of Lords and get a divorce. It would have cost you £1,000. You may say that you have never had one-tenth of that sum: that is no defence in law. Sitting here as an English judge it is my duty to tell you that this is not a country where there is one law for the rich and another for the poor. Your sentence is one day's imprisonment. Be that claim as it may, as hon. Members will recollect, in 1857 the Divorce Court was first established.

Between 1858 and the Act of 1937—Sir Alan Herbert's Act, which was supported by the hon. Member for Dagenham (Mr. Parker)—adultery remained substantially the sole ground of divorce in England and Wales, though there was a difference whether the party concerned was a man or a woman. By Sir Alan Herbert's Act there was introduced wilful desertion for the period of three years and upwards, cruelty, and, thirdly, incurable insanity after five years' confinement.

There have been certain Amendments to the law since 1937, which is at present consolidated in the Matrimonial Causes Act, 1950. As has been pointed out during this debate, the principle upon which the State has decided hitherto that a valid marriage could be dissolved was, and, is, based upon the concept of a matrimonial offence, and certain hon. Members have indicated that they disapprove or dislike that concept.

Nevertheless, that is the concept which has hitherto been the principle upon which the divorce law of this country has been based, that there must be a matrimonial offence committed by one spouse, a grave wrong inflicted on the other spouse, an injury so serious that the wronged party shall be entitled in consequence to seek the dissolution of the marriage. Whether such a matrimonial, offence has or has not been committed is posed as a justiciable issue on which a court must pronounce, which depends upon proof which is governed by strict rules of evidence.

It has been pointed out, in particular by the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman), that in practice this can mean that if two persons are eager to obtain a decree dissolving their marriage, one can, by a single act of adultery, provide the other with the opportunity of seeking a divorce and the end of the marriage, and to the extent that they were both anxious for a divorce they were both willing to end the marriage. Nevertheless, the divorce obtained in those circumstances is based not upon the willingness of the parties, but upon the principle that one has committed an offence and so gives the other an opportunity of seeking a decree.

I have reminded the hon. Member about that because in the second of the hon. Member's new grounds for divorce there are far-reaching implications. He is not seeking explicitly to provide for divorce by consent, because his new ground contains the requirement of at least seven years' separation before either spouse can seek relief, but the effect of these proposals may, in practice, so provide, in certain circumstances. The provisions contained in Clause 1 (f) and Clause 2 therefore involve a fundamental change in the whole of the English law of divorce, which has always been based on the conception of matrimonial offences, and of innocent and guilty parties.

Mr. Abse

Perhaps the Solicitor-General will explain how it is that one can obtain a divorce, in certain circumstances, on the ground of insanity and also on the ground of the presumption of death, even though, in the second case, the person presumed dead may ultimately be found to be living. Even when that occurs the decree is valid. Surely there Ls nothing wrong in the idea that divorce should be obtainable on grounds other than the commission of a matrimonial offence.

The Solicitor-General

Presumption of death speaks for itself. It is naturally a presumption that the other spouse is dead. Secondly, on the question of insanity, in 1937 a provision was introduced allowing for divorce, but only after a period of five years' confinement. To some extent the person confined is dead in mind.

Let me explain why I believe that Clause 1 (f) and Clause 2 introduce this conception. It may be right or wrong; all I seek to do is to make sure that the House appreciates what the position is, and what it will be. The hon. Member for Flint, East, the hon. and learned Member for Stoke Newington and Hackney, North and the hon. Member for Birmingham, Aston (Mr. J. Silverman) all indicated that the principle of the matrimonial offence should not be sacred. Nevertheless, the proviso contained in Clause 2 lays it down that where there has been a seven years' separation, if the respondent spouse objects to dissolution, the other must satisfy the court that separation was, in part, due to the unreasonable conduct of the respondent.

The restriction implicit in that proviso, namely, that the respondent shall not object to the dissolution of the marriage, would not, as now drafted, prove effective. It would be a very strange separation between a husband and wife which had persisted for seven years and which was not, in part, due to the unreasonable conduct of both spouses.

I share, with my hon. Friend the Member for Cirencester and Tewkesbury (Mr. Ridley) and my hon. and gallant Friend the Member for Carshalton (Captain W. Elliot) concern about the use of these words, and about the burden that would be laid upon the courts to define the "unreasonable conduct" of the respondent. My hon. and gallant Friend the Member for Carshalton talked about the difficulty of debating an issue that arose seven years ago, and of deciding what was then unreasonable conduct, at a time when many witnesses might not be available, or even alive. I agree with him that it is a very difficult position.

It is difficult to visualise circumstances in which the objection—contained in the proviso—to the dissolution of the marriage could, in practice, ever be successfully maintained. I doubt whether it would be possible to draft a really workable provision which would also be effective.

I appreciate that what the hon. Member has in mind, by the words "unreasonable conduct", is some conduct which amounts to a matrimonial offence but which would not, of itself, be of sufficient degree to entitle the petitioner to a decree, on the grounds of cruelty or conduct leading to desertion.

Mr. Weitzman

The onus is upon the petitioner in that matter.

The Solicitor-General

Let us see what the provision says. It provides that if the respondent objects to the dissolution, the petitioner must satisfy the court that separation was in part clue to unreasonable conduct of the respondent. In fact, that would not be a real objection. The court would merely have to decide what is unreasonable conduct and it would surely be very difficult for it to say, of any marriage, let alone one that has ended in seven years' separation, that there had not been some unreasonable conduct which in part had led to the separation.

Mr. Abse

Has it not been decided for years that when one party deserts the other he or she can put forward a considerable number of reasons, short of a matrimonial offence, as a defence? For example, the defence could be based on drunkenness and violence, short of cruelty—I am quoting from cases—the persistent friendship of the wife with another man, which is less than adultery, or the husband's association with a woman that is less than adultery? All those examples have been decided by the court as something less than a matrimonial offence, but as justifying the man's desertion of his wife or vice versa. Surely it is not beyond the ingenuity of a court to be able to determine what is unreasonable conduct Has not the court gone even further, and considered gradations of conduct in regard to a further defence that such behaviour was "conduct conducing"? It has been enumerated as something short of an offence but as "conduct conducing".

Mr. Deputy-Speaker (Sir William Anstruther-Gray)

I hope that the hon. Member will not make a second speech.

The Solicitor-General

The hon. Member did not permit me to finish what I was saying. I suggest that these words in part due to unreasonable conduct of the respondent will present no difficulty to a petitioner. The House must decide whether they provide a real safeguard. It would be wrong for the House not to face the possible consequences.

I have in mind that what the hon. Member would like to see is some conduct, which must be substantiated, which does not at present amount to a full matrimonial offence but which, nevertheless, is of such an unreasonable nature that, because there had been this separation, the petitioner ought to be able to obtain a decree. We must face the practical difficulty of substantiating that, seven years afterwards. Would the respondent really be able to maintain and sustain an objection?

The position would be, in the case of persons who might be, say after thirty years of marriage, in their fifties, after a separation which lasted seven years, of the person, the wife, whether she likes it or not, having a decree made against her and getting the status of a divorced woman. It may be that the House thinks, because of the other kind of cases which do exist, that it is right so to provide.

It seems to me that if the Bill contains, and continues to contain, this provision that would he the real effect. Those two parts of the Clause create a new ground which would appear to me to be the major controversial provision of the Bill, although, of course, the other provisions, as has been emphasised by hon. Members, are of extremely wide importance.

As to the other Clauses—to which, if I may, I will turn shortly, as I know that many other hon. Members wish to speak—Clause 1 (e) as now drafted, and as the hon. Gentleman appreciated, creates a situation which he does not wish to see and the circumstances in which he does not think a dissolution should be made. I was very glad to hear that he had that in mind. He told the House what he had in mind with regard to Clause 1 (e), and if the Bill were given a Second Reading he said that he would permit others to put that matter right.

With regard to Clause 2 (3), again I can well understand the reasons which have permitted the hon. Member to make this provision, but it means that the courts shall not pronounce a decree if a petitioner has wilfully neglected to maintain the wife and children with the proviso that if the default is made good wholly or to such an extent as the court considers just, then the decree may be pronounced. That, again, as drafted would look like the withholding of a decree as a sort of penalty. I doubt whether the best interests of society and their spouses and children would be best served by any such device.

Suppose that a petitioning husband could not make good financially wholly or to the extent which the court thinks just, would he get no decree whereas the richer husband who was able to make financial provision would? Or suppose that the husband promises to make good the default and offers to pay by instalment out of his wages, does he then get a decree, and what if he then thereafter defaults? That is one of the matters in the Bill which again needs careful consideration if the Bill gets a Second Reading.

I then turn to Clause 3, which, the hon. Gentleman reminded the House, is based on a unanimous recommendation of the Royal Commission, and that, of course, certainly as advanced by the hon. Gentleman today and by my hon. Friend the Member for Plymouth, Devonport, has very considerable merits. It appears to put men and women on an equal footing with regard to the presumption of condonation raised by sexual acts between them. But it involves the proposition that the presumption that the husband condones the matrimonial offence of his wife by having sexual intercourse with her can be rebutted.

I personally am much more attracted to the view expressed by the hon. Member for Islington, East (Mr. Fletcher) and the hon. and learned Member for Stoke Newington and Hackney, North, that it may well be, as I understood—though I do not think that this was the matter on which the hon. Gentlemen made that comment—that for a husband in such circumstances to allege that although he knew of the offence, and although he had sexual intercourse yet he had not condoned it, is quite a remarkable step to take, in that, despite sexual intercourse by the man, he was not condoning her offence at all. As the hon. and learned Member for Stoke Newington and Hackney, North said, what if after that act, if it is not an act of condonation, the husband made her pregnant?

The law has previously permitted a woman who has sexual intercourse in such circumstances to rebut condonation because it may be difficult for a wife immediately to break off relations with her husband. But is a man in this respect quite in the same position? Is there perhaps a limit, perhaps a biological limit, to the extent to which one can equalise men and women? Is it right, then, to give the man the opportunity to make such a claim? But, again, this is a matter of individual judgment.

The other provisions of the Bill, and particularly Clause 4, are intended to encourage reconciliation and to prepare the basis of reconciliation. No objections have been raised in the House so far in the debate and I should be surprised if there are any. There may be some criticism of the fact that the Clause, by providing such relief, is inconsistent with the whole concept of condonation, but, certainly, I would not have thought that that was an objection to the principles, the very appropriate principles, in Clause 4.

With regard to Clause 5, solicitors, whatever the law may be and has been set out to be by high judicial authority in various other places, have, nevertheless, been experiencing this difficulty. It is a difficulty which the hon. Member for Pontypool said may well have led to marriages breaking up which need not have broken up. I personally am attracted to the view of the hon. Member for Islington, East, which I gathered from an interjection, and that of the hon. and learned Member for Stoke Newington and Hackney, North with regard to making it perhaps a discretionary bar. Nevertheless, I can see no objection to the codifying of collusion. It would be a difficult and delicate task in the drafting, but it could and should be done. Clause 5 is a Clause to which I should have thought few would have many objections.

Clause 6, extends, and the House of Commons and the courts are jealous of extending, a field of privilege. It extends privilege to marriage guidance consellors, to whom I should like to add my tribute to those already paid to them. It is right to remember that the privilege at the moment is the privilege of the parties, that is, if both parties go to the counsellors it is both who have to waive their privilege before that evidence is admissible. So, already, there is a very high degree of privilege.

Therefore, if one of the parties goes to the Marriage Guidance Council that evidence can only be given if he is agreeable, but, nevertheless, the suggestions made in Clause 6 are ones which hon. Members may think, because of the importance of this work, should be extended to the evidence of counsellors.

All these matters are, however, ancillary and I refer to them certainly not in condemnation of the Bill, but to show that if the House were to give the Bill a Second Reading—as the hon. Gentleman well appreciates—much detailed work would obviously need to be done in Committee.

What, finally, does the Bill seek to do? First, but not in the order of its Clauses, it seeks to amend to some degree the law relating to condonation, to equalise the position of men and women. Some hon. Members may feel that that is not a matter in which men and women should be put on equal terms. Secondly, it seeks to provide for a period of reconciliation without, as it were, incurring a penalty, that is to say, encouraging a return to cohabitation which, if successful, might resuscitate the marriage and which, if unsuccessful, would not jeopardise the ground which one spouse has for relief. Thirdly, it deals with the statements made to marriage guidance counsellors.

But I suggest to the House, and here I revert to what I said at the beginning of my speech, that its main provision is to introduce a new principle into our divorce law, namely, that the marriage of a person who has not been guilty of a matrimonial offence could be dissolved by the court, after a seven-year separation, provided that the separation was partly due to the unreasonable conduct of that otherwise innocent person.

In my submission, it would be easy for the petitioner to say that separation was partly due to the unreasonable conduct of the respondent. But it is a concept which this House may well desire to import into our divorce law. It is a matter which directly affects many individuals. It is certainly a concept which is novel in our law. It is one which some members of the community will abhor and some will accord, but it is something which this House should face.

It is pre-eminently a matter for private and personal judgment on which hon. Members will be moved by their social and ethical beliefs. In addressing the House on this important Bill I have endeavoured to rehearse the present position and effect of the law. In conclusion, I should like, once again, to pay tribute to the manner in which the hon. Member for Pontypool introduced this important measure.

Dr. Alan Glyn (Clapham)

How will the position of the co-respondent be affected during the period of reconciliation? There is nothing about that in the Bill, so may I ask my hon. and learned Friend to tell us what is the position. Have the parties still the right to cite the co-respondent even if there has been condonation?

The Solicitor-General

I presume that my hon. Friend's question relates to the provisions in Clause 4 dealing with reconciliation, and he is asking—there having been a failure to resuscitate the marriage—what is the position regarding the co-respondent? Whether, by the attempted reconciliation, the guilt of the co-respondent is discharged, is one of the matters which would have to be considered and would flow from the introduction of this Clause. As I have said, the provision certainly has great attractions in that it might increase the chances of a reconciliation.

2.23 p.m.

Mr. Eric Fletcher (Islington, East)

I am sure that the House is indebted to the Solicitor-General for his objective analysis of the law as it stands and of the effect upon it were this Measure to become law in its present form.

As was said by the hon. and learned Gentleman, this is essentially a sphere in which every hon. Member speaks for himself and must form his own judgment in accordance with his own concept of what is right. I do not suppose that we shall ever get a law on divorce which is generally acceptable, or ideal. All that we can do is to hope that we may achieve approximate perfection, and be able to improve the law from time to time where experience shows that changes are required.

Essentially, this is a field in which precedent has shown itself of tremendous value if the initiative for reform comes from private Members, as was the case in 1936 and 1937 and when my hon. Friend the Member for Flint, East (Mrs. White) introduced her Bill. Today, we have had the advantage of an admirable exposition of changes by my hon. Friend the Member for Pontypool (Mr. Abse). Many of them follow the precise recommendations of the Royal Commission.

The Bill contains a good deal which I am able wholeheartedly to support. It also contains one or two provisions which I do not support. I hope that it will have a Second Reading. It seems to me essentially a Bill which, as was intimated by the Solicitor-General and as is recognised by my hon. Friend the Member for Pontypool, requires a great deal of detailed consideration. I hope that we shall give it a Second Reading so that there may be a Committee stage during which such consideration could be given. I also hope that, having been so considered, the Bill would emerge from a Committee stage with certain parts about which I have difficulty expunged; so that it would be in a form in which the valuable parts were retained and in which the House might be induced to accord it a Third Reading.

I wish briefly to comment on provisions in the Bill which seem to me of particular importance. In Clause 1 (1, e) there is added a ground for divorce, or a modification of an existing ground for divorce, regarding desertion, which seems to me eminently desirable. The hon. Member for Pontypool recognised that in its present form in does not correspond exactly with the recommenda- tions of the Royal Commission nor does it textually give effect to its wishes. I have no doubt that this could be amended during Committee stage proceedings in a fashion which would receive universal support.

Paragraph (f) of the same subsection, and Clause 2 which is dependent upon it, are the most controversial aspects of this Bill. Having considered them, I still share the view expressed by the majority of the Royal Commission that at this time it would be wrong to introduce a new departure into our law which either directly or indirectly permitted divorce by consent in some cases. I will say a word in a moment about divorce by consent. It would also permit what is, perhaps in many quarters even more objectionable—divorce at the unilateral action of one party.

As was pointed out by the Royal Commission, were that adopted it would, in effect, mean that either spouse of a marriage would be free to terminate the marriage at leisure. In other words, people would contract a marriage knowing that no matter what they did, or how their partner felt about it, they could always get free. Were anything approaching that concept written into our law, it would completely transform the ideal of marriage as we know it today on which the stability of the family is based, and on which, eventually the welfare and stability of the State depends.

I know that it is said that there are safeguards in Clause 2. It is also maintained that those safeguards prevent abuse, and at the same time give relief which is required in the large number of cases where parties to a marriage are separated and one refuses to countenance a divorce. One has the greatest sympathy with these people. Many have written to hon. Members describing the conditions in which they live as a result of their inability to obtain a divorce because the other partner will not take proceedings, or will not allow a divorce petition to go undefended. But, in considering the amount of hardship suffered by these people, as my hon. Friend himself said, one has to consider what damage would be done to the general principles of society by making such a radical change in the law.

My hon. Friend the Member for Pontypool, I understand, seeks to overcome this objection by introducing the safeguards in Clause 2. He does not object to the fact that there is a departure from the principle, hitherto held to be fundamental, that the matrimonial offence should be the determining principle of our divorce law. I should have thought that, despite the abuses to which that principle is open, there are still strong grounds of practical wisdom if not of logic in maintaining it. Like the Solicitor-General, I must tell my hon. Friend, however, that I find the greatest difficulty in understanding whether the safeguards he proposes in Clause 2 would be workable by the courts.

It is suggested that the person who objected to a divorce after seven years' separation could not be divorced without his consent unless the petitioner satisfied the court that separation was in part due to the unreasonable conduct of the respondent. The question I ask myself is: does that unreasonable conduct amount to something equivalent to or something less than conduct which now amounts to constructive desertion? If it amounts to constructive desertion, there is a defence, anyhow.

As other hon. Members have said, the law about constructive desertion, in other words, conduct justifying one partner in separating from the matrimonial home, has been very fully worked out by the courts, particularly in the Privy Council in the case of Lang v. Lang and, more recently, in the case of Hutchinson v. Hutchinson, in the Divisional Court. The court has gone a great distance in saying that a person by conduct far less than cruelty is entitled to relief and is guilty of constructive desertion. If that is all that this means it is otiose. If it means something else, it must be very difficult, I should think, for the courts to have any talisman or yardstick by which to determine it.

That perhaps is a matter we can pursue further in Committee. What really troubles me, and, I think, must trouble many hon. Members on this whole subject, is the reflection that, whereas some of us are disinclined to legislate in terms which permit divorce by consent, we cannot blink the fact that a great many divorces today are pronounced as a result of the consent of the parties.

Mr. Marcus Lipton (Brixton)

Most of them.

Mr. Fletcher

This is something we must face.

The large majority of undefended divorce cases—and, of course, there are many more undefended than defended—result from the fact that both parties want a divorce, and the respondent is not minded to defend it. More often than not he welcomes it. Therefore, although the law does not countenance it, where the parties both want to put an end to their marriage in most cases they have no difficulty in doing so.

In the old days, before the 1937 Act, the common practice where necessary was to manufacture evidence of adultery, what is called "hotel adultery". Since the 1937 Act there have been many more undefended divorce cases brought on the grounds of cruelty and desertion than on the ground of adultery. Experience shows that it is not very difficult to produce evidence of desertion in an undefended divorce case sufficient to satisfy a judge that a divorce should be granted.

That is the normal course now, suppose, where both parties want a divorce. Neither of them has committed adultery, or wants to be stigmatised as having done so. Therefore, the proper steps are taken to enable the petitioner to show that the respondent has been guilty of desertion. Although this may sound very anomalous, the fact is that, whereas we as a Legislature refuse to countenance divorce by consent, a great deal of divorce by consent does take place.

I do not personally think that is a good argument for supporting Clause 1 (f), or Clause 2, but I think it a very good reason for supporting Clause 5. Whereas there is a great deal of divorce by consent—some of it collusive—the law as it stands provides that if there has been collusion that is a complete and absolute bar to the divorce. The judge has no discretion if he has any evidence of collusion. If there is any inclination to believe that there has been collusion the judge must refuse a decree.

It is this seeming difficulty which places practitioners in the great difficulty of knowing what to do when one party consults him saying that he wants a divorce knowing that the other party wants it as well. I am sure that there is an overwhelming case, as my hon. Friend argued so admirably, for amending the law on collusion. It may well be said that a great many solicitors and counsel are nervous in taking the right course in the interests of the parties because they feel that the law of collusion is so stringent. The courts think it is not as stringent as most members of the public and the profession think it is.

I should prefer to see the law altered so that collusion was not an absolute bar, but merely a discretionary bar and also the grounds for what I should call "innocuous collusion" defined. Quite obviously, there cannot in common sense be any reason if parties wish to have an undefended divorce why prior to the divorce they should not take appropriate steps in the interests of the children and the matrimonial home to make financial arrangements, and so forth. But there is the further problem which the House should appreciate: as the law of collusion stands, it prevents the dissolution of some marriages when dissolution is required by both parties and is desirable. The common case is that of the woman whose husband does not want a divorce unless he can be sure that he will not have to pay her maintenance for the rest of his life. The woman may not have sufficient evidence to obtain a divorce if it were defended.

I am thinking of a case in which the husband has not committed adultery, or been guilty of desertion and has not committed sufficient cruelty that he could not resist a divorce if it were defended, but in which case, nevertheless, there is sufficient evidence of cruelty or desertion to enable the wife to satisfy a judge that she should have a divorce if it were undefended. In many cases the only reason why the husband defends the case is that he thinks it partly the wife's fault and does not think it reasonable that he should pay her costs or maintain her for the rest of her life.

There is the suggestion that in those circumstances the parties ought to be able to go to the court and to tell the court in advance that they have agreed that if there is a divorce there should be no order for maintenance, but that, as the Royal Commission said, might be thought to be bribing the court. There will be many borderline cases for the court to consider in this respect, but I have no doubt from my experience and from that of my colleagues that Clause 5 ought to be introduced into the law.

May I briefly comment on the remaining Clauses? I share the view of the hon. and learned Member, and I do not share the views of the Royal Commission, about Clause 3. I know that it was recommended by the Royal Commission in paragraph 241, but in my view it would be intolerable if the law of condonation were changed as suggested. Surely it must be obnoxious to provide that a husband, after having had sexual intercourse with his wife, could say that he did not intend to forgive her. I do not think that he ought to be able to rebut that assumption. I would point out to the hon. Lady the Member for Plymouth, Devonport (Miss Vickers), who, I think, supports the Clause, that although I suppose that it could theoretically be supported on the ground of sex equality—to which there must be some limit—the Clause is contrary to the interests of women. If it is thought that the principle of sex equality is paramount, then I prefer the law to be altered in the reverse direction so that a wife in similar circumstances would be subject to an absolute bar and not be able to rebut the presumption. But I am content that the law should remain as it is.

I cordially support Clause 4 and, therefore, have nothing to add about it. On Clause 6, I thought that my hon. Friend the Member for Pontypool rather overstated the recommendations of the Royal Commission. I know that he read nearly all paragraph 357, but when I read it I was most impressed with the observation that at the present day the court will treat as privileged communications made by husband or wife to a person acting as a conciliator, such as a counsellor, probation officer, doctor or clergyman. There is in practice, at the moment, as the Solicitor-General pointed out, all the protection for probation officers that they need. If they do not think that there is, surely their minds could be eased by pointing out what the law is. The difficulty, I feel, about extending privilege—as recommended by the Royal Commission, I agree, and as in the Bill—to marriage guidance counsellors is that if that extension in the law of privilege were made it would open the door, and before very long it would be very difficult to limit it to marriage guidance counsellors. It would be very difficult not to extend it to probation officers, doctors and clergymen and indeed, to journalists—and then we get into a field, as we have all learned recently, where the fundamental principles of justice are at stake.

Mr. Abse

Will my hon. Friend direct his attention, first, to this point? There is this amount of protection, as he has said, for the conciliator, but if such privilege as may be claimed to be in existence is waived by husband or wife, the conciliator may be brought into court. What the Bill attempts to do is to prevent a conciliator from being so manipulated that he or she should ever be brought into court. We have to direct our attention to the question whether the conciliator should be brought into court under any circumstances.

Secondly, will he consider what the Royal Commission said about the rôle of the probation officers? There are different circumstances in which they have to give evidence to the court on many related matters, and it would be difficult to distinguish them from one another. There is, therefore, a distinction. I should like my hon. Friend to direct his mind to the question whether it is desirable that in any circumstances the conciliator should be dragged into court.

Mr. Fletcher

I will not pursue the matter further. I have given it a lot of thought. I would point out, however, that precisely the same argument could be put forward by journalists—that journalists ought never to be dragged into court because people give them confidences which otherwise they would not be given. I find it a little difficult in principle to draw a distinction between the journalist and the marriage guidance counsellor, and I therefore think that we may be on a slippery slope.

But I do not want to pursue this matter. We can pursue it in Committee when, as I hope, the House has given the Bill a Second Reading.

2.48 p.m.

Sir Peter Agnew (Worcestershire, South)

I was not a member of the House when the Bill which the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) introduced was discussed in 1951, but I very well remember the long debates, especially in Committee, which took place on the Bill which was introduced in 1937 by Mr. Rupert De la Bère, as he then was, and which subsequently became law in the same year. I would point out that there is a very great difference in the atmosphere, both in Parliament and outside it, between the two occasions. In 1937 there was, it is no understatement to say, an immense amount of pressure from the Churches as to what point of view should be taken up upon this or that provision contained in that Bill. Today we are free of that. The State has strengthened its position in deciding that it will pursue a course having regard to the social welfare of the people but not regardless of the impulses that move their consciences, and, indeed, determine how the course of that social welfare shall proceed.

We recognise that the spokesman of the State today must be neutral in his attitude to the Bill, though I should like to pay my tribute to the Solicitor-General for the very clear exposition he has given of the effects of the Bill if it is passed into law. With regard to the Churches, I have received no pressure whatsoever, not even a statement of opinion. If further proof is needed of that, it is furnished by the absence of my hon. Friend the Member for Dover (Mr. Arbuthnot), who is the Second Church Estates Commissioner. I do not criticise his absence, but it is evident that the Church of England itself it not taking a strong line, or indeed any line, upon the Bill.

Were it not for the fact that there are other Orders on the Order Paper to be discussed today, I would make a long speech on this subject, because it would be easy to do so. Happily, it is not necessary for me to do that, because I find myself in agreement with everything, or almost everything, that the hon. Member for Islington, East (Mr. Fletcher) said in his comments and observations upon the Bill. I, too, support the liberalisation measures for reconciliation. I have my doubts as to the effects of Clause 3, because I do not fully understand them, but I support the reliefs dealing with condonation in Clause 4.

I wholeheartedly agree with those who have said that the new grounds for divorce make a very radical departure from the attitude that the State has so far adopted, and I believe rightly adopted, in protecting the rights of a married person—a spouse, I suppose I should say—who has tried to think of his or her marriage as something he entered into for life but whose partner, for good reasons or bad, has separated from him. The Bill would say that after seven years, no matter what the partner who wants to continue the marriage may think, a divorce should be granted.

I join issue with that. I believe that if the House were to agree to it it would on the whole create an injustice which I do not think we ought to put into our law. I certainly agree with those who have said that the safeguard, or the words intended to be a safeguard, would be wholly ineffective, impracticable and capable of nothing but an embarrassing interpretation by any judge who had to try to administer them in a court.

I do not want to oppose the Second Reading of the Bill. Indeed, I like enough of it to wish it to go forward into Committee and, I hope, to emerge from Committee improved but with this new ground for divorce after seven years of separation struck out of the Bill.

2.55 p.m.

Mr. Marcus Lipton (Brixton)

The English divorce laws represent such a combination of hypocrisy and inhumanity that any attempt to improve them commands my support. It is for this reason that, unlike so many previous speakers who have offered their qualified support to my hon. Friend the Member for Pontypool (Mr. Abse), I offer him my unqualified support for the Bill.

The hon. Member for Worcestershire, South (Sir P. Agnew) referred to the changing climate of opinion. That is undoubtedly a fact. Opinion is moving forward, too slowly in the opinion of some, too hastily in the opinion of others. I recall the occasion in June, 1949, when in connection with the Law Reform (Miscellaneous Provisions) Bill I sought to introduce a new Clause which read as follows: A petition for divorce may be presented to the Court either by the husband or the wife on the ground that—

1. (a) the parties have lived separately and apart for a period of at least seven years immediately preceding presentation of the petition; and
876
2. (b) it is unlikely that cohabitation will be resumed."

It is significant that on that occasion in 1949 more than 200 honourable Members from all parties added their names to the Clause, which created a certain amount of consternation on the Government Front Bench. I know that the then Attorney-General was somewhat perturbed. The Government of the day were somewhat perturbed. However, as a result of various factors the new Clause was not called for discussion.

Then in 1951 a Bill was introduced by my hon. Friend the Member for Flint, East (Mrs. White). Her Bill was granted a Second Reading by the House in the teeth of the opposition of the Government of the day. As a result of that Bill receiving a Second Reading, the Government at long last, although they had been pressed to do so for some time previously, agreed to the appointment of a Royal Commission. I remember giving evidence to the Royal Commission about the new Clause which I have just read to the House, namely, to the effect that divorce should be available after seven years' separation.

The ironical situation is this. It may sound a wild exaggeration, but a husband can murder his wife or a wife can murder her husband and stand a better chance of remarrying at the end of the commuted life sentence, which is imposed in certain cases for murder—

Mr. Fletcher

Providing that he is not hanged.

Mr. Lipton

Yes, but in most cases the murder charge involves nothing more than a life sentence which is commuted at the end of ten or twelve years. A husband can murder his wife, or a wife can murder her husband, and stand a better chance of remarrying than thousands of good, honest, decent, law-abiding citizens in this country at present who are living together as man and wife but who have no hope under the present law of ever legalising their position.

At the time that I was concerned in bringing forward the new Clause in 1949 I received a vast amount of correspondence, as my hon. Friend the Member for Pontypool has in connection with his Bill. I do not think it is an exaggeration to say that there are in this country at present probably 100,000 people living together as man and wife who have no hope of legalising or regularising their matrimonial status. The Bill, therefore, represents another opportunity for us to introduce some reform which will bring happiness to scores of thousands of people those whose marriages cannot be regularised, and the offsprings of those marriages.

Some day we must establish the fundamental principle that it is not essential, in order to dissolve a marriage which has incontrovertibly broken down, that one party should be proved guilty and the other come into court in the blameless white sheet of innocence—as if all the right was on one side and all the wrong on the other. The Bill provides us with that opportunity.

The question of collusion has been adequately dealt with by my hon. Friend the Member for Islington, East (Mr. Fletcher). Most of the undefended divorce cases in the courts today could be "knocked out", if I may use that expression, if the law of collusion or condonation were strictly applied. It is ironical to think that divorce by consent is no obstacle at all. People who want to be divorced can be. In cases where marriages have broken down and where there is no remedy, the argument about divorce by consent does not apply. It is ridiculous to say that if the Bill is passed and the seven-year separation provision becomes law the floodgates to divorce by consent will be opened. That is nonsense, because far more divorces are taking place today than would be the case if the Clause containing the seven-year provision reached the Statute Book.

For these and other reasons, I support the Bill. I am certain that the changes proposed in it would raise the standards of morality in this country, would strengthen the sanctity of marriage and increase the number of happy and legal marriages, because it would enable those who cannot get married now but who, nevertheless, are living together to get married. It would also reduce by thousands the number of illegitimate children, Thus I have much pleasure in associating myself wholeheartedly with the Bill, which was so effectively introduced by the hon. Member for Pontypool.

3.4 p.m.

Dr. Alan Glyn (Clapham)

The hon. Member for Pontypool (Mr. Abse), in a long speech, gave the House a frank and honest account of the Bill. It was right for him to spend a considerable time addressing the House on the aims of the Bill, and he was equally frank in drawing attention to both the advantages and disadvantages of the Measure. After all, we are attempting to change the law on a private Members' day when it has been extremely difficult to do that in the House even in public time.

I support the Bill, not entirely wholeheartedly, because I believe that it can be altered and adapted in Committee to improve the divorce laws. What is the object of the Bill? It is, firstly, the preservation of the marriage. We must look at it in that way and consider whether or not it will help to preserve the marriage. Secondly, is it practical to work and capable of being amended in Committee? The answer to both those questions is in the affirmative and I have no doubt that the hon. Member for Pontypool would agree that if some of the points he advocates and certain Clauses are not acceptable in Committee, he would withdraw them.

The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) pointed out that marriage is a life contract but that where it has broken down the interests of the children should be of paramount importance. I entirely accept that principle. My hon. and learned Friend the Solicitor-General, in his excellent summary, rightly pointed out that the Bill would alter the grounds of divorce for desertion. I was particularly interested when my hon. and learned Friend pointed out in reply to the hon. Member for Pontypool, who said that insanity was also a ground for divorce, that after five years of insanity a person was dead in mind. In fact, it is perfectly possible for sanity to return after five years, so we must not make too much of that point.

I can see a certain amount of difficulty about desertion for seven years being a ground for divorce, but I understood the intention to be that it should be coupled with conduct which, in itself, did not amount to grounds for divorce. A Standing Committee might have some difficulty there.

I entirely support the idea of allowing a month's grace, so to speak, for the parties to reconsider their attitude. In practice, a husband or a wife is called upon to make a very sudden decision, and one that may well be regretted later. Although this period of grace is attended by the possibility of a pregnancy it is well worth trying, because there is a genuine chance of a reconciliation when both parties are together and can reconsider the whole question of whether one incident should cause them to separate for the rest of their lives.

I am very grateful to my hon. and learned Friend for reinforcing me in what I consider to be one of the defects in the Bill, in that it does not provide far the future status, so to speak, of the co-respondent, against whom, as the Bill is now drafted, no action could lie. However, I am sure that this could perfectly easily be remedied in the Standing Committee to which I hope this Bill will be sent. Parties often rush into divorce whereas, if they had this month's period to reconsider things, the future of the marriage would be very different. I do not express any opinion on Clause 3, which the hon. Member for Pontypool might, perhaps, be willing to withdraw if he got the other parts of his Bill.

One of the most important Clauses is Clause 5. The hon. Member for Pontypool instanced the very great and real difficulties encountered by solicitors when advising their clients. I think his point was valid, that if people are allowed to discuss the future of the matrimonial home, the financial provisions, the provision for children and, as one hon. Member said, how often the parties are going to be allowed to see the children of the marriage, they might say to themselves, "These are things which we never really considered." Therefore, I think this Clause will be of great value.

The hon Member for Islington, East (Mr. Fletcher) suggested that we might get round the problem by making it not an absolute bar but a conditional bar. I should like to go a little further. I believe that if the parties knew that they could discuss these things together in a solicitor's office they might well come to the conclusion before the case reached the courts that there was so much at stake that it would be well to preserve their marriage. Incidentally, we must make it very clear that this discussion must be conducted in a regular fashion, in a solicitor's office, with the two parties sitting down quietly and considering the net results of their contemplated action, not only to themselves but particularly to the children's future, their education, how often they can see the children, and so on. This is a method of enabling the marriage to continue. Both parties are brought up with a jolt and they suddenly realise the implications of the step which they are about to take.

I am worried about this matter of privilege. I know my hon. and learned Friend the Solicitor-General will correct me if I am wrong, but I believe this is a matter which the House should regard very seriously. I understand from one of my hon. and learned Friends that even information which is given in confidence to a doctor is not privileged in court. We are giving a special and peculiar category of persons a privilege, in very exceptional circumstances, which we do not give to other people.

I can see the practical advantages, as I am sure the whole House can, of allowing people to come together and discuss private matters with such people as marriage guidance counsellors. But they may have to go to a doctor and divulge certain very important matters, perhaps a disease occasioned by an illicit act. If I understand the law correctly, if the court is unable to get the information from any other source, it has no hesitation whatever in compelling the doctor, even though it would be against his Hippocratic oath, to divulge that information to the court. The same would apply to a parson, no matter to what creed or denomination he belongs, to whom the parties might go for advice. He is in no special position. He has no special rights or privileges. I do not think we can grant this privilege to a section of the community without widening the whole of our law relating to privilege.

Mr. Fletcher

In fact, the strict law goes further. It does not even protect disclosures in the confessional.

Dr. Glyn

I am obliged to the hon. Gentleman. When I spoke of the parson, I had in mind, among other things, what is said in the confession box. The law overrides the Hippocratic oath of the doctor and the rights of the priest in confession. On this point, therefore, I feel that we should be very careful, because we are making a very wide departure from the present law.

The Bill will help to mitigate, if not to remove, some of the difficulties and anomalies in our divorce law, and it cannot fail to create harmony in certain aspects of it. I think that the hon. Member for Pontypool was right in saying that we were guilty of a certain amount of hypocrisy. Divorce by consent is illegal, but how many divorces are arranged by, for instance, one party agreeing to commit an act of adultery at Brighton, or something of that kind? If that is not divorce by consent, what is it?

Having considered it, I have no hesitation in supporting the Bill. I am sure that the hon. Member for Pontypool will agree that, if there are provisions in the Bill which are unacceptable to the Committee, he will be willing to get those parts through which are not so controversial and, in that way, put on the Statute Book a Measure which will help to improve the law of divorce. The Bill can, in my opinion, make divorce somewhat simpler in some respects, but—and this is the real advantage of it—it has the merit of being designed to facilitate attempts at reconciliation in appropriate cases so that there is no divorce or, by drawing the attention of the parties to the difficulties, help to preserve a marriage which otherwise would go by the board.

3.18 p.m.

Mr. Charles Doughty (Surrey, East)

I apologise for not having heard most of the speeches in the debate. For this reason, I shall be brief. I was minded to oppose the Bill, and talking it out would present no difficulty to me. However, I intend to do nothing of the sort. I shall make a short speech, referring only to certain detailed matters in the Bill.

Although I agree that the hon. Member for Pontypool (Mr. Abse) is tackling a very difficult problem, I cannot, I regret to say, congratulate him on the drafting of his Bill. When it goes to Committee and he has the assistance of those who will help him in putting its provisions into clearer legal language, he will, I hope, take advantage of the opportunities there so that, when the Bill comes back to the House for Third Read- ing, it will be in much more satisfactory form. Otherwise, it will have a short life.

I turn now to certain matters which, I suggest, will require attention in Committee. It may be that the hon. Gentleman explained his view on some of them earlier when I was not here. First, there is the provision in Clause 1 that the desertion period shall be three years and one month.

Mr. Abse

I did say that this was clumsily drafted. I explained my intentions, and the point was emphasised also by the Solicitor-General.

Mr. Doughty

Then I pass at once to Clause 2, the seven-year separation. This is not new. It has been under discussion for a long time, and it introduces an entirely new conception into the law of divorce. I hope that the seven-year period is not to be the thin end of the wedge and that we shall not have it reduced and reduced until a stage is reached when husband and wife can say, after a very short period of not living together, that they want a divorce. I certainly could not promise my support to the hon. Gentleman if I thought that he would come with a subsequent Bill to reduce the period below seven years.

Clause 2 (2) refers to unreasonable conduct of the respondent. That is entirely and completely incomprehensible, whatever the hon. Member may have said about the drafting. There are certain expressions in the divorce law relating to this matter which have a meaning, but "unreasonable conduct" has none at all. This would require definition by the courts, and I can foresee more than one trip to the House of Lords for the purpose of deciding, if it is possible to decide it, what that means in a particular case.

The hon. Gentleman has not included a definition Clause to show what that means, leaving it, I suppose, for the courts to decide, but I must say that he is thus putting on the courts an almost intolerable burden. I would ask him to get the wording there a little more into line with divorce law practice.

I would merely say that I do not think Clause 3 should be in the Bill, and I hope that it will disappear during the Committee stage.

I agree with the principle of Clause 4, but I am sure that the hon. Gentleman will bear in mind when he is considering his own Amendments that "resumed cohabitation" would not include, for example, the taking of one's husband or wife away for a holiday. "Resumed cohabitation" has a definite technical meaning in law. If one said to a spouse with whom one wished to have reconciliation, "Let us go away for a fortnight's holiday" and it did not work, there would be a question of condonation, and there would be no particular defence against it under the Clause.

Clause 5 is very important, and very difficult indeed. There is a great deal to be said for it and a great deal to be said against it. One thing to be said for it is that it opens the door to a spouse who is unwilling to be divorced to put up his or her terms for coming to an agreement. One meets many cases of that sort.

At the same time, the Clause removes a great deal of hypocrisy and one wants to do that. One has to recognise that there are "bargains", if one cares to call them that, but there are two things in particular that I ask the hon. Gentleman to consider very carefully. Up to now any such agreement, if arrived at, has been unenforceable. A wife who agrees to maintenance at a particular figure can afterwards say "I have changed my mind", and that is the end of the matter. The hon. Gentleman must make these agreements, if they are arrived at, and approved by the court, enforceable.

As I have said, at the moment any such agreement can be changed afterwards. There have been many cases of wives who have agreed to a certain amount in maintenance, and it has almost become part of the terms, and then they have been able to change their minds and ignore the previous agree- ment. If such an agreement is arrived at and is mentioned to the court, it must remain an enforceable agreement between the parties. The Clause does not make that at all clear.

There is another flaw in Clause 5 (1), which states: Provided always that any such agreement prior to the hearing of the petition is disclosed to the court That would exclude—I am sure the hon. Gentleman did not intend this—any agreement arrived at during the hearing. Very often after a day's hearing the parties meet and come to agreement, if that occurred under this Clause, the judge would be obliged to say, "You are too late." This is a technical matter, and I am sure that the hon. Member will look at it during the Committee stage.

I agree with hon. Members about Clause 6. I shall not repeat what they said. I hope that it will not be in the Bill when it reappears on the Floor of the House. The arguments in favour of it are far outweighed by the interests of justice and of arriving at the truth in the particular circumstances as between husband and wife. I have dealt with some of the more obvious drafting faults, and I hope that the hon. Member for Pontypool will deal with them in Committee.

3.25 p.m.

Mr. Dick Taverne (Lincoln)

I intended to make a winding-up speech, but since not a single speaker has been against the principle of the Bill on Second Reading, and all the criticisms can be met in Committee, I do not intend to make it now and I therefore ask the House to give it a Second Reading without a Division.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).