Lords Amendment: In page 1, line 22, at end insert new Clause "A":
A.—Adultery which has been condoned shall not be capable of being revived.
§ 1.40 p.m.
§ Mr. Leo Abse (Pontypool)
I beg to move, That this House doth agree with the Lords in the said Amendment.
The House will be aware that a matrimonial offence is condoned where the injured spouse, with knowledge of the material facts, forgives the other spouse, and confirms that forgiveness by reinstatement in the matrimonial home. Such forgiveness is at present essentially a conditional one, and this Amendment would alter the present circumstances.
If, for example, an innocent wife discovers that her husband has committed adultery, she forgives him conditionally, so that if, subsequently, he commits an offence—albeit, one that would not be sufficient on which to ground a petition for divorce—the original adultery is at present revived. I do not doubt that one of the reasons behind this principle of law that has hitherto prevailed has been a desire that there should exist in the law the possibility of reconciliation, in so far that it would encourage an injured spouse to return to the other party, in the belief that if a further offence took place the opportunity to obtain a divorce would not have been wholly abandoned.
The House will know that material alterations have now taken place as a consequence of this Measure. When an offence has been committed, it will now be possible for the parties to come together for three months and endeavour to reach a reconciliation. This can be done without prejudice to the injured spouse, if there is no reconciliation, being able to petition.
I would, therefore, suggest that there is much within this Amendment to commend it to the House because, clearly, it will now be possible for an injured 2029 spouse to try for three months to decide whether or not the offence complained of can be tolerated. There is much to be said for the idea, which follows from this Amendment, that the offence committed should not, as it were, hang over the head of the injuring party for the rest of the marriage. There must come a time when that should stop.
It seems right that if two parties have been at odds and one of them has the knowledge that the other party has committed adultery, and have, after three months, decided to live together, it is time to bury that memory, and time has been given by this Measure for healing to take place. I therefore think that at the end of three months it is right and proper that the hatchet should be buried, if possible, for ever.
That does not mean, nor should I like it to be thought, that I consider it not to be possible for certain marginal cases of hardship to arise as a consequence of this Amendment It could occur, for example, that an innocent wife could take back a husband who had committed adultery and, after a month or two, or three or four—to make the point more apposite, let us say, after four months—the husband could desert the wife. The wife would not then be able to obtain a divorce for three years from the time of the desertion. She would thus suffer hardship, although she was quite innocent.
However, although that hardship might arise, and I do not think that this point has really been considered in another place, I believe that, on balance, given the changes in the law in Clauses 1 and 2—as long as we have the absurdity of basing our divorce law on the doctrine of a matrimonial offence, as long as we remain wedded to that antiquated and absurd doctrine—this is probably as well as we can do. No doubt the day will come when we turn from the doctrine of the matrimonial offence and take a rational approach to divorce in considering whether a marriage has really broken down or whether, in the interest of the children of the marriage, it should be continued. We shall not then be bedevilled by the complexities contained in this Amendment.
Until that time comes, I ask the House to say, whilst bearing in mind, as I certainly do, that this Amendment may give 2030 rise to some marginal hardships, but that we now have two Clauses which radically alter the doctrine of condonation, that this Amendment is more likely to bring sustained peace within a household in which the parties have decided, after three months, to continue the marriage, because I do not believe that the ghost, as it were, of a past offence should walk for ever within a marriage.
§ 1.45 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I do not welcome this Amendment and I am glad to have an opportunity to indicate my grounds at this early stage so that the learned Solicitor-General, if he is to speak, may have for his consideration the conflicting views that exist on this point. I do not welcome the new Clause, mainly because it seems to me to run basically counter to the spirit and object of the Bill.
I have felt admiration for the energy with which my hon. Friend the Member for Pontypool (Mr. Abse) has worked on this Measure, and I have recognised that one of his main objects is the very admirable one of promoting reconciliation between spouses and to save marriages threatened with a breakdown. This Lords Amendment—coming, I may say, at a very late stage in our consideration of the whole problem—runs counter to that main objective. Its effect will often be just the reverse of encouraging reconciliation, which is why I say that it is adverse to the spirit of the Bill.
Condonation of a matrimonial offence is often a major and vitally important step to the saving of a marriage threatened with disaster, and reconciliation, which is the aim we all say we desire to advance, in a great number of cases derives from condonation. But if the new Clause becomes law, making this important change, responsible counsel advising, say, an innocent wife whether or not to condone her husband's adultery, will be in duty bound to point out the risk attaching to such condonation.
He has to point out that it is a once-for-all decision that she is making, a decision from which there is no going back. When he is giving that advice, perfectly properly, what he is doing is to discourage condonation and by the same token doing something which may 2031 be inimical to the prospect of reconciliation. He is placed in that dilemma by the proposed change in the law.
If I may say so with respect, the arguments against this extremely important Amendment went pretty well by default in another place. Yet strong opinions have been expressed, which surely could have been brought forward and some of which I desire to bring forward now, opposing the change proposed in this Amendment. I have in mind in particular a passage in a judgment, which the Solicitor-General will remember, in the case of Richardson v. Richardson which is to be found on page 22 of the Law Reports, Probate Division, 1950.
In his judgment in that case, Lord Justice Denning, as he then was, said:If the guilty husband after being taken back does not behave properly"—he was dealing in that case with the question of a revival of a matrimonial offence—and the marriage breaks down afresh by reason of his conduct, without any fault of the innocent wife she is entitled to rely on his original guilty act as a ground for divorce.Lord Denning goes on, and I ask hon. Members to have careful regard to the words:Any other view would greatly hamper attempts at reconciliation, for no innocent party would be inclined to take a guilty party back if it meant being tied for ever to an unhappy marriage.Here is an important matter. Here is the Lord Justice saying about the possibility of the revival of the matrimonial offence after condonation that it can have an important significance in its bearing upon attempts at reconciliation.
It is true to say that the arguments in another place for the new Clause which appeared to carry weight were three in number. First, the view was expressed that it had the merit of bringing English law into line with Scottish law. I am a Scotsman by birth and origin and I am very proud of my associations with the profession of the law in Scotland through my father. Nevertheless, I cannot regard that, and I do not expect the House to regard it, as a conclusive argument on the point, but it was one of the three.
It was also suggested that it is wrong that condoned adultery should be revived by a trivial offence. I think that that 2032 might be so, but the present law, as I understand, is that substantial misconduct with consequences which require proof is needed to revive adultery. If trivial matters were allowed to have this effect it would simply mean that the existing law was not being correctly applied.
In the case of Richardson v. Richardson, where Lord Denning delivered the judgment from which I have quoted, there had been conjugal unkindness of a serious and harsh character. It was part of the facts of the case that the wife's health was being affected by it. None the less, on the facts in that case it was held that the conjugal unkindness was not having the effect of breaking down the marriage. There were other factors which were having that effect.
In that case, therefore, although the conjugal unkindness which it was argued should have revived the condoned adultery was affecting the wife's health, because it could not be proved to reach the point that it was causing the break down of the marriage Lord Denning did not dissent from the decision, and it was held that the adultery was not revived. To say that the law makes it possible to revive adultery by trivial matters is incorrect, but this view seems to have received a good deal of support in another place.
The third and main argument in another place was the argument based on the hard case. It was argued that condoned adultery, under the existing state of the law, could be followed by many years of satisfactory marriage, perhaps a decade, and that it was wrong at a late stage, perhaps in old age, that it should be possible to revive the offence. I do not disagree with that, but that point could be met by a limitation provision. I do not think that it should be met by demolishing the whole present doctrine in this rapid and hazardous fashion. To argue from the kind of exceptional case to which I have referred is simply to argue from a hard case to make bad law.
I do not suggest that all the weight of the argument is on one side. I agree with my hon. Friend that there are arguments the other way. Our duty is to balance the arguments and consider their relative weight. I recognise that there will be cases in which the knowledge that after condonation the other spouse can revive the adultery at any time may serve in particular instances to vitiate 2033 the relationship between the spouses and mar the prospects of reconciliation. We are dealing here, of all matters, with personal matters, and with certain temperaments and personalities I acknowledge that that might be the result, in some cases, of the existing state of the law.
I suggest, however, that there would be as many cases, perhaps more, in which the right to revive will check the guilty spouse from further misconduct and thereby prompt the prospect of reconciliation. It is a valuable check for a person who has been guilty once to know that this difficulty and disadvantage may come his way if he errs again, even if it is something less than an error which by itself would constitute ground initially for relief by divorce.
I think that, on balance, the existing state of the law is one which gives the better prospect for reconciliation. One has to remember in this connection that the point of danger is not in the early months after reconciliation. That is why I am not very content with the suggestion that the difficulty to which I am pointing is substantially mitigated by the Clause in my hon. Friend's Bill relating to the three months period of experimental reconciliation. It is after an interval of time longer than that when the philanderer is likely to go astray again.
I have spoken at some length because I attach great importance to this matter. I want it to be quite clear that I do not like the Clause. It will often stand in the way of reconciliation, for the reasons which I have given. It will result in injustice. My hon. Friend gave an example of the kind of injustice that it might create and it was a very formidable example. It was only one of many but if I may say so, it was well chosen.
The case my hon. Friend mentioned, quite rightly, was of an innocent wife who has condoned her husband's adultery, and then she is deserted. By virtue of the new Clause—not by virtue of anything else, not as a consequence of the existing law of England—this woman will find that she has to wait three years before she can obtain relief against her deserting husband. This is a serious matter. Surely this is something which justifies the proposition that I made earlier that the new Clause runs 2034 counter to the spirit and the purpose of my hon. Friend's Bill.
In addition to that, what logic is there in a system of law under which condoned cruelty can be revived when condoned adultery cannot?
I am placed in a great difficulty in a matter of this kind. I think that that will be understood in all quarters of the House. At a late stage in the consideration of this Bill it is sought to slide in this important new Clause. I do not want to imperil any hon. Friend's Bill, but I am most disquieted by what has occurred and is occurring. As I say, the argument against the Clause has very largely, perhaps almost entirely, gone by default until now. If any hon. Member can suggest an appropriate fashion in which this important matter can be dealt with more satisfactorily without putting the whole Bill to risk, nobody would be better pleased than I.
As I say, I do not want to imperil my hon. Friend's Bill, but I am glad that it should be on record that I think that the new Clause is a mistake.
§ Mr. Eric Fletcher (Islington, East)
I feel sure that nobody will resent my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) having spoken at some length on this Amendment. I am sure the House will agree that the Amendment introduces a very important new concept into the law of England, and I feel that my hon. and learned Friend has rendered a service in having put forth arguments against the proposed Clause. I acknowledge that my hon. Friend the Member for Pontypool (Mr. Abse) did not exactly speak with great enthusiasm in commending this Amendment.
I feel that nobody would wish to imperil the passage into law of this Bill, and it is worth while trying to answer some of my hon. and learned Friend's arguments and stating the principal reasons which have induced me to support this new Clause. I have come to this conclusion, for reasons slightly different from those of my hon. Friend the Member for Pontypool. I believe that even apart from the Clauses in the Bill, even if the law of England had not been changed at all, this particular change is, on balance, desirable.
2035 I will give my reasons. First, I would not support it if I thought this Clause was going to make reconciliation more difficult. I can appreciate that there may be marginal cases in which it may perhaps militate against reconciliation, but I believe that, on the whole, we shall be ensuring justice in the majority of cases by making this change in the law.
I am never impressed by the argument that we should change the law of England because by so doing we should be putting it on a parity with the law of Scotland, but it is worth while reminding ourselves why this doctrine of revival has never been part of the law of Scotland. There is something artificial about a doctrine that adultery, once condoned, can be revived. That amounts not to condonation but to conditional condonation—conditional forgiveness. It could be argued that conditional forgiveness is a contradiction in terms. It could certainly be argued that it is undesirable in principle.
The law of Scotland, which has never recognised the revival of an offence once condoned, was justified by Lord Blackburn in these words: he said that the doctrine of revivalis strongly objected to as varying the status of married persons. On principle, a reconciliation being entered into with full knowledge of the guilt and with free and deliberate intention to forgive it, when that reconciliation is followed by living together as man and wife, the status of the couple ought to be the same and not more precarious than if there were a new marriage.In other words, it is argued, and I think with cogency, that forgiveness as between husband and wife, or indeed in any other human relationship, is something that ought, particularly in the relationship between husband and wife, to be final, complete and unconditional. There is something repugnant about the whole conception of forgiveness being conditional.
I think historically the reason why this idea of revival after condonation ever arose was because until the Herbert Act was passed in 1937 a wife could not obtain a decree for divorce on the ground of adultery alone. There had to be some other matrimonial offence as well—either desertion or cruelty. There were, naturally, a number of cases in which adultery had occurred and had been condoned and then had been followed by some other matrimonial offence, perhaps cruelty or 2036 desertion, and the wife was in the difficulty that she had condoned one offence and now had ground for complaint, but the law did not enable her to have her marriage dissolved unless she could argue that the second offence—for example, cruelty—had revived the earlier matrimonial offence of adultery which had been condoned. Therefore, as I understand it, the law grew up in that fashion for the protection of injured wives.
But when the law was changed in 1937 following the recommendations of the Royal Commission on Divorce, which reported in 1912, and when for the first time a wife was entitled to obtain a divorce on the ground of adultery alone, of desertion alone or of cruelty alone, the justification for the whole doctrine of revival of a condoned offence disappeared in substance and in theory. But, unfortunately, it did not disappear from the law, not being formally abolished in the 1937 Act.
§ Mr. A. J. Irvine
I am following my hon. Friend's argument with great interest. It was the historical justification, to which he has already referred, which confessedly disappeared at that point, for the reasons which he has indicated. I would not argue to the contrary on that. But it was the historical, and not any other justification. I am sure that my hon. Friend will address himself to the contemporary issue.
§ Mr. Fletcher
I shall certainly do so. I was merely mentioning the historical aspect to put the matter into perspective.
On the contemporary aspect, one finds that a matrimonial offence is committed and is condoned and there is, presumably, forgiveness, reconciliation and a desire on the part of both parties to start afresh—a desire which I think is enhanced by the features of the Bill. What is the position them? If some further matrimonial offence is committed by one of the parties, the husband for the sake of argument, the wife has her full remedy. If there is a further matrimonial offence of adultery, cruelty or desertion entitling the wife to a divorce, she is no worse off at all than if she had not condoned the first offence.
It cannot, therefore, be said that by condonation one has removed the possibility of getting a divorce subsequently 2037 if further facts of themselves justify a divorce. But so long as this doctrine of revival after condonation remains part of the law the situation is that for some conduct less than would justify a divorce in itself a spouse is entitled to say that the condonation should be removed and that the earlier offence should be deemed to have revived so as to entitled him or her to go back to it and rely upon it for a divorce.
The question is, and my hon. and learned Friend faced this quite properly; what is the conduct less than a matrimonial offence which revives condonation in the law as it stands today? My hon. and learned Friend suggested that in another place they had mistaken what the law was. I am not at all sure that anybody is very clear about it. It cannot be argued that some trivial misconduct, such as being late for breakfast, revives a matrimonial offence which has once been condoned, but my hon. and learned Friend suggested that if a husband does not behave himself properly, that would justify a wife in reviving adultery that had already been condoned.
But what is meant by "behaving one-self properly"? There have been cases in which, as the law stands, unkind conduct by a husband amounting to something less than cruelty has been held to revive a condoned offence. It must, of course, be a matter of judgment and a matter of degree in each case as to whether this highly artificial doctrine of reviving a matrimonial offence after conditional condonation arises or not. Anyone who is familiar, as my hon. and learned Friend and other hon. Members present are, with the cases in the Law Reports must know how complex and unsatisfactory this situation is, which in itself makes it very difficult for practitioners to advise about it.
My hon. and learned Friend has referred to one case. The matter arose in a very pertinent form in the case of Beard, where Mr. Justice Vaisey gave a dissenting judgment from which I should like to quote a passage because be gave the reasons why this doctrine of reviving a condoned offence should be abolished and used words on which, I am quite sure, it would be impossible for me to improve. This was some ten years ago. What he said represents not 2038 what the law is now but what the law should be as Mr. Justice Vaisey would have liked it and as it will be if this Lords Amendment is accepted.
Mr. Justice Vaisey said:With all respect to those who think otherwise, there seems to me to be something almost inhuman in a law which enables a wife or a husband to obtain, as of right, a divorce from the other in their old age, upon the ground of one single act of adultery committed by the other in the time of their far off youth and immediately condoned, but now raked up from the past upon some petty provocation insufficient in itself to be a ground for the relief so tardily sought. No Statute of Limitation applies to such a case, no plea of acquiescence or delay or unreasonableness could avail, nor could the court draw any distinction between a single act of adultery committed under exceptional temptation, and a series of such acts of a really heinous character. In the circumstances of the present time, there must be many husbands and wives who have erred and been taken back, and I cannot but think that it would be in the public interest that they should hold their forgiving spouses upon a firm rather than a precarious tenure.That seems to me to be the doctrine that I would wish to see established in the law of England, and it is for these reasons that I hope that the House will adopt the Amendment which has been introduced into the Bill—
§ Mr. Niall MacDermot (Derby, North)
Before my hon. Friend finishes, might I ask him whether all the arguments that he has been putting forward would not apply equally to the abolition of the doctrine of revival as applied to cruelty? Is that his view, or does he think that a distinction is to be drawn between revival of cruelty and revival of adultery?
§ Mr. Fletcher
This is a point to which my hon. and learned Friend also referred. My observation on that is that I appreciate that this Bill, which I regard as an improvement in the present law of divorce, does not produce an ideal system of divorce or of reconciliation. I recognise that anomalies will remain, but anomalies will probably always remain in whatever matrimonial law we have. My hon. Friend the Member for Pontypool and I did not agree about various Clauses he wanted to introduce and which are no longer here. All we can do is to get the Bill in the best form in which we can get it with the material we have at hand.
On the specific question asked by my hon. and learned Friend the Member for Derby, North (Mr. MacDermot), I am 2039 inclined to think that the same argument against the revival of condoned cruelty would apply to the argument I have been using against the revival of condoned adultery. I do not express a final opinion on that. This is only my offhand opinion. But whatever is the true view of it this argument cannot be one for resisting this Amendment.
I have no doubt that, in subsequent sessions, particularly if my hon. Friend the Member for Pontypool is again lucky in the Ballot, further opportunities for changing the divorce law will arise and that, I believe, will be sufficient time to deal with any question of change concerning the revival of condoned cruelty. I apologisefor having spoken so long but this is an important subject. It is important that the House and the public should know the serious changes that are being made in the law and the reasons that have at any rate influenced some of us to support them.
§ The Solicitor General (Sir Peter Rawlinson)
I only speak on this Amendment because the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) seemed to assume that I would, as he put it, deal with this matter. But, as I have said on many occasions, the position I adopt on behalf of the Government on this matter is to tell the House that this question, like others in this Bill, is something for the personal judgment—and conscience, as it affects certain parts of the Measure—of hon. Members. Indeed, I remember that the hon. Member for Pontypool (Mr. Abse) good humouredly teased me at the end of the Committee stage in this House by saying that I had maintained an Olympian aloofness.
Different views have been expressed. No one would complain that anything raised by the hon. and learned Member for Edge Hill, is stated too lengthily or does not contain very good sense and sound argument. He presented views which are undoubtedly held, and have been held for many years in the past, by many people. On the other side of the issue, views have been presented not only by the hon. Member for Pontypool but also by the hon. Member for Islington, East (Mr. Fletcher).
It is to me clear that what motivated people in another place, and may 2040 motivate hon. Members here, is the conception of absolute and complete forgiveness—that, in effect, a new marriage is created by absolute forgiveness of adultery by the innocent spouse and the acceptance back of the guilty partner into the relationship of marriage, completely wiping out the offence. That is something which many people might consider strengthens rather than weakens the opportunities for reconciliation.
If that is so, it would flow from it that there would have to be another full matrimonial offence before the innocent partner who had received back the erring spouse would have grounds for divorce: that is, adultery in such circumstances could not be revived by conduct less than a full matrimonial offence which, under the present law, would allow a spouse to institute proceedings.
I am not advising the House as to which course to follow. But one point was raised by the hon. and learned Member for Derby, North (Mr. MacDermot) about the position of cruelty. The difference was shown and was accepted by Lord Blackburn in the case of Collins following the Royal Commission on Divorce in 1912. For cruelty is nearly always a series of acts, all of which, except the last, would have been condoned. If it is only uncondoned acts which could be relied on, they would not in many cases be sufficient to establish cruelty, whereas a case of cruelty can usually be understood only if the whole range and extent of what has occurred is considered.
So we do, at the moment, have a distinction between condonation of adultery and condonation of cruelty which was accepted by Lord Blackburn in the Collins case following the recommendation of the 1912 Royal Commission.
This issue, however, is a matter for the judgment of hon. Members. Both positions have been accurately presented for the judgment of the House. But hon. Members will take into account the consequences of any action they take. It may be that they think that there are parts of this Measure which they find sufficiently attractive to make them feel that it may not be wise seriously to extend this argument into a real challenge to the Bill as a whole.
Therefore, I suggest that, taking account of both sides of the argument, that may 2041 be the course the House may prefer to follow.
§ Mr. MacDermot
I find this a very difficult question. My own views have swung somewhat in considering it, but I am inclined to think that the Amendment is right and that there is really a distinction to be drawn between condonation of adultery and condonation of cruelty. There are obviously very strong arguments either way.
The essence of the distinction surely is the very different nature of the offences. The offence of cruelty is an offence directly committed at and aimed at the other spouse. There is no question of secrecy about it. It is know at the time. If one party has been guilty of cruelty it is asking a good deal, as it were, of the other party really to condone that and make an effort, in spite of the cruelty, to make a success of the marriage.
If the innocent party does it, then surely if it is seen that the guilty party is not mending his ways that ought to be sufficient to relieve the innocent party from again being subject to all the duties and bonds of the marriage oath. If what is being condoned is cruelty, then it seems to me that it is reasonable to allow what my hon. Friend the Member for Islington, East (Mr. Fletcher) rightly calls a full condonation, because it must be subject to the condition "Yes. I am prepared to try to make a go of the marriage provided that you try to mend your ways." On the first sign that the guilty party had not changed his ways, surely the other spouse should be in the same position as if cruelty had not been condoned.
The position about adultery seems to be quite different and in many cases might be very different. Adultery, of course, is committed with another party and if once the innocent party is prepared to forgive the offence, it is not asking anything intolerable that that forgiveness shall be absolute. It is very difficult to see how that marriage could start again if the forgiveness were only conditional and if the guilty party always had a Sword of Damocles hanging over his head, with the offence of the past liable to be brought back as a result of some relatively minor matrimonial misconduct.
2042 Another point is that if a party has been guilty of adultery and is genuinely repentant and wants to make a success of the marriage, there can be no doubt that confession, of that adultery may in certain circumstances be the most successful way of wiping out that offence and of enabling the marriage to have a real chance of being restored, remade and succeeding. If we abolish the doctrine of revival and condonation in relation to adultery, it will become much easier for the guilty party to confess in circumstances where he might reasonably hope that lie will obtain forgiveness, and that is surely desirable.
I have never liked the doctrine of revival. I well remember the first time I came across it in a court case and thinking that it was a doctrine far removed from what in many circumstances one would think was justice and fair play. It is a doctrine which can be used rather spitefully. As I have said, I think that it is probably right to continue the doctrine in relation to cruelty, but I have also come to the conclusion finally that it is right to abolish it in relation to adultery.
§ Question put and agreed to.