HC Deb 03 May 1963 vol 676 cc1555-68

(1) A petition for divorce may be presented to the court either by the husband or by the wife on the ground that the parties to the marriage have separated and thereafter have lived apart for a continuous period of at least seven years immediately preceding the presentation of the petition, and there is no reasonable probability of cohabitation being resumed.

(2) A petition may be presented on the ground aforesaid (in this section referred to as the "ground of separation") notwithstanding that the separation was brought about by the action or conduct of one of the parties, whether constituting desertion or not and not-withstanding that there was in force between them at any material time a decree of judicial separation or an order having effect as such a decree or an agreement to live apart.

(3) A decree of divorce shall not be pronounced on the ground of separation if it appears to the court that by reason of the conduct of the petitioner, whether before or after separation began, or for any other reason (including any doctrinal or conscientious objection by the respondent to divorce as such), it would in the particular circumstances of the case be harsh and oppressive to the respondent or contrary to the public interest to pronounce a decree on that ground.

(4) Without prejudice to subsection (3) above, the court may refuse to pronounce a decree on any petition on the ground of separation until the petitioner has made such provision (if any) for the maintenance or benefit of the respondent and any child to which section 26 of the Matrimonial Causes Act 1950 applies as the court thinks proper in the circumstances of the case.

(5) Where petitions for divorce presented by both parties to a marriage are before the court, the court shall not, upon either of those petitions, pronounce a decree on the ground of separation if it can properly pronounce a decree upon the other petition on any other ground; and for the purposes of this subsection an answer praying for divorce shall be treated as if it were a petition for divorce.

(6) Subject to the provisions of this section the court, if satisfied on the evidence that the case for a petition presented on the ground of separation is proved, shall pronounce a decree of divorce, and if not so satisfied shall dismiss the petition; and section 4 of the said Act of 1950 (except so much of subsection (1) as requires the court to inquire into the facts alleged and any counter charge) shall not apply to such a petition.—[Mr. Abse.]

Brought up, and read the First time.

2.42 p.m.

Mr. Leo Abse (Pontypool)

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

The Clause more precisely and perhaps more elegantly puts into effect the intention of the Standing Committee which, by its majority, accepted the principle of the original Bill, a principle involving a seven-year separation, but was more attracted to the from in which this has been done under the five-year provisions now working so effectively in Australia, a Christian member of a multi-racial Commonwealth. The Clause approximates to the Australian legislation but provides even greater safeguards and certainly is much more sensitive to religious beliefs than either was my original Clause or is the Australian legislation.

In brief, by this Clause any party to a marriage who has lived separate or apart from his other spouse for a continuous period of seven years can apply to the courts for divorce but, as hon. Members will see from the terms of the Clause, there is no question at all of an automatic decree being granted even though the other party, the respondent, does not object. In subsection (3), it will be observed, there are stringent requirements, and a duty will fall upon the courts to be satisfied in the particular circumstances of the case, having taken into account doctrinal or conscientious objection by the respondent, that divorce would not be harsh and oppressive to the respondent or, indeed, contrary to the public interest. Moreover, the court would be able to refuse a decree until a man had brought his maintenance up to date. If one examines it closely, it is not surprising that in some quarters it has been commented on as a very mild reform.

Yet this mild reform embodied within the Clause arouses and has aroused formidable opposition. At present, if a suburban wife, married for years, with a dozen children, in a moment of madness has a quarter-of-an-hour's adultery with the milkman, the husband can obtain a divorce. If a woman, afflicted with boredom, suddenly says to a much-married husband, "Goodbye. You weary me", and leaves him, then within three years the husband can claim a divorce. If a husband, married for years, irritated with the chatter of an empty-headed wife, vigorously smacks her about the head a number of times over a number of months, it is possible for that woman to bring to the court a petition on the grounds that he has been guilty of cruelty.

Why, then, when all this is possible in England and Wales, has this Clause, which, as hon. Members will see, permits divorce to take place in marriages so dead that the parties have been apart, often by mutual consent, for more than seven years, aroused so much opposition? The Times has told us that for the first time in history the Churches of all denominations—albeit presumably for a brief moment only—have come together to make a doctrinal pronouncement condemning the Clause. Archbishops and bishops in Press and on television have, week in and week out over the last month, attacked this Clause or the principle of the Clause, complaining that someone bringing in what they have described as such valuable reconciliation Clauses should be so utterly misguided as to bring in this attempt to give legal recognition to the fact of sepulchred marriages.

The President of the Divorce Court felt so passionately about this modest little Clause, which is far removed from the permissive laws which characterise all the Christian countries of our E.F.T.A. allies, that, in total breach, in my view, of constitutional etiquette he plunged into a partisan attack upon the Bill, apparently having forgotten that he ever quit this House and has become a judge whose duty it is to interpret the law and not to usurp the function and duty of the House.

A stranger to this land, knowing that it is not a theocratic State, knowing perhaps that Archbishop Cranmer in the sixteenth century specifically recommended what this Clause implements, may wonder what is the reason for all this strange clamour. The hon. Member for Plymouth, Devonport (Miss Vickers) has recently come back from the United Nations. She has told me how at this moment scores of nations are occupied in considering radical alterations to their own divorce laws.

Why, then, this clamour? Is it perhaps, as I believe, that the real reason is that the Clause if it became law would be the first attempt to emancipate divorce law from all the humbug and pretence which, in my view, exists because divorce law is now choked by the doctrine of the matrimonial offence? At all costs they are seeking to maintain the fiction that in every divorce there must always be a so-called guilty and a so-called innocent party. To maintain this fiction the present law requires that a charade must be conducted even if it allows the party perhaps morally responsible for the breakdown of a marriage to masquerade as the one who is legally innocent.

At present the law directs that if two parties want a divorce, then to maintain the myth that divorce can never be obtained by consent in this country one of the parties must affect to commit adultery or must commit adultery or must declare that the matrimonial home has been quit without the consent of the other or must not defend extravagant allegations of cruelty. Nothing but honesty can prevent two parties to a marriage at this moment in this country, who want a divorce, from obtaining one. Solicitors and judges are deceived regularly. How many of the decrees in undefended cases of desertion and cruelty could possibly be granted if they were defended?

But the sanctimonious, defending, they claim, the sacrament of marriage, attack this little Clause, saying that two people who have honestly signed a separation agreement for ten or twenty years must never be granted a divorce because to permit this would be permitting divorce by consent. To what further point could hypocrisy be pushed? The more I think of this problem the more I realise the origin of the profound difference of view between those who support the Clause and those who are against it. I believe that there is a difference between us. I know that hon. Members on both sides believe passionately in the justice of their case. The difference is this: the opponents of the Clause conceive of marriage as a sacrament in its own right, permanent and indissoluble. I believe, and I believe most of those who support this Clause believe, rather that marriage is an institution rooted in the family.

Once that view is taken, important consequences follow. One of them is that, if the state of the marriage is inimical to the welfare and health of the family and the children, or the children, then on this earth, whatever may be the position in Heaven, it should be possible for the marriage to be dissolved. I believe that the true significance of marriage is not only in the ceremony, be it in a church, a synagogue, or a registry office. It is cohabitation in love and affection in the home of the family. When that has been irrevocably ended, as clearly nearly always must be the case when the parties have been apart for seven years, in the name of rationality how can that marriage be described as having any reality on this earth?

Frankly, the Clause introduces consequentially the principle that the state of a marriage is to be looked at. The Clause implies that the law must recognise that adultery is usually the symptom or the sequel of a marriage which has already broken down, not the cause of a breakdown. Opponents of the Clause, recognising that this is a departure, as indeed it is, from the medieval, ecclesiastical law, recognising that we are applying our minds to the state and condition of the marriage rather than to symptoms of its breakdown, are clearly frightened by its novelty.

In fact, in my view, those who oppose this Clause are surely, although I know they sincerely believe otherwise, bringing marriage itself into contempt. Thousands of people are living now in permanent cohabitation debarred from marriage because they are still tied to partners whom they married decades ago, oft-times in their youth. A high proportion of them, as I well know from the thousands of letters I have now received, are casualties of the First World War and the Second World War. I know that many of them—indeed, most who have corresponded with me—are old people, people in their sixties, seventies and in many cases in their eighties, who have written to me saying that before they meet their Maker they wish to regularise their relationship and to legitimise their children. By compelling them to live together without hope of marriage, does one instil greater or lesser respect for marriage?

No law can mend marriages broken seven or more years ago, unfortunately, or compel the ending of illicit unions founded on mutual love and respect and children. Judging by the comments of Sir Jocelyn Simon, one would imagine that middle-aged and elderly men remain married to partners of their own age only because if such husbands left their wives a divorce would be unattainable to them. This is an extraordinarily pessimistic view, in my opinion, of the relationships governing married partners.

My own experience is that the longer I am married the more I enjoy it. I am pleased to say that this is the experience of the overwhelming majority of our community. That is why 93 per cent. of the people who get married have permanent marriages and there is no question of divorce. This is not because of the laws that insist upon monogamy. Middle-aged people have happiness in their marriages, not because of laws. It is because the enjoyment of marriage does not fade with age. On the contrary, for the overwhelming majority, understanding and maturity, the shared moments of sorrow and ecstasy, the common interest in children, the vissitudes overcome together over the years, the shared memories—all these make marriage a deeper relationship as the years go on. It is love, not laws, that keep middle-aged and elderly men and women together in a happy monogamous relationship. Those who think, if I may adopt the words of Sir Jocelyn Simon, that in the autumn of their lives men will abandon their wives if this Clause is passed and go off, wait seven years, and then in the winter of their lives obtain a decree and remarry some young chit have a very curious view, in my view, of what life is like among middle-aged married couples.

If this Clause is rejected, who will benefit? Certainly no blameless wife, for the Clause is hedged in, some would say, with so many excessive safeguards that no blameless wife could ever be affected. The person who would benefit is the man or woman who, afflicted with envy, greed, spite or neurosis, refuses to release a partner and will be able to continue to deny freedom to a spouse whom perhaps he or she has not seen for over a decade and condemn him or her to be in an ambiguous status. Above all, those who will suffer if this Clause is rejected are 200,000 little ones, born into permanent but illicit union who, without this Clause, are condemned, in my view, to be brought up in an atmosphere of guilt and deceit and never to be legitimised.

I have always regarded my Bill as a Bill not about divorce but about family. I have always regarded this Clause, as all the other Clauses, as designed to give greater stability to family life. This Clause I have brought in primarily for the benefit of children, but it is quite clear, and it has been vigorously expressed outside and inside the House, that there are many who think otherwise. It has been indicated to me by those Members of the House who fully share the views expressed in the statement issued by the Church leaders that, if I pursue this Clause, using the procedural devices properly open to them, this Bill will be talked out. That would mean that not only this Clause but all the other Clauses of the Bill, most of which, as the House knows, are designed to promote reconciliations, will all be consigned to limbo. That would mean that not even the little help that could be made available legislatively to help the welfare of family life would be made.

Because of this consideration, because I must put this before my pride and my passionate belief in the morality of this Clause, with a heavy heart my sponsors and I have no alternative but to yield to the duress imposed upon us. I am aware that this may cause deep disappointment and grief, as it does to me, to many thousands who hoped Parliament would release them from their present plight. I hope that they will be a little heartened by the understanding shown by so many in the national controversy this Clause has aroused and be assured that the sponsors and I will keep on trying on future occasions—perhaps in a fresh Parliament—to change what we believe to be wrong in the present law.

If, therefore, the opponents of the Bill—I know that there are Members such as the hon. Member for Woking-ham (Mr. van Straubenzee) who is in a position to speak for many Members who are opposed to me—indicate that, should this Clause be withdrawn, they will give as much help as is within their power to put through the valuable reconciliation and other Clauses in the Bill, with the most profound reluctance I, because I have no alternative, and my sponsors too, at that stage will perhaps be able to ask the House for leave to withdraw the Clause.

I am aware that some may say that I should not indicate this but should sacrifice all the Bill rather than accept a truncated Measure, but I hope that the House, and all those hon. Members on both sides who have so generously supported the Bill will, if the assurance that I am seeking is given, grant me that leave, although I realise that they will be as reluctant to give it as I shall be reluctant to ask them for it.

3.0 p.m.

Mr. Norman Cole (Bedfordshire, South)

We all appreciate the statement of his views expressed by the hon. Member for Pontypool (Mr. Abse) and, later, his acceptance of an inevitable position, but I must point out that much of his pleading was very special. He spoke of the trouble for children in families where the marital atmosphere is inimical, but did not mention the atmosphere in those homes where there is a divorce. He referred very much to what happens when parties are separated for seven years and one of the parties does not wish for a divorce at all, but said nothing at all about what worries many hon. Members on both sides—the reluctant divorced person who did not wish for divorce but has undergone it, irrespective of the caveats contained in the proposed new Clause, because of what would be the process of law. All of this is rather special pleading for the Clause and, with great respect, it does not state the whole case fairly.

I rest my own very strong objections to the Clause—and I know that my objections are as strongly shared by many hon. Members on both sides—on two grounds. First, I believe that, contrary to what the hon. Gentleman has just said, in anything we do to facilitate divorce we are hitting at the sanctity of marriage—hitting at the fundamental. To quote what is known to us all, a divorce is only an expedient; what we are really concerned with is marriage.

Secondly, even if I could accept the purport of the Clause, I could not, in ordinary common justice, accept the position that an unwilling partner to divorce could, irrespective of what they wished, have something thrust on them that would alter all the rest of their lives. I am not at all satisfied that the qualifications and safeguards in this new Clause would always necessarily work. So much would depend on the respective resources of the two individuals, on the availability of legal aid, even on the state of health—and particularly the state of health of the reluctant party.

Therefore, on grounds both of common justice and of conscience, I would have opposed the new Clause, if necessary in the Division Lobby, and I am glad that the hon. Gentleman is prepared to withdraw it. I hope that he will realise that although we respect his sincerity we think that he is wrong, and I hope that, in return, he will accept the sincerity of our views.

Dr. Alan Glyn (Clapham)

The object of our Amendment was to improve the Clause as it stood on the Order Paper after the Standing Committee had dealt with it, but there is no doubt that we are asking for a very real and radical change in our law. In view of the position, we have agreed that it is not possible to persuade the House to give this new Clause a Second Reading, whether or not it is desirable. Therefore, the course indicated by the Member for Pontypool (Mr. Abse) is really a method of getting on to the Statute Book those uncontentious parts of the Bill that we think are worth preserving, and so improve our divorce laws.

In considering the new Clause, we would have had to ask three questions. First: would it have been of value in legitimising children? Secondly: would it, or would it not, by removing certain obstacles, have improved the marriage bond? Thirdly: would it, or would it not, have touched deeply those who felt that, if the law was altered, it would affect their own religious beliefs? Personally, I should have thought that their own views would have been dictated by their religious beliefs, and that, for them, divorce law was not so important.

I feel that the only course open to the House now is for it to give leave for the Clause to be withdrawn, thereby enabling us to preserve some of the really good and uncontentious parts of the Bill which, in themselves, will be of considerable value in improving our divorce laws. I therefore share the desire of the sponsor of the Bill that, in the general interests of improving the law, the Clause should be withdrawn.

Mr. W. R. van Straubenzee (Wokingham)

I intervene very briefly because the hon. Member for Pontypool (Mr. Abse) was good enough to make reference to me, I think because I was a Member of the Standing Committee examining the Bill, and, with other hon. Members on both sides of the House, was particularly associated with the opposition to Clause 1. I want, therefore, to take up the suggestion which he put to me at the end of his speech in these terms. Plainly, we have two courses of action open to us.

If the matter were to be debated fully, as a matter of this great importance well could be, quite plainly we should make no more progress and there would be a very short debate on this very important subject. On the other hand, those who take my view have always been quite consistent about this. Up to the limit of our ability we have tried to assist the hon. Gentleman in the remaining Clauses because there is much that is exceedingly valuable in the remaining parts of the Bill, and we have tried to express that on the Notice Paper.

If, therefore, it were to commend itself to those who take the same view as I do, I would hope that we should be able so to contain ourselves that we did not attempt to answer the hon. Gentleman's highly contentious remarks, which, I know, he holds with sincerity. It must be put on record, however, that those remarks are not being answered simply out of consideration for the remainder of the Bill. If that is quite clearly understood, I hope that those on both sides who think like me—we are wholly non-party today—would on this occasion be prepared to say no more, in the hope that in the limited time available it might be agreeable to the House to give appropriate assistance to the remaining parts of the Bill.

Mr. Ronald Bell

The hon. Member for Pontypool (Mr. Abse) made a very eloquent speech setting out his point of view on this matter. I am in some difficulty because I am not quite sure what sort of action he proposed at the end of his speech. So far as I am concerned, it is not merely the new Clause to which I object, but also to Clause 1 as it stands, unreplaced by the proposed new Clause. I would at the outset want to be reassured about what the hon. Member has in mind.

Mr. David James (Brighton, Kemptown)

Surely the hon. Member must have noticed that the hon. Member for Pontypool (Mr. Abse) has himself tabled an Amendment, which a great many of us support, to delete Clause 1.

Mr. Bell

My hon. Friend is mistaken about that. The hon. Gentleman has put it on the Notice Paper and will move if he is called, but no Amendment to that effect has yet been moved.

Mr. Abse

I hope that I shall have an assurance from the hon. Member for Buckinghamshire, South (Mr. Bell) similar to that I have kindly received from another hon. Member. I hope that that could be given; and as to the residue of the Bill, the hon. Member has my undertaking, with those who have their names to the Amendment in question, that that Amendment wall be moved.

Mr. Bell

I am very much obliged to the hon. Gentleman because that was the very point I was making. However, he will understand that it is not within his sole power to give an appropriate undertaking. I also wanted to know if those who support him in his Amendment to Clause I would consent to his moving it. I am sure that he will understand that anyone on this side who is opposed to his views must be concerned on these issues. If that Amendment were not moved we would find ourselves in a very difficult position. On that understanding I will say very little.

I find it impossible to let this moment pass without any reply to what the hon. Member for Pontypool has said. He will know that many people feel very strongly about the subject raised by his Bill. He presented his case today in a highly controversial way, as he was fully entitled to do. It would be a pity if the case for Clause 1, either version of it, were presented in so highly controversial a way and we were then asked not to have a debate on it.

I would not like it to be thought that those of us who object to his proposals for divorce after seven years' separation do so on any narrow grounds of resisting progress or of prejudice. We do so because we genuinely believe that such proposals would be wholly inimical to the institution of marriage and the happiness of the people of this country. This is a Christian country and those of us who hold the Christian religion are entitled to say that the general atmosphere of our laws should be based upon the basic tenets of that religion. Furthermore—and apart from the religious aspect—I would like to point out to the hon. Member for Pontypool that the objectives he says he has in mind are more likely to be defeated than advanced by the proposals he makes.

I have never been satisfied that to facilitate divorce is to increase human happiness or to consult the true interests of the children. I speak on this matter not as one who has become suddenly interested in it. As the hon. Member will know, proposals of this character have been brought before the House in the past. I have never hesitated to oppose them or to give my reasons for doing so. The hon. Lady the Member for Flint, East (Mrs. White) introduced such a Bill and it has been a constant agitation. We have heard about that already.

I wish—and it is not my intention to talk the Bill out this afternoon—to state my views on the Measure. I think that the hon. Member for Pontypool overlooks the fact that the consequences of entering upon marriage, in the sense of the ease or difficulty of divorce, affect the attitude of mind with which people enter upon marriage. I have always felt that Sir Alan Herbert, a good friend of mine, was gravely at fault in that respect because in introducing his Bill in 1937 he pronounced on the principle that what happens later for the relief of hardship would never affect the state of mind in which people enter upon the estate of marriage. I am sure that that is wrong. People are really quite sensible. They know in the community around them how easy or difficult it is to get divorced.

What happens if it is easy? Every married couple runs into difficulties at some time. It is a great adventure to set up in life together and, in the years that follow, they go through periods of coolness, hostility, difficulty and the rest of it. It is of the greatest help to them to be held together by a formal bond imposed on them by themselves but recognised by the community. Children also help to hold them together but, unfortunately—as everyone knows—the presence of children is not sufficient in all too many cases to hold the parties together.

3.15 p.m.

Nobody who has any knowledge of what goes on in the community, whether as a lawyer or not, can be in any doubt that there are far too many divorces and that many of these people are divorced because they have not tried hard enough to live happily together. They have given up trying at just about the point where trying should really begin. They will never be short of phrases about the right to seek freedom and happiness.

and that kind of thing, to justify their weakness, their pusillanimity and their quick surrender. All people are held by the strength of the formal bond of marriage, and what the hon. Gentleman proposes would weaken the strength of that formal bond. It is there to hold people through the difficult times of life. If people can walk in and out of marriage, it is simply not there at all.

Therefore, on grounds quite apart from those of religious belief, I personally have always opposed any further extension of the grounds for divorce, as being contrary to the true interests of the individual, as depriving him or her of the right to bind himself or herself for life, which is a very important freedom or liberty, and as damaging to the children because it removes something which helps to keep their parents together.

Those, greatly compressed because of the circumstances, are the matters that I want to put before the House as on earlier occasions I have put them more fully. I think it is right that they should be said in answer to the hon. Member, because too easily this impression gets abroad that all motion in one direction is progress, that if we have started from a state where there was no divorce except by Parliament, and then we have extended it a bit by allowing divorce on the ground of a wife's adultery, and then we have extended it by including a husband's adultery, and bringing in cruelty and desertion, then the inevitable, right and proper progress of human society is for that process to be continued in the same direction by further extensions of the grounds for divorce. It is this rather weak kind of extrapolationism which underlines many people's thinking on this subject. I could not allow this occasion to pass today without formally and publicly challenging that attitude to these affairs, even though on this occasion I shall not further oppose the hon. Gentleman's Bill.

Mr. Abse

I beg to ask leave to withdraw the Clause.

Motion and Clause, by leave, withdrawn.