§ Mr. MillanI beg to move, in page 18, line 6, to leave out from "ground" to has "in line 8.
We are now dealing with a Clause which concerns property rights arising on divorce. As I understand the present legal position, in normal circumstances divorce for the purpose of the disposition of properly rights is taken as if the unsuccessful defendant in the action had died giving the pursuer the same legal rights as would have arisen on his death, but there is an exception at present. That exception is in the case of a divorce on the ground of incurable insanity. This is covered by the Divorce (Scotland) Act, 1938.
What we are doing under this Clause is to remove the present legal position and to replace it by a financial settlement to be made at the discretion of the court. When a similar Amendment to the one I am moving was moved in Committee the noble Lady the Under-Secretary said that it was not necessary to have this Amendment because in the case of incurable insanity the present position before the 1299 Bill was that there was a financial settlement at the discretion of the court. This was provided for under the first Sections of the 1938 Divorce (Scotland) Act.
When I looked up that Act I found, although perhaps I may have misinterpreted it, that the Act gives financial settlements of a rather different kind from those to be given under Clause 26 of this Bill. Under the Clause we are considering financial settlements in favour of the successful pursuer as against the defender.
The exact reverse is true, under the 1938 Act, in cases where the grounds for divorce have been incurable insanity; and, divorce being granted in those circumstances, there are certain rights to the insane defender to get rights of property as against the pursuer. This is exactly the opposite position, Therefore, so far as I can see the position, if we retain Clauses 25 and 26 as we have them in the Bill at present, then, in the case of a divorce granted on the ground of incurable insanity, the pursuer will have absolutely no rights at all to a financial settlement as against the defender.
There may be cases in which it would not be right that the pursuer, in circumstances of this kind, a divorce on those grounds, should have rights against the defender, but, on the other hand, there may be cases in which there is no reason at all why he should not have property rights as against the defender. There may be, for example, a very rich man who becomes incurably insane. Are we to argue that in those circumstances, if his wife successfully seeks divorce?
It would be theoretically possible, though unlikely, that a very wealthy man should have a property settlement from his wife, but are we to argue that it would not be right at all that the wife should be able to get any financial settlement from the husband? I really cannot see that that would be a reasonable kind of situation, and yet, unless I am really misinterpreting it, that is what the position seems to be, and the hon. Lady herself said this in Committee, and this is the position as at present.
If this Amendment were accepted, though there might have to be some consequential repeal of part of the 1938 Act, what would happen in the case of a 1300 divorce on the ground of incurable insanity would be that the same provisions would apply as in a case of divorce on any other ground than this; in other words, the pursuer would be able to obtain a property settlement from the defender at the discretion of the court; and in those cases, if the court were to feel that the circumstances were rather unusual—incurable insanity does not, for example, raise a presumption of a marital offence, which is the kind of presumption which is at the root of our divorce laws—then, presumably, the court could take that into account and make a settlement under Clause 26.
However, whatever a court may do it does seem to me that there ought to be some right to the pursuer in cases of this sort. If one wishes to retain the right of the defender because this a case where the defender can very well be prejudiced, then one can retain the provisions of the 1938 Act, so that one could meet the unusual circumstance, in a divorce action of this kind, that the defender could get a settlement from the pursuer, instead of the more usual circumstance in which the pursuer gets a settlement from the defender.
There does seem to me to be an anomaly here, and I should like this matter cleared up, and if the position is as I take it to be, from reading the 1938 Act and from reading what the noble Lady said in Committee, I think that there is a very strong case for making an Amendment of the kind I am now moving.
§ Lady TweedsmuirThe hon. Member for Glasgow, Craigton (Mr. Millan) is perfectly correct in his interpretation—and, as he said himself, I did make it clear in Committee—about the particular provisions of the Divorce (Scotland) Act, 1938. What his Amendment seeks to do is to apply the provisions of Clause 26(1,a) to divorces on the ground of insanity, and it would have the effect that the court would have power to order a financial provision for the pursuer from the defender's estate.
I agree that there is much merit in the suggestion of the hon. Member. Indeed, this is Recommendation 53 of the Report of the Royal Commission on Marriage and Divorce, although the circumstances in which it might be used are fairly uncommon. In drafting the 1301 Bill we considered this matter, but did not include such a provision, as I explained in Committee, because the Bill is concerned with the rights of succession. There are certain existing rights to claim financial provision on divorce, in particular, Section 2 of the 1938 Act. That deals with divorce on insanity.
In drawing up the Bill we were trying to examine the question of legal rights based on succession rights, and, therefore, it seemed to us that this was not the right kind of Bill in which to include such a provision regarding marriage and divorce because it has no connection with succession. It would mean the creation of an entirely new claim for financial provision on divorce and for that reason we did not include it.
§ Mr. RossI have heard many inadequate and inept explanations of why the Government could not accept Amendments, but never have I heard one more inept or inadequate than that just made by the noble Lady. She admits the justice of the case made by my hon. Friend the Member for Glasgow, Craigton (Mr. Millan). She agrees that the Royal Commission made a similar recommendation. But then she says that the Bill is related to succession and not to marriage and divorce and, therefore, the Government do not think it right to include such a provision. I draw the noble Lady's attention to the rubric of this Clause:
§ "Amendment of law as to property rights arising on divorce."
§ Surely noting is clearer than that.
§ The one subject we are currently dealing with is what happens when a marriage ends in divorce and the settlement there after. It may happen that, under Scottish law hitherto, divorce has been equated with death—in other words, they share the same principles of legal rights. There may be a certain logic in that. But the hon. Lady cannot get away from the fact that, in this Clause, we are dealing with marriage and divorce and the settlement thereafter. The is exactly the point raised in this Amendment.
§ Since the noble Lady has accepted the justice of our proposal, surely there is no reason why she should not accept it. She tempts me, even at this late hour, to go through a number of provisions of the Bill which have nothing to do with succession. I will give one example—the power of the minor to test. There are others. I hope that the hon. Lady thinks again about this. If she does not agree to do so, I think that we should take this matter to a Division.
§ Question put, That the words proposed to be left out stand part of the Bill:—
§ The House divided Ayes 167. Noes 121.
1303| Division No. 27.] | AYES | [8.44 p.m. |
| Agnew, Sir Peter | Corfield, F. V. | Harris, Frederic (Croydon, N.W.) |
| Allan, Robert (Paddington, S.) | Costain, A. P. | Harris, Reader (Heston) |
| Allason, James | Craddook, Sir Beresford (Spelthorne) | Harrison, Brian (Maldon) |
| Anderson, D. C. | Critchley, Julian | Harrison, Col. Sir Harwood (Eye) |
| Ashton, Sir Hubert | Crosthwaite-Eyre, Col. Sir Oliver | Hastings, Stephen |
| Barlow, Sir John | Curran, Charles | Heald, Rt. Hon. Sir Lionel |
| Batsford, Brian | Currie, C. B. H. | Hendry, Forbes |
| Beamish Col. Sir Tufton | Dalkeith, Earl of | Hiley, Joseph |
| Bell, Ronald | Deedes, Rt. Hon. W. F. | Hill, Mrs. Eveline (Wythenshawe) |
| Bennett, F. M. (Torquay) | Donaldson, Cmdr. C. E. M. | Hill, J. E. B. (S. Norfolk) |
| Bevins, Rt. Hon. Reginald | Drayson, G. B. | Hirst, Geoffrey |
| Bidgood, John C. | du Cann, Edward | Hocking, Philip N. |
| Biffen, John | Duncan, Sir James | Holland, Philip |
| Biggs-Davison, John | Elliot, Capt. Walter (Carshalton) | Hopkins, Alan |
| Bishop, F. P. | Emmet, Hon, Mrs. Evelyn | Hughes Hallett, Vice-Admiral John |
| Bourne-Arton, A. | Errington, Sir Eric | Hughes-Young, Michael |
| Braine, Bernard | Farey-Jones, F. W. | Hutchison, Michael Clark |
| Brown, Alan (Tottenham) | Farr, John | Iremonger, T. L. |
| Bullard, Denys | Firday, Graeme | Irvine, Bryant Godman (Rye) |
| Bullus, Wing Commander Eric | Fletcher-Cooke, Charles | Jackson, John |
| Butcher, Sir Herbert | Fraser, Ian (Plymouth, Sutton) | James, David |
| Cary, Sir Robert | Freeth, Denzil | Jenkins, Robert (Dulwich) |
| Channon, H. P. G. | Gammans, Lady | Johnson, Eric (Blackley) |
| Chichester-Clark, R. | Gardner, Edward | Joseph, Rt. Hon, Sir Keith |
| Clark, William (Nottingham, S.) | Gibson-Watt, David | Kerans, Cdr. J. S. |
| Clarke, Brig. Terence(Portsmth, W.) | Glyn, Sir Richard (Dorset, N.) | Kerby, Capt. Henry |
| Cleaver, Leonard | Gower, Raymond | Kerr, Sir Hamilton |
| Cole, Norman | Gresham Cooke, R. | Kirk, Peter |
| Cordeaux, Lt.-Col. J. K. | Hamilton, Michael (Wellingborough) | Kitson, Timothy |
| Lancaster, Col. G. C. | percival, Ian | Thomas, Sir Leslie (Canterbury) |
| Leather, Sir Edwin | Pitt, Dame Edith | Thompson, Sir Richard (Croydon, S.) |
| Legge-Bourke, Sir Harry | Powell, Rt. Hon. J. Enoch | Thornton-Kemsley, Sir Colin |
| Lewis, Kenneth (Rutland) | Prior, J. M. L. | Tiley, Arthur (Bradford, W.) |
| Lilley, F. J. P. | Prior-Palmer, Brig. Sir Otho | Tilney, John (Wavertree) |
| Linstead, Sir Hugh | Proudfoot, Wilfred | Touche, Rt. Hon. Sir Gordon |
| Litchfield, capt. John | Pym, Francis | Turner, Colin |
| Lloyd, Rt. Hon. Selwyn (Wirral) | Quennell, Miss J. M. | Turton, Rt. Hon. R. H. |
| Loveys, Walter H. | Redmayne, Rt. Hon. Martin | Tweedsmuir, Lady |
| McAdden, Sir Stephen | Roberts, Sir Peter (Heeley) | van Straubenzee, W. R. |
| MacArthur, Ian | Rodgers, John (Sevenoaks) | Vaughan-Morgan, Rt. Hon. Sir John |
| McLaren, Martin | Roots, William | Wader, David |
| Maclay, Rt. Hon. John | Royle, Anthony (Richmond, Surrey) | Walker, Peter |
| Maclean, Sir Fitzroy(Bute&N. Ayrs) | Russell, Ronald | Walker-Smith, Rt. Hon. Sir Derek |
| McMaster, Stanley R. | Sharples, Richard | Wall, Patrick |
| Macmillan, Maurice (Halifax) | Shaw, M. | |
| Maddan, Martin | Shepherd, William | Ward, Dame Irene |
| Matthews, Gordon (Meriden) | Smith, Dud'ey (Br'ntf'd & Chiswick) | Wells, John (Maidstone) |
| Maxwell-Hyslop, R. J. | Stainton, Keith | Whitelaw, William |
| Mills, Stratton | Stodart, J. A. | Williams, Dudley (Exeter) |
| Miscampbell, Norman | Stoddart-Scott, Col. Sir Malcolm | Williams, Paul (Sunderland, S.) |
| More, Jasper (Ludlow) | Storey, Sir Samuel | Wilson, Geoffrey (Truro) |
| Nicholson, Sir Godfrey | Studholme, Sir Henry | Wise, A. R. |
| Nugent, Rt. Hon. Sir Richard | Summers, Sir Spencer | Woodnutt, Mark |
| Osborn, John (Hallam) | Talbot, John E. | Worsley, Marcus |
| Page, Graham (Crosby) | Taylor, Edwin (Bolton, E.) | |
| Pannell, Norman (Kirkdale) | Taylor, Frank (M'ch'st'r, Moss Side) | TELLERS FOR THE AYES: |
| Pearson, Frank (Clitheroe) | Temple, John M. | Mr. Rees and Mr. R. W. Elliott. |
| NOES | ||
| Bacon, Miss Alice | Henderson, Rt. Hn. Arthur (RwlyRegis) | Oswald, Thomas |
| Barnett, Guy | Herbison, Miss Margaret | Owen, Will |
| Bence, Cyril | Hill, J. (Midlothian) | Pargiter, G. A. |
| Blackburn, F. | Hilton, A. V. | Peart, Frederick |
| Bowden, Rt. Hn. H.W. (Leics, S.W.) | Holman, Percy | Pentland, Norman |
| Bowen, Roderic (Cardigan) | Holt, Arthur | Prentice, R. E. |
| Braddock, Mrs. E. M. | Howell, Denis (Small Heath) | Price, J. T. (Westhoughton) |
| Bradley, Tom | Howie, W. (Luton) | Pursey, Cmdr. Harry |
| Bray, Dr. Jeremy | Hoy, James H. | Rankin, John |
| Broughton, Dr. A. D. D. | Hughes, Emrys (S. Ayrshire) | Rees, Merlyn (Leeds, S.) |
| Butler, Herbert (Hackney, C.) | Hunter, A. E. | Rhodes, H. |
| Carmichael, Neil | Hynd, John (Attercliffe) | Roberts, Albert (Normanton) |
| Collick, Percy | Janner, Sir Barnett | Robertson, John (Paisley) |
| Corbet, Mrs. Freda | Jay, Rt. Hon. Douglas | Ross, William |
| Craddock, George (Bradford, S.) | Jenkins, Roy (Stechford) | Silkin, John |
| Dalyett, Tam | Jones, Dan (Burnley) | Silverman, Julius (Aston) |
| Darling, George | Jones, Elwyn (West Ham, S.) | Skeffington, Arthur |
| Davies, Harold (Leek) | Kelley, Richard | Slater, Mrs. Harriet (Stoke, N.) |
| Davies, S. O. (Merthyr) | King, Dr. Horace | Slater, Joseph (Sedgefield) |
| Deer, George | Lawson, George | Small, William |
| Delargy, Hugh | Lever, L. M. (Ardwick) | Smith, Ellis (Stoke, S.) |
| Dompsey, James | Loughlin, Charles | Sorensen, R. W. |
| Diamond, John | Lubbock, Eric | Soskice, Rt. Hon. Sir Frank |
| Doig, Peter | Mabon, Dr. J. Dickson | Spriggs, Leslie |
| Driberg, Tom | MacColl, James | Stewart, Michael (Fulham) |
| Duffy, A. E. P. (Colne Valley) | McInnes, James | Stones, William |
| Evans, Albert | McKay, John (Wallsend) | Swain, Thomas |
| Fletcher, Eric | MacPherson, Malcolm (Stirling) | Symonds, J. B. |
| Foley, Maurice | Manuel, Archie | Thornton, Ernest |
| Foot, Dingle (Ipswich) | Mapp, Charles | Wade, Donald |
| Forman, J. C. | Mason, Roy | Wainwright, Edwin |
| Fraser, Thomas (Hamilton) | Mendelson, J. J, | Warbey, William |
| Galpern, Sir Myer | Millan, Bruce | Wilis, E. G. (Edinburgh, E.) |
| George, Lady Megan Lloyd (Crmrthn) | Milne, Edward | Winterbottom, R. E. |
| Gourlay, Harry | Mitchison, G. R. | Woodburn, Rt. Hon. A. |
| Greenwood, Anthony | Monslow, Walter | Woof, Robert |
| Hale, Leslie (Oldham, W.) | Moody, A. S. | Yates, Victor (Ladywood) |
| Hamilton, William (West Fife) | Morris, Charles (Openshaw) | |
| Hannan, William | Neal, Harold | TELLERS FOR THE NOES: |
| Harper., Joseph | Noel-Baker, Rt. Hn. Philip (Derby, S.) | Mr. Charles A. Howell and Mr. Grey. |
| Hart, Mrs. Judith | O'Malley, B. K. |