MATRIMONIAL CAUSES (Hansard, 25 October 1966)

§ Mr. Leo Abse (Pontypool)
I beg to move, That leave be given to bring in a Bill to amend the law relating to divorce. On two occasions in this House—[Interruption.]

§ Mr. Speaker
Order. The House has decided to take Ten Minute Rule Bills at this time. It must listen to the hon. Member in seeking to introduce one.

§ Mr. Abse
On two occasions when Bills were presented to the House—in 1951 by my hon. Friend the Member for Flint, East (Mrs. White), who is now Minister of State for Foreign Affairs, and in 1963 by myself—the House has given a Second Reading to Bills which were designed to introduce into our law a new ground of divorce based upon the principle that a formal marriage bond which has no vitality, where the spouses are bound no longer, where they are irreconcilably estranged and where they have been apart from each other for very many years, in many cases entertaining intense hatred one of the other—that such a bond was not performing the social function of a stable and sound marriage and that it should be possible within our divorce law for it to be ended.
On each occasion the expressed wishes of the House were subsequently frustrated: on the first occasion by the appointment of a Royal Commission which, after a very long period of deliberation, gave an ambiguous and divided Report which stemmed the tide of reform, and on the next occasion, in 1963, by the effective manipulation of procedural stratagems by a cabal in this House prompted by Church opposition, which a more timorous Parliament suffered without over-much protest. After those episodes, I certainly would not lightly raise the hopes of those who would be affected by such a Bill, because I know that their hopes can be raised and dashed yet again.
There are tens of thousands of people in this country who are bound to a dead marriage, who are no longer able to remarry even though their own marriages have been dead perhaps for decades. They are bound to marriages which, 835 because of the envy, spite, neuroses or the religious beliefs of a former spouse, are never able to re-establish a personal relationship on a legal basis.
Worse, into these thousands of permanent cohabiting unions which are in existence of unmarried people there are born probably up to 200,000 illegitimate children, who, in many cases, live in an atmosphere which perforce must be replete with guilt, anxiety and feelings of insecurity which only too often are conveyed to the sensitive antennae of children who are born to such unions. Therefore, since people do not understand our procedures, I would not lightly seek to introduce a Bill of this kind if I did not think it important that the House expressed a point of view.
As the House will know, the Law Commissioners are currently engaged upon questions of our matrimonial law. They have said in their annual report that they have decided to make no attempt to formulate views on such topics as the grounds for divorce and powers for relief until after publication of the report of the Commission set up by the Archbishop of Canterbury, which is also examining these questions, under the chairmanship of the Bishop of Exeter. They stated that that report would be of great value as an indication of the present state of an important and responsible section of public opinion.
The House will know that that Church committee has reported. Hon. Members will recall that it is a strange but detailed report. The House knows that the reason for the Church's original opposition to the principles embodied in the Bills introduced by my hon. Friend the Minister of State for Foreign Affairs and myself was that they introduced what was described by the Churches as a dangerous new principle into divorce law: that of marriage breakdown witnessed by very long separation of the spouses.
Our laws have been, and are, based upon the doctrine of the matrimonial offence. This means that if a man or woman wishes to have a divorce—even if both parties wish to have a divorce—the court must be satisfied before it is granted that adultery has been committed, that cruelty has been caused, or that one party 836 has left the other without his or her consent for a period of three years.
It is to be noted that it is the insistence upon those grounds for divorce that has hitherto brought our divorce laws into disrepute. It is well known that if two people wish to obtain a divorce it is possible by one committing adultery for that divorce to be obtained. More, if the mutuality between the two parties is concealed and masked from solicitors or judges, as frequently it is, it is possible for a court to be deceived into granting a divorce on the ground of desertion.
Since most divorces, too, on the ground of cruelty are undefended, often allegations are puffed up and exaggerated with the acquiescence of the other partner in order that the divorce may go through. It is notorious that these practices continue. It is well known among our population, and I believe that it is substantially because of this that our divorce laws are in disrepute.
Therefore, I am now pleading for those who find themselves joined in a dead marriage contracted years ago, who are unable to regularise their relationship or legitimise their children. When they are told that the existing law is in existence because of the need to maintain it out of respect for the marriage contract, it is inevitable that they regard such a comment as cruel sententiousness.
Since the Church report now has, to its credit, totally somersaulted from its original position, and since it has adopted all the arguments of the secular divorce law reformers and, indeed, marshalled them with greater skill than they ever did, even though it is to everyone's amazement, it is important that the doctrine of the matrimonial offence should be called into question.
The Church report says generously that it was prompted as a result of my Bill. It may not be inappropriate, even if it is a little mischievous, to suggest that no pronouncement by the Church has been received with such amazement since Balak called upon Balaam to curse the Israelites and instead he blessed them.
What, then, is the argument now? The argument is that the church, having adopted the divorce reformers' ideas, have done it with the zeal of the proselyte. They say that it must be all or nothing and that the doctrine of the 837 marriage breakdown must be the sole reason why divorce should be granted in this country.
Unfortunately, everyone knows that that would impose an impossible burden upon the courts. There is not the legal manpower and the social worker manpower to be able to convert our divorce laws away from the present accusatorial system into an inquisitorial system. Every five-minute undefended divorce could take days, and the financial burden upon the Exchequer by way of legal aid would be intolerable. If the recommendation of the Church report was accepted, it would mean that the aspirations of those thousands of people in their present difficulties could be postponed for ever.
Therefore, I am asking that this House should do what has been done in New Zealand, Australia and in some dissimilar form in Belgium, which is that where the parties to a marriage have been separated for not less than five years and where the court is satisfied that the marriage has broken down irrevocably, subject to safeguards such as maintenance provision for a former spouse or, of course, for the children of a former marriage, the court should have discretion to grant a decree of divorce.
I do not put this forward because I believe in easier divorce. I believe in a 838 more rational divorce law and that ultimately, perhaps, what the Church report has spelt out will become law. I believe, now, that a marriage is meaningless unless it is based upon and rooted in the family. If family life has been ended for years, it is absurdity to pretend that the marriage goes on, even though it is a destructive agent severely damaging another family life which has been brought into existence.
I hope that the House will give me leave to introduce the Bill so that the Law Commissioners may know clearly that, when they put their recommendations before the House, we can expect those recommendations to be sensitive to the needs of those thousands of people who, for their own sake and their families, desire desperately to regularise their lives and legitimise their children.