§ 3.30 a.m.
§ Mr. Richard Body (Holland with Boston)
I beg to move Amendment No. 35, in page 1, line 17, leave out from 'the' to end of line 18 and inserthealth of the petitioner has been or is likely to be injured'.The purpose of the Amendment—I hope that it will not be thought totally unhelpful by the sponsors of the Bill—is to introduce a degree of certainty where at present there is an intolerable degree of vagueness. As at present drafted, the Clause requires a court to decide whether a petitioner canreasonably be expected to live with the respondent".The important word is "reasonably". What is reasonable? I can envisage the difficulties of counsel on either side in a defended suit struggling, as counsel have so often had to do in civil matters, with the word "reasonably". The legal dictionaries are full of example of such struggles.
Lawyers are always allowed first to take up the Oxford English Dictionary, and, no doubt, in the first defended action under this Clause it may be consulted. No great help will be forthcoming from that source. Hon. Members know how its editors try to help the reader by cataloguing all the definitions of the word in question under different headings.
How do they treat the word "reasonable"?
The first heading is:Endowed with reason.Those of us who have practised in the divorce court know that it is passion rather than reason that the parties are endowed with when they come to the divorce court.
The second offering from that dictionary is:Having sound judgment, sensible, sane.Again, that is singularly unhelpful. Those of us who have had experience of trying to persuade parties to a divorce action to any particular course know how seldom they are in a state to exercise sound judgment as to their own affairs.
1896 The third heading by the dictionary is:Able to discourse or discuss matters, ready of tongue or speech.The latter they may be, but they are seldom the former.
The fourth phrase the dictionary gives its reader is:Agreeable to reason; not irrational, absurd or ridiculous.It goes on to quote from literature examples of the context, and the one chosen here is not altogether inapt for the Bill. The editors quote Shakespeare's "Richard III", where Lady Anne is recorded as saying:It is a quarrel just and reasonable,To be revenged on him that kill'd my husband.To that the Duke of Gloucester, who subsequently married Lady Anne, replied:He that bereft thee, lady, of thy husband,Did it to help thee to a better husband.
Mr. Deputy Speaker
Order. I have some difficulty in understanding how the hon. Gentleman is addressing himself to his own Amendment, which is to substitute certain words in subsection (b). I hope that he will come to the Amendment very quickly.
§ Mr. Body
I am also seeking to delete certain words, and the word I particularly seek to delete is "reasonable." The reason is that the word will not be helpful to those who have to administer the law. My argument will be that in the place of "reasonable" there should be the words on the Order Paper. Before I can advance arguments for my choice of words I should demolish the argument for using "reasonable".
The fifth definition used to describe "reasonable" in the dictionary is:Not going beyond the limit assigned by reason, not extravagant or excessive, moderate.That will not help anyone in trying to decide what is reasonable in the way of the respondent's behaviour.
The sixth definition is:Of such an amount, size, number etcetera as is judged to be appropriate or suitable to the circumstances or purpose.That can be of no value.
The last heading in the Oxford English Dictionary is simply the word "proportionate", and that cannot help either.
So one turns to the legal dictionary, as lawyers have for many years. Perhaps 1897 the most famous is that edited by Sir Roland Burrows. He begins at page 478 and ends at page 500.
§ Mr. Body
I hope that my right hon. and learned Friend will not steel my thunder like that. I was intending to avoid the man on the Clapham omnibus, having read the Report of the Committee stage and noticed that my right hon. and learned Friend referred to that gentleman.
Of more help is Stroud's Dictionary, on this word "reasonable". It is apt in considering this Bill. The dictionary begins with these words:It will be unreasonable to except an exact definition of the word 'reasonable'. Reasonableness varies in its conclusions, according to the idiosyncrasies of the individual"—This is indeed appropriate to the world of divorce—and the times and circumstances in which he thinks. The reasoning which build up the old scholastic logic sounds now like the jingling of a child's toy, but mankind must be satisfied with the reasonableness within reach and in cases not covered by authority, the verdict of a jury or the decision of a judge, sitting as a jury, usually determines what is reasonable in each particular case…. But frequently reasonableness in the words of Coke on Littleton 'belongeth to the knowledge of the law and is therefore, to be decided by the justices'.Again, we are no further forward to discovering what is reasonable. I know what is reasonable. The hon. Member for Pontypool (Mr. Abse) knows what is reasonable. We all know what is reasonable, but what I know to be reasonable may not be the verdict of someone else. The term "reasonableness" is conditioned by fashion and changes in standards and the development of values. What is reasonable today may be utterly unreasonable in years to come. The standard bearer of the so-called permissive society regards as totally unreasonable what to the Puritan seems to 1898 be normal and natural. This difficulty is important because if the Bill were enacted our divorce law would be based upon it, not for years but for probably several generations. In that time ideas of reasonableness will have developed and changed.
§ Mr. Frank Hooley (Sheffield, Heeley)
Is that point not an argument in favour of retaining the word?
§ Mr. Body
No, for reasons I will give soon. I want to go back in time and see how the word "reasonableness" has changed in the divorce courts, and in so doing, may have caused some degree of injustice. What is reasonable now may become regarded as unreasonable in years to come and vice versa. If one considers the mass of case law on the subject, one sees how the word has changed its meaning. I could give many examples and I shall not delve into any number of them, but one at least is most appropriate. I am going back into history to one of the earlier Matrimonial Causes Acts, that of 1857.
Section 31 of that Act introduced the phrase "reasonable excuse" into our divorce law. It did so in the context that it gave the court discretion to refuse a decree of divorce for various reasons. One of those reasons was if the petitioner had deserted the other party or wilfully separated himself from the other party without "reasonable excuse". That word "reasonable" gave rise to a great deal of argument over the years and the argument persisted until well into this century, with varying standards being applied.
One of the cases early on was Morgan & Morgan in 1869. Lord Penzance then applied criteria which every hon. Member, I imagine, would regard now as abhorrent. He said that there were only three grounds upon which discretion ought to be exercised in favour of the petitioner in this context. The first was where one party had been led to believe that the other was dead—surely a rather obvious one to sart with. The second was where a wife had been compelled to lead a life of prostitution—that would be a reasonable excuse. The third was where an act of adultery by the husband had been condoned by the wife and he in no way conduced to her own subsequent misconduct. Subsequently, a judge 1899 was recorded as saying that even these three grounds did not impose any fetter upon him and that he could restrict his discretion to still fewer examples.
By 1918, standards had changed although the same Statute was still in effect. In that year, in the case Wickins & Wickins, the judgment included this sentence:Where Parliament has invested a court with a discretion which has to be exercised in an almost inexhaustible variety of delicate and difficult circumstances, and where Parliament has not thought fit to define or specify any cases or classes of cases fit for its application, this court ought not to limit or restrict that discretion by laying down rules within which alone a discretion is to be exercised or to place greater fetters upon a judge of the Divorce Court than what he has thought fit to impose.This Clause as drafted does exactly that. It does not give any help to the courts. To use the words of the judge, it does not in any way define or specify any cases or classes of cases of reasonable behaviour.
The court consists of one man. He, the judge, will decide what is reasonable. What he thinks is reasonable may not be the opinion of his brother judge sitting in a neighbouring court. Yet the courts are to hear every conceivable kind of misconduct and have listened to every variety and permutation of behaviour.
I am sure that my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell), who probably has more experience of the law of divorce than any other hon. and learned Member or hon. Member, in the House, will agree that each defended case is different. It is sometimes difficult to know where one has to draw the dividing line between conduct which amounts to cruelty and conduct which is outside the four corners of the existing definition.
It is even more difficult to draw the dividing line between what is and what is not constructive desertion. The ground that we are now considering is the allegation of constructive desertion. The law, in effect, draws no distinction between desertion and constructive desertion, but it recognises the existence of constructive desertion as a ground for divorce. Constructive desertion is expulsive conduct which drives one spouse out of the matrimonial home so that that party has a 1900 reasonable excuse to leave the matrimonial home. That has always been the test applied, namely, has the party leaving the matrimonial home a reasonable excuse for leaving?
For many years that reasonable excuse has been equated with a grave and weighty matter. The courts have had considerable difficulty in deciding what has or has not been a reasonable excuse. The hon. Member for Pontypool will agree that in constructive desertion the dividing line is not only slender but on occasion is quite illogical as to what is a reasonable excuse. One example is laziness—
§ Mr. Body
The hon. Member for Thurrock (Mr. Delargy) says "Oh, no". I shall be tempted to go on twice as long as I intended and still keep within the rules. But laziness and dirtiness have not been deemed to be a reasonable excuse for leaving the matrimonial home. Yet drunkenness and also association with other women, although not adulterous, has been deemed to be a reasonable excuse. Refusal of sexual intercourse, even when it has been continual and deliberate, has not been a reasonable excuse.
On the other side of this very slender dividing line, a wife's invincible repugnance to the sexual act has been ruled a reasonable excuse for a husband to leave her. Yet in another case a husband's refusal of sexual intercourse, coupled with just a few acts of neglect, has not justified a wife leaving.
Another example often quoted is the wife who preferred cats to her husband and who had an array of 25 of them. In that case it was held to be reasonable for the husband to leave. On the other hand, having a neurotic husband, no matter how neurotic he was, was not a reasonable excuse for a wife leaving.
One could quote many more examples, but I will not, in deference to the hon. Member for Thurrock who I hope will intervene in the debate. These examples show that the test of what is a reasonable excuse and what is reasonable behaviour is not satisfactory.
Desertion is still to be a ground for divorce, or, more strictly, proof of breakdown, as the Bill is now framed. Clause 2(1)(c) makes that clear. But, as I have 1901 tried to point out, the term "desertion" embraces constructive desertion which would give to the other party a reasonable excuse to leave. The party behaving unreasonably is presumably the party giving to the other a reasonable excuse for leaving. Therefore, I submit that this ground, as it is now framed, is not necessary. It is in fact surplus, because it is covered by subsection (1)(c). It is the same as constructive desertion, for the law does not draw a distinction between desertion and constructive desertion. Unreasonable behaviour is and must be giving the other party a reasonable excuse for leaving.
If the Amendment is accepted, it will not be tantamount to retaining the concept of a matrimonial offence. I am sure that the hon. Member for Pontypool will agree that the decision in Gollins v. Gollins, in effect, destroyed or radically ate into the concept of the matrimonial offence concerning cruelty, because a person can be a cruel husband or wife without any intention. The element of intention has now been removed from any definition of cruelty. The mere fact of causing to either spouse injury to health or the apprehension of such injury is now enough to provide the other party with a case for cruelty and a ground for divorce.
The criteria were considered at great length by the Royal Commission on Marriage and Divorce, presided over by Lord Morton. The House knows that this Royal Commission considered this problem for about four years and went into enormous detail and heard a wealth of evidence. Indeed, it would be almost impossible to imagine any further evidence which it could usefully have heard to arrive at its conclusions. May I therefore shortly remind the House of the conclusion which the Royal Commission reached on this subject.
The Royal Commission applied its mind, as it had to, to whether this test of injury to health ought to be continued, or whether instead the test as is now proposed in the Bill should be applied, and its conclusion was:The test of injury or threatened injury to health has been applied for a great number of years and, in our opinion, the fact that during that time social conditions have changed considerably has not altered its soundness. It is said by those who wish to dispense 1902 with the test that it operates unfairly against the person, who, being robust both in mind and body, is able to withstand ill-treatment, but nevertheless finds married life intolerable by reason of the pain and misery caused by the other spouse's conduct … Cruel conduct as we see it, must be judged with reference to the person affected by it."—The Commission is adamant about that.If, as an alternative, it were sought to fix some objective standard, such as that of conduct which no reasonable man should be expected to endure,"—which, after all, is what the Bill is trying to do—injustice would be done where conduct did not measure up to the standard set and yet was serious enough to injure the health of a person of delicate physique or susceptible temperament.Could words be stronger than that? After considering all that evidence for four or five years, this strong Royal Commission reached the unanimous view that injustice would be done if this test, the test as applied in the Bill, were adopted rather than the test of ill-health which I seek to introduce.
§ Mr. Molloy
The hon. Gentleman has based a great deal of his argument on the word "reasonable", which he thought was the wrong word. During the last few moments the hon. Gentleman has quoted an important piece of evidence in support of his arguments. The word frequently used in that evidence is "reasonable"—what the reasonable man would expect. It seems that when it suits the hon. Gentleman's purpose that word is all right, but it is not all right in another context when he is opposed to the principle.
§ Mr. Body
I do not want to read all that again, but the hon. Gentleman has either misunderstood me, or perhaps has not followed that quotation. The Royal Commission said that if one adopted what it called the objective test of the reasonable man, of reasonable behaviour, that test would cause injustice to those who were of a particularly sensitive temperament. I shall not refer again to the words about certain people who are particularly weak or incapable of tolerating that standard of behaviour.
1903 I hope I have made it plain that that passage is entirely in support of my contention that the Bill, as it is phrased, would cause injustice to a number of people. I am not saying that it would happen on a large scale, but I urge the House to consider that very weighty opinion, based on considerable evidence, that injustice would be caused by the so-called objective test of the reasonable man.
§ Mr. Delargy
I will be brief, as is my wont. I wish all other hon. Members would be brief, too. The persuasiveness of speeches is not measured by their length. Having listened during the late hours of the night and the early hours of this morning to several lawyers, I have developed an immense sympathy for judges. They earn every penny that we give them.
Having said that, may I, if the hon. Member for Holland with Boston (Mr. Body) will pardon the choice of words, say that I find his Amendment quite reasonable. It seeks to change words in the Bill. Any proposal to change them should have our approval and support. The words in paragraph (b) are abominable. They are:… the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;".In the name of reason, what do those words mean? What are they intended to hide or cover?
§ Mr. Delargy
In the name of common sense and good English prose, they ought to be thrown out. The paragraph says "cannot reasonably be expected"—expected by whom? [AN HON. MEMBER: "By the court".] But the court is one person, we are told.
§ Mr. Delargy
And he listens to the case argued by a lawyer, I suppose. A lot of reason we see there! What is "reasonably"? Whose reason is it? Of all the loose and lax expressions I have ever heard, this is amongst the loosest and most lax. The person who drafted these words and put them in the Bill should be compelled to come to the Bar 1904 of the House and apologise to us. They are absolutely meaningless.
I know what the words in the Amendment mean. They speak of the health of the petitioner—health of the petitioner has been or is likely to be injured".I have not the legal knowledge of some of the hon. and learned Members, but at least I know what those words mean, whereas I do not know what is meant by the words already in the paragraph.
I appeal to the sponsors to accept some change, or else to let the House, the country and the judges know what is meant by the wordscannot reasonably be expected to live with the respondent.I beg of the promoter of the Bill to give this Amendment his serious consideration.
§ Mrs. Knight
A record has been set up tonight in that twice the hon. Member for Thurrock (Mr. Delargy) has spoken and on each occasion I have been fully in agreement with him. When I read this paragraph of the subsection, I too wrote down "What does this mean?" It seems to me to be an almost incredibly woolly sentence. The pity of it is that if it were properly drafted, it would completely knock out the need for paragraph (a). There need be no paragraph (a) if paragraph (b) had been properly and sensibly drafted. But it was not.
Let us endeavour to comprehend what it might mean. To some people it may mean that one of the partners nags, or is cold, or that one is a pop fan while the other likes the classics. Some years ago a judge granted a divorce because one of the spouses—I believe it was the husband—squeezed the toothpaste tube in the middle. That was thought to be unreasonable behaviour. The whole point is that what may be unreasonable to one judge would be totally reasonable to another judge. For instance, a petitioner might say that his partner nagged, but a deaf judge might rule that that was not intolerable. The ideal of uniformity all over the country has been stressed again and again over the last few days, but this subsection will provide for the complete opposite and the widest variety of treatment.
1905 No time factor is involved before which this subsection could be invoked. This could happen after six months. The Bill so weakens the institution of marriage that people might think that there was no point in getting married, if, after six months, they found that they could not stand their partners habit of cracking nuts with his teeth and could get a divorce because of it. To some judges that may be a perfect reason for a divorce. If properly framed, paragraph (b) could also refer to adultery and there would be no need for paragraph (a).
One of the reasons that I thought that some reform was needed was that people sometimes had to commit perjury to get a divorce. But this will lead to the same old thing—the detective in the grubby mac hiding under the bed or in the car boot to get evidence. There would be perjury because, by providing no time limit, this provision gives a short cut to divorce. By committing perjury one need not wait five or even two years to get one. The Amendment will at least tidy the thing up. I do not like the subsection at all, but I understand why it is woolly—all kinds of things can be bundled under its shelter. The Amendment would enable any judge to decide whether the petitioner had a good case, and there would be no worrying difference between a deaf judge in Newcastle and a passionless judge in London. Because the subsection so badly needs tightening up and the Amendment is one way to do it, I support it.
§ 4.15 a.m.
§ Mr. Clegg
I should like to support the arguments which have been advanced in favour of this Amendment. It is a really serious point, and I hope we shall have a contribution to this debate from the Solicitor-General, because that certainly would be of guidance.
The valid point raised here is the desire, I think, of the sponsors of the Bill to give wide discretion to the judge who deals with a case of divorce under this paragraph. It seems to me that there is at the moment in certain legal circles a mood for wanting a form of palm tree justice, and Parliament gives judges very wide discretion to act in whatever way they think fit. The discretion here proposed to be given, unless amended, will be extremely wide indeed. There is a dilemma here for Parliament. I am not 1906 one who would seek unnecessarily to restrict a judge in the exercise of discretion, but I think that the balance here, unless we make the Amendment, is wrong.
The hon. Member for Yarmouth (Dr. Gray), who is a supporter of the Bill, indicated earlier that the matters set out in this Clause are guidelines for the judge. I think there are very few guidelines in this subsection for the judge, because, as my hon. Friends have said and as the hon. Member for Thurrock (Mr Delargy) has said, it gives him no real guidance. It is a fact that judges vary. Some judges are known as plaintiff's judges, others as defendant's judges. I am certain it would be difficult for a lawyer to advise a client who asked, "Can I get a divorce under that paragraph?" As it is drafted, the lawyer would say, "If you get Judge So-and-So you may well get a divorce, but if you go before another judge it is perhaps unlikely that you will." Any law which is uncertain is bad law, because it leads to appeals and further litigation The Amendment would restrict the judges' discretion, but if we leave the paragraph unamended Parliament will not be laying down guidelines for the judges. The judges would then start laying down guidelines for one another by precedents. Are we then really transferring responsibility from Parliament to the Court of Appeal to say what discretions are rightly exercised and which are not?
§ Mr. Hooley
As a layman I suppose I ought to tread with extreme caution amid this wealth of expertise, but as a layman I should have thought the Amendment compounded the fault it was thought to remedy. There may be among lawyers some definintion of "health", but it must be a highly ingenious one. I hestitate to define what is "health." I should like to know whether it includes absolutely every form of physical and mental health, and how, in the changing state of medical science, one can determine that.
Much worse than that, under the Amendment one has to establish that it is the behaviour of one party which has caused deterioration in the health of the other. In assessing entitlements to pensions it is notorious how difficult it is to determine whether a particular disability 1907 or failure of health, is directly attributable to cause A, B, C or D, and how on earth one will achieve an exact knowledge of how far a particular lack of good health of one partner is attributable to the behaviour of the other party I find it hard to see, and I should have thought it very difficult indeed. The thought that the Amendment is framed more precisely than the original paragraph I should have thought entirely illusory. Indeed, it is worse, for at least the Clause relates to something which has happened to behaviour or to events which have occurred, where as the Amendment uses the words "is likely to be".
How can the courts come to a rational conclusion that a person's health is likely to be affected? There may be circumstances in which all the suppositions point one way, but there will be others in which no one could possibly say whether the health of one party is likely to be affected by the behaviour of the other party. The nature of the person's health and his whole medical history would have to be considered in assessing whether the behaviour of the other party might cause damage to his health.
There may be legal definitions which lawyers regard as watertight, but in view of the rapidly changing knowledge of medicine, I doubt whether the medical profession would regard them as watertight. I do not see how any supporter of the Amendment can claim that it is more precise than the words which it seeks to replace.
§ Mr. Ian Percival (Southport)
I hope that the hon. Member for Thurrock (Mr. Delargy) can bear with two or three minutes from one more lawyer because, to use his phrase, I am on his side. I echo the hope that the Solicitor-General will give some advice, because this debate has raised considerations which did not fully occur to those of us who took part in the Committee proceedings.
I, too, understand the motives of the promoters in this provision; they want to get rid of the concept of cruelty. I had always supposed that what was intended in this provision was wording which, broadly speaking, had the same effect but which removed the concept of cruelty as an offence and the concept of intention, if there were any such concept left after Gollins v. Gollins.
1908 But I confess that I made a mistake which lawyers are apt to make of assuming that I knew what the words meant, whereas in fact all that means is that I had my own conception of how they would be applied. The advantage of having a debate such as this, with both lawyers and laymen taking part, is that we see how different people can have very different conceptions of how words should be applied. We heard the legal approach of my hon. Friend the Member for Holland with Boston (Mr. Body) in which he cited a number of cases showing how many different interpretations there can be of such wording and we heard the hon. Member for Thurrock—I am seeking to be complimentary to him—in lay, robust, commonsense terms posing the question of what the wording means—and by whose standards? These are queries of substance and I hope that we shall have some guidance on them both from the Solicitor-General and from the sponsor.
One other question has arisen. I believe that this is a question for the Solicitor-General. The question concerns whether my hon. Friend the Member for Holland with Boston is correct in saying that as a matter of law paragraph (b) puts into words the concept of constructive desertion as at present known. If so, one would have the curious position that in constructive desertion proceedings could be brought immediately, whereas in actual desertion there would have to be a period of two years' delay before proceedings could be brought. In other words, whereas at present in both cases a period of three years must elapse, it is proposed—this is the only change proposed in this connection—to reduce the three years to two years.
I say that that is the only change proposed. If anything else is proposed, it has not emerged in our debates hitherto. If, however, anything else is intended, this discussion has served a useful purpose in bringing it out into the open.
The effect of this change will be that in the case of actual desertion—that is, where the husband walks out on the wife, or where she walks out on him—a period of two years must elapse before proceedings can be brought. If, on the other hand, one of the parties acts in such a way as to drive the other out—that is, 1909 what we now call constructive desertion—then, without any logical reason for the difference, it seems, proceedings could be brought immediately. If that is the consequence of the provision, it was not hitherto observed in Committee. I trust that the Solicitor-General will make the position clear.
§ The Solicitor-General (Sir Arthur Irvine)
In considering the Bill, it is my responsibility to intervene when I think that it may be possible for me to assist hon. Members on points of law that have been raised. I therefore intervene at this point in view of the questions that have been asked.
One should, in considering the Amendment, reach a clear conclusion about the objective of the sponsors in this provision. I suggest that the Bill seeks in this part to achieve something that is inherently desirable; namely, in effect to preserve the respondent's cruelty as one of the facts from which breakdown is to be inferred, but in so doing to avoid the use of the phrase "matrimonial offence", with all its emotional overtones and implications.
There are certain advantages to be gained from avoiding that phrase. This is really an adjustment of an existing situation in the law to take into account the introduction of the new concept of irretrievable breakdown. The question which arises is whether that object is achieved by the present language in the Bill or whether it would be better advanced by the language of the Amendment. I have listened with great care to the debate and it seems that there is great force in the criticism made of the Amendment by my hon. Friend the Member for Sheffield, Heeley (Mr. Hooley) that the term "health" is, like the term "reasonable", one that offers quite a notable degree of discretion in its interpretation. It is desirable in a matter of this kind to preserve a substantial element of judicial interpretation in its treatment. The formula employed in the Bill and recommended by my hon. Friend has the effect, which I believe is the intended effect, of preserving the law as declared by the House of Lords in the cases that have often been referred to, the Gollins v. Gollins case and the Williams v. Williams case, and to do so with this single element of 1910 change that there is henceforward not to be a requirement of actual or apprehended injury to the petitioner's health. All the other criteria in the existing law would remain.
In particular, the respondent's behaviour must be grave and weighty, or, in the words of Lord Pearce in Gollins, such an abuse that the spouse should not be called upon to bear it. That is the kind of standard test one seeks to apply. In contrast with Clause 2(1)(a) the test is an objective one. The court, not the petitioner, has to regard the respondent's conduct as so grave that the petitioner could not reasonably be expected to live with the respondent. That test will not be satisfied merely by saying that a temporary separation is reasonable because, for example, the respondent is suffering from a readily curable illness which makes him unendurable while it lasts.
On the other hand, the Court has to consider the particular petitioner in the light of his or her circumstances and character. If the court finds he cannot be reasonably expected to live with the respondent the test will be satisfied even though the court may think the respondent's behaviour would be endurable to a petitioner of a tougher fibre. I say with respect to hon. Members who have been critical of the width of discretion conferred by reference to reasonableness, as it were simpliciter, that the concept of reasonableness is always to be regarded in our law as I understand it as reasonable in all the circumstances. This is about the limit of the definition of "reasonableness" that one can offer.
Reasonableness undoubtedly induces the element of discretion, a matter to be determined and decided by judicial discretion. There is inevitably and inescapably a trust in matters of this kind upon the judiciary. Within that context the court will have regard to all the circumstances and they will be psychological factors, practical factors, material factors, factors no doubt bearing on health and other matters which have been raised. If I am asked by the House to express a view, I remind the House of the care with which expert minds have been applied to the treatment of this definition and suggest that on the whole the Bill in its present language achieves a good objective and the one that is intended.
§ Sir L. Heald
During the Committee stage both of this Bill and of its predecessor there was considerable discussion about the word "reasonable". On the first occasion we had the great advantage of the presence, not only of the Solicitor-General, but also of the Attorney-General. We had some most interesting dissertations on this subject and our hopes were greatly raised when we parted with the matter, because the Attorney-General said that he would go away and think about it. We were all looking forward with great pleasure to hearing his comments on Report. Unfortunately, that stage was never reached.
On this occasion we were very unfortunate, because neither of the Law Officers was present. We discussed the matter again, and considerable unhappiness was expressed. I well remember that the Solicitor-General was with us, but some great matters arose and he had to leave; and we were bereft of counsel. It is true, as hon. Members have said with great perception, although they do not have to argue about these words in the courts, that "reasonable" has caused much trouble. I thought that we had convinced the Attorney-General that it should be got rid of. We afterwards discovered that an unfortunate train of events had occurred, because the Attorney-General apparently became involved in the Law Commission. The hon. Member for Pontypool (Mr. Abse) said that the Attorney-General had been seduced by me but had been rescued by the Law Commission. I do not know whether one could describe that as falling between the devil and the deep blue sea. It was unfortunate that we did not get any eventual result.
I followed closely what the Solicitor-General said. He has not convinced the House that there is a justification for retaining this word. I have some doubts as to whether my hon. Friend the Member for Holland with Boston (Mr. Body) has got the matter right, but I am fairly well satisfied that the Solicitor-General has not got it right either. I suggest that we should try to remedy the situation that we had last time when the Attorney-General went away and thought about it, only I hope that on this occasion he—or the Solicitor-General—will not get involved with the Law Commission. It would be worth while if the matter could be considered again, it may be in an- 1912 other place, if the Bill ever reaches another place. It will be an advantage if at last a solution can be found to this problem which has been troubling people for years. There has undoubtedly been a strong leaning towards getting rid of the word "reasonable". I shall not go into any more cases about it, but it was not me—it was the Attorney-General—who introduced the man on the Clapham omnibus. I think that the man on the Clapham omnibus is now almost dead. At least, he must be a very old gentleman if he is still alive. I hope that we shall not lose hope of getting something better. I appeal to the Solicitor-General to think about it again.
§ Mr. John Hall
When I heard my hon. Friend the Member for Holland with Boston (Mr. Body) move the Amendment in very measured terms and, for a barrister, very briefly, I began to develop a rooted inhibition to the use of the word "reasonable". Nothing that I have heard since has removed the feeling from me. I am, however, rather convinced by the arguments which I have heard—not, I hasten to say, from the Solicitor-General—in favour of the Amendment that we ought to find alternative wording.
I do not say that the wording suggested by my hon. Friend is necessarily right, but certainly I do not like the Clause as it stands. To refer to the speech of my hon. Friend the Member for North Fylde (Mr. Clegg), it seems to me to give far too much discretion to the judges—and judges can be very longwinded and also very different in their approach to matters. The interpretation can be extremely wide.
I imagine that a large number of hon. Members, on both sides, have from time to time had their wives say to them, "I do not know how I continue to live with you." I am certain that there were occasions when they felt too exasperated to go on living with each other, but they continue to do so.
I remember a lady, who comes into one's house from time to time to oblige, who developed over the years an obvious neurosis of some kind. Eventually we got to the bottom of it. She was having trouble with her husband. They were not getting on well together. It came down to something very simple. She said, "Every time he drinks a cup of tea, he 1913 sucks it through his moustache and puts my teeth so much on edge that I have to take them out." That was a small thing by itself but it worked on her to such an extent that it affected her health. I suppose that she was the sort of person who would have to go before a judge for him to adjudge whether her husband's behaviour was reasonable. I would say that here was a habit of the husband—and of the wife, too—which made it difficult for these people to go on living together when all that the wife wanted was a good talking to.
One can think of many instances in which a judge might consider that a case which was put before him was one in which it could be said that the petitioner could not go on living with the respondent, or vice versa. He might grant a divorce, but another judge might not.
The Solicitor-General, in his interpretation, used the words that the behaviour was of such a grave nature that the petitioner could not reasonably be expected to live with the respondent, but that is not what the Bill says. It simply puts it quite plainly:that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent".That is much too wide an expression. I prefer the words of the existing law as a definition of cruelty. They are precise and use the word "health", to which reference has been made.
Under the existing law, the definition of cruelty isconduct of such a character as to have caused danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger.That is a fairly positive definition, as far as any legal definition is positive. It is more effective as a definition than for a judge to have to decide what is meant by "reasonable".
I would not suggest that necessarily the Amendment as it stands should be accepted, although if it were put to the vote I should support it, but I echo the suggestion of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) that the Solicitor-General should give this matter further thought.
There is genuine uneasiness on both sides of the House about the present wording and the difficulties to which it 1914 may give rise in the courts. The Solicitor-General can act, in a sense, only as adviser, since this is a Private Member's Bill, but I hope that he will tell us that additional thought will be given to this matter before the Bill goes to the other place, if it ever does, and that other words will be suggested.
I am sure that the House would wish to hear the Solicitor-General again if he rose to intervene in that sense. It would be most helpful, and I imagine that my hon. Friend the Member for Holland with Boston (Mr. Body) might then be prepared to consider what course he should adopt on the Amendment. I suspect that the hon. and learned Gentleman himself is not entirely at ease with the answer which he gave. Perhaps his first thoughts were the right ones, until he became, as my right hon. and learned Friend put it, seduced by the Law Commission.
§ 4.45 a.m.
§ Mr. Abse
The formula used here originally emerged not out of careless thought but from the consensus which came from the long meetings between the Church Committee which had sat under the Bishop of Exeter and the Law Commissioners. I mentioned that because the House should know that this formula is one upon which the thoughts and attention of both those bodies have been deployed.
As the Solicitor-General explained, the tendency is to preserve the concept of cruelty but to preserve it as one of the facts from which breakdown is to be inferred. Cruelty as it is interpreted in the courts simply means grave and weighty conduct making a continuation of cohabitation intolerable, but as it stands at present it is grave and weighty conduct which has caused or is likely to cause injury to health.
In putting down the Amendment, the hon. Member for Holland with Boston (Mr. Body) has had the perspicacity, as one would expect, to highlight a distinction between the existing law and the intention of the sponsors of the Bill. The formula is intended to preserve the law as declared by the House of Lords in the two cases familiar to lawyers, Gollins v. Gollins and Williams v. Williams, but, as the hon. Gentleman appreciated, without the requirement of actual or apprehended injury to the petitioner's health. 1915 I stress that because, as the hon. and learned Member for Southport (Mr. Percival) very properly urged, the House should know without ambiguity what we are trying to do.
I believe that that objective is correctly translated into the wording of subsection (1)(b). I am fortified by the opinion expressed by the Solicitor-General and also by the knowledge that that is the opinion of the Law Commissioners, who, although they can take no responsibility for policy, have sought to make practicable the objectives of the sponsors and put them into language capable of interpretation in the way we hope they will be by the courts.
There are good reasons—they may or may not commend themselves to the House—for leaving out the reference to injury to health. We seek to escape from the charades that embroider the divorce law. One of the charades that are notorious to lawyers and disliked by so many judges is the calling of formal medical evidence to prove the dangers to health. The blunt fact is—and we must all know it—that no doctor of sensibility, knowing that a woman has endured grave and weighty conduct making a continuation of cohabitation intolerable is likely to deny giving the appropriate evidence for a woman who may be courageous enough or of sufficiently tough fibre not to crack under the intolerable behaviour. The requirement of apprehended injury is a hang-over from the bad old days when cruelty just constituted a bashing. We all know today that there are worse forms of cruelty.
We, therefore, ask why should a woman with guts who refuses for the sake of her children to break under the strain be placed in a worse position than a woman of more fragile disposition, when the court objectively could find that she has been treated with cruelty? If the grave and weighty misconduct is in the form of cruelty to the children, should a woman go through what may be a charade in her case of bringing a doctor to give evidence on her health?
Moreover—and the hon. and learned Member for Southport has approached this point, although he has come at it from a different way—there is a contradiction in the present law which acceptance of the Amendment would perpetuate. If a 1916 man's misconduct today is so grave and weighty that a woman is compelled to leave the house, and is in effect driven out, because of the doctrine of constructive desertion she has to wait three years before she can obtain her divorce under the law as it stands. We do not believe that there is any rationale for perpetuating a situation where the lack of a medical certificate may prevent a divorce for three years, even though a court could objectively find that the petitioner could not reasonably be expected to live with the respondent. Therefore, we frankly aim to end this contradiction and this unsatisfactory relationship of cruelty and constructive desertion.
It should be understood that the formula employed will enable the problem of insanity in marriage to be covered more realistically than it is now, whether the misfortune is in effect equated with a matrimonial offence. If someone is repeatedly discharged from hospital, as so often happens now in the treatment of mental illness, the test the courts will apply is not whether the wife is being made ill, nor the incurability of the insanity, but whether the marriage has irrevocably broken down by reason of the husband's intolerable behaviour, albeit behaviour that perhaps he could not control. If the other party shows that such intolerable conduct exists she can obtain her release. Having made her agonising decision, and being capable of providing that the conduct is such that she could not reasonably be expected to live a terrifying life with a seriously ill man, should she be put to the proof that she too is being made physically or mentally ill? We do not think so.
§ Mr. Percival
I understand that the hon. Gentleman is saying that what is intended here is meant to be interpreted as referring to grave and weighty conduct making a continuation of cohabitation intolerable, which is leaving out the health aspect. That I can understand. But it would help if the hon. Gentleman could answer this. If that is what is intended, how does he say that that is to be spelt out of the wording used? In any event, if that is what is intended, would not the promoters at least consider this later, so as to use those very words? Then the court will not have to spell them out. It will have them there.
§ Mr. Abse
I take the point. It has been given consideration. We will not close our minds to this. I can assure hon. Members who have asked for a further assurance that we do not believe, in a matter as subtle as this, that we have necessarily said the last word. We are trying to eliminate the notion that there has to be this medical evidence. We are also trying to deal with this question of mental illness and get it within the formula. If we can do this the medical and legal profession will be much relieved.
We are trying to get rid of something which has fallen into disrepute. Just as, once before, the Attorney-General gave
§ consideration as to whether it could be improved in any way, although I am certainly not persuaded that the hon. Member has the answer, I do not say that we have necessarily got perfection. On behalf of the sponsors I can certainly undertake that further thought and discussion will take place and we will see if anything can emerge in another place.
§ Mr. Christopher Price (Birmingham, Perry Barr)
rose in his place and claimed to move, That the Question be now put.
§ Question put, That the Question be now put:—
§ The House divided: Ayes 120, Noes 40.1919
|Division No. 257.]||AYES||[4.57 a.m.|
|Abse, Leo||Fraser, John (Norwood)||Murray, Albert|
|Allason, James (Hemel Hempstead)||Garrett, W. E.||Newens, Stan|
|Archer, Peter||Gilmour, Ian (Norfolk, Central)||Norwood, Christopher|
|Ashley, Jack||Gray, Dr. Hugh (Yarmouth)||Oakes, Gordon|
|Ashton, Joe||Hamilton, William (Fife, W.)||Ogden, Eric|
|Astor, John||Hamling, William||Oram, Albert E.|
|Atkinson, Norman (Tottenham)||Haseldine, Norman||Orbach, Maurice|
|Awdry, Daniel||Hobden, Denis||Orme, Stanley|
|Bagier, Gordon A. T.||Hooley, Frank||Page, Derek (King's Lynn)|
|Barnes, Michael||Hooson, Emlyn||Paget, R. T.|
|Barnett, Joel||Hornby, Richard||Parker, John (Dagenham)|
|Benn, Rt. Hn. Anthony Wedgwood||Horner, John||Parkyn, Brian (Bedford)|
|Bidwell, Sydney||Houghton, Rt. Hn. Douglas||Rees, Merlyn|
|Blenkinsop, Arthur||Howie, W.||Richard, Ivor|
|Boston, Terence||Huckfield, Leslie||Ridley, Hon. Nicholas|
|Boyle, Rt. Hn. Sir Edward||Hunt, John||Roberts, Gwilym (Bedfordshire, S.)|
|Brooks, Edwin||Irvine Sir Arthur (Edge Hill)||Rodgers, William (Stockton)|
|Brown, R. W. (Shoreditch & F'bury)||Jackson, Colin (B'h'se & Spenb'gh)||Rowlands, E.|
|Cant, R. B.||Jeger, Mrs. Lena (H'b'n & St. P'cras, S.)||Ryan, John|
|Channon, H. P. G.||Johnston, Russell (Inverness)||Sheldon, Robert|
|Concannon, J. D.||Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)||Short, Mrs. Renée (W'hampton, N. E.)|
|Crawshaw, Richard||Jones, T. Alec (Rhondda, W.)||Silkin, Rt. Hn. John (Deptford)|
|Dalyell, Tam||Judd, Frank||Silkin, Hn, S. C. (Dulwich)|
|Davies, Dr. Ernest (Stretford)||Kenyon, Clifford||Silverman, Julius|
|Dewar, Donald||Kerr, Dr. David (W'worth, Central)||Sinclair, Sir George|
|Diamond, Rt. Hn. John||Kerr, Russell (Feltham)||Skeffington, Arthur|
|Dickens, James||Lestor, Miss Joan||Spriggs, Leslie|
|Dobson, Ray||Luard, Evan||Stonehouse, Rt. Hn. John|
|Dunnett, Jack||Lubbock, Eric||Strauss, Rt. Hn. G. R.|
|Dunwoody, Dr. John (F'th & C'b'e)||Lyons, Edward (Bradford, E.)||Taverne, Dick|
|Edwards, Robert (Bilston)||MacDermot, Niall||Tinn, James|
|Ellis, John||Macdonald, A. H.||Varley, Eric G.|
|Emery, Peter||Mackie, John||Vickers, Dame Joan|
|English, Michael||MacLennan, Robert||Walden, Brian (All Saints)|
|Ennals, David||Marks, Kenneth||Watkins, David (Consett)|
|Fernyhough, E.||Mawell-Hyslop, R. J.||Whitaker, Ben|
|Fisher, Nigel||Mayhew, Christopher||Willey, Rt. Hn. Frederick|
|Fletcher, Ted (Darlington)||Mendelson, John||Wilson, William (Coventry, S.)|
|Foot, Rt. Hn. Sir Dingle (Ipswich)||Mikardo, Ian||TELLERS FOR THE AYES:|
|Foot, Michael (Ebbw Vale)||Molloy, William||Mr Christopher Price and|
|Forrester, John||Morris, John (Aberavon)||Mr Peter M. Jackson.|
|Alldritt, Walter||Hall, John (Wycombe)||Knight, Mrs. Jill|
|Beamish, Col. Sir Tufton||Hamilton, Michael (Salisbury)||Legge-Bourke, Sir Harry|
|Black, Sir Cyril||Harvie Anderson, Miss||Longden, Gilbert|
|Body, Richard||Heald, Rt. Hn. Sir Lionel||McAdden, Sir Stephen|
|Brown, Sir Edward (Bath)||Hiley, Joseph||Maddan, Martin|
|Campbell, B. (Oldham, W.)||Hill, J. E. B.||Mahon, Peter (Preston, S.)|
|Clegg, Walter||Hogg, Rt. Hn. Quintin||Maude, Angus|
|Delargy, Hugh||Jennings, J. C. (Burton)||Percival, Ian|
|Farr, John||Jones, Dan (Burnley)||Ramsden, Rt. Hn. James|
|Goodhew, Victor||Kerby, Capt. Henry||Rhys Williams, Sir Brandon|
|Gunter, Rt. Hn. R. J.||Kerr, Mrs. Anne (R'ter & Chatham)||Small, William|
|Turton, Rt. Hn. R. H.||Wood, Rt. Hon. Richard||TELLERS FOR THE NOES:|
|Waddington, David||Woof, Robert||Mr John Biggs-Davison and|
|Ward, Dame Irene||Wright, Esmond||Mr Simon Mahon|
|Williams, Mrs. Shirley (Hitchin)|
§ Question put accordingly, That the Amendment be made:—
|Division No. 258.]||AYES||[5.5 a.m.|
|Alldritt, Walter||Hiley, Joseph||Ramsden, Rt. Hn. James|
|Beamish, Col. Sir Tufton||Hill, J. E. B.||Rhys Williams, Sir Brandon (K'ton, S.)|
|Black, Sir Cyril||Howarth, Robert (Bolton, E.)||Small, William|
|Body, Richard||Jennings, J. C. (Burton)||Waddington, David|
|Brown, Sir Edward (Bath)||Jones, Dan (Burnley)||Ward, Dame Irene|
|Campbell, Bruce (Oldham, W.)||Kerby, Capt. Henry||Williams, Mrs. Shirley (Hitchin)|
|Delargy, Hugh||Kerr, Mrs. Anne (R'ster & Chatham)||Wood, Rt. Hn. Richard|
|Farr, John||Knight, Mrs. Jill||Woof, Robert|
|Goodhew, Victor||Legge-Bourke, Sir Harry||Wright, Esmond|
|Gunter, Rt. Hn. R. J.||Longden, Gilbert|
|Hall, John (Wycombe)||McAdden, Sir Stephen||TELLERS FOR THE AYES:|
|Hamilton, Michael (Salisbury)||Maddan, Martin||Mr John Biggs-Davison and|
|Harvie Anderson, Miss||Mahon, Peter (Preston, S.)||Mr Simon Mahon.|
|Heald, Rt. Hn. Sir Lionel||Maude, Angus|
|Abse, Leo||Fletcher, Ted (Darlington)||Mikardo, Ian|
|Allason, James (Hemel Hempstead)||Foot, Rt. Hn. Sir Dingle (Ipswich)||Molloy, William|
|Archer, Peter||Foot, Michael (Ebbw Vale)||Morris, John (Aberavon)|
|Ashton, Joe||Forrester, John||Murray, Albert|
|Astor, John||Fraser, John (Norwood)||Newens, Stan|
|Atkinson, Norman (Tottenham)||Freeson, Reginald||Norwood, Christopher|
|Awdry, Daniel||Garrett, W. E.||Oakes, Gordon|
|Bagier, Gordon A. T.||Gilmour, Ian (Norfolk, C.)||Ogden, Eric|
|Balniel, Lord||Gray, Dr. Hugh (Yarmouth)||Oram, Albert E.|
|Barnes, Michael||Hamilton, William (Fife, W.)||Orbach, Maurice|
|Barnett, Joel||Hamling, William||Orme, Stanley|
|Batsford, Brian||Haseldine, Norman||Page, Derek (King's Lynn)|
|Benn, Rt. Hn. Anthony Wedgwood||Hobden, Denis||Parker, John (Dagenham)|
|Bennett, James (G'gow, Bridgeton)||Hooley, Frank||Parkyn, Brian (Bedford)|
|Bidwell, Sydney||Hooson, Emlyn||Rees, Merlyn|
|Biffen, John||Hornby, Richard||Richard, Ivor|
|Blaker, Peter||Horner, John||Ridley, Hn. Nicholas|
|Blenkinsop, Arthur||Houghton, Rt. Hn. Douglas||Roberts, Gwilym (Bedfordshire, S.)|
|Booth, Albert||Howie, W.||Rodgers, William (S'ton-on-Tees)|
|Boston, Terence||Huckfield, Leslie||Rowlands, E. (Cardiff, N)|
|Boyle, Rt. Hn. Sir Edward||Hunt, John||Ryan, John|
|Bray, Dr. Jeremy||Irvine, Sir A. (L'pool, Edge Hill)||Sheldon, Robert|
|Brinton, Sir Tatton||Jackson, Colin (B'h'se & Spenb'gh)||Short, Mrs. Renée (W'hampton, N. E.)|
|Brooks, Edwin||Jeger, Mrs. Lena (H'b'n & St. P'cras, S.)||Silkin, Hn. S. C. (Dulwich)|
|Brown, R. W. (Shoreditch & F'bury)||Johnston, Russell (Inverness)||Silverman, Julius|
|Cant, R. B.||Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)||Sinclair, Sir George|
|Channon, H. P. G.||Jones, T. Alec (Rhondda, W.)||Skeffington, Arthur|
|Concannon, J. D.||Judd, Frank||Spriggs, Leslie|
|Crawshaw, Richard||Kenyon, Clifford||Stonehouse, Rt. Hn. John|
|Dalyell, Tam||Kerr, Dr. David (W'worth, C.)||Strauss, Rt. Hn. G. R.|
|Davies, Dr. Ernest (Stretford)||Kerr, Russell (Feltham)||Taverne, Dick|
|Dewar, Donald||Lestor, Miss Joan||Tinn, James|
|Diamond, Rt. Hn. John||Loughlin, Charles||Turton, Rt. Hn. R. H.|
|Dickens, James||Luard, Evan||Varley, Eric G.|
|Dobson, Ray||Lubbock, Eric||Vickers, Dame John|
|Dunnett, Jack||Lyons, Edward (Bradford, E.)||Walden, Brian (All Saints)|
|Dunwoody, Dr. John (F'th & C'b'e)||MacDermot, Niall||Watkins, David (Consett)|
|Edwards, Robert (Bilston)||Macdonald, A. H.||Whitaker, Ben|
|Ellis, John||Mackie, John||Wilson, William (Coventry, S.)|
|Emery, Peter||MacLennan, Robert||Winnick, David|
|English, Michael||Marks, Kenneth|
|Ennals, David||Maxwell-Hyslop, R. J.||TELLERS FOR THE NOES:|
|Fernyhough, E.||Mayhew, Christopher||Mr Christopher Price and|
|Fisher, Nigel||Mendelson, John||Mr Peter M. Jackson.|
§ Colonel Sir Tufton Beamish (Lewes)
On a point of order, Mr. Speaker. I beg to move, That further consideration of the Bill, as amended, be now adjourned.
§ The House divided: Ayes 37, Noes 121.
§ Mr. Leslie Spriggs (St. Helens)
I beg to move Amendment No. 7, in page 1, line 23, leave out 'two' and insert 'five'.
The Bill states that the court shall consider paragraph (d) as one of the 1921 reasons for granting a divorce. That reads,that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.5.15 a.m.
Anyone who has travelled fairly extensively in the Commonwealth or in any of the other overseas territories cannot have helped observing the fairly high percentage of British subjects who are working in one or more of the professions in those countries. There are a number of reasons why married people live apart. Some do so simply because the husband is serving in the Forces, or working overseas, or because climatic conditions are unsuitable for the wife, or because the wife has returned home because of an unstable political situation. Sickness or injury may produce a situation in which it is virtually impossible to move a patient for a long time, requiring treatment away from home, and it is not unknown for a British subject to find himself imprisoned in a foreign goal for a few years.
The danger in such circumstances is that one spouse may not even be aware that divorce proceedings have been commenced, and because the person concerned is not aware of what paragraph (d) provides for, or that a divorce is even contemplated by his partner, he may be presented with a fait accompli.
Such circumstances would be rare indeed if the Amendment were accepted. It would provide both parties with more time to think things over. It would provide three more years in which to overcome the problems which face those who are separated by thousands of miles. There are also those who are difficult to trace, and, in particular, those married people who have children to consider, or whom they should consider.
The Bill will be a far better Bill if the Amendment is accepted. Such an acceptance would at least be consistent with paragraph (e).
§ Mr. Waddington
I support the Amendment, for rather different reasons from those advanced by the hon. Member for St. Helens (Mr. Spriggs), but that is not to say that I do not agree with the reasons which he has advanced.
1922 We are divided into two camps in this House tonight, not party camps, because our differences of opinion run across party lines to some extent, but two camps in the sense that a large number of us feel that divorce should be made rather more difficult rather than easier. It seems that a majority of hon. Members are convinced that divorce should be made easier. That is the real division which we are arguing about on one Clause or another.
During my life in the courts I have found no evidence that easier divorce has made for happier marriage, and I shall be very surprised if any hon. Member says that he has found any evidence of that. Common sense tells one that people entering marriage knowing that it will be extremely difficult to sever the bond are more likely to make a go of things and remain happily married than those who enter marriage believing that the link can be broken comparatively easily.
§ Mr. Speaker
Order. We are not on the Second or Third Reading of the Bill. The hon. Member must come to the Amendment.
§ Mr. Waddington
I am certainly trying to do so, Mr. Speaker. The argument I am advancing is this. Although different reasons were advanced by the hon. Member for his Amendment, I support the Amendment because it will at least make the dissolution of marriage as a result of the passing of this Bill rather more difficult than it will be if the Bill is passed without being amended in any way at all.
Immense sums of money are already spent on divorce in this country. More money will be spent if the Bill is passed unamended, and even more money will be spent on divorce as a result of other Measures which have gone through the House recently, notably the Measure lowering the age of consent—free marriage, as it is called.
I heartily support the Amendment because I look upon it as one ray of light in the darkness and one realistic attempt to make marriage a lasting bond and restore some sanity to a Bill which to my mind contains precious little of it.
§ Mr. Richard
I intervene briefly to say that I entirely support the sentiments behind the Amendment. I should 1923 perhaps say to my hon. Friend the Member for St. Helens (Mr. Spriggs) that the position that he has in mind is already protected under the Clause as drafted. As I read subsection (2), and particularly paragraph (d) which my hon. Friend has in mind, the position is this. It gives to either party, where there has been actual separation for two years, the right to go to the court and ask for a divorce, provided that—and this is the crucial proviso—the other spouse consents. In the situation which my hon. Friend was talking about, where one of the parties is in a position abroad, or is in prison, there is first the proviso that consent would be required—
§ Mr. Spriggs
If I may interrupt my hon. Friend, he is basing his argument on the supposition that when people go to court for a divorce they are honest people. There is a grave doubt about this.
§ Mr. Richard
No, I was not basing my remarks upon that supposition. I am basing my argument upon the supposition that when a person goes to court a judge has to be satisfied that the other spouse has been served with the petition. If he could not be so satisfied—and the rules for service are quite strict—an order would have to be made for substituted service, and the spouse seeking the divorce would have to satisfy the judge that consent had been given.
This is a well recognised procedure. There are a number of protections already written into the divorce law covering the precise situation that my hon. Friend has in mind, when one spouse is petitioning and the other spouse has got to assent to some procedural part of the petition or, as in this case, where the other spouse would have to give evidence to the court that he does not object to the decree being granted. With respect to my hon. Friend, the position is pretty well covered under the existing law. I do not think that extending the period from two years to five
§ years would deal with the situation of the deceitful or lying petitioner.
§ Mr. Angus Maude (Stratford-on-Avon)
I first took the view that the hon. Member for Barons Court (Mr. Richard) has been propounding when I looked at the Amendment—that it was unnecessary because the Clause covered the situation. But he has mis-stated the case, because he based his case on the fact that the respondent had to consent. That is not what the Clause says. It refers to the respondent not objecting—a very different matter.
I understood that the doubt of the hon. Member for St. Helens (Mr. Spriggs) was whether it would not be possible for proceedings to be started when it was physically impossible for the respondent to serve notice of objection. So far, the hon. Member has not convinced me that the law could insist that the act of consenting was notified to the court. There is a real point here.
§ Mr. Richard
There would be a real point were not rules for this procedure going to be made in accordance with the enabling provisions. One thing which any set of matrimonial rules would have to take into account, as they have done in previous Acts, is the precise point that the hon. Member has in mind. In other words, a specific rule would have to be enacted making the consent, rather than the non-objection by silence, a condition precedent to the granting of a decree under subsection (1)(d).
§ Mr. Richard
I am obliged. Clause 2(6) dots the "i's" and crosses the "t's". I hope that it satisfies hon. Members opposite and my hon. Friend.
§ Question put, That the Amendment be made:—
§ The House divided: Ayes 38, Noes 118.
|Jennings, J. C. (Burton)||Mahon, Peter (Preston, S.)||Williams, Mrs. Shirley (Hitchin)|
|Jones, Dan (Burnley)||Maude, Angus||Wood, Rt. Hn. Richard|
|Kerby, Capt. Henry||Ramsden, Rt. Hn. James||Woof, Robert|
|Kerr, Mrs. Anne (R'ter & Chatham)||Rhys Williams, Sir Brandon||Wright, Esmond|
|Knight, Mrs. Jill||Small, William|
|Longden, Gilbert||Tinn, James||TELLERS FOR THE AYES:|
|McAdden, Sir Stephen||Waddington, David||Mr. Leslie Spriggs and|
|Maddan, Martin||Ward, Dame Irene||Mr. Simon Mahon.|
|Abse, Leo||Garrett, W. E.||Morris, John (Aberavon)|
|Allason, James (Hemel Hempstead)||Gilmour, Ian (Norfolk, C.)||Murray, Albert|
|Archer, Peter||Gray, Dr. Hugh (Yarmouth)||Newens, Stan|
|Ashton, Joe||Hamilton, William (Fife, W.)||Norwood, Christopher|
|Astor, John||Hamling, William||Oakes, Gordon|
|Atkinson, Norman (Tottenham)||Haseldine, Norman||Ogden, Eric|
|Awdry, Daniel||Hobden, Denis (Brighton, Kemptown)||Oram, Albert E.|
|Bagier, Gordon A. T.||Hooley, Frank||Orbach, Maurice|
|Barnes, Michael||Hooson, Emlyn||Orme, Stanley|
|Barnett, Joel||Hornby, Richard||Page, Derek (King's Lynn)|
|Benn, Rt. Hn. Anthony Wedgwood||Horner, John||Parker, John (Dagenham)|
|Bidwell, Sydney||Houghton, Rt. Hn. Douglas||Parkyn, Brian (Bedford)|
|Blenkinsop, Arthur||Howie, W.||Rees, Merlyn|
|Booth, Albert||Huckfield, Leslie||Richard, Ivor|
|Boston, Terence||Hunt, John||Ridley, Hn. Nicholas|
|Boyle, Rt. Hn. Sir Edward||Irvine, Sir Arthur (Edge Hill)||Rowlands, E. (Cardiff, N.)|
|Brooks, Edwin||Jackson, Colin (B'h'se & Spenb'gh)||Ryan, John|
|Brown, R. W. (Shoreditch & F'bury)||Jeger, Mrs. Lena (H'b'n & St. P'cras, S.)||Scott, Nicholas|
|Cant, R. B.||Johnston, Russell (Inverness)||Sheldon, Robert|
|Channon, H. P. G.||Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)||Short, Mrs. Renée (W'hampton, N. E.)|
|Clegg, Walter||Jones, T. Alec (Rhondda, W.)||Silkin, Rt. Hn. John (Deptford)|
|Concannon, J. D.||Judd, Frank||Silkin, Hn. S. C. (Dulwich)|
|Crawshaw, Richard||Kenyon, Clifford||Silverman, Julius|
|Dalyell, Tam||Kerr, Russell (Feltham)||Sinclair, Sir George|
|Davies, Dr. Ernest (Stretford)||Lestor, Miss Joan||Skeffington, Arthur|
|Dewar, Donald||Loughlin, Charles||Stonehouse, Rt. Hn. John|
|Dickens, James||Luard, Evan||Strauss, Rt. Hn. G. R.|
|Dobson, Ray||Lubbock, Eric||Taverne, Dick|
|Dunnett, Jack||Lyons, Edward (Bradford, E.)||Turton, Rt. Hn. R. H.|
|Dunwoody, Dr. John (F'th & C'b'e)||MacDermot, Niall||Varley, Eric G.|
|Edwards, Robert (Bilston)||Macdonald, A. H.||Vickers, Dame Joan|
|Ellis, John||Mackie, John||Walden, Brian (All Saints)|
|Emery, Peter||MacLennan, Robert||Watkins, David (Consett)|
|Ennals, David||Marks, Kenneth||Whitaker, Ben|
|Fernyhough, E.||Maxwell-Hyslop, R. J.||Wilson, William (Coventry, S.)|
|Fletcher, Ted (Darlington)||Mayhew, Christopher||Winnick, David|
|Foot, Rt. Hn. Sir Dingle (Ipswich)||Mendelson, John|
|Foot, Michael (Ebbw Vale)||Mikardo, Ian||TELLERS FOR THE NOES:|
|Forrester, John||Miscampbell, Norman||Mr. Christopher Price and|
|Fraser, John (Norwood)||Molloy, William||Mr. Peter M. Jackson.|
§ Mr. Michael English (Nottingham, West)
I beg to move Amendment No. 10, in page 2, line 3, at end insert:(2) The court shall not hold the marriage to have broken down irretrievably if the respondent satisfies the court—The object of the Amendment is simple—to meet the problem of those people, some of whom are Roman Catholics and some of whom are members of Protestant groups, who wish to enter into what have 1926 been termed in another context enforceable agreements. Theirs is a genuine belief. It is very deeply held by many people. It is a belief that if one enters into an agreement by a religious ceremony, that religious ceremony should have some meaning.
- (a) that the marriage was entered into after the commencement of this Act by a religious ceremony;
- (b) that notwithstanding subsection 1 above, granting the petition would conflict with tenets of the religion according to the rites of which the marriage ceremony took place; and
- (c) that both the petitioner and the respondent knew, at the time of the marriage, of the relevant tenets of the religion concerned.
§ Mr. Speaker
Order. If hon. Members will talk among themselves, they must do so in tones which are not as loud as those of the hon. Member who is addressing the House.
§ Mr. English
The point of the Amendment is to allow those who desire to enter into a religious ceremony of marriage—and only those—knowing that it has some meaning within the tenets of their Church, whichever Church it is, to believe that it has the meaning which they attach to it.
§ Mr. Stanley Orme (Salford, West)
But that is exactly how they interpret the religious ceremony in the marriage which takes place. Why do they need that reinforced when to them it is a sacrament into which they have entered?
§ Mr. English
There are occasions on which people enter into religious ceremonies of marriage not entirely for those reasons. They may enter into religious ceremonies of marriage under a certain degree of pressure from the Church concerned or out of social rather than religious motives.
§ Mr. Richard
This is not a Bill to protect religious ceremonies. It is a Bill to amend the divorce law.
§ Mr. English
I am aware of that. I am suggesting that there is, and ought to be, a distinction between the civil law of the land and the religious desires of individuals. In France, one enters into a civil ceremony in all cases and one may or may not enter into a religious ceremony. In this country, one can contract a marriage by means of a civil ceremony or by means of a religious ceremony. My hon. Friend the Member for Barons Court (Mr. Richard) is a lawyer and he is aware that the principle in this country is different from that in some other countries.
If one is able in this country to decide to enter into marriage by either a civil or religious ceremony, both being legally valid according to the civil law of the land, is it unreasonable to say that one should be able to dissolve the marriage according to similar principles? Is it correct to say that we are altering the law of divorce. That must have some relationship to the law of marriage which, in this country, says that one can enter into marriage by a civil or religious ceremony.
The Amendment is simple. It suggests that if one wishes to enter into a civil ceremony in a registrar office, according to the civil laws of marriage and divorce, well and good. But if one wishes to enter into a religious marriage ceremony in a church, one should be entitled to do so. We aim in this House to cater for minorities as well as the majority. The Amendment would affect nobody who is married because it states… after the commencement of this Act ….1928 Nobody in favour of the Bill need vote against it for that reason. If hon. Members are aware of present marriages which should, perhaps, be dissolved, they can support the Amendment because of that reference to the commencement of the Measure. My object is to enable people who desire to do so to enter into a ceremony of marriage in accordance with their religion.
§ Mr. English
I pointed out that one can enter into something knowing that it is not the truth. A judge once said that "the devil knoweth not the heart of man."
§ Mr. English
I stand corrected by the leader of the Bar. I have heard people—entering into a religious ceremony of marriage—say, "One can always get a divorce if the marriage does not work out." In the Amendment I am trying to provide the possibility for individuals who wish to do otherwise to do what they wish with reasonable certainty that both parties will abide by their original wish.
§ 5.45 a.m.
§ Mr. Peter M. Jackson
Will my hon. Friend the Member for Nottingham, West (Mr. English) explain the position of such a marriage where one of the parties subsequently apostatises? Some people alter their religious beliefs. What would be the position when one or other changed his or her mind?
§ Mr. English
I should say the position is quite simple. In accordance with this Amendment—I am not talking about the beliefs of the people concerned—the original ceremony they had gone through would be valid in law.
§ Mr. Maude
I respect, as I think the whole House will, the motives of the hon. Member for Nottingham, West (Mr. English), who moved this Amendment. Nevertheless—and I say at once that I am one who on religious grounds is antipathetic to relaxation of the laws relating to divorce—I cannot feel that he has helped the cause of those who feel strongly about divorce by confusing two quite different things. I feel bound to say this because there is grave danger 1929 that the argument could become confused.
The hon. Member started his argument by saying that one can get married in one of two ways; one can enter either a religious ceremony or a civil contract. I understand that one cannot get married without a civil contract being entered into whether in a church or in a register office. The law provides for the dissolution of the civil contract. If one happens to believe that the vows entered into in a religious ceremony are binding and irrevocable one is in the eyes of God, as some would say, and others would say in the eyes of one's co-religionists, still married whether the law says one is divorced or not.
This being so, it seems to confuse the two ideas, that is of the indissolubility of marriage on the ground of religious vows sworn before God in front of an altar and the indissolubility of marriage because one has entered a civil contract for which the law provides redress and a method of relaxing the contract. That is to get into hopeless confusion. The only grounds on which I can see an argument for this case—strangely enough the hon. Member did not advance them—are that those who were of a strong religious persuasion and had thought it worth while to signify their intention to enter into a lifelong contract of marriage by making vows in accordance with a religious ceremony would be more likely to retrieve an apparently irretrievable marriage than those who took the matter more lightly, inadvisedly and wantonly and entered only a civil contract.
The courts might reasonably say that people of a strong religious persuasion who had vowed in terms of their religion in a church, to remain faithful to one another and not to break their contract were the better bet for, let us say, the marriage doctor to patch up and put together again than those who had no such feelings at all.
§ Mr. Richard
The hon. Member did me the courtesy of interrupting me, so perhaps I may return the courtesy. I am sure he knows that Clause 2(3) says:If the court is satisfied on the evidence of any such fact as is mentioned in subsection (1) of this section, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably….1930 I should have thought the point the hon. Member is making was one which the judges would take into account.
§ Mr. Maude
I was coming to that point. It seems that these are almost the only grounds on which it is permissible or logical to allow the concept of the religious contract, the religious ceremony, to enter into what we are discussing here, which is the dissolution of the civil contract. It might well be argued that the court should take into account the nature of the religious ceremony and the religious vows which were made by the parties to the marriage and that the court might well conclude that there was still hope for a marriage where the parties were of strong religious views and perhaps were still in communion with their church. I am fortified in that belief by the hon. Member's statement that this is a factor which the court would be obliged to take into account. This is the only kind of basis on which the Amendment could be put forward. As I believe it to have been provided for elsewhere, as the hon. Member has said, I find it very difficult to support the Amendment in its present form.
§ Mr. Delargy
In considering the Amendment it is essential to consider the radical implications of the Bill. The Bill makes a complete departure from the Christian understanding of marriage. I think we are all agreed on that, because the Christian understanding of marriage is that it is a contract exclusive, binding and indissoluble. This is not my opinion. It is a statement of fact.
§ Mr. John Mendelson (Penistone)
My hon. Friend cannot advance it as a statement of fact. I was visited last night by a clergyman from my constituency who urged me to stay to support the Bill. He said that the Church of England supports the Bill and does not regard it as a radical departure from the Christian understanding to marriage.
§ Mr. Delargy
I am surprised that the Church of England supports the Bill. The Archbishop of Canterbury does not, and other Churches do not. I do not want to argue about this matter. I am not in favour of the Amendment. The Christian understanding of marriage, as it has been known for 2,000 years, no matter what was said to my hon. Friend last night, has been that it is a contract 1931 exclusive between two persons, binding and indissoluble. I am not arguing whether that is right or wrong. I am giving the facts.
§ Mr. Delargy
I do not care how persistent my hon. Friend is. He says it is not a fact. My statement that for 2,000 years this was the Christian-held view of marriage is a statement of fact.
§ Mr. Delargy
This view of marriage is no longer generally held. This is a fact we must face. I keep on using the word "fact". We must live with this fact. The Bill recognises and emphasises that plain fact. There seems to be little purpose in trying to write into the Bill qualifications which are religious in character and which can only be verified in a religious context.
On the other hand, I agree with the hon. Member for Stratford-on-Avon (Mr. Maude) that it could be suggested that "the facts" referred to in page 2, line 5, which it would be the duty of the court to examine should include religious views about the nature of marriage. For example, the fact that there had been a religious ceremony might be put in evidence as proof of the acceptance of marriage as indissoluble. We must recognise that the Christian view of marriage can no longer be imposed by legislation, but we can properly demand that the religious contract—religious as well as civil contract as many people believe—should be considered when the court seeks to make a decision.
We have enough duties and responsibilities of our own without taking other people's duties upon our shoulders. I believe that, since the Bill destroys altogether the Christian understanding of marriage, the onus is all the heavier on the Churches to educate their people effectively and to provide in a religious ceremony an unambiguous affirmation of what a Christian should intend. I maintain, however, that that is the duty of the Churches and not our duty.
§ Mr. Wood
There are some reasons which I should have urged in our debate on new Clause 9, had not the hon. Member for The High Peak (Mr. Peter M. Jackson) decided to move the Closure 1932 when I stood up, against the imposition of the principle of indissolubility in certain marriages. I am bound to say that the kind of reasons urged by my hon. Friend the Member for Stratford-on-Avon (Mr. Maude) make me anxious about the proposal of the hon. Member for Nottingham, West (Mr. English).
In particular, I think that all of us would be anxious that men and women should not be deterred by the irrevocable distinction which the Amendment seeks to make between marriages which take place according to a religious ceremony and marriages other than in church. We all realise that men and women who choose to be married in church are required to make solemn vows concerning the indissolubility of their marriage.
Those men and women, however, are not alone. Those who marry under other auspices are also required to recognise that marriage is a lifelong union. Although the recognition that is made in marriages elsewhere than in church may lack the seriousness of a religious vow, which is, perhaps, undertaken in the presence of many witnesses, I should be greatly disturbed if I thought that the undertaking made by others outside church was likely to be devalued.
One of the fears of those who oppose the Bill is that its provisions for easier divorce, as I see it, will, or may, increase the number of husbands and wives who will enter lightly into marriage knowing that it can be dissolved ever more easily when the going gets hard. I am only too ready to admit that this is only a fear, but I believe that it would be the very likely result of acceptance of the Amendment. I hope to show that more people, not fewer, would be tempted to enter marriage without a firm intention of indissolubility.
If the Amendment were written into the Bill, more and more people, when faced with the decision of whether to be married in church, might be tempted to play safe. We can all speak from personal experience. I think that many of us have found the entry into matrimony an alarming business. To undertake solemnly to bind oneself for life to a woman or a man, however delightful we might find her or him in the heady days before taking the plunge, needs courage and determination.
1933 Although I, like thousands of others, having been lucky, have found that a joint recognition of indissolubility has been a constant source of strength and security, I am fearful that thousands of others, uncertain of what the future may hold, might wish to opt for a less formidable obligation.
Those of us who believe that the sacramental nature of marriage is of immense significance must view with some alarm anything which might discourage the fainthearted from seeking the blessing of the Church on their union. For many, such a reluctance to be married in accordance with the rites of the Church would have the effect, as we all know, of cutting them off in other ways from other benefits which the Church could give them.
This Amendment is an attempt, as was the new Clause we discussed earlier—there can be no doubt about it—to create two categories of marriage, the indissoluble and the dissoluble. Christians, when they get married, may indeed believe—and I hope that most do—that their marriage is indissoluble and that, whatever it may say, the law of the land has no particular relevance to their own situation. But this, it seems to me, as it seems to my hon. Friend the Member for Stratford-on-Avon, is very different from so framing our legislation as to provide one set of rules for those married in accordance with a religious ceremony and another set for everyone else. That is why I find it impossible to give my wholehearted support to the hon. Gentleman's attempt to enshrine this distinction in law.
None the less, I am bound to be concerned by the provisions of the Bill, which the hon. Gentleman seeks to amend, which aim to subordinate the most solemn promises, the sincerity of which are in no doubt, to the whim of one party to a marriage availing himself or herself of what I have already described as the Bill's one radical provision, so that, notwithstanding any convictions of the respondent or any vows which the respondent may have taken and however sincerely they may be held, he or she can obtain a decree after the lapse of a certain period of time.
It seems to me that that provision has been put forward in total neglect of one 1934 of the most important traditions of both the nation and Parliament. A great deal is written and said today about respect for minorities. Not long ago the House of Commons, rightly, in my view, refused to move against the practice of ritual slaughter in defence of that very principle. But here we have a situation in which the supporters of the Bill propose to set at naught one of the most solemn promises that a man or woman can make, and if the present Amendment is defeated—as I believe it ought to be—the promise to remain together "till death us do part" is now to be re-written under the Bill so that in future it will be "until we are parted by the court in accordance with the instructions of Mr. Jones and Mr. Abse"
Nor is that the whole of the minority which the Bill proposes to persecute. There must be a fair number of men and women, though married with no religious ceremony, whose intention at the time of their marriage to remain married for life continues as strong as ever in the heart of one partner at the time of its proposed dissolution. I wonder whether we can really be right—perhaps this is the moment to consider these questions very carefully—to decide that that honest intention should be violated by allowing it to be overruled by the partner who may once have shared it, and shared it most sincerely, but who shares it no longer. I can think of few fields of human activity in which we should allow two people to make solemn promises to one another and then allow the one who wants to keep those promises to be sacrificed to the one who wants to break them.
The House is only too well aware that I am no Parliamentary draftsman, but I have attempted to express on the Notice Paper in the next two Amendments the only means, apart from the deletion of paragraph (e), which I can conceive of as giving proper protection to the compulsory divorcee.
For the reason I have given, I think it wrong to try, as the Amendment seeks to do, to confine this protection to those who have been married in accordance with a religious ceremony. I do not believe it right to try to squeeze the tenets of religion into the straightjacket of the law, as the Amendment seeks to do. I greatly prefer to try to discover a means by which a court could have in the most 1935 distressing cases a discretion to decide whether or not the convictions expressed by the respondent are of superior weight to prevail against the wish of the petitioner to bring the marriage to an end. It will be to this end that I shall direct my argument on the next Amendment.
§ Mr. John Mendelson
I am interested mainly in two aspects of the Bill that have caused me, as they have probably caused many other hon. Members, the greatest concern. One is the position of the wife after a petitioner has succeeded, and the other is the profoundly-held views of deeply religious people.
Although I think that the other Amendments which the right hon. Member for Bridlington (Mr. Wood) has tabled are the more important of this section of Amendments, it is because we have now reached the religious question that I want to make some brief comments. The right hon. Gentleman made a point of telling the House that there are many people who are not religious but equally enter marriage with the firm intention that it should be a union for life. I was glad that he did so, because I thought that there was an implication in what my hon. Friend the Member for Nottingham, West (Mr. English) said in moving the Amendment that this intention was not present in people who were not religious and not deeply devoted to their religious opinions but had another philosophy of life. I think that this is a mistaken view. Even any trace of such feeling cannot be accepted.
§ Mr. English
I think that my hon. Friend misunderstood me. I would think it more normal for people to do the opposite.
§ Mr. Mendelson
As long as there is not that implication, I rest content.
When my hon. Friend said later that this was his opinion on the Amendment, I was reconciled to everything he said. But it may not be accepted that everybody who is deeply religious or active in one of the Churches holds that this Bill is a radical departure from the Christian concept of marriage. To the knowledge of every hon. Member, there are many people in several Christian Churches who do not hold this to be a radical departure from the Christian concept of marriage.
1936 This brings me to what I consider to be the most important point in this part of the debate. I fully agree with the right hon. Gentleman—that is why I said that this is one of the two parts in the Bill that caused me most concern—with regard to the views of those groups of people which he called minorities, but which are substantial sections of the community, who are worried about the change that this would make in their whole lives, of which marriage is one part, a very important part, if there were a serious inroad into this part of their lives. It is something the House must take very seriously into consideration.
If I were not satisfied with what we were doing to protect their views I would not vote for Third Reading, just as I would not vote for it if the position of the wife was not properly protected after the petitioner had succeeded against her.
The right hon. Gentleman was lacking one point. I put that to him with humility, because I know how deeply he has considered these matters, and his wide knowledge of the subject. The point that was lacking was when he dealt with the position that would arise if one of the two partners still cherishes the other, cherishes the marriage and cannot reconcile himself or herself to the fact that it has come to an end, and believes, therefore, that the other partner should, ipso facto, never be able to succeed with his or her petition. I thought that there was an implied and rigid obligation in an agreement or contract that can be applied to other circumstances between human beings but cannot be applied to marriage. What I consider to be the cardinal principle of the Bill and the reason why it has received such wide support is that the continuation of the life together is not possible unless both partners retain the view advanced by the right hon. Gentleman. That was the important and serious flaw in the argument. If it is not possible that it can be continued unless and until both partners are convinced that it can be continued, then his main argument falls to the ground because in trying to protect the view of one partner who cannot reconcile himself or herself to the fact that the marriage is irretrievably broken down we should have to condemn the other partner who finds that he 1937 cannot continue with the marriage. The awful thing is that these people, when they have to go on, have a life of misery because they consider themselves to be living in sin. This has often been said to me.
On those grounds, the principle of the Bill, far from doing any harm to those whom the right hon. Gentleman wants to see protected, would be a greater protection for them and their sincerely-held views. It would also advance the possibility of making a break, and that is why I feel that the Amendment should not be resisted.
§ Mr. Clegg
This has been a most interesting debate, but, as ever, we keep returning to the major root of the difficulties in the Bill, in Clause 2(1)(e). I have been impressed by the sincere arguments put forward for the Amendment. The debate has shown the concern arising where one of the partners to a religious marriage loses his or her faith. If they both retain their faith there is no problem and the Clause is unnecessary, since neither will take civil action to end the marriage.
The difficulty arises when one of these persons loses faith. It would be terrible for a man or woman who has been divorced against his or her will. Does this Amendment help? Does it have a practical purpose? I do not believe it will help, because it is not a practical proposition.
Under it we are laying an impossible burden on the courts. Judges are men of differing view, and we are asking them to decide whether this is genuine. The judge is used to judging on the facts. That is one thing. But to get into people's minds to find out whether, at the time of marriage, they had a true realisation of the tenets of their religion is a difficult and impractical proposition.
It would be all very well if the judge were considering a case in which the partners had married at a mature age. But suppose the couple married at 17 or 18, as young people so often do nowadays? If the judge had to ask them whether at the time they really understood the tenets of the faith and that it was to be a lifelong contract, he would be in an intolerable position.
1938 I believe that an answer must be found to the problem of the partner divorced against his or her will if I am to vote for the Third Reading of the Bill, but this Amendment is not the answer I am seeking.
§ Mr. Peter Mahon (Preston, South)
I cannot support the Amendment because I believe that, whether a marriage has been solemnised in a church or not, divorce is not a good thing. Divorce signifies failure of love and of generosity, and in attempting to draw up divorce laws or amend them we have to recognise that we are dabbling in a world of failure. I am equally certain that if we pass this Bill, with or without these Amendments, we shall be adding to the world, and to our own country in particular, another failure. The cardinal principle enshrined in the law of our land from time immemorial has been that a person must not be punished for not having done wrong. With this Bill—
§ Mr. Deputy Speaker (Mr. Harry Gourlay)
Order. I must remind the hon. Gentleman that we are discussing not the Bill but Amendment No. 10 and he must adduce arguments as to why he is supporting or not supporting the Amendment. He must do so not in a wide sense but in the narrower sense of the Amendment.
§ Mr. Mahon
But other hon. Members have directed their remarks to many of the principles embodied in the Bill and have linked their comments on the Amendment with what is happening. That has been the general tenor of the debate.
My hon. Friend the Member for Nottingham, West (Mr. English) is attempting to redress a wrong with the Amendment on behalf of people who suffer in divorce but only a particular section of people—those who had their marriages solemnised in church. I do not agree with him. I say that the wronged partner, if the sanctity of marriage is to be maintained, must not be coerced by legislation. Only through death should a partner be lost without consent. Divorce by compulsion is a denial of marriage itself.
§ Mr. Deputy Speaker
Order. The hon. Gentleman is again pursuing the general 1939 argument about the Bill. He must relate his remarks more specifically to the Amendment.
§ Mr. Mahon
That is the argument I am endeavouring to develop. I want to pay close attention to what is in the Bill, which affects very intimately the lives of people whose marriages have been solemnised in church. From that point of view I can postpone my remarks to a later period in the debate. I can speak at length on this matter on Third Reading, if I am fortunate enough to catch your eye, Sir. I thought that what I was saying was particularly germane to the Amendment, but I will defer to your ruling and postpone my remarks until later on.
Mr. Bruce Campbell
I support the Amendment, and indeed I have added my name to it. It is a remarkable feature of the law of the land that the contract of marriage is one of the few that the courts do not enforce but repudiate. People can enter into almost any sort of contract and the courts will enforce them. They can be life-long contracts.
Let us take as an example a mortgage on a house. A few thousand pounds can be borrowed from a building society and one can agree to pay it back over 25 years. That contract is binding on the person concerned, as well as on the building society, for 25 years. But if one goes to a church, with all the solemnity of a religious ceremony, and enters into vows to remain married to a woman, and she to you, for life, not only is that a contract that the courts will not enforce, but the courts cannot enforce it.
All that needs to happen under the Bill is that if one of the parties goes to the court and satisfies is that the marriage has broken down irretrievably, the court will grant a decree. There are some other contracts that the courts do not enforce. Generally speaking, they are contracts which contain an element of illegality or contracts which are considered to be contrary to public policy. It is remarkable that a contract to marry should be lumped in with contracts of that sort. Many people find it offensive that it is possible for a couple to go to church and enter into solemn vows and then, a few years later, one of them can 1940 go to the court to repudiate those vows altogether and the court is obliged to dissolve the marriage in defiance of the contract that has been made.
The Amendment applies only to future marriages, marriages entered into after the Bill comes into force. This Bill brings into law for the first time compulsory divorce. The proposal is that in future, when this legislation becomes the law of the land, it will be possible for people who do not believe in compulsory divorce to get married in a way that will prevent compulsory divorce. They do not have to do it. If they want the sort of marriage than can end in the divorce court at any time, they can get married in a register office; but if they want a lasting marriage, they can get married in church.
I hope that the Amendment will be accepted. It would remove from our law the farce that exists—and, if the Bill is passed, will exist more than ever in future—that enables people to go through a solemn ceremony in church and then a few years later, as is the case in one out of every eight marriages, to repudiate it in a court.
§ Mr. Simon Mahon
I want to repudiate something said by my hon. Friend the Member for Penistone (Mr. John Mendelson). I believe that every marriage is a marriage between two people, whether the ceremony is conducted in a registry office, is by mutual consent, or is solemnised in a church of any kind. It makes little difference where a marriage ceremony takes place, but when an hon. Member says that the Christian concept of marriage is no longer that it is a lifelong union, I ask: when did anyone ever attend at any church in the country where the indications and the outwards signs of what is called the inward grace of the sacrament were not so clear to the most unintelligent person that this was a lifelong union?
§ Mr. John Mendelson
I do not know whether my hon. Friend was listening to what I was saying. He is, of course, always fair, but may I correct any suggestion that I said that the Christian churches do not regard marriage any more as a lifelong association. I said nothing of the kind, as my hon. Friend will see from HANSARD. I said that it is my certain knowledge, and the knowledge 1941 of other hon. Members, that many people active in Christian Churches do not regard the Bill as a departure from the concept of marriage that they support and that they are, therefore, supporting the Bill.
§ Mr. Simon Mahon
I do not understand that sort of language. It is a bit too much of the double talk.
§ Mr. Mahon
The hon. Gentleman should not push his luck. We have been particularly generous with some Members of the Labour Party. We try to show them the charity which we have been asked to show the one towards the other, so I want no more of that. I have treated every Member of this House with respect on every occasion when I have been on my feet. I will say what I want to say, whether the Labour Party or the Government like it or not.
I only want to intervene briefly, but I keep being led away into saying things that I do not want to say.
My hon. Friend the Member for Thurrock (Mr. Delargy) said that it is the duty of the Churches to instruct people in the tenets of their faith. I wish that we were able to be assured of people knowing the law as well as the tenets of their faith.
Having established that the Christian concept of marriage is still what it always was, I will bother the House no more.
§ Mr. Percival
I have no wish to take part in the discussion about the merits or demerits of the Amendment. I seek clarification on one point which has been raised which I think is relevant to the Amendment.
The hon. Member for Barons Court (Mr. Richard), my hon. Friend the Member for Stratford-on-Avon (Mr. Maude) and the hon. Member for Thurrock (Mr. Delargy) adopted the proposition that much of what is sought to be covered by the Amendment is already covered in Clause 2(3).
§ Mr. Percival
The hon. Gentleman wags his head. I will give way to him 1942 in a moment. I have risen in the hope of clarifying the point. The impression conveyed, and I think accepted and adopted by two hon. Gentlemen opposite, was that the questions which would arise under the Amendment would arise and be material under Clause 2(3).
I have never heard any suggestion like this before, and in the short time that one has had to consider this it appears that it is just conceivable that in very special circumstances such considerations might arise under subsection (3). But it would be pushing the argument too far to suggest that the considerations raised in the Amendment could be relevant and therefore a subject for the consideration of the court under subsection (3), save in the most exceptional circumstances.
I had hoped to put this question to the Attorney-General, but I appreciate that, like the rest of us, he cannot sit forever in one place, and I do not think it would be fair to put it to the Minister who has taken his place. The hon. Gentleman may regard that as a kindness to be repaid one day. I think that the matter should be clarified by the promoter of the Bill because of what has been said about the misunderstanding in the minds of some hon. Members, and I hope that that will be done at some stage.
§ Mr. Brian Walden (Birmingham, All Saints)
I intervene only because I know that the right hon. Member for Bridlington (Mr. Wood) has said as much as he wants to say, or perhaps not too much, on Amendments Nos. 24 and 25, and although this point is best put here, it might be relevant to those two Amendments.
We have heard a number of objections to the proposal put forward by my hon. Friend, and I agree with some of them. I agree with the objections of the hon. Member for North Fylde (Mr. Clegg) who talked about the difficulties of construction, and those of my hon. Friend the Member for Penistone (Mr. John Mendelson), but I am on a very different point.
I doubt very much whether, even if none of those objections was valid, it would be wise for the legislature to enact this Amendment from the point of 1943 view of the relationship it would establish between the State and its citizens. One of the difficulties about marriage is that it is not simply something which concerns the State. It is not simply something which relates to a contract. It is, naturally enough, in all Western societies tied up with certain religious convictions. Therefore, there has always been an ambivalence in Western society about marriage in respect of it being partially the responsibility of the State and partially being tied up with certain religious beliefs.
If the hon. and learned Gentleman looks carefully at the Amendment, and indeed at the general tenor of his argument, he will see that it will do one thing. It will, and the State will have done this, discriminate against a man as against the generality of his fellow citizens, on the basis of a religious conviction which he once held. He will have given away his right to do certain things. Whether those things are good or bad, whether some of my hon. Friends are right, or others are right, is not really the point. The point is that simply because a man had once believed a certain religious doctrine he will have given away his right to take a certain course of action. In that sense it must be discrimination, and in that sense it cannot be a good principle to embody in the law.
§ Mr. John Biggs-Davison (Chigwell)
I agree very much with what the hon. Member for Birmingham, All Saints (Mr. Walden) has said, and I shall try to be as brief as he was.
I belong to the same church as the hon. Member for Thurrock (Mr. Delargy). I am not sure that what he adduced as a fact is a fact. The hon. Gentleman said that the indissolubility of marriage is the universal view of all Christians. Strange as it may seem, I think that the hon. Member for Penistone (Mr. John Mendelson) had a point, because, although I have not been able to check my references, I think there have been times when divorce has been recognised by the Orthodox Church. Different views are held about this by people of sincere Christian belief, and also by the official spokesmen, to put it no higher, of different Christian bodies.
1944 Having said that, may I say that I entirely accept the view of marriage of the hon. Member for Thurrock. It has been said very often in these debates that it is not for Christians, who may or may not be a minority in the community, to seek to impose their view of marriage or anything else through the Legislature, through the State. But the hon. Member for Birmingham, All Saints was quite right; he said that this question of marriage was one of the overlapping questions. Education is one, and marriage is another. It is a question in which the Church and the State are involved.
In this Bill we have got to be zealous to see that we do not now get the reverse position whereby those people who hold sincere religious views are disadvantaged. It is not right, or possible, that anyone should seek to impose a religious view of marriage on those who do not hold that view. At the same time, we have now reached the position where it is necessary to have regard to those who hold sincere Christian opinions and who may be forced into a divorce against their conscience. But that matter is probably best taken care of by the Amendment in the name of my right hon. Friend the Member for Bridlington (Mr. Wood) than by the Amendment which has been forcefully and sincerely advanced by the hon. Member for Nottingham, West (Mr. English).
That latter Amendment states:The court shall not hold the marriage to have broken down irretrievably if the respondent satisfies the court … that … granting the petition would conflict with tenets of the religion according to the rites of which the marriage ceremony took place …".I agree that the object of that Amendment is to do everything possible to fortify the sanctity of religious marriage. Yet at the same time it would not be proper for the Legislature to insist that whether or not the court should give a decree should be decided by the religious views of the parties to a marriage—views which were no longer held by those parties.
§ Mr. Abse
Since everything that can be said for and against has been said, I will add only a few words, following the remarks of the hon. and learned Member for Southport (Mr. Percival). I agree with 1945 him. To suggest that the problem could be solved by subsection (3)—although there may be some very exceptional circumstances—would be misleading the House.
If one turns to the new Clause, that is a different matter. It will be recalled that under the new Clause, which is the substitute for Clause 4, any respondent, whatever the grounds upon which the Petitioner has proceeded, can oppose the grant of a decree if he can show, as a starting point, that it will result not only in grave financial hardship but in all other hardships. Again, I have no wish to exaggerate, but if a woman who was a prominent member of the Mother's Union were being divorced without her consent, I have no doubt that she could put this into issue, although it would then be possible for all the circumstances to be taken into account, as adumbrated in new Clause 1. Although it would be exceptional, strongly held beliefs would, I am sure, be taken into account when the court was deciding whether the hardship was disproportionate.
§ Mr. Christopher Price
rose in his place and claimed to move, That the Question be now put, but Mr. DEPUTY SPEAKER withheld his assent and declined then to put that Question.
§ Sir Cyril Black (Wimbledon)
I was at first attracted by the Amendment, which is one of the most interesting and important before us, and I am indebted to the hon. Member for Nottingham, West (Mr. English) for having given us that opportunity to face up to these issues. I fully share his objectives. But I am now considerably more doubtful whether this is the right way to achieve the purpose which we both have in mind. The Amendment is an honest effort to deal with people whose consciences are likely to be oppressed if the Bill becomes law in its present form. I am always anxious to preserve bodies of people, even if small minorities, whose deeply-hold convictions may be affected by legislation.
Many people hold, sincerely and tenaciously, that marriage is a lifelong bond between a man and a woman. Their existence in the community and their convictions must somehow be recognised and taken into account. There are many such people, to whom the mere 1946 thought of being involved in a divorce, even involuntarily, would be deeply hurtful to their consciences and deepest convictions. I hope that we can find some means of meeting the situation of people of that kind.
Of course, these people are protected under the present law, and have been protected under the laws of England for centuries, and any married man or woman has at present this conviction, that if he or she avoids matrimonial offence, then he or she cannot, against his or her will, be involved in a divorce. That is, therefore, an absolute safeguard, which is at present possessed by the kind of people for whom we are trying to find some protection.
Under Clause 2(1)(e), however, this situation is completely altered, and the safeguard which these people have possessed in the past will cease to exist if this Bill gets on to the Statute Book, and anyone holding the convictions which I have described will be liable in the future, without having given any cause for offence to his or her matrimonial partner, without having been guilty of the matrimonial offence, to be brought into court and faced with the very real risk of the marriage being dissolved and of being involved in a divorce. That is the situation which the hon. Member for Nottingham, West has been trying by his Amendment to avoid.
The point has been made in this debate that all marriages in this country are civil marriages, and that is the truth but not the whole truth, because, unlike some other countries—I believe that France is one—we in this country license places of worship for marriage, and we do, therefore, as a State, make it possible for people to solemnise their marriages in a place of worship, and many people wish to do so because they profoundly believe, as a matter of religious conviction, the promises which they are required to make in connection with their marriages; they do in fact literally believe that they are entering into a bond which will last "till death us do part". Of course, these people are going to be greatly concerned in the future if in this Bill no provision can be made for their circumstances.
Frankly, I find it difficult to know what is the right answer to this problem. 1947 I think that we must bear in mind, in spite of all that has been said about the difficulties of this Amendment, that, after all, it is an option which is being offered to people: nothing more than that. No one need choose this form of ceremony and this form of marriage. It is available purely to those who wish to avail themselves of it. But even when this is borne in mind I do see the disadvantages which have been pointed out by other speakers. I am certainly moving towards the view that probably the better solution is to be found in the Amendment which has been tabled by my right hon. Friend the Member for Bridlington (Mr. Wood), who, I am sure, has exactly the same concern about this matter as I have, but who has suggested a different remedy for the problem.
The hon. Member for Penistone (Mr. John Mendelson), in the very interesting speech—so I thought—which he made on this matter, referred to the position of people who have religious convictions and who are living, as it is popularly called, in sin because they have been unable to obtain a divorce and are most anxious that this Bill should pass so that they may obtain divorce and bring themselves presumably—in their own view, at any rate—out of sin and into grace. I myself cannot see that there can be any validity in their belief in that respect, because if they hold the Christian belief in regard to marriage, an Act of Parliament which may release them from a legally binding obligation will not by any means release them from the obligation for which they will answer when they have to stand before that tribunal the sovereignty of which is higher even than the sovereignty of this House of Parliament.
§ Amendment negatived.
§ Mr. Wood
I beg to move, Amendment No. 24, in page 2, line 3, at end insert:(2) In considering a petition for divorce under subsection (1)(e) above, the court shall not grant a decree unless it is satisfied, after a full inquiry into all the facts, that the respondent has no good reason, on religious or other grounds, to object to the dissolution of the marriage.
§ Mr. Deputy Speaker
It will be convenient at the same time, to take Amendment No. 25, in line 4, leave out 'a' and insert 'any other'.
§ Mr. Wood
The House will be aware of the very serious concern which I have felt—and I have discovered throughout the night that it is shared by a good many others—about the proposal which is made in subsection (1)(e) of the Clause, which most of us would agree was the only substantial change in the Bill. As long as that subsection remains in the Bill, it will be impossible for us to give a perfect protection to those who are to have divorce forced upon them. Various attempts have been made to provide some degree of protection—we have just discussed one—and some of us have given our reasons, which have varied according to the proposal, why the proposals advanced tonight either would not afford adequate protection or would attempt to do so by violating other principles which we have thought equally important.
I believe that the wrong done to one partner to a marriage by allowing him or her to be forced into a dissolution of the marriage against his or her will would in some cases—I have no wish to overstate the argument—be so grave that it is essential that Parliament should try to find some means to give protection to him or her. If we do not do so, we shall be subordinating the natural and justified expectations of all to the convenience of a few, and if we do that without giving any protection we shall be responsible, in some cases at least, for the creation of a very great injustice. Many hon. Members, although supporting the Bill, have mentioned that as a serious reservation in their support, and I sincerely hope that they will be prepared to join me in what to my mind is a sensible attempt to provide some measure of protection to those who might otherwise suffer grievously under the new proposal.
The Group which was appointed by the Archbishop of Canterbury, in its Report "Putting Asunder", accepted the new principle of the irretrievable breakdown of marriage. The Group agreed that the living separately of a husband and wife over a period of years offers a very strong presumption of such a breakdown. The Group was prepared to agree, in this and other cases in which irretrievable breakdown could be inferred, that it should be made possible to bring such marriages to an end. But 1949 the Group felt—and this is very important—that it would be right for cases of breakdown of marriage to be carefully examined before a court had the right to bring the marriages to an end.
In common with other hon. Members, I have studied carefully the Report of the Law Commission which was published in November 1966, Cmnd. 3123, to which this question had been referred by the Lord Chancellor in the light of the Report, "Putting Asunder". We read in paragraph 59 of that Report:… we have doubts whether it really is desirable for the law to require positive proof of breakdown by an inquest in all cases …I find the reasons for that statement—I will not detail them; hon. Members will be familiar with them—generally convincing. However, I have wondered whether a full inquest into the causes of breakdown in some cases might be desirable.
In the debates on this matter last year I suggested that in cases where, for example, young children were involved; where the consent to the dissolution of one party was in doubt; and, above all, in petitions under subsection (1)(e), there might be a strong argument for a full inquiry into the causes of breakdown to ensure that justice is not only done, but is seen to be done, to all the interests concerned.
I am aware of the provisions in subsection (2), and another of my Amendments relates to them. Section (2) is likely to be a formality; it would require the court to inquire as far as it reasonably can into certain matters. The sponsors realise that it would be a formality, for the very reasons given by the Law Commission, who say in paragraph 58(k) of its Report, in suggesting that wholesale inquests into all cases would be wrong:Court hearings would take far longer. Undefended cases at present constitute 93 per cent. of the total and take about ten minutes each. Under the suggested procedure"—that is, the full inquest—the length of trials could not at best be less than trebled. Present resources are fully extended to achieve about 35,000 divorces a year.It would, therefore, be impracticable to extend full inquests to every case, and to require them would soon bring the work of the courts to a standstill. For 1950 this reason my proposal is modest, more modest than I have proposed on other occasions. It relates to the small proportion of petitions for divorce which will be brought under subsection (1)(e). In the nature of these cases, they will be defended and they will join the small proportion of cases which are at present defended.
My proposal would allow men and women who it is suggested should be divorced against their will to show, if they can, good reason why a dissolution of marriage would, in their case and in their circumstances, be a grave injustice.
It may be argued that an intolerable burden would be placed on the courts in having to decide the inexact question of whether the respondent had good reason to refuse a dissolution. However, my hon. Friend the Member for North Fylde (Mr. Clegg), who is not at present in his place, mentioned the question of conscientious objection to military service. Would the task which I am suggesting should be imposed on the courts be more or less difficult that the task of deciding whether or not a man has good reason conscientiously to object to military service? I have never sat on such a tribunal, but I imagine that cases of this type have presented difficult problems.
As Parliament has rightly provided in the past an opportunity for the citizen to put forward his conscientious objections to military service, the House should be willing to provide similar opportunities to those who seek to prove that they have equally strong objections to being divorced from a marriage partner to whom they had every reason to believe they were joined for life.
The effect of my two Amendments would be to provide that petitions for divorce under subsection (1)(a), (b), (c) and (d) should be subject merely to the duty of the court, so far as it reasonably can, to inquire into the facts alleged by the petitioner, but in cases under paragraph (e) the court would need to go further and be satisfied that the respondent had no good reason either on religious or other grounds to object to the dissolution of the marriage.
§ 7.0 a.m.
§ Mr. Richard
I have some sympathy with the point which I think the right 1951 hon. Member for Bridlington (Mr. Wood) has tried to cover. Unfortunately, I do not see how it is possible to square this circle. He is asking the courts to engage in an inquiry and in effect make a valid judgment on the quality or otherwise of the objection to being divorced. This would impose an almost impossible task on the courts in the sheer practicality of carrying out the task. More important, how in these circumstances can they judge?
Who is to say what is a "good reason" for objecting to the dissolution of the marriage? If one says that there is to be a subjective standard—if all that a judge has to do is to decide whether or not the respondent conscientiously believes he has a good reason—that totally negates the whole purpose of paragraph (e). In that event all that the respondent has to do is to satisfy the court that, "I, the respondent to this petition, believe for what I consider to be good reasons—my own subjective reasons—that I have a conscientious objection to being divorced". In those circumstances the court could not grant a decree.
If the test is to be an objective and not a subjective test, is it suggested that the judge should attempt to weigh the quality of the conscientiousness of the objection the respondent has to the divorce being granted? Again this seems to impose an almost intolerable burden on the judge. The distinction between conscientious objection to military service and this type of case is quite simple. In a case of conscientious objection to military service all the tribunal has to decide is whether (a) there is such an objection, and (b) whether it is a genuine one. Under this Amendment one would have to go on, unless one is totally to negate the whole purpose of paragraph (e), to lay on the judge the duty of judging the quality of the conscientious objection which the respondent holds. I do not know how a judge could make that value judgment. Would it be purely on religious grounds or because someone said, "I like the status of being married and I have what I think is a good conscientious objection"? The number of bloody-minded spouses who would be caught under paragraph (e) must be very small. Most spouses who found them- 1952 selves in the position of those the right hon. Gentleman is trying to protect would themselves believe that they had a valid conscientious objection to being divorced. I do not see how the Amendment would solve that dilemma. If the judgment is to be a subjective one, it tears up paragraph (e) and takes out the whole concept which the Bill is specifically designed to deal with, namely, the situation in which the parties have been separated and one party does not consent to the divorce. Therefore, to that extent the Amendment is, if not in intention at any rate in fact, a wrecking one. If the test is to be an objective one, I know not upon what basis a court can arrive at the decision. For these reasons, I oppose the Amendment.
§ Sir Stephen McAdden (Southend, East)
I have difficulty in following the argument advanced against the reasonable case presented by my right hon. Friend the Member for Bridlington (Mr. Wood). The hon. Member for Barons Court (Mr. Richard) said that if the Amendment were accepted the judges would be presented with an insoluble problem. This was not the argument we heard upon the previous Amendment. The excellent Amendment proposed by the hon. Member for Nottingham, West (Mr. English) was resisted by the hon. Member for Pontypool (Mr. Abse) on the ground that it was not necessary: if a woman could prove that she was a member of the Mothers' Union, this would be a relevant factor for the judge to take into account. The hon. Member for Barons Court did not think that mattered very much.
The supporters of the Bill must sort out whether it is relevant or irrelevant that the person should be following some kind of religious faith. The hon. Member for Pontypool thought that a member of the Mothers' Union would be home and dry. There are other ways in which people testify to their religious belief. I do not believe it is beyond the wit of our judges to establish whether a person appearing before them is a genuine and sincere believer in the religious belief he professes to follow or is an imposter seeking to shelter behind a pretended belief in a religion to inflict pain and hardship upon the petitioner.
The problem is not as difficult as is suggested. Many people hold strong 1953 religious beliefs upon the question of the sanctity of marriage. The House would do such people a grave dis-service if it put them in the position where their views were to be ignored. How can we rely upon the word of those who put the Bill forward when they say, on the one hand, that they have the greatest regard for the rights of such people and their interests will be safeguarded, if they happen to belong to the Mothers' Union, and in the next breath say that it is a problem which is incapable of solution?
§ Mr. Richard
I can only assume that either the hon. Gentleman has not read the Amendment or has not listened to the debates. His description of the arguments advanced on this and the previous Amendment is a travesty of the arguments. Will he be good enough before continuing his speech to look at the wording of the Amendment and tell me how a judge would assess what is a "good reason, on religious or other grounds".
§ Sir S. McAdden
The hon. Gentleman is wrong to suggest that I have not listened to this and the previous debate. I have. Had I not been here for the debate upon the previous Amendment, I could not have described what the hon. Member for Pontypool had said. That was exactly what he said. It is within the recollection of hon. Members that he said that the Amendment moved by the hon. Member for Nottingham, West (Mr. English) was not all necessary because the interests of the people affected would be adequately safeguarded since membership of the Mothers' Union was a relevant factor which the divorce judge must take into consideration in coming to a decision.
I have simply drawn the attention of the House to the great divergence which exists between the supporters of the Bill on this issue. If the hon. Member for Barons Court differs from his hon. Friend the Member for Pontypool, I am not surprised. It is wrong to pretend that because I have pointed this out I have not listened to the debate. On the contrary, I could not have pointed it out unless I had listened to the debate.
Therefore, I support my right hon. Friend's Amendment. It is right that we should seek every possible means of protecting those with sincerely-held religious beliefs and not simply cast them aside 1954 as of no importance or as being incapable of being assessed by the learned judges. They are much brighter than the hon. Member for Barons Court thinks. I am sure that they are capable of coming to a judgment upon a person who comes before them as to whether the beliefs which that person claims to hold are genuinely and sincerely held.
Those who sincerely and honestly feel themselves aggrieved by the threat of this legislation will stand up in the courts—all we ask is that they be given the chance—to prove their sincerity and honesty and they will have greater faith in the judges to be able to assess their sincerity than the hon. Member seems to think.
§ Mr. Walden
I intervene not because I in any way doubt the sincerity of the right hon. Member for Bridlington (Mr. Wood), who moved the Amendment, or think that from a moral viewpoint its purposes are necessarily wrong, but because I want to press again, since reference was made to it, the point which I made, probably more validly, on the previous Amendment, which relates to this Amendment also.
I argued on the last Amendment that it would be discriminatory against a man or woman who had once held a religious conviction. The case is less clear on Amendment No. 24, but it is relevant. We are arguing about how a court would construe "good reason on religious grounds." I have nothing to say about "or other grounds". I am speaking simply about religious grounds.
When one stops to think of what a court would do if it came down to the practicalities of that, two cases become apparent at once. If, for instance, the couple had been married, say, according to the rites of the Catholic Church, necessarily the party who did not wish the decree to be granted would start with one clear advantage. Obviously, the marriage had been contracted under the tenents of the faith, which does not accept divorce.
Equally clearly, however, if it were obvious that a marriage had taken place when one party might have had intense religious views—presumably, the party petitioning against the decree being granted—but the other party had said before the marriage, "I have no belief 1955 in the religious significance of marriage. I have no moral views on the subject. I will even put it in writing for your and deposit it at the bank", as a judge would have to try to assess these things the case of the petitioner would be infinitely weaker. I would think it unlikely that the judge would consider that the petitioner had good reason on religious grounds as he had been forewarned that his prospective marriage partner did not have such views and knew the risk which he was taking.
Therefore, I press on the right hon. Gentleman again, although I know it is not his intention, that this is not a bad moral principle. It is not a bad rule for people to observe who belong to churches, but a bad principle for the State to impose in legislation. It is bound to mean that if one wants a divorce it is an advantage never to have had any religious conviction about marriage at all, and a disadvantage to have had one at some stage.
Therefore, with due respect to my old friend who has just spoken—if I may call him that—the hon. Member for Southend, East (Sir S. McAdden), even though the arguments advanced by my hon. Friend the Member for Barons Court (Mr. Richard) may have been answered, even though they are not valid—though I do not think so—I say again that the crucial point on this group of Amendments has yet to be grasped. It is the point which the right hon. Gentleman himself made earlier when he said that we often do not want to do things which look good on the Order Paper because they conflict with other principles. One principle is that there shall be no discrimination by the State in legislation against a man for religious beliefs which he may hold or once held. That is fundamental, but it is in danger of violation by Amendment No. 24.
§ 7.15 a.m.
§ Mrs. Knight
We are now at the heart and the crux and the kernel of the argument on the whole Bill. This is the sticking point for hon. Members who have conscience and thought for persons who may be hard hit by the Clause. This we cannot swallow; it is too much. All else in the Bill one could welcome and assist with one's vote, but this is too much.
1956 The hon. Member for Pontypool (Mr. Abse) says that the Bill will encourage family stability. Impossible. If paragraph (e) remains unamended—I would rather it were deleted altogether—no one can say with truth that the Bill will encourage family stability. A totally innocent wife, who has never done the slightest harm, could be thrown over. The House of Commons would have encouraged her abandonment. It is absolutely monstrous. She may be left in a state of utter penury—that also comes under the Bill—but this Amendment would do something to help in that situation. For the House to sanction the state of affairs which would be created by the Bill as it stands would be appalling.
There are many matters to be considered before any woman is divorced against her wish, and some are covered by these Amendments. Perhaps she is at an age—50-plus—at which she would find it extremely difficult to turn to, learn a job and keep it at a time when her energies are not at their peak. Earlier tonight, one hon. Member said that he had received a large number of letters on this subject. So have I. I shall quote from three in support of the Amendment. The first says:I beg you to try to do something to help me and other women in my position when the Divorce Reform Bill comes up in Parliament. I have been deserted by my husband for 7 years. I was married for 21 years. I had four children with him, and he now has one by the woman with whom he is living. I feel that this Bill is most unfair, as why should I suffer any more to right their wrongs, and why should I be denied the right to explain my point of view to a court as well? I have already suffered mental torture and financial difficulty through it, and I feel now that to be divorced against my will would be the last straw.The second woman has just as much agony of mind. She wrote:Details are immaterial and would entail a lot of explanation, but I still love my husband and have no wish to divorce him. But I know that the woman he is involved with is banking on it, though there is not likely to be any family. We were married in church over 25 years ago—I took my vows very seriously . . I have always worked very hard, and we have brought up a family of three sons.The writer of the third letter is anxious on another count. She says:I have today heard on the radio a disquieting comment from the Press concerning the financial provisions in the above Bill as they affect the deserted wife and families.1957 That is the part we are discussing. If the Amendment were passed she would also be able to state her case. She continued:The report implies to me that the Bill is being hurried through this Session without the financial details being fully thrashed out by the Members in the House, and moreover that the provisions are inadequate and will cause much misery. For the innocent party to be forced to divorce is itself most humiliating, without signing what amounts to a financial death warrant, for no man whose wife has already been driven to court for her maintenance will behave any better when divorce is handed to him on a plate and he is free to start up elsewhere. He will not consider his first family at all. If there are grounds for the fears expressed by the newspaper the Ministry of Social Security will be hard pressed. I hope that they can bear the brunt of it. In my own case, my husband will not hesitate to take advantage of any loophole the Bill provides, and a widow's pension is involved ….Those are three women out of a very large number who have written to me. The first had been married 21 years and had four children. The other woman has one.
Without the Amendment, and even with it, the Bill will encourage men to desert their wives, because a woman for whom a man deserts his wife will know perfectly well that with the Bill through she can force him to have a divorce so that he can be made to marry her later. I am sure that at present many women who could easily be cast in the rôle of home-breakers hesitate to get themselves into that position because they know that the law will not allow them to marry the husband whom they have stolen. But we are talking about a law which would allow exactly that. Therefore, it is no wonder that the first woman is worried.
The second woman added at the end of her letter—and this was a most important point:Why, if you cannot be forced into marriage, should you be forced into divorce?The third woman was dealing with the financial provisions. Under the Amendments the courts would be enabled—
§ Mr. Deputy Speaker
Order. The hon. Lady must not discuss the provisions of the Bill on the Amendment.
§ Mrs. Knight
The financial provisions are in the Amendment. Surely they are "or other grounds". This is dreadfully important to these women.
§ Mr. Simon Mahon
On a point of order. Does it not clearly say in the Amendment:… respondent has no good reason, on religious or other grounds,…"?My mind was certainly in tune with the hon. Lady's as regards the dilemma of a lady who was in exactly in the position she was trying to define.
§ Mrs. Knight
This is a matter of enormous concern to women in this position. They should at least have the right to state that their position will be financially difficult if they are forced into divorce. I have a letter written by the Parliamentary Secretary of the Ministry of Overseas Development, on 28th May, dealing with whether an estranged wife can have a pension. A most important paragraph says:Mrs. Mallinson is the estranged wife of Lieut.-Colonel Ernest Mallinson who served in the Indian Army and who has contributed to the Indian Military Widows' and Orphans' Fund. Under the rules of this Fund a wife, whether or not she is living with her husband at the time of his death, is entitled to a widows' pension. If, however, a marriage has been terminated by divorce, the former wife is only entitled to half pension and then only if the divorce has been granted to her petition.If the divorce is granted to her husband's petition, as it would be under this Bill, she will not get a penny, because the letter goes on:No pension is payable whatsoever in those cases where the divorce has been granted on the husband's petition.I stress again that this is an official letter.
It has also been said that there will be new rules, but no one knows what they are. The House is entitled to question this very deeply. It is a matter of great concern. There is another reference to this point, from the Overseas Service Pensioners' Association. It endorses the point that if a wife is divorced on her husband's petition she will not get a penny. The position of the wife forced to divorce is likely to be not only humiliating but extremely poor financially. I know it is said in the Bill that if the position is too bad then the divorce will not be granted. In another part there are words which make it clear that the judge will have to look into a crystal 1959 ball to make any kind of prediction of a wife's circumstances. The wife must have the right to state her position.
The only financial arrangements that need to be made are "the best that can be made in the circumstances." The wife is entitled to point out to a judge, as she can if the Amendment is passed, that although the woman her husband is to marry has no children, at that time, so that the judge may say that half her husband's salary goes to her and half to the other woman, it may well—
§ Mr. John Mendelson
On a point of order. May I submit that it must be out of order under this Clause, when the debate is concentrated on religious objections—in spite of the fact that there are the words "or other" in the Amendment—to deal with such matters when the same ground will be covered when we come to the Amendments to Clause 4, the Title of which readsDecree may be refused if divorce would result in grave financial or other hardship to respondent"?
§ Mr. Deputy Speaker
Order. It was with Clause 4 in mind that I tried to intervene earlier. I think the hon. Lady is relating her remarks as closely to the Amendment as she can. I hope that she will continue to do so.
§ Mrs. Knight
I am not in any way seeking to make a long speech, I am merely seeking to express in this House what my constituents have expressed to me, and what I fel about this. I have no intention of going over it all again, but it must be said somewhere and this seems to be the correct time and place to say it.
It would be immensely difficult for a judge to assess what future circumstances might arise, and as the old wife gets older and the new wife has children, circumstances will change, with the man going back to the court and asking for more of his salary for his new wife. That is obvious. No man, unless he is wealthy, can keep two wives and families properly. There are few enough shreds of justice to be left to the woman who is going to be divorced. Let her at least have the right to state her case. It is not good enough to say that she can 1960 draw National Assistance. I wonder how the taxpayers would feel about her doing that. I do not want to seem to be suggesting that only the woman will be placed in this position. If a man is placed in it, he should have the same rights.
§ Mr. Peter Emery (Honiton)
My hon. Friend has now suggested three times that the need for the Amendment is to allow the woman deserted to be able to state her case, particularly on financial grounds. I draw her attention to the wording of the subsection (2):On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.As I understand it, this would allow the respondent to be able to do exactly what my hon. Friend is suggesting the Amendment is necessary to enable her to do.
§ Mrs. Knight
If the position were as stated by my hon. Friend the Member for Honiton (Mr. Emery), other right hon. and hon. Members who really do know about the position would not have tabled the Amendment in these terms. These words are needed. I cannot understand why there is so much reluctance to listen to the case for the forcibly divorced wife.
§ Mr. Alec Jones
I do not think that the hon. Lady is being quite fair. We specially redrafted the old Clause 4 and presented it again as the new Clause 1, which states that the respondent… may oppose the grant of a decree nisi on the ground that the dissolution of the marriage will result in grave financial or other hardship.This will do what the hon. Lady is asking—enable all these factors to be taken into account.
§ Mrs. Knight
I am astonished that the hon. Gentleman apparently feels that the Chair has been at fault. If the position were as he states the Chair would not have selected this Amendment.
As I was saying, I am not anxious to claim that only a woman can have a case. A man can have a case too, and I would be as anxious to plead the cause of a man who, for instance, may have been unwise enough to have married at 50 a young women of 25. All might go well for years until she is 1961 40 and he is 65, when the magic has worn a bit thin.
There is a popular song that runs:Will you still need me,Will you feed me,When I'm 64?It seems likely that, given the encouragement of the Bill, she would not. If the wife leaves her totally innocent husband, it is entirely wrong that she should be able to get a divorce and that, when he does not want a divorce and has done nothing wrong whatever, his point of view would not be considered.
It is almost invariably the woman who will be placed in the situation of being forcibly divorced. It is acknowledged even by the hon. Gentleman who promoted the Bill that it is the woman about whom we are mainly talking, and it is the woman whose cause I am mainly pleading. But I thought I should say that this could also happen to the husband, that there is as strong an argument against the forcible divorce of a man as there is against the forcible divorce of a woman.
It is important to remember that even today women need protection. Originally marriage was aimed at the protection of the woman, particularly when the woman is older—
§ Mr. John Mendelson
On a point of order. I must press the point of order that if the Chairman allows a Second Reading debate again on this Amendment, an Amendment which deals primarily with religious objection, it will nullify the opportunity for the House to discuss the Amendments on Clause 4. I submit that the hon. Lady is completely out of order.
§ Dame Irene Ward
Further to that point of order. Will you please bear in mind, Mr. Deputy Speaker, that if these matters are not dealt with now, reserving the right to repeat them further on—[HON. MEMBERS: "Oh."]—we will find the Government Whip coming in to move the Closure. Yes, we shall. It is most important in the interests of justice that we should have as much opportunity to state all the points that we want to make, and I hope that we shall be allowed to do so.
§ Mr. Deputy Speaker
On the point of order raised by the hon. Member for Penistone (Mr. Mendelson), it is diffi- 1962 cult to rule rightly on this particular Amendment. In the submission of the Chair, the hon. Lady has tried to tie her argument in a general sort of way to the Amendment. At times she has been getting near to tedious repetition. I now hope she will try to come to the nub of her argument.
§ Mr. Alec Jones
On a point of order. Could it be made clear that Government Whips have not been on in discussing the principles of the Bill?
§ Mrs. Knight
I apologise if I have been guilty of tedious repetition. It is difficult to keep the thread of one's argument when one is constantly interrupted.
There are two important references that I should like to make. Both are worthy of a hearing at this point. The Women's Group on Public Welfare, which is an important body, has discussed this point. It carried a resolution at its conference providing for three contingencies. It provided, first, that in the event of a woman having a divorce forced upon her after five years' separation there should be financial safeguards, secondly that she should not be deprived of any pension to which she would have been entitled as a married woman, and, thirdly, that she should have the right to claim property of her ex-husband in the event of death.
§ Mr. Deputy Speaker
The hon. Lady is getting a little away from the Amendment. Although it refers to other grounds, there are Clauses in the Bill which are still to be discussed dealing specifically with these points.
§ Mrs. Knight
If there is an opportunity to raise it elsewhere, I am happy and ready to do so. But I find it difficult to see where else it could come except on this Clause.
§ Mr. Deputy Speaker
There are Amendments to the relevant Clause of the Bill on which I am sure the hon. Lady can raise this point.
As I read the Amendments selected for discussion, this is literally the only one on which it can be raised.
§ Mrs. Knight
Then perhaps the hon. Gentleman will tell me on which Amendment or Clause I can raise this matter.
§ Mr. Richard
Further to that point of order. The hon. Lady a moment ago was reading from a document in which a resolution was passed dealing with what this organisation said should happen in the event of a divorce taking place against a woman's will. How can that be relevant to discussion on an Amendment designed to prevent a divorce taking place?
§ Mrs. Knight
The conference was very much concerned because the divorce will not be able to be prevented from taking place—[Interruption.]—It is only fair that this point should be raised now. If I raise this matter under Clause 4 I shall be told that I should have raised it under Clause 2(1)(e). I a msick and tired of people trying to muzzle those of us who have important points to make from bodies outside this House—[Interruption.] I do not intend to read out the list of large and extremely important bodies which supported this resolution, although I should have liked to do so to show the widespread support for this matter. I cannot understand why hon. Members should be so anxious that these people should not be heard when they have a right to be heard on this point. I will not say more about that letter, but I am convinced that I am in order. Otherwise I should not still be on my feet.
Finally, there was a most important letter on this matter in The Times of 27th January last year from a very eminent Q.C., Mr. Geoffrey H. Crispin. This is the crux of what the Amendment is about. Mr. Crispin writes:What is now proposed once again, as it was proposed in Mr. Leo Abse's Bill, is that divorce should be granted to an offending spouse against the consent of the innocent spouse. My experience"—and it is most valuable that we should have his experience—satisfies me that the vast majority of petitioners will be men: that women who have committed no other offence than giving up a career, growing older and bearing and bringing up children, will be 'put asunder' against their wish if this Bill ever becomes law. It is idle to talk of safeguards: they simply cannot be devised ….If the Amendment is accepted, it may be that the wife, for whom I hold no brief, who is hanging on to her husband 1964 to spite him, will not be able to do so. I am anxious that the wife who is not spiting him and has never done wrong should not be forced into this position, but should be able to have her case properly examined and understood, which the sponsors of the Bill apparently do not seem to wish.
§ Mrs. Knight
I cannot understand why they should feel that this woman is, in theory, less worthy of understanding and sympathy than the new wife, the woman who has lured her husband away.
§ Mr. Simon Mahon
I compliment the hon. Member for Birmingham, Edgbaston (Mrs. Knight). I have had the pleasure of listening to her on many occasions in this House presenting cases, with respect to my right hon. and hon. Friends, against a barrage of difficulty. We do not object to that. But on this occasion she did a great justice to the people she is representing, who, she made a specific point of saying, were the innocent people of a marriage.
Some of my hon. Friends have said that there is no longer any such thing as total guilt or total innocence. Most of us would say that this is absolutely right. I used to hear the late right hon. Member for Ebbw Vale, Mr. Aneurin Bevan, waxing eloquent about original sin when people asked the workers to show a perfection which they did not possess. Some of us believe in original sin. Of course there is no such things as perfect innocence and perfect guilt, but there are qualities of innocence and qualities of guilt. In many instances it is the perfectly innocent woman—it is almost always the woman—and the children who suffer from the activities of a rather wayward husband. Why should that woman not be able to go to court to have her case assessed by a judge? Judges are able to do these things. They are able to detect the honesty of many a good woman who is trying to present her case to the court.
Half the trouble that has been caused here could be obviated if the Government Front Bench—I was going to use a Prince Philip expression to convey what is in my mind—would give us the information that we require. They have 1965 refused to give us information which would have obviated a tremendous amount of the inquiry that we have to make. It is no use telling the hon. Lady to wait until we debate some other Clause or Amendment, because when that occasion arises she might be ruled out of order, in the same way as some hon. Members have tried to get her out of order on this Amendment.
What safeguards will there be for people who want to say something about religious or other grounds? The hon. Lady made a great point about the financial position, and she was not out of order when she said that we—and most of us are working-class people—have enough to do to keep our homes, wives and children without going on any excursions to do something else. Why do we not tell the truth? The Government know that they have to make a massive financial contribution towards getting this Bill across to the people of this country. Without that financial contribution this Measure will be a dead duck. Everybody knows that.
There has been some collusion between the sponsors of the Bill and the Government—
§ Mr. Deputy Speaker
Order. The hon. Member must relate his remarks a little more to the Amendment, and not make a general Second Reading speech.
§ Mr. Mahon
I am not making a general Second Reading speech. As a matter of fact, I made an excellent speech when I did. I am confining myself to the other objections to the dissolution of a marriage, and I am entitled to ask these questions. Along with many others, I made this Labour Government, and they should tell us the size of the financial contribution which they are to make to get this Bill over the first stile, to help the sort of people about whom the hon. Lady has been talking.
It seems that the Government are not prepared to listen to reasoned arguments. The right hon. Member for Bridlington (Mr. Wood) has presented this very reasonable Amendment, and I cannot for the life of me see why people should get annoyed when we try to explore the difficulties of our own people. We talk 1966 with great facility about minorities, including religious minorities. God help those of us who belong to them. We are getting afraid of the incursion of the State, and many of us have spent a good deal of our lifetime in fighting this.
§ Mr. Deputy Speaker
Order. I am afraid that I am finding great difficulty in relating the hon. Gentleman's remarks to the Amendment. Perhaps he can assist me.
§ Mr. Mahon
I am trying to assist you, Mr. Deputy Speaker. I was thinking of the individual, of the child, who will be affected by the situation. I am wondering what safeguards will be given to those people by a State that does not fully understand. If the State does fully understand the difficulties which it will incur in this respect, why do not the Government stand up on their feet and tell us what they are doing, or are they keeping it a secret?
§ Mr. Deputy Speaker
Order. I am afraid the hon. Gentleman is not relating his remarks to the Amendment, which deals with one aspect of why a petition should not be granted.
§ Mr. Mahon
I will not try your patience any more, Mr. Deputy Speaker. I believe that I am right in saying this. Perhaps I am expressing myself in a way which is outside the bounds of order. I am experiencing just as much difficulty in conveying my meaning as the hon. Lady did when trying to express her viewpoint.
The Government could help us about this Clause. Our doubts about the Clause could be eased by an intervention by the Government and by an explanation of the financial responsibility to those people who will be affected by the Bill, to whom the Government have given so much comfort.
§ Mr. Percival
I am sorry that I missed part of the beginning of the debate on this Amendment, but, like all other hon. Members, I find it difficult to sit continuously for more than nine hours.
I am happy now to have caught your eye, Mr. Deputy Speaker, because it appears to me that this is the one Amendment which goes directly to the provision which is the heart and soul of the controversy over this Bill. The Amendment relates directly to Clause 1967 2(1)(e). Clause 4 may have some bearing on it, and I may come to that in a moment. But Clause 4 relates to all the provisions, whereas this Amendment relates directly to that one provision which is the heart and soul of the controversy.
For reasons which I will indicate in a moment, I believe there is here an element of public policy on which the Government should have a view and on which I hope the Solicitor-General will be able to help us. The reason why I say that is that Clause 2(1)(e) introduces into our law an entirely new concept. Whether it should be introduced or not is the matter of controversy. There cannot be any controversy over the proposition that it introduces a new concept. On all the other grounds, it is fair for people to say: We are not obliging anybody to take advantage of these provisions. If people for religious reasons prefer to stay married, they do not have to take advantage of these relaxations and present petitions. If they do not want to be divorced, all they have got to do is to make sure that they do not do one of the things which will make them liable to be divorced. It is, therefore, fair to say that we are not ramming anything down people's throats. If they do not want to take divorce proceedings, they need not. If they do not want to be divorced, they know the rules. They can keep within those rules.
Where Clause 2(1)(e) introduces a novel concept is this. It introduces the possibility that somebody who has played entirely according to the rules and who does not want to be divorced, for good reason, may nevertheless find himself or herself being divorced. The courts of this country will be made available to a petitioner taking advantage of these provisions to impose that unwanted divorce upon the respondent. That is why I say that there is an element of public policy here and the Government should have a view on the introduction of this new concept, which the courts will be used to implement. In many cases there is some blame on both sides, but that does not carry the argument any further, because then one comes to degrees of blame. But if Clause 2(1)(e) goes through unamended, a wife or husband who has been entirely blameless could be the subject of divorce proceedings.
1968 I have listened to the arguments about this over many months, and I know that in some cases a wife or husband will decide, out of pure spite, not to take divorce proceedings. I do not believe that these cases are very frequent. A party who wants a divorce and cannot persuade the other one to bring proceedings may use robust language and say that it is spite which is preventing the other from taking action, but if a wife or husband declines to act, it is usually for some reason which seems good to that person. That is what is important, and not what we think is a good reason, if we attach any importance at all to individual freedom. If it is a good reason to the person concerned, we should respect that.
There were Amendments in Committee to try to deal with pure spite, for instance by introducing the concept of "some reasonable grounds" for not taking action. The Amendment is far better than anything else yet put forward. It will mean that the onus will be upon the respondent to satisfy the court that he or she has good reason—
§ Mr. Julius Silverman (Birmingham, Aston)
Surely the onus is on the petitioner to satisfy the court that the respondent has no good reason.
§ Mr. Percival
I was interrupting myself to make that point. I fell into that trap, but it does not further the argument. The petitioner will have to satisfy the court that the respondent has no good reason for not wishing to be divorced. Is that not common justice? If the respondent has a good reason, religious or otherwise, should we not respect that? I have no doubt that we should.
§ Mr. Richard
I do not think the hon. and learned Gentleman heard my point—because he had other things to do and because I was on my feet. The Amendment refers to "good reason". Is it an objective test or a subjective test? Is it that the respondent has to satisfy the court that he has good reason, or is to be the subjective standard of goodness in which he believes? The hon. and learned Gentleman said a moment ago that it would be "if the respondent thought" he had good reason and that that would be an important issue. I agree; but is he saying we should take paragraph (e) out totally? I do not believe there are many people who would 1969 be caught by paragraph (e) who do not at this precise moment of time believe they have good reason.
§ 8.0 a.m.
§ Mr. Percival
I do not believe I can answer all that without making another speech, and I shall not take all that time, because, Government Whips apart, I believe the debate will be drawing to a close before all that long, but I do not believe that one can draw these clear distinctions between subjective and objective tests. It was the hon. Member for Pontypool (Mr. Abse), I think, who, in another debate earlier this morning, was saying it was not reasonable to say it was objective or subjective; it might be a bit of both. That may well be the case. I want to stick to broad lay terms. I take the point which the hon. Gentleman made just now: Is the test here to be whether someone thinks he has good reason? That sort of test is substituting one's own judgment, but if it is a good reason for that person, then, as far as I am concerned, that is 90 per cent. of the value. The answer is that it is probably a subjective test.
I want to draw the attention of the House to the corollary of what I am saying. If one accepts that a person has good reason in not wanting to be divorced—and there seems to be a tremendous lot to be said for that—the corollary of that is to say that if the Amendment is rejected it must mean that it is intended that divorce should be granted even though the respondent does not want it, even though the respondent is not in any way at fault, and even though the respondent has good reason, on religious or other grounds, for not wanting to be divorced. I think that that offends against common sense and common justice.
I want to pick up a point made by the hon. Member for Pontypool on Amendment 10. It is equally relevant to Amendment 24, if not, indeed, even more so. The hon. Gentleman said that Amendment 10 was not necessary because the court would be obliged or entitled to consider under new Clause 1—to take the place of the original Clause 4—grounds of "other hardship", which were the words he quoted. He was suggesting that "other hardship" would include other grounds and would include religious grounds and any other 1970 grounds. What I would say to him is the following. I ask him to consider this, and I should like a reply from somebody.
If that is right, and if it is going to be open to the court to interpret "other hardship" as meaning distress because of religious grounds or any other grounds, and if Clause 4 is meant to include that, then there is no logical basis upon which this Amendment can be rejected. If Clause 4 covers Amendment No. 10 and this Amendment, No. 24, there is no logical ground for rejecting Amendment No. 24, because it is an Amendment which relates directly to Clause 2(1)(e), whereas Clause 4 is more general. I hope that I have correctly understood what the hon. Member said—and he has been indicating that I have correctly interpreted him. In that case, by accepting the Amendment the promoters would do no more than that which the hon. Member has stated is the intention of the Bill.
By so doing, the promoters would do a great deal to set at rest the worries which some hon. Members have about the Bill. One of the distressing features of the Bill has been the unwillingness of the promoters, save in exceptional circumstances, to concede any ground at all. That is not intended to be critical of them. No doubt it is because they hold very firm views. There might have been much less concern about the Bill, and its passage might have been much easier, had there been any attempt to reach common ground on any of these matters which are causing concern.
If the hon. Member for Pontypool meant what he said about Clause 4, he could readily accept the Amendment. By doing so he would go a considerable way to putting at rest the fears which some have about the provisions of the Bill, He would also go a good way towards ensuring a wider measure of good will towards the Bill.
§ Mr. Abse
It is not my intention to follow the hon. Lady the Member for Birmingham, Edgbaston (Mrs. Knight), who has left the Chamber, into the detail of the financial provisions because I believe that that subject will be open to us when we reach Amendment No. 21, when I hope, as the House would expect, there will be a full discussion of all 1971 the minutiae concerned. That will give us a full opportunity.
That does not mean that I do not regret that the hon. Lady's speech has distracted attention from the significant Amendment which the right hon. Member for Bridlington (Mr. Wood) tabled. The hon. Lady states that she directs attention to the Amendment bearing in mind the many women affected by the Clause. It is important for all of us not to be so certain that we speak for women. We may be speaking, in fact, for only some of them. There are other women who do not pass resolutions at public meetings—resolutions such as that which the hon. Lady read. But they send us letters telling us that they have been living unmarried for perhaps 20 or 30 years, unable to have a pension and, very often, because of the financial circumstances which have arisen and because of the orders made against their common law husbands, giving more than their full share to the home. This Bill is by no means a Casanova's Charter. But it is equally important that we do not promote a Bill which becomes a "Jezebel's Justification". We want neither a "Casanova's Charter" nor a "Jezebel's Justification".
I would prefer to take the debate back whence it began and deal with the serious points made by the right hon. Member for Bridlington.
There is much weight in the argument adduced by my hon. Friend the Member for Barons Court (Mr. Richard) because if the Amendment were accepted the inquiry which the court would have to make in uncontested cases could hardly be seriously completed because the respondent would probably not be before the court; and in contested cases the inquiry would be extremely difficult to accomplish successfully because of the vagueness of the subject matter.
I could not agree with the hon. and learned Member for Southport (Mr. Percival) when he tended to devalue the importance of my hon. Friend's argument. He spoke of the test as a subjective matter in deciding whether the respondent did not have good reason to object. Is not he aware that a man or woman may not give to his or her spouse a divorce for a great many reasons: out of spite, envy, neurosis, financial ex- 1972 pectation, pension considerations and so on? If on every occasion a woman needed merely to select one of those reasons, the whole provision with which we are concerned would be almost nullified. The result would be that the social problem with which we are seeking to deal would still remain, as it has remained since and before the 1951 Act.
§ Mr. J. E. B. Hill (Norfolk, South)
The hon. Gentleman has cited only negative reasons, such as apathy, indifference, spite, jealousy and so on. Would he care to cite some creative ones, such as the willingness of the wife to keep the home going or her being ready to forgive and take her husband back? These are positive reasons.
§ Mr. Abse
To suggest that a good reason why there should not be a divorce is the fact that the wife wants her husband back is not a good reason if he does not want to come back. Since in the vast majority of the cases that we have in mind the parties will already have been apart for five years, the hon. Gentleman must agree that it would be, to say the least, extraordinarily artificial for it to be regarded as a good reason for the divorce not to be granted that, after, say, five years separation, the wife still hoped against all reasonable expectation that her husband wanted to return.
The difficulty which this matter raises was pin-pointed by the hon. and learned Member for Southport when he said that if the woman thought the reason was good that should be sufficient. It is impossible to expect the court or any judge to make an objective judgment on what are purely subjective feelings. It is not correct to say that the sponsors have not tried to deal with this dilemma.
§ Mr. Percival
I appreciate the hon. Gentleman's difficulty in quoting exactly what each hon. Member has said. He will recall that I said that the test would be largely subjective, on the basis that if the person felt that the reason was good, then that, I said, was a good starting point. I did not say that it would be entirely subjective.
§ Mr. Abse
The hon. and learned Gentleman will agree—this is certainly so from the thousands of letters which I have received; other hon. Members will have received similar correspondence—that both parties usually believe that they 1973 each have good reasons either for one to be apart from the other or for the other to deny his or her divorce. Each is passionately convinced that he or she is right. I do not doubt that once one concedes, as one must, that it must be a substantive test, one finds oneself in a dilemma.
We have tried to meet the objections raised by the hon. and learned Member for Oldham, West (Mr. Bruce Campbell), in particular in respect of the old Clause 4. We have sought to ensure that every woman has the right in every case of divorce, irrespective of the grounds of the petition—even in a case where the husband is bringing a divorce on the ground of adultery; she could be an adulterous woman—to oppose the decree nisi on the ground that the dissolution of the marriage would result in financial or other hardship.
I have never suggested—as I am told an hon. Member said, when I was out of the Chamber for a short time, I had suggested—that a woman who was a member of the Mothers' Union would be able to give that as a good reason for objection. The hon. Member misinterpreted me. I repeat that if a woman was closely associated with religious activity her personal position would be acute in the matter of divorce. She would be able to put that before the court within new Clause 1.
That would not mean that the court would be in the same dilemma as it would be under the Amendment. It would mean that the court would have to make the inquest which I think in a small number of cases the right hon. Member for Bridlington thinks desirable. It is enshrined in the Clause that once she puts that in the court shall consider all the circumstances, the conduct of the parties, the interests of the parties and of the children or other persons concerned. When it has taken everything into account, including, if necessary, the religious commitment of the woman, the court, if it thinks it wrong in all the circumstances to dissolve the marriage, may refuse to do so.
§ Sir S. McAdden
I am sure that the hon. Member will acquit me of any intention to misrepresent him. He suggested on the previous argument that all relevant considerations would be taken 1974 into account by the judge and that a person's being an active and regular attender of the Mothers' Union would be a relevant factor. I do not think that I misrepresented the hon. Member at all in describing to the House what his submission was.
§ Mr. Abse
I am sorry. I had it at second hand. It was said in the only time that I was out of the Chamber for 10 minutes since the start of the debate. I apologise if that caused a contretemps.
The right hon. Member for Bridlington may not be doing such a service as he thinks. I have certainly eschewed becoming involved in any debates concerning religious attitudes of people in this country, but I draw on clinical material which has come to me over the years. Hon. Members who belong to the Roman Catholic Church have a certainty about their faith so that they regard the secular law with considerable indifference and do not acknowledge and accept that according to it they are divorced, for they hold the view that marriage is a sacrament.
Without getting involved in these controversies, I am bound to remark that very often the same high confidence is not attached to the Church of England. Doubtless the whole history of divorce in this country reveals the same ambivalent attitude to divorce from the days of Henry VIII to "Putting Asunder".
It is a fact that a very considerable number of Catholics have a high degree of confidence about their position. They do not want to become involved in a divorce, and the reason why they do not take the initiative is that it would be anathema to them to seek to divorce their spouse although they have been separated from him for decades. It is abundantly clear to me from communications I have had that many of them would prefer to be passive about it and not become involved.
There is some danger involved in seeking to make Amendments which would be regarded almost as an incitement for them to involve themselves in some things which they would rather eschew. I am not at all certain that we should be doing them as great a service as is sometimes suggested. In all the circumstances 1975 I recommend to the House that it should not accept the Amendment but should direct its attention to the opportunities which are open to men and women in the circumstances adumbrated by the right hon. Member for Bridlington to take advantage of new Clause 1.
|Division No. 260.]||AYES||[8.20 a.m.|
|Abse, Leo||Hart, Rt. Hn. Judith||Nott, John|
|Allason, James (Hemel Hempstead)||Haseldine, Norman||Ogden, Eric|
|Archer, Peter||Hobden, Dennis||Oram, Albert E.|
|Ashley, Jack||Hooley, Frank||Orbach, Maurice|
|Astor, John||Hooson, Emyln||Orme, Stanley|
|Atkinson, Norman (Tottenham)||Hornby, Richard||Owen, Dr. David (Plymouth, S'tn)|
|Awdry, Daniel||Horner, John||Page, Derek (King's Lynn)|
|Barnes, Michael||Houghton, Rt. Hn. Douglas||Paget, R. T.|
|Barnett, Joel||Howie, W.||Parker, John (Dagenham)|
|Bidwell, Sydney||Huckfield, Leslie||Parkyn, Brian (Bedford)|
|Booth, Albert||Hunt, John||Pavitt, Laurence|
|Boston, Terence||Irvine, Sir Arthur (Edge Hill)||Rees, Merlyn|
|Boyle, Rt. Hn. Sir Edward||Jackson, Colin (B'h'se & Spenb'gh)||Richard, Ivor|
|Brown, R. W. (Shoreditch & F'bury)||Jeger, Mrs. Lena (H'b'n & St. P'cras, S.)||Ridley, Hn. Nicholas|
|Buchanan-Smith, Alick||Jenkins, Rt. Hn. Roy (Stechford)||Rodgers, William (Stockton)|
|Butler, Mrs. Joyce (Wood Green)||Johnston, Russell (Inverness)||Rowlands, E.|
|Cant, R. B.||Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)||Ryan, John|
|Concannon, J. D.||Jones, T. Alec (Rhondda West)||Scott-Nicholas|
|Crawshaw, Richard||Judd, Frank||Short, Mrs. Renée (W'hampton, N. E.)|
|Davies, Dr. Ernest (Stretford)||Kenyon, Clifford||Silkin, Hn. S. C. (Dulwich)|
|Diamond, Rt. Hn. John||Kerr, Dr. David (W'worth, Central)||Silverman, Julius|
|Dickens, James||Kerr, Russell (Feltham)||Sinclair, Sir George|
|Dobson, Ray||Lee, Rt. Hn. Jennie (Cannock)||Skeffington, Arthur|
|Dunnett, Jack||Lipton, Marcus||Spriggs, Leslie|
|Dunwoody, Dr. John (F'th & C'be)||Loughlin, Charles||Stonehouse, Rt. Hn. John|
|Edwards, Robert (Bilston)||Luard, Evan||Strauss, Rt. Hn. G. R.|
|Ellis, John||Lubbock, Eric||Taverne, Dick|
|Emery, Peter||Lyons, Edward (Bradford, E.)||Varley, Eric G.|
|English, Michael||MacDermot, Niall||Vickers, Dame Joan|
|Ennals, David||Macdonald, A. H.||Walden, Brian (All Saints)|
|Faulds, A.||Mackie, John||Watkins, David (Consett)|
|Fernyhough, E.||Marks, Kenneth||Whitaker, Ben|
|Fletcher, Ted (Darlington)||Maxwell-Hyslop, R. J.||White, Mrs. Eirene|
|Foot, Michael (Ebbw Vale)||Mellish, Rt. Hn. Robert||Willey, Rt. Hn. Frederick|
|Forester, John||Miscampbell, Norman||Wilson, William (Coventry, S.)|
|Fraser, John (Norwood)||Morris, John (Aberavon)||Winnick, David|
|Freeson, Reginald||Morrison, Charles (Devizes)|
|Gilmour, Ian (Norfolk, C.)||Murray, Albert||TELLERS FOR THE AYES:|
|Gray, Dr. Hugh (Yarmouth)||Newens, Stan||Mr. Peter M. Jackson and|
|Hamilton, William (Fife, W.)||Norwood, Christopher||Mr. Christopher Price.|
|Alldritt, Walter||Hill, J. E. B.||Rhys Wiliams, Sir Brandon|
|Biffen, John||Howarth, Robert (Bolton, E.)||Russell, Sir Ronald|
|Black, Sir Cyril||Jones, Dan (Burnley)||Small, William|
|Body, Richard||Kerby, Capt. Henry||Turton, Rt. Hn. R. H.|
|Campbell, Bruce (Oldham, W.)||Kerr, Mrs. Anne (R'ter & Chatham)||Waddington, David|
|Clegg, Walter||Knight, Mrs. Jill||Ward, Dame Irene|
|Delargy, Hugh||Lewis, Kenneth (Rutland)||Wood, Rt. Hn. Richard|
|Fortescue, Tim||McAdden, Sir Stephen||Woof, Robert|
|Grant-Ferris, R.||Maddan, Martin||Worsley, Marcus|
|Gunter, Rt. Hn. R. J.||Mahon, Peter (Preston, S.)|
|Hamilton, Michael (Salisbury)||Maude, Angus||TELLERS FOR THE NOES:|
|Harvie Anderson, Miss||Percival, Ian||Mr. John Biggs-Davison and|
|Heald, Rt. Hn. Sir Lionel||Powell, Rt. Hn. J. Enoch||Mr. Simon Mahon.|
§ Question put accordingly, That the Amendment be made:—
|Division No. 261.]||AYES||[8.29 a.m.|
|Alldritt, Walter||Body, Richard||Emery, Peter|
|Biffen, John||Campbell, B. (Oldham, W.)||English, Michael|
|Black, Sir Cyril||Delargy, Hugh||Fortescue, Tim|
§ Question put, That the Question be now put:—
§ The House divided: Ayes 117, Noes 36.
§ The House divided: Ayes 36, Noes 109.
|Grant-Ferris, R.||Knight, Mrs. Jill||Small, William|
|Gunter, Rt. Hn. R. J.||Lewis, Kenneth (Rutland)||Waddington, David|
|Hamilton, Michael (Salisbury)||McAdden, Sir Stephen||Ward, Dame Irene|
|Harvie Anderson, Miss||Maddan, Martin||Wood, Rt. Hn. Richard|
|Heald, Rt. Hn. Sir Lionel||Mahon, Peter (Preston. S.)||Woof, Robert|
|Hiley, Joseph||Maude, Angus||Worsley, Marcus|
|Hill, J. E. B.||Percival, Ian|
|Howarth, Robert (Bolton, E.)||Powell, Rt. Hn. J. Enoch||TELLERS FOR THE AYES:|
|Jones, Dan (Burnley)||Rhys Williams, Sir Brandon||Mr. John Biggs-Davison and|
|Kerby, Capt. Henry||Russell, Sir Ronald||Mr. Simon Mahon.|
|Kerr, Mrs. Anne (R'ter & Chatham)|
|Abse, Leo||Hart, Rt. Hn. Judith||Newens, Stan|
|Allason, James (Hemel Hempstead)||Haseldine, Norman||Norwood, Christopher|
|Archer, Peter||Hobden, Dennis||Nott, John|
|Ashley, Jack||Hooley, Frank||Ogden, Eric|
|Astor, John||Hooson, Emlyn||Oram, Albert E.|
|Atkinson, Norman (Tottenham)||Hornby, Richard||Orbach, Maurice|
|Awdry, Daniel||Horner, John||Owen, Dr. David (Plymouth, S'tn)|
|Barnes, Michael||Houghton, Rt. Hon. Douglas||Page, Derek (King's Lynn)|
|Bidwell, Sydney||Howie, W.||Parker, John (Dagenham)|
|Booth, Albert||Huckfield, Leslie||Parkyn, Brian (Bedford)|
|Boston, Terence||Hunt, John||Pavitt, Laurence|
|Boyle, Rt. Hn. Sir Edward||Irvine, Sir Arthur (Edge Hill)||Rees, Merlyn|
|Brown, R. W. (Shoreditch & F'bury)||Jackson, Colin (B'h'se & Spenb'gh)||Richard, Ivor|
|Butler, Mrs. Joyce (Wood Green)||Jeger, Mrs. Lena (H'b'n & St. P'cras, S.)||Ridley, Hn. Nicholas|
|Cant, R. B.||Jenkins, Rt. Hn. Roy (Stechford)||Rowlands, E.|
|Channon, H. P. G.||Johnston, Russell (Inverness)||Ryan, John|
|Concannon, J. D.||Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)||Scott, Nicholas|
|Crawshaw, Richard||Jones, T. Alec (Rhondda, West)||Sheldon, Robert|
|Davies, Dr. Ernest (Stretford)||Judd, Frank||Short, Mrs. Renée (W'hampton, N. E.)|
|Diamond, Rt. Hn. John||Kenyon, Clifford||Silkin, Hn. S. C. (Dulwich)|
|Dickens, James||Kerr, Dr. David (W'worth, Central)||Silverman, Julius|
|Dobson, Ray||Kerr, Russell (Feltham)||Sinclair, Sir George|
|Dunnett, Jack||Lee, Rt. Hn. Jennie (Cannock)||Skeffington, Arthur|
|Dunwoody, Dr. John (F'th & C'b'e)||Lipton, Marcus||Stonehouse, Rt. Hn. John|
|Edwards, Robert (Bilston)||Loughlin, Charles||Strauss, Rt. Hn. G. R.|
|Ellis, John||Luard, Evan||Varley, Eric G.|
|Ennals, David||Lubbock, Eric||Vickers, Dame Joan|
|Faulds, Andrew||Lyons, Edward (Bradford, E.)||Walden, Brian (All Saints)|
|Fernyhough, E.||MacDermot, Niall||Watkins, David (Consett)|
|Fletcher, Ted (Darlington)||Macdonald, A. H.||Whitaker, Ben|
|Foot, Michael (Ebbw Vale)||Mackie, John||White, Mrs. Eirene|
|Forrester, John||Marks, Kenneth||Wilson, William (Coventry, S.)|
|Fraser, John (Norwood)||Maxwell-Hyslop, R. J.||Winnick, David|
|Freeson, Reginald||Mikardo, Ian|
|Gilmour, Ian (Norfolk, C.)||Miscampbell, Norman||TELLERS FOR THE NOES:|
|Gray, Dr. Hugh (Yarmouth)||Morris, John (Aberavon)||Mr. Peter M. Jackson and|
|Hamilton, William (Fife, W.)||Morrison, Charles (Devizes)||Mr. Christopher Price.|
|Hamling, William||Murray, Albert|
§ Mr. Deputy Speaker (Mr. Sydney Irving)
The next Amendment selected, No. 14, is for Division only. The Question is—
§ Mr. Kenneth Lewis (Rutland and Stamford)
On a point of order. Mr. Deputy Speaker. In view of the very small margin beyond 100 of the last vote, and the fact that—
Amendment made: No. 14, in page 2, line 10, leave out '4' and insert
'(Decree to be refused in certain circumstances)'.—[Mr. Alec Jones.]
§ Mr. Lewis
May I now proceed with the point of order, Mr. Deputy Speaker? In view of the very narrow margin of 1978 the vote—[HON. MEMBERS: "Oh."]—and the fact that it was largely made up of Ministers, who turned up especially for this purpose—including Treasury Ministers, who will have to foot the bill for the result of this Measure—it is obvious that in the House as a whole there is no overwhelming support for the Bill.
§ Mr. Deputy Speaker
Order. I hope that the hon. Gentleman is addressing the Chair and not the other side of the Chamber. He is making a point of order.
§ Mr. Lewis
I am sorry, Mr. Deputy Speaker. It was only the reaction from the other side of the House that made me face hon. Members opposite.
In view of the closeness of the vote, which obviously does not reflect the feeling of the House, nor, as we believe, that 1979 of the country, may we be assured that at 11 o'clock we shall go on to private Members' business? There are a large number of Bills, and in voting as they have so heavily in the last Division the Government are assisting in killing private Members' business. Can we have your assurance, Mr. Deputy Speaker, that at 11 o'clock the proceedings on this Bill will be adjourned and that we can go on to the business of the day?
§ Mr. Biggs-Davison
On a point of order, Mr. Deputy Speaker. May I ask at what point the Leader of the House will be acquainting the House of his intentions with regard to the other important private Members' business which is at risk if these proceedings are prolonged?
§ Mr. Deputy Speaker
Order. The Chair is not responsible for the Government. There is still further time before we need to consider that question.
§ Dame Irene Ward
On a point of order Mr. Deputy Speaker. Could you inform the House when you are likely to be calling the Solicitor-General to give us news of what the Lord Chancellor has in mind, as this would facilitate business?
§ Mr. Abse
I beg to move Amendment 15, in page 2, line 11, at end insert 'nisi'.
This Amendment meets a view put to us by opponents of the Bill, particularly the hon. Member for Chelsea (Mr. Worsley) and the hon. and learned Member for Southport (Mr. Percival) and the hon. and learned Member for Oldham, West (Mr. Bruce Campbell). The House will recall that there was some doubt as to whether Section 33 of the Matrimonial Causes Act, 1965, might be implicity repealed by Clause 2(3) because that subsection is expressly subject to two qualifications.
The hon. and learned Member for Southport brought the attention of the sponsors to this difficulty and expressed, his concern, with other hon. Members. 1980 Although we take the view that Section 33 comes into operation only after a decree nisi, we do not want any doubt on the matter, and we are grateful to the hon. and learned Member. We hope that this will not be interpreted in this way—not to be the decree nisi, which obviously can affect Section 33 of the Matrimonial Causes Act, which directs, among other things, that a court must not make a decree absolute until it is satisfied that the arrangements for the care and upbringing of the children are satisfactory, or the best that can be made in the circumstances.
§ Mr. Percival
I rise only to say "thank you." It would be churlish to save a minute or two at the expense of failing to do that. My hon. Friends and I are obliged to the promoters of the Bill for meeting our point.
§ Amendment agreed to.
§ Sir C. Black
I beg to move Amendment 27, in line 23, leave out 'so far as practicable'.
Much of what I have to say arises out of Clause 2(d), which says:that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.This is a most important condition. The Amendment is to subsection (6), which says(6) Provision shall be made by rules of court for the purpose of ensuring, so far as practicable, that where in pursuance of section 2(1)(d) of this Act the petitioner alleges that the respondent does not object to a decree being granted the respondent has been given such information as will enable him to understand the consequences to him of his not objecting to a decree being granted and the steps which he must take if he wishes to object.The Amendment is to omit the words "so far as practicable". It is highly undesirable that this very important condition should be dependent upon them.
The essence of the subsection rests upon the other party being in agreement. It is also vitally necessary that the other party, if there is any danger of a misunderstanding, should understand exactly what is involved in his agreement, how it will affect his position and what the general consequences will be. It is not sufficient that confirmation of his consent and his understanding of what 1981 is involved should be "so far as practicable". Unless the court can be satisfied that he agrees and that he understands what is involved in his agreeing, there should be no divorce. The words "so far as practicable" are both unnecessary and impractical.
§ Mr. Alec Jones
I am sure that most of us are grateful to the hon. Member for Wimbledon (Sir C. Black) for the Amendment. It is the desire of the sponsors of the Bill that non-objection shall be genuinely informed and that the consequences shall be understood by all respondents. It was this motive which caused us to insert this provision in the Bill and if the hon. Gentleman's Amendment strengthens it I accept it with gratitude.
§ Amendment agreed to.