HC Deb 12 June 1969 vol 784 cc1981-90
Sir C. Black

I beg to move Amendment No. 17, in page 2, line 30, leave out 'may' and insert 'shall'.

This again is not a major question. It is, indeed, a minor drafting matter. The Clause begins: Provision may be made by rules of court for requiring the solicitor …. It is not satisfactory that such a provision "may" be made. It would seem essential that the rules of court covering this matter should be made, and I want to put the matter beyond question by making it mandatory.

Mr. Alec Jones

Once again we are pleased to accept the Amendment, because it is our wish that the rules of court shall be made designed to encourage reconciliation.

Amendment agreed to.

Sir C. Black

I beg to move Amendment No. 29, in page 2, line 31, leave out 'whether' and insert 'that'.

This Amendment is on the same lines as the last two, and I hope that it will have the same reception. In subsection (1) are the words, … to certify whether he has discussed with the petitioner the possibility of a reconciliation … I am seeking to substitute the word "that" for the word "whether" in those words. I want to make certain that he has discussed the matter with the petitioner and that his certificate is in the right form.

Mr. Alec Jones

Accepting Amendments is becoming something of a habit—a rather pleasant habit. I am sure that we all agree that we want to make the provisions of Clause 3 as effective as possible, and this is why we accepted Amendment No. 17. The strengthening of this provision has occupied a considerable amount of time both in debates on the previous Bill last year and in respect of the present legislation.

There was a great deal of discussion of reconciliation on the Bill introduced by my hon. Friend the Member for Coventry, South (Mr. William Wilson), who gave an undertaking during the Committee stage of his Bill that he would hold discussions with the Law Society and with the National Marriage Guidance Council to see if they favoured the strengthening of subsections (1) or (2). They clearly indicated that they would not favour any such strengthening. The National Marriage Guidance Council was opposed to any compulsory attempts at reconciliation and it felt that any provision that sought to go further would be likely to impose an intolerable strain on their limited resources.

Although one should take into account the views of the Law Society and the National Marriage Guidance Council, which has to deal day to day with problems of reconciliation, nevertheless I am prepared to recommend acceptance of this Amendment. By the time that the Bill returns to us from another place, the Law Society may have made further recommendations and the National Marriage Guidance Council may have persuaded this House to reconsider the matter further. However, at this point I am prepared to accept the Amendment.

Amendment agreed to.

Mr. Bruce Campbell

I beg to move Amendment No. 18, in page 3, line 19, leave out 'be disregarded' and insert 'not be conclusive'.

The Amendment relates to subsection (4) of Clause 3, which in turn relates to Clause 2(1,b), which substitutes for the existing ground of cruelty something very similar, although no longer using the word "cruelty".

The effect of the Clause is that if one spouse has been cruel to the other and then there is a reconcilation which last no longer than six months the court in deciding whether there has been cruelty or conduct, which up to now we have always called cruelty, shall disregard anything that has happened during those six months. This is asking the court to do the impossible. It is asking it to disregard the most important evidence that it can have before it.

Let us take as an example a case where a husband has treated his wife badly and where she satisfies the court that he has behaved in such a way towards her that she cannot reasonably be expected to live with him. That is the requirement. But let us assume that the evidence before the judge is that after the last occasion on which he struck her they came together again and lived together quite happily, perhaps for five months, with no trouble at all, blissfully happy. The Clause requires the judge to disregard altogether those five months of blissful happiness and to deliver, in effect, a completely phony judgment. He has to say that the petitioner cannot reasonably be expected to live with the respondent when he knows perfectly well that she can go on living with him, because of the evidence that he has had of the events of the last five months, so he must know that he is delivering a completely phony judgment. He is required to do that by the terms of the Clause, which direct him that the events of that period, which may be up to six months, shall be disregarded. The court is put in an intolerable position if it is asked to disregard what, in fact, is most cogent and relevant evidence.

I invite the House to say that for the words "shall be disregarded" there should be substituted the words "shall not be conclusive." By all means let us leave it like that. Standing like that the Clause can only do good, because it encourages reconciliation, which I understand is its laudable object. We do not want a situation where a wife who has been badly treated refuses to go back to her husband because she is afraid that if she does, and forgives him, she will not be able to obtain a divorce. She wants to protect herself against that possibility. Therefore, it is a desirable provision to have what used to be called this kiss and make up period so that she may come back to try for a reconciliation without throwing away her case for a divorce.

I welcome the major part of the Clause, but I submit that we cannot leave it as it is, putting the court in the position where it must disregard altogether the events of those months. If the words are that the events of those last months "shall not be conclusive", then the judge can reach and deliver an honest judgment. He can say: "True, the wife came back for a month or two; true, that for a little while they got on perfectly well; but there was conduct on the part of the husband which leaves me of the opinion that she cannot reasonably be expected to go on living with him. Therefore, she can have her divorce, although she has made an attempt at reconciliation."

But it is putting the court in an utterly impossible position and making the judge deliver what he knows to be a dishonest judgment if he is directed to disregard altogether the most vital evidence before him. In making this decision whether a wife can reasonably be expected to live with her husband, the events of the last period during which they lived together must be most important. Indeed, if they have been together for the last six months, the evidence of earlier periods are so remote as to be unimportant. We cannot put our judges in the position where they have to deliver a dishonest judgment by saying, as they would have to do, on occasions anyway, that it is unreasonable to expect this woman to live with her husband when, because of the evidence that he has heard of the last six months, he knows that it would not be unreasonable at all because she has been living blissfully happily with him during that time.

9.0 a.m.

Mr. Percival

I think this is sufficiently important to bear one further example of how it might work. On the interpretation of this provision, I think I go a little further even than my hon. Friend. If the statute provides that the fact that the persons have lived together shall be disregarded, that means that evidence of that fact cannot even be given. If it does not mean that, it means that the evidence can be given and then the court has to disregard it, and that really is what they call in my part of the world daft. If it means that, it is daft, and it is placing an impossible task on the court.

If it means the contrary, it means that the evidence cannot even be tendered because the judge would ask, "To what issue is this relevant?". Indeed, the person seeking to exclude it might even object when the evidence was being tendered. He would be asked, "To what issue is this evidence relevant?", and it would be pointed out that these facts had to be disregarded, and therefore they could not be relevant, and therefore evidence of them could not be tendered.

Before I give my illustration, perhaps I might draw attention to the fact that this is six months after the date of the occurrence of the final incident, so, ex hypothesi, it is six months within which there was no bad behaviour or any bad behaviour coming within this type of breakdown.

In a borderline case where for, say, two years one party had been treating the other badly—let me use that word to keep the illustration as neutral as I can—and it is a borderline case whether that conduct as amounted to conduct such as had the result that the respondent could not reasonably be expected to live with the petitioner, the whole story of that might be, "He treated me badly from December, 1960, to December, 1962. I lived with him for another six months, and within that period he did not do anything of which I complain"—because this is six months after the final incident of which complaint is made—"and then I left."

On this wording "shall be disregarded", the picture that would be put before the judge would simply be of those two years, and not of the six months thereafter. I think the hon. Member for Pontypool is indicating assent. It seems that this is putting the court in blinkers. In a borderline case the fact that the respondent continued to live with the petitioner and there were no further incidents might be the most convincing evidence.

My hon. and learned Friend and I only want to change this to "not conclusive". We do not want to indicate what weight should be attached to the fact that they lived together, because that would be variable in every case. It would be entirely a matter for the court, and one would want to make it quite clear that the fact that they went on living together was not conclusive to any degree, because we think we understand the reason for this.

No one wants to do anything which will hinder attempts at conciliation or reconciliation—conciliation being where the parties go on for six months after the last incident, hoping to make it up; reconciliation being where they have parted and they may get together again. None of us wants to do anything to hinder that. So we are happy to make it clear to the court that the fact that the parties have lived together after the last incident must be treated not as conclusive but merely as part of the story.

In a glaring case this would have little importance. The court would say, "We are quite satisfied that this was a woman doing her absolute utmost to make a go of it, but, though the husband did not continue the treatment, his attitude to her, his failure to make it up to her and so on, was such that we do not think there is any significance to be attached to the six months." But in another case where the couple had been parted and where the six months followed straight on, after the conduct alleged to be such that she could not reasonably be expected to live with him, it is not exaggerating to say that that could be a most vital piece of evidence. In some cases it would be worthless; in others it would be vital.

If we preserve this wording, that evidence, even though it is vital, will be excluded. My hon. Friends and I do not feel that that makes sense. We feel that to change the wording to "shall not be conclusive" will do justice to what is desired here, and we hope that we may now have persuaded the promoters of the wisdom of making that change.

Mr. Body

My hon. and learned Friend the Member for Southport (Mr. Percival) has forstalled me. Therefore, I will shorten my remarks considerably.

I wish to ask the hon. Member for Pontypool (Mr. Abse) whether he has considered some of these implications. I am sure that he has carefully considered the phraseology adopted in this Clause, as he has considered the phraseology in other Clauses. But the insertion of these words "be disregarded"—he must not mind my saying this—is a rather reactionary step. It is going against the trend. The courts realise, as I am sure he knows, how dangerous it is to shut out evidence. The tendency now is to liberalise the rules and admit evidence which would never have been allowed years ago. This trend is obviously proving helpful. It has been welcomed by the bench, and I think that practitioners would say that, on the whole, things are very much easier and certainly no less just.

This is an example where evidence will have to be shut out willy-nilly as the Bill is drafted. There may be instances where it ought not to be shut out. There may not be very many of them, but there may be a number of occasions when this sort of evidence might be decisive. It is in those cases where injustice could easily follow.

I therefore urge the hon. Member for Pontypool to think again about the phraseology here. The Amendment will not in any way imperil the spirit of the Clause. It will simply enable the court to consider evidence which might be helpful. It will simply enable evidence, which would otherwise be wholly inadmissible, to be relevant. By making it inadmissible, as the Clause requires it to be, some injustice might follow.

Mr. Julius Silverman

The object of the Clause is to promote and encourage reconciliations, which everyone will agree is desirable. If husbands or wives who had been badly treated had a reasonable case to petition for divorce because the marriage had broken down, because they could not reasonably be expected to live with the other party, they want to be reasonably certain the going back will not prejudice the case which they already have. If it is thought that this will make a substantial difference, the number of attempts at reconcilation will be very small. This would be a bad thing. There is, I admit, some dilemma between the desirability of the court considering all the evidence and the object of promoting reconcilations, but the second should be the over-riding objective. This is why I support the present wording of the Clause and hope that the Amendment will not be pressed.

Mr. Abse

I was not present when this matter was discussed in Committee, but few matters connected with drafting have caused me more anxious thought than this. The hon. and learned Member for Southport (Mr. Percival) and the right hon. and learned Member for Chertsey (Sir L. Heald) raised it then on the issue of adultery, and the former said that the evidence during the reconciliation period should be treated as not conclusive. But he was dealing with the adultery Clause rather than with this one. When he withdrew the Amendment, he promised to apply his mind to seeing whether it could be, improved. My hon. Friend the Member for Rhondda, West (Mr. Alec Jones) also said that he would consider the matter carefully.

But there is no Amendment down today on the issue of adultery either by the hon. and learned Member for Southport or by my hon. Friend. I do not say that ironically: it is not surprising, in view of the delicacy and complexity of this matter and the difficulty of finding a formula which will not sabotage the reconciliation provision.

The hon. and learned Member for Oldham, West (Mr. Bruce Campbell) now seeks to apply that original Amendment to the question of what we might call "unreasonable behaviour". The issue is clear, although not without its difficulties. But even if there is, from the lawyer's point of view, some artificiality, that price may have to be paid if that is the only way in which we would save some marriages from divorce. A solicitor, vicar or marriage guidance councellor must know, if he seeks to persuade a woman who has been subjected to cruelty to make another attempt, that if she finds it impossible in the six months to blot out the past acts of cruelty she will not prejudice her rights to a divorce.

9.15 a.m.

If there are any "ifs" or any "buts" about the position, I am certain other solicitors will begin to feel inhibited about encouraging people to go back together. This is speculation. The hon. and learned Member for Oldham, West will know that the kiss and make up provisions of the 1963 Act have been considerably eroded. They have been eroded, as he knows and acknowledges, because of the case law with its fine distinctions between the coming together of the parties for three months as distinct from the coming together for reconciliation, and that has eroded the confidence of solicitors. It may be that they are not so sophisticated and not so subtle as the members of the higher branch of the profession, but my colleagues in practice find this a dilemma. I know, and I am sure that the hon. and learned Member, from his experience, must know, that those provisions have not been used to anything like the extent they should have been, and it is unfortunate, because we all want to have reconciliation.

I fear that the wording of the Amendment, "not be conclusive", will be a danger to reconciliation. That was hinted at in Committee, and I suspect that it was understood to be so by the hon. and learned Member for Southport in Committee, and that if there were to be presumption of conclusiveness—though I do not suppose that that was the intention of the Amendment—that would wreck the whole of the reconciliation devices of the Bill.

In practice, I suspect some of the difficulties will not arise. I concede that. Some of the difficulties which the hon. and learned Member for Oldham, West has brought to the attention of the House will not arise, because, more often than not, where there is an unsuccessful reconcilation period, there is likely to be during the period an act by the respondent upon which the petitioner will be able to rely. There will, therefore, be a final incident, later than the one which preceded the start of the intended reconcilation period.

What will not be possible as the Bill stands is for six months' belated good behaviour by the husband after a lifetime of cruelty to his wife totally to prejudice her right to a divorce, although she makes an attempt at reconciliation, but finds it impossible to erase past humiliations. That is the position as the Clause stands. So the wife will not be in that position if, after a lifetime of cruelty, she should be encouraged to go back for six months only to find it im- possible to erase the memories of past humiliations.

Does that mean I am fully satisfied with the Clause? I am not. I confess it. I adopt the view of my hon. Friend, that we cannot prejudice reconciliation, but I would say to the hon. and learned Member for Oldham, West and to the hon. and learned Member for Southport that if they wish to discuss the matter with the sponsors, and if they have got other ideas to get over some of the difficulties which have been put forward, then I am willing not only to discuss them with them but, if we can find a formula, I will suggest it to the peer who will be steering the Bill in another place. Indeed, I am prepared to go further. I am prepared to have discussions with the Law Commissioners, to see if this intention, which is common to the hon. and learned Members and myself, to get a formula which will minimise the artificiality but not prejudice reconciliation, can be achieved, and I will do that with great pleasure. I, too, have had my doubts, but I have not yet found, nor has anyone else found, a satisfactory formula. I hope that out of the discussions which I am prepared to have, including those with the Law Commission, there may be further suggestions which will enable us to make a proposal in another place.

Mr. Bruce Campbell

In view of that invitation, of which I shall certainly avail myself, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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