§ (1) This section shall apply if before or after marriage the parties thereto have agreed in writing that their marriage shall be a lifelong union dissoluble only by death;1828
§ which he must keep. I am asked on his behalf to say that he is sorry he cannot be here, particularly since he was given notice by the right hon. and learned Member for Chertsey (Sir L. Heald) that he would raise this matter.
§ On behalf of my right hon. Friend, may I say that this procedural problem has, I gather, been with us for many years, although it has suddenly reared its head today. I emphasise that Private Members' Bills are the responsibility of their sponsors, and, naturally, the sponsors and their opponents could inquire into the procedure. I gather that that has been the practice in the past. But my right hon. Friend undertakes to have discussions through the usual channels—I think that is the phrase—to see what should happen for the future.
§ Mr. Deputy Speaker
Order. We have extended the procedure rather more widely than it should be, but I think that it has produced a satisfactory conclusion. May we now proceed?
§ Question put, That the Clause be read a Second time:—
§ The House divided: Ayes 19, Noes 37.1827
|Division No. 187.]||AYES||[2.29 p.m.|
|Costain, A. P.||Longden, Gilbert||Weatherill, Bernard|
|Delargy, Hugh||Mahon, Peter (Preston, S.)||Wilson, Geoffrey (Truro)|
|Drayson, G. B.||Page, Graham (Crosby)||Worsley, Marcus|
|Errington, Sir Eric||Pearson, Sir Frank (Clitheroe)|
|Farr, John||Percival, Ian||TELLERS FOR THE AYES:|
|Fraser, Rt. Hn. Hugh (St'fford & Stone)||Pym, Francis||Mr. Bruce Campbell and|
|Heald, Rt. Hn. Sir Lionel||Russell, Sir Ronald||Sir Cyril Black.|
|Iremonger, T. L.||Ward, Dame Irene|
|Atkinson, Norman (Tottenham)||Jackson, Peter M. (High Peak)||Rees, Merlyn|
|Barnes, Michael||Jeger, Mrs. Lena (H'b'n & St. P'cras, S.)||Roebuck, Roy|
|Booth, Albert||Jones, T. Alec (Rhondda, West)||Shaw, Arnold (Ilford, S.)|
|Brooks, Edwin||Kerr, Russell (Feltham)||Sinclair, Sir George|
|Butler, Mrs. Joyce (Wood Green)||Lestor, Miss Joan||Taverne, Dick|
|Carmichael, Neil||Luard, Evan||Walker, Harold (Doncaster)|
|Driberg, Tom||Lubbock, Eric||Williams, Alan Lee (Hornchurch)|
|Dunwoody, Mrs. Gwyneth (Exeter)||Macdonald, A. H.||Williams, W. T. (Warrington)|
|English, Michael||McKay, Mrs. Margaret||Wilson, William (Coventry, S.)|
|Fitch, Alan (Wigan)||Molloy, William|
|Gregory, Arnold||Norwood, Christopher||TELLERS FOR THE NOES:|
|Hooson, Emlyn||Paget, R. T.||Mr. Christopher Price and|
|Huckfield, Leslie||Parker, John (Dagenham)||Mr. William Hamling|
|Irvine, Sir Arthur (Edge Hill)||Pavitt, Laurence|
§ Provided that no particular form of words shall be required for such agreement.
§ (2) Where a respondent satisfies the court that he and the petitioner have entered into such agreement as is mentioned in subsection (1) of this section then the court shall not grant a decree of divorce, but shall, if satisfied of the existence of any such fact as it mentioned1829
§ in paragraphs (a) or (b) of subsection (1) of section 2 of this Act, and if so requested by the petitioner, grant a decree of judicial separation.—[Mr. Bruce Campbell.]
§ Brought up, and read the First time.
Mr. Bruce Campbell (Oldham, West)
I beg to move, That the Clause be read a Second time.
The purpose of the Clause is to enable people, if they wish, to enter into a marriage which shall last for their joint lives and shall be indissoluble by the courts. People in this country think seriously about marriage. There are still many people who think of marriage as a holy institution, and take seriously the vows they make when they enter into that institution. Although Parliament may, in this Bill and previous Acts, put it within the power of the courts to end the contract of marriage, many people feel that they would like to enter into the sort of marriage which the courts cannot dissolve. The object of the Clause is to enable people who feel that way about marriage to put their agreement in writing either before or after the ceremony of marriage. If subsequently either spouse should tell the court, "I want a divorce", the other spouse can prevent it from being granted by producing the agreement. The Clause does not make divorce impossible in such cases, but either spouse can, by producing the written agreement at any divorce proceedings, prevent a divorce from being granted.
After all, marriage is a contract. Some people regard it as a very solemn contract, one of much greater gravity than the ordinary contracts that people enter into in the course of their everyday lives. In the past there has been some justification for enabling divorce to be granted because the law has been in keeping with the ordinary law of contract. The ordinary law of contract provides that if one party to the contract breaks it the other party is entitled to be released from it. Thus, for example, if an employer agrees to employ a man at a certain salary and on certain conditions, that is a contract of employment which binds them both. If the employee breaks his part of the contract, the employer is released from it and does not have to go on paying his salary.
In a sense, our divorce laws up to now have been in keeping with this view 1830 of the law of contract because they have been on the basis of the matrimonial offence, so that we have always had the situation in the divorce court that the petitioner has had to go to the court and say, "My husband has broken his part of the contract. He has committed adultery although he vowed that he would remain faithful to me." Or, of course, she could say that he has deserted despite the marriage vows. The petitioner, because the other spouse has broken his part of the law of contract, asks herself to be released from it.
Until now, our divorce laws have not really been different from our ordinary law of contract. If the Bill should ever reach the Statute Book, then, of course, the contract would go out of the window completely because the Bill provides that he who breaks the contract may get his complete release from it.
§ Mr. Speaker
Order. The hon. and learned Gentleman must now come to new Clause 9, which he is moving.
I shall, Mr. Speaker. What I wish to achieve by new Clause 9 is a situation where decent people can say, "The law may enable people to break this solemn contract but we do not wish to take advantage of that provision, so we shall enter into a marriage which is indissoluble, and when we promise each other that we shall live together and cherish each other until death us do part we are going to mean what we say. Therefore, we will enter into this short written contract which will simply put us in a different position from other people in that neither of us will be able to divorce the other against his will".
§ Mr. Roy Roebuck (Harrow, East)
Can the hon. and learned Gentleman elaborate a little? Surely it would still be open to the aggrieved party or either of the parties to seek an Act of Parliament dissolving the marriage in the way done formerly. Nothing in the hon. and learned Gentleman's new Clause would alter that.
§ 2.45 p.m.
No. I accept that, just as Henry VIII managed to obtain a divorce or two by Act of Parliament, an individual could do so even if my new Clause were accepted. But that is not a risk which greatly worries me. I do not 1831 think that there are likely to be many such private Acts of Parliament, and in any case that possibility could only be available to the very rich.
§ Mr. Hugh Delargy (Thurrock)
For the benefit of the very rich, will the hon. and learned Gentleman explain how much an Act of Parliament would cost?
Hon. Members will not be surprised when I say that I have no idea that I should be asked that question and have therefore done no research into it. But, having regard to the difficulties I have experienced in my short sojourn in this House, I venture to suggest that even great wealth may not be sufficient to obtain a Private Act of Parliament.
§ Sir Cyril Black (Wimbledon)
Is it not also the case that a future Parliament might be less favourable to divorce and therefore less willing to grant a special Act for divorce?
It may be that, in any event, the partners might change their view as they go through married life and come to regret entering into a binding agreement. In those circumstances, of course, they would not have to rely upon it, because, just as people may enter into binding contracts with each other by agreement, so, by agreement, can they discharge or cancel the contract.
What the new Clause does provide is that it would still be open to an aggrieved spouse to obtain a judicial separation. This is important because we must provide protection for people who are the victims of, for example, cruel conduct in the marriage. This, after all, was the original idea of divorce. When judicial divorce was introduced over a century ago the whole object was to give relief to an injured or aggrieved spouse, and, of course, Parliament could never allow a situation where there was no relief available to a wife who, for instance, was being severely beaten up by a drunken husband every Friday night.
New Clause 9 deals with that situation because, although that wife could not get a divorce if her husband relied upon the agreement, she could get a judicial separation—which is all she would need for the protection she required. Judicial 1832 separation entitles the wife to live apart from her husband and no one can accuse her of desertion. She can get all the ancillary relief which goes with it.
§ Sir Eric Errington (Aldershot)
Will my hon. and learned Friend indicate the sort of position which might arise supposing one of the spouses becomes of unsound mind?
In that situation the spouse who desired to be relieved from the marriage and sought a divorce would be able to obtain one unless a person acting on behalf of the insane partner—for example, a friend or the Official Solicitor—were to use the defence of the written agreement. If that defence were raised, that petitioner would not be able to obtain a divorce, and some of us would think it right that that petitioner should not be able to obtain a divorce, because he had entered into this lifelong contract on the basis that it would be lifelong. If one spouse has had the grave misfortune to become mentally ill, that would not be a ground for releasing the petitioner from that marriage.
I was saying that the Clause would still leave an aggrieved spouse with all the protection he or she needed, because—
§ Mr. Peter Mahon (Preston, South)
Would not the hon. and learned Gentleman agree that some wives, even though their husbands have been drunk or cruel to them, are often more conscious of the necessity for fidelity and faithfulness in marriage than wives who sometimes are not so afflicted with drunken husbands?
I was saying that the Clause would leave an aggrieved spouse perfectly well protected. She would have available to her all the forces of the law to give her the relief she needed from a cruel or adulterous husband—and, of course, it would apply both ways, because there are cruel and adulterous wives as well. After all, there is no difference between a judicial separation and a divorce except that the latter gives the parties their freedom to marry again. An aggrieved spouse may have all the 1833 relief that the divorce court can give her, except the right to marry again during the lifetime of the other spouse.
I look forward to the day when this unhappy Bill—unhappy as it would be without my new Clause—reaches the Statute Book and, if it contains my new Clause, makes it possible for all those people, of whom there are many millions, who still think that marriage is an institution which we ought to preserve to enter into the sort of marriage that they want marriage to be; in other words, an indissoluble marriage.
We shall have a sort of élite class of married people, the sort of married people who have not only gone through a marriage ceremony but who have also entered into this little agreement so that they can tell their friends, "We belong to this rather better class of married people, the sort of married people who regard marriage as a serious lifelong business, not a temporary partnership that one can enter into every few years". The new Clause does not require the parties to enter into this agreement before they marry. They could do that if they wished, but it would be equally available to people who had been married for 20 years and who might have had their ups and downs and their storms but who could say, "We have now navigated all those difficult seas and 10, 15 or 20 years afterwards we are still together; let us cement it by entering into this agreement to make it plain that we regard our marriage as a lifelong affair".
The Bill will greatly affect the people of this country. It is a social measure. Many people are offended and affronted—
§ Mr. Speaker
I know the hon. and learned Gentleman's expertise in the subject, but we are not discussing the Bill. We are discussing a new Clause, and I have so far listened to the discussion with great interest.
I was trying to explain why the Clause would greatly improve the Bill. It would enable people who wished still to treat marriage seriously, as a lifelong contract, at least to have their marriage put into that category.
I urge the House to consider the new Clause carefully. It could not hurt anybody who did not want it. Anybody who 1834 wants to have a marriage of the kind that may be entered today and got out of in three or four years can still have it. He need not enter into this agreement. But it would give to the people who want a stable, lifelong marriage the right to have it.
§ 3.0 p.m.
§ Mr. Alec Jones (Rhondda, West)
I could not follow all the arguments of the hon. and learned Member for Oldham, West (Mr. Bruce Campbell). No married couple who want to keep their marriage "till death us do part" need ever have recourse to the divorce court. The new Clause, as the hon. and learned Gentleman said, would establish two classes of marriage. I believe that that would not serve the best interests of married couples. I believe that it would not serve the best interests of society. I am absolutely convinced that it would do nothing to sanctify the ideal of marriage itself.
The hon. and learned Gentleman referred to an élite class in marriage. We might well be in danger of establishing a two-tier system almost as laughable as the postage service.
§ Mr. Jones
I will say why not. We should have this two-tier system, the 4d. marriage and the 5d. marriage, in which the parties to a 4d. marriage, without an agreement in writing, would have recourse to the divorce court, while the parties to a 5d. marriage, with an agreement in writing, could never be divorced whatever the circumstances. This agreement in writing—
The hon. Gentleman has said exactly the opposite to what I have said. There is nothing in the new Clause to prevent a divorce if neither party desires to rely on the agreement.
§ Mr. Jones
I concede that point. The point that the hon. and learned Gentleman is trying to make is that this mystic piece of paper would somehow bind people together in a far greater fashion than do the most solemn vows that we take in places of worship. I do not agree. The words of the marriage ceremony, which most people follow today, make clear that the marriage is a union for life. I cannot see how any agreement in writing could have greater effect and force than this solemn undertaking, freely 1835 exchanged between two people in a place of worship.
I am sure that each couple entering into marriage, certainly the vast majority of them, are convinced that at the time of their marriage it will be for life. They are convinced because their love, their affection, their trust is, to them, far superior to that of anyone else's. Because of human frailty, because we can have a change of circumstances, sometimes because of indifferent behaviour by one party to the marriage, sometimes because of callous behaviour by one party, this ideal state of marriage does not prevail. If this situation arises and we are left with a legal marriage merely in words, and not the ideal state which all of us want to provide, which gives a home background in which young children can be brought up, then I do not think we shall be serving any useful purpose.
Both the parties to a marriage and society put an interest in the consequences of marriage. It must surely be contrary to public policy to bind the parties for all time not to dissolve their marriage whatever the circumstances. I accept that the hon. and learned Gentleman would not conceive that even insanity should provide a ground for dissolving the marriage. I do not think that his views are held by the vast majority of people. At the time of marriage it is impossible to tell what circumstances will arise.
In any new circumstances it would be wrong not to leave each party with a choice as to what action they could take. The first part of the new Clause would bind a woman who signed such an agreement in perfect good faith—but whose husband turned out to be adulterous, cruel, avaricious or even insane—to a legal marriage which was then an empty shell, bringing no comfort to husband or wife and no benefits to society. It is true that subsection (2) would allow a judicial separation. This means that we would be condemning an innocent woman, through no fault of her own, to a life of loneliness and celibacy, never giving her the opportunity of happiness, love and affection and of starting life anew.
We would never allow people to say, "We made a mistake; let's start again." 1836 This new Clause would punish, most cruelly, the innocent wife whose only crime would be that at the time of her marriage she believed that it would be a union for life, and wanted it to be so, but who later, because of the behaviour of her husband, became sadly disillusioned. I will certainly oppose this.
§ Mr. Marcus Worsley (Chelsea)
There have already been two Committee stages of this Bill, and as one who sat on only one I realise that there is a great sense of familiarity in most of the Amendments discussed so far. This new Clause is a new conception, described by the hon. Member for Rhondda, West (Mr. Alec Jones) as "two-tier divorce". Amendment No. 10 is on rather similar lines.
This is a new concept and for the first time in our discussions I find myself more in sympathy with the hon. Member for Rhondda, West than with my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell). The whole issue which this new Clause raises is of profound importance. The House will have to consider it with great care. The fact that it has not so far been raised does not mean that there is not a very important argument, to which the House should address its mind.
I start, as my hon. and learned Friend knows, by sharing his extreme concern about the situation under Clause 2(1)(e), where a spouse of deep religious convictions finds himself, or perhaps more likely, herself, brought to the divorce court against his or her will, and wholly innocent. We argued in Committee against having this in the Bill. I still feel that this is the only effective way of dealing with the issue.
We must, however, address our minds to whether it is possible, as an alternative, to distinguish between those people who wish to hold on to their marriage for religious reasons and those who do not have the same feelings and are perhaps holding on for wholly irreligious reasons. Although it is not explicit in the new Clause, this is the substance of our discussion. The issue goes back to the classic argument which has always run through this question and other questions about the responsibility of Church and State.
§ Mr. Worsley
I am grateful, Mr. Speaker. I accept that there is a distinction between the new Clause and the Amendment.
Although this issue particularly arises when a person is of religious conviction, it can arise, at least in theory, with people of no religious conviction who hold that marriage is indissoluble. I must use the argument which has been used classically about the relationship between Church and State. It is essentially an argument which one can put without using either of those terms. The argument is between the bounds of morality and the bounds of law. I may be on safer ground if I stick to that terminology.
In law, traditionally divorce was the business purely of the Church, and until the end of the Middle Ages, and indeed later, the State never intervened. In other words, it was regarded purely as a moral matter. We have heard the same argument in recent years; the classic exposition of it was in the Wolfenden Report on homosexual practices. The distinction was brilliantly drawn in that Report between, to use the religious terms, crime and sin—between those things which are illegal and those which are wrong.
My hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell) is giving the wrong answer. It is true that two couples coming to marriage will look on marriage differently, whether they are deeply convinced Christians or not. I agree with the hon. Member for Rhondda, West that almost every couple view marriage as a permanent state of affairs. I do not suggest that many people seriously come to marriage with the idea of its being a temporary arrangement. If that is so, why come to marriage? Although at the time these two couples regard the marriage as permanent, their beliefs about the dissolubility of marriage will vary. Therefore, as time goes on, those two couples may react very differently to the stresses and strains of the time.
The issue which has been brought out so clearly is whether the State should intervene to buttress the marriage of the first couple of religious conviction in a way which is different from the way that 1838 it buttresses the marriage of the second couple who have no religious conviction.
§ Mr. Speaker
Order. The hon. Gentleman is still on Amendment No. 10. This Amendment concerns whether the Bill should apply to those who have agreed in writing that their marriages shall be lifelong unions.
§ Mr. Worsley
I am grateful, Mr. Speaker, but I am suggesting that it will be just those people who have religious convictions who would consent to the curious formula indicated by my hon. and learned Friend the Member for Oldham, West.
§ Sir C. Black
Would not my hon. Friend agree that there are hundreds of circumstances in which two sets of people may enter into different contracts, and the law enforces a contract according to whether it is more binding or less binding? That is all that this Clause does.
§ Mr. Worsley
I think that it is misleading to talk of marriage as a contract in this sense. Surely what the State does and should do in this context is lay clown the ways in which a marriage can be ended.
I see my hon. Friend's point. He is arguing very much the same point as my hon. Friend the Member for Oldham, West. The only difference is that my hon. Friend the Member for Wimbledon (Sir C. Black) is arguing that there should be a set of different degrees of marriage, and I think that that carries the argument of my hon. Friend the Member for Oldham, West to the point of absurdity. If couples were able to write their marriage vows in different ways, we should reach a very complicated state of affairs.
If certain couples hold views on the dissolubility of marriage, it is not for the State to enforce those views in a way which is different from the way that it would enforce the rules of marriage for those who do not hold those opinions. If certain people feel this sense of the indissolubility of marriage, the sanction must not be that of the State but that of the Church to which they belong.
I suggest that it would be wrong to introduce this two-tier concept into the law. Even if it were not wrong, the practical difficulties would be impossible 1839 of solution. One can imagine the charming scene at the proposal, with the young lady on the settee and the young gentleman on one knee, and the question being popped, "Darling, will you marry me?" It would lessen the excitement and charm of the occasion if she had to answer, "Do you mean first-class or second-class?"
§ 3.15 p.m.
§ Mr. Peter Mahon
In looking at the question implicit in the new Clause, for the first time in our proceedings I have misgivings about what the hon. and learned Member for Oldham, West (Mr. Bruce Campbell) has said; and he has said quite a lot, during recent weeks, from his great experience in matters of marriage and divorce.
I concur heartily when the hon. and learned Members repeats the sentiments in the sacrament of marriage:… for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part … and thereto I plight thee my troth.Those words are worth remembering.
§ Mr. Speaker
Order. I know that the hon. Member has certain ideas about the Bill, but we are not discussing the Bill but a specific Amendment. The hon. Gentleman will not be out of order if he comes to the Amendment.
§ Mr. Mahon
In all humility, Mr. Speaker, I am trying to deal with the argument. The Clause has something to do with the indissolubility of marriage and it seeks to cement that indissolubility by the signing of an extra form or the giving of a further undertaking. It is about those things that I confess to some misgiving.
The hon. and learned Member described marriage as an institution, but people today, confronted with legal penalties of one kind or another would ask, "Who the devil wants to live in an institution?" They have other ideas about marriage which have nothing akin to life in an institution. I believe that the sacrament of marriage is debased by reference to 4d. or 5d. contracts, or 4d. or 5d. marriages. We do no justice to our discourse when we use such phraseology. It will pay the Mother of Parliaments to proceed here with care. Extra underakings, documented or otherwise, could be civil or legal matters, as opposed 1840 to the sacramental nature of marriage. Marriage should be so sacrosanct that other undertakings are considered superfluous.
It is said that the present divorce law is unsatisfactory, and that we all agree with that view is evidenced by the fact that we are now dealing with a Bill to reform that law. In all spheres of life the law has revealed its limitations, and in this context it could be argued that the law has proved unsatisfactory because divorce itself is unsatisfactory.
The hon. and learned Gentleman has given us the benefit of his very great knowledge of these matters, and has made his mark in dealing with questions of very great moment, such as this is. He seeks safeguards against the breakdown of marriage, and has the greater power to do so because of his long and unique experience. It is very good for the House to have the benefit of that experience. It is in the interests of humanity and of the well-being of people that, as far as possible, the breakdown of marriage should be avoided. Many things create that breakdown. If it is wise and good—
§ Mr. Deputy Speaker
Order. The new Clause is about an agreement on the lifelong indissolubility of marriage. The hon. Member is not addressing himself to the Clause.
§ Mr. Deputy Speaker
Standing Orders require the Chair to do its best to keep an hon. Member in order.
§ Mr. Mahon
We are fellow sufferers.
Should such a Clause, without in every single instance taking into account the circumstances, be enshrined in our law? It might be helpful, but I doubt it. I think that it could be retrogressive. Often people in difficulties over their marriage would pay less heed to this extra guarantee, this extra documentation, than they would be prepared to pay to the laws of love, of obedience, of sanctity and fidelity. If the marriage is to break down despite all the promises they have given, and the sacrifices they have promised to make, I fear that such documentation would be far from sufficient to prevent the breakdown.
§ Mr. Geoffrey Wilson (Truro)
My hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell) based his new Clause on contract. The hon. Member for Rhondda, West (Mr. Alec Jones) rather took exception to that and also to the fact that the result of the new Clause would be two classes of marriage, which he described as a 4d. and a 5d. marriage.
My hon. Friend the Member for Chelsea (Mr. Worsley) poured derision on that and thought it an absurd idea to have two classes of marriage. He seemed surprised that the proposal should be made. But it is no new proposal. It has been the law of the land in one of the greatest law systems the world has even seen. I did not take a degree in Roman law but my recollection as an historian is that the ancient Romans had not two but three different forms of marriage based on contract according to the will of the parties concerned.
The situation envisaged in this new Clause is exactly what used to happen in the ancient Roman system. According to the will of the parties there were three different forms of marriage into which they could enter, with three different degrees of permanency, which depended on the will of the parties to the contract. It could be permanent for life, it could be dissoluble at the will of the parties, or it could be dissoluble only in certain circumstances. Marriage must depend on the will of the parties. If the parties decide that they want something permanent, why should the law prevent them from saying so? Why should it not enable them to enter such a contract which cannot be dissolved by one party only going back on what was the original intention?
I did not take part in the Committee proceedings. My hon. Friend the Member for Chelsea said that this was an idea which had not been examined in debates in Committee. If that is so, I think it should be examined now. I am convinced that this system has been tried before. The results should be examined, and it should be considered whether this is a reasonable proposal which ought to be added to the Bill
§ Mr. Roebuck
I approach consideration of the new Clause not as a wholehearted supporter of the Bill; but 1842 believe it should be resisted as it would make the Bill worse.
The hon. Member for Truro (Mr. Geoffrey Wilson) said that civilisation has had some experience of the different forms of marriage contracts. He appeared to think that they were not a bad thing. I would remind him that the Romans also had certain other arrangements in association with the marriage contract, and I am sure that opponents of this Measure would not want to go that far.
As the hon. and learned Member for Oldham, West agreed when I intervened, his Amendment would have the effect of putting back the clock a century or so. The sort of contract which he has in mind could clearly be dissolved by Parliament. In our history we have too much experience of the difficulty which is involved when Parliament has to arbitrate about a marriage to want to repeat the experience.
There are serious errors of logic in the Amendment. If we are to have a formal contract as against an easier one which can be broken by either party, it would appear to be identical with arguing for trial marriages. I see no difference in logic in arguing for that and other systems of trial marriage which have been advocated in other quarters. That difference should be pointed out to anybody who supports the Amendment.
The hon. and learned Gentleman said that, although both parties could enter into this sort of contract, it could be broken if both parties agreed to do so. That is the most serious flaw in his argument. It would have been a respectable argument if he had said that, once one has entered into a contract, it cannot be broken at all; but to suggest that some agreement could take place between the two parties to break it is advocating divorce by consent.
Mr. Bruce Campbell
It is the law of the land that any parties to a contract may make a further contract either varying or cancelling the original contract which they made. I do not see that this is any different.
§ Mr. Roebuck
I do not see that that affects my argument. The whole basis of the hon. and learned Gentleman's 1843 advocacy in supporting his Amendment was that marriage was a contract which was different from any other contract.
I should like to come to more detailed criticism of the Amendment. It says:This section shall apply if before or after marriage the parties thereto have agreed in writing that their marriage shall be a lifelong union …".The hon. and learned Gentleman has given no reason why it should be in writing. At the moment all marriages are contracted before witnesses. I cannot see why it should be necessary to have the agreement in writing.
My bewilderment about that goes further when I look down his proposed Amendment which says:Provided that no particular form of words as shall be required for such agreement.This opens the door to a great many legal chambers if no particular form of words will be open to agreement. It leaves it open to all sorts of argument about whether a particular form of words was or was not an agreement. Moreover, if one accepted the general idea that there should be a clearer indication in the Amendment in which the words should be written down—
§ Mr. Geoffrey Wilson
Is the hon. Member aware that wills can be made in any form of words and are legally enforceable?
§ Mr. Roebuck
I am aware of that, and also that a large number of lawyers has retired happily as a result. I do not think that that affects my argument. A will can contain a large number of provisions. In the contract with which we are concerned there is only one provision, so that I cannot accent that the making of a will is an analogy in this respect.
Basically, I must resist the new Clause because the hon. and learned Gentleman's argument appears to be that at one particular time two human beings can make a decision which will be binding, notwithstanding anything which might happen. All experience shows that this is not the nature of the human condition, and that many things may happen which would make it undesirable in the public interest and in the interest of the institution of marriage that an arrange- 1844 ment should be continued by a legal form when it is in the interests of the public and of the parties concerned that it should be broken.
For these reasons the new Clause should be resisted.
§ 3.30 p.m.
§ Mr. Percival
The House knows my position. It could perhaps be exemplified in the words of the mayor taking his seat for the first time in the council chamber when he said, "Of course, speaking from here I must be neutral. I therefore propose to be neither partial nor impartial." I speak with complete impartiality because, having listened with interest to the arguments, I doubt whether I can support the new Clause. Looked at from one point of view the logic behind the Clause is unanswerable. Only when one looks at the new Clause from the other side, the practical and human side, can one see, without being able to answer the logic, that there may be sound reasons for not having it. The House should consider carefully the idea lying behind the Clause. We should not, simply because there may be strong practical reasons against it, automatically reject it, without discussing further what is implicit in it.
As I hope to show, briefly, there are important thoughts behind the new Clause. I am sorry that, because of the procedural difficulty which has been explained, there are not more hon. Members taking part in the discussion, and that goes for both sides, if one may talk about sides on this matter. Because of the misfortune of timing, only two of the promoters have had an opportunity to be with us this afternoon, and a third one for a brief time, and it may be that others who share the view of the promoters would have liked to express their view. Of those taking different shades of view, I am sure that there are also others who would like to add their words to this discussion so that we might have a useful debate and at the end see where the balance of advantage lies.
The reason why I think that the logic behind the new Clause is unanswerable is this. It is very much a lawyers' argument, but lawyers' arguments are not always bad, although they may often be tedious. When we are making law it is not a bad idea sometimes to have a 1845 close look at what law we are making. I believe that the House once excluded all lawyers from the House; the nickname of that Parliament given in the history books is the "Mad Parliament".
§ Mr. William Wilson (Coventry, South)
May I correct the hon. and learned Gentleman? The Parliament he speaks of was in my constituency. Because the lawyers were absent it was known as the "Unlearned Parliament".
§ Mr. Percival
That sounds like another Parliament and not the one of which I was thinking.
We have hitherto treated marriage as being something of a contract but a contract of a different kind from any other one, different because the State had an interest in it and therefore it could not be simply terminable on the ordinary principles of contract, which include termination by consent, but could be terminated only for what the State considered to be such sound reason as eventually brought the marriage to an end.
This is, in its briefest form, the legal concept behind marriage and divorce thus far—at least since the day, as my hon. Friend the Member for Chelsea (Mr. Worsley) said, when the State took an interest in it. For a long time the State did not take an interest in it. There was no provision for civil marriage and divorce. But since we have had the Matrimonial Causes Acts at the end of the last century and the beginning of this century, that is roughly the position.
There is a certain amount of acceptable logic behind that. I am one of those lawyers who believe that laws will be observed only if there is behind them some degree of logic which is acceptable to the people upon whom they are binding. Here, though we call the new ground irretrievable breakdown, in fact there is a lot of the old logic still behind it, and I for one am rather glad about that. I am not talking about the matrimonial offence. I do not choose that term. That imports a certain degree of the criminal law, which has really nothing to do with this. What we called a matrimonial offence under the old law was really a breach of the implied contract of marriage of such seriousness that one could say, praying in aid the ideas of contract, that it 1846 was a breach of the contract going to the root of the matter and, therefore, such as should excuse the other party from further performance.
I think "matrimonial offence" was a useful catch phrase, but it was not really an offence in the way in which we use that word. It is really a breach of the implied contract of such seriousness as would certainly justify bringing an ordinary contract to an end—
§ Mr. Deputy Speaker
Order. It is difficult to relate the hon. and learned Gentleman's remarks to the new Clause, which is concerned with an agreement which places a voluntary restriction on divorce.
§ Mr. Percival
Would you look at it in this way, Mr. Deputy Speaker? When I am doing a jigsaw puzzle, I always go for the outside pieces first because it is so much easier to fit the inside pieces in later. I leave the sky to the end. Here I am taking the straight pieces of the puzzle so that the other pieces will be more easily picked out and fitted into the pattern. I interpolate this to show you what I am coming to, Mr. Deputy Speaker. The conclusion to which my argument will lead is that in view of the changes that we are making here, the logic for having this new Clause is unanswerable in order to fit into the pattern of the law as it will be on the passing of this Measure. I assure you, Mr. Deputy Speaker, that I will demonstrate in a moment, I hope, that I am in order.
I was dealing with what the concept was in the past. We have preserved some of that because in Clause 2 (1) paragraphs (a), (b) and (c) are what we used to call the matrimonial offences—the breaches of contract such as to amount to repudiation, justifying acceptance, and so forth.
Now I am coming nearer. In the Bill we have got a stage further to bringing the law of marriage into line with the law of contract by introducing divorce by consent. The hon. Member for Harrow, East (Mr. Roebuck) said that 1847 my hon. and learned Friend in his new Clause was moving rather in the direction of divorce by consent. But we have done it in this Bill, in paragraph (d) of Clause 2(1). We have introduced divorce by consent, and that has brought it more into line with the law of contract. But then, having preserved the previous contractual element, and having moved in Clause 2(1)(d) more into line with the law of contract by introducing termination by consent—here, Mr. Deputy Speaker, I reach the point where I show that I am in order—unless we have some such provision as the new Clause now before us, we elevate the contract of marriage into the one kind of contract which cannot be irrevocable.
I do not say that every other kind of contract is irrevocable, for it may in some cases be contrary to public policy to make a contract irrevocable, but there are some serious irrevocable contracts, for example, the contract to part with what little money one has which, in order to achieve certain tax arrangements, must be irrevocable. If one is moving the law of divorce into line with the law of contract, an understandable and, I think, quite useful concept, it is illogical not to go the stage further proposed by my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell) and provide that if parties happen to agree at any stage that the contract between them is to be indissoluble, neither can terminate it against the wish of the other.
The new Clause does not go as far as the promoter thought; if it did, I could understand more of his concern. Even with the new Clause, and even if there were such an agreement, it would still be open to both parties, by consent, to waive their rights under the agreement, for that is a basic right in the law of contract. It would still be open to a party to bring divorce proceedings, and if the other party did not wish to rely on the written agreement, he would not have to.
There is something to be thought about here. My hon. and learned Friend has drawn our attention to a valid and useful point showing that, while we are here making the law of divorce more logical in some respects, we should introduce illogicality if we did not have some such provision as the new Clause.
1848 Again, I think that the promoter overestimated the effect of the new Clause. He said that it would not be the view of the majority that a marriage should be binding for ever. He may well be right, but the virtue of a Clause drafted in terms of this kind is that no one has to avail himself of it unless he wishes to, which, equally, is one of the fundamental principles of the law of contract.
I appreciate that there are substantial practical problems. I do not think that my hon. and learned Friend himself would suggest that the wording of his new Clause as it stands is the final answer to the question. But he has done a useful service in drawing this consideration to our minds, and, though I for one hope that the Clause will not be added to the Bill, not in its present form, at all events, I hope that what lies behind it will receive further consideration.
§ 3.45 p.m.
§ Mr. John Farr (Harborough)
The hon. Member for Harrow, East (Mr. Roebuck) intervened when my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell) was introducing his new Clause. He said that marriages could always be terminated by act of Parliament. Another hon. Member instanced Henry VIII and his wives, and how Parliament had come to his help.
I would remind the hon. Member for Harrow, East of what he probably knows as well as I do, that Bills introduced in this House have a very uncertain road before them. If such a Bill was introduced, purporting to end a state of marriage between two people it would presumably be introduced as a Private Bill, and during the last few weeks we have had a number of Private Bills which have met with bitter opposition before they have gone into Committee.
The hon. Member would probably say, "Ah, but such a Private Bill would be an unopposed Private Bill." May I tell him that on the last occasion when I had the privilege of sitting on the Unopposed Private Bills Committee we threw out an unopposed Private Bill. This is no certain way by which a few wealthy people can terminate a marriage.
§ Mr. Roebuck
My argument is not the question of the dispatch which such a Measure would receive in both Houses of Parliament, but the desirability of such a process.
§ Mr. Farr
I appreciate the hon. Gentleman's view, and I share his concern that if Parliament was to be presented with a large number of such Bills the matter would become intolerable.
I have a good deal of sympathy with what my hon. and learned Friend endeavours to provide in his new Clause, but I fail to see how it will work satisfactorily. I am one of the few Members present today who is not a lawyer, but it does not seem to me that it is phrased without a certain number of loopholes. The Clause says that‖ after marriage the parties thereto have agreed in writing that their marriage ‖".If such an agreement is to be entered into in writing, is it to be enered into before witnesses and, if so, how many? Has my hon. and learned Friend an idea for a standard form of procedure to be laid down if the House saw fit to include what is basically an admirable new Clause in the Bill? There are two different types of case which we must consider. There is a contract or declaration which can be made before the marriage, or there is the alternative of making it after the ceremony, during the marriage.
What is the procedure which will be undertaken with this form of declaration? It is not a declaration to be entered into lightly, it has some significance which I take very seriously. It is not good enough to say that the parties‖ have agreed in writing.I want to give my hon. and learned Friend some examples to show why I feel that what is included in the Clause is not satisfactory. Does he envisage a form of registration of such declarations, and if so who should conduct the registrations? Who should keep the central register? Does he envisage that the register should be held by the Church or some other authority?
My hon. and learned Friend went on to say a little about the form in which such a declaration entered into before or during marriage could be terminated, and I take it that he envisages that the agreement could be revocable. Would there be any legal fees for entering or revoking such a declaration? I raise this point because, if a declaration is to have significance—and I consider that a declaration of this sort would have every significance to certain married—couples 1850 it must have some legal binding and as lawyers usually make a certain amount of income by preparing declarations, surely certain legal fees would be involved here.
What I have in mind is a situation where a devoted old couple are, say, going into a county home. They may be about to be separated for the first time in their married life and may wish to enter into a declaration before being parted temporarily. Or perhaps one partner is going into hospital and the other staying at home. They, too, might wish to enter into a declaration. Would fees be payable?
§ Mr. Geoffrey Wilson
Earlier, I compared the circumstances of such a declaration to those of a will. The principle would be the same. No special form of words is required for a will, nor is a special fee payable until after the death of the parties, when it is brought into operation.
§ Mr. Farr
I am grateful. My hon. Friend has the benefit of expert legal background which some of us do not possess.
I want to raise one or two other queries in connection with the wording of the new Clause. I have mentioned that if such a register of declarations were to be compiled, the appropriate authority would possibly be the Church. But it might not be the adequate authority for such deposits. Has my hon. and learned Friend consulted Church leaders? Has he sought their advice? If so, the House will be glad to know what it was.
I hope that my hon. and learned Friend does not think that I am deliberately kicking holes in a well-meaning and well-intentioned new Clause, and to show that the ideas I am putting forward have real meaning in life I will give illustrations of the type of situation which I envisage could occur. I have grave doubts about the new Clause in relation to what could happen if only one copy of a declaration was made and perhaps one of the partners becomes of feeble mind while the other remains sane and then deliberately destroys the agreement. What is to prevent that happening?
The insane partner will probably have been removed to a county home and may have a vague recollection of having signed 1851 a declaration, but, obviously, his word will have no meaning in law. On the other hand, the sane partner, wishing to terminate the association following this development in a formerly happy marriage, obviously will feel constrained to deny the existence of such a declaration. How would such an eventuality be covered by the new Clause? This is a point of concern.
What happens when one partner is incapacitated in a motor accident or meets with some other serious mishap? I know of tragic cases when newly-married people have been in motor accidents and one has been rendered permanently almost speechless, or with damage to the head which prevents him from making proper sense. Unless there is a central register of such declarations, what is to prevent the other partner from changing his mind, on seeing what might be permanent disfigurement in the injured partner, and denying the existence of such a declaration?
§ Mr. James Dance (Bromsgrove)
I had a crash in a point-to-point and I remember nothing of four hours of my life. It could easily happen that such a declaration would be destroyed in such a period. I say that to emphasise how sensible my hon. Friend's argument is.
§ Mr. Farr
I am grateful to my hon. Friend the Member for Bromsgrove (Mr. Dance) for that information. I did not have in mind exactly that type of incident, but it indicates the sort of hazard with which we are surrounded.
What happens if one partner tires of the marriage and seizes and destroys the declaration? The declaration may be hidden in a drawer, for instance, so that both partners know where it is, but what is to prevent one from seizing it, destroying it, and then denying that it ever existed?
All three eventualities which I have listed could easily occur daily. Unless there is a fabric of an organisation in the making of the declaration, with witnesses and registration, so that declarations are readily to hand, with details of the type of people who may witness declarations and where the declarations are to be held, and unless copies are available in case one of the partners 1852 destroys the original on the spur of the moment, the new Clause would be partly meaningless.
What are the views of the Solicitor-General? He has been good enough to sit here for nearly all the debate. He will agree that the Clause contains an interesting principle. I hope that at some stage—and I regret that it has not occurred already—the House will have the benefit of his legal expertise. This is an entirely new concept. The House would be helped by having the Solicitor-General's views about the points which have been raised, about having a central register of such declarations and their validity in law. For instance, does he feel that the Church would be an adequate repository for such declarations, or would that be better undertaken by the county councils, or by a Government Department rather like Somerset House? Is such a depository necessary to make the Clause work? If—
§ It being Four o'clock, the debate stood adjourned.
§ Debate to be resumed upon Friday next.